The High Court has proposed that a student pay the respondent school’s costs after dismissing his judicial review challenge to school disciplinary proceedings. The costs order is stayed pending the student’s appeal to the Court of Appeal.
The supplementary judgment, delivered by Mr Justice Garrett Simons on 21 June 2019, dealt only with who should pay the costs. The student, a minor represented by his father as next friend, had sought to challenge disciplinary proceedings arising from his alleged possession and supply of a controlled drug on school premises.
The substantive judicial review had been dismissed in its entirety in a judgment delivered on 17 April 2019. The court held that the student had an adequate alternative remedy through an appeal under section 29 of the Education Act 1998 and that his judicial review application was premature while the school’s disciplinary process remained ongoing and the board of management had not held a substantive hearing.
The student sought at least part of his costs, arguing that he had obtained a benefit when, on the eve of the April hearing, the school said it would not apply its code’s rule on “automatic expulsion”. The rule named supplying illegal drugs to other students as a ground for automatic expulsion. A separate rule allowed expulsion for certain first offences, including supplying drugs, in exceptional circumstances. The student had argued that the code was unclear about whether automatic expulsion applied to a first offence.
Before the proceedings began, the school had said that it would follow due process and consider relevant factors under the code. It stated that the automatic-expulsion and first-offence provisions were not mutually exclusive. The student’s solicitor had raised an apparent inconsistency between the rules in correspondence.
The judge accepted that a concession can be considered in deciding costs, even where the court did not rule on the point. But he rejected a costs award for the student, saying it would conflict with the principal judgment’s conclusion that the student should have continued through the school’s disciplinary process and, if dissatisfied with the board’s decision, used the statutory appeal route. The judge said he would have declined to decide the automatic-expulsion issue at the judicial review hearing for the same procedural reasons.
The court proposed that the applicant pay the school’s costs, including written legal submissions and reserved costs, except for costs of an interlocutory injunction application covered by a separate order made by Barrett J. If the parties could not agree the costs, they were to be taxed. The proposed order is stayed pending determination of the appeal, identified as Appeal 2019 No. 227.