Nash v Chelsea College of Art and Design
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE STANLEY BURNTON |
| Judgment Date | 20 July 2001 |
| Neutral Citation | [2001] EWHC 601 (Admin),[2001] EWHC 538 (Admin) |
| Docket Number | Case No: CO/3569/2001,NO: CO/3569/2000 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 20 July 2001 |
The Queen on the Application of:
[2001] EWHC 538 (Admin)
The Honourable Mr Justice Stanley Burnton
Case No: CO/3569/2001
IN THE HIGH COURT OF JUSTICE
ADMINISTRATIVE COURT
QUEENS BENCH DIVISION
Gregory Jones (instructed by Teacher Stern Selby) for the Claimant
Rupert Warren (instructed by Kingsley Napley) for the Defendant
Introduction
I have to say that I regard this as a most unfortunate case. The Claimant, Aletta Nash, is a final year student at the Chelsea College of Article. She enrolled in September 1996 in a three-year course leading to the degree of BA (Hons) in Fine Art. These proceedings relate to her Stage II assessment, i.e., her second year grades. The original assessment was made by the Defendant's Assessment Panel in May 1998, over 3 years ago, and considered by the Board of Examiners in July 1998. Ms Nash complains, in essence, that the marks she was awarded did not take into proper account certain extenuating circumstances that should have been taken into account in assessing her work. Certain of those extenuating circumstances were undisputed, including the deaths of her mother and grandmother. One matter was highly controversial: her allegation of sexual harassment on the part of a tutor. Ultimately, that allegation was investigated by the College and rejected. In the meantime it created embarrassment and difficulties for the College in considering her extenuating circumstances. Even after its rejection, the allegation might be relevant as indicating the state of mind of the Claimant at the times in question and its effect on the quality of her artistic work.
As she was entitled to do, Ms Nash implemented the appeal procedures contained in the College's Regulations. She was dissatisfied with the procedure followed by and the decision made by the Academic Committee of the College, which had reviewed and confirmed the second assessment of her grades by the Board of Examiners. She challenged the decision of the Academic Committee in judicial review proceedings. On 10 May 2000, Elias J quashed the decision of the Academic Committee of July 1999 on the ground that the chairman of the Committee had wrongfully made a decision as to the material that went before the Committee when the decision was properly that of the Committee as whole; that as a result Ms Nash had been unable properly to present her case to the Committee; and that the Committee should have informed her of the material that was to go before it. His decision is reported at [2000] Ed C R 571, and I refer to it for the previous history of this matter, and the constitution of the College.
As a result of the decision of Elias J, the Academic Committee of the College again considered Miss Nash's case on 20 and 26 June 2000. It rejected her complaint that the Board of Examiner's decision had been vitiated by material irregularity.
In these proceedings Miss Nash contends that the Academic Committee's second decision in this matter should be quashed on procedural grounds and also, and more importantly, because of the reasons, or lack of them, given for its decision. The facts relating to its reasons are unusual, and I shall refer to them below. For the present, however, I do wish to express my regret that the proceedings relating to this matter have been carrying on for 3 years, have involved considerable amounts of academic time and that of Miss Nash, a very significant amount of correspondence that would not be out of place in a piece of complex litigation, and considerable legal fees, all in relation to a dispute that can have only a marginal effect on Miss Nash's final degree and on her future career. Much, if not most, of this could have been avoided if the College had taken and followed competent and sensible legal advice as to its procedures.
The proceedings of the Academic Committee and subsequent correspondence
The proceedings before the Academic Committee took about a day and a half. Miss Nash presented her case as to her extenuating circumstances and the reasons why they had not properly been considered by the Board of Examiners. The bundle of documents put before the Academic Committee, "anonymised" to avoid identifying the tutor who was the subject of Miss Nash's allegation of sexual harassment, ran to nearly 300 pages. Miss Nash was informed of the Committee's decision by letter dated 30 June 2000 from the College Administrator, who was the clerk to the Academic Committee.
One might have hoped that, having been the subject of one successful judicial review application, the College would have been careful to give no further cause for complaint as to its procedure or decision. Regrettably, that hope was not fulfilled. The letter of 30 June 2000 set out certain inconsistencies in the records of the meeting of the Board of Examiners of 19 April 1999. It did not mention or refer to the substantive matters placed before the Academic Committee by Ms Nash. It concluded:
"Notwithstanding these inconsistencies, the Committee concluded that there had been no material irregularity in the conduct or decision of the Board of Examiners on 19 April 1999. Consequently, your appeal is not upheld and in accordance with paragraph 8.3 of chapter 6 of the Academic Affairs handbook, and that is the final decision of the College."
Paragraph 8.3 of the handbook was as follows:
"Unless the Academic Committee or the Academic Board believes that there has been a material irregularity, the reconsidered decision of the Board of Examiners or a committee which it has established under paragraph 4.8 above, shall be final."
There was some discussion before me as to whether the letter of 30 June 2000 was to be regarded as having been sent with the authority of the Academic Committee. Mr Warren, for the College, did not suggest that it was not authorised by the Committee, and Mr Jones, for Ms Nash, relied on the letter in support of his case that no proper reasons had been given. In practice, and to some extent for forensic reasons, there was no issue between them on this point.
However, the letter did not give any reasons for the Committee's rejection of Ms Nash's substantive case. Indeed, it gave the impression that the only matters considered by the Committee to constitute possible irregularities in the proceedings of the Board of Examiners were those purely documentary matters referred to in the letter. As a result, she returned to her solicitors, who in their letter to the College of 31 August 2000 stated:
"…. despite the detailed arguments which were raised and discussed before the panel, the appeal was rejected for no obvious or stated reasons.
…
Subject to your response to this letter, a copy of which we are also ending to your Solicitors, we are instructed to issue the application for Judicial Review 7 days after the date of this letter."
The impression I have from this letter is that Ms Nash's solicitors, very sensibly, were giving the College an opportunity to explain the decision of the Academic Committee before issuing further legal proceedings. The reply came from the College's solicitors, Kingsley Napley. In their letter of 7 September 2000, they stated:
"The Committee found that there were a number of inconsistencies, as set out in the letter, but that none constituted a material irregularity. Your client and/or you may disagree with that conclusion, but the decision was for the Committee alone."
This letter repeated that the only matters considered and by the Committee were the inconsistencies in the records of the Board of Examiners, and that it was the immateriality of those inconsistencies that led to the rejection of Ms Nash's appeal.
Kingsley Napley's letter invited Ms Nash's solicitors to submit their judicial review proceedings to them in draft for their and their client to consider. Ms Nash's solicitors, Teacher Stern Selby, immediately complied with this request. Possibly because of the long academic vacation, no response had been received by 28 September 2000. Ms Nash's solicitors were concerned that their client's proceedings might be barred if they delayed beyond the time stipulated by Part 54.5 of the CPR, and they filed her claim form on the following day, having informed the College's solicitors of their action and the reason for it. It is nonetheless evident from the subsequent correspondence that the parties' solicitors had been discussing the possibility of the Academic Committee supplementing the reasons given for its decision.
Only 3 days later, on 3 October 2000, Mr Cina, the Head of the College, sent a letter to Ms Nash containing reasons for the rejection of the substantive matters which she had alleged had constituted material irregularities in the proceedings of the Board of Examiners. The letter was clearly written on legal advice and, I can assume, was drafted with the help of the College's lawyers. Mr Cina stated that he had consulted at length with the acting Chairman and the Clerk to the Academic Committee; that the Committee had addressed itself to all the material before it, including Ms Nash's documents, and that:
"All of the oral evidence and all of those documents were examined in detail in order to decide whether the Board of Examiners's decision was flawed by material irregularity."
The letter asserted that there was no duty on the College to give reasons for the decision of the Academic Committee, but that:
"Nevertheless, to allay any feeling of injustice that you may have, I deal in the rest of this letter with the Academic Committee's...
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