E, R (on the application of) v Governing Body of JFS & Anor

1. The order which this court has made following the handing down of judgment and the exchange of written submissions is in the main self-explanatory. The parties and participants are, however, entitled to know our reasons for those elements which may not be.

2. We have made a mandatory order (§7) which seeks to put M as nearly as possible in the situation in which, but for the unlawful criterion, he should have been when he applied to the school in 2007. We have not been deflected from this course by the School’s submission that the not insubstantial number of other children who were turned down for the same reason in that year and since would have a similar entitlement. Only M, through his father, is before the court, and it appears to us that it would be an injustice to him, having won on the issue of principle, to be sent away empty-handed. We do not consider that to have to admit an additional pupil is likely to create any serious difficulty for the school.

3. While we do not underestimate the significance of the court’s decision, we do not consider that it is a case of such manifest general importance, or indeed of such legal difficulty, that we ought to grant leave to appeal to the House of Lords. If petitioned, it will be for their Lordships to decide.

4. The apportionment of costs (§9) reflects the relative active participation of the paying parties in what has been for all practical purposes a single appeal. In particular we have taken the unusual course of requiring an intervener, the United Synagogue, to contribute to the claimant’s costs. This is because the United Synagogue, by its leading counsel and with the agreement of the other parties, took on the principal role in opposing the claim and seeking to uphold the first-instance decision. The Secretary of State, while joined as an interested party, both supported the School and sought to advance further arguments.

5. The Schools Adjudicator, while not appearing, sought to defend his decision and had made common cause with the School in so doing. He has not played the neutral role which would, for example, ordinarily protect justices from a costs order. We understand in particular that he sought to persuade the Community Legal Service to withdraw E’s funding.

6. While the final element of the order (§12) will result either in the order’s coming into effect on expiry of the time for petitioning or on dismissal of any petition, or – we would respectfully anticipate - in further directions from their Lordships’ House, we record our concern that, unless it is further stayed, paragraph 7 should be implemented promptly and our confidence that this will be done honourably and in good faith.