England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
APPLICATION FOR PERMISSION TO APPEAL
AN EXTENSION OF TIME, A STAY OF EXECUTION
AND PERMISSION TO RELY ON FURTHER EVIDENCE
APPLICATION FOR SEEKING TO REVIEW DIRECTION OF
DEPUTY MASTER di MAMBRO

		Royal Courts of Justice Strand London WC2 Thursday, 3rd October 2002

1. LORD JUSTICE KEENE: In this matter the applicant seeks permission to appeal against a decision of His Honour Judge Walton at Newcastle upon Tyne County Court on 10 May 2002 whereby the applicant's claim was dismissed with costs. The claim had alleged racial discrimination against him by the University of Durham where he was a registered Master of Arts student in 1998/1999. The applicant is from Nigeria and is black. The course on which he embarked involved six modules and a dissertation. To pass a module a mark of 60 per cent was required. When Mr Ogundipe's papers were marked he obtained less than 60 per cent on three of them. That outcome was confirmed by the Board of Examiners on 11th June 1999, but it was agreed the applicant could complete the dissertation and then re-sit the failed modules if his dissertation mark was 50 per cent or higher. Before the Board met Dr Thomas, the course tutor, had written to the applicant to ask if there was medical or other relevant evidence which might have affected his examination performance. According to the judge's findings, the applicant mentioned that his mother in Nigeria had been ill about two weeks before the examinations and that after them he had flown out there to see her. The illness of his mother was not seen as of great significance in terms of his examination performance and therefore was not put before the full Board.
2. The applicant subsequently began an academic appeal and that was successful, in that the Deputy Dean decided to refer the matter back to the Board. Mr Ogundipe did not accept the Deputy Dean's decision. He wanted a re-mark of his papers rather than a consideration of mitigating circumstances. So he appealed against the Deputy Dean's decision to the Senate. The Senate rejected his appeal. He also appealed to the university's visitor, the Bishop of Durham. That appeal also was dismissed.
3. In the County Court proceedings he raised a number of matters by way of alleged discriminatory treatment. The judge pointed out that many of these allegations rested on the way in which the applicant interpreted the conduct of staff and officers of the university. Having heard the witnesses, the judge did not accept that these instances were ones of racial discrimination. He concluded that the applicant had misinterpreted what was in fact innocent behaviour.
4. There was a specific complaint by Mr Ogundipe of victimisation within Section 2 (1) (d) of the Race Relations Act 1976. This required evidence that the applicant had been less favourably treated as a result of the doing by him of a protected act. The judge found that the complaint of less favourable treatment had not been made out. In addition, the applicant complained about the way in which the university had handled his mitigating circumstances in June 1999. In that connection he relied on certain comparators and the way in which they had been treated by the university. The judge considered these comparators and found that there were other reasons for their being treated differently by the university. He concluded that the applicant did not receive less favourable treatment than was afforded or would have been afforded to a non-black student. He ended his judgment by recognising that the applicant would be unlikely to accept the outcome but urging him to put this behind him and to start a career. I should say that His Honour Judge Walton sat on this matter with the assistance of assessors.
5. It is now contended by Mr Ogundipe, who has represented himself this morning and who has conducted his case with great clarity as well as restraint, that he did not receive a fair hearing in the County Court. There are a number of allegations of bias in the papers made against the trial judge, particularly concerning his previous involvement in an appeal by the applicant in the proceedings brought by him against the Bishop of Durham as visitor. However, that appeal heard by Judge Walton only concerned the issue of whether the applicant, through his counsel, had, at a hearing before a district judge, consented or not to the striking out of the claim against the Bishop and, if he had, whether that consent order should now be set aside. In short, the judge had been dealing with a very different issue from those which he determined in May 2002.
6. Then it is argued that the applicant was suffering from a head injury on 23 April 2002 when the trial began. It does seem that he raised this with the judge towards the end of the morning, and the judge then adjourned until the following day when Mr Ogundipe did not appear but sent instead a medical note. In the light of that the trial was adjourned to 29 April when the applicant did attend and, according to the judgment, showed no signs of ill effects and made no complaint of anything untoward.
7. Mr Ogundipe has also applied for a transcript of proceedings on 23 April to be provided at public expense. An order to that effect was refused by the Deputy Master of the Court of Appeal, but it is said that the applicant requires such a transcript in order to be able to conduct his case properly. It is said to me that it is only by that means that I can be shown exactly what happened in the early part of the trial. Dealing with that matter first, I can see no reason why the description of the trial as given in the judgment should not be relied upon. It is clear that the trial was adjourned for some days, in effect, from 23 April to 29 April. No medical evidence that the applicant was unfit to proceed on 29 April has been produced. Indeed, Mr Ogundipe has accepted, very fairly, that he was fit to proceed on that day. I can see no need for a transcript at public expense, nor can I see any merit in this ground.
8. A lot of emphasis has been placed by the applicant this morning on the fact that his father had been ill for a time during 1999, and he says this illness was not taken into account by the Board. The problem is that there is no evidence I can see, nor any finding by the trial judge, that this factor had ever been put before the Board as having affected Mr Ogundipe's performance in his course. He believes that, if he had been white, the Board would have taken this factor into account on its own initiative. I cannot see that that can be right. If someone does not allege that his or her performance has been affected by a factor, how can the Board possibly take it into account? Something may have happened as an event but the causal connection between that event and performance is something about which only the individual personally can speak. Here, Mr Ogundipe had been invited expressly by his course tutor to indicate if there had been any such factor that affected his performance and he had not mentioned his father's illness as being such a consideration.
9. It is then submitted that the judge only considered two comparators in his assessment of the discrimination issue, Mr Hunt and Mr Blaisse, whereas he had also relied on a hypothetical white English pupil and an Asian pupil. The judge does deal with the hypothetical white comparator in his judgment, since he finds that the applicant did not receive less favourable treatment than would have been afforded to a non-black student. That clearly is dealing with a hypothetical white student. As for the Asian student, there is reference, on reading the papers, to a Miss Ting. It is right that she is referred to - although not by name - in the amended particulars of claim and is not expressly dealt with in the judgment. The Board decided to raise her mark in one module from 58 to 60 for reasons given in the minutes of 12 November 1999, both of those marks being pass marks. It is noticeable that she is not mentioned in the very full skeleton used at trial by the defendants, so it would seem that she did not form a large part of applicant's case. There is no evidence that the Board did not act in accordance with the compensation rules, as they are called, in raising her mark, whereas the judge expressly found (at page 29 of his judgment) that Mr Ogundipe did not qualify under those rules for any adjustment. I can see no basis for the contention that the decision is flawed on this ground.
10. None of the matters raised before me this morning orally or in writing on the papers seem to me to provide any basis on which the Court of Appeal would be likely to interfere with the judgment given by Judge Walton in May. Like the judge, I would express the hope that Mr Ogundipe can now put this behind him. His brief appearance here this morning has shown to me that he is a person of considerable intelligence and personal charm whose future could be a bright one. The risk is that, if this matter lingers and preoccupies him for too long, those prospects may be damaged.
11. So far as the appeal is concerned, I can see no real prospect of success in a challenge to Judge Walton's decision. In those circumstances these applications must be dismissed.
12. Nonetheless, I would like to thank Mr Ogundipe for the very courteous way in which he presented his case this morning.
Order: Applications dismissed