Laurence Westgaph v National Museums Liverpool [2025] EWHC 2321 (Admin)

[2025] EWHC 2321 (Admin)Case No AC-2025-MAN-000208
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
ADMINISTRATIVE COURT AT MANCHESTER
Venue Manchester Civil Justice CentreDate 12 September 2025
Before
HHJ Stephen Davies sitting as a High Court Judge
Between
Laurence WestgaphClaimantNational Museums LiverpoolDefendant
The Claimant in person for in personGideon Barth (instructed by Weightmans LLP, Liverpool) for DefendantHearing Hearing dates: 27 August 2025Supplemental written submissions 29 August & 1 September 2025Approved JudgmentThis judgment was handed down remotely at 10.30am on 12 September 2025 by circulation to the parties or their representatives by e-mail and by release to the National Archives..............................

HHJ Stephen Davies:

[1]By this judicial review claim, issued on 13/5/25, the Claimant, Mr Laurence Westgaph, seeks to challenge a number of decisions made by the Defendant, National Museums Liverpool (NML) beginning on 8/2/25 and said to be continuing.[2]On 1/8/25 Mr CMG Ockelton, sitting as a High Court Judge, ordered that the question of permission and all other outstanding applications should be determined at an oral hearing, in circumstances where the Claimant was seeking to amend the statement of facts and grounds and where issues of delay in issuing and in serving the claim had been raised by NML.[3]The oral hearing took place before me on 27/8/25 where I had the benefit of four evidence bundles and one authorities’ bundle, as well as skeleton arguments and oral submissions from both the Claimant and Mr Barth on behalf of the Defendant.[4]My conclusion, in short, is that I should refuse to extend time for service of the claim form which, as the parties will know, has the effect that the Claimant cannot proceed further with his claim.[5]I also conclude that even had I extended the time for service I would have refused permission to bring the claim on the basis that the claims made are not reasonably arguable.[6]One particular ground for refusing to extend the time for service is that even if, contrary to my conclusion in paragraph 5 above, one or more of the claims were reasonably arguable, NML would face substantial prejudice in having to contest a complex and poorly particularised series of claims, where it is apparent that the Claimant is unable or unwilling to limit his case to a limited number of clearly expressed grounds of challenge to a limited number of decisions, where the grounds of challenge are all plainly appropriate for determination by the Administrative Court.[7]Towards the end of the hearing, particular points were raised as to the application of the Public Sector Equality Duty (PSED). These included whether or not permission to bring such a claim should be refused on the basis that it is highly likely that the outcome for the Claimant would not have been substantially different even if the PSED had not been breached (s.31(3C)–(3E) Senior Courts Act 1981 (the no substantial difference point). Because the Claimant had not had the opportunity to prepare argument on this point I agreed to allow both parties to file supplemental submissions and reply submissions on the point, which I have considered.[8]As it turns out, the Claimant also made a number of supplemental submissions and filed further evidence in relation to other points as well. I have read and considered all of these points, given that it is a permission hearing, even though there was no permission for them to be filed. They do not affect my ultimate decision, save to reinforce my conclusion that there would be substantial prejudice to NML in having to defend this claim if the time for service was extended.[9]Because this is a permission hearing, I will not attempt to provide a lengthy or detailed judgment covering every point in detail. I do wish however to record my appreciation of the clear and persuasive submissions I received from both the Claimant as a legally unrepresented party, who has clearly undertaken a significant amount of research into the relevant legal principles, and from Mr Barth. The essential underlying facts.[10]The Claimant says, and NML does not dispute, that he is a historian, educator, and public speaker specialising in the history of slavery and Black British heritage. For many years he has worked with public institutions including NML, engaging in public programming, historical interpretation, and collaborative research. This has included individual membership of the RESPECT group, which provides help and advice to NML in relation to various issues, including race equality.[11]NML operates seven museums across Liverpool, including the International Slavery Museum. It was established by The Merseyside Museums and Galleries Order 1986, pursuant to section 46 of the Local Government Act 1985, to (amongst other things) care for, preserve, add and promote to the public, certain collections of art, historic and scientific interest. It is governed by a board of trustees, who are appointed by the government.[12]NML has said that it contracted the Claimant as a freelance historian-in-residence from August 2020 to June 2024. It has said that the Claimant has never been employed by NML. The Claimant does not contest these assertions. NML has referred to his “voluntary engagement with a number of stakeholder groups which NML has run”, such as the Respect Group.[13]It appears that the Claimant positively contends that he is a volunteer within the scope of the NML Volunteer Policy. This policy defines a volunteer as “a person who chooses to give their time to benefit NML without being paid and who are not under contract or an obligation to do so”. On the evidence before me it does not seem that this would apply to his relationships with NML. That is because:(a) he was clearly not a volunteer when he was acting as historian-in-residence, because he was doing so under a contract for services;(b) he was also clearly not a volunteer within the terms of the policy in his membership of and engagement with NML run stakeholder groups, such as the Respect Group.[14]If he was a volunteer within the terms of the policy, Mr Westgaph relies on the principles identified in the policy, which are stated to be:
“To demonstrate commitment to our volunteers by applying best practice principles in volunteer management: (a) to ensure that volunteers are treated fairly and equally; (b) to enhance the quality of NML’s work by adding value and diversity through the volunteer programme; (c) to ensure volunteers are supported in their role and are provided with the necessary induction, training and ongoing development; (d) to clarify there is no intention either expressly or by its implications to create employment relationships between NML and volunteers.”
[15]On 8/2/25 a local online newspaper known as the Post published a report, which alleged, in short, that: i) the Claimant was appointed by NML despite being aware that he had previous historic spent convictions for two serious offences and also, so the paper reported, of an allegation that he was a perpetrator of sexual and domestic violence. ii) NML had ignored warnings of inappropriate behaviour by the Claimant against female colleagues whilst working with it; iii) NML had only belatedly launched an internal investigation into these allegations.[16]I should emphasise that this judicial review is not concerned in any way either with the appropriateness of the reference to the spent convictions or with the truth or falsity of the allegations reported in the Post. They are matters for the Claimant to take up with the Post. Their relevance to this case is simply that they were the catalyst for NML taking the decisions and actions which are the subject of this case.[17]On 8/2/25, without previous consultation with the Claimant, NML issued a public statement in which it said that:(a) whilst it was aware of the spent convictions, it had not been made aware of the other allegations;(b) being very concerned by these allegations, it had “opened an internal investigation” and urged any colleagues with related information to come forward. The nature of the internal investigation was not specified.[18]The Claimant says that this statement must have been understood as NML opening an internal investigation into the allegations against him. NML says that this was not, and never was, the case. It is I think reasonably obvious that any internal investigation into the allegations made would include the allegation that the Claimant was appointed despite NML being aware of allegations of previous conduct unrelated to his work with NML, which could not have been the subject of an investigation into his behaviour. The same is true of the allegation that NML had ignored warnings of inappropriate behaviour.[19]If this was a defamation claim brought by the Claimant in the Media and Communications List, I can see that there might be room for debate about the true meaning of the statement, but that is not what this case is about.[20]On 12/2/25 NML issued an updated public statement. The essential content was the same. The only relevant difference was that it stated that the internal investigation would be conducted by an independent external body.[21]On 13/2/25, NML advised the Claimant by email that “following our announcement of NML’s investigation into matters relating to the Post article” he was suspended from any voluntary activities at NML whilst the investigation takes place and from entering any NML sites or contacting any NML employees until the formal process is complete. The email also stated that “this does not imply that any decision has been made about the allegations made against you” and that “in due course you will be contacted and given the opportunity to make a statement with regards to any allegations made against you”.[22]The content of this email was not published, and it is not said that NML has made any formal statement about this suspension. However, not surprisingly the fact that the Claimant has been suspended became public knowledge and the Claimant says that the cumulative impact of NML’s actions, including his removal from the Respect Group and, according to him, removing his contribution to a publication funded and endorsed by NML, has been severe, with reputational damage, professional exclusion, academic loss and continuing uncertainty.[23]Following correspondence in which the Claimant asked for details of the allegations, he was advised by NML’s solicitors in March 2025 that the investigation was in relation to the criticisms made of NML and was not in relation to his conduct. It continued:
“In the event that NML receives complaints about your conduct relating to your work for NML it will consider the most appropriate way of addressing those”
. If so, it stated that NML would use its existing procedures. NML has since made clear that it has not received any such complaints, so that there is nothing further for investigation in that regard.[24]This statement by NML’s solicitors is consistent with the terms of reference of the organisation known as “brap” commissioned by NML to undertake the investigation. It is also consistent with the review, completed in May 2025, which has not been published but which began by stating that: “In March 2025 NML commissioned brap to conduct a review of its institutional processes in relation to its appointment and engagement of Mr Westgaph as Historian in Residence”.[25]On 11/7/25 NML wrote to the Claimant following its consideration of the brap report, stating that he was now free to attend public areas at NML properties and public events hosted by NML. It continued: “Regrettably however, in light of the recent communications between you and NML, and its representatives, the Trustees are of the view that there has been a complete breakdown in our relationship. It is apparent that you have lost trust in NML as reflected in the repeated accusations which you have made. We recognise that legal proceedings are ongoing. The Trustees have provisionally concluded that it would not be appropriate for them to permit your resumed voluntary participation in stakeholder groups until they feel there is a possibility of a trusting and effective relationship between the parties. The Trustees are willing to consider any representations which you may wish to make inviting them to reconsider that view. The Trustees’ preliminary view is that it would be prudent to wait until the current legal proceedings have been resolved before considering any resumption of your voluntary involvement with NML”. “In the future, if you or any other person were to resume participation in NML’s stakeholder groups, NML would first undertake a risk assessment having regard to any information relevant to safeguarding and staff welfare. We recognise that a number of the allegations against you are disputed, and you would be welcome to submit such evidence as you wish as part of that process, for example, to clarify or correct information or to address future risk”.[26]There has been further correspondence in relation to this letter, but that is not the subject of this claim, whether in its existing form or by way of proposed amendment, although the Claimant has said that he reserves the right to do so. The essential chronology of the proceedings.[27]The Claimant submitted his judicial review claim form and supporting documents to the court on 8/2/25. The claim was issued by the court on 13/2/25. He served the documents on NML’s solicitors on 13/2/25 by email, even though he had been told that they would accept service at their office address and had not been told they would accept service by email (although, equally, they had not said that they would not do so). They said nothing about the fact that this was not an authorised process for service until after 4pm on 20/2/25, the last day for service under the Civil Procedure Rules. Upon appreciating the position, and it being too late to hand-serve that day, the Claimant hand served the proceedings at their office address on the following day, 21/2/25.[28]In his claim form he identified eight challenged decisions and actions, starting with the statement of 8/2/25. The stated grounds were: i) illegality in relation to the investigation and suspension, including failure to adhere to its own policies; ii) procedural unfairness, including an absence of particulars of the allegations and failure to follow its policies; iii) irrationality in relation to its conduct; iv) breach of Articles 6, 8, 10 and 14 of the European Convention on Human Rights (ECHR), including a claim for financial compensation for such breaches. (Since then, the Claimant has confirmed that he no longer relies upon the ECHR.) v) breach of the UK General Data Protection Regulations (GDPR); vi) breach of the PSED under the Equality Act 2010; vii) breach of the Rehabilitation of Offenders Act 1974.[29]The summary grounds of resistance filed by NML argued that permission should be refused for a number of reasons, in summary that: i) The claims were not brought promptly and the claim in relation to the statement dated 8/2/25 was not brought within 3 months of that date. ii) Service of the issued claim by hand on 21/5/25 was one day too late. iii) The decisions and actions under challenge are not susceptible to judicial review, because NML was not exercising a public law function in relation to the conduct the subject of the complaints. iv) The claim is an abuse of process, as the appropriate remedy is a civil law action (which could include claims for defamation and/or misuse of private information). v) As regards the 8/2/25 statement, there was nothing in any way contrary to D’s obligations under the law in saying and doing what it did and D did not release private information into the public domain nor refer to or rely upon the spent convictions in any way contrary to the Rehabilitation of Offenders Act 1974. vi) As regards the investigation, in fact this only related to NML’s conduct in handling the appointment process and, in the event, no allegations of inappropriate sexual misconduct were ever made against him in relation to his association with NML, so that no investigation in relation to him was ever opened. vii) As regards the suspension, there is no basis for saying that it was irrational, given the allegations made in the Post article.[30]On 20/6/25 the Claimant filed and served a Reply to the summary grounds of resistance.[31]On 22/6/25 the Claimant filed and served an amended statement of facts and grounds, albeit without any formal application for permission to amend, which added to the existing grounds in various respects.[32]On 30/6/25 the Claimant filed and served a second amended statement of facts and grounds, again without any formal application for permission to amend, providing further details of the allegation of breach of the PSED which, in short, alleged that before taking all of the actions already complained of NML had failed to carry out any documented equality impact assessment (EIA).[33]Finally, on 25/8/25, the Claimant made an application to validate the late service of the claim form. He has not, however, made an application to extend the time for bringing the claim in relation to any claims which were not made either promptly nor in any event not later than three months after the grounds for making the claim first arose. This is plainly the case as regards the 8/2/25 statement, although the Claimant has said that he was not made aware of this earlier post until after he had seen the second post. The first issue – the failure to serve the claim form in time.[34]CPR Part 52.7 requires the claim form to be served on the defendant within 7 days after the date of issue and thus, in this case, by 20/3/25.[35]It is common ground that where, as here, the claim form was served in time by an alternative method, i.e. email, the court has power under CPR Part 6.15 to order that steps already taken to bring the claim form to the attention of the defendant by an alternative method is good service “where it appears to the court that there is a good reason” to do so.[36]However, in Barton v Wright Hassall LLP [2018] UKSC 12 the claimant (who was also a litigant in person) purported to serve the claim form on the defendant’s solicitors by email, without obtaining any prior indication that they were prepared to accept service by that means. In the circumstances, that was not good service (though the claimant mistakenly thought that it was) and, as a result, the claim form expired unserved within the relevant time period. At first instance, and on appeal, the courts declined to exercise their power under r.6.15(2) retrospectively to validate the purported service, and a further appeal by the claimant to the Supreme Court was dismissed.[37]In R. (Good Law Project) v Secretary of State for Health and Social Care [2022] EWCA Civ 355 the Court of Appeal upheld the decision of the judge not to retrospectively authorise service of a judicial review claim form in the following circumstances. The claimant filed a judicial review claim against the defendant but did not serve the sealed claim form at the defendant’s designated electronic service address within the prescribed period. It sent the unsealed claim form there on the day it was filed (but before issue) and sent the sealed claim form to the defendant’s designated case officer within time. The claimant sent the sealed claim form to the designated address on the day after the deadline, once the defendant communicated the error. The first instance judge refused to authorise service retrospectively or extend time. Giving the lead judgment, Lady Justice Carr observed that what constitutes “good reason” is essentially a matter of factual evaluation and that over analysis and copious citation of authority will not assist. She identified the following relevant principles: i) The test is whether in all the circumstances, there is good reason to order that steps taken to bring the claim form to the attention of the defendant are good service. ii) Service has a number of purposes, but the most important is to ensure that the contents of the document are brought to the attention of the person to be served. This is a critical factor. But the mere fact that the defendant knew of the existence and content of the claim form cannot, without more, constitute a good reason to make an order under CPR 6.15(2). iii) The manner in which service is affected is also important. A ‘bright line’ is necessary to determine the precise point at which time runs for subsequent procedural steps. Service of the claim form within its period of validity may have significant implications for the operation of any relevant limitation period. It is important that there should be a finite limit on the extension of the limitation period. iv) In the generality of cases, the main relevant factors are likely to be: a) Whether the claimant has taken reasonable steps to effect service in accordance with the rules. b) Whether the defendant or his solicitor was aware of the contents of the claim form at the time when it expired. c) What, if any, prejudice the defendant would suffer by the retrospective validation of a non-compliant service of the claim form. v) None of these factors are decisive in themselves, and the weight to be attached to them will vary with all the circumstances.[38]Lady Justice Carr observed that the result might seem “harsh” but that CPR r.6.15 was not a generous provision for claimants where there are no valid obstacles to service of a claim form in time. Lord Justice Phillips, dissenting, agreed with the principles identified above but would have found a “good reason” on the facts of the case on the basis that the claimant’s failure was highly technical and did not have any practical consequences.[39]Here, it is plain that the Claimant did not take reasonable steps to effect service in accordance with the rules but that NML’s solicitors were aware of the contents of the claim form when the time for service expired. As in other cases, the fact that the Claimant was a litigant in person and the fact that NML’s solicitors may well have taken the tactical decision to say nothing until it was too late for the Claimant to remedy the error cannot by themselves help him.[40]Apart from the Claimant’s delay in making this application, the real question is that of prejudice. The loss of an accrued limitation defence can be relevant prejudice: Good Law at paragraph 56.[41]Clearly, the court has to look at what the relevant prejudice would be in relation to the particular case. It may very well be that if in this case the Claimant was seeking to make one promptly made, straightforward and well-particularised challenge to one decision, where the arguments had already been ventilated, the prospects were clearly strong and the consequences to the claimant of the decision being left unchallenged particularly severe compared to the consequences to the defendant of the decision being set aside, there would be strong grounds for validating service. The same might be true if the circumstances were not precisely the same but still strongly militated in favour of exercising the discretion in favour of the claimant.[42]However, in my judgment these potential scenarios are very far from the instant case, where the Claimant is advancing a significant number of separate grounds of challenge to a number of different decisions, actions or omissions, stretching over a period of months, in circumstances where:(a) none of the grounds are particularly clearly pleaded;(b) the Claimant’s case appears to be ever-evolving;(c) it is clear that the Claimant is intent on using this judicial review as a vehicle for vindicating his reputation and reinstating his position by every possible means.[43]It is also apparent that this case has already caused NML to incur significant internal time and external cost and, that if service was validated and permission granted, that is likely to increase exponentially, no matter how hard the court attempted to impose procedural discipline on the Claimant. Even if I am wrong in my assessment of the claims as being not reasonably arguable, they are on any view not obviously straightforward or very strong. There must be real grounds for considering that NML will be unlikely to recover all, or possibly even any, of its costs in the event that it successfully defends the claim.[44]It is also difficult to see what benefit of real substance the Claimant can hope to achieve from these proceedings. It cannot be the vindication of his reputation, because that is not the function of judicial review proceedings, nor can it be the re-establishment of his position as historian-in-residence (because that relationship ended in 2024, before any of the events in issue in this case occurred). Given subsequent events, it is difficult to see how the Claimant could obtain an order quashing various (now historic) decisions and requiring them to be re-taken. It is not the function of judicial review to deal with contested private law claims or award damages in respect of them. Whilst the Claimant might obtain declaratory relief, and whilst I can see that he may may well see that as important in itself, objectively it is difficult to identify any wider public interest of significance in this case.[45]For all of these reasons I do not consider this an appropriate case to exercise my discretion to retrospectively validate service in time by email. I appreciate, as did the Court in the Good Law case, that this may seem a harsh outcome. However, no-one who brings a claim for judicial review, whether legally represented or not, can expect that they can fail to comply with important procedural rules and safely assume that the court will always exercise its discretion in their favour to allow them to avoid the consequences of that failure. In this case, there are good reasons not to do so. Amenability to judicial review.[46]I turn next to the other most substantial issue which has been argued before me. In short, NML argues that the decisions which it has made, and which are the subject of the Claimant’s complaints are not amenable to judicial review, whereas the Claimant contends that they are.[47]Issues of amenability to judicial review can raise complex issues. There is, however, a very helpful summary in chapter 2 section A of Judicial Remedies in Public Law, 6th edition, where the editor (Sir Clive Lewis) says this (at paragraph 2-003):
“Judicial review is only available against a body exercising public functions in a public law matter. In essence, two requirements need to be satisfied. First, the body under challenge must be a public body or a body performing public functions. Secondly, the subject-matter of the challenge must involve claims based on public law principles, not the enforcement of private law rights.”
[48]Sensibly, Mr Barth does not seek to persuade me that it is not reasonably arguable that NML is a public body, given its nature and activities, its formation by order made under statutory provision, its public funding and its public control (through the government’s power to appoint the trustees).[49]Instead, Mr Barth contends that it was not exercising a public function in relation to its decisions which are the subject of challenge here.[50]He refers me to the legal principles identified in particular by Lord Diplock in Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374 at p408-9, by Dyson LJ in R (Beer) v Hampshire Farmers Market Limited [2003] EWCA Civ 1056 at [16], by Carnwath LJ in R (Shrewsbury and Atcham BC) v Secretary of State for Communities and Local Government [2008] EWCA Civ 148, [2008] 3 All ER 548 at [32] and by Davis LJ and Warby J in R (Liberal Democrats) v ITV Broadcasting Ltd [2019] EWHC 3282 (Admin) at [66]-[72].[51]He submits that NML cannot reasonably be argued to have been exercising a public law function in relation to its dealings with the Claimant which are the subject of this case. NML was dealing with the need to investigate whether it had acted properly in appointing the Claimant in the first place and whether it had acted properly in relation to any complaints it was alleged it had received in relation to his conduct whilst historian in residence and whilst involved with NML associated bodies such as the Respect Group.[52]He submits that whatever ambiguity there may have been in relation to the wording of the public statement as to the nature of the investigation, in fact it is plain that NML was not investigating him in relation to allegations of misconduct in relation to his conduct whilst associated with NML and nor did it ever do so. Furthermore, even if it had, such an investigation could only have related to any allegations of misconduct whilst either he was providing contract services to NML or was providing voluntary services in relation to NML associated bodies. In neither case was NML performing a public function, just as it would not have been performing a public function if it had been investigating an employee to which the disciplinary policy applied or a volunteer to which the volunteer policy applied for misconduct, whether under the safeguarding policy or otherwise. The fact that NML had, as one would expect, policies in relation to these things does not mean that NML was undertaking a public function in making decisions and taking actions in relation to things to which they applied. Policies can be private policies just as they can be public policies.[53]He submits that in relation to the public statements, that was not the exercise of a public function. If the Claimant considers that there was a misleading imputation that he was under investigation for misconduct, that would be the subject of a private law defamation claim.[54]He submits that in relation to the suspension and exclusion and other associated matters of which he complaints, if the Claimant considers that this was in breach of some policy or some implied contractual duty, that might give him a private law claim if he had been an employee or if he was in some other contractual relationship into which the policy was incorporated or into which some duty could be implied. But otherwise, these are private matters rather than public matters.[55]He submits that if, as appears to have been the case from June 2024, the Claimant’s relationship with NML was purely voluntary, the fact that he might have no private law basis for a claim does not mean that public law can somehow fill the gap: see the judgment of Coulson J in TH v Chapter of Worcester Cathedral [2016] EWHC 1117 (Admin) at [76]. The allegations about procedural unfairness, irrationality and contradiction and breach of a legitimate expectation do not exist in a vacuum and the law of judicial review does not simply fill in a gap to allow all such complaints to be made by any person against anyone else.[56]Finally, he submits that if there are claims for breach of the GDPR they are essentially private law claims which can and should be addressed either to the Information Commissioner (as the Claimant has apparently already done) or in a private law claim. The same is true of any claim in relation to the Rehabilitation of Offenders Act 1974.[57]I have carefully considered all of the Claimant’s responses to these arguments. It seems to me that his real argument is that his complaints are amenable to judicial review because NML is a public body (which, as I have said, is not in issue for present purposes) and was exercising public functions in relation to its dealings with him because of its public position and his public position and role, because of its public positioning in relation to equality and diversity issues, because of the policies which it applied to all of its dealings, whether with staff or volunteers, in relation to conduct and grievance issues, because of its breach of obligations owed under the law (such as the PSED, the GDPR and the Rehabilitation of Offenders Act 1974), and because of the public impact upon him of its decisions and actions.[58]However, in my judgment, none of these arguments come close to establishing a case with a reasonable prospect of success that the claims are amenable to judicial review. They are either claims which relate to the private dealings between the Claimant and NML or are private law claims which are not appropriate for inclusion in judicial review proceedings, for all of the reasons given by Mr Barth as summarised above. I deal separately however with the PSED argument, simply because it raises other issues the subject of further argument. Breach of the PSED under the Equality Act 2010.[59]The duty under s.149 is owed either (under subsection (1)) by “a public authority … in the exercise of its functions” or (under subsection (2)) by “a person who is not a public authority but who exercises public functions … in the exercise of those functions”.[60]NML is not a public authority listed within Schedule 19 and, hence, subsection (1) does not apply.[61]It follows that any PSED duty can only be owed under subsection (2) by NML in the exercise of its public functions. However, s.150(5) defines a public function as “a function of a public nature for the purposes of the Human Rights Act 1998”. The position is summarised in De Smith’s Judicial Review (9th edition) at 3-086 as follows: “‘Functions of a public nature’ are defined by HRA s.6(3)(b) and 6(5), which requires “a two-fold assessment, first of the body’s functions, and secondly of the particular act in question”: Aston Cantlow and Wilmcote with Billesley Parochial Church Council v Wallbank [2003] UKHL 37; [2004] 1 A.C. 546 [85] (Lord Hobhouse).[62]Given the need to make an assessment of the nature of the particular acts in question, it seems to me to be unarguable, by the same process of reasoning as above, that the particular acts of which the Claimant complains cannot be said to amount to public functions and, hence, that the PSED cannot apply.[63]NML also submitted that it is not reasonably arguable in any event that the PSED did apply to the decisions in question the duty was breached. This is notwithstanding that, as the Claimant observed in supplemental submissions, in its letter of 15/7/25 NML expressly admitted that: “No Equality Impact Assessment, Equality Analysis or other documented PSED consideration was performed by NML in relation to the decisions or actions referred to in your request”.[64]Mr Barth submits that the PSED does not impose an obligation to take such explicit steps such as conducting an equality impact assessment, inviting representations or similar, in respect of every single action or decision it may take including, as here, actions affecting only one individual. He submits that such an approach would be unworkable and thus contrary to the intention of Parliament.[65]I can see the force in this submission. Nonetheless, I do not consider that the contrary is not reasonably arguable. I note for example that in TZA v A Secondary School [2025] EWCA Civ 200 Underhill LJ observed, at paragraph 9, in the context of a school exclusion case, that:
“Though in principle it applies to all decisions, the natural focus of section 149 is on policy or other decisions of general application”
. He did, however, at paragraph 24, express some doubt about how much it added in that case as a matter of substance to the considerations which the decision-maker would have to take into account in any event. He emphasised that this was said “not in order to downplay the importance of the PSED generally but because I am concerned that an undue focus on it may risk over-complicating, and over-legalising, the decision-making process in exclusion cases”.[66]These observations, though directed specifically to school exclusion cases, which are far removed from the instant cases, are in line with other authority on the PSED, referred to by both the Claimant and Mr Barth, such as Bracking v Secretary of State for Work and Pensions [2013] EWCA Civ 1345. They are of some relevance to the no substantial difference point, where what is required is relevant to assessing whether it is highly likely that the outcome would not have been substantially different.[67]In R. (on the application of End Violence Against Women Coalition) v DPP [2021] EWCA Civ 350, Lord Burnett of Maldon C.J. said (at paragraph 86):
“Section 149… requires a public authority to give the equality needs which are listed … the regard which is due in the particular context. It does not dictate a particular result. It does not require an elaborate structure of secondary decision-making every time a public authority makes any decision which might engage the listed equality needs, however remotely. The court is not concerned with formulaic box-ticking, but with the question whether, in substance, the public authority has complied with section 149. A public authority can comply with section 149 even if the decision maker does not refer to section 49 (see, for example, Hotak v Southwark London Borough Council [2015] UKSC 30; [2016] AC 811).”
[68]Mr Barth submits that that it is obvious, given the Claimant’s longstanding role and relationship with NML as a historian, educator, and public speaker specialising in the history of slavery and Black British heritage, including his membership of the Respect group, and given that the suspension email was written by Laura Pye as the director of NML, that the decisions must have been made in full knowledge of the Claimant’s protected characteristic of his race and the impact of making the decisions which it did in this case.[69]Mr Barth also submits that the question as to whether or not NML might have come to a different decision even if it had consciously had due regard to the s.149 objectives in the light of the Claimant’s protected characteristic had to be considered in the context of the allegation made that NML had ignored warnings of inappropriate behaviour by the Claimant against female colleagues whilst working with it. Given that in such circumstances NML was obviously obliged to ask “any colleagues with related information to come forwards”, it was inevitable that the decision made by NML to suspend the Claimant in the meantime could not have been affected in any way by considerations of the Claimant’s race.[70]He submits that it is telling that the Claimant has been unable to identify how and on what basis having due regard to the s.149 objectives could, conceivably, have made any difference in this case.[71]In his submissions the Claimant contends that the breach of the PSED is not curable by section 31 SCA 1981, because the unlawfulness lies in the absence of proper process at the time of decision-making. I accept that the unlawfulness cannot be cured by reference to the no substantial difference point. However, the no substantial difference point has to be determined in the context that it is assumed at this stage that due regard was not had, so that the unlawful decision is quashed and must be re-taken with the decision maker with due regard to the PSED.[72]The question therefore has to be considered in that hypothetical scenario. In my judgment it is impossible to conceive that the answer could have been any different, given the points made by Mr Barth. If it was legitimate, as it plainly was, to investigate the allegation that inappropriate behaviour had been reported to NML and to ask colleagues to come forward with relevant information, it is surely inconceivable that the decision whether or not to suspend the Claimant in the meantime could have been affected one way or another by having due regard to the PSED. If what the Claimant is saying is that it is possible that, having due regard to the PSED, the race of the person alleged to have been responsible for the inappropriate behaviour, could justifiably have made any difference to the decision to suspend, I am unable to accept that submission.[73]The Claimant also submitted that this is a case of exceptional public interest, but I do not accept this, given that it is essentially a private dispute between the Claimant and the NML with no wider public significance. Other matters.[74]I have not addressed all of the matters raised in the written and oral submissions, but I have read them all and considered them. I have addressed the two which are critical to my decision. I should simply add two further points.[75]First, if I had needed to rule on the argument about promptness and the need to extend time to allow the Claimant to complain about the public statement made on 8/2/25, I would have decided that it was appropriate to extend time if the claims otherwise had clear merit and were clearly articulated which, for the reasons I identify above, they do not and are not.[76]Second, if I had been minded to extent time and had decided that the claims were potentially reasonably arguable (or at least those which did not obviously raise private law claims wholly unsuitable for judicial review), I would have deferred making a decision on whether or not to grant permission on the basis of my clear view that the existing and draft amended statement of facts and grounds are wholly inadequate vehicles for the efficient further conduct of this case. I would, instead, have made an order adjoining that determination along the following lines: “As a condition of the court granting permission to bring the claim and granting permission to amend the statement of facts and grounds at the adjourned hearing the Claimant must by [date three weeks from the date of this judgment] provide:(a) an amended claim form, clearly identifying each decision the subject of challenge as already identified in the existing and draft amended statement of facts and grounds and which it is intended to pursue;(b) a clear and concise replacement statement of facts, in accordance with the guidance given in paragraph7.3.1 Administrative Court Judicial Review Guide 2024 (the Guide);(c) a clear and concise replacement statement of grounds, in accordance with the guidance given in paragraph7.3.2 of the Guide; (c) a clear and concise supporting witness statement providing any relevant further information; and(d) a bundle containing all of (but only the) relevant documents relied upon. These amended claim form and amended statement of facts and grounds must identify, clearly and concisely: (i) which decisions are the subject of challenge; (ii) the date of each decision and, if it is said to be a continuing decision, over what period and on what basis it is said to have continued; (iii) the factual and legal reasons for stating that the particular decision is of a public law character; (iv) the factual and legal reasons relied upon for challenging each decision, providing sufficient details to enable the Defendant and the Court to understand how the Claimant is going to advance each separate ground of challenge in relation to each such decision; (v) what relief is sought in relation to each decision and on what basis; (vi) if it is asserted that the challenge in relation to each decision was brought promptly and in any event not later than 3 months after the grounds to make the claim first arose, on what basis; (vi) if it is accepted that the challenge in relation to individual decisions was not brought not later than 3 months after the grounds to make the claim first arose, whether an application for an extension of time is being made. If so, such an application with supporting evidence much accompany the amended claim form.[77]This would also have been an unless order, so that I would have directed that if or to the extent that the amended documents did not substantially comply with this direction permission would have been refused at the adjourned hearing.[78]The order which I will make on handing down judgment will be as follows:
“Upon handing down judgment in the absence of the parties it is ordered that: i) The Claimant’s application for an order under CPR 6.15(2) to extend time for service of the claim form is refused. ii) Permission to bring the claim is refused. iii) An appeal against the refusal to extend time and for the refusal of permission lies to the Court of Appeal with its permission. The Claimant must make any application for permission to the Court of Appeal within the extended period of 21 days from the date of this Order. (The Claimant is referred to section 26 of the Administrative Court Judicial Review Guide 2024 for guidance in relation to appeals.) iv) The Defendant shall file and serve any updated schedule of costs within 7 days from the date of this Order. The Claimant shall file and serve any submissions in response, both as to why he should not pay the costs, the reasonableness of the amount claimed, and his ability to discharge such amount, whether by lump sum or by instalments, within a further 7 days. The Defendant shall file and serve a reply within a further 3 working days together with a composite pdf containing all such documents to be placed before HHJ Stephen Davies for his determination on the papers. v) If the parties agree to undertake alternative dispute resolution, including in relation to costs, or if the Claimant makes an application for permission to appeal, then the time for compliance with any such order in relation to costs shall be extended and shall start to run either upon notification by the Defendant to the Claimant and to the court that it considers that alternative dispute resolution has concluded without agreement being reached or upon final determination of permission or the appeal, if permission is granted, as the case may be and whichever be the later.”
[79]Finally, and as indicated in (v) above, I would urge the parties to consider alternative dispute resolution in this case. The reality is that what has already been done cannot be undone. Given the content of NML’s letter of 11 July 2025, now that these proceedings have come to an end it is clear that the parties, acting sensibly and reasonably, ought to be able to have a discussion about whether, and if so how, any part of the existing relationship can be restored and/or what open statement NML can and should now make to replace the existing statement of 12/2/25 which is, as I understand it, still up on its website. If such a discussion can result in an agreement about all matters, or at least all those which can be resolved by agreement, then the parties will have achieved something at least.