R (on the application of Paul Crawford) v The University of Newcastle Upon Tyne
| Jurisdiction | England & Wales |
| Judge | Grubb,Deputy High Court Judge |
| Judgment Date | 31 January 2014 |
| Neutral Citation | [2014] EWHC 162 (Admin) |
| Docket Number | Case No: CO/11758/2011 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 31 January 2014 |
[2014] EWHC 162 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Andrew Grubb
(Sitting as a Deputy High Court Judge)
Case No: CO/11758/2011
Mr Anthony Speaight QC (directly instructed) for the Claimant
Mr James Cornwell (instructed by Berrymans Lace Mawer) for the Defendant
Introduction
The Claimant registered at the University of Newcastle ("the University") in October 2005 to study for a Bachelor of Medicine and Bachelor of Surgery degree ("MBBS" degree). He completed Stages 1, 2, 3 and 4. In 2010, he failed his final year (Stage 5) examinations. The Claimant was required to repeat his final year and again took the Stage 5 examinations in 2011. On 15 June 2011, the Claimant was informed that he had again failed his final Stage 5 examinations. The reason for his failure, to which I shall return in detail shortly, was that he had been given a 'B' grade (which is a borderline fail) in the "Clinical and Communication Skills" ("Skills") domain (as it has been called) in the assessment, which is part of the Stage 5 examination process, known as the "Multi-Station Objective Structured Long Examination Record" ("MOSLER").
The Claimant was not satisfied with a number of matters concerning the examinations, in particular (for the purposes of this case) the grade he had been awarded in the MOSLER for the "Skills" domain. In essence, the Claimant did not accept that the grade has been calculated in accordance with the University's MBBS Stage 5 Handbook for 2010/2011 ("MBBS Stage 5 Handbook").
On 27 June 2011, the Claimant appealed under the University's Academic Appeals Procedure for Students ("Academic Appeals Procedure") challenging, inter alia, the grade he had been awarded for the "Skills" domain in the MOSLER. An Appeal Adjudicator (Dr Phillips) was appointed. The Appeal Adjudicator considered evidence from the Claimant, including the report of an actuary (Mr Carus) dated 1 July 2011. In addition, the Appeal Adjudicator considered a memorandum from the Chair of the Board of Examiners (Dr Lunn) dated 30 June 2011 which was sent to the Claimant. The Appeal Adjudicator sought further comments from Dr Lunn on the report prepared by Mr Carus. In response, Dr Lunn sent the Appeal Adjudicator a second memorandum dated 25 July 2011. This was not sent, at that time, to the Claimant. On 1 August 2011, the Claimant's appeal was rejected by the Appeal Adjudicator. On 25 August 2011, the Claimant sought a review of that decision under the Academic Appeals Procedure. On 2 September 2011, the Academic Registrar rejected a review of the Appeal Adjudicator's decision.
On 13 August 2011 (in other words after the rejection of the initial internal appeal) the Claimant made a complaint to the Office of the Independent Adjudicator for Higher Education ("OIA") — a statutory body set up under the Higher Education Act 2004 to deal with complaints made by students against higher education institutions. On 11 November 2011, the OIA issued a preliminary decision rejecting the complaint. On 2 December 2011, the Claimant wrote to the OIA informing them that he intended to issue Judicial Review proceedings against the University. The current proceedings were issued on that date. As a consequence, under the OIA's rules the Claimant's complaint was terminated.
On 1 March 2012, Karon Monaghan QC (sitting as a Deputy High Court Judge) refused on the papers the Claimant's application for permission to bring Judicial Review proceedings. The Claimant renewed his application and on 24 May 2012, John Randall QC (sitting as a Deputy High Court Judge) granted the Claimant permission. On 2 July 2012, the Claimant (without opposition from the Defendant) was granted a stay of these proceedings.
On 20 July 2012, the Claimant wrote to the OIA inviting them to reopen its investigation of his complaint. That subsequently occurred and on 28 January 2013 the OIA issued a formal decision and complaint outcome concluding that the Claimant's complaint was not justified. Thereafter, the Claimant has again pursued these proceedings.
The Issues
The Claimant relies both upon public law and contract.
First, the Claimant argues that the University acted unlawfully and in breach of contract by failing to follow the marking or assessment process set out in the "MBBS Stage 5 Handbook" for 2010/2011. The Claimant's case is that if that published information had been followed then he would have been awarded an "S" grade for the "Skills" domain in the MOSLER and, overall, would have obtained a pass in the Stage 5 examination.
The Claimant says that the Defendant had a public law duty to follow its published information and, alternatively, the Claimant had a legitimate expectation that the University would follow its published information. In addition, it is said that the assessment process and scheme were an express term of the contract between the Claimant and the Defendant and, alternatively, that it was an implied term of that contract that the University would follow its published information in assessing the Claimant's Stage 5 examinations. ("issue 1")
Secondly, the Claimant says that the Defendant acted unfairly and in breach of its Academic Appeals Procedure by failing to disclose to the Claimant prior to the Appeal Adjudicator's decision made on 1 August 2011 that he had consulted and obtained from the Chairman of Examiners further information (namely Dr Lunn's second memorandum) about the assessment process. That, again, is said to be unlawful on public law principles and a breach of contract. ("issue 2")
Thirdly, it is claimed that the Appeal Adjudicator unlawfully abdicated his responsibility for making a decision on the appeal when he had uncritically accepted Dr Lunn's second memorandum that the Claimant had been correctly marked under the University scheme. That is said to be unlawful on public law principles and, alternatively, a breach of contract. ("issue 3")
The Defendant resists the Claim.
First, the Defendant denies that it acted unlawfully or in breach of contract and maintains that the Claimant's "Skills" domain grade for the MOSLER was calculated consistently with the published information in the MBBS Stage 5 Handbook.
Secondly, the Defendant (now) accepts that the failure to provide the Claimant with Dr Lunn's second memorandum was a breach of the Academic Appeals Procedure but argues that it was immaterial as the Claimant's grade was calculated in accordance with the MBBS Stage 5 Handbook and, in any event, the Claimant has had an effective remedy already in correcting any procedural error.
Thirdly, the Defendant denies that the Appeal Adjudicator abdicated his function to determine the Claimant's appeal by relying on Dr Lunn's second memorandum that the Claimant's marks were correct.
Fourthly, the Defendant argues that, even if it did act unlawfully, the existence of the complaints' procedure to the OIA operated as an effective alternative remedy and, as a result, the Claimant should be denied any relief either in public law or contract. ("issue 4")
Finally, the Defendant argues that the Claimant should be denied any relief as he delayed unnecessarily in issuing these proceedings five months after the Claimant's examination results were published and four months after the Appeal Adjudicator's decision. ("issue 5")
Public Law and Contract
As I have already indicated, the Claimant relies upon a breach of public law principles and breach of contract. No objection in principle is taken by the Defendant to the Claimant pursuing his case on both a public law and a private law basis.
The Defendant is public body created by the Universities of Durham and Newcastle upon Tyne Act 1963. It is not disputed that in this case it was performing public functions subject to judicial review and public law principles.
As the Claimant was a fee-paying student, there was also a contractual relationship between the Claimant and the Defendant (see, Clark v University of Lincolnshire and Humberside [2000] 1 WLR 1988). Whilst the Defendant does not accept that the terms of the Stage 5 MBBS Handbook relied upon by the Claimant are, in themselves, contractual terms as they lack the necessary specificity for a contract term, there can be no doubt that if the Claimant were to make good his principal argument that he had been assessed contrary to its terms, that would be a breach of an implied term that the University would follow its published procedures. Likewise, even if the Academic Appeals Procedure does not form part of the contract between the parties, I am in no doubt that it is an implied term of the contract between the Defendant and Claimant that the University will act fairly in applying its Academic Appeal Procedure (see by analogy R v Disciplinary Committee of the Jockey Club, ex p Aga Khan [1993] 1 WLR 909). The substance of the Claimant's case against the Defendant does not, in my judgement, turn upon whether that claim is couched in terms of public law or contract. I shall, therefore, focus on the claim applying public law principles.
Issue 1: Compliance with the MBBS Stage 5 Handbook
There is no doubt that the assessment process for medical students in the final year examinations (Stage 5) which I have been taken through most helpfully by both Mr Speaight QC (on behalf of the Claimant) and Mr Cornwell (on behalf of the...
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