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The Court of Appeal pointed out that R and F's submission in the county court was of overt, conscious racism, and it was not prepared to find that there had been unconscious discrimination.The decisionThe Court of Appeal said that, unlike the ordinary civil claim where the judge decides, on the claimant's evidence only, whether the claimant has made out a case, in this case the judge had had the benefit of the whole of the evidence. Despite the school's failure to comply with the statutory requirements, the judge had been entitled to find on the basis of all the evidence that R and F had not proved racial discrimination.

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