[2024] UKUT 85 (AAC)

Mr Dingley pointed out that the TRA Decision was reached by an expert panel following an adversarial hearing at which both parties were represented, live evidence was given, and witnesses were cross-examined. The allegations which it considered were practically identical to those which the DBS found to be proved on the balance of probabilities, and upon which it based the Barring Decision. The TRA Panel’s findings of fact differed in important respects from those made by the DBS. In particular, while the DBS found that XYZ had, while employed as a teacher, entered into a relationship with Pupil A, including messaging with her, meeting her outside school, giving her lifts in his car, and kissing her on 4 occasions, and that this amounted to conduct of a sexual nature involving a child, the TRA Panel decided that XYZ had not instructed and/or invited Pupil A to communicate with him via Snapchat or encrypted messages, did not communicate with Pupil A using Snapchat, and that XYZ did not kiss or cuddle Pupil A. While the TRA Panel found (based on XYZ’s admissions, that XYZ did give Pupil A lifts in his car alone outside school, including to Hartlepool, it did not find that this conduct was conduct of a sexual nature or that it was sexually motivated.

Mr Dingley maintained that there was nothing improper in the findings reached by the TRA Panel. In any event, he argued, even if a tribunal makes a “wrong” decision, it is a fundamental principle of English law that such a decision stands for so long as it is not successfully appealed. He relied on R (on the application of Coke-Wallis) v Institute of Chartered Accountants in England and Wales [2011] UKSC 1 at [30] for the proposition that the principles of cause of action estoppel apply to a decision of a regulatory body such as the TRA just as they do to a court of competent jurisdiction. While XYZ has criticised the TRA Decision, he did not appeal it. It therefore stands, whatever imperfections it may contain.

By contrast, he submitted, the Barring Decision was reached without a hearing, without the benefit of any live evidence, and without XYZ being given an opportunity to test the evidence which the DBS relied upon as establishing that he had engaged in “relevant conduct” in relation to children. As such, Mr Dingley argued, the TRA Decision should, at the very least, be accorded significant weight.

Indeed, he went considerably further: it would be inappropriate, he said, for the Upper Tribunal to engage in a ‘review’ of the TRA Decision, and it would be res judicataand an abuse of process for the Upper Tribunal either to make findings of fact that contradicted the findings reached by the TRA Panel or to find that the TRA Panel’s findings were in error.

He cited Lord Sumption’s discussion of the principles of res judicata in Virgin Atlantic Airways Limited v Zodiac Seats UK Limited [2013] UKSC 46 at [17] et seq.

“17.

Res judicata is a portmanteau term which is used to describe a number of different legal principles with different judicial origins. As with other such expressions, the label tends to distract attention from the contents of the bottle. The first principle is that once a cause of action has been held to exist or not to exist, that outcome may not be challenged by either party in subsequent proceedings. This is “cause of action estoppel”. It is properly described as a form of estoppel precluding a party from challenging the same cause of action in subsequent proceedings. Secondly, there is the principle, which is not easily described as a species of estoppel, that where the claimant succeeded in the first action and does not challenge the outcome, he may not bring a second action on the same cause of action, for example to recover further damages: see Conquer v Boot [1928] 2 KB 336. Third, there is the doctrine of merger, which treats a cause of action as extinguished once judgment has been given upon it, and the claimant’s sole right as being a right upon the judgment. Although this produces the same effect as the second principle, it is in reality a substantive rule about the legal effect of an English judgment, which is regarded as “of a higher nature” and therefore as superseding the underlying cause of action: see King v Hoare (1844) 13 M&W 494, 504 (Parke B) … Fourth, there is the principle that even where the cause of action is not the same in the later action as it was in the earlier one, some issue which is necessarily common to both was decided on the earlier occasion and is binding on the parties: Duchess of Kingston’s Case (1776) 20 St Tr 355. “Issue estoppel” was the expression devised to describe this principle by Higgins J in Hoystead v Federal Commissioner of Taxation (1921) 29 CLR 537, 561 and adopted by Diplock LJ in Thoday v Thoday [1964] P 181, 197-198. Fifth, there is the principle first formulated by Wigram V-C in Henderson v Henderson (1843) 3 Hare 100, 115, which precludes a party from raising in subsequent proceedings matters which were not, but could and should have been raised in the earlier ones. Finally, there is the more general procedural rule against abusive proceedings, which may be regarded as the policy underlying all of the above principles with the possible exception of the doctrine of merger.

18.

It is only in relatively recent times that the courts have endeavoured to impose some coherent scheme on these disparate areas of law. The starting point is the statement of principle of Wigram V-C in Henderson v Henderson (1843) 3 Hare 100, 115. This was an action by the former business partner of a deceased for an account of sums due to him by the estate. There had previously been similar proceedings between the same parties in Newfoundland in which an account had been ordered and taken, and judgment given for sums found to be due to the estate. The personal representative and the next of kin applied for an injunction to restrain the proceedings, raising what would now be called cause of action estoppel. The issue was whether the partner could reopen the matter in England by proving transactions not before the Newfoundland court when it took its own account. The Vice-Chancellor said:

“In trying this question I believe I state the rule of the Court correctly when I say that, where a given matter becomes the subject of litigation in, and of adjudication by, a Court of competent jurisdiction, the Court requires the parties to that litigation to bring forward their whole case, and will not (except under special circumstances) permit the same parties to open the same subject of litigation in respect of matter which might have been brought forward as part of the subject in contest, but which was not brought forward, only because they have, from negligence, inadvertence, or even accident, omitted part of their case. The plea of res judicata applies, except in special cases, not only to points upon which the Court was actually required by the parties to form an opinion and pronounce a judgment, but to every point which properly belonged to the subject of litigation, and which the parties, exercising reasonable diligence, might have brought forward at the time … Now, undoubtedly the whole of the case made by this bill might have been adjudicated upon in the suit in Newfoundland, for it was of the very substance of the case there, and prima facie, therefore, the whole is settled. The question then is whether the special circumstances appearing upon the face of this bill are sufficient to take the case out of the operation of the general rule.”

Mr Dingley said that these principles had clear application in these proceedings, where the subject matter is substantially the same, the burden is on the party seeking to establish misconduct/relevant conduct, and the standard of proof to be applied is identical (being the civil standard).

The first thing to say about this argument is that the Barring Decision was made a year before the TRA Decision, not after it. This appeal is about whether the Barring Decision was based on a mistake of fact or involved a mistake of law. The determination of that exercise cannot properly be characterised as an attempt by the DBS (or indeed the Upper Tribunal) to “re-litigate” the TRA Decision.

Second, we are unpersuaded that any of the species of estoppel or quasi-estoppel, or other substantive or procedural rules identified by Lord Sumption inVirgin Atlantic v Zodiac (see paragraph 58 above) is applicable to the current situation. Neither is the Supreme Court’s decision in Coke-Wallis(see paragraph 55 above) of assistance to the Appellant. While the TRA would generally be bound by its own findings, the DBS was not party to the TRA proceedings concerning XYZ, and it would have had no standing to appeal the outcome even had it wished to.

Mr Dingley’s response to that is that the DBS was aware of the TRA proceedings and, had XYZ appealed, it could have applied to be joined as an interested party. However, he did not refer me to any authority for the proposition that a non-party was bound in any way by the outcome of proceedings simply because he was aware of their existence and could possibly have applied to join as an interested party in the event that an appeal was brought.

Mr Serr, for the DBS, directed us to the dicta of Newey LJ in Greene v Davies [2022] EWCA Civ 414 at [54] on the issue of whether inviting a Court or tribunal to make findings inconsistent with findings made in earlier proceedings amounted to an abuse of process. Newey LJ acknowledged that it could be, but said that it needn’t be an abuse of process:

“54.

… it is not necessarily an abuse of process to invite a Court or tribunal to make a finding inconsistent with one made in earlier proceedings. To quote Sir Andrew Morritt V-C in Bairstow, at para 38, “[a] collateral attack on an earlier decision of a court of competent jurisdiction may but is not necessarily an abuse of the process of the court”. R v L demonstrates that a person can be the subject of a criminal prosecution requiring proof beyond reasonable doubt despite a High Court judge having concluded that guilt had not been proved even to the civil standard. Equally it can be seen from Ashraf v General Dental Council that disciplinary proceedings can potentially be brought “on substantially the same subject matter as had been the subject of failed criminal proceedings”. Similarly, a determination by a civil Court cannot necessarily preclude disciplinary proceedings based on allegations which the civil Court had rejected …”

There is nothing in the 2006 Act (or elsewhere in statute) that requires the DBS to accept the factual findings of any other decision-making body, including a regulator such as the TRA (exercising the powers of the Secretary of State for Education). The status of findings of fact made by a ‘competent body’ (defined in paragraph 16 to Schedule 3 to the 2006 Act) is dealt with in Schedule 3 to the 2006 Act. However, it provides only that, where the DBS must give a person an opportunity to make representations, that does not include the opportunity to make representations that findings of fact made by a competent body were wrongly made. In other words, the findings of fact in such proceedings before competent bodies are binding on the referred person who was party to those proceedings. It says nothing about them being binding on the DBS. That position is consistent with the common law principles rehearsed by Lord Sumption in Virgin Atlantic v Zodiac in the passage quoted above in paragraph 58, and with the decision in Coke-Wallis referred to above in paragraph 55.

Mr Dingley says that the Upper Tribunal’s role is circumscribed by the findings of fact made by the TRA Panel, on the basis that they were the product of a process that, given that it involved the giving of live evidence and an opportunity to challenge that evidence, was superior to the process carried out by the DBS. He says it would be improper for the Upper Tribunal to make any finding that contradicts the findings of fact comprised in the TRA Decision, and the Upper Tribunal may only uphold the Barring Decision if it was a decision that was still open to the DBS if any findings of fact that conflict with the TRA Panel’s findings are ignored. This is a striking proposition indeed. Parliament has given the Upper Tribunal, a superior court of record, a statutory jurisdiction to decide appeals in respect of barring decisions based on mistake of fact (and law). There is no basis in statute, in the authorities, or in principle for circumscribing the jurisdiction of the Upper Tribunal in the way suggested by Mr Dingley.

For all these reasons, we do not accept that it is either improper or an abuse of process for the DBS to resist XYZ’s appeal on the basis that it made no material mistake of fact. Neither do we accept that the Upper Tribunal is bound to adopt the TRA’s findings.

So, what is the status of the TRA Decision vis-a-vis the Upper Tribunal? It is evidence of what was said at the hearing, of what the TRA Panel decided, and why it decided as it did. It represents no more than that. The Upper Tribunal must give the findings of the TRA Panel appropriate weight, just as it must give appropriate weight to the Barring Decision, and to all the other evidence before it. Our task is to make our own assessment of all the evidence before us to decide whether the Barring Decision was based on a mistake of fact.

We discuss what we made of the evidence in paragraphs 128 to 142 below