Greg Wallace v Secretary of State for Education [2017] EWHC 109 (Admin)

Posted on
The appeal itself is largely legally inconsequential other than giving a nod to the proper consideration of proportionality and the acknowledgement of such, within reasoning - particularly when considering sanction.  It is further useful to note that in this case (NCTL matter) the publication of an adverse finding on misconduct should have been considered as a sanction in itself.
The interesting element of this case relates to costs.  Individuals considering bringing an appeal will note that costs should not be a barrier to proceedings where there is merit.  Green J referenced the specifics of this case when making his determination on the costs order; however, the overarching sense was to facilitate a proper access to justice and thus an application of the considerations within CPR 52.19.

Summary

An appeal was brought against the decision of the Secretary of State ("SoS") for Education to impose an indefinite prohibition order against Mr Greg Wallace ("the Appellant") with a review period of 2 years.  The sanction was imposed against the recommendation of the National Collage of Teaching and Leadership (NCTL) Professional Conduct Panel ("the Panel") following a substantive hearing in May 2016.  The appeal succeeded on three of the five grounds brought.

The appeal was preceded by an application for a costs protection order under CPR 52.19 (previously 52.9A) on the grounds that the Appellant was unable to properly fund the appeal and that the outcome of disciplinary proceedings were draconian in that he would lose his livelihood.  The costs protection order was granted.

Facts

The Appellant was a "super head" of a collaborate of underperforming schools with a considerable reputation for turning struggling educational organisations around. He was considered as an inspirational educator and held a position of influence.

In December 2013 Hackney Learning Trust held a disciplinary hearing against the Appellant in relation to allegations that he has misused his positon to enable C2, a technology company to compete unfairly in relation to contracted services for IT and marketing.  There were both personal and business connections between the Appellant and C2 present. Due to significant payments being made to the company, an investigation was undertaken by Hackney Council's Audit and Anti-Fraud Division ("AAFD") which led to the disciplinary proceedings.  The Appellant was dismissed from his role and a referral was duly made to the NCTL.

The NCTL heard the matter in May 2016. Findings were made that the Appellant had; breached financial governance standards, not properly declared his conflict of interest, disclosed confidential information in relation to tender bids and had interfered with the AAFD investigation by collaborating with C2 to clear down relevant email accounts.   The Panel found that the Appellant had displayed behaviour which was a serious departure from the personal and professional standards expected of the teaching profession. However, they considered that the Appellant had a previous good history and that his actions had not been consistent with his character as a whole. The Panel noted that he had fully acknowledged his mistakes and had shown great insight.  The Panel therefore recommended that a prohibition order was not appropriate in this case.

The SoS disagreed with the Panel's recommendation and concluded that they had not taken sufficient account of the public concern that would arise if the conduct in the Appellant's case was not treated with the utmost seriousness.  The SoS determined that a prohibition order was both proportionate and appropriate, however, that it would be against the public interest to permanently deprive the profession of a teacher such as the Appellant and therefore a two year review period was allowed.

The Appellant appealed the SoS decision on a number of grounds, primarily that it was wrong and unjust.

Costs Protection Order

Prior to the substantive appeal, an application to the court for an order to limit the costs was made under CPR 52.9A (now 52.19).  This provision allows for the recoverability of costs to be limited and directs the court to have regard to the means of both parties, the circumstances of the case and the need to facilitate access to justice.

In this case the Order was granted and the costs limited. In the event that the appeal was allowed, the Appellant would be entitled to recover his court fee and if the appeal was dismissed, there would be no order as to costs.

The Judge made the following points of note; firstly that the appeal challenges a decision which deprives the Appellant of his livelihood. Secondly, the Appellant was only able to fund proceedings with the financial assistance of his friends, whereas the Respondent plainly had the means to defend the appeal. The judge identified a substantial inequality of arms and compared the appeal proceedings to the criminal court whereby legal aid would be routinely available.  The judge also paid esteem to the Appellant's concise drafting of grounds of appeal which would enable any hearing to take place efficiently.

Judgment

Handed down by Mr Justice Green.

Green J allowed the appeal on three grounds. These were that the SoS had failed to consider the publication of the Panel's conclusions on misconduct as a sanction and thus the sufficiency of such sanction.  In light of this and reasons relating to the Appellant's positive impact upon education services, he further concluded that the SoS had also failed to properly consider "proportionality" and had, as part of this, provided inadequate reasons for the decision.

The Judgment noted that the Appellant's case was considered to be "on the cusp or threshold for imposing a prohibitive order" and therefore it followed that an alternative sanction i.e. the Panel's adverse findings of misconduct, published, was an "obviously material" consideration which the SoS was explicitly required to take into account and weigh against the public interest.  It was also plain from the SoS' decision letter that this alternative was not taken into account.

Green J said that the SoS' advice did not contain a proper explanation of the "proportionality principle". He said that her advice implied that the exercise had merely involved weighing public interest concerns against those of the teacher which implied a simple balancing exercising. There was further no consideration given to the public interest being in favour of a person continuing to teach.

In consideration of the above, the Judge concluded that the SoS decision had been "unjust" and also "wrong".