Gray v Marlborough College

This is an appeal, by permission of Rix LJ, from an order of HH Anthony Thompson QC of 29^th September 2005 in the County Court at Southampton, dismissing the claim of Russell Gray against Marlborough College (“the College”), an independent fee-paying school, for a declaration that a decision by the College to remove his son, Rhys, a boarding pupil in the fifth form, was unlawful in that:

Mr Richard McManus QC, in opening the appeal for Mr Gray, informed the Court that the purpose of the proceedings and the prosecution of the appeal were to “clear Rhys’ name”. However, Mr Gray no longer maintains on this appeal that there was any express term of the contract that Rhys would continue into the sixth form, and, notwithstanding Mr McManus’ description of the purpose of the proceedings, he does not impugn the Judge’s conclusion that the College’s decision to require Rhys’ removal was justified in accordance with the criteria specified in the contract between it and Mr Gray.

Mr McManus said that the central issue for the Court is whether the College acted in breach of an express contractual duty to consult Mr Gray before deciding on Rhys’ removal, regardless of whether the decision was correct. He maintained that the College was unfair in the procedure it adopted leading to that decision, in particular, failure of consultation in:

The contractual provision under which the College purported to act in requiring Rhys’s removal was paragraph 6(a) of its “Standard Terms and Conditions”, which, along with paragraph 6(b) providing for the more serious sanction of expulsion, is part of the College’s contractual implementation of obligations imposed on it by the Education (Independent School Standards) (England) Regulations 2003 (SI 2003/1910) (“the 2003 Regulations”). Throughout this judgment, I shall refer to both those clauses as “rule 6(a)” and “rule 6(b)” respectively. Rule 6(a) entitled the Master of the College to require the removal of a pupil for unsatisfactory conduct or progress and/or for being unwilling or unable to benefit from the education offered by the College, but only after consultation with a parent. The rule was in the following terms:

“6(a) Removal at the Request of the School. Parents may be required during or at the end of a term to remove the pupil without refund of fees temporarily or permanently from the school if after consultation with a parent the Master is of the opinion that the conduct or progress of the pupil has been unsatisfactory or if the pupil in the judgment of the Master is unwilling or unable to profit from the educational opportunities offered and in any such case removal is considered to be warranted.

The Judge, in dismissing the claim, found, on the evidence before him that there had been consultation within the meaning of the rule, that the College had in that respect and otherwise acted fairly and that its decision was justified contractually, findings that the College maintain were open to him on the evidence.

The action, which originally also included a claim for damages and an injunction to restrain Rhys’s removal, arose out of the following facts, none of which, save where I indicate to the contrary, was substantially disputed.

Rhys attended a London day school until he was nearly 13, before entering the College in September 2002 as a boarder in a house of 60 boys. He remained at the College for three years until the end of the Summer Term 2005, shortly before he became 16.

The College, as I have indicated, had “Standard Terms and Conditions”, which formed part of the basis of the contract between the College and each parent or parents sending a son or daughter to the College and paying for it. Those and other provisions of the contract, all of which were provided to the parents of pupils, set out the College’s expectations of pupils by way of conduct, courtesy and industry, and stipulated, as a condition of them remaining there, acceptance of, and support from parents for, the regime and compliance with it by pupils.

I can best summarise how Rhys measured up to those contractual provisions by drawing on the Judge’s account, in paragraphs 8 to 10 of his judgment, of his three years at the College. He found the transfer from his London day school to the more disciplined life of a boarder at the College particularly difficult. From shortly after his arrival there, he fell foul of the system. During the ensuing three years he amassed 398 disciplinary sanctions, 203 of which were in his final year, seven times greater than the average for his contemporaries and nine times greater than their average in the third year. These included incidents of disobedience, including failure to report for disciplinary sanctions previously imposed, lateness at or absence from lessons, not wearing his school uniform, frequent ejections from classes for misbehaviour and also, on occasion, for smoking and having alcohol in his school house. However, it is fair to note that there were periods over the three years when his behaviour and work for a time showed signs of improvement, for example in the first half of the Michaelmas Term of 2004, when he was in his third year at the College, followed by deterioration in both respects in the second half of the Term and in the ensuing Lent and Summer Terms of 2005.

The Judge, in paragraph 10 of his judgment, summarised the cumulative impact of this sustained bad behaviour in the following way:

“Many of the disciplinary breaches if viewed in isolation might be regarded as a minor peccadillo to be expected of a boisterous teenager. The problem is the cumulative effect which shows an almost total disregard for the school rules and a failure to understand what effect this behaviour had upon others. Arriving late for lessons disrupts the class and inconveniences the teacher. Failing to conform to the dress code if overlooked in his case would soon be taken by others as a role model, and it would eventually become impossible to enforce. His conduct also placed an extra burden on his housemaster who had to devote a disproportionate amount of his time to Rhys, leaving less time to devote to the other 59 members of the house.”

The Judge, having seen and heard Rhys in the witness box, described him as a lively, intelligent lad who simply could not cope with the system, and who seemingly had little insight into the trouble he caused others. The Judge was also of the view, on the evidence before him, that Mr Gray, whilst supportive of his son, shared his lack of insight into the seriousness of his behaviour and was generally unresponsive to the College’s expressed concerns to him about it.

The Master of the College, Mr Nicholas Sampson, in his evidence before the Judge, stated that, despite Rhys’ generally poor work and behaviour in his first two years, the staff of the College had always entertained the hope that he would improve as he got older. He said that, when considering in the third year whether and when to require his removal, he had not taken that earlier record into account save as part of the background. By then, as he put it, Rhys could have been expected to “pull out of” such pattern as part of “the normal adolescent curve”. However, it was becoming apparent during the Michaelmas Term of this third year in 2004 that there were continuing problems both as to his school work and behaviour. The Master’s report at the end of that Term set the scene, in particular as to the uncertainty of his suitability to continue at the College beyond the end of that academic year:

“It is good to note that in the majority of his subjects he has been employing a more mature and conscientious approach. It is, then, disheartening to note the resurgence of old, bad habits towards the end of this term when could expect a higher degree of maturity. As his Housemaster observes, the general tenor of his presence around the school has improved considerably: he deserves credit for this change but he still has a mountain to climb if he is to contemplate remaining at Marlborough beyond the end of the current academic year. It is, therefore, crucial that he returns to school in January prepared to give of his best in all that he undertakes.”

However, Rhys’ poor performance in the mock GCSE examinations at the start of the Lent Term 2005, prompted both his housemaster, Dr Niall Hamilton, and the Master to write to Mr and Mrs Gray expressing serious concern and asking them to visit the College to discuss his future there. The Master’s letter, written on 2^nd February, was in the following terms:

“I am writing to express my concern at the disappointing results of the mock examination that Rhys has just undertaken. Although he scored a good grade in Mathematics, Rhys needs to take on board how serious the situation is, and his A level career needs to be given careful consideration. I would be very grateful if you could visit me at the College at your convenience in order to discuss his future.”

Mr Gray and his wife did not visit the College for the sought discussion. Instead, on 8^th February, Mr Gray telephoned the Master refusing to do so. The Judge, having heard in evidence their respective versions of the conversation described it “as by and large a dialogue of the deaf”.

The Master described a conversation in which Mr Gray expressed impatience with the College’s concerns and an unwillingness to talk constructively about them. He gave the following account of it in his witness statement:

“I received a telephone call from Mr Gray … during which he said that he wasn’t prepared to come to Marlborough to hear the same old story of disciplinary concerns and Rhys not working hard enough. He said that he already knew his son very well and appreciated the situation, and asked for clearer signals, thorough reports etc, about Rhys’ conduct and potential. I believed that our various reports had already made the position very clear, and that most parents would already have taken steps to deal with their child if they had received reports similar to Rhys’. I found it difficult to make my points about Rhys’s disciplinary performance to Mr Gray because he did not listen and tended to talk at, and over, me. He did not appear interested in a constructive discussion about his son’s future.”

Mr Gray, on the other hand, gave the impression of the two of them reaching an amicable agreement that Rhys’s continuance at the College in the following academic year should depend solely upon his GCSE results at the end of the Summer Term. And that was the basis of Mr Gray’s claim in breach of contract as later expressed by him in a letter to the Master of 22^nd May 2005, by his solicitors, in a letter before action written on 21^st July 2005, and as put on his behalf to the Judge at the hearing.

The Judge found that there was no such agreement, and preferred the Master’s account of the conversation, deriving support from Mr Gray’s solicitors’ letter before action, in which they had stated that they understood it to be common ground that Rhys’ continuance as a pupil after the end of the summer term depended upon both his GCSE results and his behaviour.

On 11^th March 2005, towards the end of the Lent Term, the Master wrote again to Mr Gray saying:

“As you will be aware, mathematics is a subject Rhys is proposing to take for A level and I am writing now to alert you to the fact that, in the light of his recent poor performance and behaviour, this is unrealistic. Furthermore, his end of term reports suggest that his future with us needs to be reviewed. I remain available to discuss these matters should such a meeting seem desirable. Rhys is not making the necessary progress.”

Mr Gray’s evidence was that he did not receive that letter, a contention on which the Judge made no finding.

Shortly afterwards, just before the Easter holiday, there was an incident on a school field trip in which Rhys participated as a member of the School Combined Cadet Force, from which he was sent home early because he had been found with cans of beer. That prompted a further letter from the Master to Mr Gray on 22^nd March, referring to the incident and making clear that the College was unlikely to allow Rhys to remain there beyond the Summer Term. The letter stated:

“ … the incident on the CCF camp has provided another demonstration of Rhys’s inability to live within the framework of life at Marlborough. The lack of focus in his work is causing great concern and his disciplinary record since his arrival here has been very poor. He has absorbed a great deal of time and energy and little progress has been made.

I have to inform you that it would be in his best interests if he were to be withdrawn from the college as soon as he had finished his GCSE. If he is withdrawn, the College will be able to assist you in the task of finding him a place at another school, should you wish him to continue with his secondary education.

… I have to inform you that it is highly unlikely that the College will be prepared to accept him back in September. He needs to be made aware of the fact that any further disciplinary problems next term could result in his immediate removal from the College whether or not he has sat any of his exams.

I am sorry to have to write to you in this way but Rhys has paid little or no attention to the warnings that he has been given.”

Mr Gray claimed in evidence that he did not receive that letter either, and again the Judge made no finding on the matter. However, his Particulars of Claim, to which his signed statement of truth was appended, acknowledged its receipt.

Mr McManus claimed that, if Mr Gray did not receive the Master’s two March letters, the College could not rely upon them as part of the required consultation, since the effect of the contract was that actual, not constructive, notice was required. But, whether or not there is legal merit in that argument, it is academic in the circumstances given the previous warning signs as to Rhys’s long-term future at the College and those intimated at about the same time in the College’s Report at the end of the Lent Term. This Report, in the individual comments of his subject tutors, his Housemaster’s report and the Master’ observations, revealed a general picture of a boy who was not taking his work seriously and whose attitude and behaviour continued to cause serious concern. His Housemaster wrote:

“This has not been a good term. There are far too many signs here that Rhys still has not taken on board important lessons about working, even though he has been given a great deal of support, and he appears not to have been able to change his course. There have been far too many confrontations, detentions and chits, and this has been depressing for all concerned. Unless he takes drastic steps, I am afraid that the results in August will be disappointing. Rhys needs to plan much further ahead and think about the consequences of his actions. This message has been repeated to him many times and it is worrying that he still has not mastered the working habits that are essential for academic life here.

…

I hope that he will realise the vital importance of the next few months. Rhys is going to have to rely on his wits and a really determined campaign to compensate for all the missed opportunities of the last few years.”

The Master’s observations were in the same vein:

“It is difficult to discover grounds for optimism within these reports: his approach towards his academic work has continued to be immature and half-hearted in the vast majority of his subjects. He appears to be fully aware of the urgency of his situation but his response must demonstrate a willingness to follow advice and to offer sheer, uncomplicated, hard work, if he is to achieve acceptable results in the summer.”

Notwithstanding Mr Gray’s claimed non-receipt of the Master’s letter of 22^nd March 2005, he telephoned the Master in early April, during Rhys’ Easter holiday, and there was a discussion about the Master’s perception of the need for Rhys to find another school, a discussion about which the two men again gave different accounts in evidence. According to Mr Gray, in the course of the discussion they reaffirmed the agreement that he says they had previously reached in the telephone conversation at the beginning of February, namely that Rhys’s continuance at the College in the following academic year should depend solely upon his GCSE results that summer. However, the following passage of his evidence in cross-examination before the Judge makes plain that he was then, and had been for some time, well aware of the Master’s view that Rhys should leave the College at the end of the Summer Term:

“Q. … the Master tried to convince you that it would be better for Rhys to be in a different school in September?

A.

Yes I was used to that. I was told he needed special needs. That he needed a day school. I was told a whole variety of things about why it was in mine and … [Rhys’s] interests to take him out of Marlborough. However, the inconsistency of them made them a little unpersusasive.

Q. … the Master certainly suggested to you that it would be better for [Rhys] to be somewhere else in September?

A.

I got the impression he thought it would be better for him.”

As I have said, according to the Master, there had been no agreement of the sort claimed by Mr Gray, and none reached in or re-affirmed in this conversation. His account of it was similar to that which he had given of the 8^th February telephone discussion. They discussed Rhys’s progress and prospects, his intention being to convey to Mr Gray that Rhys’s best interests would be better served by him moving to a different school in September. He raised the matter of the record number of disciplinary sanctions incurred by Rhys during his time as a pupil at the College and mentioned the March CCF camp incident as a recent example. He said that Mr Gray’s response was to maintain that the College had over-reacted to that incident and that it was no basis for requiring him to withdraw Rhys from the School. Again, the Judge preferred the Master’s evidence.

On Rhys’ return to the College after the Easter holiday, he was placed on “Master’s Report” a burdensome daily and weekly reporting procedure to housemaster and the Master respectively, the ultimate sanction of the College for continuing lack of effort in academic work. However, his work and conduct continued to deteriorate. He received a very low score in the “Lower School Order” half way through the Summer Term, the lowest in the College’s records. Secondly, he was unable to cope with the regime of being on “Master’s Report”. And thirdly he continued in his misconduct, clocking up a record number for the College of entries on his disciplinary sheet.

On 17^th May 2005 the Master wrote again to Mr Gray. This time, he not only rehearsed his and Rhys’s housemaster’s deepening concern about his behaviour, but also informed Mr Gray that, pursuant to rule 6(a), he intended to remove Rhys from the College at the end of the summer term. He concluded the letter by informing Mr Gray that he was entitled to request a review of that decision by a panel of members of the College Council. As Mr Gray maintains that the decision communicated by the letter had been reached unfairly, in particular without any or any adequate consultation with him. I had better set it out in full:

“I am writing to express once again my deepest concern about Rhys’s progress and prospects.

Yesterday’s Lower School Order gives Rhys an extremely low score: so low, in fact that his Housemaster cannot recall another pupil being at the same level. Our computerised system will not register Rhys’ performance as it goes beyond the normal parameters.

Rhys’ attitude towards his work is unacceptable and there is little sign of serious intent. The usual sanctions used to encourage a pupil to work have been exhausted. He has been unable to maintain the conditions attached to being placed upon Master’s Report and has found the additional pressure of that sanction to be hugely burdensome.

His disciplinary record is similarly worrying. I asked the Second Master to examine his position and it is Mr Pick’s belief that Rhys is unwilling, and apparently, unable to comply with school regulations and that he would be better suited to a day school environment. Rhys has accumulated a vast number of minor disciplinary sanctions.

I am aware of signs of stress, which call his overall state of health and general welfare into question. His recent migraine attacks may well be rooted in the difficulties he is experiencing in maintaining his school life.

I am, therefore, informing you that, in my opinion, Rhys’ conduct and progress have been unsatisfactory and that, in my judgement, he is either unwilling or unable to profit from the educational opportunities offered here. He is, quite clearly, … [finding] the prospect of life at Marlborough unsustainable and I have, therefore, to inform you that, in accordance with Paragrah 6a) of the College’s Standard Terms and Conditions, Rhys should leave Marlborough at the conclusion of the current academic year..

As my decision constitutes a required removal of Rhys, you are entitled to request a review of that decision by a panel of members of Council. If you wish to make such a request, I will advise you of the procedure to be followed.”

Mr Gray replied by faxed letter of 22^nd May suggesting that the Master’s letter was at odds with what, on his account, they had agreed on the telephone during the Easter holiday, namely that whether Rhys would remain at the College was to depend upon his performance in the GCSE examinations in the Summer. He wrote:

“…Then we agreed that, taking all things into account, we would set certain GCSE grades minima for Rhys as a condition of him progressing to the sixth form. I take it therefore that you consider yourself at liberty to withdraw from that agreement without consultation. I do not share your view.

…”

There were further letters from the Master to Mr Gray, in particular one of 25^th May referring to his earlier letters, including the two in March, the continued deterioration in Rhys’ work and conduct since their telephone discussion over Easter and in his failure to cope with the sanctions for poor work of being on Master’s Report. Again, I had better set out the Master’s letter in full:

“… Since our telephone conversation at Easter, the following events have occurred:

i)

Rhys’ disciplinary record has continued to be exceptionally poor. He has, on a consistent basis, failed to honour his commitments and appears to believe that sanctions do not apply to him. There are thirty-eight entries on his disciplinary record sheet covering the period between 21st April and the 21^st May. No other member of the School has a disciplinary profile of this nature and scale.

ii)

His Lower School Order has revealed a lack of commitment to his studies. His aggregate scores have declined throughout the course of the year (successively reading 9, 6, -4 and now -12) and his latest result is the lowest score his Housemaster can remember seeing.

iii)

He has been unable to fulfil the requirements of being on Master’s Report: the process caused him evident distress and was, therefore, ended. Master’s Report is a serious sanction and Rhys’ failure to meet his obligations in this area is emblematic of the broad picture.

There has, then, been a significant deterioration in Rhys’ situation since we last spoke. This position is exceptional: no other current pupil has accumulated a similar weight of concerns, either in terms of academic scores or the volume of disciplinary infringements. He absorbs a disproportionate and unreasonable amount of our time.

My letters to you of 2nd February 2005, 11^th and 22nd March 2005 underlined the seriousness of Rhys’ situation. We spoke at Easter and agreed that Rhys needed to achieve high GCSE grades in order to qualify for Sixth Form life at Marlborough. Results alone form only part of the picture: Rhys has failed to meet commitments or expectations inside the classroom and beyond in a systematic and comprehensive fashion. This conduct and progress have been unsatisfactory and, as I wrote to you on 17^th May, my judgement is that he is either unwilling or unable to profit from the educational opportunities on offer here.

…”

Mr Gray’s response over the te1ephone and by an e-mailed message of 15^th June 2005, was to repeat his claim that the College was in breach of the agreement he maintained he had struck with the Master over Easter that Rhys’s continuance at Marlborough would depend upon his performance in the, now, imminent GCSE examinations. This is how he put it in his message with reference to the telephone conversation:

“… I told you that I was not satisfied that you had proper grounds to expel him and that I could see no reasonably attractive alternative to him remaining at Marlborough for A levels. I said that I would seek to hold you to the agreement that we reached in a previous telephone call during the Easter holiday, namely that Rhys’s admission to the sixth form would be conditional upon satisfactory results in GCSEs; …”

On 17^th June 2005 the Master replied by letter confirming his decision to require the removal of Rhys from the College for reasons given in his letters of 17^th and 25^th May, and specifically refuting Mr Gray’s assertion that he had agreed to allow Rhys to remain at the College conditional solely upon his performance in the GCSE examinations..

In mid July 2005, at Mr Gray’s request, a Review Panel, consisting of two members of the College Council and chaired by Nicholas Elliott QC, undertook a review, pursuant to paragraph 6(d) of the College’s Standard Terms and Conditions, of the Master’s decision to remove Rhys pursuant to rule 6(a). The Review Panel had guidelines from the College of a common-place nature to have regard to the fairness of what had gone before and in its own proceedings, the guidelines expressly described as “non-contractual” and to “be followed in accordance with their spirit rather than their letter”. Mr Gray and Rhys attended the hearings of the Panel, and Mr Gray put questions to the Master and other witnesses through the chairman.

The Panel upheld the Master’s decision, rejecting Mr Gray’s contention of an agreement over Easter 2005 for continuance of Rhys at the College conditional only upon his GCSE performance, and expressly finding that “there was ample evidence to justify” the Master’s conclusion to require the removal of Rhys pursuant to rule 6(a) because of unwillingness or inability to profit from the educational opportunities offered at Marlborough.

On 21^st July 2005 Mr Gray’s solicitors wrote a letter before action indicating Mr Gray’s expectation that Rhys would achieve good results in his GCSE examinations, relying upon the Easter 2005 agreement alleged by Mr Gray, disputing that Rhys’ behaviour justified his “expulsion”, and inviting the College to make a compromise offer that Rhys could remain at the College if he achieved GCSE grades of the Master’s “stipulation”.

In the event, Rhys confounded the College’s expectations by securing good results in his GCSE examinations, results well above the minimum requirements of the College for entry into the sixth form.

On 2^nd August 2005, in the absence of any offer from the College, Mr Gray issued these proceedings for breach of contract seeking, as I have said, damages, a declaration of the unlawfulness of Rhys’s removal and, effectively, a mandatory injunction requiring the College to re-admit him By the time the matter came to trial in September 2005, the claim for damages was withdrawn, and on the last day of the trial Mr Gray withdrew the claim for an injunction, accepting what must have been obvious for some time, that he could not succeed in securing what would in effect have been a mandatory injunction.

The Judge found, on the evidence before him, that the Master’s decision to require Rhys’s removal was justified as meeting the criteria in rule 6(a), a finding, as I have said, that Mr Gray does not challenge in this appeal. He also found that the procedures provided by the College and applied by the Master giving rise to that decision were fair, including in particular the consultation required of the Master by rule 6(a). This is how he expressed the latter conclusion in paragraphs 35 and 36 of his judgment, focusing particularly on the pattern of deterioration in Rhys’s work performance and behaviour from December 2004 on:

“35.

I do not think that there was any conspicuous unfairness. I think throughout the way this matter was conducted the school were making every endeavour to keep Mr Gray informed of what was taking place.

36.

It is manifestly wrong to say that there was no consultation, there clearly was, but of course consultation does necessitate a certain amount of co-operation from the consultee. If one looks at the correspondence … and the reports which were being sent it is quite clear that Mr Gray was being kept informed and also his co-operation and discussion with the school was being sought.”

And, following references to the various parts of the story in which the Master by letter, and also orally, attempted to consult Mr Gray, he said, at paragraph 39:

“The wording of those letters [including the two March letters] was a clear indication that the College was more than happy to consult and wanted to discuss Rhys’s continued membership at the College. In those circumstances it is completely wrong to say there was no consultation. You cannot make somebody or force somebody to consult with you if they do not wish to consult or if they prefer to turn a deaf ear to the suggestions or offers which you make. I do not think there was any unfairness. I think there was consultation, or at the very least an attempt at it. In the school report at the end of the Michaelmas term 2004 the Master set out his views in clear and unequivocal terms about Rhys’s position. In all of those matters it is important to bear in mind that the College was really doing its best to place the position squarely and firmly before Mr Gray so that he would know exactly where he stood.”

Before I turn to the way in which Mr Gray now frames his claim, I had better consider in a little more detail the contract between the College and Mr Gray, and, in particular rule 6(a), under which the College acted in deciding to require his removal. As the Judge rightly observed, it is plain from the College’s Standard Terms and Conditions of which that rule was part, that the College placed great importance on discipline, courtesy and its dress code. The following clauses, under the heading “Care and Good Discipline” are relevant:

“1.

The School

…

(d)

… Parents are expected to give their support and encouragement to the aims of the School and to uphold and promote its good name; to continue the pupil’s education at home and to ensure that the pupil maintains appropriate standards of punctuality, behaviour, diligence, language, discipline and dress.

2.

Care and Good Discipline

…

(b)

Conduct and Attendance. We attach importance to courtesy, integrity, manners and good discipline. Parents warrant that the pupil will to the best of his or her ability take a full part in the activities of the school, will attend each school day, will be punctual, will work, will be well behaved and will comply with the School Rules about the wearing of uniform. …”

(d)

Conduct of the School. It is a condition of remaining at the School that parents and the pupil (including a pupil aged 16+) accept the school regime and the Rules (in so far as they are lawful and reasonable) as to appearance and dress and the rules of school discipline that apply from time to time….

Rule 6(a), along with rule 6(b), which provides for the more serious sanction of expulsion, is, as I have mentioned, part of the College’s contractual implementation of obligations imposed on it by the 2003 Regulations. Regulation 3(2)(d) of those Regulations require independent schools to draw up and implement a written policy to “promote good behaviour amongst pupils and set out the sanctions to be adopted in the event of pupil misbehaviour”. And Regulation 6(2)(e) required such schools to provide parents with particulars of that policy. It is plain that rules 6(a) and 6(b) both provide for removal of pupils at the College’s behest though in different ways and for different reasons, albeit subject to some overlap. I set them out together here, for convenience repeating rule 6(a):

“6(a) Removal at the Request of the School. Parents may be required, during or at the end of a term, to remove the pupil, without refund of fees, temporarily or permanently from the school if, after consultation with a parent, the Master is of the opinion that the conduct or progress of the pupil has been unsatisfactory or if the pupil, in the judgment of the Master, is unwilling or unable to profit from the educational opportunities offered … and in any such case removal is considered to be warranted. …

6(b) Expulsion. A pupil may be expelled at any time if the Master is reasonably satisfied that the pupil’s conduct whether on or off school premises or in or out of term time has been prejudicial to good order or school discipline or to the reputation of the school. The Master will act fairly and in accordance with the procedures of natural justice and would not expel a pupil other than in grave circumstances … ”

As the Judge observed in paragraphs 34 and 42 of his judgment, the two provisions provide for different circumstances and different procedures. Rule 6(a), “Removal at the Request of the School” concerns a pupil’s unsatisfactory conduct or academic progress and/or an unwillingness or inability, in the judgement of the Master, to benefit from the educational regime of the College. Recourse to the rule by the College is by way of “request” or “requirement” directed to the parents, and subject to prior consultation with them. As the Judge said, it provides for less serious and also different circumstances and a lesser sanction than that of expulsion for misconduct sufficiently serious to cause prejudice to the College for which rule 6(b) provides.

As to circumstances engaging rule 6(a), they may involve no misconduct at all, simply an inability to benefit from the educational regime of the College. And if, as here, the circumstances include misconduct, the rule is clearly not aimed at conduct of such seriousness and prejudice to the College as to merit expulsion under rule 6(b), though, as I have said, there may be some overlap between the two provisions.

As to sanction, “removal” by parents has the advantage over “expulsion” in enabling them to approach other schools without their son or daughter having the stigma of expulsion on his or her record. Rule 6(b), as its heading “Expulsion”, indicates, is aimed at far more serious behaviour, effectively “grave” misconduct harmful to the College, its response to which is not a matter for consultation with a parent, but for fair decision by it in accordance with the procedures of natural justice.

It is common ground between the parties that the College had a contractual obligation to behave fairly to Mr Gray and Rhys in its recourse to rule 6(a) in requiring Rhys’s removal. As the adequacy of consultation has a critical input in the circumstances of this case into the fairness of what took place, they stand or fall together unless there is a material difference between the contractual obligation in rule 6(a) and a duty to act fairly derived from the 2003 Regulations or otherwise, as Mr McManus acknowledged in argument. I do not consider there is any such difference, certainly not in the circumstances of this case.

This Court, in R v Headteacher and Independent Appeal Committee of Dunraven School, ex p B [2000] 156, a judicial review claim against a grant- maintained school arising out of expulsion of a pupil for alleged dishonesty, left open the question whether a head-teacher of such a school, in the exercise of a power of exclusion, is engaged in the discharge of a public law function amenable to judicial review, as distinct from a body reviewing his decision (see e.g per Sedley LJ at 195B-C). Although there is some statutory underpinning for his role in that respect, my inclination is to agree with Nigel Pleming QC, sitting at first instance in that case as a Deputy Judge of the High Court, at 173B-F, that a public law remedy is probably not available against him. Such reservations apply a fortiori to exclusion by a head-teacher of an independent school in the exercise of a contractual power of exclusion. However, there may, depending on the circumstances, be a reading-across from statutory provisions and/or public law notions of fairness to fairness as an express or implied term of a contract between an independent school and parent of a pupil. Statutory or public law requirements, including those applicable to state maintained schools, for example, under the Education (Pupil Exclusion and Appeals) Maintained Schools Regulations 2002 (SI 2002/3178) are not applicable to independent schools. But they may provide a starting point or indications of principle as to what is required from an independent school head-teacher in deciding how and whether to exercise a contractual power of exclusion.

It is, in my view, rightly common ground between the parties that the express inclusion in rule 6(a) of a duty on the Master to “consult” impliedly included the fundamentals of that exercise familiar in all or most contexts in which it arises, as identified and approved by this Court in R v Devon County Council ex parte Baker and Another [1995] 1 All E R 73. In particular, they required 1) the Master to consult Mr Gray before deciding whether to require Rhys’s removal; 2) to do so adequately in the sense of giving Mr Gray sufficient information, reasons for and warning of his impending decision, and opportunity and time to make representations that might affect it; and 3) that the Master should take any such representations into account before deciding whether to require Rhys’s removal.

Mr McManus maintained that the duty to act fairly in the light of the provisions in the 2003 Regulations and rules 6(a) and (b) of the contract, required a procedure under rule 6(a), where the occasion for resort to it is the pupil’s misconduct, as rigorous as that for expulsion under rule 6(b). To identify the rigour of the procedure for which he contended, Mr McManus referred the Court to its guidance in the judicial review claim in Dunraven School. In that case, the Court, in allowing the claim against the governors of the School, focused inevitably on the fairness of the procedures adopted by the school in investigating the serious allegation of dishonesty and the opportunity that it gave to the pupil and his parents to meet it. As one would expect, the Court acknowledged that what fairness requires in these cases depends on the circumstances. It went on to hold that, in relation to permanent exclusion from a grant-maintained school, whether as a matter of statute applicable to such schools or at common law: 1) a pupil, through his or her parent has a right to be heard; and 2) for that purpose, to be told “in some adequate form” what is being said against him or her and to have access to any damaging material to which the pupil, through his or her parent has no access - basic requirements as they applied to the facts of that case, in particular the seriousness of the conduct giving rise to the expulsion and the non-disclosure by the school of certain relevant material. The Secretary of State’s Guidance to State Schools …. on excluding pupils, para 17, was to like effect, though not expressly spelling out the obvious requirement of fairness that the pupil, through his parent, should be told of the complaint and given an opportunity to answer it.

Applying those general principles to the facts of this case, Mr McManus submitted that the conduct of the Master, in respect, in particular of the contribution of Rhys’s misconduct to his decision, was unfair because there had been no formal, particularised complaint, of the sort envisaged in rule 6(b) or in Dunraven, or opportunity to answer it before the Master reached his decision. In short, he submitted that the Judge should have held that the exchanges between the Master and Mr Gray that I have summarised were inadequate and, therefore, unfair, so as to not, in the circumstances, amount to consultation within the meaning of rule 6(a).

Mr McManus developed that ground before the Court by reference to the three matters spelt out in the Master’s letters of 17^th and 25^th May 2005 respectively communicating and confirming his decision to require the removal of Rhys. These were, as set out in paragraphs 24 and 26 of this judgment, Rhys’ continuing poor work record and progress, his failure and seeming inability to cope with being on Master’s Report, and the continued deterioration in his conduct. Mr McManus’s submissions were two-fold.

First, he maintained that, although the Master had written and spoken to Mr Gray about such matters in connection with Rhys’ conduct between December 2004 and March 2005, he had not at any time before his letter of 17^th May 2005 consulted sufficiently specifically with him about his son’s work performance and conduct or about their implications for the College’s contractual right to require his removal.

Secondly, Mr McManus complained that the Master had not consulted Mr Gray about any matters that had arisen between the early part of the Lent Term of 2005 and his decision-letter of 17^th May 2005, half-way through the Summer Term, prompting him to move from his earlier expressions of concern to a decision to require Rhys’s removal. In making this submission, he relied upon the Judge’s lack of finding that Mr Gray had received the Master’s letters of 11^th and 22^nd March, but maintained that, even if he had received them, they would not have made the consultation adequate. They were, at most, he said, warning letters. More, he suggested, had been required, including notification of every fact, matter or incident upon which the Master was relying in contemplating requiring Rhys’ removal, and an express invitation to Mr Gray to make representations why he should not take that course. In summary, he maintained that the Master should have informed Mr Gray of the continuing complaints and the evidence in support of them, and, he suggested, the Master should have conducted a hearing akin to a disciplinary hearing at which Mr Gray could have been heard.

Mr McManus submitted that the Judge, in paragraphs 37 to 39 of his judgment (see paragraph 34 above), when considering these matters, erred in not considering the lack of specificity of the Master’s expressions of concern about Rhys’ performance in late 2004 and early 2005 and the lack of any up-to-date expression by the Master to Mr Gray of continuing concern about Rhys’ work and conduct before writing his decision-letter of 17^th May.

Mr McManus did not press in his oral submissions to the Court the contention that, to the extent that the Master proposed to rely upon misconduct, there should have been a school policy to that effect, which should have been provided to Mr Gray, in accordance with Regulation 6(2)(e) of the 2003 Regulations. His diffidence in that respect may have been prompted by the clear presence of such a policy in the contract between the College and Mr Gray, in particular in the provisions that I have set out in paragraph 35 above.

Miss Monica Carss-Frisk QC, for the College, put at the heart of her submissions that this is a matter of contract between an independent school and a parent, not of conformity by a state school with prescriptive statutory or other public law procedural requirements, and that the contractual issue is simply whether the Master consulted adequately with Mr Gray before reaching his decision to require Rhys’ removal. She pointed out that the contact had identified consultation as a means of securing fairness in this context, and submitted that, provided the consultation undertaken by the Master was adequate, in the sense of being sufficiently informative as to the matters of concern and their implications for Rhys’s future at the College, timely and gave Mr Gray an opportunity to make representations, Mr Gray as a fee-paying parent had got what he bargained for. On a more general note, she stressed the flexibility of the requirement of consultation according to circumstances and the different regime of the independent sector from that of maintained schools in which it fell to be considered in this case. And she contrasted the circumstances for which rule 6(a) provided for removal from the graver conduct for which rule 6(b) provided the sanction of expulsion.

Miss Carss-Frisk acknowledged that, following the telephone conversation between Mr Gray and the Master over the Easter holiday 2005, there was no further consultation in the Summer Term before the Master finally concluded, for the reasons he gave in his letter of 17^th May 2005, to require Rhys’s removal pursuant to rule 6(a). She submitted, however, that lack of further communication at that stage did not negate the previous extensive consultation effected and attempted by the College. She maintained that the continuing deterioration in Rhys’s work and his inability to cope with the regime of Master’s Report for the first part of the Summer Term simply provided further confirmation of what, to Mr Gray’s knowledge, had been of concern to the College for a long time. She advanced much the same argument in relation to the continuing deterioration in Rhys’s conduct,

As to Mr McManus’s contention that, in the absence of a finding by the Judge that Mr Gray received both or either of the letters from the Master of 11th and 22^nd March, the College could not rely upon them as evidence in support of its case on consultation, Miss Carss-Frisk submitted that the College had done all that it reasonably could in despatching the letters. She added that the Master was entitled to conclude, particularly in the light of Mr Gray’s telephone call to him over the Easter holiday (see paragraph 21 above), that he had received the letters and was fully aware of the concern expressed in them.

In short, Miss Carss-Frisk submitted that there was no unfairness on the part of the College in the Master not keeping Mr Gray up to date with the continuance of Rhys’ poor work performance and behavioural problems, of both of which he had repeatedly informed Mr Gray and had warned him of the likely consequences of such continuation. She drew an analogy in this respect with the reasoning of this Court in R v Chief Constable of ThamesValleyPolice, ex p Cotton [1990] IRLR 344, in which it considered a claim in judicial review by a probationary police officer who had been discharged because he was overweight. The officer complained that he had not seen a report upon which the Chief Constable’s Deputy had relied in deciding to discharge him. The Court held that there had been no unfairness, as the officer had known for some time that he had been required to lose weight in order to become fit for full police duties; he had not done so, and any comment that he might have made on the matter would not have affected the decision. She drew attention to the reasoning of the Court in stressing the importance of the substance of any complaint of unfairness based on failure to follow prescribed procedure. Here, she submitted that the Judge rightly found on the evidence before him that Mr Gray had been well aware for some time of the College’s concern about Rhys’ poor work and behaviour and its inability through normal school pastoral care and sanctions to improve either, and of the implications of that for Rhys’ future at the College.

First, I should say something about the principle of fairness and its application to the circumstances of this case. It is trite law that fairness is a flexible principle and highly fact-sensitive in its application. That is so whether a duty to act fairly is one of public law or contractual in nature. Much depends on the context of and procedural framework in which a decision is made, the nature of the decision, who made it, how it was made, what is at stake and the contribution, if any, by those affected by it to the chain of events leading to it; see Board of Education v Rice [1911] AC 178, per Lord Loreburn LC at 182; Re Pergamon Press [1971] Ch 388, per Sachs LJ at 403; Lloyd v McMahon [1987] AC 625, per Lord Bridge at 702-3; ex p Cotton, per Slade LJ at para 48, and Bingham LJ, as he then was, at para 58.

Here, it is common ground that the obligation on the College to act fairly in requiring the removal of a pupil pursuant to rule 6(a) arises as one of implication from the nature and terms of that provision, not least in its requirement of consultation with parents before the decision was taken. As to the extent of the obligations that that implication of fairness required in the circumstances of this case, it is relevant that the content of the duty for consideration here is that of an independent, not a state, school to act fairly and/or to consult with a parent before requiring removal of a pupil, and that the State has imposed a stricter, or at least a more prescriptive, regime on state schools for exclusion of their pupils. See Education Act 2002, section 52 and Education (Pupil Exclusions and Appeals) (Maintained Schools) (England) Regulations 2002 (SI 2002/3178), and guidance in Improving Behaviour and Attendance: Guidance on Exclusion from Schools and Pupil Referral Units (2004).

Where fairness arises for consideration as an incident of a contractual obligation, as here, the nature of the bargain is relevant. Parents have a choice whether to commit their children to the particular regime and ethos of an independent school. They do so in the light of their expectations of what the school will provide and their understanding of what it requires from its pupils and their parents. That is what they pay for and the commitment they give. These are circumstances for which allowance may have to be made in applying notions of fairness and of what is required by consultation in the independent sector, which may or may not, depending on the circumstances, militate against reading across too readily the more prescriptive aspects of statutory provisions governing exclusion of pupils in the state sector. They are circumstances which, along with those of each particular case, go to the all important ingredient of flexibility in judging fairness and, as part of it, the adequacy of consultation. Simon Brown LJ’s salutary words in this context in R v Secretary of State for Education and Employment and the North East London Education Association, ex p M [1996] ELR 162, at 206C-D, make the point:

“(2)

… Consultation … is not in this context an absolute and inflexible concept. Lord Diplock in Council of Civil Service Unions v Minister for the Civil Service spoke only of communicating to the person enjoying the benefit ‘some rational grounds for withdrawing it on which he has been given an opportunity to comment’. A mechanistic approach to the requirements of consultation should be avoided. The nature, the scale, the period may all vary.

(3)

Prominent amongst the considerations relevant to determining the precise demands of consultation in a given case will be:

a)

Whether the obligation is statutory and absolute or implied in common fairness. If the former, then plainly the process must satisfy in full measure all four of the requirements identified and approved in R v Devon County Council ex parte Baker and Another …. If, however, the obligation is merely implied, its scope may well be reduced. It may have to be tailored to the practicalities of the situation.

b)

The urgency with which it is necessary to reach a decision. This may impose constraints lest the very process of consultation itself causes delay such as to pre-empt a particular proposal or other possibly appropriate decisions.

c)

The extent to which during earlier discussions or consultative processes opportunities have been afforded (and, indeed, taken) for views to be expressed by interested, and in particular opposing, parties and the likelihood, therefore, of material and informed additional views or information emerging upon further consultation. ….”

To paragraph (c) I would add, given the history of this matter, the extent to which earlier opportunities to express contrary views or otherwise to respond in a way that might have had a bearing on the decision have not been taken.

Thus, as Sedley LJ suggested in Dunraven School, there isa basic symmetry in essentials between a contractually implied obligation of fairness in this context and that derived from statute or general public law. The latter may provide some assistance in determining the content of fairness and the meaning of consultation, but ultimately the question in a claim in contract is whether, in the circumstances and in the words Lord Wilberforce, giving the judgment of the Board in Calvin v Carr [1980] AC 574, at 594, in relation to proceedings before a domestic appeal tribunal, the parent “has had a fair deal of the kind that he bargained for”, Here, rule 6(a), the provision under which the College acted, provided simply for “consultation”. Unconstrained by any further contractual procedural provisions of the sort applicable to maintained schools, consultation was the contractual mechanism for ensuring fairness, and its adequacy for the purpose fell to be considered by the Judge on the facts.

Before returning to the facts and the Judge’s findings on them, I should, for the avoidance of doubt, dispose of a suggestion canvassed by Mr McManus before and rejected by the Judge, but not part of this appeal. It was that, if and to the extent that the Master’s decision to require Rhys’ removal turned only or mainly on his misconduct, it should have been treated procedurally as one of expulsion under rule 6(b). Such a procedure, he had suggested, would have been of a disciplinary nature calling for particularised complaints, disclosure and an oral hearing at which Mr Gray and Rhys could be heard, a much more rigorous procedure than mere consultation required for removal under rule 6(a). However, as the Judge held and as I have said, rules 6(a) and (b) provide for different circumstances and different outcomes. The College did not expel Rhys under rule 6(b), which is exclusively a disciplinary provision permitting expulsion if a pupil’s conduct “has been prejudicial to good order or school discipline or to the reputation of the School”. The College required his removal, because, in the “opinion” of the Master, his conduct and progress had been unsatisfactory and/or because, in his “judgement”, he was “unwilling or unable to profit from the educational opportunities offered by the school” (see paragraph 36 above). In the circumstances, the decision for the Master was largely one for his educational judgement, after consultation with Mr Gray, not of the nature and gravity calling for a disciplinary procedure apt for expulsion under rule (b), and certainly not one calling for importation of the prescriptive procedures applied to disciplinary exclusion from state schools. In any event, Rhys’ misconduct was not the only reason for the Master’s decision; his poor work was as least as important a contributor to it. Accordingly, in my view, the Judge correctly held that there no basis upon which the College should have treated this as a disciplinary matter under rule 6(b).

Putting aside for the moment, the adequacy of the consultation undertaken going to the fairness of the College in requiring Rhys’ removal, there is no substance in the complaint that the College behaved unfairly in not communicating to Mr Gray in the form of a written policy in addition to the contract the possible consequence of removal of a pupil for repeated acts of indiscipline and refusal to respond to sanctions imposed, whether or not accompanied by poor educational progress. Given the clear provisions of the contract between the College and Mr Gray, no further general warning in the form of a written policy suggested by Mr McManus was necessary. Those provisions, in particular, in rule 6(a), made plain removal as a possible consequence of poor progress or misconduct and that, for those or other reasons, removal could follow if the Master considered that a pupil was “unwilling or unable to profit from the educational opportunities offered by the College”.

As to the adequacy of the consultation, in my view, the Judge rightly held that what passed between the College and Mr Gray was apt and adequate in the circumstances as a means of ensuring fairness to Mr Gray and Rhys in the months leading to the taking of the decision. There may be circumstances in which fairness could require, before the making of a decision under rule 6(a), some form of particularised complaint or complaints accompanied by documentary material and, possibly, even a meeting in the nature of an informal hearing. However, the Judge, in my view, rightly held that the circumstances did not require any more by way of such forensic aids than the College had already provided here. It was, as I have said, a case involving an educational judgement as to Rhys’ general ability to meet and profit from the educational and disciplinary framework of the College. The Master’s judgement turned on a course of persistent, deteriorating lack of attention by Rhys to work and on an increase by him in defiance of, or inability to comply with, the disciplinary regime of the College. The many aspects and incidents making up this pattern were well recorded and broadly communicated to Mr Gray, and, in the main, not disputed by him. It was enough, as the Judge held, for the College to consult with Mr Gray in the sense of giving him adequate and timely information of the problems and their possible consequences and an opportunity to respond to, or deal with, them, all falling to be considered in the context of a continuing and deteriorating course of conduct.

What happened was not just consultation; it was a series of repeated warnings in the correspondence and conversations that I have mentioned, to which Mr Gray showed every appearance of turning a deaf ear. The fact that the Master did not continue that litany of warnings into the Summer Term against the back-drop of Mr Gray’s generally unresponsive attitude to them in the past was not unfair. As Miss Carss-Frisk submitted, on the evidence accepted by the Judge, the Master had repeatedly and sufficiently warned Mr Gray over a period of months that for Rhys to continue as he was could lead to a requirement of his removal. To ask for more would amount to a “mechanistic approach” of the sort against which Simon Brown LJ , warned in ex p M, at 207C-G, in particular at paragraph (c) (see paragraph 56 above)

Accordingly, I agree with the Judge and with the submissions of Miss Carss-Frisk that the College gave Mr Gray and Rhys plenty of warning of the possible consequence of removal if he did not change his ways, and that fairness required no more. This is not a case where highly particularised complaints or notifications of each act of indiscipline of Rhys were necessary to bring home to Mr Gray the nature and seriousness of his behaviour. What was significant, as the Judge pointed out, was the cumulative effect of his many infractions - an unprecedented number for any pupil at the College in recent years and a consistent unresponsiveness right up to the end to the consequent attempts to discipline him. Nor could Mr Gray reasonably call for more detailed information of Rhys’ performance relevant to his poor educational progress, already communicated to him in the College’s termly reports, the Master’s and housemaster’s letters, his various conversations with the Master and Rhys’ positions in the Lower School Order.

I also agree with the Judge that Mr Gray had plenty of opportunity to respond co-operatively to the Master’s concerns and/or make representations to dissuade him from considering or taking that course. Whether or not he received the two March 2005 letters, he chose not to do so, seemingly intent on continuing with the dismissive attitude that he had adopted to earlier expressions of concern and warnings, a relevant consideration, as Simon Brown LJ implicitly indicated in ex p M (see paragraph 56 above)

In any event, given the lack of any substantial dispute as to the material facts and the nature of the decision to be made by the Master in the interest of the College as well as of Rhys, it is difficult to see what further representations of significance Mr Gray could have made. In my view, his representations to the Panel and those on his behalf to the Judge do not suggest any representations that he might have made shortly before the Master’s decision would have had any likelihood of dissuading him from it.

As to the significance of the two letters from the Master to Mr Gray in March 2005 in the light of the latter’s claimed non receipt of them, I do not feel that it would be right for this Court in the circumstances to attempt to fill the factual gap left by the Judge. Whilst, if they fell to be considered, they would undoubtedly add weight to College’s case on consultation, the possibility that Mr Gray may not have received them is not, in my view critical, given the other warnings I have mentioned, including, most recently, the Lent Term Report for 2005, the telephone conversation between the two men initiated by Gray in the Easter holiday and, no doubt through Rhys, through his very poor performance in the Lower School Order half-way through the Summer Term.

In the circumstances, I do not consider it necessary to resolve as a matter of law and/or fact whether the College can rely as a matter of contract on the sending of the March letters, given the unresolved issue of whether Mr Gray received them. I should perhaps say that I doubt whether the only authority to which Mr McManus could point in support of his contention that they should be disregarded is an apt authority for resolution of that issue, namely R v County of London Quarter Sessions [1956] 1 QB 682, CA. It concerned the validity of a finding against a respondent to bastardy proceedings in his absence in respect of which notice had been sent, as permitted, by registered post, but returned to the court marked “undelivered”. The Court of Appeal quashed the finding as a matter of construction of the relevant statutory provision governing notice, Denning and Morris LJJ, at 691 and 696 respectively, relying as an aid to that construction upon the fundamental principle that no one should be found guilty or made liable by an order of a tribunal unless he has received notice of the proceedings and had an opportunity to appear and defend them.

Accordingly, I am of the view that the Judge rightly found that the conduct of the Master in his dealings with Mr Gray and Rhys over the months leading to his decision to require Rhys’ removal was fair, in particular, in his consultation, and attempts at consultation quite apart from the March letters, with Mr Gray, and was in that respect and otherwise in accordance with the contract between them. I would, therefore, dismiss the appeal.

If I am right in concluding that there was no unfairness, whether by reason of inadequate consultation or otherwise in the Master’s decision to require Rhys’s removal, it is not necessary to consider the Respondent’s alternative contentions in its Respondent’s Notice, namely that the Panel Review hearing cured any unfairness in the Master’s decision and that it was, in any event, inappropriate now to grant the sole remedy sought of a declaration. However, it may be helpful for me to express my views on both, albeit briefly.

As to the first, whether the review could cure any deficiency in the College’s procedures leading to the Master’s decision, the Review Panel approached its task - true to the informal guidelines of the College – by a combination of review and rehearing. Depending on the circumstances and on how an appellate body goes about its task, either may be capable of curing an earlier deficiency in a decision-making process; see Lloyd v McMahon [1987] AC 625. In relation to claims for breach of contract, the question, as I have already noted, is that put by Lord Wilberforce in Calvin v Carr, namely whether, taking the procedures as a whole, including any contractual appeals, the complainant has received what he bargained for. Most recently in the different context of unfair dismissal, Lady Justice Smith, giving the judgment of the Court in Taylor v OCS Group Ltd [2006] EWCA Civ 702, observed, at para 38, consistently with the reasoning of their Lordships in Calvin v Carr:

“… the use of the words ‘review’ and ‘rehearing’ … in our view creates a temptation for a tribunal to fall into the error of deciding whether the appeal hearing cured the earlier defects by categorising the appeal hearing either as a review or a rehearing rather than looking at its thoroughness and the open-mindedness of the decision-maker and considering whether the disciplinary process as a whole was fair.”

Prior to the Panel Review hearing, Mr Gray was provided with documentation relevant to the College’s decision to require the removal of Rhys, including his scoring in the Lower School Order half-way through the Summer Term 2005, with an explanation and comparison with that of the scores of other pupils and a list of all his disciplinary infractions whilst at the College. That material, along with all that had gone before, was clearly sufficient to make plain by then at the latest the College’s grounds and factual basis for the Master’s decision to require Rhys’ removal pursuant to rule 6(a). At the oral hearing conducted by the Review Panel, Mr Gray was able to question the Master and other witnesses for the College through the Chairman, and he and Rhys were able to give evidence and make representations.

The Review Panel, in its written decision upholding the Master’s decision, gave a brief account of matters giving rise to its appointment, its procedure in preparation for and at the oral hearing, and set out its reasons, so far as material to this appeal, in the following terms:

“… Having regard to the written material contained in the Bundle (available to all concerned) and having heard from the parties …, there was ample evidence to justify the Master reaching the conclusion that Rhys was ‘unwilling or unable to profit from the educational opportunities offered. Such a conclusion was wholly warranted bearing in mind:

a)

The content and tenor of the end of Term Reports on Rhys for Summer 2004, Michaelmas 2004 and Lent 2005 …, and in particular the comments provided by both the Housemaster and the Master;

b)

The results for Rhys as shown in the Lower School Orders, which measured academic effort;

c)

The disciplinary record of Rhys as demonstrated by (a) statistical records maintained by the College … and (b) the individual record for Rhys …;

d)

Rhys’s unwillingness, or inability, to comply with the sanctions imposed by the school as a result of his lack of discipline;

e)

The fact that the Master has to have regard to the interests of the school as a whole, including the interests of the other pupils and the staff.”

It is not easy to see how the procedure adopted and decision of the Review Panel contribute to resolution of the contractual question before the Court, namely whether the College, in the exercise by the Master of his judgment pursuant to rule 6(a) to require Rhys’ removal, acted in breach of contract. The claim in issue is made against the College alone, not one in private or public law against the Review Panel. And if there was a breach by the College, acting through the Master, as to consultation, it is difficult to see upon what basis the later review could cure it so as to enable it to exercise an educational judgement, which rule 6(a) required the Master to make, save possibly to ask him to exercise it again.

However, assuming, without deciding, that the Review Panel could cure, in a contractual sense, any deficiencies of the Master in the way in which he reached his decision to require Rhys’ removal, I am of the view that it would have done so on the information available at the hearing and in the light of Mr Gray’s representations to it. It is plain from the reasoning of the Review Panel, as disclosed by its decision letter and the material before it, that it conducted what was in part a review and in part a rehearing, satisfying itself by both routes of the fairness of the Master’s decision-making process and also as to the soundness of his decision. Even if it was not a “complete rehearing”, as Mr McManus has submitted, and did not have all the forensic incidents of a criminal or disciplinary process, I have no hesitation in concluding that, when considered with the Master’s own handling of the matter, the Panel’s deliberations would have satisfied the Calvin v Carr and OCS Group v Taylor test of giving Mr Gray what he bargained for, a fair exercise in the circumstances of the College’s contractual power to require removal under rule 6(a).

I need not dwell long on the other alternative argument of the College that, in any event, it would have been inappropriate to grant a declaratory remedy in the absence of any other claimed remedy in the Autumn of 2005 when the matter came before the Judge. Although Mr Gray maintained until just before the end of the hearing his claim for a mandatory injunction to enable Rhys to return to continue his education at the College, there was, as I have said, clearly no possibility of such an injunction, and certainly not by then. Nor, on the basis upon which Mr McManus argued this appeal, could there be a declaration “clear[ing] Rhys’s name” since the challenge, as I have said, has been entirely procedural, not as to the merits of the Master’s decision. In the circumstances, the claim, from its inception, has been purely academic, and the grant of a declaration, which was all that was left for the Judge, would have served no useful purpose on a matter of construction of the contract or as to the application of its terms by the Master on the facts of this case.

I agree that this appeal must be dismissed. The reasons which have led me to that conclusion are, in substance, those which have been set out in the judgments of the other members of the Court. There is little that I wish to add in a judgment of my own.

As Lord Justice Auld has pointed out, it is important to keep in mind that the claim in this action is a private law claim in contract. That contract was made between the claimant, Mr Russell Gray, and the College. It set out, under standard terms and conditions, the basis upon which the College undertook to provide educational opportunities for Mr Gray’s son, Rhys. As was to be expected in a contract of that nature, its terms recognised the underlying expectation of both the parent and the College that the pupil would remain at the school so as to complete his secondary education: in particular that, after sitting the GCSE examinations (and subject to satisfactory results in those examinations), he would continue into the Sixth Form and study for A levels with a view to obtaining a place at university. But, as was also to be expected, the contract terms recognised that there might be circumstances in which it would be necessary to review that expectation.

Condition 6(a) of the standard terms and conditions makes provision for that contingency. It permits the College to bring the contract to an end if, in the judgment of the headmaster (“the Master”), the pupil is “unwilling or unable to profit from the educational opportunities offered”. That, as it seems to me, is a provision which is both necessary and beneficial. It might be thought obvious that it was in the interest of neither the parent nor the pupil for a pupil who was unwilling or unable to profit from the educational opportunities offered by the College to remain there. In those circumstances it cannot be sensible for the parent to continue to incur the not inconsiderable fees which the College must charge. And the pupil’s interests will be better served by removing him to a school which offers an educational regime from which he can benefit. Both parent and pupil would, I think, have real grounds for complaint if the Master – having formed the view that the pupil was unwilling or unable to profit from what the College had to offer – did not request (and, in the last resort, require) the pupil’s removal from the College.

The Master notified Mr Gray, in the letter dated 17 May 2005, that he had reached the conclusion that the contract should be brought to an end under the provisions of condition 6(a). He wrote:

“I am therefore informing you that, in my opinion, Rhys’ conduct and progress have been unsatisfactory and that, in my judgment, he is either unwilling or unable to profit from the educational opportunities offered here. . . . I have, therefore, to inform you that, in accordance with Paragraph 6(a) of the College’s Standard Terms and Conditions, Rhys should leave Marlborough at the conclusion of the current academic year.”

It is a striking feature of this appeal that Mr Gray does not contend that the criteria on which the Master relied were not established. In particular, Mr Gray does not contend that the Master was not entitled to reach the conclusion that Rhys was unwilling or unable to profit from the educational opportunities which the College could offer.

Mr Gray’s response to the letter of 17 May 2005 is significant. He asserted, in his faxed letter of 22 May 2005, that there had been an agreement – made in the course of a telephone conversation in the Easter holidays – that a decision whether Rhys would remain at the College would await (and be determined by) Rhys’ performance in the forthcoming GCSE examinations. Reliance on what – if established – would have been a collateral contract overriding the provisions of condition 6(a) was pursued until trial. The judge rejected Mr Gray’s account of the telephone conversation; and there is no appeal against that finding of fact. But, in the context of this appeal, the significance of Mr Gray’s initial response – as it seems to me – is the absence of any suggestion in the letter of 22 May 2005, or in the subsequent telephone conversation and message to which Lord Justice Auld has referred, that the matters upon which the Master had relied in reaching the conclusion that the condition 6(a) criteria were established came as any surprise to Mr Gray.

As I have said, there is no challenge on this appeal to the Master’s conclusion that condition 6(a) criteria were established: the challenge is based solely on the contention that, in reaching that conclusion, the Master failed to follow, or to give proper effect to, the process which, as a matter of contract, condition 6(a) required. In my view that challenge fails.

Condition 6(a) provides that the parent may be required to remove the pupil from the College:

“. . . if, after consultation with a parent, the Master is of opinion that the conduct or progress of the pupil has been unsatisfactory or if the pupil, in the judgment of the Master, is unwilling or unable to profit from the educational opportunities offered . . . and in any such case removal is considered to be warranted.”

It might be said that, syntactically, the words “after consultation with a parent” qualify only the phrase “if . . . the Master is of opinion that the conduct or progress of the pupil has been unsatisfactory”; and do not qualify the phrase “if the pupil, in the judgment of the Master, is unwilling or unable to profit from the educational opportunities offered”. But the College did not argue for such a strict construction and, in any event, the Master’s letter of 17 May 2005 shows that he was relying on both limbs. Further, the additional requirement that “in any such case removal is considered to be warranted” lends emphasis to the need for there to be proper consideration of the alternatives to removal. That, as it seems to me, requires that the College afford the parent with a proper opportunity to provide input as to what those alternatives might be.

The relevant enquiry, therefore, is whether – before notifying him of its decision on 17 May 2005 - the College had done enough to alert Mr Gray to the problem which it had identified and to enable him to make representations as to how that problem could best be addressed. It is important to keep in mind that there is not, now, any suggestion that the problem did not exist: the question was how to deal with it.

The answer, under each limb of that enquiry, is plainly “Yes”. It is impossible, as it seems to me, for Mr Gray to suggest that he did not know at the time of the Easter telephone conversation on which he himself relied that the Master thought that Rhys could not continue at the College beyond the end of the academic year. That had been the consistent message since the Michaelmas Term report and the telephone conversation in February 2005. Nor can it be suggested that Mr Gray had not been given the opportunity to discuss the alternatives to removal. The Master’s letter of 2 February 2005 contained a request that Mr Gray visit the College “in order to discuss [Rhys’] future”. Mr Gray sought to deal with the matter on the telephone. His evidence was that he thought that he had done so: he thought he had reached the collateral agreement to which I have referred. That evidence explains why he took no other steps to address the problem.

It is not, perhaps, as clear as it might be what weight the judge gave to the letters of 11 and 22 March 2005 when reaching his conclusion that the process was fair. He treated those letters as an indication that the College was seeking to consult – see paragraph 39 of his judgment – but he made no finding that the letters had been received by Mr Gray. I share the view, expressed by Lord Justice Buxton in his judgment, that it was very unsatisfactory that Mr Gray’s evidence that he had not received those letters should have been admitted to contradict the admission in his pleaded case (verified by a statement of truth made by his solicitor) without proper investigation and explanation as to the circumstances in which that case came to be pleaded and verified. And I take the view that, having admitted that evidence, the judge should have made a finding of fact on the issue. But, for the purposes of this judgment I am content to assume that Mr Gray did not receive those two letters: my conclusion that the College had done enough to alert Mr Gray to the problem which it had identified and to enable him to make representations as to how that problem could best be addressed has been reached without reliance upon them.

We were told by counsel that the purpose of the proceedings and the pursuit of this appeal was “to clear Rhys’ name”. It is not at all clear to me how it could have been thought that there was a need to do so; nor how it could have been thought that these proceedings (and, a fortiori, this appeal) were a sensible or suitable means by which to pursue that objective. Removal by a parent following a request under condition 6(a) avoids the stigma of expulsion. Rhys’ conduct has not been on trial. The principal issue in the proceedings was whether Mr Gray had made a collateral contract which superseded the provisions of condition 6(a). A secondary issue at trial – and the only issue on the appeal – was whether the College had complied with the requirements of fairness imposed by its own standard terms and conditions. Mr Gray’s failure on those issues does not reflect on Rhys. The sad fact is that Rhys was perceived by the College to be unwilling or unable to profit from the educational opportunities which it offered. That does not involve a judgment that he would not be able to profit from educational opportunities of a different nature or at a different school. His actual results in the GCSE examinations suggest that he will be able to do so.

I agree that this appeal must fail. The substance of Mr McManus’s complaint of lack of consultation tracked the ground on which the single Lord Justice gave permission to appeal. It was that the decision letter of 17 May 2005 relied on two issues, the Lower School Order and the failure to meet the Master’s Report conditions, neither of which had been notified to Mr Gray before they were acted on. As Mr McManus recognised, for that complaint to have any force it had to be established that before that letter was written Mr Gray had been given no proper indication that Rhys’s future at Marlborough was in significant jeopardy unless there was a substantial improvement in his work and behaviour. If that had been the background to the letter, then Mr Gray could complain that the decision had been taken on the basis of new matters that had not been discussed with him.

But any suggestion that Mr Gray had not been told of, and did not know, the seriousness of Rhys’s position is quite impossible to maintain. I will revert later in this judgment to the controversy about the letters of 11 March and 22 March 2005. But even ignoring those letters, there is no doubt that the school’s concerns and the action that it feared it might have to take had been fully brought home to Mr Gray. The Master’s Report for the Michaelmas term 2004 was very alarming, with the comment from Mr Sampson that Rhys “has a mountain to climb is he is to contemplate remaining at Marlborough beyond the end of the current academic year”. Then the housemaster wrote on 28 January 2005 notifying Mr Gray that, far from there having been any improvement, the mock GCSE results had been very poor. If there was any doubt, that was followed by the letter of 2 February 2005 from Mr Sampson stressing the seriousness of the situation in the light of any plans for Rhys to do A level, and inviting Mr Gray to a meeting: a step that the latter must have realised was very much outside the normal course of dealing with a satisfactory pupil.

Mr Gray did not accept that offer of a meeting, but spoke to the Master by telephone. Mr Gray’s evidence, not accepted by the Judge, was that in that and in a subsequent telephone conversation the Master agreed that whether Rhys stayed at Marlborough would depend upon, and therefore by inference any decision would be deferred until, his A level results. But what Mr Gray does not, and cannot, deny is that the conversation was about Rhys’s future at Marlborough in the context of his work and behaviour. That does not accord with his case that he did not know that that future was under serious threat.

I therefore conclude that the evidence clearly shows, and Mr Gray knew, that at the beginning of the Summer term the position was that unless things rapidly improved Rhys would be required to leave at the end of that term. In that context, the letter of 17 May 2005 did not announce new grounds of complaint, but rather stated that there had been a further deterioration in relation to the matters already raised, so that the consequence already stated as consequent on those matters became unavoidable. The consultation in respect of those matters, as the Judge found, had already taken place. There was no need to go back to Mr Gray in the context of the further problems set out in the 17 May 2005 letter, which merely confirmed that the looked-for improvement had not occurred.

I reach that conclusion without any reference to the letters of 11 and 22 March 2005. On the pleadings, there was a plain averment that the second of those letters, and from the latter’s content by inference the first letter, had in fact been received. I would have been inclined to hold the claimant to his pleaded case, save for the fact that that would entail the rejection of Mr Gray’s evidence on this point, which was admitted without objection. Since the Judge, having heard Mr Gray on the issue, went no further than to express surprise at the content of his evidence, I do not think that a different view is open to us. I do however think that it was very unsatisfactory that evidence should have been admitted that contradicted pleadings signed by counsel and verified by a solicitor without the discrepancy being properly investigated. The Judge said that the assertion in the pleading may well be a pleader’s error; but he had no evidence to that effect, nor any application before him to amend the pleading on the basis of mistake. It would have been highly unfortunate if the case had turned on the reliability of this piece of testimony; but in the event that problem does not arise.