UK: ‘Alternative Remedies’ - and the ‘Curative’ Effect of Appeal Proceedings

Last Updated: 19 February 2003

Introduction

Regulatory procedures often provide for an initial decision to be followed by a right of appeal to an appellate body. In R (on the application of DR) v Head Teacher of St George's Catholic School; and R (on the application of AM) v Governing Body of the Kingsmead School (Court of Appeal. 13 December 2002) the Court of Appeal considered what recourse to judicial review may be available in a case where the initial disciplinary decision may have failed to comply with administrative law obligations. May the party disciplined raise issues of legality immediately by way of judicial review? Or will judicial review be denied because there exists (by way of the disciplinary appeal) an adequate ‘alternative remedy’?

In deciding those questions a further issue arose. Assume that the disciplined person will be denied immediate judicial review; and assume also that a subsequent (internal) appeal is conducted entirely properly. Can the individual seek judicial review of the initial disciplinary decision at that later point?

Facts

In both cases a boy was permanently excluded from his school under powers contained in the School Standards and Framework Act 1998. The statutory procedures involved initial action by the Head Teacher (followed by a decision of the school's Governing Body) followed by a right of appeal to an Independent Appeal Panel (IAP). In both cases a potentially challengeable irregularity occurred in relation to the initial decisions taken by the Head Teacher and/or the Governing Body; and in both cases the hearing and decision of the IAP was accepted as complying fully with administrative law.

‘Curative’ appeals?

The court began by asking whether the fair appeal hearing before the IAP had ‘cured' the defect in the proceedings below, so as now to deny judicial review in relation to those earlier proceedings

The appellants had contended that:

"... a pupil should only suffer permanent exclusion from school if (a) the head teacher's decision to exclude him [is] confirmed following a fair hearing before the Governing Body .... and (b) his appeal to the IAP [is] dismissed following a further fair hearing. [A] pupil is entitled to a view fairly arrived at on both occasions. He should have two fair chances at reinstatement, two bites at the cherry."

The Court disagreed, regarding the legislation as providing rather less extensive protection from the mis-exercise of disciplinary power.

"… Parliament intended the aggrieved pupil to seek his remedy before the IAP. In one sense, … he then obtains no redress for the earlier unfairness. But what he does obtain is a fresh and fair decision on the merits of the case by a statutory body custom-built for the purpose. The IAP is a tribunal entirely independent of the head teacher and the Governing Body. It has expertise in the matter of school discipline .... It entertains the appeal on a de novo basis to the extent of hearing all the evidence for itself."

Accordingly, a properly conducted appeal could be regarded as having ‘cured’ the deficiency of the earlier proceedings.

Judicial review of the initial decision?

The appellants had argued that such a conclusion would only serve to drive aggrieved parties towards seeking judicial review immediately upon the allegedly unlawful initial decision.

The court countered this by noting that this option would generally not be available. Cases where judicial review of the initial decision would be permitted would be few and far between.

"Save in a case where the Governing Body is plausibly said to have acted quite improperly, or where the court's guidance on some real point of principle is required, .... the court's proper response will almost always be to leave the applicant to his [alternative] statutory remedy".

Implications for disciplinary bodies?

The Court of Appeal’s decision will provide some comfort to those responsible for over-seeing regulatory and disciplinary functions. Nevertheless, a few words of caution are appropriate.

The Court of Appeal followed earlier case-law in its finding that a ‘good' appeal can cure a ‘bad'earlier decision. But it is not always the case that a ‘good' appeal will have such a curative effect. Much will depend on the nature and scope of the appeal which has been provided.

In the instant cases the appeal was a review de novo of the correctness of the original decision: an appeal on the full merits of the case. In a different legislative context, where the role of an appellate body may be substantially less extensive, the appeal might very well not be properly regarded as ‘curing’ the earlier defect. This might be the case where an appellate body does not have powers to make, and act upon, its own findings of fact. In such a case a court might well permit judicial review of the initial decision.

Further, even where a ‘full' appeal is available the court noted its discretion, notwithstanding the alternative remedy, to allow immediate judicial review in cases where High Court guidance on some significant point of legal principle would serve the general public interest (ie. thereby establishing a clear guide for other disciplinary proceedings), or where an initial decision-maker has acted quite improperly.

© Herbert Smith 2003

The content of this article does not constitute legal advice and should not be relied on as such. Specific advice should be sought about your specific circumstances.

For more information on this or other Herbert Smith publications, please email us.


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