AB v University of XYZ (Supplementary Judgment)

A court should not reopen substantive issues in a handed-down draft judgment except in exceptional circumstances. Where the applicable principles are clear, disagreement with their application will not ordinarily justify permission to appeal. A short stay may nevertheless be granted to preserve the practical opportunity to appeal where urgency makes delay material.

In costs, the court may depart from the usual rule by considering conduct and success on discrete issues, including arguments that were unreasonably advanced and increased costs. Statutory anonymity under Sexual Offences (Amendment) Act 1992 extends to matter likely to identify the complainant. Even apart from that statutory prohibition, reporting restrictions may be maintained only where strictly necessary, but the parties need not receive identical protection.

This was a supplementary judgment following an earlier judgment in proceedings concerning disciplinary proceedings and allegations of a sexual offence. The court addressed the form of relief, permission to appeal, a stay, costs and reporting restrictions.

The defendant sought further consideration of the practicality of a fresh disciplinary hearing and further representations on relief. The parties also disputed the extent of anonymity and whether either party could be named. The central issues were whether the draft judgment should be revisited, whether permission and a stay should be granted, how costs should be apportioned, and whether statutory or court-ordered reporting restrictions should continue.

1. Relief and reopening the judgment. The court refused to reopen relief. The evidence showed that it was practical to hold a fresh disciplinary hearing, and the issue of relief had remained live during the trial. Further evidence could not properly be introduced after judgment. Substantive amendment of a draft judgment was permissible only in exceptional circumstances, applying R (Mohamed) v Secretary of State for Foreign and Commonwealth Affairs (No. 2) [2011] QB 318 at [4]. No such circumstances existed. Matters concerning attendance, representation and hearsay could be addressed by the second disciplinary committee.
2. Permission and stay. Permission to appeal was refused. The applicable principles were clear, and greater scope for argument about the court’s conclusions when applying those principles would not normally justify an appeal, applying DB v Chief Constable of Police Service of Northern Ireland [2017] NI 301. The order was stayed for 21 days to allow the defendant to appeal and seek any further stay from the Court of Appeal.
3. Costs. Applying CPR 44.2(4), the court departed from the general rule because costs had been increased by unsuccessful arguments, including an unmeritorious dispute about which version of the regulations applied. The claimant was awarded 50% of his costs, to be assessed if not agreed. The approach to issue-based costs was informed by Pigot v Environment Agency [2020] EWHC 1444 (Ch) at [6(3)].
4. Reporting restrictions. Section 1 of the Sexual Offences (Amendment) Act 1992 prohibited naming the complainant and publishing matter likely to identify her. The court rejected the submission that section 1 did not apply, supported by ABC (A mother) v Chief Constable of West Yorkshire Police [2017] EWHC 1650 (QB) at [2]. If the statute had not applied, restrictions on naming the claimant would still have been necessary under CPR 39.2(4), having regard to open justice and the minimum derogation principles in In re Guardian News and Media Ltd [2010] 2 AC 697 at [65] and JXMX v Dartford and Gravesham NHS Trust [2015] EWCA Civ 96 at [17]. The defendant was not automatically entitled to parity, but the risk of identifying the claimant justified continuing restrictions in relation to it.

The judgment records no earlier appellate decision. It refused permission to appeal but stayed the order for 21 days to permit an appeal and an application for a further stay to the Court of Appeal.