The Supreme Court has allowed a secondary school’s appeal against High Court orders requiring it to admit a student if he was expelled while a statutory appeal was pending.
The student, identified as MD and described in the judgment as a minor suing through his father and next friend, had begun judicial review proceedings before the school made a final expulsion decision. Those proceedings challenged the school’s position that he could not remain at school after expulsion while an appeal under section 29 of the Education Act 1998 was being determined. They did not challenge the expulsion decision itself.
The Court said the orders made by the High Court were mandatory in substance. Although framed as preventing the school from excluding MD, they would have required it to admit him after expulsion. The Court said such relief required a “strong case” likely to succeed, rather than the ordinary threshold of an arguable case. It concluded that MD had not met that threshold.
The judgment also found that the school had not received an effective opportunity to oppose the order. The initial order was made without the school being present and was allowed to continue without a full hearing on whether an injunction should be granted. The Court said an affected party seeking to have an ex parte order set aside is entitled to an inter partes hearing, with the applicant required to justify continuing the order. The school did not have to first challenge the separate order granting leave to bring judicial review.
The Court noted that the High Court had been told the statutory standstill period was due to expire on 17 February 2023, when it was in fact due to expire on 2 March. It said a short interim order, if justified by urgency, should have lasted only long enough for an application on notice to the school.
In assessing the competing interests, the judgment said the school’s expulsion decision had not been challenged in these proceedings and therefore had to be treated as valid. It referred to the school’s concerns about staff and student welfare, and to the limited period anticipated before the statutory appeal was decided. The section 29 appeal committee later upheld the expulsion, the judgment said.
The Court did not decide whether the High Court had jurisdiction to grant an injunction in aid of a section 29 appeal. It said that issue was unnecessary to resolve the appeal. The Supreme Court allowed the school’s appeal; its judgment does not determine the separate statutory appeal.