Clark v University of Lincolnshire and Humberside
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE SEDLEY,LORD JUSTICE WARD |
| Judgment Date | 19 April 2000 |
| Judgment citation (vLex) | [2000] EWCA Civ J0419-13 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: CCRTI 1990/0739/B1 |
| Date | 19 April 2000 |
[2000] EWCA Civ J0419-13
master Of The Rolls
Lord Justice Ward and
Lord Justice Sedley
Case No: CCRTI 1990/0739/B1
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM HALIFAX COUNTY COURT
(HIS HONOUR JUDGE WALKER)
Royal Courts of Justice
Strand,
London, WC2A 2LL
Mr. Michael Mulholland (instructed by Brearley Chambers & Co. for the Appellant)
Mr. Nicholas Vineall (instructed by Davies Arnold Cooper for the Respondent)
History
The appellant was a student at the respondent university between 1992 and 1995, reading for a first degree in humanities. For her final examination she had to submit a paper by 14 April 1995. She chose to do a presentation and academic write-up on A Streetcar Named Desire, and she worked on these using her father's computer. She made the mistake many of us make once, and once only: she failed to make a backup copy of her work. On the last day before the deadline all her stored data were lost from the hard disk. All the appellant was able to put in were some notes copied from a Methuen commentary.
The university's Board of Examiners failed her for plagiarism. The appellant says that she had in fact explained the reason for her poor submission to her tutor so that the examiners could be informed; but in the event the Academic Appeals Board accepted that she had not set out to deceive and referred the paper back for remarking. The Board of Examiners marked it 0. The appellant appealed once more to the Academic Appeals Board without success. But on further appeal to the Governors' Appeal Committee it was decided that the mark of 0 was not "an appropriate academic response", and her assessment was referred back to the Academic Board under paragraph 23 of Annex A5 to the respondent's Student Regulations.
What appears to have happened is that the Academic Board, taking itself to be seized once more of the appeal, rejected it. Its secretary wrote to the appellant on 23 July 1996 to say that the board's members had advised the Vice-Chancellor that a mark of 0 was permissible so long as the examiners had treated the paper as a failure rather than as plagiarism, and that the chair of the Board of Examiners had confirmed that this was what they had done. The Vice-Chancellor as chair of the Academic Board had accordingly not upheld the appeal.
Under the respondent's Student Regulations this gave the appellant one more attempt to obtain her degree. But Regulation 6.5.4 says:
"A candidate who satisfies the examiners for the award of a classified degree at the second attempt shall not normally be awarded a degree classification higher than a Third Class."
The appellant resat her finals and was awarded a third class degree, which is not good enough for the further career options which she wanted and still wants to pursue. In mid-1998 (the exact date is in dispute) she issued the present proceedings in the Halifax County Court.
Issues
The claim is pleaded in contract. It is to the effect that the Appeal Board misconstrued the meaning of plagiarism, awarded a mark beyond the limits of academic convention and failed to take into account the claimant's explanation. The first two of these, as can be readily seen, travel deep into the field of academic judgment; the third goes nowhere, since the finding of plagiarism was abandoned.
After filing a defence the university applied to strike out the claim on the ground that such breaches of contract were not justiciable. His Honour Judge Walker, having been shown two decisions of this court refusing permission to appeal in similar cases, acceded to the application. It is against his order striking out the action that Mr Moncaster, on Miss Clark's behalf, now appeals with this court's permission.
For reasons set out in the judgment of the Master of the Rolls, it is not appropriate to treat the brief reasons given by judges of this court when refusing permission to appeal as if they constituted binding authority. It is therefore not out of disrespect that I make no further reference to the decisions cited to Judge Walker. His briefly expressed decision was to the effect that alleged breaches of contract by universities are not justiciable by the courts.
For reasons to which I will come, this proposition is in my judgment too wide. First, however, it is necessary to return to the particulars of claim. It emerged in the course of argument that Miss Clark's case in contract could be more tenably put in two ways not so far pleaded. First there was arguably a failure of the Academic Board to comply with the decision of the Governors' Appeal Committee: on remission, it repeated exactly what the governors had held not to be an appropriate academic response to her performance by confirming the mark of 0. Secondly, there was evidence from the university itself that the resit was treated as an opportunity only to obtain a third class degree: if so, this was arguably in breach of Regulation 6.5.4, which allows for the possibility of doing better. We allowed Mr Mulholland to amend his claim to add these elements, and it is on the claim as amended that the appeal has turned.
On the suggestion of Ward LJ both parties, at the conclusion of the argument, undertook to explore mediation as a means of resolving the dispute. It was apparent that, now that the issues had been better crystallised, they were more capable of resolution by agreement. Very shortly before the deadline set by the court an agreement – appended to this judgment —was reached. It is nevertheless appropriate that we should give a reasoned judgment on the question of jurisdiction, not least because the parties themselves have now accepted that in certain circumstances the action may proceed.
Jurisdiction: status.
The University of Lincolnshire and Humberside is one of the new universities brought into being by the Education Reform Act 1988. Section 121 gave the status of bodies corporate to advanced further education institutions meeting statutory enrolment criteria of which ULH (as I will call it) was one. By s. 123 they are called higher education corporations. The Further and Higher Education Act 1992 gave all such institutions the full status of a university and made provision for their internal government, but without altering their legal character. Such an institution, therefore, unlike the majority of the older English and Welsh universities, has no Charter and no provision for a Visitor: if it had, it is common ground that the present dispute would lie within the Visitor's exclusive jurisdiction: see Thomas v University of Bradford [1987] AC 795 and (where no Visitor has been appointed) Patel v University of Bradford Senate [1978] 3 All E R 841. But ULH is simply a statutory corporation with the ordinary attributes of legal personality and a capacity to enter into contracts within its powers.
The arrangement between a fee-paying student and ULH is such a contract: see Herring v Templeman [1973] 3 All E R 569, 584–5. Like many other contracts, it contains its own binding procedures for dispute resolution, principally in the form of the Student Regulations. Unlike other contracts, however, disputes suitable for adjudication under its procedures may be unsuitable for adjudication in the courts. This is because there are issues of academic or pastoral judgment which the university is equipped to consider in breadth and in depth, but on which any judgment of the courts would be jejune and inappropriate. This is not a consideration peculiar to academic matters: religious or aesthetic questions, for example, may also fall into this class. It is a class which undoubtedly includes, in my view, such questions as what mark or class a student ought to be awarded or whether an aegrotat is justified. It has been clear, at least since Hines v Birkbeck College [1986] Ch. 524 (approved in Thomas), that this distinction has no bearing on the availability of recourse to the courts in an institution which has a Visitor. But where, as with ULH, there is none, the decision of the New Zealand Court of Appeal in Norrie v University of Auckland Senate [1984] 1 NZLR 129 and the remarks of Hoffmann J in Hines at 542–3 open the way to the distinction as a sensible allocation of issues capable and not capable of being decided by the courts. It would follow, I think, that the issues which the courts remitted with obvious relief to Visitors in such cases as Thomson v. University of London (1864) 33 L.J.Ch. 625 (which concerned the award of a gold medal), Thorne v. University of London [1966] 2 QB 237 and Patel v. University of Bradford Senate [1978] 1 WLR 1488 (both of which concerned the plaintiff's academic competence) would still not be susceptible of adjudication as contractual issues in cases involving higher education corporations.
It is on this ground, rather than on the ground of non-justiciability of the entire relationship between student and university, that the judge was in my view right to strike out the case as then pleaded. The allegations now pleaded by way of amendment are, however, not in this class. While capable, like most contractual disputes, of domestic resolution, they are allegations of breaches of contractual rules on which, in the absence of a Visitor, the courts are well able to adjudicate.
Jurisdiction: abuse of process
But Mr Vineall, in a scholarly argument on behalf of ULH, submits that this is only the beginning. The relationship is also a public law one: ULH is a statutory body with public functions, and Miss Clark has a sufficient...
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