England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE ADMINISTRATIVE COURT
(MR JUSTICE SULLIVAN)

		Royal Courts of Justice Strand London WC2 Tuesday, 17th September 2002

Tuesday, 17th September 2001

1. LORD JUSTICE SCHIEMANN: Before the court is an application for permission to appeal from a judgment of Sullivan J delivered on 19th April 2002 when he refused the applicant, Mrs Clark, permission to apply for judicial review of the procedures adopted by Middlesex University in marking her written material and other material which she put together in order to try and secure a Masters Degree in Nutritional Medicine. Sullivan J did not have the claimant in front of him and he dealt with the matter very quickly. It appears from material which has been put before me that she was in Nigeria at the time and made significant efforts to bring it to the attention of the office and of the defendants that she could not be here on 19th April. Those efforts included, so far as I can see, sending an urgent fax from Nigeria to the Royal Courts of Justice. In those circumstances it seems to me it would be wrong to hold against her that she was not there on 19th April.
2. Sullivan J dismissed the application on two grounds. First, that the application was not lodged until November 2001, whereas the decision against which this lady was objecting was in March 2000. Sullivan J opined that in any event he could not see that the application had any prospect of success. Because of the procedural difficulties I have permitted Mrs Clark to address me so that she has the feeling that she has talked to a judge who has understood what the points are that she is seeking to make and it is right that I should set them out.
3. The university has a subject handbook called "Work Based Learning Studies" which has in it descriptions of various modules. One of the modules is Module WBS 4840, which is the one upon which Mrs Clark was engaged. It sets out what the rationale of the course is, what the outcome that it hopes will result from the study, and it says:

"All students will be aware, however of the need for demonstration of research skills, action planning, initiative, originality, organisation, effective communication, analysis, synthesis and critical evaluation."

4. They say that when it comes to the weight to be given to the students' effort, 80 per cent is to be given for submitted work and 20 per cent for formal presentation to tutors, employers and peers.
5. Now, this lady submitted a written work as was envisaged in the course. That was marked by two internal examiners on 18th and 19th January 2000. They set out the reasons why the work was not in their view good enough. They say that her reading was not used in an analytical fashion in order to develop either argument or question; the project contains many generalisations which are not supported by lay evidence; the data analysis is simplistic; statistical analysis is stated but no methodology is described or recognisable tests applied, and they indicate that overall the project failed to meet the standard of passed graduate work and that she lacked ethical understanding in a particular way.
6. Mrs Clark recognises that she cannot appeal against the academic judgment of those who marked her. But she says that, following those marks, there was a presentation which in principle had been envisaged in the module description. But this presentation suffered from two defects, she says. Firstly, that it was conducted in a room which was dark and unfriendly, and it was a hostile and difficult environment; and secondly - and she puts that really as her first point - that there were no peers of hers present. The module description undoubtedly says that 20 per cent weight should be given to formal presentation to tutors, employers and peers. She does not complain about the absence of an employer because she had no employer, but she does complain about the absence of peers.
7. The university in informing Mrs Clark of her result undoubtedly committed a number of errors which do not fill one with confidence. On page 52 of the bundle there is a blank form saying that her results for this year were as follows, and then absolutely nothing is contained underneath it. That I think was sent to her at some stage in February. It seems that later on 28th February she met Mr Garnett, the director, and he wrote to her on 6th March and said:

"Further to our meeting of 28 February... I have arranged for one copy of your project and assessors feedback form to be available for collection from the main reception area at the... Campus....

I have reviewed the assessment of your project and can find no evidence to support your allegation of discrimination against the internal assessors. In accordance with standard University procedures your project and the comments of the internal assessors were sent to an external examiner. The external examiner agreed with the internal recommendation. As a failed resit finalist your case was discussed at the Work Based Learning Studies Assessment Board."

8. He then says that she has a right of appeal. That was written on 6th March. Two days later there comes yet another standard form letter addressed to her purporting to set out her module results but not doing so. They were completely blank. Then on the following day, 9th March, Mr Bull, Chair of the Assessment Board, said that he apologised that:

"... the results letters you have received did not include the module grade and details essential for you to understand the decision taken by the Board. That is 'that you had not passed sufficient credit required for your award and that, as you have no further reassessment opportunities, you are deemed to have failed.'

The letter should have listed the facts in the following manner..."

9. There then is set out starting with semester 1998/1 giving the right module code: 40 under credits, 18 under original grade, 20 under resit grade, and giving her an overall grade of 18. He continued:

"I wish to reiterate the regret expressed in the previous letters, that you are not able to continue on the programme of study, but can confirm that the decision was fully discussed at the Assessment Board at which two External Examinations Auditors were present. Their role is to ensure an equity of judgment for all finalists and correct interpretation of the University Assessment Regulations."

10. That is dated 9th March; and on 27th March 2000, the Pro-Vice-Chancellor, Gareth Jones, writes to her saying that the work which she submitted was marked by two internal examiners and an external examiner, all three agreed that it did not satisfy the criteria for a pass. He apologises that the results originally did not contain a grade. He rejects a suggestion that the work was not marked until 9th March, and he says that any appeal in substance is against the academic judgment of the Assessment Board, and that, under the regulations, cannot be considered. He does not address any question of the absence of the students. I have not seen whether the letter of 16th March made complaint about that. But really the substance of the complaint of this lady is that she was deprived of the benefit of the presence of some students whilst she was being examined on or asked about her written work. She tells me that the presentation was either on 28th or 26th January. The written assessment had been done on the days before that, as appears from their letters, unless, as she suspects, they were forged (for which there is no evidence that I can find whatsoever).
11. When one looks at the subject handbook and looks at the assessment process which is described there, there is absolutely no suggestion that her fellow students are to be responsible either for 80 per cent written marking (and she does not suggest that they would be) or indeed for the remaining 20 per cent. There is no suggestion in the handbook under the heading "Assessment of WBS Modules" that it is up to her peers to mark her paper. She says, and I understand that, that in the module description undoubtedly there is a reference to "20 per cent formal presentation to tutors, employers and peers", but that does not say that the peers actually have a voice in the final result of what happens to an applicant. They are there to make her feel at ease, I suppose, and perhaps to learn themselves as she told me, so that when they have to submit their papers they will have seen roughly the sort of thing that goes on.
12. But I am afraid what has happened here is that the lady's papers were apparently not up to the standard required by the university, and nothing that she could say in that presentational process would have altered that assessment so far as one could see. I do understand her to say that in all other cases that she knows of there have been students present; but I am afraid I do not regard that as, if it is a failure, one which has led to her failing this degree course, which is what she is after; she is after the certificate, which I can understand, but for that her work must be good enough, and I do not think the quality of her work would have been regarded as having been very much better if she had been feeling more at ease at the time of the presentation. What seems to have let her down is the quality of her written work before it ever came to her presentation, and it may be that the university felt that it was a kindness to her not to have the students present, I do not know, but in all those circumstances, although I understand the point that she takes, I do not consider that it is a point which would, if it came to a trial, lead to the university being ordered to re-examine her paper, or of any reasonable prospect of success of showing that her paper is up to the standard which that university requires. In those circumstances it would merely add to her costs bill and that of others and difficulties generally if one were to give leave; it would add to the costs of the university in having to defend the action, and it would not produce anything of value at the end of the day.
13. I add that the application is, of course, as Sullivan J pointed out, a long way out of time. She has not addressed me on this. I am not sure that on its own I would have held that against her, although if she sought to develop, as she seemed at one time in addressing me, arguments as to precisely what happened in that room at that time, in those sort of circumstances the passing of time is really rather important, because of course people's recollection of what precisely happened will vary. Her recollection will probably remain clear because she does not do this very often, I imagine, but the tutors will be examining people every day and would have done lots of it, so their recollection will fail with the passage of time. I am afraid permission must be refused.
(Application refused; no order for costs).