London Oratory School, R (on the application of) v The Schools Adjudicator & Anor

When a public-law decision is quashed, the court has a broad discretion to remit the matter to the original or a newly appointed decision-maker. Remittal is appropriate where Parliament has entrusted the issue to that decision-maker, the issue remains unresolved, and the outcome is not inevitable. A fresh decision may be made on the material then available. The court should not substitute its own decision merely because the original decision was unlawful.

Costs are determined by the overall justice of the case. The court considers the litigation as a whole, the parties’ real degree of success, and all relevant circumstances, including partial success and unreasonable conduct. Costs may therefore be apportioned rather than awarded wholly to either party.

The judgment concerned consequential matters following the court’s substantive judicial review decision in R (on the application of The Governing Body of the Oratory School) v The Schools Adjudicator & others [2015] EWHC 1012 (Admin). Six aspects of the Schools Adjudicator’s determination had been quashed.

The court was required to decide whether the issue concerning the School’s regard to the Archdiocese of Westminster’s published guidance, under paragraph 1.38 of the School Admissions Code (2012), should be remitted to a newly appointed adjudicator. It also had to determine the costs payable between the School and the Adjudicator, and later refused permission to appeal against the remittal decision.

1. Remittal. The court had a wide discretion under section 31(5) of the Senior Courts Act 1981 and CPR 54.19(1) and (2) to remit a quashed decision with a direction that the decision-maker reconsider the matter and reach a decision in accordance with the judgment. The court declined to substitute its own decision because Parliament had entrusted the issue to the Schools Adjudicator. A fresh decision would be made on the material then available, which might differ from the material before the original decision-maker: R(C) v Chief Constable of Manchester [2011] EWCA Civ 175.
2. The Schools Adjudicator retained power under section 88I(5) of the School Standards and Framework Act 1998 to investigate the admission arrangements and decide whether they conformed to the statutory requirements. That power continued until the issue was finally resolved.
3. The outcome of a fresh determination was not inevitable. It remained for the Adjudicator to decide whether the School had a clear and proper reason for departing from the Diocesan Guidance, including where proposed faith-based criteria were expressly forbidden by it. The issue was therefore remitted to a newly appointed Adjudicator, who was directed to reconsider it in accordance with the substantive judgment, particularly paragraphs [58]-[61].
4. Costs. The discretion under CPR 44.2 was broad. The court applied the principles that costs generally follow the event, that all the circumstances and partial success must be considered, and that success is assessed by reference to the litigation as a whole and in a realistic, common-sense manner. The School was largely successful on the significant issues, although it failed on the Catholic-service issue. The Adjudicator was ordered to pay 80% of the School’s assessed costs, with £60,000 payable on account.
5. Permission to appeal was refused because the School had no real prospect of showing that the court had adopted the wrong approach to “have regard” under paragraph 1.38 of the School Admissions Code (2012). Time for renewing the application before the Court of Appeal ran from the hand-down date.

• High Court (Administrative Court): In the substantive judicial review decision, R (on the application of The Governing Body of the Oratory School) v The Schools Adjudicator & others [2015] EWHC 1012 (Admin), six aspects of the Adjudicator’s determination were quashed. The present judgment ordered remittal of the Diocesan Guidance issue, determined costs, and refused permission to appeal.