England and Wales High Court (Administrative Court) Decisions

The Facts

“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.

“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.”

“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.”

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.

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.

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 University Statutes.

“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.

General

Is the dispute amenable to judicial review?

“……..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.

“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.”

“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.

“….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.

“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 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

Legitimate expectation

“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.

“Whatever happens, there will be no further investigation into your conduct that lead to Dr Dosmukhamedov’s removal.”

“An assurance that no further inquiry with possible disciplinary consequences would be made into the Claimant’s conduct in excluding Dr Dosmukhamedov.”

The Claimants Costs of the Popplewell inquiry

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.