Deman, R (on the application of) v Lord Chancellor's Department & Ors

MR JUSTICE ELIAS: I have before me an application for permission for judicial review brought by Mr Deman against the Lord Chancellor, acting as visitor of Bradford University. He also names a second defendant, the University itself.

The background to the matter, if I can summarise it fairly succinctly, is as follows. In 1995 the applicant was accepted onto the PhD programme in Economics at Bradford University. Unfortunately, his thesis was determined not to be of a sufficient standard to qualify for a Doctorate and he was offered a degree of MPhil. He was unhappy with that and appealed through the University procedures, ultimately to the University's Grievance Committee.

In order for the Grievance Committee itself to be able to consider the grievance, it first has to be determined by a Pro-Vice-Chancellor that there is a prima facie case. In this case a whole raft of complaints were initially advanced, but the Pro-Vice-Chancellor concluded in substance that there was only a prima facie case in relation to one of them. He took the view that it was not clear whether there was a prima facie case under ground (d) which was an assertion of prejudice or bias in the refusal to award the PhD. Apparently the Pro-Vice-Chancellor was, at that stage, aware Mr Deman had an allegation of racial harassment that was being separately investigated, so his decision letter said that the appeal should remain on the table for further consideration in the event that further information should come to light during the investigation of the complaint which might cause him to take a different position. The racial harassment complaint was later considered by Professor Alderson. She found that there was no harassment or inequitable treatment compared to other students and rejected the allegations.

The Grievance Committee then considered the allegations in so far as they related to bias and prejudice. Since the Pro-Vice-Chancellor had concluded there was no prima facie case in relation to the other grounds, they had no power under the statutes to determine the matter. I refer to the University's regulations governing appeals by students and, in particular, paragraph 4 which is the regulation for consideration of appeals.

When lodging his application to the visitor, which was done by a letter dated 5th March 2001, the applicant, Mr Deman, set out in some detail the background to the case and he then said this towards the end of his letter:

In the light of that application, the matter was considered by the Lord Chancellor. In his decision he set out the background and said that in essence the investigation was limited to a complaint of prejudice or bias, and concluded that there had been no prima facie grounds to intervene on the basis that this had been established. It is common ground that the courts will not review decisions of a visitor merely because of error of law. In R v Hull University Visitor ex parte Page [1993] AC 682 at page 701, Lord Browne Wilkinson indicated that in general there would be no review merely for error of law. He concluded at page 704 that judicial review would only lie where the visitor had acted outside his jurisdiction in the narrow sense, or abused his powers, or been in breach of the principles of natural justice. By jurisdiction in the narrow sense he meant jurisdiction as it would have been understood before the decision of the House of Lords in the Anisminic case. Broadly, if the decision-maker properly embarks upon a decision, then it will be within its jurisdiction. It would only be, in those circumstances, if there is a clear abuse of power or breach of the principles of natural justice, that the courts could intervene.

Mr Deman submits that there were such errors here. He has pointed to certain matters in the decision of the Lord Chancellor which he says demonstrate that there has not been a proper consideration of his case. He says that to some extent certain factual assertions have been made which are not accurate. For example, he says that there were statements to the effect that at no time prior to the examiner's decision were procedures challenged when, in fact, they were. In the judgment it suggests that Professor Alderson was male whereas, in fact, she is female. There were certain other matters of detail of which he complained.

I am satisfied that as far as those are concerned, none of them could be said to go in a fundamental way to the jurisdiction of the Lord Chancellor, or to constitute such an abuse of power that would entitle the court to intervene. There was, however, one area which did initially concern me and which I examined with particular scrutiny, and it was this. I accept that the arguments advanced by Mr Deman before the Appeal Committee do appear to have covered grounds which go well beyond the mere allegation of bias. It may be that there was some misconception at the time, I know not, between him and the Committee as to the proper jurisdiction which they could exercise. They may have thought some of this material was being advanced because it could have been relevant to the question of prejudice or bias. It seems that Mr Deman believes that they should have considered those complaints independently. I fear that they had no power to do so, for the reasons I have given, under the statute.

Mr Deman submits that in any event, he had indicated that he was upset with the decision of the Pro-Vice-Chancellor and was concerned that his decision had been the result of institutionalised racism. All I can say to that is that no separate grievance was made in respect of that, though he says he did raise the matter with the Vice-Chancellor. Perhaps equally importantly, that was not a ground of complaint before the Lord Chancellor himself in relation to the grievance he had to consider. The Lord Chancellor cannot be blamed for making a determination on the basis of the complaint made to him.

Similarly, some of the matters advanced before the Lord Chancellor himself appear to have gone beyond the scope of a complaint related to prejudice and racial bias. Again, it may be that there is some misunderstanding as to exactly what the Lord Chancellor could properly review, but I am satisfied that he was entitled, indeed bound, to limit his consideration since it was directed to the decision of the Appeal Committee and only to those matters of which the Appeal Committee itself was properly seized. Had the Appeal Committee had the power to determine the other matters raised initially by Mr Deman and had failed to do so, then I would see considerable force in the points he raises because plainly they were not considered by the Lord Chancellor and visitor. However, I do not think that they did, and accordingly it must follow that the Lord Chancellor could not exercise a review of that matter in circumstances where he had been asked to review the decision of the Committee.

That seemed to me to be the most important submission that was made by Mr Deman. He did make certain other observations. He submitted that, for example, the ex parte Page case was not applicable here because that was a matter concerning employment and this is not. He also submitted that his case contained allegations of racial discrimination and those did not. He submitted that this put the visitor's jurisdiction and the power to review it in a different light. I do not accept that. I do not think there is anything which would suggest that such factors affect the jurisdiction of this court to review the visitor.

There is one final matter, then, in respect of the decision of the Lord Chancellor as visitor which I fear reinforces my conclusion that there would be no judicial review here. It is this. In his concluding remarks at paragraph 16, the Lord Chancellor noted that the visitor would not ordinarily accept jurisdiction over a petition where the petitioner had a statutory remedy, even if it was not precisely the same as that offered by the procedure.

In this case there was a remedy before the ordinary courts, relating to the allegation of racial discrimination. That was, indeed, originally pursued but was struck out. Mr Deman tells me it was not struck out on the merits but for other reasons and the merits were never considered. Be that as it may, the question is not whether the merits were or not considered, it is whether there was an alternative procedure available. That was an alternative ground for this decision and on its own it would, in my view, have given a basis on which the Lord Chancellor could properly have rejected this decision. For those reasons, after hearing this matter for some time, I do reject this application.

If I may say so, Mr Deman has put forward a cogent skeleton argument from which he has argued and has put forward his submissions courteously and sensibly, but for the reasons I have set out I do not think it can be said that the Lord Chancellor has erred in this case.

MR STILITZ: My Lord, I have an application for costs in the usual way. We seek costs of the acknowledgment of service. The statement of costs involved in that has been served on Mr Deman. We also do submit that this is one of those hopeless cases where it would be appropriate to order the costs of the permission stage, generally, in that notwithstanding the way Mr Deman has put his case, ultimately it falls foul of Page. He has been aware of the Page decision made last year and has been given a copy of the first hearing. For those reasons we seek not only the costs of the acknowledgment of service but of the permission hearing.

MR JUSTICE ELIAS: You cannot resist the acknowledgment of service, Mr Deman.

MR DEMAN: I cannot. The thing is, he gave a copy of this application and the grounds on which the costs can be asked for. First of all --

MR JUSTICE ELIAS: You accept you have to pay the acknowledgment of service costs? That is the costs of producing the document. It is standard that the defendant always has to pay that unless there is some very powerful reason why not.

MR DEMAN: I have been before the court in the past for a judicial review application and I went to --

MR JUSTICE ELIAS: The rules have changed.

MR DEMAN: At no point of time I was aware Pill LJ or someone told me it was best to go to the terminal. I agree with the right decision. I was successful on race discrimination so I was not aware of those. I thought I am going for judicial review. I think the Legal Service Commission send me a document, what is requiring you to do before you do it. At the time I was not aware.

That is the one thing and the other thing is that, I mean, you heard the argument, it is not a hopeless case. I put together some arguments and therefore I do not think they can argue it was totally without merit. I sought explanation from the other side. If I had counsel it probably would have been put in a better way than what I did. They did not even have the documents so they did not have to read all the papers, except the court did but the only documents they properly had was a couple of pages of the review so they did not do much work. Three or four pages, I think.

MR JUSTICE ELIAS: What I am going to do, I think they are entitled to their costs for the acknowledgment of service. I am not going to order costs in relation to the rest of it. I do not think this is an exceptional case. I think Page is quite a difficult case and I quite understand why it would be quite difficult for Mr Deman to appreciate its implications. I am not going to give more than for the acknowledgment of service.

MR STILITZ: My Lord, I have the statement of costs here.

MR JUSTICE ELIAS: Have you shown that to Mr Deman?

MR STILITZ: Yes, my Lord.

MR JUSTICE ELIAS: You have seen the document here, Mr Deman?

MR DEMAN: Yes.

MR JUSTICE ELIAS: Do you have anything to say about it?

MR DEMAN: I think it is excessive. The other thing is, I think, except the acknowledgment of notice and the skeleton arguments, the counsel's fee for 6.2 hours is very excessive.

MR JUSTICE ELIAS: Yes, I am looking at the acknowledgment of service, Mr Stilitz. I know it often takes some time to prepare; counsel takes time in their client's interest to make sure all possible grounds are put. In substance, at the end of the day in this case, as far as acknowledgment of service is concerned it is relatively straightforward. What I am inclined to do is to reduce this figure overall from a total of £1,726 and to make it a total of £1,000. I think that is fair. I will give you 14 days to pay it. No more than 28.

MR DEMAN: Yes sir. Can I ask you, do I have any scope of appealing?

MR JUSTICE ELIAS: I cannot give you leave to appeal. You can go to the Court of Appeal. If you go to the Court of Appeal, all I can say is that you must appreciate that at this stage the court may be more lenient on costs than they will at the second stage.