Nicholas Hancox Solicitors have often advised the heads and governors of independent schools on very delicate matters, including pupil expulsions and allegations of staff dishonesty and staff sexual misconduct with pupils.  We also provide seminars on “Safeguarding Children” especially for independent school clients.

Education and Charity

Nicholas Hancox wrote an article in the New Law Journal on 25 January 2008 about the new Charity Commission's plans to monitor more closely the 'public benefit' provided by those independent schools which are also charities. The "advancement of education" has been recognised as charitable since at least 1601, but the Charities Act 2006 has brought a new emphasis on there being a necessary public benefit in the advancement of education, before it can be recognised as truly charitable.

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The following is an extract from Butterworths’ Law of Education, written by Nicholas Hancox on Expelling Pupils from an Independent School:

“The right to expel a pupil at an independent school derives from the contract between the school and the fee payer (normally the parent(s). The necessary terms may have to be inferred, if they are not expressly stated in the contract. The decision of an independent school to exclude a pupil is not open to any public law remedy.  The DCSF guidance on exclusions does not apply at independent schools.

“The grounds for exclusion at independent schools are generally similar to those at maintained schools, but the range of legitimate grounds is wider in the independent sector and may (if the contract for the provision of education expressly or impliedly permits) include:

“The procedure on exclusion at an independent school depends on the contractual arrangements, but the Courts will intervene to require procedural fairness in the investigation and a punishment which is not disproportionate.  The celebrated 2006 case of Gray v MarlboroughCollege  illustrates many of those points.”

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Here are some extracts from an article written by Nicholas Hancox in the New Law Journal in January 2007 about a number of court cases involving one Independent School:

This case in the High Court in 2005 should be a lesson to us all.  It is a sorry tale of unsatisfactory education, followed by extensive litigation.

Mr and Mrs M were blessed with five children and in 1996, they decided to send R (then 16) and A (then nearly 17) to an independent school (“G”) to prepare for ‘A’ Level examinations.  In the year 2000, by which time R and A were men of 20 or 21, Mr and Mrs M found themselves in dispute with the School.  Their sons’ ‘A’ Level results had been disappointing.  The dispute came to litigation.  The School sued Mr and Mrs M in the County Court for unpaid fees (claiming for breach of contract) and the parents cross-claimed against the School for compensation for unsatisfactory education (also as a breach of contract).  The school was advised by a firm of solicitors.  The school obtained a summary judgment in its favour in 2001 and the cross-claim was settled out of court in 2002.

Then the question arose as to whether or not the two young men could themselves sue their School.  Neither R nor A was initially a party to the County Court litigation between their school and their parents.  The School had been suing Mr and Mrs M; it had not sued its pupils…  

The County Court litigation between the parents and the school was eventually settled.  The school paid some money to the parents and also paid the parents’ costs.  A local newspaper reported the case.

Fourteen months after his parents settled their case, R sued the School in negligence. Then, eight months later, A also sued the School in negligence. 

Meanwhile, the School had also taken on new solicitors and were suing the School’s old solicitors.  They looked at the advice they had had from one of their barristers and they brought him into the new case.  The parents and the School also brought the barrister into their claims

What happened in this litigation was that the School ‘did a deal’ and settled the initial County Court case(s).  The School’s insurers were apparently notified rather late in the day and became reluctant to fund the whole of the settlement of the initial County Court case(s).  The Insurers then found themselves being sued for breach of their insurance contract.  That part of this litigious miasma was later settled out of court.

The issue being litigated in the High Court was one of professional negligence.  But what could the solicitors have done better? Their client, the School, was faced with a viable claim from Mr and Mrs M. The School wanted to settle it. There was at that stage no valid claim by either of the two sons and no way for the School to bring the sons into their parents’ litigation.  There was no point in refusing to settle with the parents. The possibility of facing a later claim by the pupils was known and was discussed.  The Judge in the High Court held that the Solicitors were not negligent.  Nor was the barrister.

This article is available in full in the New Law Journal.