Amraf Training Plc, R (on the application of) v Department Of Education & Employment

Unequal treatment by a public authority does not, without more, establish unlawful victimisation or unfairness. An allegation of malice, ill-will or other improper motive must be clearly pleaded and proved by cogent evidence. The fact that comparable cases were investigated later, or less promptly, is insufficient without evidence of an improper motive. The Court of Appeal also confirmed that fresh evidence may be refused where it could have been adduced below or merely repeats matters already in issue. A general expectation that like cases will be treated alike does not ordinarily found relief unless the claimant acted in reliance on it or otherwise establishes a legally enforceable expectation.

Amraf Training Plc was registered as a provider under the Individual Learning Accounts scheme. It offered a European Computer Driving Licence course at a fee of £4,000, attracting an 80 per cent government discount. The Department concluded that the course did not provide value for money and instructed its removal from the register.

Amraf applied for judicial review. Elias J rejected its complaints, including procedural legitimate expectation and alleged victimisation. The appeal challenged the treatment of Amraf compared with other providers and sought to adduce further evidence concerning those providers and subsequent losses. The central issues were whether the decision was motivated by malice or improper purpose, and whether the further evidence should be admitted.

1. Appeal dismissed; further evidence refused. The court unanimously dismissed the appeal and dismissed the applications with costs.
2. The principal complaint alleged victimisation, meaning malice, ill-will or another improper motive. Such an allegation in public law must be clearly pleaded and established by cogent evidence. Where necessary, the evidence may require cross-examination. Amraf had not clearly pleaded the allegation below, and the evidence did not establish it.
3. The Department’s failure to investigate other providers at the same time, or with the same expedition, did not establish improper motive or unfairness. The unchallenged evidence was that the other providers came to the Department’s attention later and were being investigated for similar reasons. Possible inefficiency or delay fell far short of proof of malice.
4. The court agreed that Ladd v Marshall provided useful guidance on fresh evidence. Although the court was not strictly bound by that test in judicial review proceedings, its requirements reflected common sense, proper practice and the overriding objective in the Civil Procedure Rules. Evidence which could have been produced before the judge, without adequate explanation, was excluded. Later evidence that merely underlined the financial disparity already forming the substance of the complaint was likewise inadmissible.
5. The court upheld the judge’s conclusion that no actionable legitimate expectation arose from a general belief that like cases would be treated alike. Amraf had not embarked on its course venture in reliance on such an understanding.
6. The court also accepted that regulation 7 of the Individual Learning Accounts (England) Regulations 2000 conferred a broad power to remove the subsidy from an individual course without imposing a blanket ceiling.

• Court of Appeal (Civil Division): Appeal from the decision of Elias J delivered on 9 October 2000. Appeal dismissed and applications dismissed with costs.
• Administrative Court, Queen’s Bench Division: Judicial review claim unsuccessful. The judge rejected the legitimate-expectation and victimisation complaints.