Matthie (BPTSA) v Minister of Education and anor

• Jurisdiction: Bermuda
• Judgment Date: 03 June 2016
• Date: 03 June 2016
• Docket Number: Civil Jurisdiction 2015 No 348
• Court: Supreme Court (Bermuda)

[2016] Bda LR 64

In The Supreme Court of Bermuda

Civil Jurisdiction 2015 No 348

Between:

Harry Matthie (On Behalf of Himself, and the Executive and Certain Other Members of the Bermuda Parent Teacher Student association

Applicant

and

Minister Of Education

Respondents

Mr E Johnston for the Applicant

Mr D Duncan and Mr B Myrie for the Respondents

The following cases were referred to in the judgment:

Brennan v Sunderland City Council [2009] ICR 479

R v Legal Aid Board, ex parte Bateman [1992] 1 WLR 711

R v HM Inspectorate of Pollution, ex parte Greenpeace Ltd [1994] 4 All ER 329

R (Moseley) v Haringey LBC [2014] 1 WLR 3947

R (T) v Trafford MBC [2015] EWHC 369 Admin

R v Brent LBC, ex parte Gunning (1985) 84 LGR 168

R v North and East Devon HA, ex parte Coughlan [2001] QB 213

R (Greenpeace Ltd) v Secretary of State [2007] Env LR 29

R (Royal Brompton and Harefield NHS Foundation Trust) v Joint Committee of Primary Care Trusts [2012] EWCA Civ 472

R (United Co Rusal plc) v London Metal Exchange [2015] 1 WLR 1375

Vale of Glamorgan Council v Lord Chancellor [2011] EWHC 1532

R (Parents for Legal Action Ltd) v Northumberland CC [2006] EWHC 1081

R (Maureen Smith) v East Kent Hospital NHS Trust [2002] EWHC 2640

R (Elphinstone) v City of Westminster [2008] EWCA Civ 1069

R (Milton Keynes Council) v Secretary of State [2012] JPL 728

R v Secretary of State ex parte Begbie [2000] 1 WLR 1115

R v Islington LBC ex parte East [1996] ELR 74

Edwards v Environmental Agency [2007] Env LR 9

TN Tatem PTA v Commissioner of Education [2012] Bda LR 48

Singularis Holdings Ltd v PriceWaterhouse Coopers [2015] AC 1675

R (Albert Court Residents' Association) v Westminster City Council [2011] EWCA Civ 430

Bank Mellat v HM Treasury (No 2) [2014] AC 700

Judicial review — Standing — Whether application for leave made promptly and without undue delay — Whether granting relief would be likely to cause substantial hardship or substantial prejudice or be detrimental to good administration — Legitimate expectation of consultation — Whether consultation was fair

JUDGMENT of Hellman J

Introduction

1. By notice of motion dated 25^th August 2015, issued pursuant to leave granted on the same date, Mr Matthie seeks judicial review of the following decisions:

• i. The Second Respondent (“the Commissioner”)'s decision, possibly made on various dates between 31^st May and 30^th June 2015, to transfer, move, and/or alternate various teachers and/or principals throughout the public school system for the 2015/2016 school year (“the Transfers”);

• ii. The Minister's decision to make the Education (Parent Council) Rules 2015, on 24^th July 2015 (“the Rules”). The Rules provide for the establishment of Provisional Parent Councils and Parent Councils. They came into force on 8^th September 2015; and

• iii. The First Respondent (“the Minister”)'s decision to appoint a working group known as the School Reorganisation Advisory Committee (“SCORE”) to recommend which schools should be consolidated or closed for the 2016/17 academic year and beyond, as announced in a press release dated 22^nd April 2015 (“the Reorganisation”).

2. In December 2015, ie some months after the notice of motion was issued, SCORE issued a Report of Findings and Recommendations (“the SCORE Report”) (which did not recommend any school closures). In February 2016 the Minister issued a consultation document inviting comments on the SCORE Report. Mr Matthie, as part of his challenge to the Reorganisation, seeks judicial review of the Minister's decision to do so. I give him leave to amend the notice of motion accordingly.

3. Mr Matthie seeks (i) declarations that all three decisions are unlawful and (ii) orders quashing the Reorganisation and the Rules. He submits that parents had a legitimate expectation that they would be properly consulted about all three decisions through their individual Parent Teacher Associations (“PTAs”), either because the Respondents were under a general obligation to consult with PTAs, or alternatively, because they undertook to consult voluntarily. He submits that insofar as the consultations took place, they were seriously flawed.

4. The Respondents do not accept that Mr Matthie has standing to bring these proceedings. They complain that, if he has, then he has unduly delayed in doing so and that the grant of relief would give rise to the various harmful consequences identified in section 68(1)(b) of the Supreme Court Act 1905 (“the 1905 Act”). The Respondents further submit that they were under no obligation to undertake any consultations, but that the consultations which they have carried out voluntarily were unimpeachable.

5. In preparing this judgment I have been greatly assisted by the very able submissions of Eugene Johnston, counsel for Mr Matthie, and Delroy Duncan, counsel for the Respondents.

Standing

6. Mr Matthie brings this application on behalf of himself, as the father of two children at St George's Preparatory School. This is an aided school within the meaning of section 2(1) of the Education Act 1996 (“the 1996 Act”). He also brings it on behalf of the executive and certain other members of the Bermuda Parent Teacher Student Association (“BPTSA”). The BPTSA is a voluntary organisation. Article 2(1) of its Constitution states that:

“… the paramount objective of the BPTSA shall be to optimize parental involvement in the educational process through trusting, collaborative relationships between all educational stakeholders to ensure that students achieve social, academic and vocational success”.

7. The BPTSA's members include various PTAs. Mr Matthie has given affidavit evidence that at a meeting on 2^nd June 2015 the BPTSA resolved unanimously to bring these proceedings. He states that representatives from, among others, seven named middle and primary schools in the maintained sector were present, although surprisingly he has declined to produce the minutes of the meeting, even in redacted form, on the grounds that they are said to be “privileged”. I do not know on what grounds. Had the point been argued, I should most likely have held that, to the extent that Mr Matthie relied on the contents of the minutes in his affidavit, and insofar as was necessary to give a fair picture of the contents on which he relied, any such privilege had been waived. See, eg, Brennan v Sunderland City Council[2009] ICR479 EATper Elias J at para 16.

8. The Respondents' position is set out in an affidavit from the Acting Commissioner of Education, Freddie Evans. For ease of reference, I shall include him within the rubric “Commissioner”. He states that the Respondents recognise that the BPTSA is a group of interested and concerned parents, whose executive are stakeholders within the public education system, and that the First Respondent has engaged in consultation and communication with them on that basis. However, the Respondents do not accept that the BPTSA is the representative organisation of all or most PTAs, parents, teachers or students within the Bermuda Public School System.

9. For purposes of obtaining leave to bring judicial review proceedings, and subsequently for purposes of an interim stay application, the Court was satisfied that Mr Matthie had standing to bring this action. That finding was provisional and subject to the court hearing full argument at a later stage.

10. Applying the Overriding Objective to deal with cases justly, and in particular the requirements, so far as practicable, to save expense and to allot an appropriate share of the court's resources to the case, it was just and convenient to leave final determination of the standing point to the hearing of the application for judicial review rather than deal with it on a separate application by the Respondents to set aside leave.

11. In my judgment Mr Matthie, both on his own behalf and acting in a representative capacity for the executive and certain other members of the BPTSA, has sufficient interest to seek judicial review of the First Respondent's decisions relating to the Reorganisations and the Rules as these decisions affect the public education system generally. The courts have in appropriate case recognised the rights both of individuals and interested organisations to bring judicial review proceedings for the public benefit. Eg see R v Legal Aid Board, ex p Bateman[1992] 1 WLR 711 QBper Nolan LJ (as he then was) at 818B (individuals); and R v HM Inspectorate of Pollution, ex p Greenpeace Ltd[1994] 4 All ER 329 QBper Otton J (as he then was) at 350 c – j (organisations). This is just such a case.

12. The position regarding the Transfers is more complicated and I shall deal with it when I consider the Transfers generally.

Delay and its consequences

13. Order 53, rule 4(1) of the Rules of the Supreme Court 1985 provides that an application for leave to apply for judicial review shall be made promptly and in any event within six months from the date when grounds for the application first arose unless the Court considers that there is good reason for extending the period within which the application shall be made.

14. Thus the requirement is that the application be made promptly, which means as soon as practicable, or as soon as the circumstances of the case will allow. An application that is made after six months will by definition fail to satisfy this requirement. However, the requirement will not necessarily be satisfied by an application that is made within six months. See the commentary to the 1999 Edition of the White Book at para 53/14/58.

15. Section 68(1) of the 1905 Act provides that the Court may refuse to grant leave for the making of an application for judicial review, or to grant any relief sought on the application, if it considers that: (a) there has been undue delay in making the application; and (b) the granting of the relief sought would be likely to cause substantial hardship to, or substantially prejudice...