HEARING DATE 18 MAY 1998 (Transcript: Smith Bernal)
University - Natural justice - Fairness of reconsideration of matters by same assessment board - Academic judgments - Internal university procedures - Judicial review - Relief which court can grant
COUNSEL
The Applicant appeared in person; C Lewis for the Respondent
PANEL: ROCH, MUMMERY LJJ
JUDGMENT BY ROCH LJ
On 26 May 1996 Sedley J gave leave to the applicant to move for judicial review. A form 86A, which was twice amended (on 11 October 1996 and again on 10 April 1997), sought relief in respect of the following decisions. The decision of the programme assessment board and the modular assessment board ("the Boards") of the respondent university, made on 8 September 1995, not to consider awarding compensation to the applicant to allow her to complete her BSc Honours degree in pharmacy.
The second decision in respect of which relief was claimed was the decision of the Boards of 21 June 1996 not to consider adjusting the applicant's assessment, or awarding compensation to the applicant, to allow her to complete her degree. The third decision relates to the decision of the academic board of the respondent university of 11 July 1996 not to consider annulling the Boards' decision of 21 June 1996 and award the applicant a degree.
The relief sought was certiorari to bring up and quash those three decisions, an order of mandamus to require the Boards to reconsider awarding the applicant compensation for the outstanding course modules required to complete her degree course, or to consider the assessment of those modules and those retaken in 1996, and/or compensation for those modules; an order of mandamus to require the academic board to consider annulling the decision of the Boards and offering a pharmacy degree to the applicant.
The application for judicial review was heard by Collins J on 11, 12 and 13 June last year. The applicant's case was presented by her sister because the applicant was ill. Collins J recognised that for part of the hearing the applicant's sister was unwell. On 23 June last year Collins J dismissed the applicant's application for judicial review and ordered her to pay 90 % of the respondent university's costs. He refused leave to appeal. The applicant seeks leave to appeal the decision of Collins J on the basis that his decision was wrong. I shall return to the grounds on which the applicant would argue, were leave to be granted, that the judge's decision was wrong.
The applicant joined the university in 1990 and should have started her final year in September 1993. The applicant says, and I will accept for the purpose of this application, that serious errors were made in the results of her examinations for the year 1992 - 1993 and, by the time those errors were corrected, the start of the next academic year had passed. It was agreed between the applicant and the university that her final academic year would run from January 1994 to December 1994 under the regulations for the academic year September 1993 to June 1994. The doubts over the applicant's examination results had spread to other students. It would seem that in January 1994, when the applicant returned to the university, the head of the pharmacy department (or faculty), Professor Rubinstein, sought to assure the other students that the marks they had achieved at the end of the 1992/1993 academic year were reliable by making a public announcement to that effect in the presence of the applicant. That conduct had upset the applicant.
In order to obtain an honours degree under the regulations, the applicant had to achieve 30 credits. The subjects required for the degree were divided into various modules. The regulations laid down the number of credits for each module and the percentage of marks which had to be obtained by a student in order to achieve a credit.
During 1994 there was a dispute between the applicant and the university concerning a letter written by Dr Nolan, a member of the faculty, setting out the terms in which the various modules would be taught to the applicant. She maintained that those terms were a breach of the agreement that had been reached in 1993 between her solicitors and the solicitors for the university. That argument was not finally resolved until 24 November 1994. Some of the marks awarded for various subjects, or modules, arose from work done during the academic year (course work). Further marks were achieved by examination.
Under the respondent's regulations students had the right to appeal to the Boards in respect of marks and credits awarded. The Boards are empowered by the regulations to decide if marks for any module should be greater than those awarded whether they be for course work or for examination. In reaching a decision whether to award greater marks for course work or examination, the Boards can take account of mitigating circumstances, ie circumstances which had, in the opinion of the Boards, caused the student to underperform and achieve a mark lower than the student would have achieved had those circumstances not been present. That power applied to all subjects and all modules. However, one subject had to be passed in order for an honours degree to be awarded. That subject was Dispensing Practice II. That subject had to be passed because an honours degree gives access to a professional qualification granted by the Royal Pharmaceutical Society who insist on this requirement in exchange for recognising the honours degree awarded by the university. In order to pass in this subject the student had to achieve 60%. Part of the marks are awarded for course work and part for an examination of a practical nature. External examiners are involved in the marking of the students, including one appointed or approved by the Royal Pharmaceutical Society.
The Boards have further powers to award additional marks in the case of all subjects and modules, save for three, of which one is Dispensing Practice II. The other two do not concern this appeal. This is a power to compensate, in the light of the overall performance of the student, where a subject or module has been failed. This power is subject to certain detailed limitations which need not be set out in this judgment; for example compensation cannot be given when the actual mark awarded is lower than a set percentage. In some subjects this level is 30%.
Students have the right to appeal the assessments of the Boards. Such appeals are heard by the directors of the school. These appeals are on two possible grounds:
(1) where there is proof that the student's performance has been affected by illness or other factors which the student has not, for good reason, disclosed to the Boards; and
(2) for administrative error.
If the directors decide a performance has been affected by illness or other factors, the assessments are sent back to the Boards for reassessment in the light of the illness or other factors found by the directors to exist. The Boards are obliged to accept the directors' findings that such factors existed. Disagreement with the academic judgment of the Boards in assessing a piece of work or a student's progress was not, by itself, a ground of appeal to the directors of the school. A student was entitled to be legally represented before the directors. If the directors sent the assessment back to the Boards for reconsideration in the light of the directors' findings, and the student was dissatisfied with the Boards' reconsideration, the student had a further appeal to the Chairman of the academic board who would decide if further action was needed.
At the end of 1994 from her course work and from her examinations, the applicant had achieved 17 credits only and had failed Dispensing Practice II, having achieved 58% against the required 60%. The applicant sought assessment by the Boards. The Boards declined to assist her. She appealed to the directors who sent the assessment back to the Boards for reconsideration, finding that there were factors which had affected her performance. The memorandum in which that was done was dated 31 August 1995 and is set out extensively at pages 15 - 17 in the judgment of Collins J
The Boards met on 8 September 1995, a meeting lasting some four and three quarter hours. Collins J said in his judgment:
"I see no reason to doubt that the consideration given was sufficient. The relevant examiners were, with one exception, present and would no doubt have briefed themselves in advance of the meeting."
Collins J then set out extensively the reassessment made by the Boards. Complaints were made on the applicant's behalf about the procedural steps. Collins J at page 19F of this judgment said, having considered the complaints:
"But in any event it seems to me that a fair reading [of the minutes of the Boards] does show compliance with the rules"
The reassessment resulted in an exceptional pass being granted in one module, although marks of 39% were scored when 40% was the pass mark. As a result, four additional credits were awarded bringing the applicant's total number of credits to 21. The Boards agreed that the applicant should be permitted to resit the other modules which she failed, including Dispensing PracticeII, for which her resit should be the first of two resit opportunities. The Boards had been asked by the directors of the school to consider increasing the marks for Dispensing Practice II from 58% to 60%. They declined to do so.
The applicant made three complaints before Collins J concerning that failure. First, that the directors, having found there were factors which had affected her performance, the Boards should have increased the 58% figure and brought it up to the 60% figure. Second, that the Terminal Care test had been one of three items in the course work in Dispensing Practice II. The applicant had done particularly well in that test scoring 83%. That subject was transferred to another subject, Clinical Pharmacy & Therapeutics, the subject in which she had been given a special pass, although her mark remained at 39%. Despite the transfer of the 83% mark to that subject, the assessment board ruled that her mark in that subject should remain the same, namely 39%. On the other hand, the effect of removing that mark from Dispensing Practice II should, the applicant argued, have resulted in her mark in that subject going up. Third, the applicant makes the point that in Dispensing Practice II she detected an overdose, which many of the students who were given passes in that subject failed to detect. This was a crucial indicator of her ability as a dispensing pharmacist but was one which the Boards chose to ignore.
The judge sets out in his judgment the decision of the Boards on reassessment and also substantial parts of the affidavit of Professor Morgan, the chairman of the Boards. His affidavit was supported by a Professor McEvoy. They were both external in the sense in that neither were members of the pharmacy faculty.
Having set out those parts of Professor Morgan's affidavit the judge said:
"I have no reason to doubt this evidence. I am satisfied that the mitigating factors were properly taken into account. Accordingly, subject to specific matters with which I must deal, there can be no challenge to the failure to increase the 58% to 60% on the basis of the mitigating circumstances. The Board had to apply academic judgment to decide whether in all the circumstances 58% fairly reflected the applicant's ability. It decided that it did. I could not conceivably intervene to say that it was wrong."
The judge went on to decide whether the Boards should increase the mark to 60% on the second and third grounds relied on by the applicant. He decided that the Boards' decisions were in accordance with the university's regulations and that they were Wednesbury reasonable. In any event, the transfer of the 83% mark made less than 1% difference to the applicant.
The judge then recorded that the applicant had decided to resit the four modules that she had failed, but simultaneously to seek judicial review of the decision of 8 September 1995. Unhappily, when resitting those modules in December/January and May 1996 the applicant again failed to achieve pass marks. In the Dispensing Practice II on that occasion she achieved only 52%.
On 21 June 1996 the Boards considered the applicant's case that those results should be reassessed in the light of mitigating circumstances. One of those mitigating circumstances was the insensitive conduct of a member of the faculty, Professor Rubinstein, who, at the beginning of the first exam in January 1996, had asked the applicant to sign a document that she was fit to sit the examination. The Boards again declined to reassess the applicant's results. On 25 July 1996, despite earlier expressing her total lack of confidence in the respondent university and their procedures, the applicant lodged a notice of appeal to the directors of the school. That followed a letter by the university's solicitors of 11 July 1996 pointing out that the appeal process was available.
At the hearing before Collins J Mr Lewis, counsel for the respondent university, indicated that the appeal process was still open to the applicant. Collins J decided that the application for relief in respect of the decision of 8 September 1995 failed. The application for relief by way of judicial review in respect of the Boards' decision of 22 June 1996 could not succeed because the applicant had not exhausted all the avenues of appeal in the university's system.
Appealing the decision of Collins J, the matter came before this court on 7 November 1997. This court consisted of Lord Woolf, MR, and Swinton Thomas LJ. That application was adjourned so that the applicant could pursue an appeal within the university's procedures. Lord Woolf, MR said:
"The appeal process, in relation to the 1996 decision, has not yet been exhausted. If that appeal process was to achieve what Miss Hayes requires, then there would be no purpose in this court reconsidering any possible problem with regard to the 1995 decision. Miss Hayes is naturally reluctant to be in a situation where she could be liable for costs in relation to proceedings in this court.
Having looked at the situation as a whole, it seems to me that the most satisfactory outcome of the present impasse, and the outcome which would be the most beneficial to the university (having regard to the costs... to Miss Hayes) would be, if when the matter goes back before the Appeal Committee they look at the whole history of Miss Hayes' dispute with the university with regard to this matter. I am certainly not directing them to do so. I am merely indicating that it appears to me that there are advantages from everybody's point of view in their doing so. If that happens, Miss Hayes should have no possible grounds for complaint."
Since that judgment Miss Hayes has submitted two further affidavits dated 10 and 23 February 1998, together with a bundle of documents, indicating that she proposes to make an application for leave to adduce new evidence if leave to appeal is granted. The bundle of new evidence, which runs to 218 pages, consists of correspondence between the applicant and university and, in particular, letters exchanged between the applicant and Professor Toyne, chairman of the academic board and Vice Chancellor of the university. Those letters set out the decision of the academic board, or directors of the school, and the applicant's criticisms of the directors of the school and their decision which was communicated to her on 19December last year. The directors of the school adopt the position that, although they can make findings as to the existence of special factors which may have affected the applicant's performance, they cannot interfere with the assessment of the Boards of the effect of those factors on the applicant's performance and the Boards' refusal to upgrade the applicant's marks in the light of it. Further, the directors cannot, as it seems to them the applicant wishes them to do, direct the Boards to award the applicant an honours degree.
The applicant maintains that the directors took their decision without taking account of the observations of Lord Woolf, MR, in his judgment. She indicates that there can be no question of her having any confidence in the respondents and that the only proper course for the respondent to take is to upgrade her marks and to award her an honours degree.
It has to be remembered that Lord Woolf, MR, in the part of his judgment which I have cited, specifically said that he was not directing the Appeal Committee to look at the whole history of the applicant's dispute with the university. He was merely indicating that it appeared to him that there were advantages from everybody's point of view in their doing so.
The question for this court is whether we should grant leave to appeal the judgment of Collins J It would not be open to this court on an appeal to consider decisions made by the Boards or directors of the school after the judgment of Collins J I can see no reasonable prospect of an appeal against Collins J's judgment being successful in this case. Leave to appeal is only granted if there is a reasonable prospect of an appeal succeeding. The appellant could only be awarded an honours degree if her 58% mark in Dispensing Practice II were to be raised to 60%. The applicant's contention is that the Boards on the 8September 1995, in the light of the directors' findings that there were mitigating circumstances and the Vice Chancellor's instructions, were bound to raise her mark from 58% to 60%, and any failure to do so was either Wednesbury unreasonable or in breach of the university's regulations. The judge has found that the Boards on that occasion did take account of the mitigating circumstances and did consider whether to raise the mark of Dispensing Practice II. They decided not to do so. That was a matter within their discretion and for their academic judgment.
Collins J was clearly correct in saying that a court, who knows nothing of pharmacy or the requirements for being a pharmacist, would not be able to intervene in the Boards' decision. The Vice Chancellor did not direct the Boards to raise the applicant's marks for Dispensing Practice II. As I read the university regulations, and as Collins J read them, he had no power to do so. It is clear that great weight is attached to this subject and a student's performance in this subject because it opens the door to a practitioner's qualification in a field where a high degree of competence has to be required. There was ample evidence to warrant the judge's findings. It is set out at length in his judgment. That, in my judgment, must conclude the applicant's attack on that part of the judge's decision.
The subsequent decisions, which were made after Collins J's judgment, consisting of an appeal to the directors, the second hearing before the Boards and a further reference to the Vice Chancellor, have not produced the result the applicant desires. It is clear that the applicant wants the Boards to be ordered, either by the Vice Chancellor or by the court, to upgrade her marks, especially in Dispensing Practice II and to award her an honours degree. That simply cannot be done.
The decision of the Boards in June 1996 was subject to an appeal to the directors of the school following which the further steps I have already indicated occurred. All these matters took place after the judgment of Collins J and after the first hearing of the applicant's application for leave to appeal on 7 November last year.
The applicant has prepared the bundle of new evidence and sworn further affidavits relating to those decisions. Mr Lewis wished to place before us the Minutes of the Boards' meeting when the applicant's marks were referred back to the Boards by the directors. Miss Hayes objected to our seeing those Minutes on the ground that the Minutes did not relate to a matter which was before Collins J We upheld her objection. These are all matters which took place after Collins J's decision and cannot affect the validity of his decision. Equally, a court will be, for the same reason in my view, bound to reject Miss Hayes' application to adduce her bundle of fresh evidence.
Leave to appeal is only granted where there is an arguable case. In my judgment there is no arguable case here. There is also this additional factor in this case, namely that it is clear that Miss Hayes' confidence in the respondent university has been, rightly or wrongly, totally destroyed. It is clear from her letters that she would simply not be prepared to return to the respondent university for any further tuition or any further attempt to obtain an honours degree in pharmacy. That being so, and because this court could not order the university to award the applicant an honours degree, there is no effective relief the court could afford the applicant. For that further reason I would reject this application.
JUDGMENT BY MUMMERY LJ
I agree. I have not been satisfied by the arguments, which have been advanced by Miss Hayes, that there is any reasonable prospect of this appeal succeeding. I would, therefore, refuse leave.
DISPOSITION
Application for leave to appeal dismissed. Application to adduce further evidence dismissed. No order as to costs.
SOLICITORS:
Dibb Lupton Alsop, Liverpool
DOMINIC MCGOLDRICK BARRISTER