F, R (on the application of) vHead Teacher of Addington High School & Ors

J U D G M E N T

1. MR JUSTICE PITCHFORD: This claim against the fourth defendant has been listed for hearing, permission to apply having been given in writing in respect of a single ground of claim on 4th October 2002 by Mr George Bartlett QC, sitting as a judge of the High Court. The claimant now seeks to withdraw the claim. However, in a skeleton argument delivered on 31st January 2003, counsel for the fourth defendant gave notice applying for the dismissal of the claim and an order for wasted costs to be paid by the claimant's solicitors. The claimant's solicitors have taken the opportunity to file evidence resisting the claim for a wasted costs order under section 51(6) of the Supreme Court Act 1981 and rule 48.7 of the Civil Procedure Rules. I have today heard submissions from counsel for both parties, and I now give judgment. I have reminded myself of the tests to be applied in the case of an application for a wasted costs order, appearing at page 1059 and following of the current edition of the White Book service.

2. The claimant was born on 28th November 1988. On 26th April 2002 he was excluded permanently from Addington High School in consequence of a violent incident which took place the previous week on school premises. Mrs B, the boy's mother, was notified of the decision by the headmaster by letter dated 26th April, and invited to attend at 1.30pm on 27th May the Coningsby Centre, Coombe Road in Croydon to receive further information about rights of representation and appeal, and about arrangements for her son's continuing education during the exclusion. The appointment to discuss future educational arrangements was confirmed by letter dated 30th April 2002 from Sue Podd, head of the Coningsby Pupil Referral Unit. It was a unit specifically designed for, amongst others, excluded pupils, with a view to providing education during exclusion and preparing the child for a reintroduction to the mainstream. It was a unit recognised by section 19 of the Education Act 1996 as suitable for pupils who had been excluded.

3. A statutory duty was imposed on the local education authority under section 19 to provide suitable education to such a child, meaning efficient education suitable to his age, ability and aptitude, and to any special educational needs he may have. On 15th May 2002 the discipline panel of Addington School's governing body confirmed the head teacher's permanent exclusion of the claimant.

4. On 17th May 2002 the claimant's mother applied to the Croydon African Caribbean Family Organisation (CACFO) for help with an appeal and placement of her son. The claimant attended full-time at CACFO, at least on 17th May and thereafter. The fourth defendant believes he had been attending since 4th May, before the application to which I have just referred was made. Mrs B did not attend the Coningsby appointment on 27th May.

5. On 25th June 2002 a report was prepared by a Mr Gardiner of CACFO upon the claimant, from which I read the following extracts which appear at page 70 of the judicial review bundle:

"His attendance is excellent. He is punctual to school, often arriving before most of the students. He is always neatly turned out and quite popular with peers at the Centre ... His learning has suffered as a result [of his school experiences]. Even here at the centre F would not request help for his classwork. Members of staff have to notice his lack of progress and then offer to help before F would engage with them. F adopts a very angry posture if you ask him about anything. If he is spoken to with patience he will admit that there is nothing at issue to make him respond angrily and yet that is always the first response. It is almost like he is permanently angry with all educational establishments.

"Staff at the centre are at the very early stages of working with F to equip him with strategies to better manage anger and to try to see the school community in a different light. The first indications are that he is responding well to the strategies and is making progress."

The author then goes on to give recommendations as to how future schooling should be approached in the claimant's case.

6. On 2nd July 2002 an exclusion appeal panel confirmed the claimant's permanent expulsion, and dismissed the appeal. The claimant continued to attend CACFO. In the meantime Sue Podd wrote again to Mrs B, inviting her to a further appointment at 10 o'clock on morning of 24th June. Mrs B did not keep that appointment. On 24th June Sue Podd made a fresh appointment for 17th July at 10am. Mrs B did not attend that appointment either. Instead, she instructed solicitors, Messrs Ashok Patel of Fleet Street.

7. On 16th August 2002 Ashok Patel wrote letters separately to the head teacher and governing body of Addington School, that is to say to the first and second defendants, to the Independent Appeal Panel of Croydon, the third defendant, and to the London Borough of Croydon, the local education authority, the fourth defendant. The complaint against the first to third defendants concerned the exclusion. The complaint against the fourth defendant concerned schooling during the period of exclusion. In their letter to the fourth defendant, Ashok Patel said this:

"Since our client's exclusion he has not received any suitable education. Our client has been out of school for almost 4 months. As you are aware, during the Summer period it is extremely difficult to contact various schools. However our client has still made every effort possible to find a school for her son but has had no success. Whilst there has been a delay in locating an appropriate school for our client, he has been suffering prejudice to his education. To avoid any further prejudice, we advice that you provide him with home tuition pending the resolution of his long term placement."

The letter then goes on to define the duties of the local education authority under section 19 and Department of Education Circular 11/99.

8. A reply from Ms Carole Harris in the Principal Office for Exclusions dated 19th August 2002 included the following information:

"At the time of Seth's exclusion from school on 26th April, the Headteacher's letter of that date included details of an appointment for Mrs B and F to attend a meeting at The Coningsby Centre ... The letter explained that, at that meeting, Mrs B would be given information about the arrangements for Seth's education while he is excluded from school. I have received no confirmation from the Centre that Mrs B attended that meeting.

"Staff at The Coningsby Centre are not available during the period of the school summer holidays and, therefore, I am unable to establish what tuition can be made available to F until the Centre opens again in early September."

9. On 3rd September Sue Podd wrote to Ashok Patel. She said:

"As you detailed in your letter F was excluded from Addington High School on 26th April 2002 and in line with borough procedure was referred to the Coningsby PRU for an exclusion interview. The purpose of this interview is to explain to parents their rights of appeal, advise them of the support available and to arrange appropriate alternative education for their child. Ms B was offered interviews on 27th May, 24th June and 17th July; unfortunately she was unable to attend.

"In response to her missing the third appointment Ms B was phoned by my Secretary and Ms B told her that her son was attending at CACFO, a voluntary sector provider. This provision constitutes Education Otherwise. CACFO is supported by the LEA and is deemed to fulfil the criteria for Education Otherwise.

"As you are aware parents have the right to have their child 'educated otherwise' than at school.

"In view of the clear parental choice made by Ms B the Centre removed [the claimant] from its roll.

"If Ms B has decided to withdraw F from the CACFO provision and wants him to be reinstated on the PRU roll it would be advisable for her to contact the Centre to arrange a new exclusion interview date."

10. On 16th September 2002 Beverley McBean, head of Legal Services for the fourth defendant, wrote to Ashok Patel enclosing the letters sent by Coningsby PRU to Mrs B and pointed out that Mrs B had informed Coningsby that the claimant would not be attending because he was at CACFO. In consequence Coningsby had not requested the claimant's school file from Addington, but she agreed to forward it on receipt.

11. On 24th September 2002 Ashok Patel replied to Beverley McBean, saying:

"Our client's mother failed to attend the appointment at the Coningsby Pupil Referral Unit since this is clearly an unsuitable place for her son. Our client should be attending a mainstream school which teaches the national curriculum since he is due to begin his GCSE course as he is 14 years of age. It is a statistical fact, as you are aware that Pupil Referral Units are for children with severe behavioural problems and our client does not suffer from behavioural problems. The CACFO have also stated that our client's behaviour has drastically improved and he is ready to go back into a mainstream school.

"As you are also aware, there is a high failure rate amongst such pupils at Pupil Referral Units and therefore clearly it is an inappropriate place for our client.

"It appears that you have not considered for our client to go to a mainstream school. You have not stated you are intending to consider any mainstream schools for him to attend. We request that you provide a list of mainstream schools with suitable vacancies for our client.

"We request that you respond within seven days by return of fax. In the event that you do not do so we will issue proceedings against you and seek costs accordingly."

12. On 27th September 2002 Ashok Patel issued a claim form in the Administrative Court seeking permission to apply for judicial review of the decisions of the first to third defendants, and in respect of the fourth defendant a review of a continuing breach of statutory duty under section 19 of the Education Act 1996 by failing to arrange suitable education for the claimant. They sought a mandatory order compelling the fourth defendant to provide 25 hours' home tuition per week or other suitable educational provision. An application was made for urgent interim relief upon the assertion that "our client is out of school with no suitable education".

13. The application was considered by Mr George Bartlett QC on 4th October 2002 on the papers. He granted permission limited to the alleged breach of duty under section 19 and abridged time for filing detailed grounds and evidence by the fourth defendant to seven days. The application considered by the deputy judge was supported by a statement of grounds in which the following averment was made at paragraph 16:

"It is clear that Section 19 was envisaged as a safety net for all those children who are out of school for whatever reason. The Claimant has been out of school since the 2nd July 2002 and has not received any education whatsoever from the Fourth Defendant."

14. Between paragraphs 17 and 36 the draftsman purported to set out the factual background. The statement of grounds was supported by a witness statement from Mrs B, and at paragraph 23 of that witness statement she says this:

"Ms Harris immediately proposed sending F to a Pupil Referral Unit. There has been no attempt at all to try to find a place in another mainstream school and I feel very concerned that Ms Harris should be willing to seriously prejudice my son's chances for appropriate educational provision, again with little or no reliable information."

15. Nowhere in the bundle of documents attached to the application does there appear any reference to the appointments made for Mrs B, the author of this witness statement, but not kept by her on 24th June or 17th July. Nowhere is it revealed that the claimant had been attending CACFO full-time since about 17th May, nor that CACFO was recognised by the fourth defendant as a section 19 compliant educational establishment. The correspondence passing between Ashok Patel, Coningsby and the fourth defendant between 17th August and 26th September was simply omitted from the bundle. Yet the claimant's case was that the fourth defendant was in continuing breach of its duty under section 19.

16. On 27th September Ms McBean wrote to Ashok Patel informing them:

"Your client has never visited the Coningsby pupil Referral unit or kept any appointments with Sue Podd to discuss how the unit could assist in arranging appropriate alternative educational provision.

"You state that pupil Referral units are for children with severe behavioural problems. That is incorrect. Pupil Referral units are to assist in the reintegration of excluded pupils back into mainstream schooling.

"You state that F does not have behavioural problems but his behaviour has drastically improved whilst at CACFO. In the papers presented to the independent appeal panel, there is reference to Mrs B stating that her son can be confrontational. Seth's individual education plan for the school year 2001/2 mentions the fact that F is aggressive towards other pupils.

"The LEA is limited in its knowledge of the availability of vacancies at all schools in the borough. Records are kept for the community schools which are [Ms McBean then sets out a list of six].

"The only school in this list likely to have vacancies is Selhurst High School for Boys [the address is given].

"All the other schools in the borough manage their own admissions and the LEA does not have a record of the availability of vacancies. Those schools are [she sets out a list of 11].

"In respect of your letter dated 27th September enclosing a copy of your client's application for judicial review, please note this was not accompanied by your statement of grounds; your statements of the facts relied on; or copies of any document upon which you propose to rely. The third and fourth defendants are unable to complete the Acknowledgment of Service without this documentation. Given that you are requesting that the defendants lodge their Acknowledgment of Service within 7 days, please provide the above documentation by return.

"It is also noted in the draft order that you will be seeking an order for costs against the defendants. Please note this request will be strongly resisted. You stated in your letter dated 24th September that 'we request that you respond within seven days'. You have served the incomplete application on 27th September without giving my clients the opportunity to respond within your time limit."

Ashok Patel took no steps to bring that letter to the attention of the deputy judge considering the application for permission.

17. On 14th October the fourth defendant lodged detailed grounds of opposition supported by a witness statement from Sue Podd dated the same day, to which was attached the missing correspondence. It was, of course, too late to reach the deputy judge considering the leave application.

18. There is no doubt in my mind that had the deputy judge been provided with the correspondence as he should have been, he would have refused permission to apply on all grounds, including the section 19 ground against the fourth defendant. There was in reality no arguable case that the fourth defendant was in breach of duty. They have simply not been given the opportunity to make provision for the claimant, despite their repeated attempts to do so. There was not before the deputy judge any material to justify the present assertion that Coningsby could not provide suitable education during exclusion, and no evidence before the deputy judge whether, in the circumstances of this claimant's case, suitable provision was made at CACFO, where, unknown to the deputy judge, the claimant had been attending full-time during school terms.

19. I consider that the deputy judge was completely misled. I accept the submissions made by Ms Richards that the impression given was of a claimant cast loose by his LEA in an educational vacuum. That was far from the truth. On 23rd January Maurice Kay J ordered that the renewal of applications concerning the first three defendants should be heard during the week commencing 27th January. That oral hearing did not take place because it was abandoned. On 31st January Ashok Patel sought to persuade the fourth defendant to agree to an adjournment of the hearing today, purportedly to enable Carole Harris to consider further information provided by CACFO before consideration was given to reintroducing the claimant to mainstream education. The reality was that the claimant had no prospect of establishing a breach of section 19 in the first place.

20. I now consider the witness statement of Shilpa Patel dated 5th February 2003, in which the history of instruction of the firm is recorded. I am bound to say that the witness statement largely avoids reference to the relevant factual matters recorded in the grounds of opposition. The issue is not whether the claimant might have had an arguable claim if formulated as an attack on the suitability of the Coningsby PRU, although I record my own view that such an attack would undoubtedly have failed, but whether the firm placed before the deputy judge a wholly misleading and negligent application to pursue the fourth defendant, which now requires an order for costs. No explanation is given why the relevant correspondence was not included in the bundle or forwarded to the Administrative Court for consideration by the deputy judge. At paragraph 9 Shilpa Patel says that the firm was unaware of an appointment arranged for Mrs B at Coningsby until 20th August 2002. At paragraph 11 she said the firm did not realise that the claimant was attending CACFO, a suitable establishment, until 4th September. At paragraph 11, when they did realise it, she says, they entered into correspondence asserting that the claimant should be in a mainstream school. On their own admission, therefore, Ashok Patel was aware of the material which undermined the case they were seeking to make against the fourth defendant to the deputy judge, but proceeded to seek permission without reference to that material.

21. Ms Brown assures me that there was no intention to mislead, and after some hesitation I accepted that assertion. For that reason I do not find that the conduct complained of was improper in the sense in which that term is used in the wasted costs context. However, the standard of work with which I have been faced falls woefully below that to be expected of an ordinary member of the profession. In my opinion, it was Ashok Patel's failure to reach an acceptable standard which has occasioned the fourth defendant's expense, which they should not be required to bear. Accordingly, I dismiss the claim and order that Ashok Patel shall pay the costs of the fourth defendant occasioned by the claim brought under section 19 of the Education Act 1996, and that there should be a detailed assessment of those costs in the absence of agreement as to the appropriate sum.

22. MS RICHARDS: My Lord, the only thing I ask, for the avoidance of doubt, is that the costs of today are included in that order.

23. MR JUSTICE PITCHFORD: Yes, they are. Thank you both very much.