England and Wales Court of Appeal (Civil Division) Decisions

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

		Royal Courts of Justice Strand London, WC2
		30 November 2004

1. LORD JUSTICE CLARKE: This is an application for permission to appeal against the order of Sullivan J made on 28th May 2004 refusing the applicant's application for permission to apply for judicial review of decisions of the BPP Law School and of Mr Gerald Godfrey QC who acted as an independent reviewer. The judge also refused an extension of time and an application for an adjournment which forms a discrete ground of appeal.
2. The background is set out in the judgment of the judge. The applicant registered as a student with the BPP Law School for the Bar Vocational Course ("the BVC") commencing in September 2000. She sat a number of exams. As I understand it, she made what are known as concession applications in relation to some, if not all, of those exams for various reasons. She passed most exams, but unfortunately she failed two, the multiple choice test 1 and the drafting 2 test. Like all the BVCs, the BPP Law School operates under assessment regulations which are approved by the Bar Council.
3. The regulations are included in the extensive bundle which has been made available to the court. I should refer to some of them. Rule 1.3 of chapter 8, which is headed "Application for an assessment to be disregarded (concession)" provides, so far as relevant:

"Application may be made

1 ...

2. where you believe that your performance in the assessment has been substantially impaired by special circumstances.

Application to have an assessment disregarded must normally be made no later than 10 working days after the date of the assessment. In exceptional circumstances, eg if you are in hospital and unable to make the application within the normal time limit, the Board will consider a late application (see 1.6.7 below)."

"1.4 The evidence required to support a deferral or concession application

The Board can not act on your application alone. It must have independent evidence. You must therefore provide documentary evidence in support of your application.

...

The following are examples of the sort of evidence the Board will normally require.

1. If you have been ill - medical certificate(s) from your GP or the hospital giving details of the illness i.e. not just saying you were unable to attend on the day of the assessment.

Note: a self-certificate form from your medical practice is not considered to be independent evidence for these purposes."

4. Rule 1.6 is entitled "Important points to note regarding concessions", and provides at paragraph 7:

"If you submit a concession application more than 10 working days after the date of the assessment in question the Board will need to be satisfied that there was good reason why the application was not submitted on time. You will need to provide acceptable independent evidence for the delay.

If the application is not made until after the provisional result of the assessment is known the Board is extremely unlikely to grant the concession.

8. In no circumstances can a concession application be submitted after the Board has met. If you wish concessionary factors to be considered in these circumstances, you must proceed by way of an Appeal ..."

5. The judge said in the course of his judgment that the circumstances in which applications for concessions may be made are understandably very tightly drawn. The applicant sought a concession in respect of the two papers which she had failed. As the judge put it, in very broad outline her case was that she had been having continuing problems in relation to her flat, having to defend possession proceedings as a litigant in person. She also had suffered harassment and as a consequence of this she was under considerable stress.
6. The applicant, Mrs Saiadi, has appeared before me this morning and she has explained in vivid terms the kind of harassment to which she was subjected at that time. Unfortunately for her, the Assessment Board rejected her concession application and also rejected the appeal which she had made under the regulations. She was informed of that decision on 26th February 2002. As the judge observed in both cases, the reason given was that the application was submitted out of time and there was no valid reason for the delay. She was, however, told that she could appeal by way of reference to an independent reviewer.
7. The regulations, to which I have already referred, contain in section 6 detailed provisions in relation to the reference to an independent reviewer. The scope of the reference is described in rule 6.1 in this way:

"A student who has exhausted the Law School's internal assessment appeals procedures may refer the matter to an independent reviewer where:

1. the Law School has failed to follow the procedure laid down in these regulations or

2. the procedure followed is manifestly unfair or

3. the decision on the appeal that the Assessment Board has reached is manifestly unreasonable."

8. Section 6 contains a number of detailed provisions relating to the process before the independent reviewer. The applicant has drawn my attention to rule 6.2:

"The reference must be made in writing but there is no prescribed form. It must specify in detail:

* the ground(s) on which the reference is made

* the evidence relied on

* whether the applicant would like an oral hearing or would prefer to have the matter decided by an Independent Reviewer on the papers."

9. It is to be noted that in the rule 6.3, which relates to the conduct of the reference, it provides that:

"The Independent Reviewer will have an unfettered discretion to decide how to investigate the matter and the way in which it has been handled by the Law School and, in particular, to decide whether or not an oral hearing is required."

10. By a letter dated 4th July 2002 the school told the applicant that the Assessment Board had rejected both her appeal and her two concession applications. The reasons given in summary were, as the judge observed:

"Your appeal was rejected for the following reasons: (a) the concession was submitted out of time and there was no good reason for the delay; (b) the facts relied on did not constitute mitigating circumstances which would justify disregarding the assessment in question that the legal dispute in which you were engaged was ongoing and had been for a considerable time. There was no evidence of mismanagement by your solicitors. There was no evidence of any health or stress problems. There was no substance in the suggestion that there had been inconsistency in the Board's decisions."

11. The applicant has indicated today that she did not want to have an oral hearing before the independent reviewer, Mr Gerald Godfrey. She was content that the matter be dealt with on the papers. However, it does not seem to me that she could have suffered any injustice as a result of Mr Godfrey's decision to hold an oral hearing and, indeed, Mr Godfrey did hold an oral hearing and made a detailed report as to what occurred, which I have seen.
12. As I read his report he clearly identified the complaints being made by the applicant, including that the school had failed fairly and properly to follow its own procedures for dealing with concession applications, that the rejection of her concession applications was manifestly unreasonable and that she had suffered unfair and inconsistent treatment in that, in particular, a concession application by another student, whose case was less deserving than hers, had been allowed while her own had been rejected. Indeed, the applicant has drawn my attention today to the particular case of a person whom she assisted and whose case succeeded. I can well understand how the applicant feels by comparison with those whose cases succeeded.
13. Mr Godfrey observed in the course of his decision that he could interfere with decisions taken by the school only if he concluded that it had failed to follow the procedures laid down in the regulations or that the procedures which had been followed were manifestly unfair or that the decision was manifestly unreasonable.
14. After setting out the complaints and what occurred before him he said this in paragraph 7:

"These are narrowly defined criteria. I find it impossible to conclude that the School here failed to follow the relevant procedures, or that those procedures were manifestly unfair, or that the decisions reached were manifestly unreasonable. Accordingly, I have no power to refer the matter back to the School for further consideration."

15. Mr Godfrey's report was received by the applicant on 28th October 2002. She told me that she thought that the hearing had taken place early in October 2002. That was a time when she said she was under particular stress, and indeed I can well understand that she was under some stress because there are in the bundle a number of court orders made in the proceedings relating to her flat which have been long and difficult for her. So, for example, there was an order of the 15th August 2002 in which a whole series of directions were given which included directions that she pay sums of money on or before 30th November 2002. And I can well understand that those proceedings did indeed cause her considerable stress at the time. There were a series of further orders thereafter in which, pursuant to earlier orders of the court, notices of eviction were sent to her which contemplated her eviction from her flat on successive dates, first on 14th April 2003, then on 8th August 2003 and then on 26th September 2003, although I understand that she is, in fact, still in her flat which is no doubt a good thing from her point of view.
16. The next step in the applicant's attempt to set aside the decisions of the school was an application for judicial review. That application was, however, not made until 22nd August 2003. As the judge observed, the application was not made promptly, it was made a very long time outside the three-months time limit in the CPR.
17. It was considered by Mitting J, who refused permission on the papers on the ground, first, that the application was hopelessly out of time. Secondly, Mitting J rejected a contention that there was a continuous breach on the part of the defendants. He observed, so far as I can see correctly, that the applications for judicial review were judicial views of two decisions: one by the school and one by Mr Godfrey on particular dates. The applicant explained to the judge, as indeed she has explained to me, that throughout the whole of this time she continued to be under stress, that she was attempting to obtain legal advice and that her attentions were very much, as the judge said, taken up with other legal problems which were besetting her, particularly in relation to her property. She has spelt those out in detail again this morning.
18. However, the judge was well aware of these factors and, indeed, he observed that she was in touch with various solicitors about various matters. Indeed this morning Mrs Saiadi, the applicant, has given me the names of a number of firms of solicitors whose assistance she has sought. She has also drawn my attention to attempts made to seek advice and/or assistance from members of the Bar Erskine Chambers and 4-5 Gray's Inn Square. The problem has been that she needs to find a firm of solicitors to give appropriate instructions. She says that she sought the assistance of the solicitors helping her in her property matters, but, unfortunately, they have provided her with what has proved to be little, if any, useful assistance, as (for example), an email, to the solicitors dated April 13th 2004 explains.
19. Further, the applicant has put before the court letters that she has written including, in particular, a letter dated 22nd June to solicitors Ashok Patel and Co, who she had instructed, but who, according to this letter, wholly failed to give her the kind of assistance which she could reasonably expect from a solicitor. I can well understand that these problems have contributed to the situation so far as she is concerned.
20. The judge however had these matters in mind and he took the view that the fact remains that the decisions were not challenged properly and that, as he put it, there is no good reason to extend the time. The difficulty that the applicant faces here is that in order to persuade this court to give permission to appeal she needs to show that Sullivan J's decision was wrong in law. It appears to me, however, that the decisions made by Sullivan J were well within the exercise of his discretion, so far as time is concerned.
21. The judge nevertheless considered the matter somewhat further on the merits. He observed that the underlying dispute is a relatively narrow one. The applicant submitted the concession applications outside the ten-day limit. The only question, he said, was whether the college was entitled to conclude that there was no good reason for that delay. The judge said at paragraph 16:

"That is pre-eminently a matter of judgment for the college, which this court on judicial review would be most reluctant to interfere with in any event."

22. I entirely agree that that is the position, disappointing as it is from the applicant's point of view. Indeed, I agree with the judge that the claimant is essentially seeking to use the application as a vehicle to reargue the merits of the whole case. The essential point is that, although the applicant contends that she was under considerable stress as a result of the on-going legal disputes in which she was engaged and that there were unforeseen matters which had occurred as time went along, the college makes the point, as the judge said, that the legal dispute was on-going and had been for a considerable time. In short, it is the sort of long-term problem that might, for example, justify a student in seeking to defer an assessment, but not one that justifies a concession application.
23. The applicant has referred to some medical evidence which she has put before this court, as she did before the judge. There is a letter from Dr Diane Watson of 17th July 2002 who explained that as at that time the applicant was under considerable stress. It is plain from the letter that the applicant had seen the doctor before, in about May 2002, when she was also under considerable distress. I have seen a letter, dated May 2004, which also says that at that time the applicant was under stress. Unfortunately, the applicant did not provide material of that kind by way of evidence to the school at the time she made her application.
24. I regret to say that I have reached the same conclusions as the judge, and indeed Mitting J, that this application for judicial review is not arguable, and so it would be quite wrong in principle to grant permission to appeal unless it could be said that the judge erred in principle in refusing her an adjournment. The judge considered carefully whether he should grant her an adjournment. He considered the letter of 27th May 2004. He decided, however, that it would serve no useful purpose since all the relevant matters were before him and the applicant had addressed him for some considerable time extremely articulately. She has addressed me extremely articulately today and put every possible point that could be put in her favour. It appears to me that the judge was entitled, in the exercise of his discretion, to reach the conclusion that he did and that there is no prospect of this court interfering with that decision.
25. The applicant has very recently made a further statement in support of her claim in which she says this:

"Mr Justice Sullivan failed to act impartially or to consider my ill health and made an unfair and unreasonable decision."

26. I regret that I am unable to accept that view of the matter. It is plain to me that he acted entirely impartially. He did consider her ill health and he considered each aspect of her case. While I personally have a great deal of sympathy for Miss Saiadi, I simply do not think that I could grant her permission to appeal.

Order: Application dismissed. Copy of judgment for Applicant directed at public expense.