Galligan, R (on the application of) v University Of Oxford, Chancellor Masters & Scholars Of [2001] EWHC Admin 965 (22nd November, 2001)

Neutral Citation Number: [2001] EWHC Admin 965 Case No: CO/2588/01 IN THE HIGH COURT OF JUSTICE QUEENS BENCH DIVISION ADMINISTRATIVE COURT Royal Courts of Justice Strand, London, WC2A 2LL 22 November 2001 B e f o r e : THE HONOURABLE MR JUSTICE SCOTT BAKER ____________________ THE QUEEN ON THE APPLICATION ON DENIS JAMES GALLIGAN Claimant - and - THE CHANCELLOR MASTERS AND SCHOLARS OF THE UNIVERSITY OF OXFORD Defendants ____________________ (Transcript of the Handed Down Judgment of Smith Bernal Reporting Limited, 190 Fleet Street London EC4A 2AG Tel No: 020 7421 4040, Fax No: 020 7831 8838 Official Shorthand Writers to the Court) ____________________ Miss J Beale and Mr L Christy (instructed by Pinsent Curtis Biddle) for the Claimants Mr John Cavanagh Q. C. (instructed by Nabarro Nathanson) for the Defendants ____________________ HTML VERSION OF JUDGMENT AS APPROVED BY THE COURT ____________________ Crown Copyright © MR JUSTICE SCOTT BAKER: The Claimant is Professor of Socio-Legal Studies at Oxford University. He is Director of the Centre for Socio-Legal Studies. He seeks judicial review of the decision of the Vice–Chancellor set out in a letter dated 25 May 2001 to appoint an inquiry into events surrounding the exclusion of Dr Dosmukhamedov from the Centre in the Autumn of 2000. The terms of reference for the inquiry (to which I shall return) are set out in the letter of 25 May. The Claimant’s objection is to the inquiry in principle. No one questions the appropriateness of Sir Oliver Popplewell, a retired High Court judge, to conduct it. The Facts By letter of 14 September 2000 the Claimant wrote to Dr Dosmukhamedov saying that in the exercise of his powers under the University Statutes he was excluding him from the Centre for Socio-Legal Studies. The exclusion was of immediate effect and indefinite duration. The letter said: “I have taken this decision after consultation with and on the advice of the Proctors’ office. Your conduct in the period before your recent departure to Malaysia, and since arriving there, is wholly unacceptable and has caused or has threatened to cause serious inconvenience to others at the Centre. Such conduct has consisted in inappropriate actions, encounters, and communications by way of telephone calls, fax messages, and e-mails. This course of action is taken in order to protect the well-being of members of the Centre. I am aware of apprehension within the Centre at the prospect of your return, and I consider that apprehension to be justified. The University has a duty to all members of staff to ensure their well-being, and I as Director of the Centre am responsible for ensuring that such duty is properly discharged.” The letter concluded by telling him he could collect his belongings from the Centre by appointment and that under the Statutes he had a right of appeal to the Proctors. Dr Dosmukhamedov returned from a conference in Malaysia on 16 September 2000 and on that day went to the Centre to collect his personal belongings. Security guards were called and he was removed in what he called a humiliating and un-called for experience. Three days later, on 19 September, he wrote to the Vice-Chancellor setting out a background of ill-feeling with the Claimant, alleging harassment by him and complaining about the fact and circumstances of his exclusion. He expressed concern that his exclusion was undertaken with the approval of the Proctors’ office. He concluded: “After having consulted with my solicitors and the University advisors on harassment, I intend to submit my formal complaint about harassment caused by Professor Galligan. I now seek, however, your help and thus would like to arrange to meet to discuss the situation in more depth.” Dr Dosmukhamedov did appeal against the decision to exclude him and coupled it with a specific complaint about the manner of his departure from the Centre on the morning of Saturday 16 September and allegations about a history of inappropriate conduct by the Claimant. In consequence, on 4 October 2000 the Vice-Chancellor invited Sir Anthony Kenny, one of the Pro-Vice-Chancellors to conduct an inquiry. Ordinarily a matter of this kind would have been dealt with by the Proctors, but this was inappropriate as advice had been sought from their office before the exclusion. Sir Anthony Kenny conducted an inquiry and produced a report. The Vice-Chancellor wrote to the Claimant on 26 October 2000 in the following terms: “I have now received a copy of the report prepared by Sir Anthony Kenny in respect of the mode of exclusion of Dr Dosmukhamedov from the Centre for Socio-Legal Studies on 16 September. You will see that Sir Anthony has concluded that the circumstances did not support the allegation of a violation of human rights and I therefore regard the matter as concluded.” Sir Anthony Kenny said in his report that he saw it as his task to establish three things. 1. What actually happened at the Centre for Socio-Legal Studies on 16 September. 2. Whether the treatment which Dr Dosmukhamedov received on that occasion amounted to inhuman and degrading treatment in violation of his human rights. 3. Whether the complaint merited further action on the part of the University, and if so, what action. Sir Anthony pointed out that in dealing with the complaint about the circumstances of the exclusion he did not have to decide whether the Claimant’s action in excluding Dr Dosmukhamedov was or was not fully justified, albeit he was satisfied it was adequately explained by the Claimant’s fear of physical violence to members of his staff and his feelings of responsibility for their well-being. He concluded that there was no case for instituting disciplinary proceedings against the Claimant but qualified this finding with the words “on the basis of the allegation of violation of human rights”. He said specifically that he did not feel it necessary to form an opinion on the merits of the exclusion itself or to investigate the numerous other complaints which Dr Dosmukhamedov had made against the Claimant or the counter complaints made by the Claimant against Dr Dosmukhamedov except insofar as they were relevant to determining whether the events of 16 September amounted to a violation of human rights. On 25 June 2001, in response to a complaint by the Oxfordshire Racial Equality Council. Sir Anthony explained the reasons for having restricted the inquiry to the circumstances of the exclusion rather than its validity. These were: i) it accorded with the wishes of Dr Dosmukhamedov at the time; ii) the restriction of the inquiry arose naturally from the reason that underlay the Vice-Chancellor’s request to him to conduct such an inquiry; iii) both Dr Dosmukhamedov and the University authorities were anxious for the inquiry to be both prompt and speedy. Dr Dosmukhamedov was far from satisfied with Sir Anthony’s inquiry as his correspondence illustrated. Others within the University began to express concern and what had began as a internal and private dispute entered the public domain. The University issued a press release on 24 November 2000 and on 1 December 2000 the Times Higher Educational Supplement published an article under ‘Whistleblower’ saying that the Claimant had previously been criticised in an internal review for an ‘abrasive management style’ and that a senior Oxford University lawyer was calling for a full external inquiry because the case had worrying implications. Whistleblower returned to the subject in April 2001 pointing out that the Oxfordshire Racial Equality Council had joined Oxford dons in calling for a full inquiry. There was a further article by Whistleblower on 1 June 2001 in which it was said that ‘today’s revelations are likely to increase calls for a full external inquiry,’ but by then the decision had already been taken. Meanwhile the Claimant was not unnaturally concerned about what he regarded as unwarranted attacks upon him and wrote to the University Registrar saying they were causing distress to his colleagues and family. He asked for the University to take action to guard against further damage, in particular for the reasons for the exclusion to be explained in detail in a press statement and for the exclusion decision to be defended. The substantive response came in the form of the decision letter of 25 May 2001 from the Vice-Chancellor. He had considered the matter carefully in the light of the increasing comment and counter-comment in the public media and the damaging adverse publicity. It was in the interests of everybody, including the Claimant and the Socio-Legal Studies Centre that the appropriateness of the exclusion decision should be reviewed and that a senior legal figure, independent of Oxford, should conduct an inquiry. The Vice-Chancellor proposed the following terms of reference: 1. In relation to the exclusion itself, (a) were the circumstances such as to merit the order for exclusion made by the Claimant (b) if not, what action would have been appropriate in the circumstances (c) was an appropriate procedure followed in making the order and carrying it out (d) if inappropriate action was taken, whether any individual bears specific responsibility, and if so, who (e) if so, whether and to what extent, if any, there is evidence to suggest that any individual was motivated by malice or otherwise discriminated against Dr Dosmukhamedov on grounds of race; 2. To consider the actions taken subsequently taken by the University, including the reasonableness of the scope of Sir Anthony Kenny’s inquiry and its conclusions, and reach a view as to whether, and if so to what extent, the actions taken were appropriate in the circumstances. 3. To consider whether the actions taken and/or the options available have revealed flaws in the Statutes and the procedures in the University. 4. To make recommendations in the light of the above. The words “on grounds of race” at the end of paragraph 1 above were subsequently deleted having been included in error. The letter concluded by stating that the person holding the inquiry could approach the University if in his view the terms of reference were insufficiently wide to enable him to reach proper conclusions. Also, it would be made clear that complaints from third parties that had already been the subject matter of concluded disciplinary proceedings would not be reopened by virtue of the inquiry. Four days earlier the Vice-Chancellor had reported the matter to the University Council saying that in the light of all the circumstances of the case, he had determined that it should be referred for an independent investigation. Shortly afterwards Sir Oliver Popplewell was identified as the person to conduct the inquiry. The University Statutes. Title XIV (now XV) Section 1 clause 3 provides: “Any person or body having charge of any land or building of the University, or of any facilities or services provided by or on behalf of the University, or the authorised agent of any such person or body, may exclude from that land or building, or from access to those facilities or services, any person whose actions are such as to cause or to threaten to cause damage to property or inconvenience to other users. A member of the University who is so excluded for a period exceeding two weeks may apply to the Proctors……” This was the power to exclude exercised by the Claimant. The clause goes on to provide machinery for readmission. Title XVII sets out the disciplinary rules relating to academic staff. Clause 14 provides, so far as is material to the present case: “(1) ……..in any case where it is alleged that the conduct or performance of a member of the academic staff may constitute good cause for dismissal or removal from office, a complaint, seeking the institution of charges to be heard by the Visitatorial Board, may be made to the Registrar who shall bring it to the attention of the Vice-Chancellor. (2) To enable the Vice-Chancellor to deal fairly with any complaint brought to his or her attention under sub- clause (1), such investigations or inquiries (if any) shall be instituted as appear to the Vice-Chancellor to be necessary.” 14(3) gives the Vice-Chancellor power to dismiss the complaint summarily or not to proceed further. 14(5) requires the Vice-Chancellor to write to the member of the academic staff concerned inviting comment in writing in the event that he decides to proceed further and paragraph 14(6) sets out his options following receipt of the comments (if any). These are: (a) dismissal of the complaint; (b) reference for consideration under clause 13 (minor faults or conduct that is more serious but falls short of possible good cause for dismissal); (c) dealing with the complaint informally; (d) directing a charge or charges to be preferred for consideration by the Visitorial Board. Clause 15 provides for what is to happen if the Vice-Chancellor directs preferment of a charge and includes formulation of the charge for presentation to the Visitatorial Board and so forth. In his evidence the Vice-Chancellor makes it clear that he did not make his request to Sir Anthony Kenny in pursuance of the University’s disciplinary power. His request to Sir Anthony was made pursuant to his general powers under the standing orders, as was his request to Sir Oliver Popplewell. It was because of the prior involvement of the Proctors that Sir Anthony was asked to conduct the original inquiry rather than the Proctors. The Proctors hold office by virtue of Title IX Section V1 of the Statues and are generally available for consultation by members of the University and are empowered to investigate complaints. General The Claimant objects to the proposed inquiry by Sir Oliver Popplewell. Initially the inquiry was to be held in the week beginning 2 July 2001. Collins J considered the application for permission to apply for judicial review on 29 June 2001 on paper and expressed concern about the Claimant’s assertions of lack of time to prepare for the inquiry and that the inquiry might lead to disciplinary proceedings. He directed an oral hearing and on 4 July 2001 granted permission to apply for judicial review and stayed the inquiry to the extent of paragraph 1 of the terms of reference. This in practical terms was the same as staying the whole inquiry because the inquiry could not realistically proceed on paragraphs 2,3 and 4 alone. The thrust of the Claimant’s present complaint is that to proceed with the Popplewell inquiry would place him at risk of disciplinary proceedings and that the matter cannot now be reopened following the Vice-Chancellor’s assurance on 26 October 2000 that the matter was concluded. Dr Dosmukhamedov has been served as an interested party. He has filed an acknowledgment of service but did not attend the hearing before me. His position appears to be that he agrees with the Popplewell inquiry taking place but proposes to take no part in it. Is the dispute amenable to judicial review? It is conceded that this dispute concerns a public law matter because Oxford University is exercising powers given to it under its statues which are made under the Oxford and Cambridge Act 1923. Oxford and Cambridge Universities are different from other universities where disputes of this nature would be likely to be resolved by the visitor without interference by the courts. However, Mr Cavanagh Q. C. for the University, points out that while the case has a public law element the Court should be slow to intervene where the dispute is in reality one that arises out of an employment relationship. In such a case the Administrative Court should exercise public law jurisdiction with caution. This is not, I emphasise, a merits review. The question is whether the course proposed by the University is lawful. I was referred to R v British Broadcasting Corporation ex parte Lavelle [1983] 1WLR 23 where an employee of the BBC was refused judicial review in respect of a decision to dismiss her. Woolf J (as he then was) said at 39B: “……..it seems to me that while the court must have jurisdiction to intervene to prevent a serious injustice occurring, it will only do so in very clear cases in which the applicant can show that there is a real danger and not merely a notional danger that there would be a miscarriage of justice in the criminal proceedings if the court did not intervene.” The present case does not, of course, involve criminal proceedings but there are similarities. Mr Cavanagh submits that the fact that this is really an employment dispute is relevant for two reasons. First, and most importantly, it affects the level of judicial scrutiny. Secondly it is relevant to the Court’s discretion whether to grant relief. Following the approach of Woolf J in Lavelle (see 39 G – 40C) the Court should only intervene if there is a real risk of a miscarriage of justice were it not to do so. A not entirely dissimilar situation arose in R v Civil Service Appeal Board ex parte Bruce [1988] I. C. R 649. May L. J, with whom Roch J agreed, said at 660D: “I think that at the present time in at least the great majority of cases involving disputes about the dismissal of an employee by his employer, the most appropriate forum for their resolution is an industrial tribunal (now of course an employment tribunal). The Courts should not be astute to hold that any particular dispute is appropriate for consideration under the judicial review procedure.” In the present case the possibility of disciplinary proceedings, let alone dismissal, is some way down the line. The Claimant hopes and expects he will come out of the Popplewell inquiry with flying colours. The fact that there is a possibility, and it can be put no higher than that, that he could become the subject of disciplinary proceedings in consequence of the inquiry’s findings is no good reason for prohibiting the Popplewell inquiry form taking place at all. In R (Daly) v Secretary for the Home Department [2001] 2 WLR 1622 the House of Lords emphasised that the intensity of review in a public law case depends on the subject matter in hand. In law, context is everything. See 1636C. The present case does not involve fundamental rights or human rights. The question is whether the decision to hold the Popplewell inquiry is lawful and whether it can be assailed on natural justice or traditional Wednesbury grounds. Jurisdiction to hold the Popplewell inquiry The Proctors have power to investigate complaints (Statutes IX VI.3). Accordingly, complaints do not have to be investigated by statutes XVII 14 and not otherwise. The Proctors could not do so in the present case because they had already been involved. That is why Sir Anthony Kenny was asked. The Vice-Chancellor made this clear to Dr Dosmukhamedov in his letter of 4 October 2000 and Sir Anthony picked up the very same point in his report. There is no doubt that the Vice-Chancellor had power to ask Sir Anthony (see Title IV 1 and 4 and Standing Orders paragraph 13). As to the Popplewell inquiry, the Council specifically supported the Vice-Chancellor’s action in setting it up (see minutes of Council meeting held on 21 May 2001) albeit he did not have to consult the Council. It is also in my view important to look at the terms of Dr Dosmukhamedov’s initiating letter of 19 September 2000, particularly the last paragraph. Mr Cavanagh submits, and I agree, that this was not a complaint triggering investigation. Dr Dosmukhamedov was speaking of what he would do in the future: “After having consulted with my solicitor and the University advisors on harassment, I intend to submit my formal complaint about harassment caused by Professor Galligan. I now seek, however, your help and thus would like to arrange to meet to discuss the situation in more depth.” As can be seen from his letter of 29 September 2000, immediately before the Kenny inquiry Dr Dosmukhamedov was focusing on the exclusion rather than his differences with the Claimant. In arranging for both the Kenny and Popplewell inquiries it seems to me plain that the Vice-Chancellor was exercising his general delegated powers rather than the powers under the disciplinary statutes. But, as Mr Cavanagh pointed out, even if he was acting under Title XVII there was nothing within it to prevent the Vice-Chancellor from arranging for two investigations into aspects of the same matter. It is necessary to look for a moment at how Title XVII operates. An initiating complaint is made to the Registrar who is required to bring it to the attention of the Vice-Chancellor. This did not happen in this case and it seems to me clear therefore that the decisions to arrange the inquiries were not made under Title XVII clause 14 but under the Vice-chancellor’s general powers. The Vice-Chancellor did not think he was acting under Title XVII and in my judgment it is demonstrably clear that he was not. It is true that Dr Dosmukhamedov said that the Claimant had no right to occupy his position (see his letter of 27 September 2000 to the senior Proctor) but this was in a context for a request for further information so that the Claimant could be “reported to the authorities” i.e. those who protect freedom guaranteed by national legislation. It was not said in the context of a complaint seeking disciplinary action under clause 14 of Title XVII. As his letter of 14 May 2001 makes clear, Dr Dosmukhamedov was refusing to make use of the University’s Statutes. The thrust of his complaint, as it crystallised before Sir Anthony, was directed against the University rather than the Claimant. Miss Beale, for the Claimant relied on a statement to the Vice-Chancellor in a letter from Dr Dosmukhamedov dated 7 October 2000, just after he had been notified of the inquiry. The statement asked the Vice-Chancellor to remove the Claimant from the University for a whole host of different reasons and, says Miss Beale, that letter was available to the Vice-Chancellor. But earlier in the letter the Claimant had said: “….the case can no longer be considered as a regular disciplinary matter involving a dispute between two individuals of the University.” In my judgment it is plain beyond doubt that in setting up the Kenny inquiry the Vice-Chancellor was not exercising powers under Title XVII. Turning to the Popplewell inquiry, the Vice-Chancellor sets out the background as seen through his eyes in his evidence. Following his letter of 26 October 2000, there were detailed and robust complaints from Dr Dosmukhamedov which ranged over a number of matters concerning events at the Centre and raising matters against the Claimant. Some had not previously been raised. The complaints were directed not just to the Vice-Chancellor and Sir Anthony Kenny but also to others. In a letter dated 17 November 2000 he told the Vice-Chancellor he was “forced to announce a hunger strike because I am convinced you are not the right person to head the oldest of British academic institutions”. About the same time the media approached the University for public comment. Articles appeared in the Times Higher Education Supplement. All the offers made to Dr Dosmukhamedov to investigate his complaints internally were rejected in terms which made it clear that he believed he had suffered at the hands of the University. Through the winter and spring all efforts to resolve the matter failed. Dr Dosmukhamedov consulted the Oxford Racial Equality Council (a body supported by the University). They took up the cudgels on his behalf and expressed some concern about the power of exclusion in Title XIV clause 3. There were also detailed representations from a senior member of the law faculty who recommended an independent inquiry chaired by leading counsel. The Vice-Chancellor also learned that current members of the Centre (including junior and visiting members) were being drawn into the dispute and that some form of petition or letter was being circulated within the Centre. There were representations of an uncompromising nature on behalf of Dr Dosmukhamedov and the Claimant. Both seemed intent on a public debate about the latter’s decision to exclude the former and about their relations generally. It also appeared that each party was engaged with organs of the media seeking to put forward their own view of the matter. I should add, however, that I have not seen any evidence other than from the Vice-Chancellor that the Claimant was engaged with organs of the media. The dispute had broadened. What may have seemed to many to have began as a storm in a teacup was quickly reaching hurricane force. In this context the Vice-Chancellor says this: “I considered very carefully my responsibilities in this matter. It seemed to me that Oxford was under a clear duty to its members which included both Dr Dosmukhamedov and the Claimant. The former remained deeply aggrieved about his treatment by the latter and what he saw has Oxford’s failure to deal with his complaints. As for the Claimant, it was clearly an embarrassment for him that his disciplinary record should be made a matter of public comment and I was also concerned about increasing evidence of some turmoil and adverse affect on morale at the centre. For instance, the continuing public comment and conjecture about these matters had already threatened to draw in another member of the Centre about whom public comment threatened, and I have previously referred to a petition or circular that was circulating within the Centre itself. At this time I received further cogent representations criticising the current state of affairs from another senior member of the Law Faculty, Professor (he is not in fact a Professor) Eekelaar, which pointed to deficiencies of the current position. Thus it seemed to me that the interests of Oxford both in relation to good management and also its good name were clearly at issue as was our interest in ensuring that the Centre was not disrupted, as well as the particular concerns of the two individuals principally concerned, Dr Dosmukhamedov and the Claimant. Having carefully considered all of this, and having also taken professional advice, I concluded that it would be best if I were to institute a further and new inquiry not limited to those matters which Sir Anthony Kenny had considered bringing within its scope all of the various concerns that were now raised including indeed the ambit of Oxford’s Statutes on the power to exclude which had been the subject of criticism during these events.” The problems were not going to disappear by doing nothing. The Vice-Chancellor says his main aim in arranging the Popplewell inquiry was (a) to bring about some resolution of the difficulties between the Claimant and Dr Dosmukhamedov, between the two of them and the University as well as those affecting the centre and (b) to learn the lesson that should be learned by the University from the affair. The Vice-Chancellor points out that Dr Dosmukhamedov had been reminded on a number of occasions of his right to appeal against his exclusion to the Proctors and to bring forward any other complaint he had. The Proctors could have conducted a general investigation albeit it is understandable why Dr Dosmukhamedov was not prepared to avail himself of it. What was the Vice-Chancellor to do? He had to consider what was the right course of action for the University and for everyone else involved. He had a variety of different interests to consider. He says that after careful consideration and advice he decided the University should initiate its own investigation by someone who was both independent of the University and respected and that the investigation should cover various different issues that had emerged. As he points out, these included the University’s own Statutes and procedures. It is to be observed that in his letter of 31 May 2001, responding to the Vice-Chancellor’s notification that he proposed an inquiry, despite the many concerns he expressed, the Claimant said it was understandable that the University should wish to examine Title IX to determine whether the powers available to directors and heads of department should be more clearly defined and that he welcomed such an inquiry. Also, the Claimant has, through his solicitors, told the Vice-Chancellor that he intends to ask Sir Oliver whether the Vice-Chancellor’s decisions concerning the Claimant and his actions in relation to all the aspects of the matter have been fair, appropriate and in accordance with the Claimant’s rights and interests as a professor and officer of the University. The Vice-Chancellor’s own decisions are therefore likely to be the subject of close scrutiny. In my judgment the Vice-Chancellor’s decision was both permissible in law under his general powers (as opposed to Title XVII) and, in the circumstances entirely understandable. Indeed it is difficult to see what other course of action he could sensibly have taken. I turn therefore to consider whether the setting up of such an inquiry can be said in any way to amount to a manifest breach of natural justice to the Claimant. The central thrust of the complaint is that Professor Galligan should not be put for a second time in jeopardy of disciplinary proceedings in respect of the same event. To this there are several answers. The Kenny inquiry was not and the Popplewell inquiry will not be investigations or inquiries within clause 14(1) of Title XVII. At worst, from the Claimant’s point of view, the Popplewell inquiry might lead to a complaint to the Registrar under clause 14(2). However in that event the Claimant would have all the protections afforded by clause 14. The Kenny inquiry did not in any event place the Claimant in jeopardy of disciplinary proceedings. It never led to a complaint under clause 14(1) or the recommendation of such. The ambit of the two inquiries is different. The Kenny inquiry was concerned essentially with the circumstances of the exclusion from the Centre. The terms of reference of the Popplewell inquiry are much wider. The terms of reference of the Popplewell inquiry make no reference to the possibility of disciplinary action. The inquiry is not a disciplinary process and while the possibility of a recommendation of disciplinary action against the Claimant, or indeed anyone else, cannot be ruled out that is no doubt true of any inquiries of a similar nature whose purpose is to establish facts and make recommendations. It is premature to speculate on what might or might not happen after the Popplewell inquiry. Any unfair jeopardy to the Claimant should be dealt with if it arises. Quite apart from the Popplewell inquiry the Claimant, like any other member of the academic staff, is always vulnerable to a complaint about his conduct or performance. Preventing the Popplewell inquiry from proceeding will not bring down the curtain against another complaint. I accept that the Claimant’s submission that the rules about autrefois acquit/convict in criminal proceedings and res judicata in civil law have underlying considerations of basic fairness. But this case does not fall within or even near either rule. Failure to consult the Claimant The Claimant submits it was a requirement of basic fairness to consult him before deciding to set up the Popplewell inquiry. This allegation was not in the original grounds but has been added by amendment. The Claimant had made his position clear in his letter to the Registrar of 14 May 2001. After he was told of the proposed inquiry and its terms of reference he replied on 31 May saying he intended to respond fully to the proposal and comment on the terms of reference. He welcomed the inquiry insofar as it related to powers of exclusion under Title IX. Considerable correspondence followed. There was no injustice to the Claimant in failing to consult him about the Popplewell inquiry before setting it up. In any event it is clear that the decision to set up the inquiry would have been no different. Legitimate expectation The Claimant submits that the decision to hold the Popplewell inquiry is in breach of his legitimate expectation that no further inquiry into his conduct in excluding Dr Dosmukhamedov from the Centre on 16 September 2000, would be conducted. It is argued that this expectation was created by the report of Sir Anthony Kenny and the Vice-Chancellor’s covering letter of 26 October 2000 enclosing a copy of the report. This claim arises by way of amendment during the course of the hearing. Despite Miss Beale’s submission to the contrary, it seems to me clear that what is alleged is the breach of a substantive expectation rather than a mere procedural one. The Claimant says that Defendants are prohibited from doing what they wish to do. As the Court of Appeal pointed out in R (on the application of Bibi) v London Borough of Newham [2001] EWCA CIV 607 in paragraph 19, in all legitimate expectation cases, whether substantive or procedural, three practical questions arise. The first question is to what has the public authority, whether by practice or by promise, committed itself; the second is whether the authority has acted or proposes to act unlawfully in relation to its commitment; the third is what the court should do. In asking the question to what has the University committed itself, it must be kept in mind that any representation for the purposes of legitimate expectation must be clear and unequivocal. Where the court is left in doubt about the nature of the representation the claim does not get to first base. The highest that the Claimant can put his case is on the basis of the final sentence in the Vice-Chancellor’s letter of 26 October 2000: “You will see that Sir Anthony has concluded that the circumstances did not support the allegation of a violation of human rights and I therefore regard the matter as concluded.” Miss Beale relies very strongly on the concluding words that the Vice-Chancellor regards the matter as concluded. But the expression must be looked at in context. The Kenny report itself makes no representation about what may or may not happen in the future, but it does make clear the limited nature of the inquiry that was conducted. Sir Anthony concentrated on the circumstances of the exclusion rather than the history that lead to the order for exclusion. In my judgment the concluding words of the Vice-Chancellor’s last sentence should be read, or at the very least should arguably be read, in the context of the opening words of the sentence and indeed of the whole Kenny report. I cannot read into these words a clear and unequivocal representation that there would be no further inquiry into the Claimant’s conduct in excluding Dr Dosmukhamedov. To me, the most natural reading of the letter 26 October 2000 is that the Vice-Chancellor regards the violation of human rights issue as closed. In the course of argument I pressed Miss Beale on a number of occasions to formulate with precision the representation she was relying on. The difficulty she had in doing so in my judgment emphasises the weakness of this aspect of her case. Her first formulation was: “Whatever happens, there will be no further investigation into your conduct that lead to Dr Dosmukhamedov’s removal.” Overnight she amended this to: “An assurance that no further inquiry with possible disciplinary consequences would be made into the Claimant’s conduct in excluding Dr Dosmukhamedov.” I am unable to find a representation of either nature in the evidence. There was no promise of any nature. It is therefore strictly speaking unnecessary for me to go any further to consider whether the University proposes to act unlawfully in relation to a commitment and if so what the court should do. Suffice it to say that the Vice-Chancellor had well in mind that the Kenny inquiry had already taken place and he had, as I have set out, compelling reasons for setting up the Popplewell inquiry. These factors coupled with the Claimant’s difficulty in establishing detrimental reliance on any representation suggests he would have substantial further hurdles in overcoming the second and third questions posed by Schiemann L. J. in Bibi . The Claimants Costs of the Popplewell inquiry The Claimant’s final point is that the University has refused to pay his costs of the Popplewell inquiry and that this is unreasonable and unfair because he has already been subjected to the Kenny inquiry into the same matter. It seems to me that this is a matter entirely within the discretion of the University. A number of people have been invited to make submissions to the Popplewell inquiry. There is no obligation, to which I have been referred, upon the University to pay anyone’s costs. There is no basis for categorising the decision not pay the Claimant’s costs as irrational or unreasonable in the Wednesbury sense. Nor in my view is there any breach of natural justice. It is wrong for the Claimant to allege his career is at stake from the Popplewell inquiry. The terms of reference do not permit Sir Oliver to take action against him or anyone else. Conclusion 1. Neither the inquiry by Sir Anthony Kenny, nor that proposed to be conducted by Sir Oliver Popplewell, is a disciplinary inquiry under Title XVII of the University Statutes. 2. Each inquiry was lawfully set up pursuant to the Vice-Chancellor’s wide powers to look after the interests of the University. 3. There is no basis for the Claimant’s contention that it is a breach of natural justice to him for there to be a further inquiry. The terms of reference for the Popplewell inquiry are wider those of the Kenny inquiry and in setting it up the Vice-Chancellor was entitled to have in mind broader considerations than the interests of the Claimant and Dr Dosmukhamedov. 4. No claim for breach of legitimate expectation is made out. There was in law no legitimate expectation. 5. The University is entitled to decline to pay the Claimant’s costs of the Popplewell inquiry. 6. Although the decision to hold the Popplewell inquiry is, as is conceded by the Defendants, amenable to judicial review, the Court should be very slow to intervene in a matter arising out of an employment dispute and involving the management of the University. 7. The claim for judicial review is not made out on any of the grounds alleged and therefore fails. - - - - - - - - - - MR JUSTICE SCOTT BAKER: For the reasons given in the judgment that has been handed down, this application fails. Mr Cavanagh, I am sorry that you have had a draft that had a number of typing errors, both sides have, but I appreciate that the parties were anxious to have this judgment as soon as possible, and I want to hand it down today rather than leave it for some time. MR CAVANAGH QC: My Lord, we are extremely grateful for the speed with which the judgment has been drafted. May I, however, just point out to your Lordship something which is on the cover page. My instructing solicitor's name has been very slightly misspelled, for what it is worth. MR JUSTICE SCOTT BAKER: That has been drawn to our attention, and a number of corrections are in the process of going through the computer at the moment. MR CAVANAGH QC: I am extremely grateful. MR JUSTICE SCOTT BAKER: So a corrected copy will be handed down. MR CAVANAGH QC: My Lord, in that case, may I just deal with the issues of costs. MR JUSTICE SCOTT BAKER: Yes. MR CAVANAGH QC: Before Collins J the order was costs in the application, and I ask, on behalf of the University, for costs both of the permission application and of course of the application before your Lordship, on the standard basis, to go for a detailed assessment. MR JUSTICE SCOTT BAKER: Yes. Miss Beale? MR CAVANAGH QC: My Lord, may I just first say we are very grateful to your Lordship for producing the judgment so quickly. My learned friend Mr Christy has produced a list of what they are, mostly typing errors, and I do not know whether that would assist. MR JUSTICE SCOTT BAKER: My clerk has seen those, and they are all in the process of being corrected. MISS BEALE: Very well, thank you. My Lord, we would resist an order for costs or seek an order that the claimant pay only a proportion of the defendants' costs on the standard basis. Your Lordship has held that this is a dispute of an employer/employee nature, and there is a huge, of course, inequality of resources. Naturally, the claimant was perfectly well aware of that all along. But nevertheless, it is a fact. The claimant was exonerated by Sir Anthony Kenny. The Popplewell inquiry was instituted without qualification, and no proper reasons were given for it until the Vice-Chancellor's statement of 8th August. My Lord, the claimant is now faced with the public inquiry and has to defend himself again at his own cost. He submits that that is penalty enough, and we would ask your Lordship, in his discretion, not to impose a huge costs burden on the claimant. I do not think I can take that any further. MR JUSTICE SCOTT BAKER: I cannot see any reason why the claimant should not pay the costs on a standard basis throughout. MISS BEALE: My Lord, in those circumstances, may I ask your Lordship for permission to appeal. Your Lordship has taken a very firm view in favour of the defendants on the core issues arising in this case. But, my Lord, permission was granted by Collins J, and he expressed concern whether the Popplewell inquiry was proper, if it might lead to disciplinary proceedings. He granted permission after an inter partes hearing. My Lord, I anticipate that if Collins J had taken the same view of the issues raised as your Lordship, he would not have granted permission. So, my Lord -- MR JUSTICE SCOTT BAKER: I suppose the other side of that coin is that if I had been the judge dealing with permission, I might not have granted permission. MISS BEALE: No, my Lord, that is the point I am making. But what I am saying is that there may be another perfectly respectable view, and of course the Popplewell inquiry may lead to disciplinary proceedings, though naturally the claimant hopes that it will not. There is the point about interpretation of the University statutes. The legitimate expectation point is -- that is a developing area of the law, and of course the issue of the basic natural justice of being inquired into twice with possible disciplinary proceedings still to come. So, my Lord, I would ask your Lordship for permission to appeal. MR JUSTICE SCOTT BAKER: Mr Cavanagh? MR CAVANAGH QC: My Lord, with respect to my learned friend, this case does not raise any novel or difficult issues of public law. Your Lordship has resolved this case in every particular in favour of the defendants, and in my respectful submission there are no grounds for an appeal. MR JUSTICE SCOTT BAKER: I do not think there is any great issue of principle here or any other reason why permission to appeal should be granted, so I think you will have to go to the Court of Appeal to get permission. © 2001 Crown Copyright BAILII: Copyright Policy | Disclaimers | Privacy Policy | Feedback | Donate to BAILII