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England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Evans v University of Cambridge  EWHC 1382 (Admin) (5 July 2002)
Cite as:  EWHC 1382 (Admin)
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QUEEN’S BENCH DIVISION
London, WC2A 2LL
B e f o r e :
| DR GILLIAN ROSEMARY EVANS||Claimant|
|THE UNIVERSITY OF CAMBRIDGE||Defendant|
Smith Bernal Reporting Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
MR GERARD CLARKE (instructed by CLIFFORD CHANCE) for the DEFENDANT
AS APPROVED BY THE COURT
Crown Copyright ©
Mr Justice Scott Baker:
“Quite apart from the specific grounds put forward by the applicant, which themselves lack intrinsic merit, generally, the applicant has failed to satisfy me there is in her application to challenge the decision of the Appeals Committee, any sufficient element of public law to justify the grant of leave. The essence of the dispute between the applicant and the University lies in its role as an employer and her position as an employee. That relationship is governed by the ordinary rules of the law of contract. If and to the extent that the applicant wishes to claim that her employer has acted unfairly towards her, that is capable of resolution as a breach of her private law rights. The mere fact that certain aspects of the government of the University do fall within the field of public law if, by way of example, its decisions have been reached by ignoring well known public law principles, then public law can be successfully invoked. But that is a long way from anything from which the applicant seeks to ventilate in regard to her own promotion and the activities of the Appeals Committee.”
The Promotions Process
“No one could have been in the least surprised if the panel had been initiated and operated under the direct authority of statute law, since it operates wholly in the public domain. Its jurisdiction extends throughout the United Kingdom. Its code and rulings apply equally to all who wish to make take-over bids or promote mergers, whether or not they are members of bodies represented on the panel. Its lack of a direct statutory base is a complete anomaly, judged by the experience of other comparable markets world wide.”
The Court looked closely at the underlying circumstances of what the Take- Over panel was doing. This was of much greater relevance than the source of its power.
“There is a danger of confusing the rights with their appropriate remedies enjoyed by an employee arising out of a private contract of employment with the performance by a public body of the duties imposed upon it as part of the statutory terms under which it exercises its powers. The former are appropriate for private remedies inter parties whether by action in the High Court or in the appropriate statutory tribunal, whilst the latter are subject to the supervisory powers of the court under R.S.C. Ord 53.”
Walsh was distinguishable because the disciplinary procedures in that case were incorporated into the contract of service which deprived the procedures and compliance with them of any possible public law character. So in the present case promotion is something to be determined according to Dr Evan’s terms of service.
“The circumstances that the University was established by statute and is regulated by the statutory enactments contained in the Act does not involve that contracts of employment which are made with teachers and which are subject to the provisions of section 18(e) are other than ordinary contracts of master and servant.”
“On the other hand, there are some cases where the distinction has been lost sight of, and where the mere allocation of the label – master and servant – has been thought decisive against an administrative law remedy.
One such, which I refer to because it may be thought to have some relevance here is Vidyodaya University Council v Silva  1W.L.R. 77, concerned with a university professor, who was dismissed without a hearing. He succeeded before the Supreme Court of Ceylon in obtaining an order for certiorari to quash the decision of the University, but that judgment was set aside by the Privy Council on the ground that the relation was that of master and servant to which the remedy of certiorari had no application. It would not be necessary or appropriate to disagree with the procedural or even the factual basis on which this decision rests, but I must confess that I could not follow it in this country in so far as it involves a denial of any remedy of administrative law to analogous employments. Statutory provisions similar to those on which the employment rested would tend to show, to my mind, in England or in Scotland, that it was one of a sufficiently public character, or one partaking sufficiently of the nature of an office, to attract appropriate remedies of administrative law.”
“1. In relation to his personal claims against an employer, an employee of a public body is normally in exactly the same situation as other employees. If he has a cause of action and he wishes to assert or establish his rights in relation to his employment he can bring proceeding for damages, a declaration or an injunction (except in relation to the Crown) in the High Court or the County Court in the ordinary way. The fact that a person is employed by the Crown may limit his rights against the Crown but otherwise his position is very much the same as any other employees. However, he may, instead of having an ordinary master and servant relationship with the Crown, hold office under the Crown and may have been appointed to that office as a result of the Crown exercising a prerogative power for, as in this case, a statutory power. If he holds such an appointment then it will almost invariably be terminable at will and may be subject to other imitations but whatever rights the employees has will be enforceable normally by an ordinary action. Not only will it not be necessary for him to seek relief by way of judicial review, it will normally be inappropriate for him to do so……..
2. There can however be situations where an employee of a public body can seek judicial review and obtain a remedy which would not be available to an employee in the private sector. This will arise where there exists some disciplinary or other body established under the prerogative or by statute to which the employer or the employee is entitled or required to refer disputes affecting their relationship. The procedure of judicial review can then be appropriate because it has always been part of the role of the court in public law proceedings to supervise inferior tribunals and the court in reviewing disciplinary proceedings is performing a similar role. As long as the ‘tribunal’ or other body has a sufficient public law element, which it almost invariable will have if the employer is the Crown and it is not domestic or wholly informal its proceedings and determination can be an appropriate subject for judicial review…….
3. In addition if an employee of the Crown or other public body is adversely affected by a decision of general application by his employer, but he contends that that decision is flawed on what I loosely describe as Wednesbury grounds, he can be entitled to challenge that decision by a way of judicial review……..
4. There can be situations where although there are disciplinary procedures which are applicable they are of a purely domestic nature and therefore, albeit that their decisions might affect the public, the process of judicial review will not be available…….”
It is to be noted that in McLaren’s case the employment dispute was regarded as a private law matter despite the fact that the claimant prison officer worked in a public institution.
“…….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.”
MR JUSTICE SCOTT BAKER: For the reasons given in the judgment that has been handed down the judicial review fails.
MR CLARKE: My Lord, as my Lord can see Dr Evans is not here this morning, and it does not appear that she intends to be present; she sent an email to somebody at the university about an hour ago from which, unless she sent it from a lap-top, it appears that she is in Cambridge this morning. So she is not going to come.
MR JUSTICE SCOTT BAKER: Yes.
MR CLARKE: My Lord, I invite the court to order that Dr Evans pay the costs of both applications, which have been dismissed now on a substantive basis. I do not invite my Lord to assess those costs, not least because Dr Evans is not here to make any submissions about that, but I would invite the court to accept the principle, ordinary principle, that this has now been a substantive judicial review upon which Dr Evans has failed at the public law threshold.
MR JUSTICE SCOTT BAKER: Yes.
MR CLARK: My Lord, even if you had only been dealing with it on permission, and if my Lord had refused permission, I would say it is one of those cases where an oral hearing with both parties represented, it was appropriate for the respondent to have its costs. But we have gone beyond that stage now and we are now, I would submit, in the ordinary position where the unsuccessful party should pay the costs.
Now, in fact, it may well be that the party would be able to come to some agreement about the amount of costs hereafter and it will not need to go to a full assessment, but in the absence of Dr Evans here to make any observations about that, I simply invite my Lord to make the order in principle, and the assessment can follow on for a detailed assessment in the usual way?
MR JUSTICE SCOTT BAKER: Yes. I am just wondering whether it might be desirable to say that the order should not be drawn up for seven days in order to give her an opportunity to make any further representations that she wants to on costs?
MR CLARKE: I do not anticipate that there would be a problem, my Lord. My only observation, I suppose, would be that she has known of the judgment since it was issued in draft the day before yesterday. She has known what the result was going to be this morning.
MR JUSTICE SCOTT BAKER: She has, I think, written something saying that she did not want to pay the costs.
MR CLARKE: We have not seen anything ourselves from Dr Evans.
MR JUSTICE SCOTT BAKER: Well there is a request for leave to appeal. What she says is this, this has been faxed through: "The Court of Appeal found against the university in the applicant's application for leave to appeal over costs in October 1999. The judgment was critical of the university's extravagance in running up costs beyond what was reasonable and proportionate. The judge will have noticed that two senior solicitors from Clifford Chance were present throughout the day's hearing on 9th May. If the respondent appears to seek costs at the handing down of the judgment, the applicant asks for a hearing to be set and for reasonable time to obtain the advice of a costs draughtsman so that she may be in a position to put forward properly-founded arguments about the size of the university's bill."
MR CLARKE: My Lord, what appears to me from that is that Dr Evans does not invite the court not to make any order for costs, but she might simply take issue as to the quantum. In those circumstances, my Lord, I would suggest that the appropriate order is an order for costs to be assessed, and that should not be made subject to any further period of challenge. But that, of course, Dr Evans would have every opportunity on the assessment to make all appropriate points.
The Court of Appeal matter she was referring to, my Lord, was simply a county court case where a costs order was made favourably to the university, and all that happened there was that Dr Evans obtained leave to appeal in respect of the costs order. The matter did not go any further because it was resolved by agreement between the parties.
But, my Lord, in the circumstances Dr Evans has effectively signalled to the court her intention to argue on quantum.
MR JUSTICE SCOTT BAKER: That seems pretty clear and she is not, I think, taking issue, according to this document, with the principle.
MR CLARKE: Yes, and I would suggest that, my Lord, rather than saying that this order should be left open or not drawn for any period of time, my Lord should make the order. The order then goes-- obviously the costs then go for assessment. If the parties cannot agree the matter then the costs judge will have to deal with it and, of course, Dr Evans can take such advice on costs as it is appropriate and make such submissions as she wishes.
MR JUSTICE SCOTT BAKER: Yes, very well, I shall make an order for costs and direct that there is to be a detailed assessment.
MR CLARKE:: My Lord, I am grateful.
MR JUSTICE SCOTT BAKER: Now, as far as her request for permission to appeal, what she says is this: "In view of the immense importance to academic staff at universities of this question of access to public law remedies and its considerable significance as a public interest issue, the applicant seeks permission to appeal. The applicant takes the opportunity to mention that at the time of sending this, on the morning of 5th July, she has received no notice from the respondent that it intends to be present in court for the handing down of the judgment to seek costs. She has had no schedule of the respondent's costs in this matter at any time. She repeats her request to be allowed a hearing if the respondent seeks an award of costs."
MR CLARKE: Well it seems we are going back on to that ground, my Lord, but I would suggest that really does not alter the position as to costs, that is a leave to appeal matter. I would simply say that what my Lord has done is really decided this case as applying well-established principles as to the public/private law divide insofar as it concerns employment disputes, and my Lord has averted to a number of leading cases on that. Although it might be thought to be of importance to Dr Evans, it is not really a case of pressing public interest or general public interest, in my submission. Nor is it a case which establishes any new legal frontier. My Lord has, as I indicated, applied the well-established to principles to the facts of this case and it is not a matter upon which leave to appeal should be granted, certainly not by this court. If Dr Evans wishes to take it further, then perhaps she will try the Court of Appeal.
MR JUSTICE SCOTT BAKER: I am going to refuse permission to appeal. It seems to me that there has already been far too much litigation in relation to this matter and I am not prepared to do anything to encourage it.
As far as the costs are concerned, again, it appears from these two documents that the issue is as to quantum. In the circumstances the order will be made as I indicated.
MR CLARKE: I am most grateful, my Lord.