AB v XYZ

In contractual disciplinary proceedings, natural justice may require legal representation and an effective opportunity to test an accuser’s evidence, even though the proceedings are neither criminal nor regulatory. Hearsay evidence is not automatically inadmissible, but admissibility depends on the circumstances. Where the allegation is serious, the evidence is central and contested, the consequences are grave, and reliability cannot otherwise be tested, fairness may require exclusion of the hearsay altogether. It is insufficient merely to admit the evidence and assign it reduced weight. A tribunal acts unfairly and irrationally if it treats untested evidence as honest and cogent while failing to examine material inconsistencies in a balanced way.

The claimant, a former university student, challenged contractual disciplinary decisions finding him guilty of sexual misconduct and expelling him. An earlier High Court judgment had held that, in the circumstances, natural justice required legal representation and questioning of the complainant through the chair. The complainant attended the first disciplinary hearing but did not attend the second hearing, despite efforts by the university to secure her attendance. The second committee admitted her statements as hearsay, treated them as compelling and found the allegation proved. The claimant challenged both the committee’s decision and the appeal committee’s refusal of his appeal. The central issue was whether the proceedings could fairly continue and the allegation be proved without the complainant being available for questioning.

1. The claim succeeded. The second Disciplinary Committee’s decision, and the Disciplinary Appeal Committee’s decision, were in breach of contract because they failed to comply with the contractual requirement of natural justice and were unfair and Wednesbury unreasonable.
2. The court respectfully agreed with the earlier High Court judgment that, on the facts, natural justice required legal representation, including the representative’s participation in formulating and submitting questions to be put through the chair. That conclusion was case-specific and reflected the seriousness of the allegation, its potential impact on the claimant’s education and career, and the central importance of testing the competing accounts.
3. There was no general rule excluding hearsay in internal disciplinary proceedings. However, the committee had to consider whether admitting the complainant’s evidence without any opportunity for questioning could produce a fair process. The relevant circumstances included the centrality of the evidence, the seriousness of the allegations, the consequences for the claimant, the extent of the challenge, the reliability of the evidence and whether it could otherwise be tested.
4. Those considerations required particularly anxious scrutiny here. The complainant’s evidence was uncorroborated and fundamentally conflicted with the claimant’s account. The committee’s reliance on inconsistencies in the claimant’s evidence did not make the complainant’s evidence non-decisive. The central issue remained whose account of the events in the bedroom was reliable.
5. It was unfair and Wednesbury unreasonable to describe the complainant’s untested evidence as honest and cogent. The committee had failed to examine material inconsistencies in her account and had not fairly assessed the contradictions between both accounts. Reducing the weight given to hearsay could not cure the defect where the evidence could not fairly be evaluated without questioning.
6. Even if the complainant had a good reason for non-attendance and the university had taken all reasonable steps to secure it, that would not make admission of the hearsay fair in this case. The court made no findings about what occurred or whether the complainant had capacity to consent. The precise form of relief was left for agreement or consequential submissions.

1. High Court (King’s Bench Division) — Mr Southey KC, sitting as a Deputy High Court Judge, gave judgment on 6 November 2020: [2020] EWHC 2978 (QB). He held that natural justice required legal representation and an opportunity to question the complainant, and ordered a further disciplinary hearing.
2. Court of Appeal — Applications for permission to appeal and for a second appeal were dismissed by Laing LJ and David Richards LJ respectively.
3. High Court (King’s Bench Division) — The present court held that the second disciplinary hearing and the appeal decision were contractually invalid because of breaches of natural justice, unfairness and Wednesbury unreasonableness.