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You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Nash, R (on the application of) v Chelsea College Of Art & Design [2001] EWHC Admin 538 (11th July, 2001) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2001/538.html Cite as: [2001] EWHC Admin 538 |
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Case No: CO/3569/2001
Neutral Citation Number: [2001] EWHC Admin 538
IN THE HIGH COURT OF JUSTICE
QUEENS BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Wednesday 11th July 2001
THE HONOURABLE MR JUSTICE STANLEY BURNTON
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ALLETTA NASH |
Claimant | |
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CHELSEA COLLEGE OF ART AND DESIGN |
Defendant |
(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)
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Gregory Jones (instructed by Teacher Stern Selby) for the Claimant
Rupert Warren (instructed by Kingsley Napley) for the Defendant
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As Approved by the Court
The proceedings of the Academic Committee and subsequent correspondence
"Notwithstanding these inconsistencies, the Committee concluded that there had been no material irregularity in the conduct or decision of the Board of Examiners on 19 April 1999. Consequently, your appeal is not upheld and in accordance with paragraph 8.3 of chapter 6 of the Academic Affairs handbook, and that is the final decision of the College."
7. Paragraph 8.3 of the handbook was as follows:
"Unless the Academic Committee or the Academic Board believes that there has been a material irregularity, the reconsidered decision of the Board of Examiners or a committee which it has established under paragraph 4.8 above, shall be final."
8. There was some discussion before me as to whether the letter of 30 June 2000 was to be regarded as having been sent with the authority of the Academic Committee. Mr Warren, for the College, did not suggest that it was not authorised by the Committee, and Mr Jones, for Ms Nash, relied on the letter in support of his case that no proper reasons had been given. In practice, and to some extent for forensic reasons, there was no issue between them on this point.
9. However, the letter did not give any reasons for the Committee's rejection of Ms Nash's substantive case. Indeed, it gave the impression that the only matters considered by the Committee to constitute possible irregularities in the proceedings of the Board of Examiners were those purely documentary matters referred to in the letter. As a result, she returned to her solicitors, who in their letter to the College of 31 August 2000 stated:
".... despite the detailed arguments which were raised and discussed before the panel, the appeal was rejected for no obvious or stated reasons.
...
Subject to your response to this letter, a copy of which we are also ending to your Solicitors, we are instructed to issue the application for Judicial Review 7 days after the date of this letter."
10. The impression I have from this letter is that Ms Nash's solicitors, very sensibly, were giving the College an opportunity to explain the decision of the Academic Committee before issuing further legal proceedings. The reply came from the College's solicitors, Kingsley Napley. In their letter of 7 September 2000, they stated:
"The Committee found that there were a number of inconsistencies, as set out in the letter, but that none constituted a material irregularity. Your client and/or you may disagree with that conclusion, but the decision was for the Committee alone."
11. This letter repeated that the only matters considered and by the Committee were the inconsistencies in the records of the Board of Examiners, and that it was the immateriality of those inconsistencies that led to the rejection of Ms Nash's appeal.
12. Kingsley Napley's letter invited Ms Nash's solicitors to submit their judicial review proceedings to them in draft for their and their client to consider. Ms Nash's solicitors, Teacher Stern Selby, immediately complied with this request. Possibly because of the long academic vacation, no response had been received by 28 September 2000. Ms Nash's solicitors were concerned that their client's proceedings might be barred if they delayed beyond the time stipulated by Part 54.5 of the CPR, and they filed her claim form on the following day, having informed the College's solicitors of their action and the reason for it. It is nonetheless evident from the subsequent correspondence that the parties' solicitors had been discussing the possibility of the Academic Committee supplementing the reasons given for its decision.
13. Only 3 days later, on 3 October 2000, Mr Cina, the Head of the College, sent a letter to Ms Nash containing reasons for the rejection of the substantive matters which she had alleged had constituted material irregularities in the proceedings of the Board of Examiners. The letter was clearly written on legal advice and, I can assume, was drafted with the help of the College's lawyers. Mr Cina stated that he had consulted at length with the acting Chairman and the Clerk to the Academic Committee; that the Committee had addressed itself to all the material before it, including Ms Nash's documents, and that:
"All of the oral evidence and all of those documents were examined in detail in order to decide whether the Board of Examiners's decision was flawed by material irregularity."
14. The letter asserted that there was no duty on the College to give reasons for the decision of the Academic Committee, but that:
"Nevertheless, to allay any feeling of injustice that you may have, I deal in the rest of this letter with the Academic Committee's consideration of the principal matters which you raise in your proposed further Judicial Review permission application."
15. The letter then set out the reasons why what were apparently regarded as the principal matters relied upon by Ms Nash had been rejected by the Committee. I shall have to consider those reasons later in this judgment; but for the present I must complete my account of the course of events.
16. Ms Nash's solicitors responded to Mr Cina's letter initially by letter dated 18 October 2000. They stated:
"We should ... mention that the letter (of 3 October 2000) was not quite what we had anticipated. We had understood from our discussions with you that the Committee were proposing to enlarge upon the reasons given in their decision letter. Instead, what was received was a letter from the Head of the College who was not a participant in the appeal and we assume not a privy or party to the appeal which we would respectfully suggest did not take matters forward."
17. Ms Nash's solicitors responded more fully by letter dated 9 November 2000 (p786):
"... we had understood that you were seeking to obtain clarification or expansion from the Appeal Committee of its reasons. We did not understand your suggestion as an opportunity for the Committee to give further consideration to the appeal, still less for Mr Cina, who was not a member of the Committee, to write making what amounts to no more than submissions on the merits of the proceedings for Judicial Review. Indeed, Mr Cina, as someone with prior involvement, was expressly excluded from the membership of the Appeal Committee.
It also appears from the style and content of the letter that it was drafted upon legal advice. Please confirm the provenance of this letter.
We note that Mr Cina states that he has consulted at length with both the acting Chair and the Clerk to the Committee. The letter does not make clear the result of that consultation or the source of particular assertions. The Clerk of the Committee was not a member of the Committee and is not able to speak for its members. We would suggest that neither the acting Chair nor the Clerk can say what was in the minds of the members of the Committee.
In any event, any further "evidence" by way of statements following the Committee's decision would clearly amount to ex post facto reasoning. We would object to the admissibility of such statements on the grounds that it falls outside the narrow exceptions permitted by the Court (see e.g. R v Westminster City Council, ex p Ermakov [1996] 2 All ER 302 at 315g-315h recently approved by Gage J. and in R v Southwark L.B.C ex p Glen International, 31 October 2000)."
18. The College's solicitors replied by letter dated 8 December 2000:
"We note what you say in relation to the letter of 3 October 2000. It was sent to Ms Nash because it was a fuller statement of the reasons given in the original decision of the Appeal Committee, and therefore it seemed entirely appropriate to send direct to Ms Nash. However, we shall in future communicate with you on this matter since you so request.
We fear that you have misunderstood the meaning and purpose of Mr Cina's letter. First it was signed by Mr Cina because for speed and ease of communication, the Appeal Committee's reasons were sent to Ms Nash through him. He was effectively acting as administrative assistant to the Appeal Secretary for this purpose. We stress (and Mr Cina and other will lodge evidence with the Court to this effect if our explanation continues to trouble you) that Mr Cina played no part in the re-consideration of the decision.
Second, the letter does not seek to make submissions on the merits of the proposed judicial review application. It gives a fuller account of the original reasons. If the Appeal Committee approached the matter in a rather more formal way than normal it can hardly be blamed given the way your client has responded to the exercise of reviewing her Stage 2 results. It would also be somewhat surprising if it was a ground of complaint that the College had taken legal advice during the recent re-hearing and upon receipt of your client's proposed judicial review application.
Third, the clerk to the Appeal Committee, for the avoidance of doubt, was neither a participant in the review decision nor its interpreter."
The letter also took issue with Ms Nash's solicitors' reliance on ex parte Ermakov, another matter that I shall have to address below.
19. On 1 February 2001, Clive Nicholls, the Dean of the School of Design at the College, and who had been the chairman of the Academic Committee that had reconsidered Ms Nash's appeal, signed a witness statement in support of the College's position. He stated:
"On 20 and 26 June 2000, I was Chairman of the College's Academic Committee which reconsidered the appeal made by Ms Nash. At the conclusion of the appeal Committee's deliberations, once its decision had been made, I assisted Ms Louise Ratcliffe, the clerk to the College Academic Committee, with the drafting of the letter of 30 June 2000 to Ms Nash. I approved its terms.
In late September 2000, I was notified by Colin Cina that the Academic Committee's decision should be set out in further detail. I met Mr Cina to ensure that the second statement of reasons for the Academic Committee's decision were correct and full. I discussed with Mr Cina the terms of the letter.
Purely as a matter of administrative convenience, Mr Cina took charge of the production of the actual letter to be put in the post after our discussion. I was shown the final version and I approved it before it was sent out to Ms Nash on 3 October 2000.
I have seen the exchange of correspondence of 18 October 2000, 9 November 2000 and 8 December 2000. It is correct to say that the letter to Ms Nash of 3 October 2000 represented the terms of the Academic Committee's decision accurately and fully. The contents of the letter to Teacher Stern Selby of 8 December 2000 are correct."
The issues
20. The principal issues that have been argued before me concern the status of Mr Cina's letter of 3 October 2000 and of Mr Nicholls' witness statement, and the correct approach of the Court to the letter and to Mr Nicholls' evidence. Mr Jones, for Ms Nash, also raises questions as to the contents of the letter, but I regard them as less important than the question of principle raised by him. In essence, he submits that:
(i) The Academic Committee was obliged to give reasons for its decision.
(ii) It purported to do so in its letter of 30 June 2000. The reasons given in that letter were insufficient and inappropriate and justify the quashing of the Academic Committee's decision.
(iii) The letter dated 3 October 2000 should not be regarded as providing the reasons for the Academic Committee's decision. Its author, Mr Cina, was not a member of the Committee; its contents had not been discussed with all of the members of the Committee or approved by them; and having come into existence substantially after the letter of 30 June, and being inconsistent with it, and having been produced with the assistance of the College's lawyers, it should be regarded as ex post facto reasoning and rejected by the Court.
(iv) Mr Nicholls' witness statement did not take matters further. It did not evidence that he had discussed the letter with the other members of the Committee or that he had been authorised by them to give the Committee's reasons, or that he had consulted the record of the deliberations of the Academic Committee.
(v) As chairman, Mr Nicholls had no authority to give the reasons for the Committee's decision on behalf of the whole Committee.
21. Mr Warren's submissions, unsurprisingly, were the opposite of Mr Jones's.
Should the letter of 3 October 2000 be accepted as giving reasons for the decision of the Academic Committee?
22. I do not think that I have to decide whether the Academic Committee was under a duty to give reasons for its decision. Reasons were given, either in the letter of 30 June or in that of 3 October 2000 or both. If the reasons given in the later letter were defective, even though they may not have been shared by all of the Committee, the fact that the chairman gave incorrect or inadequate reasons would, in my judgment, justify the quashing of the Committee's decision. The wording of the regulations of the College do not indicate that reasons are to be given in the comparable case of a first appeal against the decision of a Board of Examiners, unless the appeal has been successful, in which case the reasons have to be "re-iterated" by the Appeals Sub-Committee, presumably so that the Board of Examiners know where they went wrong or are aware of the matters that should be taken into account on the reassessment but were not taken into account on the original assessment. Against this, the subject matter of a second appeal, namely an allegation of material irregularity, is sufficiently serious to indicate an obligation to give reasons, and the general formality of the procedures laid down by the regulations, would indicate that there should be an obligation to give reasons.
23. The real question in this case is whether the Court should accept the reasons that have been given in the letter of 3 October 2000 and referred to by Mr Nicholls in his witness statement as the reasons of the Committee for its decision, and thereby satisfying any obligation to give reasons, and if not what remedy should be granted by the Court.
24. It is convenient first to deal with the authority of the chairman of the Academic Committee. The College Regulations do not specify his functions or authority, and I have not been referred to any authority dealing expressly with the implied powers of a chairman of such a committee, other than the decision of Elias J in the first judicial review proceedings between the present parties.
25. In the absence of express or implied provision conferring additional authority on a chairman, his function is to ensure the proper conduct of the meeting of a committee. As Elias J held, he has no authority to decide what evidence is to go before the committee, or what issues it is to decide. Those are matters for the committee as a whole. The chairman of a committee will often communicate the decision of the committee, and sign the letter or other document giving its reasons. When he does so, it is normally assumed, in the absence of any contrary contention, that he acts with the express or tacit authority of the committee as a whole. However, that assumption does not apply indefinitely. In particular, once the reasons of the committee have been communicated, it should not be assumed that further reasons given by the chairman are the reasons of the committee as a whole. Whether the reasons put forward late by a chairman of a committee are those of the committee as a whole is a question of evidence, not of his authority.
26. I turn to the question whether the Court should accept Mr Nicholls' evidence. I must first refer to at least some of the authorities that counsel helpfully referred me to.
27. In R v Legal Aid Area No. 8 Appeal Committee ex p Angel (1990) 3 Admin LR 189, Simon Brown J held that a failure by a tribunal to give reasons for its decision, or the giving of inadequate reasons, does not of itself justify the quashing of the decision; and that the remedy of the claimant is an order remitting the matter to the tribunal with a direction to state reasons fully and accurately. The tribunal in question in that case was under an express statutory duty to give written notice of its decision and the reasons for it to the appellant. It had given inadequate reasons, no more than a virtually meaningless generalisation. The applicants before Simon Brown J contended that the decision of the tribunal was therefore liable to be quashed. Simon Brown J rejected this submission. He said, at 205:
"Naturally the Courts will look circumspectly at additional reasons; these clearly cannot carry quite the same authority as reasons properly given as part of the actual decision, and of course, anything suggestive of ex post facto reasoning, let alone anything in the way of inconsistency with previous reasons, would be particularly scrutinized. Certain bodies, moreover, will clearly be held to the reasons expressed with their decision - for instance, the Secretary of State on planning appeals and tribunals of the kind in question in Alexander Machinery and ex parte Khan. Furthermore, whenever as here a public body files evidence, it is desirable that each member should approve the supplementary reasoning disclosed in the individual deponent's affidavit as the actual basis for the decision earlier taken. But given these sorts of qualification, there seems to me much to be said in favour of allowing affidavits to supplement reasons, and little against either in the way of legal or practical objection. Of course, the supplementary reasons go only to the question whether the decision reached was erroneous in point of law; they cannot repair the breach of duty involved in having provided inadequate reasons in the first place ..."
28. Not surprisingly, Mr Jones relies on the first part of this passage, and Mr Warren the second. In the event, Simon Brown J quashed the tribunal's decisions on the ground that the affidavit evidence filed showed that it had acted under an error of law. Simon Brown J's statement that inadequate reasons are not of themselves a ground for quashing a decision of an administrative tribunal cannot, I think, stand with the decision of the Court of Appeal in R v Mayor, Commonality and Citizens of the City of London, ex p Matson (1996) Admin LR 49, to which I refer below. In any event, in practice a failure to give reasons by a tribunal obliged to give them is liable to lead the Court to infer that the tribunal did not lawfully deal with the issues before it.
29. R v Westminster City Council, ex p Ermakov [1996] 2 All ER 302 concerned a decision by a local housing authority that the applicant was homeless. Section 64(4) of the Housing Act 1985 applied to that decision. It provided:
"If a local housing authority notify the applicant ... (c) that they are satisfied that he became homeless ... intentionally ... they shall at the same time notify him of their reasons."
The local authority had given reasons for its decision in the letter that communicated its decision to the applicant. Subsequently:
"... they put forward entirely new reasons, completely at odds with those given in the letter. Moreover, they put forward those new reasons five or six months after the decision letter had been sent and, of course, only after judicial review proceedings had been launched."
See at page 309e. Hutchison LJ, with whom the other members of the Court agreed, at page 325g summarised his conclusions as follows:
"(1) It is unrealistic to seek to draw any significant distinction, in the context of s 64, between the decision and the communication of the decision with reasons, or to treat the giving of reasons as purely procedural. In reaching this conclusion I am influenced by the fact that the section in terms requires reasons to be given at the same time as the decision is communicated; by Schiemann J's observations in Ex p Shield; and by the many cases in which such decisions have been quashed for inadequacy of reasons.
(2) The court can and, in appropriate cases, should admit evidence to elucidate or, exceptionally, correct or add to the reasons; but should, consistently with Steyn LJ's observations in Ex p Graham, be very cautious about doing so. I have in mind cases where, for example, an error has been made in transcription or expression, or a word or words inadvertently omitted, or where the language used may be in some way lacking in clarity. These examples are not intended to be exhaustive, but rather to reflect my view that the function of such evidence should generally be elucidation not fundamental alteration, confirmation not contradiction. Certainly there seems to me to be no warrant for receiving and relying on as validating the decision evidence--as in this case--which indicates that the real reasons were wholly different from the stated reasons. It is not in my view permissible to say, merely because the applicant does not feel able to challenge the bona fides of the decision-maker's explanation as to the real reasons, that the applicant is therefore not prejudiced and the evidence as to the real reasons can be relied upon. This is because, first, I do not accept that it is necessarily the case that in that situation he is not prejudiced; and, secondly, because, in this class of case, I do not consider that it is necessary for the applicant to show prejudice before he can obtain relief. Section 64 requires a decision and at the same time reasons; and if no reasons (which is the reality of a case such as the present) or wholly deficient reasons are given, he is prima facie entitled to have the decision quashed as unlawful.
(3) There are, I consider, good policy reasons why this should be so. The cases emphasise that the purpose of reasons is to inform the parties why they have won or lost and enable them to assess whether they have any ground for challenging an adverse decision. To permit wholesale amendment or reversal of the stated reasons is inimical to this purpose. Moreover, not only does it encourage a sloppy approach by the decision-maker, but it gives rise to potential practical difficulties. In the present case it was not, but in many cases it might be, suggested that the alleged true reasons were in fact second thoughts designed to remedy an otherwise fatal error exposed by the judicial review proceedings. That would lead to applications to cross-examine and possibly for further discovery, both of which are, while permissible in judicial review proceedings, generally regarded as inappropriate. Hearings would be made longer and more expensive.
(4) While it is true, as Schiemann J recognised in Ex p Shield, that judicial review is a discretionary remedy and that relief may be refused in cases where, even though the ground of challenge is made good, it is clear that on reconsideration the decision would be the same, I agree with Rose J's comments in Ex p Carpenter that, in cases where the reasons stated in the decision letter have been shown to be manifestly flawed, it should only be in very exceptional cases that relief should be refused on the strength of reasons adduced in evidence after the commencement of proceedings. Accordingly, efforts to secure a discretionary refusal of relief by introducing evidence of true reasons significantly different from the stated reasons are unlikely to succeed.
(5) Nothing I have said is intended to call in question the propriety of the kind of exchanges, sometimes leading to further exposition of the authority's reasons or even to an agreement on their part to reconsider the application, which frequently follow the initial notification of rejection. These are in no way to be discouraged, occurring, as they do, before, not after, the commencement of proceedings. They will often make proceedings unnecessary. They are in my judgment very different from what happened in this case.
I also wish to emphasise that all that I have said is with reference only to the provisions of s 64 of the 1985 Act.
(6) The judge did not in my view approach the decision, which in the exercise of his judgment he had to make, with the principles that I consider the authorities establish in mind. Whereas he should have adopted an approach consistent with that indicated in the judgment of Steyn LJ in Ex p Graham, what he did was to treat the application as one which he could not even consider rejecting. This is apparent from the passage in his judgment which I have already cited. I have little doubt that had the judge approached the matter with the correct principles in mind he would have concluded that this was not a case in which the respondents should be permitted to substitute wholly different reasons and, in reliance on those reasons, seek to justify their decision.
(7) On the first ground I consider that this appeal should succeed, the judge's decision should be set aside, the decision of the authority quashed, and the case remitted for reconsideration on the simple ground that, as the affidavit evidence of the respondents concedes, the only reasons given for the decision are defective, in that they are not the true reasons and are not relied on."
30. In R v Mayor, Commonality and Citizens of the City of London, ex p Matson (1996) Admin LR 49, the Court of Appeal quashed a decision by reason of a failure to give reasons. In that case the duty to give reasons was implied.
31. In R v the Secretary of State for the Home Department ex p Lillycrop, the Times, 13 December 1996, the Divisional Court followed Ermakov, but accepted affidavit evidence of a civil servant that expanded upon and explained the reasoning process of the Parole Board. In that case the duty to give reasons was implied. However, in R v Doncaster MBC, ex p Nortrop (1996) 28 HLR 862, Brooke J quashed a decision of a housing benefit review board, which was under a statutory duty to give "reasons for (its) decision and ... its findings on questions of fact material thereto". He referred to an affidavit filed by the chairman of the review board, but summarised the authorities on the acceptance of such evidence where there is a statutory duty to give reasons as "(making) it plain that except in the most exceptional cases the courts should not look at evidence of this kind".
32. In Northamptonshire County Council ex p D [1998] ED CR 14, Laws J considered a decision of a statutory appeal committee hearing an appeal against the exclusion of a boy from school. The committee was under a statutory duty to give reasons for its decision. As in Angel, inadequate reasons had been given for the decision, as in that case no more than an uninformative generalisation. Subsequently, the chairman of the committee made an affidavit explaining the reasons for the decision. Laws J said, at 24A:
"There are some classes of a case in which the adequacy of the reasons is itself made a condition of the legality of the decision. In such instances, later evidence giving a proper explanation of the reasons by definition cannot cure the legal defect which would arise if the original reasons were inadequate. But this is not such a case, and Mr Clayton does not contend the contrary. It seems to me with respect that the passage from Hutchison L.J.'s judgment which I have cited, and also Latham J.'s reasoning, give a resounding and salutary warning against a particular danger that may arise where originally faulty reasons are sought to be cured by later evidence. It consists in the risk that the later material, albeit put forward in perfect good faith, in truth officers an ex post facto justification for the decision which in substance travels beyond, and may differ from, the actual reasons entertained by the decision-maker at the time. It is, I think, important to notice that the learned Lord Justice was dealing with a case (as "the real reasons were wholly different from the stated reasons". I would emphasize also his deprecation (in para.3) of the "wholesale amendment or reversal of the .....reasons". I accept, however, that even where the court is confident that the later evidence represents the actual reasons given at the time, it will not automatically receive the later material. Whether it will do so will be a matter for the court's discretion case by case. Broadly speaking, the court will have in mind the great importance to be attached to the giving of legally sufficient reasons at the time they are supposed to be given. As Hutchison L.J. said (para.3) "...The purpose of reasons is to inform the parties why they have won or lost and enable them to assess whether they have any grounds for challenging an adverse decision." At the same time, in a case where the court is entirely satisfied, despite an original defect in the reasons given, that the public body in question has arrived at a perfectly proper decision amply justified (so far as any public law tests are concerned) by reasons by which it was entitled to entertain and which it did entertain at the time, it may be slow to strike down the decision on the basis only that the later explanation should have been given when the decision was communicated. I recognise that Hutchison L.J. (in the opening sentences in para.2) draws a distinction between elucidation on the one hand and correction or addition on the other. But I think with respect it is clear that he was concerned with the class of case where the later material exhibits a significant or indeed fundamental shift of ground from the reasons given at the time."
Laws J accepted the affidavit and on the basis of the facts to which it deposed upheld the committee's decision.
33. There are substantial differences between the present case and Ermakov. In Ermakov, there was a statutory duty to give reasons at the same time as notifying the applicant of the decision. The statutory duty led Hutchison LJ to identify the notification of the decision with the reasons given for it: hence the restriction of his conclusions to the provisions of s 64 of the 1985 Act. In the present case, there is no such express duty, and if there is a duty to give reasons it does not follow that they must be given with the notification of the decision of the Academic Committee. Secondly, there is the issue whether the reasons contained in the letter of 3 October 2000 were elucidatory or inconsistent with the letter of 30 June 2000, an issue that I address below. Thirdly, the letter of 3 October 2000 clearly came to be written as a result of the sensible exchanges between the parties' solicitors to which I have referred above. The fact that it came to be sent a few days after the filing of the claim form seems to be coincidental. In this connection, I refer to paragraph (5) of the conclusions of Hutchison LJ above.
34. In my judgment, the following propositions appear from the above authorities:
(i) Where there is a statutory duty to give reasons as part of the notification of the decision, so that (as Law J put it in Northamptonshire County Council ex p D) "the adequacy of the reasons is itself made a condition of the legality of the decision", only in exceptional circumstances if at all will the Court accept subsequent evidence of the reasons.
(ii) In other cases, the Court will be cautious about accepting late reasons. The relevant considerations include the following, which to a significant degree overlap:
(a) Whether the new reasons are consistent with the original reasons.
(b) Whether it is clear that the new reasons are indeed the original reasons of the whole committee.
(d) The delay before the later reasons were put forward.
(viii) Neither Mr Cina's nor Mr Nicholls' good faith has been challenged.
Were the reasons contained in the letter of 3 October 2000 sufficient and lawful?