R (Durand Education Trust) v Secretary of State for Education [2020] EWCA Civ 1651

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In this case, Durand Educational Trust brought a claim under Article 1 Protocol 1 of the EHCR (peaceful enjoyment of possessions) and Article 14 EHCR (discrimination).

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The appeal was dismissed. It was held that on all grounds. The Court of Appeal (McCombe, Flaux and Newey LJJ) held that:

 

• There was no breach of A1P1. DET had never held unencumbered title to the Leisure Centre Land, which was held on trust for the purposes of the school; none of the improvements to the site had been made or funded by DET itself (all predating its establishment in 2010); and no genuinely private money had been invested in the land, since the relevant funds derived from a trading company that was, in substance, an arm of the school rather than an independent commercial enterprise. The Court found there were "exceptional circumstances" justifying the absence of compensation, observing that it would in fact be DET, not Lambeth, that stood to receive a windfall if compensation were paid.

• There was no unlawful absence of guidance on compensation, since although no formal regulations or published guidance existed, the Secretary of State had in practice adopted a fair and thorough process, with extensive correspondence and consultation with DET over more than a year.

• There was no breach of Article 14, DET's comparison with a foundation holding land for a foundation school being based on a mistaken premise as to how compensation would have been calculated under the alternative statutory scheme.

• Although the Secretary of State had admitted a breach of the public sector equality duty, relief was refused pursuant to section 31(2A) of the Senior Courts Act 1981, the Court accepting evidence from the ESFA's chief executive that compliance with the duty would not, on the balance of probabilities, have altered the outcome.

SV Law represented the London Borough of Lambeth as an interested party. Lambeth's position — that it was merely the latest in a succession of custodians holding the site for the benefit of the school community, rather than a party standing to profit from the transfer — was accepted by the Court and formed a central plank of its reasoning in rejecting DET's claim.

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This case is notable not only for being a judicial review heard at first instance by the Court of Appeal (permission having been granted directly by Lewison LJ, bypassing the High Court), but also because, unusually, costs were awarded to Lambeth as an interested party— a departure from the general practice in judicial review proceedings, where interested parties do not typically recover their costs unless they have played an active and necessary role in the litigation.