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Cite as: [2001] EWCA Civ 914

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Neutral Citation Number: [2001] EWCA Civ 914

(Mr Justice Elias)

Royal Courts of Justice Strand
London WC2
Tuesday, 22nd May 2001

B e f o r e :





(Computer Aided Transcript of the Palantype Notes of
Smith Bernal Reporting Limited, 190 Fleet Street,
London EC4A 2AG
Telephone No: 0207-421 4040/0207-404 1400
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Official Shorthand Writers to the Court)


(Instructed by Messrs Palmers, 19 Town Square, Basildon, Essex, SS14 1BD
appeared on behalf of the Appellant.
MR CLIVE LEWIS (Instructed by Treasury Solicitor, Queen Anne's Chambers, 18 Broadway, London SW1H 9JS)
appeared on behalf of the Respondent.



Crown Copyright ©

    Tuesday, 22nd May 2001

  1. LORD JUSTICE PETER GIBSON: I will ask Buxton LJ to give the first judgment.
  2. LORD JUSTICE BUXTON: This is an appeal from a decision of Elias J in judicial review proceedings delivered on 9th October of last year. The appeal is brought by leave of the judge.
  3. The background legislation and the events that led up to the involvement of the applicant, Amraf Training Plc ("Amraf"), in the matters of which it now complains are comprehensively set out at the beginning of the learned judge's judgment. I do not intend to seek to improve on that statement, of which no complaint has been made. Although the judge's judgment is now reported in the Education Law Reports, I think it will be convenient in reading this judgment to have his exposition to hand. I therefore intend to set out, without further comment, paragraphs 1 to 7 of the learned judge's judgment:
  4. "1.The applicant in this case is a public company involved in the provision of training to individuals. Since the early 1990s it has trained IT and computer employees at all levels. It advertises in the press for largely self-finding persons who wish to change career and move into computer software and hardware skills. The applicant has a number of offices nationwide. It employs approximately a hundred people full-time in those various offices.
    2.In the 1999 budget, the Chancellor of the Exchequer announced a training scheme called `Individual Learning Accounts' which was designed to provide incentives for people to learn other skills than were required for their employment. In particular, there was some emphasis put on the desire to obtain computer and mathematical skills.
    3.A range of discounts and incentives were provided for individuals. First, for most types of training a 20 per cent discount of courses was provided with a ceiling of £500 as to course costs. This meant, of course, that the maximum government contribution would then be £100. Second, certain courses attracted a discount of 80 per cent. These were directed towards a limited range of courses providing training in IT and mathematics. No ceiling was stated in respect of courses in that category. Third, as a particular incentive to individuals taking up these opportunities, the first 1 million applicants were to receive an extra reduction of £150 per course, to be paid by the course provider. Fourth, certain tax incentives were also provided.
    4.The structure of the legal arrangements implementing this policy is contained in the Individual Learning Accounts (England) Regulations 2000, made pursuant to the Learning and Skills Act 2000. One of the courses qualifying for the 80 per cent discount was what is called the European Computer Driving Licence (ECDL). This course provides an European-wide qualification and is administered in each Member State by a particular body, which in the case of the United Kingdom is the British Computer Society. The scheme operates essentially in this way: individuals register as learning account holders. This then entitles them to take the benefits of the discounts on offer.
    5.Learning providers are also registered with the Individual Learning Account Centre. This is an administrative process which enables providers to be repaid the incentives which they have offered as discounts to learners who are Individual Learning Account holders. It means that the system is kept simple for the Individual Learning Account holder himself.
    6.Learning providers are asked to satisfy very few criteria before they are entitled to be registered. They must provide certain administrative details, such as the name of the organisation, contact names and bank account details, and in addition they must confirm that they have in place the appropriate public insurance liability. They must also satisfy certain health and safety requirements. These requirements are referred to in the document as `the terms and conditions' applying to providers. It will be seen that they do not include any criteria relating to the costs of the courses provided.
    7.The applicant in this case sought to register as a course provider and was sent a pack by the Individual Learning Accounts Centre (`ILAC'), which is bases in Darlington, under cover of an undated letter in late June 2000. The letter indicated a query line which could be used for providers to ask questions and receive guidance. The applicant met the relevant terms and conditions and signed a declaration through the appropriate company officer. On 21st July, the ILAC informed the applicant that it had successfully registered. The letter also indicated a query line which was available for individuals who wanted to ring for an information pack."
  5. That took the matter through until 21st July of last year, when Amraf was informed that it had indeed been registered for the provision of courses. The story is then taken up by Mr Dawson, the Chairman of Amraf and the moving spirit in it. He identified that there appeared to be no cap, or upper limit, for the 80% discount that was being offered for particular courses. He therefore saw the opportunity to provide within the framework of the legislation policy what he described as a course of "marquee quality", that is to say a course of a high standard and one that he thought would be more expensive to run and therefore demanding higher fees than those provided by at least some other ECDL providers. Mr Dawson, realising that this might be a matter of difficulty, made inquiries of the Department as to whether there would be a limit on the fees to be charged and whether the course that he had in mind to offer at a fee of £4,000 would be acceptable. It is not now necessary, in view of the way in which this appeal has developed, to go further into the way in which Mr Dawson made those enquiries, though that was a significant element in the consideration of the judge in the court below. Suffice it to say that he did not directly approach the policy makers in the Department or those who had executive responsibility for the course, but rather made his enquiries through the provider query line that had been made available, as has already been set out.
  6. Amraf, accordingly, set out to advertise and to seek to recruit students for its marquee quality course. On 29th August of last year the company, however, received a letter from a Ms Pierce in the Department, the lady who it would appear had policy responsibility for the Individual Learning Account program, which was in the following terms:
  7. "You are registered with the Individual Learning Account Centre to offer discounts to holders of Individual Learning Accounts. It has come to our attention that you are advertising learning which qualifies for an 80% discount - the European Computer Driving Licence (ECDL) - at a cost which seems to be higher than would normally be the case.
    Individual Learning Accounts are aimed at encouraging people to undertake more learning and to take more responsibility for their learning. I am concerned that, by charging at levels that may be inappropriate, individuals may be discouraged from learning or will not continue to learn if they perceive the costs are high. I am also concerned that the scope of the ECDL you offer is appropriate for the 80% discount.
    I would like you to provide me in writing, and no later than Monday 4 September 2000, your reasons for charging £4,000 for the ECDL. If I do not receive this from you or I am not satisfied with the reasons you are giving, I may ask the Individual Learning Account Centre to remove Amraf Training Plc from the registered list of learning providers with immediate effect. This means that you will not be able to offer your learning to Individual Learning Account holders or be able to reclaim any discounts."
  8. Mr Dawson was understandably very concerned by this letter, and he replied in detail on the same day, setting out a detailed account of the nature of the course that his company was offering and the costs that it would entail both in terms of provision of facilities and in the recruitment and employment of qualified teachers. I do not need to set out that letter, but it certainly dealt with the matter in the way that I have explained.
  9. Also on that day, and I mention this because of a matter that I shall have to deal with in due course, Mr Dawson telephoned a Mr Greenaway. Mr Greenaway was a former associate of Mr Dawson, and he at that time worked for, indeed was a director of, a competing organisation in the same field, which has been referred to in these proceedings as "Simply Training". That may not be its full name. He asked Mr Greenaway if Simply Training had received a similar letter. Mr Greenaway told him that it had not done so. Thereafter, because of the conversation, Mr Greenaway himself telephoned the Department. He did not reach Ms Pierce but reached a Ms Stevens who gave him a somewhat different account, according to his evidence, of the Departmental policy, to which I shall have to return in due course.
  10. Mr Dawson then takes up the story in the detailed affidavit that he swore in the judicial review proceedings. He explains this stage of the matter in paragraphs 17 and 18 of his affidavit, again some parts of which I need to set out. He describes his letter and his offer to meet Ms Pierce, and then says this:
  11. "17.I heard nothing from Ms Pierce until she telephoned on 31st August and left a message for me to return her call. This I did on the same day. Ms Pierce advised me that she had received the course material and had considered my letter. There was one point on which she required clarification from me in writing which was whether the Applicant would charge £4,000.00 for the ECDL course to an individual who did not qualify for the 80% discount."
  12. Mr Dawson explains that he told Ms Pierce by e-mail that they would not discriminate, as Ms Pierce said, but that the correspondence had been lost. There is no reason to think that that e-mail was not sent.
  13. "There then followed a protracted conversation. Ms Pierce confirmed that the Respondent was concerned with the pricing of the Applicant's course. However during the course of the discussion she did admit that the Applicant was not in breach of any of the terms and conditions for registration.... . The conversation ended with Ms Pierce confirming that she would revert to me in the event of there being any difficulties.
    18.I heard nothing from Ms Pierce and on the 4th September 2000 the scheme commenced operating. I would have thought and assumed that had there been a problem Ms Pierce would have telephoned me."
  14. Mr Dawson, together with evidence filed on his behalf by his solicitor, explains that the course was very popular amongst applicants and that by 19th September over 200 people had registered to go on it. Mr Dawson says that Amraf went ahead with all this, believing that there would be no problem so far as the Department was concerned. He points out further that the Department would have been aware of the number of people registered because they were all registered on the Department's website.
  15. On 20th September Mr Dawson received another letter from Ms Pierce, which it is again necessary to set out in full:
  16. "As you know, I had some concerns about the levels of charging for the ECDL course offered by Amraf Training Ltd to individual Learning Account holders £4,000 (including VAT) seemed high for 7 modules of relatively low level IT training together with the other elements of the ECDL.
    I have given all that you say in your letters careful consideration. Even accepting that the time and money which Amraf Training plc has devoted to the development of its ECDL course makes it necessary for the company to charge a fee of £4,000 that does not mean that the training represents value for money. On the contrary, it is my conclusion that the training does not offer value for the money which the Government provides by way of the discounts afforded to Individual Learning Account holders.
    As you know from the correspondence sent at the time of registration, Individual Learning Accounts are aimed at encouraging more individuals to do more learning. That intention is frustrated if substantial sums available under Individual Learning Accounts are utilised inefficiently to support training relatively few people at excessively high cost.
    I have therefore asked the Individual Learning Account Centre to remove Amraf Training Ltd from the list of registered providers with immediate effect. The Department will honour eligible discounts already properly allowed by you to individuals who have booked their learning prior to the date of this letter. Although if the Department subsequently determines that the discounts have been applied irregularly, the Department may require repayment of the sums paid. In addition, the Department will be writing to you separately about the `Licence to Skill' program and the appropriateness of payment of the discounts on this package."
  17. The de-registration, as it is called, of the applicant, Amraf, was plainly extremely unwelcome to it. Not only was it being impeded in performing what it had thought would be a beneficial and no doubt profitable form of activity, but also in his evidence and other applications before the court Mr Dawson points out that de-registration might well cast, or appear to cast, a question over the capacity or other aspects of the applicant in the market in which it was a very prominent participant.
  18. Met with this position, Amraf moved with very considerable speed. The application for judicial review of the decision to de-register it was issued on 22nd September, and as early as 26th September leave to move was granted by the single judge. Eventually the proceedings with which we are concerned came on before Elias J on 6th October, or commenced then, and he delivered his judgment on 9th October, Amraf being unsuccessful.
  19. I take the liberty of interposing that this was a case where the Administrative Court of the Queen's Bench Division demonstrated that it is available and able to grant relief and to consider detailed matters at short notice even though the consideration of this case was not in the event to the liking of the applicant.
  20. Elias J having rejected the complaint made by Amraf, on 11th October, that is to say immediately after his judgment, Amraf took up an offer that I think had in principle been available previously, that is to say to re-register but on the basis that only a fee of £1,000 would be charged. That of course indicated no acceptance on the part of Amraf that the Department's original decision had been justifiable; but Amraf realistically recognised that the legislation gave considerable powers of judgement and discretion to the Department, and that if it was going to trade in this market at all it had to do so on the terms that the Department required.
  21. On 23rd October provisions were brought in which, we were told, had been mentioned as a possibility at a much earlier stage that there should be a cap, or limit, applying to everybody who offered these courses at a considerably lower level either than Amraf had originally offered the course or indeed in its re-registered state.
  22. So much for the background. I now turn to the substance of the appeal. I should say, first of all, that there is before this court an application for the admission of a substantial amount of further evidence that was not before the learned judge. For my part, I would not admit that evidence; and I understand my Lords to be of the same mind. In order to explain, however, why I take the view that the evidence is not admissible, it is necessary first to explain what the issues were below and are before this court in order to put the application in context, even though in logical terms the application for fresh evidence should precede a consideration of the substance of the appeal.
  23. Before the judge it is right to say that the major part of the argument and the major part of his judgment was taken up with an investigation of an alleged legitimate expectation that Amraf had in respect of the Department's handling of this matter, expectations that have not been fulfilled. It was originally, as I understand it, suggested that there had been a substantive legitimate expectation, by reason of which the Department was inhibited from de-registering Amraf at all. That contention was not, I think, seriously pursued before the judge and in any event is not now maintained. Before the judge the main argument, which the judge dealt with in paragraphs 28 and onwards, was about procedural legitimate expectation. The judge dealt with that in some detail and found, first, that there had been a legitimate expectation that Amraf would be consulted before any de-registration took place and, further, the enquiries having been made of Amraf as indicated in the letter of the 29th August, that there would be further intervention with them on the receipt of Amraf's submissions before the final decision was taken. The judge recognised that although the first of those expectations had been fulfilled, the second had not been. But he held, at paragraph 48 of his judgment, that this was an exceptional case in which, even if such consultation had taken place, it would have made no difference to the outcome. He therefore found in clear terms that that part of the complaint was not made out.
  24. The court carefully enquired of Ms Appleby QC, who represents Amraf before us as she did before the judge, whether those complaints were still pursued in this court. That was because although complaint is made in the notice of appeal of the judge's decision so far as legitimate expectation is concerned, in the revised skeleton that was furnished to this court by Ms Appleby and Mr Simon Davenport, which we understood the basis of the appeal, those matters did not appear to be pursued. As I understand it, Miss Appleby now puts the point on legitimate expectation in somewhat different terms from those that were ventilated before the judge, but as I understand it complaint is not made of the judge's actual decision so far as legitimate expectation is concerned. I say no more of that, therefore, other than to say that having considered what the judge said and the way in which he analysed the matter, his conclusion as to the first element of consultation clearly cannot be challenged; and as to his second point, that what might have been said on the re-consultation would have made no difference to the outcome, he was plainly entitled to take that view as a matter of judgement on the basis of the evidence before him which he carefully considered and accurately reported. Therefore, in any event, there would be nothing in an appeal against that part of his judgment.
  25. The major, indeed effectively the only, complaint made before us is of a matter that only appeared in a somewhat roundabout way in the application to the judge. This is described as the "victimisation" argument. The word victimisation is not here used only for purposes of identification. In this argument the applicant says two things. First, that he was challenged and then de-registered in circumstances where others in similar case were not originally challenged nor de-registered. Second, that when the Department did turn its attention to other providers after it had de-registered Amraf (and therefore after it had prevented Amraf, unlike others, from charging high fees for these courses) the Department did not act with the promptitude in the other cases that might properly have been expected. That, it is said, was not merely different treatment of different cases, but was indeed a case of victimisation, that is to say a case of malice or ill-will only explicable by there being some form of undisclosed ulterior motive which caused the Department to take a different attitude to Amraf from that which it took towards its competitors.
  26. In putting the case that high the applicant in my judgement quite rightly appreciated that a mere case of different treatment would not suffice to produce relief in a judicial review application; it was indeed necessary to go further and make the complaint in the terms that I have just sought to outline it. That in its turn, however, means that such a complaint, in public law proceedings as much as in private law proceedings, has to be clearly pleaded and, when clearly pleaded, established by cogent evidence, including, if need be, cross-examination of those who give evidence in a contrary sense. Those requirements, I think, are not controversial; that aspect of public law is clearly expounded in the Fifth Edition of Smith on Judicial Review at paragraphs 13-011 and 13-012.
  27. The germ of this allegation is to be found in paragraph 27 of the first affidavit of Mr Dawson sworn on 25th September 2000. This again I think deserves to be quoted in full:
  28. "I would also point out that it appears to me that there has been an element of victimisation of the Applicant. At paragraph 21 of his Affidavit of the 22nd September Mr Skinner points out that at least two other course providers are advertising their course on the Internet at £4,000, the same price as the Applicant's course. The newspaper advertisement which I have exhibited at page 59 of `JD1' also contains an advertisement midway down on the right hand side offering the ECDL at only £1,000.00. In fact I am aware that the provider is actually Simply Training. An old employee of the Applicant works for Simply Training. I telephoned our ex-employee who advised me that the £1,000.00 was actually the amount of money paid by the student. Accordingly, together with the 80% funding from the Government, Simply Training are in fact charging £5,000.00 for the ECDL course. I note the date of the advertisement in the Evening Standard is the 20th September the date upon which the Respondent de-registered the Applicant. I would ask and am aware that my solicitors have asked the Treasury Solicitor why it is that the Respondent has chosen to pick on only the Applicant. To date the Respondent and its solicitors have been unable to provide an answer."
  29. I turn to see how the matter was put in Form 86A. In the statement of facts, and particularly in paragraph 16 thereof, allegations are made that at least two other course providers charge the same cost as Amraf, and Amraf expresses its belief that the same course is being charged for up to £10,000 by other course providers. In the grounds, the final ground relied on is as follows:
  30. "Further or in the alternative, the Respondent by selecting to instruct ILAC to remove the applicant from the list of Registered Providers but not Tech Connect and CCNA" [I interpose, those were the two providers referred to earlier in the grounds] "and others has acted selectively and in a biased manner."
  31. It is quite clear to me, reading all this matter in context, that the main thrust of Form 86A was to repudiate the contention originally raised by the Department that the course provided by Amraf was not or might not have been providing value for money. It will however have been seen from Ms Pierce's letter of 20th September - although it does not leap from the page, in my judgement it is clearly there - that the Department had chosen to emphasise a different concern, that is to say that if grants were available for very high value courses that would reduce the total budget available for computer learning as a whole, and therefore impede the policy of ministers, which was that such training should be widely spread over a large number of people.
  32. The allegation now made that there was positive malice against Amraf does not in my judgement come out at all clearly either from the passage in Mr Dawson's affidavit that I have cited or from that part of Form 86A which I have read. If the allegation were to be sustained it needed to be put before the judge in much clearer and more explicit terms. It was dealt with, nonetheless, by Ms Pierce in paragraph 14 of an affidavit that she swore on, I think, the day before the hearing before Elias J, where she said this:
  33. "Amraf Training plc were the first learning provider who came to the attention of the Department as offering a course, which, in the Department's view, did not offer value for money. More recently, the Department has become aware of 3 other learning providers whose charge for an ECDL course seems very high. In each case the Department has written to the provider concerned asking for an explanation of the high charges and saying that, subject to the explanations given, it is minded to remove those providers from the register for the same reasons that apply in this case."
  34. That was the state of the evidence before the learned judge. On a point that, as I have said, was arguably not sufficiently pleaded at all, and certainly did not stand in the forefront of the case that was put for him, nonetheless he considered it with some care in paragraphs 54 to 56 of his judgment, which again I set out in full:
  35. "54.That still leaves the victimisation argument. The applicant says that it has been treated unfairly because others in a similar position have been permitted to remain on the register. The respondent says that it is acting consistently and fairly because it is currently investigating other cases where it has come to its attention that the fee for courses has been pitched too high. Some of these instances were drawn to the attention of the respondent, by the applicant, when it obtained leave for permission for judicial review on 26th September. The companies concerned have been given the opportunity to make representation about their courses, just as the applicant was.
    55.In view of the explanation given by the Department, I do not believe that the applicant has been victimised as alleged. The power given to the Secretary of State to determine the amount of grant is set out in Regulation 7 of the Individual Learning Accounts (England) Regulations 2000. It is in very broad terms and, in my judgment, it was lawful for the subsidy to be removed from a particular course, as opposed to imposing a blanket ceiling. Indeed, I do not understand Miss Appleby to be arguing to the contrary. Other companies are being investigated as and when the Department has become aware that they might be charging too much for their courses. It is true that the information about the cost of other courses was available to the Department and it would have been possible for it to have followed up these other companies more speedily than it has.
    56.But in my judgment, even if it could be said that the Department was negligent in not investigating those companies earlier (a matter about which I express no view) that does not convert what would otherwise be the fair handling of the applicant into unfair treatment. Miss Appleby suggested that the reason why the applicant has been picked out for special treatment was because it had successfully recruited many students for the particular course and, as a consequence, the cost to the Department was high. I confess that even if that were so, it seems to me to be a perfectly rational reason for dealing with the position of the applicant as a matter of some urgency and before other companies were considered."
  36. As it seems to me, on the evidence as it stood before the judge his conclusions cannot possibly be complained of. He was given evidence by Ms Pierce, which was not sought to be cross-examined, that the Department was indeed considering the cases of other providers and was taking action in their cases similar to that which had been taken in respect of Amraf. She said that the other providers had come to their attention in this connection more recently than had Amraf, which was the reason why there had been the delay. Unless it was to be said that she was simply not telling the truth about that position, bearing in mind that she was the lady who had administrative charge of this matter, that was an explanation fully satisfactory to discharge any allegation of malice or ill-will. As the judge himself said, it might well be that things could have been dealt with more efficiently. He made no comment on that any more than I do. But that possibility fell far short of entitling the applicant to any sort of relief.
  37. In the appeal to us there have been two further developments. First, it is sought to adduce further evidence in respect of the matter of victimisation; and, second, Miss Appleby has expanded on the argument that was before the judge, referring to further considerations that, as I understand it, she contends he ought to have had in mind which would have caused him to take a different view.
  38. I deal first with the application to adduce further evidence. This is principally, but not entirely, evidence from Mr Greenaway of Simply Training to whom I have already referred. He produces two intended statements or affidavits, one dealing in more detail with his own dealings with the Department in respect of his own company, and the second setting out some figures as to the amount that Simply Training has been able to recover from students in the period between 3rd October (which is the date upon which the initial letter from the Department was sent to him) and the date upon which the cap was imposed. Amraf point out in that latter connection that this demonstrated that Simply Training had been able to take advantage of the original arrangements for a very much longer period of time than had Amraf itself. The second part of the further evidence is evidence from Mr Dawson and also from a Mrs Dawson, who is the finance director of Amraf, bringing the situation after the judge's judgment, as it were, up-to-date in respect of the losses or inconvenience that Amraf have suffered.
  39. In approaching the production of fresh evidence in this court, I am well prepared to accept that, not only by reason of the Civil Procedure Rules but also because these are judicial review proceedings, we are not strictly bound by the guidance given in the well-known case of Ladd v Marshall. That said, however, the guidance given in Ladd v Marshall is merely a matter of common sense and proper practice, and in my respectful judgment it fits exactly into the statement of the overriding objective, including the need to make efficient use of the court's resources, that is to be found in the Civil Procedure Rules.
  40. I therefore approach this matter in the first instance by asking myself whether it was possible for this evidence to be adduced before the judge. So far as the evidence of encounters with the Department on Mr Greenaway's part and the experience of this company Simply Training, I have no doubt that it would have been possible to adduce that evidence. I have already referred to the fact that Mr Dawson of Amraf was a person who knew well Mr Greenaway, and to the particular fact that, according to the evidence that Mr Greenaway wishes to put before this court, Mr Dawson had spoken to him as soon as he received Ms Pierce's original letter on 29th August and discovered then that Simply Training was a company who was not at that point being pursued, if I may use that word, by Ms Pierce and the Department. As it seems to me that in itself is a fact that could have been adduced before the learned judge, and it was not. More to the point, however, that early connection between Mr Dawson and Mr Greenaway demonstrates that it was the responsibility of Mr Dawson and Amraf, if they were to prepare the case properly for the learned judge, to take advantage of Mr Greenaway's knowledge and apparent willingness to cooperate. Indeed, that is what was done, because, as we have seen in the passage already set out in paragraph 27 of his affidavit, Mr Greenaway speaks of consulting a person whom he describes as an ex-employee of Amraf in connection with the experience of Simply Training. It has been assumed throughout, and we have not been told anything to the contrary, that that gentleman was Mr Greenaway. No explanation is given as to why there was no contact between Amraf and its advisers and Mr Greenaway in the period leading up to the proceedings before Elias J, or, if there was such contact, why Mr Greenaway was not prepared to cooperate. All that we are told in connection with the application is in a statement of truth deposed to by the applicant's solicitor on 14th May 2001, in which he describes difficulties in contacting Mr Greenaway after the judicial review proceedings had been heard. He says that he first met Mr Greenaway at the hearing of the application for judicial review on 8th October 2000. No doubt that is so. But the date upon which Amraf's solicitor first met Mr Greenaway is irrelevant if Mr Greenaway had made previous contact with Mr Dawson. It was not satisfactory that that was not dealt with at all in the evidence before this court in connection with this application, and I am afraid I have to say that it is even less satisfactory that when the deponent refers to Mr Greenaway as a director of Simply Training, that being the company referred to in Mr Dawson's affidavit on 25th September, he does not say, as we now understand to be the case, that the person at Simply Training with whom Mr Dawson spoke and to whom he refers was in fact Mr Greenaway.
  41. I am therefore quite satisfied that no adequate explanation has been given as to why Mr Greenaway did not give evidence before the judge. I appreciate that Mr Greenaway was at that time still an employee, or apparently still an employee or director, of Simply Training, and it is possible that if approached he would have felt inhibited from actually giving evidence in the application; but there has been no suggestion that was in fact the case, because either he was not approached or he was approached and we have not been told what the outcome was. For all those reasons, therefore, I would not admit that part of the evidence.
  42. So far as events after the judge's judgment were concerned, it seems to me that the new evidence that is intended to put in does no more than underline that the disparity of treatment between Simply Training and other trainers and Amraf was financially beneficial to the other trainers and unbeneficial to Amraf. That, if I may be permitted to put it in this way, is not news. It clearly was the nub of the complaint already made. It is not necessary to put in further evidence to establish that point. I therefore would not admit the new evidence, and in my judgement the matter should stand as it stood before the judge.
  43. It is right, however, to go on and explain as best I can the way in which Ms Appleby further put the case. She said that the unchallenged facts as to what occurred after the hearing before the judge further demonstrated that there had been discrimination and malice in this case. She pointed out that, as Ms Pierce had said, the others were not written to until 3rd October. Since it was now the Government's case that the main objection to Amraf, indeed the only objection, was that high value courses were inappropriate in any event for attribution to this budget whether or not they were in themselves of good value, it should have been easy to see and should have been seen that others offering high value courses like Simply Training must simply be struck off the list without further ado. Far from that happening, Simply Training were given eight days to reply, from 3rd October to 8th October, and when they replied on 11th October they were not immediately struck off as Amraf had been, but the matter was allowed to go on until it was overtaken by the general imposition of the cap for everybody on 23rd October.
  44. Ms Appleby said two things in respect of that. First of all, it finally established that a legitimate expectation that her clients had that everybody would be treated in the same way had not been fulfilled; and, second, there could be no explanation for this history of unequal treatment other than that in some way, for reasons unexplained, the Department wished to victimise Amraf itself. I will come back to the legitimate expectation question in a minute. However, I have to say that the circumstances referred to by Ms Appleby which I have just set out come nowhere near to establishing that this case is one of malice or ill-will, as opposed possibly - I say possibly - to being one of a lack of information, lack of zeal and possible incompetence.
  45. As to the delay from 3rd October onwards, I have to say that that complaint seems to me to fit ill into the argument that Amraf adduced before the judge below, accepted by him, that even in these circumstances the parties had an expectation which should be fulfilled that they were to have a chance to make submissions before they were actually struck off. True it is that in these circumstances the Department might have moved more quickly, but we are only talking of a matter of a few days before the cap was installed, not the sort of length of time that would start to raise a question as to whether there was a deliberate intention to favour Simply Training and others over Amraf.
  46. So far as the date at which it all started is concerned, I have already said that Ms Pierce had sworn as to the state of her, and the Department's through her, knowledge and appreciation of the situation. The judge accepted her evidence, as he had to, and that cannot be gone behind in this court. I therefore cannot accept that these new facts, even if they were ones that this court could take into account, establish the case that Ms Appleby seeks to establish.
  47. So far as the point about legitimate expectation is concerned, that of course is quite different from the argument on legitimate expectation that was put below, and is something that, as far as I can see, has never been pleaded or alleged, and I fear it has no substance. Of course citizens have a general belief that like cases will be treated alike, but that is a long way short of saying, first of all, that that belief is falsified by the type of events that have occurred in this case; or, second, that any relief is available on that basis. That is because Amraf's complaint is simply that it was wrongfully de-registered. It did not do anything on the basis of its understanding that like cases would be treated alike. It certainly did not embark on this venture, or at least there is no evidence that it did, on the basis of any such understanding. For that reason therefore, this plea of legitimate expectation, even if it were open to the applicant, I fear does not get anywhere.
  48. The short point in this case is that the complaint is about the de-registration on 20th September. In order to make that complaint good the applicant has to demonstrate, not having made an allegation in these terms before the court below, that the de-registration itself was for prejudiced, biased or malicious grounds. The evidence comes nowhere near that, as I have already said, and in my judgement it is a complaint that should not have been made.
  49. This judgment has gone far beyond the matters that were canvassed before the learned judge below, out of deference to the arguments that have been put before us: whether or not in strict terms those arguments were admissible before this court. The new arguments, for the reasons that I have indicated, do not prevail; and, also for reasons that I have indicated, no criticism can be made of the way in which the judge dealt with this case on the basis that it was put before him.
  50. I would dismiss this appeal.
  51. LORD JUSTICE JONATHAN PARKER: I agree that this appeal should be dismissed and the application to admit further evidence refused, for the reasons my Lord has given.
  52. In my judgment the so-called victimisation claim, a claim which I take to involve an allegation of malice or ill-will or other improper motive, is simply not supported by the evidence and the judge was right to reject it for the reasons he gave in paragraphs 55 and 56 of his judgment. The fact that other organisations in the same field were not investigated by the Department at the same time as the appellant cannot, in my judgment, suffice to raise an inference of improper motive on the part of the Department in its dealing with the appellant or, for that matter, a case of unfairness. As the judge said in paragraphs 55 and 56 of his judgment:
  53. "... in my judgment, it was lawful for the subsidy to be removed from a particular course, as opposed to imposing a blanket ceiling. Indeed, I do not understand Miss Appleby to be arguing to the contrary. Other companies are being investigated as and when the Department has become aware that they might be charging too much for their courses. It is true that the information about the cost of other courses was available to the Department and it would have been possible for it to have followed up these other companies more speedily than it has.
    But in my judgment, even if it could be said that the Department was negligent in not investigating those companies earlier (a matter about which I express no view) that does not convert what would otherwise be the fair handling of the applicant into unfair treatment."
  54. I respectfully agree with those observations. In my judgment lack of expedition on the part of the Department in dealing with other organisations in the same or substantially the same position as the appellant does not begin to establish the appellant's complaint of improper motive. A case based upon improper motive needs to be proved by cogent evidence, and there is no such evidence here.
  55. As to legitimate expectation, in so far as the judge's conclusions on that aspect of the case are challenged on this appeal, I, like my Lord, find the judge's conclusions wholly convincing for the reasons he gave.
  56. LORD JUSTICE PETER GIBSON: I agree with both judgments.
  57. Order: Applications dismissed with costs.

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