Ellis v Merchant Taylors School

In a contractual challenge to a pupil’s expulsion, a governors’ review must provide an independent judgment on whether the sanction was warranted and proportionate. It need not be a full rehearing if the panel independently assesses the relevant facts and sanction. A review can also cure potential unfairness arising from allegations not put to the pupil by excluding them or allowing a fair opportunity to respond. Apparent bias is assessed by the fair-minded and informed observer test. Professional acquaintance and limited social contact between school head teachers did not establish apparent bias.

The claimant parents challenged the respondent school’s expulsion of their son, Lloyd Ellis, seeking injunctive relief and damages for breach of contract. Manchester County Court dismissed the pleaded complaints and also rejected an unpleaded complaint of apparent bias at the governors’ review hearing.

The appeal concerned apparent bias, whether the review panel had independently reconsidered the expulsion, and whether the headmaster had acted contrary to natural justice by relying on further allegations without giving Lloyd an opportunity to answer them.

1. Appeal dismissed. The court upheld the county court’s dismissal of the claim.
2. Apparent bias is determined by asking whether the fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the tribunal was biased: Porter v Magill [2001] UKHL 67; [2002] 2 AC 37. The relationship between the independent panel member and the headmaster consisted principally of professional acquaintance, meetings at conferences, attendance at the same church and limited family contact. It did not establish apparent bias.
3. The contractual review procedure required the panel to consider whether the facts had been sufficiently proved and whether expulsion was warranted and proportionate. It did not need to be a full rehearing. The judge was entitled to accept evidence that the governors had exercised their own independent judgment.
4. The review procedure addressed the natural justice complaint. The panel could disregard further allegations introduced by the headmaster, or give the pupil a fair opportunity to answer them if they were sufficiently important to rely upon. The panel disregarded the further incidents and decided the matter on the basis of two admitted incidents which it considered merited expulsion.
5. It was unnecessary to consider separately whether injunctive relief would serve a practical purpose because none of the grounds of appeal had been made out.

• Court of Appeal (Civil Division): [2009] EWCA Civ 1050, appeal dismissed.
• Manchester County Court: order dated 28 May 2009 dismissing the claim for injunctive relief and damages for breach of contract.