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You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> S, R (On the Application Of) v The General Teaching Council for England & Anor [2013] EWHC 2779 (Admin) (13 September 2013) URL: https://www.bailii.org/ew/cases/EWHC/Admin/2013/2779.html Cite as: [2013] EWHC 2779 (Admin) |
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QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Strand, London, WC2A 2LL |
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B e f o r e :
____________________
THE QUEEN On the application of 'S' |
Claimant |
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- and – |
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THE GENERAL TEACHING COUNCIL FOR ENGLAND |
Defendant |
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ESSEX COUNTY COUNCIL |
Interested Party |
____________________
Rory Dunlop (instructed by The Treasury Solicitor) for the Defendant
Hearing date: 4 July 2013
____________________
Crown Copyright ©
MR JUSTICE FOSKETT:
"Attached is the draft judgment in this case. Mr Dunlop will understand the terms upon which it is sent. Miss [S], may I explain that the purpose of sending it to you is for you to check to see if there are any typographical or other obvious errors that the Judge ought to consider before handing down the final form of the judgment publicly? The draft judgment is strictly confidential until then and must not be shown to, or discussed with, anyone else. It would be a contempt of court to do so. Once the judgment is handed down formally (which the Judge will hope to do on Friday of this week or Monday of next week), then it will be open to you to discuss it openly. You may be well advised then to discuss its implications with your Union and/or any legal advisers to whom you have access.
Can you both let me have any proposed corrections (on a separate Word document) by 4 pm on Thursday, please? I will send you both the final form of the handed down judgment when it has been handed down.
If there are any consequential applications (including any application for costs on your part, Miss [S]), they should be put into writing and sent to me within 14 days of the handing down of the judgment and the judge will consider them on paper."
"I would be grateful if the judge could delay the handing down of judgment (even if only to Monday) to allow some time for the parties to consider the possibility of settlement. It may assist, for those purposes, if judgment has not yet been handed down."
"Without discussing the draft document, would it be ok for me to discuss settlement options with other people e.g. friends, union and teaching agency?"
"The Judge understands that both you and Mr Dunlop would prefer the hand-down of the judgment to be delayed until you have had an opportunity to discuss settlement. He is happy to accommodate this for a few days, but even if settlement is achieved it would be his intention that the judgment is delivered. I will not ask the Listing Office to list the case for a hand-down of the judgment until I have heard from both of you about the situation concerning settlement. I would be grateful, please, if I could hear from you both by 4 pm on Friday about the position.
So far as discussing matters with others is concerned, the Judge is concerned that you may inadvertently breach the confidentiality provision. However, he does not wish you to be disadvantaged in any settlement discussions. Since you acted in person you do not, strictly speaking, have a "legal representative" with whom to discuss matters. The Judge is, however, content for you to speak to your Union representative and a senior person at your teaching agency (or any solicitor with whom you have had dealings) – and you may show them the draft judgment (though not provide them with a copy) – provided they are told in advance that they must not communicate its contents to anyone else before it is handed down.
Would you please confirm that you will deal with matters in that way? If so, we will deal with things as I have set out above."
"The main purpose behind this letter is to see whether you would be amenable to reaching a settlement of this case. These proceedings have been going on for a very long period of time and have caused me a great deal of stress, and I believe that it would be in the interests of all parties to come to some sort of amicable agreement that allows both parties to avoid the need for ajudgement
to be put down." (My emphasis.)
"Settlement negotiations are ongoing. We have made a proposal to Ms [S] that would include an order that the judgment should not be handed down and the draft should not be disclosed. Ms [S] would like more time to consider that proposal. Both parties would be grateful if the handing down of the judgment could be delayed for that purpose until at least the end of next week."
1. The decision of the GTCE dated … is quashed.
2. The matter is to be remitted back to the Secretary of State who will extend the Claimant's induction period so as to give the Claimant THREE more terms.
3. If and when the appropriate body and/or Secretary of State comes to consider the Claimant's performance during her induction period, they shall not have regard to her performance at [X School] in the academic year 2008/2009 but they shall be entitled to have regard to her performance at [Y School] in the academic year 2009/2010.
4. There be no order as to costs.
5. The draft judgment served on the parties will not be handed down or disclosed to any person or used in the public domain."
"The judge is considering the application that he should not hand down the judgment in this case. As Mr Dunlop will know, the Judge has a discretion on this matter irrespective of any agreement of the parties: see, e.g., F&C Alternative Investment Holdings Ltd v Barthelemy, etc [2011] EWHC 1851 (Ch) – copy attached. He wishes to avoid if possible calling the parties back to court to consider the implications of what is proposed. Before deciding whether he needs to do that, he would be grateful if the following questions could be answered, the first three by each party independently and (v) and (vi) essentially by the Defendant:
i) Which party first suggested that a settlement might be achieved if a condition of the settlement was that the judgment would not be handed down?
ii) If that party was the Defendant, with whom did the Claimant discuss it before agreeing to it?
iii) If it was the Claimant, with whom had she discussed the idea before suggesting it to the Defendant?
iv) Has the Defendant considered offering the Claimant an undertaking that, in the event of obtaining permission to appeal against the judge's judgment and succeeding on the appeal, the Defendant would in any event agree to paragraphs 1-4 of the proposed consent order?
v) Has the Defendant considered the circumstances in which the Court of Appeal might entertain an appeal notwithstanding that it is academic as between the two parties: see, e.g., paragraph 15 of Hutcheson v Popdog Ltd [2012] 1 WLR 782 (copy attached).
vi) How many appeals by NQTs have there been over, say, the last 5 years?"
(a) I cannot, of course, speak for what the Court of Appeal might have done in this case had the issue arisen, nor can I speak of the court's practice generally, other than to observe that paragraph 6.4 of Practice Direction 52A suggests that it will allow an appeal by consent only if, at the lowest, "good and sufficient reasons for doing so" are demonstrated. In this case two High Court Judges other than me were of the view that issues that the Claimant wanted to raise were arguable.
(b) The Court of Appeal would have become aware had it been fully informed about the case (as I became aware when considering the papers in the case) that the Appeal Panel of the GTEC, before which the Claimant's appeal was heard, decided on the procedure it was proposing to adopt (and, as a consequence, the material it would consider) before it took any advice from its legal assessor.
"In my judgment the judge was correct in the way he gave his ruling in this matter, for the reasons he gave. He did possess a discretion to decide whether or not to hand down his judgment, and there are no grounds on which this court could interfere with the way in which he in fact decided to exercise his discretion. … although much of his judgment was of interest only to the immediate parties to the dispute, there were three rulings on points of law which were potentially of wider interest, and a judge sitting in a specialist jurisdiction like the Technology and Construction Court is uniquely well placed to judge whether it would be of value if his judgment were a matter of public record.
Of course the courts are always anxious to assist parties to resolve their disputes, and I realise that one consequence of this judgment is that the parties to the present action may now face ancillary litigation on the question whether their compromise is binding, or may face the expense and inconvenience of an appeal if it is accepted or held that it is not. They have, however, placed themselves in this position by making a compromise agreement on the mutual understanding that, as a consequence of their compromise, the judgment would not be handed down. This mutual understanding is unenforceable, in that public policy dictates that the judge should have an independent discretion to decide whether to deliver his judgment or not. The wishes of the parties are just one factor, but not an overriding factor, which a judge should take into account in deciding how to exercise his discretion."
"There is no indication in the practice statement that its purpose is to allow the parties to have more material available to them to help them to settle their dispute. Its purpose is to introduce an orderly procedure for the delivery of reserved judgments, whereby the parties' lawyers can have time to consider and agree the terms of any consequential orders they may invite the court to make and the process of delivering judgment can be abbreviated by avoiding the need for the judge to read the judgment orally in court." (My emphasis.)
" … When we put to counsel the point made by the judge to the effect that if they were right, powerful defendants like insurance companies could pick and choose which judgments they were happy to see published and which judgments they were willing to pay money to suppress, we were told that it has always been a characteristic of the common law that it has developed haphazardly. It was then suggested to us that there might be one rule for first instance courts and a different rule for appellate courts. For the latter, it appeared to be conceded during the course of argument that this court might have a residual discretion to hand down its judgment notwithstanding the fact that the parties had compromised their dispute, if only to correct errors in the reported judgment in the court below or to reconcile conflicting lines of authority."
UPON THE COURT ACCEPTING THE SUBMISSION OF BOTH PARTIES THAT THE DRAFT JUDGMENT SHOULD NOT BE HANDED DOWN
IT IS ORDERED AND DIRECTED that the draft judgment shall not be disclosed to any person to whom it has not already been disclosed
BY CONSENT IT IS ORDERED –