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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Gray v Marlborough College [2006] EWCA Civ 1262 (29 September 2006) URL: https://www.bailii.org/ew/cases/EWCA/Civ/2006/1262.html Cite as: [2006] EWCA Civ 1262 |
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COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE SOUTHAMPTON COUNTY COURT
HIS HONOUR ANTHONY THOMPSON QC
Case No 5SN02629
Strand, London, WC2A 2LL |
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B e f o r e :
LORD JUSTICE CHADWICK
and
LORD JUSTICE BUXTON
____________________
RUSSELL GRAY |
Appellant |
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- and - |
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MARLBOROUGH COLLEGE |
Respondent |
____________________
Smith Bernal WordWave Limited
190 Fleet Street, London EC4A 2AG
Tel No: 020 7421 4040 Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
for the Appellant
Miss Monica Carss-Frisk QC and Mr Daniel Squires (instructed by Farrer & Co)
for the Respondent
____________________
Crown Copyright ©
Auld LJ :
Introduction
i) it breached an express term of a contract with Mr Gray that Rhys would continue into the sixth form; and/orii) it breached an express an express term of the contract that the College, before making that decision, would consult with Mr Gray and/or an implied term that in that and other respects it would behave fairly towards Mr Gray and Rhys.
i) not having or providing to Mr Gray a written policy indicating that a pupil's removal could be required for a series of minor misdemeanours;ii) not consulting adequately in that it did not inform Mr Gray that Rhys was at risk of the College requiring his removal and the reasons for such risk, in particular reasons based on matters current at or about the time of the decision; and
iii) not instituting a formal complaints procedure supported by full disclosure and followed by an oral hearing at which Mr Gray and Rhys would have been able to make representations.
"6(a) Removal at the Request of the School. Parents may be required during or at the end of a term to remove the pupil without refund of fees temporarily or permanently from the school if after consultation with a parent the Master is of the opinion that the conduct or progress of the pupil has been unsatisfactory or if the pupil in the judgment of the Master is unwilling or unable to profit from the educational opportunities offered and in any such case removal is considered to be warranted.
The facts
"Many of the disciplinary breaches if viewed in isolation might be regarded as a minor peccadillo to be expected of a boisterous teenager. The problem is the cumulative effect which shows an almost total disregard for the school rules and a failure to understand what effect this behaviour had upon others. Arriving late for lessons disrupts the class and inconveniences the teacher. Failing to conform to the dress code if overlooked in his case would soon be taken by others as a role model, and it would eventually become impossible to enforce. His conduct also placed an extra burden on his housemaster who had to devote a disproportionate amount of his time to Rhys, leaving less time to devote to the other 59 members of the house."
"It is good to note that in the majority of his subjects he has been employing a more mature and conscientious approach. It is, then, disheartening to note the resurgence of old, bad habits towards the end of this term when could expect a higher degree of maturity. As his Housemaster observes, the general tenor of his presence around the school has improved considerably: he deserves credit for this change but he still has a mountain to climb if he is to contemplate remaining at Marlborough beyond the end of the current academic year. It is, therefore, crucial that he returns to school in January prepared to give of his best in all that he undertakes."
"I am writing to express my concern at the disappointing results of the mock examination that Rhys has just undertaken. Although he scored a good grade in Mathematics, Rhys needs to take on board how serious the situation is, and his A level career needs to be given careful consideration. I would be very grateful if you could visit me at the College at your convenience in order to discuss his future."
"I received a telephone call from Mr Gray during which he said that he wasn't prepared to come to Marlborough to hear the same old story of disciplinary concerns and Rhys not working hard enough. He said that he already knew his son very well and appreciated the situation, and asked for clearer signals, thorough reports etc, about Rhys' conduct and potential. I believed that our various reports had already made the position very clear, and that most parents would already have taken steps to deal with their child if they had received reports similar to Rhys'. I found it difficult to make my points about Rhys's disciplinary performance to Mr Gray because he did not listen and tended to talk at, and over, me. He did not appear interested in a constructive discussion about his son's future."
"As you will be aware, mathematics is a subject Rhys is proposing to take for A level and I am writing now to alert you to the fact that, in the light of his recent poor performance and behaviour, this is unrealistic. Furthermore, his end of term reports suggest that his future with us needs to be reviewed. I remain available to discuss these matters should such a meeting seem desirable. Rhys is not making the necessary progress."
Mr Gray's evidence was that he did not receive that letter, a contention on which the Judge made no finding.
" the incident on the CCF camp has provided another demonstration of Rhys's inability to live within the framework of life at Marlborough. The lack of focus in his work is causing great concern and his disciplinary record since his arrival here has been very poor. He has absorbed a great deal of time and energy and little progress has been made.
I have to inform you that it would be in his best interests if he were to be withdrawn from the college as soon as he had finished his GCSE. If he is withdrawn, the College will be able to assist you in the task of finding him a place at another school, should you wish him to continue with his secondary education.
I have to inform you that it is highly unlikely that the College will be prepared to accept him back in September. He needs to be made aware of the fact that any further disciplinary problems next term could result in his immediate removal from the College whether or not he has sat any of his exams.
I am sorry to have to write to you in this way but Rhys has paid little or no attention to the warnings that he has been given."
Mr Gray claimed in evidence that he did not receive that letter either, and again the Judge made no finding on the matter. However, his Particulars of Claim, to which his signed statement of truth was appended, acknowledged its receipt.
"This has not been a good term. There are far too many signs here that Rhys still has not taken on board important lessons about working, even though he has been given a great deal of support, and he appears not to have been able to change his course. There have been far too many confrontations, detentions and chits, and this has been depressing for all concerned. Unless he takes drastic steps, I am afraid that the results in August will be disappointing. Rhys needs to plan much further ahead and think about the consequences of his actions. This message has been repeated to him many times and it is worrying that he still has not mastered the working habits that are essential for academic life here.
I hope that he will realise the vital importance of the next few months. Rhys is going to have to rely on his wits and a really determined campaign to compensate for all the missed opportunities of the last few years."
The Master's observations were in the same vein:
"It is difficult to discover grounds for optimism within these reports: his approach towards his academic work has continued to be immature and half-hearted in the vast majority of his subjects. He appears to be fully aware of the urgency of his situation but his response must demonstrate a willingness to follow advice and to offer sheer, uncomplicated, hard work, if he is to achieve acceptable results in the summer."
"Q. the Master tried to convince you that it would be better for Rhys to be in a different school in September?
A. Yes I was used to that. I was told he needed special needs. That he needed a day school. I was told a whole variety of things about why it was in mine and [Rhys's] interests to take him out of Marlborough. However, the inconsistency of them made them a little unpersusasive.
Q. the Master certainly suggested to you that it would be better for [Rhys] to be somewhere else in September?
A. I got the impression he thought it would be better for him."
"I am writing to express once again my deepest concern about Rhys's progress and prospects.
Yesterday's Lower School Order gives Rhys an extremely low score: so low, in fact that his Housemaster cannot recall another pupil being at the same level. Our computerised system will not register Rhys' performance as it goes beyond the normal parameters.
Rhys' attitude towards his work is unacceptable and there is little sign of serious intent. The usual sanctions used to encourage a pupil to work have been exhausted. He has been unable to maintain the conditions attached to being placed upon Master's Report and has found the additional pressure of that sanction to be hugely burdensome.
His disciplinary record is similarly worrying. I asked the Second Master to examine his position and it is Mr Pick's belief that Rhys is unwilling, and apparently, unable to comply with school regulations and that he would be better suited to a day school environment. Rhys has accumulated a vast number of minor disciplinary sanctions.
I am aware of signs of stress, which call his overall state of health and general welfare into question. His recent migraine attacks may well be rooted in the difficulties he is experiencing in maintaining his school life.
I am, therefore, informing you that, in my opinion, Rhys' conduct and progress have been unsatisfactory and that, in my judgement, he is either unwilling or unable to profit from the educational opportunities offered here. He is, quite clearly, [finding] the prospect of life at Marlborough unsustainable and I have, therefore, to inform you that, in accordance with Paragrah 6a) of the College's Standard Terms and Conditions, Rhys should leave Marlborough at the conclusion of the current academic year..
As my decision constitutes a required removal of Rhys, you are entitled to request a review of that decision by a panel of members of Council. If you wish to make such a request, I will advise you of the procedure to be followed."
" Then we agreed that, taking all things into account, we would set certain GCSE grades minima for Rhys as a condition of him progressing to the sixth form. I take it therefore that you consider yourself at liberty to withdraw from that agreement without consultation. I do not share your view.
"
" Since our telephone conversation at Easter, the following events have occurred:
i) Rhys' disciplinary record has continued to be exceptionally poor. He has, on a consistent basis, failed to honour his commitments and appears to believe that sanctions do not apply to him. There are thirty-eight entries on his disciplinary record sheet covering the period between 21st April and the 21st May. No other member of the School has a disciplinary profile of this nature and scale.
ii) His Lower School Order has revealed a lack of commitment to his studies. His aggregate scores have declined throughout the course of the year (successively reading 9, 6, -4 and now -12) and his latest result is the lowest score his Housemaster can remember seeing.
iii) He has been unable to fulfil the requirements of being on Master's Report: the process caused him evident distress and was, therefore, ended. Master's Report is a serious sanction and Rhys' failure to meet his obligations in this area is emblematic of the broad picture.
There has, then, been a significant deterioration in Rhys' situation since we last spoke. This position is exceptional: no other current pupil has accumulated a similar weight of concerns, either in terms of academic scores or the volume of disciplinary infringements. He absorbs a disproportionate and unreasonable amount of our time.
My letters to you of 2nd February 2005, 11th and 22nd March 2005 underlined the seriousness of Rhys' situation. We spoke at Easter and agreed that Rhys needed to achieve high GCSE grades in order to qualify for Sixth Form life at Marlborough. Results alone form only part of the picture: Rhys has failed to meet commitments or expectations inside the classroom and beyond in a systematic and comprehensive fashion. This conduct and progress have been unsatisfactory and, as I wrote to you on 17th May, my judgement is that he is either unwilling or unable to profit from the educational opportunities on offer here.
"
" I told you that I was not satisfied that you had proper grounds to expel him and that I could see no reasonably attractive alternative to him remaining at Marlborough for A levels. I said that I would seek to hold you to the agreement that we reached in a previous telephone call during the Easter holiday, namely that Rhys's admission to the sixth form would be conditional upon satisfactory results in GCSEs; "
The Judgment.
"35. I do not think that there was any conspicuous unfairness. I think throughout the way this matter was conducted the school were making every endeavour to keep Mr Gray informed of what was taking place.
36. It is manifestly wrong to say that there was no consultation, there clearly was, but of course consultation does necessitate a certain amount of co-operation from the consultee. If one looks at the correspondence and the reports which were being sent it is quite clear that Mr Gray was being kept informed and also his co-operation and discussion with the school was being sought."
And, following references to the various parts of the story in which the Master by letter, and also orally, attempted to consult Mr Gray, he said, at paragraph 39:
"The wording of those letters [including the two March letters] was a clear indication that the College was more than happy to consult and wanted to discuss Rhys's continued membership at the College. In those circumstances it is completely wrong to say there was no consultation. You cannot make somebody or force somebody to consult with you if they do not wish to consult or if they prefer to turn a deaf ear to the suggestions or offers which you make. I do not think there was any unfairness. I think there was consultation, or at the very least an attempt at it. In the school report at the end of the Michaelmas term 2004 the Master set out his views in clear and unequivocal terms about Rhys's position. In all of those matters it is important to bear in mind that the College was really doing its best to place the position squarely and firmly before Mr Gray so that he would know exactly where he stood."
The contract
"1. The School
(d) Parents are expected to give their support and encouragement to the aims of the School and to uphold and promote its good name; to continue the pupil's education at home and to ensure that the pupil maintains appropriate standards of punctuality, behaviour, diligence, language, discipline and dress.
2. Care and Good Discipline
(b) Conduct and Attendance. We attach importance to courtesy, integrity, manners and good discipline. Parents warrant that the pupil will to the best of his or her ability take a full part in the activities of the school, will attend each school day, will be punctual, will work, will be well behaved and will comply with the School Rules about the wearing of uniform. "(d) Conduct of the School. It is a condition of remaining at the School that parents and the pupil (including a pupil aged 16+) accept the school regime and the Rules (in so far as they are lawful and reasonable) as to appearance and dress and the rules of school discipline that apply from time to time .(e) The School Rules. Each pupil is supplied with a copy of the Almanac containing the School Rules. These give information about the ethos and rules of the School and their purpose is to ensure the welfare and safety of pupils and the smooth running of the School, to help every pupil to know what is expected and to encourage courtesy and consideration for others. Each pupil and parent should read the School Rules.
"6(a) Removal at the Request of the School. Parents may be required, during or at the end of a term, to remove the pupil, without refund of fees, temporarily or permanently from the school if, after consultation with a parent, the Master is of the opinion that the conduct or progress of the pupil has been unsatisfactory or if the pupil, in the judgment of the Master, is unwilling or unable to profit from the educational opportunities offered and in any such case removal is considered to be warranted.
6(b) Expulsion. A pupil may be expelled at any time if the Master is reasonably satisfied that the pupil's conduct whether on or off school premises or in or out of term time has been prejudicial to good order or school discipline or to the reputation of the school. The Master will act fairly and in accordance with the procedures of natural justice and would not expel a pupil other than in grave circumstances "
The issue(s) in the appeal
Submissions
Conclusions
"(2) Consultation is not in this context an absolute and inflexible concept. Lord Diplock in Council of Civil Service Unions v Minister for the Civil Service spoke only of communicating to the person enjoying the benefit 'some rational grounds for withdrawing it on which he has been given an opportunity to comment'. A mechanistic approach to the requirements of consultation should be avoided. The nature, the scale, the period may all vary.
(3) Prominent amongst the considerations relevant to determining the precise demands of consultation in a given case will be:
a) Whether the obligation is statutory and absolute or implied in common fairness. If the former, then plainly the process must satisfy in full measure all four of the requirements identified and approved in R v Devon County Council ex parte Baker and Another . If, however, the obligation is merely implied, its scope may well be reduced. It may have to be tailored to the practicalities of the situation.b) The urgency with which it is necessary to reach a decision. This may impose constraints lest the very process of consultation itself causes delay such as to pre-empt a particular proposal or other possibly appropriate decisions.c) The extent to which during earlier discussions or consultative processes opportunities have been afforded (and, indeed, taken) for views to be expressed by interested, and in particular opposing, parties and the likelihood, therefore, of material and informed additional views or information emerging upon further consultation. ."
To paragraph (c) I would add, given the history of this matter, the extent to which earlier opportunities to express contrary views or otherwise to respond in a way that might have had a bearing on the decision have not been taken.
Respondent's Notice
" the use of the words 'review' and 'rehearing' in our view creates a temptation for a tribunal to fall into the error of deciding whether the appeal hearing cured the earlier defects by categorising the appeal hearing either as a review or a rehearing rather than looking at its thoroughness and the open-mindedness of the decision-maker and considering whether the disciplinary process as a whole was fair."
" Having regard to the written material contained in the Bundle (available to all concerned) and having heard from the parties , there was ample evidence to justify the Master reaching the conclusion that Rhys was 'unwilling or unable to profit from the educational opportunities offered. Such a conclusion was wholly warranted bearing in mind:
a) The content and tenor of the end of Term Reports on Rhys for Summer 2004, Michaelmas 2004 and Lent 2005 , and in particular the comments provided by both the Housemaster and the Master;b) The results for Rhys as shown in the Lower School Orders, which measured academic effort;c) The disciplinary record of Rhys as demonstrated by (a) statistical records maintained by the College and (b) the individual record for Rhys ;d) Rhys's unwillingness, or inability, to comply with the sanctions imposed by the school as a result of his lack of discipline;e) The fact that the Master has to have regard to the interests of the school as a whole, including the interests of the other pupils and the staff."
Lord Justice Chadwick:
"I am therefore informing you that, in my opinion, Rhys' conduct and progress have been unsatisfactory and that, in my judgment, he is either unwilling or unable to profit from the educational opportunities offered here. . . . I have, therefore, to inform you that, in accordance with Paragraph 6(a) of the College's Standard Terms and Conditions, Rhys should leave Marlborough at the conclusion of the current academic year."
It is a striking feature of this appeal that Mr Gray does not contend that the criteria on which the Master relied were not established. In particular, Mr Gray does not contend that the Master was not entitled to reach the conclusion that Rhys was unwilling or unable to profit from the educational opportunities which the College could offer.
". . . if, after consultation with a parent, the Master is of opinion that the conduct or progress of the pupil has been unsatisfactory or if the pupil, in the judgment of the Master, is unwilling or unable to profit from the educational opportunities offered . . . and in any such case removal is considered to be warranted."
It might be said that, syntactically, the words "after consultation with a parent" qualify only the phrase "if . . . the Master is of opinion that the conduct or progress of the pupil has been unsatisfactory"; and do not qualify the phrase "if the pupil, in the judgment of the Master, is unwilling or unable to profit from the educational opportunities offered". But the College did not argue for such a strict construction and, in any event, the Master's letter of 17 May 2005 shows that he was relying on both limbs. Further, the additional requirement that "in any such case removal is considered to be warranted" lends emphasis to the need for there to be proper consideration of the alternatives to removal. That, as it seems to me, requires that the College afford the parent with a proper opportunity to provide input as to what those alternatives might be.
Lord Justice Buxton: