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UNIVERSITY OF CAMBRIDGE ex parte Persaud, R v. [2000] EWHC Admin 374 (21st July, 2000)
Case No: CO/772/2000
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
CROWN OFFICE LIST
Royal Courts of Justice
Strand, London, WC2A 2LL
Date: 21st July 2000
B e f o r e :
THE HON MR JUSTICE MAURICE KAY
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REGINA
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v.
UNIVERSITY OF CAMBRIDGE
ex parte Persaud
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(Transcript of the Handed Down Judgment of
Smith Bernal Reporting Limited, 180 Fleet Street
London EC4A 2HD
Tel No: 0171 421 4040, Fax No: 0171 831 8838
Official Shorthand Writers to the Court)
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Gregory Jones & Mr A Warner (instructed by Teacher Stern Selby for
the Applicant)
Robert Jay QC& Mr C Thomann (instructed by Mills & Reeve for
the Respondent )
Judgment
As Approved by the Court
Crown Copyright ©
Mr Justice Maurice Kay:
1. The Applicant is a scientist of undoubted ability. In 1992 she was
awarded a first class honours degree in astronomy after three years at
University College, London. Her ambition was to work in the field of
astrophysics. In October 1992 she was admitted to the University of Cambridge
as a Graduate Student in order to carry out research leading to the award of a
Ph. D. She commenced work on "Broad Emission Lines in Active Galactic Nuclei".
Her research supervisor was Dr. Andrew Robinson. The expected date for the
completion of her research was September 1995. For the first year she made
normal progress. However, in the second year things began to go wrong.
According to the Applicant the problem stemmed from conflict with Dr. Robinson.
She considered that he had involved her in collaboration without her knowledge
and was more interested in using her work for his own purposes. Dr. Robinson,
on the other hand, considered that she had made limited progress in the second
year and had become increasingly uncommunicative. In the summer of 1994 he
wrote to Mr. Paul Aslin, the Secretary to the Institute of Astronomy, to
express his concerns. In September 1994 Mr. Aslin involved Dr. Paul Hewett in
the matter. There followed a somewhat drawn out series of discussions and
communications with and about the Applicant. At one stage it was proposed that
Dr. Brian Boyle should replace Dr. Robinson as supervisor but this was rejected
by the Applicant. On 11 October 1994 Dr. Hewett suggested a team of three
supervisors, namely Dr. Carswell, Dr. Terlevich and Dr. Hewett himself. The
Applicant agreed to this and Dr. Hewett was appointed as the official
University supervisor.
2. The change of supervisors was not a success. On 17 May 1995 Dr.
Hewett met with the Applicant to discuss a further lack of progress and on 26
May 1995 he wrote to Mr. Duncan McCallum, Secretary to the Board of Graduate
Studies, reporting a lack of progress and saying that the Applicant's contact
with the three supervisors was "sporadic at best". For her part, the Applicant
is extremely critical of Dr. Hewett's performance in his role as supervisor.
3. By July 1995, Dr. Hewett was expressing concern that requests he had
made of the Applicant in May had not been fulfilled. On 7 July he wrote to her
expressing "disappointment and increasing....concern about the non-appearance
of the written material that I requested you to provide". He added:
"It is not possible for me to supervise effectively someone who does not
provide written work as requested or someone who does not communicate regularly
when specifically asked to do so."
By this time, of course, the anticipated three year period of research was
coming to an end and the question of further funding was an issue. On 11
September 1995 Professor Ellis, the Director of the Institute of Astronomy,
wrote to the Applicant requesting information as to progress so as to address
further funding. The Applicant did not reply to Professor Ellis until 1 March
1996. She blames a lack of supervisory guidance for the delay.
4. On 1 May 1996 Professor Ellis wrote to the Applicant to say that Dr.
Carswell was now her supervisor with immediate effect and that the most
important thing for the Applicant was to come in as soon as she could and to
start interacting with Dr. Carswell with a view to her completing her Ph. D.
the following year. However, this does not appear to have had the desired
effect because on 29 November 1996 Dr. Carswell sent the Applicant an e-mail
saying that "our contact has been so infrequent that I have no idea what you
have done since about March. Can we at least set this to rights?" In a
further e-mail of 4 December he referred to trying "to put the past behind us"
and to improved communications and contact. However, this did not materialise.
On 14 March 1997 he wrote to the Applicant referring to a review of her
progress which was to be undertaken by 6 June 1997 at the latest. He told her
what was required of her in that regard and that her continued registration
depended on the outcome of the review.
5. The Applicant produced a report by 6 June 1997 which was reviewed by
Professor Fabian and Dr. Aragon. The Applicant was interviewed by them on 13
June. According to her they were sympathetic and constructive but according to
Mr. McCallum they reported on a lack of clear direction in her work and that it
was not apparent to them where the research would lead. What is not in doubt
is that the Applicant wrote to Professor Ellis on 16 June referring to various
personal, health and academic problems in the previous fifteen months and
adding that "regrettably my level of productivity has been well below par as a
result of all these difficulties".
6. Professor Ellis was unimpressed. He met with the Applicant and
suggested that she withdraw. Also, by this time Dr. Carswell had asked to be
relieved of his appointment as supervisor in view of a lack of progress. On
18 August 1997 Mr. McCallum wrote to the Applicant advising her that the Degree
Committee expected to receive a recommendation that her name be withdrawn from
the Register of Graduate Students and inviting her to submit her written
representations. She responded with a 26 page letter dated 30 September
1997. It was critical of all her supervisors, it offered her explanation for
the lack of progress and stated that she now had " a firm arrangement for
continued supervision", The arrangement was that Professor Boksenberg would be
her nominal supervisor in Cambridge but that Dr. Gondhalekar of the Rutherford
Appleton Laboratory in Oxfordshire would act as her de facto supervisor.
7. The Degree Committee met on 10 October 1997 to consider the
recommendation of Professor Ellis that the Applicant's name be removed from the
Register of Graduate Students. In the event the Committee did not accept the
recommendation. It recommended that the Applicant should remain registered for
six months while she worked under the arrangement which she had put forward.
On 28 October 1997 the Board of Graduate Studies adopted this recommendation
and on 30 October Mr. McCallum wrote to the Applicant setting out the terms of
the decision:
"(i) Your name may remain in the Register of Graduate Students for, at this
stage, a period of 6 months;
(ii) you be permitted to pursue your research at the Rutherford Appleton
Laboratory under the supervision of Dr. Gondhalekar;
(iii) Professor Boksenberg will act as your contact with the Institute of
Astronomy;
(iv) Dr. Gondhalekar will be asked to submit, in time for its consideration at
the Degree Committee's meeting on 5 June 1998, a report on your attendance,
progress and research potential; and
(v) your continuation on the Register of Graduate Students will then be
considered in the light of that report."
On 14 November 1997 the Applicant replied confirming her understanding of those
terms.
8. The Applicant had in fact commenced work at the laboratory on 22
October. By this time she had no grant. She was living in London with her
family and commuting to Oxfordshire with considerable logistical difficulty.
Initially she had contact with Dr. Gondhalekar "practically every day" but
found his attitude "very straining and discouraging" and considered that he
made "unnecessary or unreasonable demands." According to her she had a
discussion with him on 19 December 1997 in which his attitude was unhelpful but
when she complained to Professor Boksenberg he (the Professor) was encouraging.
In January 1998 relations with Dr. Gondhalekar appear to have deteriorated
further, with the Applicant taking the view that he was requiring her to work
for the benefit of his projects rather than towards the completion of her
research.
9. On 13 January 1998 the Applicant heard from a third party that Dr.
Gondhalekar was to retire at the end of February. She started to inquire about
further supervisory possibilities. However, her visits to the laboratory had
become infrequent. Dr. Gondhalekar did indeed retire at the end of February
and the Applicant met with him for the last time on 6 March. Her account is
that he appeared to be happy with a summary which she had prepared in respect
of her work in the previous November and December but that he would not be
drawn into a scientific discussion about a "draft plan for work and
discussion", except that, in response to her persistence, he agreed that it was
"a good course of action". She also sent copies of the same documents to
Professor Boksenberg who thought they "looked pretty good".
10. After the retirement of Dr. Gondhalekar, the Applicant did not have
an effective supervisor although she had intermittent contact with Professor
Boksenberg whose role seems to have been more pastoral. She remained in London
most of the time "continuing to work on my research on my own, unsupervised"
and using the facilities of Imperial College. In May 1998 she produced a
report on her research and results. Events now moved towards the decisions
which the Applicant seeks to challenge by way of judicial Review.
11. In June 1998 Dr. Gondhalekar reported to the Degree Committee and to
the Board of Graduate Studies. The Degree Committee met on 3 July and
considered the report. Mr. Mc Callum states:
"The Degree Committee were of the view that the report described a pattern of
interaction which also occurred between the Applicant and her previous
supervisors. It concluded that no real progress had been made and therefore it
unanimously agreed to recommend that the Applicant's name be withdrawn from the
Register of Graduate Students".
On 10 July the Board of Graduate Studies agreed that that course should follow
and on 13 July Mr. McCallum wrote to the Applicant informing her of the
decision. The letter stated that "Dr. Gondhalekar was not able to report
positively on your progress over the whole of the period when you were supposed
to be working with him and that you had apparently stopped coming to the
Rutherford Appleton laboratory from January 1998".
12. On 17 July 1998 the Applicant wrote to Mr. McCallum indicating that
she would be appealing and would provide her "written case" in due course.
This followed on 23 September in the form of a 20 page letter and enclosures.
It was critical of Dr. Gondhalekar but appreciative of the attentions of
Professor Boksenberg. It also enclosed the report which the Applicant had
prepared in May, now updated to June. She maintained that, through no fault of
hers, Dr. Gondhalekar had not seen her post-February work and had not seen the
May/June report. Her suggestion was that she ought to remain registered as a
Ph. D. Student, supervised by an eminent and supportive Oxford-based
astronomer, Dr. Elizabeth Griffin, with a new area of research, namely "The
Long-term Properties of Stellar Chromospheres".
13. Mr. McCallum asked the Degree Committee to reconsider the position.
On 20 November 1998 the Degree Committee decided to obtain an academic opinion
from a senior member of the Faculty in the light of the reports which she had
prepared after his retirement. On 15 January 1999 the degree Committee
considered the opinion of the senior member of the Faculty (whose identity
remains unknown to the Applicant and to me). Mr. McCallum states:
"The senior academic reported that [the reports] represented a very small
amount of work, were equivalent to the introduction for an undergraduate essay,
that there was no evidence of significant effort, understanding or proposed
development and they did not form a viable basis for any future research. The
senior academic was categorical in recommending that the Applicant should not
be permitted to continue as a research student."
After considering the report, the Degree Committee recommended that the
Applicant's representations be rejected. The matter then went to the Board of
Graduate Studies on 26 January 1999. The Board agreed that the Applicant
should not be permitted to continue as a graduate student of the University.
Three days later Mr. McCallum wrote to her informing her of the outcome and
that the senior academic's report had been "quite categorical in its
recommendation". The letter described the senior academic as having
"sufficient knowledge of the field, but with no prior involvement with your
case".
14. In May 1999 the Applicant's solicitors first wrote to Mr. McCallum.
They requested sight of Dr. Gondhalekar's report but this was refused on
grounds of confidentiality. The solicitors made a further request for it,
together with the report of the senior academic. Correspondence carried on for
some months. The Degree Committee and the Board of graduate Studies became
involved again and considered the requests and representations made by the
solicitors. On 19 November 1999 the Committee reconsidered the Applicant's
case but affirmed their recommendation of ten months earlier. On 7 December
1999 the Board met but was not willing to change its decision of 26 January
1999.
15. I have recounted the history at some length but have omitted a great
deal of the detail of accusations and recriminations. Its outcome was that,
about six and a half years after arriving at Cambridge, this talented young
woman left empty-handed. On 1 March 2000 she lodged her application for
permission to apply for judicial Review. She was granted permission on 5 May
2000 by Turner J and the substantive hearing came before me on 7 July 2000. If
this procedural chronology seems leisurely, it is explained by the fact that on
6 August 1999, the University agreed not to take any point on delay "should it
subsequently be necessary for you to commence proceedings". In the Form 86A
the decisions sought to be challenged are:
"(1) Decision of the Board of Graduate Studies to withdraw the Applicant's name
from the Register of Graduate Students by letter dated 28 January 1999.
(2) Decision of the Board of Graduate Studies....not to reconsider the previous
decision and to decline the Applicant's representations made against that
decision by letter dated 17 January 2000."
In reality, the Board did reconsider its decision on 7 December 1999 but was
not willing to reverse it.
16. Before turning to the grounds of challenge, it is appropriate to
refer to the regulatory framework. It is to be found in the University's
General Regulations for Admission as a Graduate Student. By regulation
8(a):
"Each Graduate Student shall pursue.....a course of research approved by the
Board and by the Degree Committee who recommended his admission, or with the
consent of the Board and the Degree Committee concerned, by some other Degree
Committee, under the direction of a Supervisor appointed by the Degree
Committee concerned, and he shall comply with any special conditions that the
Degree Committee or the Board may lay down in his case...."
Regulation 10(e) states:
"The Board shall have power to deprive any person of the status of Graduate
Student.....if the Degree Committee have satisfied the Board
(i) that he has not been working to their satisfaction; or
(ii) that he has not complied with the conditions laid down for him; or
(iii) that, in their opinion, he is not likely to reach the standard
of.....any....qualification for which he might be registered."
I turn now to the grounds of challenge.
1. Fairness
17. This is the principal ground of challenge. It is common ground that
the University was under a duty to act fairly towards the Applicant when
considering whether to allow her to continue or to remove her from the Register
of Graduate Students. On behalf of the Applicant, Mr. Jones submitted that the
way in which the University came to make the challenged decisions was unfair
and contrary to the principles of natural justice. In essence he sought to
identify two manifestations of unfairness: (1) the failure or refusal to
inform the Applicant of the existence and identity of the senior member of the
Faculty who provided the opinion on reports she submitted after the retirement
of Dr. Gondhalekar; and (2) the refusal to disclose to her the reports of Dr.
Gondhalekar and the senior member of the Faculty so as to enable her to comment
and make representations upon them. The decisions were always likely to be of
great importance to the Applicant, with the potential damage to her career. I
do not doubt that this underlined the duty to act fairly but I do not think
that Mr. Jones was correct to identify this case as an "anxious scrutiny" case
in the sense of R. V. Secretary of State for the Home Department, ex
parte Bugdaycay [1987] AC 514, 531, where Lord Bridge was specifically
referring to the approach of the court "when an administrative decision under
challenge is said to be one which may put the Applicant's life at risk". As I
see it, the task of the court in the present case is to ensure that the
Applicant was considered by the University in the fair and proper way that the
serious circumstances required. At one point Mr. Jones sought to rely on
article 6 of the ECHR and article 2 of the First Protocol thereto but he later
retreated, correctly in my view, to the proposition that these instruments do
not, in the circumstances of this case, provide the Applicant with any
additional rights. Indeed it is difficult to see what relevance the First
Protocol can possibly have. It is more a case of the common law needing not to
be less protective. In any event, I do not believe that this rather
parenthetical part of the case has a significant bearing on the outcome of the
application, one way or the other.
18. Mr. Jones' submissions on fairness are to some extent interlinked.
As regards the identity of the senior member of the Faculty, the contention is
that, unless his existence and identity were disclosed prior to the decision,
the Applicant was in no position to make timeous representations about his
independence or the suitability of his qualifications for the task he had
undertaken. That, in turn, leads to the more general submission that, without
being provided with copies of the reports of Dr. Gondhalekar and the senior
member of the Faculty, she was unable to make meaningful representations to the
Degree Commission or the Board. At each stage, fairness required
disclosure.
19. In support of these submissions, Mr. Jones relied upon a number of
authorities. I do not propose to refer to them all. R. V. Chelsea
College of Art and Design, ex parte Nash (unreported, 19 May 2000) was
concerned with an undergraduate who sought to appeal her second year assessment
by reference to extenuating circumstances including, eventually, an allegation
of sexual harassment by her tutor. In granting her relief by way of judicial
review, Elias J. said (at paras. 47-49):
"Finally, the question also arises whether the applicant should have been
informed of the material which was to be placed before the Committee. It is a
strong principle of English law that a decisionmaking body should not consider
relevant material without giving the affected person the right to comment upon
it: see for example, Wiseman v. Boardman [1971] AC 297 per Lord
Morris at page 309 and per Lord Wilberforce at page 320. As Sedley J. pointed
out in R. V. London Borough of Camden ex parte Paddock [1995] COD
130, this applies as much to public administration as it does to
adjudication.......the material in the pack of documents made available to the
members of the Committee was considered and debated for an hour before the
Committee reached its decision. This shows commendable fairness by the
Committee, but it also suggests that the background material as provided was
considered to be of some real significance. It is well established that the
question is not whether the applicant was in fact prejudiced but rather it is
whether there is not a risk of prejudice."
There are numerous examples of this approach in various spheres of
decision-making, many of them in the context of factual disputes and/or
disciplinary proceedings in relation to alleged misconduct. In ex parte
Nash itself, while the underlying issue related to academic assessment,
the matters which were central to the internal appeal related not to the
objective assessment of the applicant's work but to extenuating circumstances
personal to her, including the allegation of sexual harassment. Nevertheless,
Mr. Jones submitted that the principle of disclosure as an aspect of fairness
extends to the circumstances of the present case.
20. On behalf of the University, Mr. Jay QC sought to distinguish
between the disciplinary type of case and the situation where what is in issue
is pure academic judgment. He referred to Clark v. University of
Lincolnshire & Humberside (unreported, 19 April 2000) which came
before the Court of Appeal as an action in contract rather than an application
for judicial review. The unfortunate appellant, having been required to submit
a dissertation for assessment in relation to her finals, suffered a computer
mishap at the last minute and lost all her stored data. She felt constrained
to submit something wholly inadequate instead and was failed. She later retook
her finals and was awarded a third class degree - the most she could be awarded
under the regulations following a resit. Her action in contract at least in
part raised issues of academic judgment on the part of the appeal board. The
facts do not resemble those of the present case but Mr. Jay relied on certain
statements of principle in relation to academic judgment. Sedley LJ stated (at
paragraph 12):
"Like many other contracts, it [i.e. the contract between the student
and the University] 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 these are issues of
academic or pastoral judgment which the university is equipped to consider in
breadth and depth, but on which any judgment of the courts would be jejune and
inappropriate. This is not a consideration peculiar to academic matters:
religions and 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 aggregate is
justified."
Lord Woolf M.R. added (at para. 29):
"A university is a public body....Court proceedings would, therefore, normally
be expected to be commenced under Order 53. If the university is subject to
the supervision of a visitor there is little scope for those
proceedings.....Where a claim is brought against a university by one of its
students, if.....it does not have a visitor the role of the court will
frequently amount to performing the reviewing role which would otherwise be
performed by the visitor. The court....will not involve itself with issues
that involve making academic judgment. Summary judgment dismissing a claim,
which if it were to be entertained, would require the court to make academic
judgments should be capable of being entertained in the majority of
situations."
(I should add that, apparently, their is no visitor procedure available in the
present case) Mr. Jay also pointed to support for this approach in R. v.
Senate of the University of Aston, ex parte Roffey [1969] 2 All ER 964,
where the student's application succeeded because the central issue was
not simply one of academic judgment, and Herring v.
Templeman [1973] 2 All ER 569. He also referred to R. v. Joint
Higher Committee on Surgical training, ex parte Milner (unreported, 4
May 1994), in which Ognall J. distinguished between "a decision based on
professional opinion, on the one hand, and one based on disputed fact on the
other".
21. I have absolutely no doubt that, so far as the present case is
concerned, Mr. Jay's submissions are correct. Whilst it is true that, in the
decision letter referable to the decision taker in July 1998, reference was
made to both a lack of progress and recent absences from the Rutherford
Appleton Laboratory, and whilst it may seem that the former is a matter of
academic judgment but the latter is less obviously so, the later decision of
January 1999, the one under challenge, was clearly based on the lack of
progress. At the heart of this case is the reality that the Board of Graduate
Studies resolved to remove the Applicant's name from the register because of
the professional and academic advice it received and accepted about a lack of
progress and the lack of a viable basis for future research - and this after
over six years had elapsed since her arrival in Cambridge. Moreover, the less
important issue of recent absences was not really a live issue at all. Dr.
Gondhalekar's observations that "you had apparently stopped coming to the
Rutherford Appleton Laboratory from January 1998" is only marginally disputed
by the Applicant (albeit she has her own explanations or excuses).
22. In my judgment it was not unfair for the University authorities to
decline to disclose the reports of Dr. Gondhalekar and the senior member of the
Faculty to the Applicant. Nor was it unfair (although in the circumstances it
is a little surprising) that they refused to disclose the identity of the
senior member of the Faculty whose opinion was sought and obtained. It is
fanciful to suggest that for the degree Committee to decide that a particular
colleague should be appointed to provide a qualified and independent opinion
was to enter territory in which the choice was potentially subject to
representations from the Applicant or to the appropriateness of his
qualifications and independence.
23. At all material times the Applicant must have known that she was
walking an academic tightrope at least from October 1997. With apologies for
the mixing of metaphors, she was in the last chance saloon. Her future
depended on her satisfying the judgment of Dr. Gondhalekar, the Degree
Committee and the Board of Graduate Studies as to her progress. In their
academic judgment, after obtaining appropriate advice and considering the
lengthy representations which the Applicant was enabled to make, she was found
wanting. I am entirely satisfied that that decision and its subsequent
reconsideration complied with the requirements of fairness in the
circumstances of this case. Put another way, the non-disclosures of which the
Applicant complains were not unfair. There are sound and obvious reasons why
reports to those who have to make academic judgments of this type should remain
confidential, thus enabling the reporters to express themselves frankly in the
knowledge that what they have to say will not be made available to the subjects
of the reports.
24. The Applicant has not established unfairness and, accordingly, this
ground of challenge fails.
2. Reasons
25. The next ground of challenge is that there was a failure to give the
Applicant adequate, proper and intelligible reasons for the decision to remove
her name from the Register of Graduate Students. Mr. Jones submitted that the
giving of reasons was particularly important in this case because of the
significance of the decision for the Applicant's future and because she had not
been allowed to see the case against her. He also referred to the need for a
research scientist to receive feedback so as to assist her in her future
research. He contended that even if there was initially no legal duty to give
reasons, the University had chosen to advert to the reasons and in that case
they were under a duty to give reasons in a legally acceptable form.
26. Mr. Jay did not accept that there was a legal duty to give reasons
in relation to academic decisions such as this, relying on R. V. Higher
Education Funding Council, ex parte Institute of Dental Surgery [1994]
1 All ER 651, in which Sedley J, giving the judgment of the Divisional Court,
said:
"But purely academic judgments...will as a rule not be in the class of case
exemplified, though by no means exhausted, by ex parte Doody
[1993] 3 WLR 154, where the nature and impact of the decision itself call for
reasons as a routine aspect of procedural fairness."
He also submitted that the fact that the University purported to give reasons
did not create a legal duty where none existed beforehand. Whereas a
decision-maker who voluntarily chooses to consult may create a legitimate
expectation that such consultation, which by definition precedes the eventual
decision, will be meaningful, it does not follow that a voluntary giving of
reasons following a decision carries with it any legal duty as to the
form of the reasons. Alternatively, if there was a legal duty in the present
case, it had been discharged.
27. I am prepared to assume without deciding that, at some stage, a
legal duty arose in the present case. However, even on this basis, the ground
of challenge fails. The original decision under challenge was explained to her
in the statement "Dr.Gondhalekar was not able to report positively on your
progress over the whole period when you were supposed to be working with him."
This was effectively a statement that the decision had been taken by reference
to Regulation 10(e)(i) and/or (ii).
3. Fetter of discretion
28. The case for the Applicant in relation to this ground of challenge
is that the Board of Graduate Studies rigidly applied pre-existing policies
without regard to the circumstances of the particular case. The policies
referred to are a policy not to disclose reports and a policy that
reinstatement "can only be considered when a student has completed a project
for which they were registered" (letter dated 4 February 1999).
29. I do not consider that a policy of not disclosing reports of
supervisors or academic references is unlawful. Moreover, although there is
such a policy, there is also evidence that consideration was given to
disclosure in the particular circumstances of this case.
30. The other alleged fetter is in my judgment unarguable. Regulation 8
requires a student to pursue "a course of research approved by the Board and by
the Degree Committee". For more years than were originally anticipated the
Applicant was registered to pursue a particular course of research approved by
the Board under a succession of supervisors appointed by the Degree Committee.
It did not bear fruit. I do not believe that the University can now be
criticised for refusing to depart from policy by reinstating the Applicant to
pursue a new course of research under a different supervisor.
4. Unlawful delegation
31. Mr. Jones next submitted that the Board had acted unlawfully by
delegating the making of the decision about the Applicant to the senior member
of the Faculty. It was actually the Degree Committee who sought the view of
this person. They did so as a response to the Applicant's complaint that Dr.
Gondhalekar had not seen her report produced after his retirement. It seems
almost churlish to complain that a further opinion was sought in the prevailing
circumstances. However, the real question is whether there was in fact a
delegation of the decision-making power. I am quite sure that there was not.
There is nothing to suggest that the Degree Committee and ultimately the Board
did not exercise independent judgment in the light of all the material before
them, including the report of the senior academic. I have to say that this
ground of challenge is a total non-starter.
5. The appointment of the senior academic
32. The final ground of challenge is that the Board acted ultra
vires by appointing the senior academic to provide an opinion on the
Applicant's May/June report. As I have just said, it was actually the Degree
Committee who involved this person. The point which Mr. Jones sought to
exploit was the fact that the Regulations do not expressly provide for such an
appointment. It is true that they do not do so. However, Mr. Jay submitted
that the Degree Committee and the Board have the power to regulate their own
procedures subject to overriding considerations of fairness and reasonableness.
Fairness and reasonableness were manifest in this case, particularly when the
Applicant had complained about Dr. Gondhalekar's input. I entirely agree with
Mr. Jay's submission on this ground of challenge which is without merit.
Conclusion
33. I can find no merit in any of the grounds of challenge and,
accordingly, this application for judicial review fails. Mr. Jay made an
additional submission, namely that even if one or more grounds had been
sustained , it would still have been inappropriate to quash the decisions and
to require reconsideration because, on any view, the Applicant has failed to
reach the required standard and it is very unlikely that any amount of
conscientious reconsideration would produce a result favourable to the
Applicant. In my view there is force in this submission. However, it is
unnecessary for me to decide the point in view of my findings on the
substantive grounds of challenge.
- - - - - - - - - -
MR JUSTICE MAURICE KAY: For the reasons set out in the judgment handed
down today, this application for judicial review is refused.
MR WALKER: May it please your Lordship, I appear for the applicant and
my learned friend Mr Thomann appears for the respondent. I wish to seek leave
for permission to appeal this judgment.
MR JUSTICE MAURICE KAY: On what grounds?
MR WALKER: I make five very short points: first, the impact of today's
decision is considerable upon the applicant, as your Lordship acknowledged at
paragraph 17 of your judgment. Secondly----
MR JUSTICE MAURICE KAY: That is something for which one can have
sympathy but it is not a ground of appeal, is it?
MR WALKER: It is not a ground of appeal but it is a point I ask your
Lordship to take into account. Secondly, the crux of the decision is that the
decision to de-register the applicant was on the basis of two confidential
reports, the justification for their confidentiality was academic judgment. In
my submission, the circumstances were not purely ones of academic judgment. At
paragraph 5 of your judgment your Lordship stated that there were extenuating
circumstances surrounding the applicant's situation. Therefore, the
confidentiality cannot be sustained on pure academic judgment grounds.
Thirdly, in my submission the Court of Appeal should have an opportunity
to state the law on academic judgment and confidentiality as the authorities
are not clear on this matter. In my submission, academic judgment is
equivalent to expert evidence and decisions of public bodies which are always
conducted in the open
- although the court will not inquire into the way the decision was reached as
long as it was not irrational. I submit that similar consideration should apply
to academic judgment.
Your Lordship's statement at paragraph 23 of the judgment that there are
sound and obvious reasons why reports to those who have to make academic
judgments of this type should remain confidential, thus enabling the reporters
to express themselves frankly in the knowledge that what they have to say will
not be made available to the subject of the reports, could equally apply to
expert evidence, decisions of public bodies but, of course, it does not so
apply. The applicant is not seeking the court's interference with matters of
academic judgment, just their fair exercise.
Fourthly, the European Convention of Human Rights point, while my
learned friend Mr Jones accepted that Article 6 goes no further than natural
justice, I submit that it is certainly co-extensive with natural justice and
there is no authority from the court of Human Rights that academic judgment is
excused from considerations of natural justice.
Fifthly, on the reasons point - regulation 10(e)(1) states that the Board
can de-register somebody if he has not been working to their satisfaction. The
reasons given at paragraph 27 of the judgment are simply that Dr Gondhalekar
was not satisfied with the applicant's progress, which is simply a statement of
the conclusion rather than reasons for that conclusion.
For those reasons, I seek permission to appeal this judgment.
MR JUSTICE MAURICE KAY: Thank you very much. Yes, Mr Thomann?
MR THOMANN: The respondents have just two points in reply to that:
firstly, the judgment is clearly right as a matter of law; and, secondly, as
your Lordship has indicated, as a matter of discretion, relief would probably
have been refused in any event, it being very unlikely that the applicant would
have satisfied the requirements of satisfactory progress.
MR JUSTICE MAURICE KAY: Thank you. Permission to appeal will be refused
because I do not think that any appeal has any prospect of success. Of course,
it remains open to the applicant, if she wishes, to make an application for
permission directly to the Court of Appeal (Civil Division).
MR WALKER: In that case, your Lordship, may I ask that the usual 14 days
in which to appeal to the Court of Appeal is extended? Your Lordship has power
to extend this period under rule 52.42 of the new civil procedure rules. It is
the House of Lords practice that if an application is made during a deadline
for legal aid, as my client is legally aided, the Legal Aid Board or the Legal
Aid Services Commission is notoriously slow at this time of year.
If the House of Lords received an application for legal aid within the
deadline then their practice is to allow permission to be lodged within one
month of a legal aid decision being made. I would translate this in this case
to seven days after the legal aid decision being made. If, however, your
Lordship is not satisfied with that somewhat open-ended suggestion, may I ask
that the normal deadline is extended by 14 days?
MR JUSTICE MAURICE KAY: So you are asking either for the normal deadline
to be doubled in effect from 14 days to 28?
MR WALKER: Yes, your Lordship.
MR JUSTICE MAURICE KAY: Or that it be extended to seven days after the
legal aid decision?
MR WALKER: Yes, your Lordship.
MR JUSTICE MAURICE KAY: Yes, anything to say about that, Mr Thomann?
MR THOMANN: I have no instructions on that, my Lord.
MR JUSTICE MAURICE KAY: No. I will extend it to 28 days.
MR WALKER: I am grateful your Lordship.
MR JUSTICE MAURICE KAY: Presumably you want an order for legal aid
assessment?
MR WALKER: That is correct, my Lord.
MR JUSTICE MAURICE KAY: Anything else?
MR THOMANN: We would ask that our costs should follow the event but not
to be enforced without leave of the court.
MR JUSTICE MAURICE KAY: Anything to say about that, Mr Walker?
MR WALKER: I understand that the new wording for such an order is that
determination of the amount of such costs that it is reasonable for the
assisted person to pay be postponed generally pursuant to regulation----
MR JUSTICE MAURICE KAY: That is the formulation the Court of Appeal now
prefers?
MR WALKER: Yes.
MR JUSTICE MAURICE KAY: Yes.
MR WALKER: I would ask that such an order, in the interest of certainty,
be discharged after a period of two years?
MR JUSTICE MAURICE KAY: Yes, I have never been asked to do that.
MR THOMANN: The respondent would resist that, of course.
MR JUSTICE MAURICE KAY: You resist it. I will use the usual formula
without the addition which you request. Thank you both very much.
- - - - - -
© 2000 Crown Copyright
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