E, R (on the application of) v Governing Body of JFS & Anor

Where a claimant succeeds in establishing that an unlawful criterion caused a child to be refused admission, the court may make a mandatory order designed to place the child as nearly as possible in the position he would have occupied without that criterion. Relief need not be withheld because other children may have been affected but are not before the court, particularly where admitting the child creates no serious practical difficulty. Costs may be ordered against an intervener that takes the principal role in opposing the claim. A public decision-maker may also lose the usual protection from costs where it actively defends its decision and does not act neutrally.

These were two conjoined appeals by E from decisions of the High Court of Justice, Queen’s Bench Division, Administrative Court, before the Hon. Mr Justice Munby, in claims CO/7896/2007 and CO/11587/2007. The appeals concerned E’s application to a school in 2007 and the use of an unlawful criterion. The Court of Appeal had to determine the appropriate relief following success on the issue of principle, together with consequential questions concerning implementation, costs and permission for a further appeal.

1. The appeals succeeded on the issue of principle. The Court made a mandatory order under paragraph 7 of its order, intended to put M as nearly as possible in the position in which he would have been had the unlawful criterion not been used.

2. The Court rejected the submission that relief should be withheld because a substantial number of other children had been refused for the same reason. Only M, through his father, was before the Court. Having succeeded on the principle, it would have been unjust to send him away without an effective remedy. The Court considered that admitting one additional pupil was unlikely to create any serious difficulty for the school.

3. The Court declined to grant leave to appeal to the House of Lords. It did not regard the case as involving such manifest general importance or legal difficulty as to justify leave, subject to any decision on a petition by the House itself.

4. The costs order reflected the parties’ relative active participation in what was, in practical terms, a single appeal. The United Synagogue was required to contribute to E’s costs because, through leading counsel and with the agreement of the other parties, it took the principal role in opposing the claim and defending the first-instance decision. The Schools Adjudicator was also treated as an active participant rather than a neutral decision-maker. In particular, he sought to defend his decision and to persuade the Community Legal Service to withdraw E’s funding.

5. The Court expressed concern that paragraph 7 should be implemented promptly unless further stayed, and recorded its confidence that it would be implemented honourably and in good faith.

• Court of Appeal (Civil Division): In [2009] EWCA Civ 681, the appeals succeeded on the issue of principle. A mandatory order was made and consequential costs directions were given.
• High Court of Justice, Queen’s Bench Division, Administrative Court: Decisions of the Hon. Mr Justice Munby in claims CO/7896/2007 and CO/11587/2007 were under appeal.