S & Ors v Chapman & Anor

A claim under the Human Rights Act 1998 based on exclusion from education requires an arguable systemic failure or denial of access to education; adverse consequences of exclusion alone are insufficient. Article 3 and Article 8 claims likewise require an arguable act or omission engaging the relevant Convention duty.

Personal-injury allegations may be struck out where, after opportunities to amend, the pleading gives no meaningful particulars and required supporting material is absent. Courts will not adjudicate educational decisions involving academic or pastoral judgment where legitimate professional disagreement is inherent. A claimant challenging such decisions must still show failure to meet the Bolam standard. The unsuccessful party bears the burden of showing that refusal of mediation was unreasonable and that mediation had a reasonable prospect of success.

The appellants were members of a family whose severely autistic child, W, had been excluded from a special school. They sued the headmaster and governing board, alleging negligence in the provision of education, breaches of the Human Rights Act 1998, personal injury, and defects in W's timetable and curriculum.

Master Eyre struck out substantial parts of the claim, ordered costs and stayed the proceedings. HHJ Seymour dismissed the ensuing appeal, while granting permission on three issues: the human-rights claims, the adequacy and remoteness of the personal-injury claims, and the justiciability of the timetable and curriculum allegations. The Court of Appeal also considered costs, the stay, and the proposed substitution of W's litigation friend. The central questions were whether those claims had a real prospect of success and whether the interlocutory orders could properly be challenged.

1. Disposition. The appeal was dismissed. Permission to appeal was refused on the costs issue, the stay, and the refusal to substitute the father as litigation friend.
2. Human rights. The claims concerning the exclusions were unarguable. Applying A v Essex County Council [2008] EWCA Civ 364 and Ali v Lord Grey School [2006] 2 AC 363, an Article 2 first-protocol claim required an arguable systemic failure or denial of access to education. The alleged exclusions and resulting harm did not establish that failure. The court therefore did not need to decide whether disability justified an extension under section 7(5) of the Human Rights Act 1998. Article 3 was not arguably engaged. Article 8 also required an act or omission engaging the duty of respect, which the alleged educational failures did not supply. The proposed claim concerning removal from the register failed for the same substantive reason, and section 54(4) of the Access to Justice Act 1999 also deprived the court of jurisdiction to entertain the proposed appeal.
3. Personal injury. The pleading did not identify the injuries with sufficient detail, and the defects remained after repeated opportunities to amend. The requirements in Practice Direction 16, paragraphs 4.1 to 4.3, existed so that the defendants could understand the case they had to meet. Strikeout was therefore justified. The court did not need to determine whether the alleged injuries were too remote.
4. Timetable and curriculum. Applying Clarke v University of Lincolnshire and Humberside [2000] Vol 1 WLR 1988, the court would not adjudicate educational questions involving academic or pastoral judgment on which legitimate professional opinions might differ. The claim also could not satisfy the Bolam test, namely showing departure from a practice accepted as proper by responsible bodies skilled in teaching autistic children.
5. Costs and mediation. Under CPR 44.3, the unsuccessful party seeking departure from the usual costs order bore the burden of proving unreasonable conduct. Halsey v Milton Keynes General NHS Trust [2004] Vol 1 WLR 3002 recognised that a reasonable belief in a strong case might justify refusal of mediation, but the claimant also had to show a reasonable prospect of success at mediation. The respondents' position was reasonable in the circumstances.
6. Stay and litigation friend. The proper route to challenge the stay was an application to Master Eyre. The Court of Appeal could not set it aside in this appeal. The refusal to substitute the father as litigation friend involved a finding of fact that was not plainly wrong, and there was no real prospect of upsetting it.

• Court of Appeal (Civil Division): In [2008] EWCA Civ 800, dismissed the appeal on the three issues for which permission had been granted and refused permission on the remaining applications.
• High Court, Queen’s Bench Division: HHJ Seymour dismissed the appeal from Master Eyre’s interlocutory orders and ordered costs. Permission was granted only on the human-rights, personal-injury, and timetable and curriculum issues.
• Master Eyre: Struck out substantial parts of the Particulars of Claim, ordered costs, and stayed the proceedings pending further order.