Mr David Anthony Winstanley v Professor Brian D Sleeman (First Defendant) University of Leeds (Second Defendnat)
| Jurisdiction | England & Wales |
| Judge | Judge Saffman |
| Judgment Date | 13 December 2013 |
| Neutral Citation | [2013] EWHC B43 QB |
| Date | 13 December 2013 |
| Court | Queen's Bench Division |
| Docket Number | Case No: 2LS90221 |
[2013] EWHC B43 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
LEEDS DISTRICT REGISTRY
The Court House
1 Oxford Row
Leeds
His Honour Judge Saffman
SITTING AS A JUDGE OF THE HIGH COURT
PURSUANT TO S9 SENIOR COURTS ACT 1981
Case No: 2LS90221
and
Mr Peter Oldham QC ( solicitor) appeared on behalf of the Claimant
Ms Fenella Morris QC (instructed by Berrymans Lace Mawer LLP) appeared on behalf of the Defendant
By his claim form, to be found at page 1 of the bundle, the claimant in this case, Mr David Anthony Winstanley who is represented by Mr Peter Oldham QC, brings proceedings against the defendants, Professor Brian Sleeman, and the University of Leeds, represented by Ms Fenella Morris QC, for damages for breach of contract and for negligence in connection with the provision by the defendants of the claimant's post-graduate education.
I am concerned with an application by the defendants to strike out the claim pursuant to CPR 3, 4, 2(a) and 2(b), namely that it discloses no reasonable grounds for bringing a claim, and/or that the Particulars of Claim are an abuse of process, and/or, pursuant to Part 24, 2(a) and 2(b), that the claimant has no real prospect of succeeding in his claim, and there is no other compelling reason to proceed to a hearing. The application is at page 243 of the bundle and it is supported by a witness statement of Mr Richard Williams, to be found at page 246.
I have had the benefit of two very helpful skeleton arguments by leading counsel for the parties and a written response from Mr Oldham to Ms Morris' skeleton argument. Of course I have also had the benefit of very skilful and erudite oral submissions from both counsel.
In paragraph 1 of her skeleton argument Ms Morris helpfully summarises the four grounds upon which her application is made.
a. The first is that the claim is statute barred, and there is no real prospect that the court will come to any other conclusion.
b. Secondly, the claim concerns matters of academic judgment, which it is not arguable are justiciable issues.
c. Thirdly, the allegation that the defendants owe the claimant a tortious duty of care in relation to his education, particularly with regard to his preparation for his mathematics PhD thesis, and the manner in which his viva examination was conducted and its outcome, stands no real prospect of success in the CPR Part 3 or Part 24 sense.
d. Fourthly, that the claim against the first defendant is otiose, because the second defendant accepts that, and says as much in paragraph 1(d) of the defence, at page 235 of the bundle, that it is vicariously liable for the acts of the first defendant.
As regards the allegation that the claim is out of time, it has now been agreed that this will not be pursued in the form of an application under Part 3 or Part 24. Ms Morris acknowledges that it is more appropriate to pursue that as a preliminary issue. In my view, with respect to her, she is right so to acknowledge. It seems to me that the issue of whether the claim is statute barred in its current form, as a claim including a claim for personal injury (and therefore to which s11 Limitation Act 1980 applies) depends on the claimant's date of knowledge, as defined in s14. There are factual issues that have to be explored in relation to that which will, in my judgment, require the parties to give evidence. That makes the issue one which is not amenable for consideration under Part 3 or Part 24, for reasons that really are so trite that I do not think I need to set them out.
In any event, I should add that Mr Oldham does not confront the issue of limitation purely on the basis that the date of knowledge was late enough to deprive the defendants of a limitation defence. He also asserts that it is plainly arguable that even if the claim is out of time, the court may exercise its discretion to exclude time under s33. I need not address these arguments (which are set out in paragraph 22 of his skeleton) in the light of the fact that limitation is no longer a basis upon which this application is put. Suffice it to say that it seems to me that a preliminary issue is equally the forum for a consideration of whether time is to be excluded under s33, in the event that there is a finding of date of knowledge that favours the defendant.
Accordingly, I can proceed straight to that part of the application to which most of the submissions by both counsel were directed, namely whether it is arguable in the Part 3 and Part 24 sense that the matters about which the claimant complains in his Particulars of Claim are, in principle, open to scrutiny by the court at all.
Ms Morris initially argued that all the claims are actually no more than an attack on the defendants' academic judgment, and that such matters are not open to the scrutiny of the court. I should say that in the course of argument on this point and indeed others, I have been referred to a great many cases. I had initially taken the view that a consideration of these matters would require me to reserve judgment, so that I could assimilate these cases and the law at greater leisure. That was not a course that commended itself to counsel, and I accept, for good reason. Accordingly, I agreed not to reserve. Insofar therefore that this judgment may be inelegantly phrased, or does not deal specifically with matters referred to, then that is the reason but both parties are invited to invite me to clear up any omissions or inaccuracies, when I have concluded.
It is as well, I think to briefly set out about what the claimant actually complains. In 2002 the claimant was accepted by the second defendant, the University of Leeds, to undertake full-time post-graduate research in the Department of Applied Mathematics, with a view to submitting to a thesis for a PhD. Ultimately his thesis was submitted, and in February 2007, the claimant attended a viva. On 21 February 2007, he was notified that the examiners who conducted the viva intended to recommend that the thesis be failed. That recommendation was accepted by the Graduate Board Examination Group on 15 March 2007 and the claimant was notified by letter on 19 March 2007 that his thesis had indeed failed. In fact, as he was entitled to do, the claimant appealed that decision to a body called the Appeal Group. His appeal was allowed in December 2007 because the Appeal Group accepted that, as contended by the claimant in his grounds of appeal, the supervision or other arrangements during the period of his study were unsatisfactory.
That was not the only ground upon which the claimant had based his appeal. Paragraph 28 of the Particulars of Claim reveal that he appealed on three other grounds, relating to the manner in which his viva had been conducted. No finding was made in respect of these grounds by the Appeals Group. It was not convinced that those grounds could be upheld, but felt that in the light of the fact that the appeal was allowed in any event, and the fail set aside, it was unnecessary to reach a conclusion.
The failure to adjudicate on those three grounds is also a matter about which the claimant complains, on the basis that, had the appeals committee addressed these issues and adjudicated on them, it may have made a more favourable determination than the one that in fact it made. In the event, the determination that the committee made was simply to set aside the fail and to give the claimant a further 12 months to revise his thesis and present it to different examiners and in the meantime to work under a new team of supervisors. The committee also waived academic fees for that repeat year.
The claimant's primary contention, as pleaded in paragraphs 13 and 24 of the Particulars of Claim, is that his thesis was indeed worthy of a PhD, and should not have been failed.
His alternative position, encapsulated best at paragraph 16, is that it was failed because
a. First, in breach of their contractual and/or tortious duties to him, the defendants inadequately supervised his thesis, and also inadequately prepared him for his viva. The specific allegations in this respect, are set out in paragraphs 11, 12, and 14(1 to 9) on the Particulars of Claim.
b. Secondly, that in breach of their contractual and tortious duty to him, the defendants arranged for the viva to be conducted by examiners who were not suitable to properly assess the thesis, because they lacked the necessary expertise and insight into the area of research that the thesis covered. That allegation is set out in paragraph 17 of the Particulars of Claim.
c. Thirdly, that in breach of the second defendant's contractual and tortious duty to the complainant, the examiners had not fully familiarised themselves with the thesis, and further, they conducted the viva in a manner contrary to the University's guidance on how vivas ought to be conducted. Specifically that, rather than conduct the viva in a manner that would put the claimant at his ease and thus best places to defend his thesis, they conducted it in a hostile manner which put the claimant at an unfair disadvantage. In addition, in other ways the examiners conducted the viva other than in accordance with the duty to exercise skill and care owed by the defendants to the claimant. I summarise for brevity's sake but the details are in paragraph 18 of the Particulars of Claim.
d. Fourthly, the claimant argues that in breach of contract, the second defendant failed to implement with...
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