London Oratory School & Ors v The Schools Adjudicator

MR JUSTICE JACKSON: This judgment is in seven parts, namely part 1, introduction; part 2, the facts; part 3, the present proceedings; part 4, the first and second grounds of claim; part 5, the third, fourth and fifth grounds of claim; part 6, the sixth and seventh grounds of claim; part 7, remedy.

These proceedings involve a challenge brought by school governors and three parents to a decision of the Schools Adjudicator. The case is on any view an urgent one. It has moved from the issue of proceedings to judgment in the space of three weeks and two days. May I begin by congratulating all counsel, both firms of solicitors and both parties on the speed and efficiency with which this case has been prepared and presented. Cooperation between litigants is vital to the smooth running of civil litigation and is in the interests of all parties. I commend to all litigants the cooperation which there has been between the parties in this case to the benefit of all and to the benefit of the public interest.

It is first necessary to set out the statutory framework within which this case arises. The principal statute is: the School Standards and Framework Act 1998, to which I shall refer as "the 1998 Act". Section 25 of the 1998 Act provides:

Section 69 of the 1998 Act provides:

Section 84 of the 1998 Act provides:

Section 90 of the 1998 Act provides:

Pursuant to section 69(3) and (4) of the 1998 Act the Secretary of State has made a statutory instrument which designates The London Oratory School as a voluntary aided Roman Catholic school. I shall refer to this school as "the Oratory School".

Pursuant to section 84 of the 1998 Act, the Secretary of State has published a code of practice relating to school admissions. I shall refer to this document as "the Code". The edition of the Code which is relevant to the present case is that which was published in February 2003.

Pursuant to section 90(10) of the 1998 Act, the Secretary of State has made regulations, titled "Education (Objection to Admission) Regulations 1999". Regulation 7 of those regulations provides:

The Education Act 2002 provides as follows in section 20:

Regulations governing the making of such instruments have been duly made pursuant to section 20 of the Education Act 2002. These are the School Governance (Constitution) (England) Regulations 2003. Regulation 29(1) of these regulations provides:

The Oratory School has an Instrument of Government which complies with the provisions of the Education Act 2002 and the School Governance (Constitution) (England) Regulations 2003.

The Instrument of Government for the Oratory School includes the following passage:

That recitation of statutory provisions and similar documents will suffice for present purposes. It is now possible to turn to the facts of the instant case.

St Philip Neri was an Italian priest who lived in the 16th century and devoted much of energies to teaching young men. He formed an influential movement in the Catholic Church called the Congregation of the Oratory. St Philip Neri is the patron saint of the Oratory School in London. He is also the saint who has given his name to the London Oratory Church. The Oratory School and the Oratory Church have close links with one another. They maintain liturgical traditions which derive from the Congregation of the Oratory in the 16th century.

The Oratory School was founded in 1863 by the Fathers of the London Oratory for the benefit of Catholic children from all over London. The school continues to take Catholic children from all over London. It maintains high standards of education. Places at the school are much sought after.

In addition to providing an excellent education, the school also has a very intense religious life.

Details of the religious life of the school are set out in the statements of Mr McIntosh, the headmaster, and Father Harrison, the Chairman of the Governors. Suffice it to say that both staff and pupils are fully committed members of the Catholic Church and religious worship plays a substantial part in school life.

The Oratory School has always taken steps to ensure that new pupils admitted to the school are fully committed and practising members of the Catholic Church. The religious credentials of prospective pupils are established, first by the application forms which the parents fill in, as well as priests, and then by interview.

In February 2003 the Secretary of State published a revised version of the Code. Paragraph 3.16 of the Code, in its new form, read as follows:

On 4th November 2003 the Governors of the Oratory School met and considered their admission arrangements for September 2005. They considered these admission arrangements in the light of the revised code which had been issued by the Secretary of State.

The relevant part of the minutes of that meeting of the Governors reads as follows:

In due course the Governors finalised and issued a document setting out the admission arrangements for 2005. This document was approved by the Governors at their meeting on 23rd February 2004. The relevant part of that document for present purposes reads as follows:

There are footnotes to the religious criteria set out in this passage. The first part of those footnotes reads as follows:

In due course the local education authority approved the admission arrangements published by the Oratory School. A different view was taken, however, by the Governors of the Peterborough Primary School. On 17th May 2004 the Peterborough Governors wrote to the Office of the Schools Adjudicator objecting to two aspects of the Oratory's schools admission arrangements. These were (1) the proposal to interview applicants and (2) certain aspects of the oversubscription criteria. In relation to the first matter, the Peterborough Governors pointed out that the use of interviews was contrary to paragraph 3.16 of the Code.

In due course Dr Elizabeth Passmore was the Schools Adjudicator assigned to deal with this matter. From now on I shall refer to Dr Passmore as "the Adjudicator".

The Adjudicator duly dealt with the first of the two complaints made by the Peterborough Governors. She did not, however, deal with the second complaint. That was referred to the Secretary of State pursuant to section 90(3)(b) of the 1998 Act and regulation 7 of the Education (Objections to Admission Arrangements) Regulations 1999.

During the period following 17th May 2004 the Adjudicator corresponded (a) with the Peterborough Governors in order to elucidate their objections and (b) with the Oratory School in order to elicit the School's responses. In the course of this correspondence the Oratory School sent to the Adjudicator the minutes of the Governors meeting on 3rd November 2003. The Oratory School also submitted copies of the documentation used in its admission process. On 1st September 2004 the Oratory School sent to the Adjudicator a document headed "Final Submission". This document included the following passage:

During early September 2004 the Adjudicator considered the issues and drafted her determination. In that determination she upheld the objection of the Peterborough Governors and ruled that all references to interviewing applicants aged 11 plus should be deleted from the Admission Arrangements.

The crucial part of the Adjudicator's determination reads as follows:

Although the Adjudicator had completed the preparation of her determination by 10th December she did not issue it on that date. Instead, rather unfortunately, the Adjudicator waited until 15th October, when the Secretary of State was in a position to issue his determination on the matters referred to him. The 15th October was just one week before the final date of submissions of written applications for entry to the school in September 2005.

On 15th October both determinations were issued. In relation to the oversubscription criteria the Secretary of State partially upheld the objection of the Peterborough Governors. The Secretary of State determined that the oversubscription criteria should be amended to read as follows:

The Governors of the Oratory School accept the Secretary of State's determination concerning amendments to the oversubscription criteria. However, both the Governors and also certain parents of pupils or prospective pupils were aggrieved by the Adjudicator's decision to ban interviewing. Accordingly they commenced the present proceedings.

By a claim form issued on 24th November 2004 the Governors of the Oratory School and three fathers of pupils or prospective pupils applied to the Administrative Court to quash the determination of the Adjudicator. This application was made on seven grounds. The seven grounds set out in the claim form are as follows:

It should be noted that the Governors of the Oratory School are the 1st Claimants in these proceedings. The three parents who have joined in these proceedings are the 2nd, 3rd and 4th claimants. The parents have been joined in the action because they can, but the School cannot, advance the seventh ground of claim.

On 29th November I considered the Claimants' application for permission to proceed with their claim for judicial review on the papers. I gave directions for the filing of evidence and ordered that the application for permission and the substantive hearing should take place on the same occasion at a "rolled-up hearing".

The rolled-up hearing of these matters commenced yesterday and is concluding today. Mr Charles Béar QC represents the claimants and Mr Jonathan Swift represents the Adjudicator. I am grateful to both counsel for their considerable assistance at the present hearing. I am also grateful to Mr Oldham, junior counsel for the Claimant, who has not spoken but has provided assistance to the court.

Having set out the procedural history of this case, I can now turn to the grounds of claim.

The first and second grounds of claim, as presented in argument, are closely linked. Indeed, as both counsel have accepted, ground 2 really merges into ground 1. The essence of the claimants' case is that the Adjudicator has applied paragraph 3.16 of the Code to the Oratory School without regard to the particular circumstances of that school and without addressing arguments which had been presented to her.

Let me first consider the statutory effect of the Code. Section 84(3) of the 1998 Act imposes an obligation, first on the Governors of the Oratory School and then on the Adjudicator "to have regard to any relevant provisions of the Code". The phrase "to have regard to" means to take into account. It does not connote slavish obedience or deference on every occasion. It is perfectly possible to have regard to a provision but not to follow that provision in a particular situation: see the decision of the Privy Council in Barber v Minister of Environment 9th June 1997 at page 5 of the transcript.

I turn next to the role of the Adjudicator. This was neatly summarised by Ouseley J in R (Metropolitan Borough of Wirral) v The Schools Adjudicator [2001] ELR574 at paragraph 15:

Let me now return to the present case. The Oratory School, in its various written submissions to the Adjudicator, had put forward a formidable case which I would summarise as follows:

The Adjudicator, in my judgment, simply fails to address this argument. In particular she does not mention in her determination the School's past experience of unreliable written applications. I quite accept that there is now much more evidence before this court about the matter than there was before the Adjudicator. In particular, I have witness statements from teachers who describe the shortcomings of some application forms and how these were exposed in interview. Nevertheless, the matter was clearly raised in the written material before the Adjudicator and it simply was not dealt with in her determination.

As Ouseley J observed in the Wirral case, the decision originally taken in the Wirral case by the local education authority and the reason for that decision is very material, and this is something which the adjudicator must take into account.

If the adjudicator fails to take into account a material consideration, then her decision may be quashed: see R (Watford Grammar School for Girls and Watford Grammar School for Boys) v Adjudicator for Schools [2003] EWHC 2480 Admin; [2004] ELR 40.

In the present case, for the reasons set out above, it seems to me that the Adjudicator did fail to take into account a highly material consideration. Accordingly her decision must be quashed on that ground.

The second ground of claim is in essence an alternative approach to the same matter. The Adjudicator had regard to paragraph 3.16 of the Code, as she was entitled and obliged to do. However, the Adjudicator applied that provision without taking into account the special circumstances of the Oratory School as disclosed by the written material submitted to her. I therefore regard the second ground of claim as an alternative to the first ground. Either approach leads to the conclusion that the Adjudicator's determination must be quashed.

These three grounds of claim are linked and they all focus upon paragraph 16 of the Adjudicator's determination. In essence grounds 3, 4 and 5 are as follows:

Let me deal first with ground 3. On this issue I accept the submissions of Mr Swift. The Oratory School had put the interview guidance notes before the Adjudicator as part of the School's positive case. The Adjudicator was entitled to consider the guidance notes and she duly did so. The Adjudicator was thereby responding to the School's positive case. Accordingly, I reject ground 3 of the Claimants' claim.

With all due respect to the pleader, it seems to me logical to deal next with ground 5 of the Claimants' claim before I tackle ground 4. Let me therefore turn to ground 5.

In the course of paragraph 16 of her determination the Adjudicator says this:

I am afraid that I find this passage baffling. If a child is a practising Catholic one would expect him to have some familiarity with the Ten Commandments and Scriptures. These are perfectly proper, indeed sensible, topics to have in interview. I quite agree that if these were the only questions asked then practising Christians of other denominations may also achieve a high score. But this is not the case. The questions about the Ten Commandments and the Scriptures must be seen in their context. That context includes many questions about matters which differentiate Catholicism from other forms of Christianity. I am afraid that I have come to the conclusion that the passage which I have just quoted from paragraph 16 of the determination fails the Wednesbury test. No reasonable adjudicator could conclude that questions about the Ten Commandments and the Scriptures were inappropriate for inclusion in the Oratory School's interviews.

I come next to ground 4. The only tenable comment which the Adjudicator makes about the interview guidance notes appears in the third sentence of paragraph 16 of the determination. The obvious response to this comment is that a small addition should be made to the guidance notes in order to assist interviewers in disregarding the communication or reasoning skills of parents. To propose that on this ground the whole interview process should be banned would be a disproportionate and unreasonable response.

Let me now draw these threads together. I reject the third ground of claim but uphold grounds 4 and 5. It is not necessary to speculate whether or not grounds 4 and 5 in isolation would make it appropriate to quash the Adjudicator's determination. Grounds 4 and 5 do not stand in isolation. The Claimants' success on these two grounds reinforces my earlier conclusion that the Adjudicator's decision must be quashed.

The sixth ground of claim is based upon the long period of delay before issuing the Adjudicator's determination. There is an issue between the parties as to the extent, if at all, that the School acquiesced in that delay. There are also issues as to the extent of the prejudice caused to the Claimants by the delay. In view of my findings on the earlier grounds it is not necessary to go into this aspect of the case. Suffice it to say that I regard the delay between 10th September and 15th October as being most unfortunate. The Adjudicator's decision could not have been affected by the matters which the Secretary of State was considering. In my view it is desirable that once an adjudicator reaches a firm decision which is as far reaching as the determination in the present case that decision should be promulgated without delay. This, however, is a comment on my part. For the reasons indicated, it is not necessary for this court to reach a decision on ground 6.

I turn now to ground 7 of the Claimants' claim. Article 2 of Protocol 1 to the European Convention on Human Rights (which is scheduled to the Human Rights Act 1998) reads as follows:

The 2nd, 3rd and 4th Claimants, who are parents of pupils or prospective pupils at the Oratory School, contend that their rights under this Article are being breached. This argument is put essentially on two bases:

I reject both limbs of this argument. As to the first limb, the 2nd, 3rd and 4th Claimants do have a right to secure education for their children at schools which conform with their Catholic faith. This cannot be elevated, however, into a right to be educated at the Oratory School. There are other Catholic schools in the London area whose excellent work must not be overlooked.

I turn now to the second limb. If the admissions process of the Oratory School is impaired, then this may lead to the admission of pupils with a lesser commitment to the Catholic faith. Over time this will have some effect on the overall make up of pupils at the School. Nevertheless, the Oratory School will still remain a Catholic school. Religious worship and other Catholic activities will be an important part of school life. The staff will no doubt continue to be committed and practising members of the Catholic Church. In my view it cannot be said that the rights of existing pupils or their parents under Article 2 of the 1st Protocol will be infringed if interviewing is removed from the admissions process.

Accordingly the seventh ground of the claimant's claims fails.

All of the Claimants' claims are properly arguable. I therefore grant permission to proceed with the claims on all grounds. For the reasons set out in parts 4 and 5 of this judgment, the claimants succeed on grounds 1, 2, 4 and 5 of their claim. The claimants fail on grounds 3 and 7. I make no finding in relation to ground 6.

The consequence of the Claimants' success on grounds 1, 2, 4 and 5 must be that the Adjudicator's determination dated 15th October 2004 is quashed. Mr Swift is quite right in saying that the court has a discretion whether or not to quash. Nevertheless in my judgment it would not be right to allow a determination which is flawed in the respects indicated in this case to stand.

The next question which arises is whether I should remit the matter to the Adjudicator so that she can make a fresh determination upon the objection raised by the Peterborough Governors pursuant to section 90(3) of the 1998 Act. Mr Swift, in his forceful submissions, both yesterday and today, argued that that is the proper course of action.

I reject this submission for eight reasons:

I should add this comment. The decision which I have made relates solely to the admission arrangements for September 2005. It is now simply too late to deal with the objection to interviewing which has been raised. If in future years the Governors of the Oratory School propose to interview applicants for places and if in future years objection is taken to that proposal, such an objection can be put before the Schools Adjudicator and all the issues can be considered afresh. The arguments against interviewing can be deployed and the arguments advanced by the School in favour of interviewing, including the extensive material which has been lodged in the course of this hearing, can also be deployed. The outcome of any future objection to admissions procedures in future years will be a matter for the Adjudicator, upon which I make no comment. I am dealing in this case with the lawfulness of a determination made in respect of the admissions arrangements for September 2005.

In the result the Claimants succeed on their overall claim. The decision of the Adjudicator is quashed and the School will be permitted to interview candidates in the present round of applications. I invite counsel to assist the court in formulating an order which will give effect to these conclusions.

MR BÉAR: My Lord, perhaps it would be possible for us to do that, and, if your Lordship is present next week, to hand it on Monday; unless your Lordship would like it to be done now?

MR JUSTICE JACKSON: No, certainly not, it is an urgent case and must be dealt with today and the drafting of an order is a simple clerical matter.

MR BÉAR: Yes, it is.

MR JUSTICE JACKSON: I am happy to rise for five minutes if you wish to confer with Mr Swift.

MR BÉAR: My Lord, perhaps I can just try to deal with it on my feet because it does not seem to me that it is going to require an enormous amount of time.

MR JUSTICE JACKSON: Certainly.

MR BÉAR: 1. That the determination of the Adjudicator dated 15th October 2004 be quashed.

That the objection of Peterborough Primary School dated 17th May 2004 shall not be remitted to the Adjudicator.

MR JUSTICE JACKSON: Objection of the Governors --

MR BÉAR: Yes.

MR JUSTICE JACKSON: -- of Peterborough Primary School dated 17th May 2004 --

MR BÉAR: Yes. -- shall not be remitted to the Adjudicator.

And then 3: and it is declared that the School -- I should say the 1st Claimant -- shall be permitted to interview parents and candidates in accordance with its published admission arrangements.

MR JUSTICE JACKSON: Do you need a declaration in terms of 3 at all, or not? I would have thought that the relief you are claiming is reflected in 1 and 2. I have explained in my judgment the consequences of the relief.

MR BÉAR: My Lord, that must be right.

MR JUSTICE JACKSON: Yes.

MR BÉAR: I was going to say: as amended by the determination of Secretary of State, but perhaps one need not get into that sort of fiddly drafting.

MR JUSTICE JACKSON: I would have thought that paragraphs 1 and 2 would suffice.

MR BÉAR: Yes.

MR JUSTICE JACKSON: Then we have the Secretary of State's redraft of the criteria.

MR BÉAR: Quite so.

MR JUSTICE JACKSON: Thank you very much, Mr Béar.

MR BÉAR: My Lord, can I deal with any other matters after Mr Swift has said whether he is happy with the draft.

MR SWIFT: My Lord, may I have a moment please?

MR JUSTICE JACKSON: Yes.

MR SWIFT: (Instructions taken.)

MR SWIFT: My Lord, the only point I need to ask at this stage is in relation to permission to appeal.

MR JUSTICE JACKSON: Yes. Before we come to that, are you content with the form of order as formulated by Mr Béar?

MR SWIFT: My Lord, just to make sure I am up to speed: the first paragraph will concern the quashing of the present determination; the second paragraph would simply be to the effect that the objection of the Governors of the Peterborough School not be remitted to the Adjudicator. My Lord, so on that basis I am content with the order as Mr Béar suggested.

MR JUSTICE JACKSON: Thank you.

MR SWIFT: My Lord, my application is in relation to permission to appeal. My Lord, the point of importance - which does in fact go well beyond the remit of this case - is the conclusion that my Lord has reached in relation to the question of remedy, in particular the conclusion as to the effect or not of section 90(3) of the 1998 Act in circumstances where an adjudicator's decision is quashed. Clearly my Lord's conclusion is at odds with the conclusion of Goldring J, in particular paragraph 17. My Lord, in any event clearly there are important matters here, because one has a situation now, potentially, where, despite the absence of any timetable in the statute, or for that matter in the guidance, where an adjudicator can effectively be required by a court to abandon the substantive merits of an adjudication at a point which is relatively early in the school year - prior to admissions - my Lord, that is a matter of significant importance having regard to the statutory scheme. Particularly given the contents of Goldring J's judgment in the Watford No 2 case, I would say it is self-evident that this is a point on which permission should be granted.

MR BÉAR: My Lord, I would disagree very strongly with that. Your Lordship's judgment was, if I may respectfully say so, perfectly clear in ruling that it would now be substantively irrational for any adjudicator to delete interviews from the process were the matter to be remitted, and it was not contested as a matter of principle that in that event it would be wrong to remit the matter for a pointless step to be taken by an adjudicator.

So first of all, whilst of course Mr Swift disputed whether it would so be irrational, that is now concluded by your Lordship's judgment. The matter raises nothing, therefore, beyond the confines of the immediate case. There is no basis on which Mr Swift has sought to suggest, nor could he have done so, that your Lordship's conclusion in that regard is appealable; it is plainly a matter for your assessment as the trial judge. In those circumstances there is nothing which the Court of Appeal would be able to look at of any wider importance.

It is also, if I may say so, a case in which I would urge upon your Lordship particular caution in considering any application for permission to appeal because any such application could only have the effect of undermining the integrity of the admissions process which is now going to have to take place over the next month.

MR JUSTICE JACKSON: Thank you very much.

MR SWIFT: My Lord, briefly in reply: with regard to the latter point, there is simply nothing to it. I am not asking for a stay of this decision. With regard to the first point, in fact my Lord decided that it was not necessary to conclude on Mr Béar's time point, as it were - the delay of publication of the decision - no conclusion was reached on that. The matter of rationality that my Lord considered in relation to remedies is materially different and concerns the situation obviously in relation to remedy, not in relation to the substantive ground. So for Mr Béar to suggest that the concession I made in relation to the substantive time point also applies to the situation that we are now in is simply incorrect.

MR JUSTICE JACKSON: This is an application for permission to appeal. Mr Swift on behalf of the Adjudicator, the Defendant, submits that there is an important point of law here concerning the remedy which this court has granted. He submits that the appeal has a good prospect of success because the court on this occasion has differed from Goldring J in an earlier case.

I consider that the facts of this case are very different from the facts of the case before Goldring J, and it seems to me that there is no different approach in law between myself and Goldring J. The decision which I have reached concerning remedy turns upon, and arises from, the facts of the present case.

When considering an application for leave to appeal, the Civil Procedure Rules require that I should consider two questions: (1) whether the appeal has a real prospect of success, and (2) whether there is any other compelling reason for giving permission to appeal.

It is always difficult for a judge who has just given judgment immediately to reflect upon the precise probability that a higher court will declare him to be wrong. Every judge from time to time falls into error and must take it with good grace when he is overruled, in the same way I hope the Adjudicator in this case will not be unduly perturbed by the decision of this court. Nevertheless it is necessary for me to consider the prospect that the Court of Appeal will disagree. I am afraid that I have taken a firm view on what the right answer is to this case, and on the view which I take this proposed appeal does not have any real prospect of success.

If I am wrong in that assessment - and judges sometimes are wrong in that assessment - then the Adjudicator has the remedy of applying to the Court of Appeal for permission to appeal. If the Court of Appeal think that the appeal does have a real prospect of success, then they can grant such permission.

There is, furthermore, in my judgment, no other compelling reason why in this case permission should be granted to appeal. It therefore seems to me that neither of the criteria set out in the Civil Procedure Rules are satisfied.

The final matter relevant to the question of appeal is this. If the Adjudicator obtains permission to appeal, either from this court or from a higher court, the existence and progress of that appeal will cause further disruption to the admissions process of the Oratory School. In my judgment those persons who run the Oratory School have already been given quite sufficient disruption to cope with and it would not be right to increase that disruption by granting permission to appeal.

For all of those reasons, permission to appeal is refused.

MR BÉAR: My Lord, that leaves the issue of costs. The School has funded these proceedings; and so the first matter -- there will be another point that I will need to deal with -- is to ask for an order for our costs to be paid by the Defendant. I do not know if your Lordship wants to deal with them in sequence ...?

MR JUSTICE JACKSON: You do not oppose costs, do you?

MR SWIFT: My Lord, in relation to costs, the only point that I would make is that in relation to two of the seven grounds the Defendant was actually successful. Clearly the court has now a much more specific discretion in relation to costs than previously. My Lord, clearly that is a matter of evaluation for yourself. I would simply make the point that the two grounds on which the Defendant did succeed were substantial and material grounds, both of which were pressed by Mr Béar, quite properly, at some length. In those circumstances it would be appropriate in relation to the question of costs to make an award only in relation to a percentage of the Claimants' costs. My Lord, I assume Mr Béar is seeking an order only in relation to the 1st Claimant, given that he says that it was the 1st Claimant who has funded the litigation, presumably also meeting the costs of Claimants 2 to 4.

MR BÉAR: The assumption is right, although it should be 'the Claimants' costs'.

MR JUSTICE JACKSON: The 1st Claimants are a group of people, are they not?

MR BÉAR: I believe they are incorporated, in fact, as a governing body. My Lord, I invite your Lordship not to accept the invitation to go for some apportionment. The amount of time that was spent on the Human Rights issue was frankly no more than 20 or 30 minutes in total of the court hearing -- perhaps 40 minutes -- but it is not enough to warrant trying to come to some lesser amount of costs; and as for the other issue on which we did not succeed, it was of course part and parcel of a group of issues on the majority of which it did succeed and it would not be right there to filter out some element of costs.

MR JUSTICE JACKSON: So is the proper order that you say the Claimant recovers its costs of the proceedings and no order for costs -- sorry the 1st Claimant recovers its costs and no order for costs in respect of 2nd, 3rd and 4th Claimants?

MR BÉAR: Yes, that would be an acceptable ...

MR JUSTICE JACKSON: Yes, thank you very much. Do you wish to add any more?

MR SWIFT: Simply to make the point that the 2nd, 3rd and 4th Claimants were only claimants in relation to the Human Rights point.

MR JUSTICE JACKSON: Thank you very much.

MR BÉAR: Before your Lordship goes further, can I just indicate, I am going to ask for an interim payment on account of costs; I do not know if your Lordship wants to write anything down before I do that.

MR JUSTICE JACKSON: I want to deal with the question of costs before I award interim payments.

MR BÉAR: Certainly.

MR JUSTICE JACKSON: It seems to me the point you have just made reminds me of another matter which I had overlooked; that is, that the claim of the 2nd, 3rd and 4th Claimants ought to be dismissed, ought it not?

MR BÉAR: Yes.

MR JUSTICE JACKSON: So paragraph 3 of the order will read: claim of C2, C3 and C4 dismissed.

MR BÉAR: I also forgot; and plainly there should be a paragraph granting permission in respect of all the claims. So 1 should be grant of permission. My 1 and 2 become ...

MR JUSTICE JACKSON: 'Permission' is paragraph 1.

MR BÉAR: Yes.

MR JUSTICE JACKSON: Then paragraph 2 is: 'the determination of the Adjudicator being quashed'.

MR BÉAR: Yes.

MR JUSTICE JACKSON: Paragraph 3 is: 'the objection shall not be remitted'. Paragraph 4 is: 'the claim of 2nd, 3rd and 4th Claimants to be dismissed'.

MR BÉAR: I am obliged.

MR JUSTICE JACKSON: I agree with that; and I suspect Mr Swift does?

MR SWIFT: I am sorry, my Lord, my instructing solicitor was just ... (Brief discussions with Mr Béar.) My Lord, yes. And I think the present 1 and 2 become 2 and 3; and 4 was --

MR BÉAR: Dismissed.

MR SWIFT: -- dismissed in relation to the 2nd 3rd and 4th Claimants.

MR JUSTICE JACKSON: I think I have heard sufficient argument on the question of costs. It seems to me that the Claimants are the overall victors in this litigation. The great majority of the points argued on behalf of the Claimants have succeeded. The ultimate objective of the Claimants was to arrive at a situation in which they are now permitted to start interviewing candidates for places and the overall result of the litigation is that the Claimants are now in that situation.

Very little time has been spent on the matters where the Claimants were not successful. The 2nd, 3rd and 4th Claimants were joined in the proceedings purely to enable the Human Rights point to be argued. The Human Rights point took up very little time, and the 2nd, 3rd and 4th Claimants have not, so far as I can see, been much of an intrusion into the proceedings, which is really a battle between the 1st Claimant and the Schools Adjudicator.

For all of these reasons, in the exercise of my discretion, I have come to the conclusion that the proper order for costs is as follows - and this will be paragraph 5 of the order:

Now you have another application, Mr Béar?

MR BÉAR: Yes, an order for an interim payment on account of costs. The basis for that is that the money to get that money on account from the Defendant would mean that the School would not need to take money out of its reserves, which it would otherwise do; and as your Lordship of course knows, it is a charitable institution, with, therefore, limited funds and limited fund-raising powers. I do not know if my Lord has seen a schedule of costs. Can I hand it up simply illustratively, because of course it was prepared on the assumption, which has not proved correct, there would be a day's hearing - so there is going to have an assessment of costs, I accept that. Equally, as my Lord knows, it is common under the CPR of course to permit an interim account or an interim order on account of costs. So the total that we have got to that your Lordship sees there before VAT was £55,000. Obviously it is going to be something more, given the existence of the proceedings today.

MR JUSTICE JACKSON: This figure is over four times the amount of the Defendant's figure.

MR BÉAR: Yes; and there are a number of reasons for that. The first reason is obviously that the rates at which both solicitors and counsel - in-house being Treasury Solicitor and counsel - charge in respect of Treasury Solicitor work are well below those that are current in the private sector, and that is a consequence of the fact that the Treasury Solicitor is in-house and the Government is able to get a very good rate for members of the Bar who work for it. It is less than half or indeed less than a third of the commercial rate. That is the reality of life.

The other reason for the great discrepancy of course is that we did have a large amount of evidence to put in and nearly all the papers in the bundle are papers that were prepared for us and by us. The Adjudicator, quite properly, limited herself to a pretty brief statement, so the burden was on us to bring these proceedings. Your Lordship observed that they had been done at speed, and I am afraid that comes with a cost.

My Lord, having said that, I am not asking your Lordship to ask to make summary assessment of the overall costs, but I would ask your Lordship to make an order in a significant amount bearing in mind the total of costs.

MR JUSTICE JACKSON: What proportion of your figure are you seeking?

MR BÉAR: My Lord, I would suggest something in the region of £35,000 would be an adequate interim order.

MR JUSTICE JACKSON: Just over half?

MR BÉAR: Just over half. So, in other words, it is not going to put the Treasury out of pocket, and hopefully the parties will come to an agreement thereafter without having to go for summary assessment.

MR JUSTICE JACKSON: Mr Swift?

MR SWIFT: My Lord, there is simply no basis for making an interim order. Firstly, there is no evidence before the court as to Mr Béar's suggestion that the School is in some way impecunious. My Lord, there is simply no evidence, and on that basis no evidential basis for any order.

MR JUSTICE JACKSON: It is the normal order to make, is it not?

MR SWIFT: In my experience certainly in this court, the Administrative Court, it is not. I bow to the greater and more extensive experience of others, but in my own experience it is not a normal order.

MR JUSTICE JACKSON: In litigation outside the Administrative Court it is certainly a normal order, is it not - in the general Queen's Bench division, for example?

MR SWIFT: My Lord, that is something on which I would bow to your experience rather than seeking to rely on my own. But certainly in the Administrative Court not only is not a normal order to make, I have to say to my experience I have never come across a situation where such an order has even been sought. But that, of course, is no reason of itself for not making the order if there are proper grounds.

But the first point is that there are no proper grounds; there is no evidence; there is not a suggestion that in any way this school is in any special position.

My Lord, the second point is in relation to the amount. My Lord has already noted the extravagance of the bill that is put forward on behalf of the Claimant. Counsels' fees alone are greater than the entirety of the Defendant's costs. Now Mr Béar says this is explained by two things: firstly, Government lawyers work on much reduced rates, and secondly, he says, necessarily the Claimant bears the brunt of the preparation costs for any hearing. My Lord, in relation to the first point, that is of course true, but that cannot go anywhere close to explain the extraordinary disparity between the two outline bills that have been made.

My Lord, with regard to the second point, that is of course correct, but we are dealing here with proceedings on an application for judicial review in the Administrative Court. In those circumstances one does not have the possibility of levels of costs ordinarily incurred, for example, in other divisions of the court. In relation to this particular case, we have two bundles of documents, three or, maybe, four relatively short witness statements prepared by the Claimant. Most of the documents, as always, have not been looked at - there have been a handful of core documents that have taken up most of the time.

MR JUSTICE JACKSON: I have done a fair amount of reading around the bundles.

MR SWIFT: Everyone has had to read them. The question is: was it necessary for any of us to be required to do that. I am obviously not doubting my Lord's diligence, and I hope my Lord would not doubt my own either, but it just was not necessary.

My Lord, in any event, on the basis of this skeletal schedule, it simply cannot be said that even half of it will survive a detailed assessment. There is simply not enough information here. We have here in relation to five fee-earners at (inaudible) each - two partners, an assistant, a trainee and an outdoor clerk; in relation to their work, which is necessarily only summarily described in the schedule, one cannot know how much of it was actually justified or necessary as to pass an assessment. In those circumstances, even if you felt as a matter of principle there was a reason for granting some form of interim order my Lord cannot be certain that certainly the amounts sought by Mr Béar would in any event be appropriate.

The starting point, I think, should be a practical one at this stage in the afternoon. One has a bill for £64,000 and one has a bill for £13,000. Now Government lawyers may work on rates that are economic in the public interest, but they are not that economic.

MR JUSTICE JACKSON: This is an application by the 1st Claimants for a payment on account of costs. It is true that orders of this nature are more commonly made in general litigation in the Queen's Bench Division than in the Administrative Court. Nevertheless the 1st Claimant is a charitable body; the 1st Claimant has won the action and is bound to recover a substantial sum by way of costs. It seems to me right in principle that I should make an order for an interim payment on account of costs.

The next question is: how much? It is the case that the bill of costs prepared by the 1st Claimants exceeds the costs incurred by the Defendant by over 400%. Mr Béar makes the point that those lawyers who work in the private sector come more expensive than those who work in the public sector. Mr Béar also makes the point that the Claimants have had the burden of preparing the documentation for the hearing.

Both of the points which Mr Béar makes are valid points. It is a matter of common knowledge that that fees in the private sector are higher than in the public sector. It is almost always the case that the burden has fallen to the claimants to prepare the bundles for this case. I know from past experience that the selection of documents and the preparation of bundles is always more time consuming and arduous than perhaps it appears after the event because those who prepare the documents have to look at a great many things which do not ultimately go into the bundle.

Mr Swift somewhat underestimates the number of witness statements which the Claimants prepared. By my reckoning there were eight witness statements prepared on behalf of the Claimants. I have read all eight. To a greater or lesser extent I think that they have all been relevant to the case. I have referred compendiously to some of the things which the parents and the teachers say; I have done so in the course of my judgment, but I have only been able to do that because of a reading of the statements in greater detail. It was not then necessary to recite them in the course of the judgment as if this were a summing-up to the jury.

So I do accept that Mr Béar has put forward explanations as to why the Claimants' bill of costs is going to end up at a substantially larger sum than the Defendant's bill of costs.

It is common ground that the costs of the 1st Claimants will ultimately have to be assessed if they are not agreed. It is not my function to predict what assessment of costs will ultimately be made by the costs judge who deals with this matter. However, taking into account all of the material before me, I do not think that there is any realistic prospect that the Claimants will recover less than £25,000.

I therefore order the Defendant to pay £25,000 on account of costs to the 1st Claimant's solicitors within 14 days; or is it a bit unseasonal?

MR SWIFT: Probably unseasonal, my Lord.

MR BÉAR: It probably does not matter very much because the 31st December is probably not a day when ...

MR JUSTICE JACKSON: 21 days?

MR SWIFT: 21 days takes us to the end of first week of January. If I may just have a moment? (Instructions taken.) My Lord, I am asked to suggest 28 days. The Christmas season applies not just to the Claimant but also to the Defendant. I am told some people within Government wish to take holidays over Christmas.

MR JUSTICE JACKSON: Yes, I quite agree: 28 days. I am confident that ultimately no prejudice will be suffered by the taxpayer through the making of this interim order.

MR BÉAR: My Lord, that concludes matters. Can I just say on behalf of the parties that your Lordship mentioned the solicitors, the parties and counsel, and can I say that we are very grateful to your Lordship for helping the matter to be resolved so expeditiously.

MR JUSTICE JACKSON: Thank you very much.