P, R (on the application of) v London Borough of Haringey

On 14 May 2007 an order was made in the administrative court by Gibbs J in the matter of P (R) on the application of P v London Borough of Haringey (2007) EWHC CO/10655/2006. The order was made following an oral hearing on a renewed application for permission to apply for judicial review. The application was for judicial review of a decision by the London Borough of Haringey that an appeal to the independent appeal panel, against the dismissal of an appeal by the Governors’ Disciplinary Committee, was late and out of time and could not be pursued. The decision of the Governors’ Disciplinary Committee, following a hearing on 11 September 2006, was that the pupil, who proceeds in this case through his mother, had not been wrongfully excluded from school on 24 May 2006.

On the application for judicial review, according to the order, Gibbs J decided that permission be granted. However, it is clear on reading the transcript of the judgment given by him that he did not grant permission on all the grounds deployed on behalf of the applicant. Having set out the background to the renewed application, following the refusal of leave on papers by Mitting J, he considered, in the last three main paragraphs of his judgment, the points which he thought had a realistic prospect of success. They were, first, that there was a question whether the appeal was in fact made within the time provided by the regulations. He said that was arguable; that, if the fact was that an appeal was made in time, then, even if the local authority might reasonably have thought to the contrary on the information they had then, nevertheless, the appeal should be allowed to proceed. He also thought it was arguable that the local authority had a discretion to extend time. There was an argument that the regulations were not mandatory but directive, and subject to the exercise of the local authority’s discretion to accept an appeal out of time. But he then went on to say that another point advanced was not arguable. I quote:

He went on to say that another point which he had doubts about could be argued, because it would be useful at the court hearing to consider generally the appeal notice for grounds under the regulations, including the date from which the time begins to run. He said in the last couple of sentences:

As I read that part of the judgment, the judge was giving permission to argue three points, including one that he did not think much of, but might be useful to have a hearing about and consider generally the requirements under the regulations. He excluded a fourth one which he thought was not arguable. Unfortunately, that was not reflected in the order. In order to be completely accurate, the order should have said “permission granted on…” and then identifying the grounds allowed to go forward.

Things did not improve when the Court of Appeal Civil Appeals Office was informed that Gibbs J had given “permission to appeal” on three grounds. This was stated in a letter sent to the Civil Appeals Office on 3 August 2007: and the consequence of the letter referring to “permission to appeal” -- rather than “permission for judicial review” -- was that the Civil Appeals Office thought that the matter should now be sent down as an appeal with a part renewal of an application for permission to appeal on one of the grounds. Putting it another way, the matter was proceeding in this court as an appeal rather than as an application for permission to appeal against the judge’s refusal of permission for judicial review on one of the four grounds -- he having given permission on the other three.

When this mistake came to light there was some further correspondence, which led to a difference of view between the parties as to whether the matter should now proceed in this court as a judicial review application so that, if permission was granted, this court would proceed to decide the application for judicial review; and the other side -- that is the claimant taking the view that that was not the proper course; the proper course was for the court to decide whether the fourth ground could be argued or not, and, if it could be argued, the matter should be sent back to the administrative court and the judicial review hearing would take place there.

That was the state of affairs when the matter was put before me on the papers at the end of January. I directed that the matter should be adjourned to an inter-party hearing in order to make sure that these misunderstandings of the past had now been cleared up. I also added that I was not persuaded that the proposed application for permission to appeal and for permission to judicial review, which was limited to this fourth ground, had any real prospect of success; but I was not so confident that I thought I ought to refuse it without a hearing. The hearing has been valuable. Mr Rawlings appears for the applicant. Mr Hyams, who appears for the respondent council, has put in a skeleton argument. That has enabled some of this situation to be sorted out in a sensible way. It is agreed between the parties, having regard to the provisions of Part 52.15(3), that the most sensible way to proceed today, if I consider that there is a sufficiently arguable point in this fourth ground, is by giving permission for judicial review -- rather than the alternative of giving permission to appeal with the prospect of yet further delay -- in the holding of a hearing by the full court of the appeal. So I have to ask myself whether this fourth ground is reasonably arguable, contrary to the view formed by Gibbs J and whether, if it is, I should follow it up with permission for judicial review and remit the whole matter to the administrative court for hearing.

For the purposes of clarity I should point out that the only matter that has ever been in this court -- in the light of the judgment of Gibbs J -- is the application for permission to appeal against his refusal, to allow the applicant to argue the fourth ground. The rest of the judicial review application has never been in this court since he granted permission and, quite rightly, there was no appeal against his decision to grant permission on the other three grounds. So the simple position, despite all this past confusion, is this: do I think that there is an arguable point in the fourth ground, which is that the notice given by the counsel was so defective -- by reason of giving the deadline date for appealing as 6 October 2006 rather than 4 October 2006 -- that it could be treated as a nullity rather than a case of substantial compliance and that, if it is a nullity, then, on the applicant’s argument, the time has not even started to run; it would only start to run when a valid notice was given.

Like Gibbs J, I have my doubts about this; but looking at the matter in the context of the permission that has already been given for the other three grounds, I think that the proper course is to grant permission for this fourth ground to be argued. I am influenced in this by the judge’s own view about the third ground dealt with in his paragraph 9 of his judgment where, while doubting that a point was arguable, he thought it would be useful for the court, hearing the substantive application, to consider generally the appeal notice requirements under the regulations, including, on that argument, the date from which time begins to run -- what is meant by school day and so on. It seems to me that, if a point does not seem very strong but is worth arguing -- so far as the court is concerned, because it will enable the court to get an overall view of what the nature of the requirements are -- that is equally applicable to this point. There is, as was pointed out in the decision of Lord Woolf in the case of R v SSHD ex parte Jeyeanthan, quite a lot of learning about what is meant by mandatory and directory provisions, and when the court regards defective notices as substantially compliant and when it regards defective notices as being nullities and of no effect. I think these matters are really better argued out in the context of all the grounds on which this judicial review application is being brought, rather than only on three of them.

I would repeat that there is a lot in Gibbs’ J view that the modern authority does indicate that relatively minor defects notices -- where they do not prejudice the party to whom the notice is given -- do not operate to render the whole notice invalid; and I was tempted at one point simply to refuse permission on that ground. But I have been persuaded by Mr Rawlings that it is difficult to separate out the different points of discretion and the other points in relation to the intended appeal to the independent appeal body. I think it is better that the court that hears the judicial review application in the administrative court should hear all the arguments. If it thinks that this is a hopeless argument then not much time should be spent on it. But, for the reasons I have given, I think the decision is better taken there than here. So, for those reasons, I will grant permission for judicial review on the fourth ground, relating to the validity of the notice sent by the council. I will also make it clear, as I said earlier in the judgment, that this matter will now proceed substantively in the administrative court and not in this court.