England and Wales High Court (Queen's Bench Division) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
LEEDS DISTRICT REGISTRY

		The Court House 1 Oxford Row Leeds
		13 December 2013

1. JUDGE SAFFMAN: By his claim form, to be found at page 1 of the bundle, the claimant in this case, Mr David Anthony Winstanley who is represented by Mr Peter Oldham QC, brings proceedings against the defendants, Professor Brian Sleeman, and the University of Leeds, represented by Ms Fenella Morris QC, for damages for breach of contract and for negligence in connection with the provision by the defendants of the claimant's post-graduate education.
2. I am concerned with an application by the defendants to strike out the claim pursuant to CPR 3, 4, 2(a) and 2(b), namely that it discloses no reasonable grounds for bringing a claim, and/or that the Particulars of Claim are an abuse of process, and/or, pursuant to Part 24, 2(a) and 2(b), that the claimant has no real prospect of succeeding in his claim, and there is no other compelling reason to proceed to a hearing. The application is at page 243 of the bundle and it is supported by a witness statement of Mr Richard Williams, to be found at page 246.
3. I have had the benefit of two very helpful skeleton arguments by leading counsel for the parties and a written response from Mr Oldham to Ms Morris' skeleton argument. Of course I have also had the benefit of very skilful and erudite oral submissions from both counsel.
4. In paragraph 1 of her skeleton argument Ms Morris helpfully summarises the four grounds upon which her application is made.

a. The first is that the claim is statute barred, and there is no real prospect that the court will come to any other conclusion.

b. Secondly, the claim concerns matters of academic judgment, which it is not arguable are justiciable issues.

c. Thirdly, the allegation that the defendants owe the claimant a tortious duty of care in relation to his education, particularly with regard to his preparation for his mathematics PhD thesis, and the manner in which his viva examination was conducted and its outcome, stands no real prospect of success in the CPR Part 3 or Part 24 sense.

d. Fourthly, that the claim against the first defendant is otiose, because the second defendant accepts that, and says as much in paragraph 1(d) of the defence, at page 235 of the bundle, that it is vicariously liable for the acts of the first defendant.

5. As regards the allegation that the claim is out of time, it has now been agreed that this will not be pursued in the form of an application under Part 3 or Part 24. Ms Morris acknowledges that it is more appropriate to pursue that as a preliminary issue. In my view, with respect to her, she is right so to acknowledge. It seems to me that the issue of whether the claim is statute barred in its current form, as a claim including a claim for personal injury (and therefore to which s11 Limitation Act 1980 applies) depends on the claimant's date of knowledge, as defined in s14. There are factual issues that have to be explored in relation to that which will, in my judgment, require the parties to give evidence. That makes the issue one which is not amenable for consideration under Part 3 or Part 24, for reasons that really are so trite that I do not think I need to set them out.
6. In any event, I should add that Mr Oldham does not confront the issue of limitation purely on the basis that the date of knowledge was late enough to deprive the defendants of a limitation defence. He also asserts that it is plainly arguable that even if the claim is out of time, the court may exercise its discretion to exclude time under s33. I need not address these arguments (which are set out in paragraph 22 of his skeleton) in the light of the fact that limitation is no longer a basis upon which this application is put. Suffice it to say that it seems to me that a preliminary issue is equally the forum for a consideration of whether time is to be excluded under s33, in the event that there is a finding of date of knowledge that favours the defendant.
7. Accordingly, I can proceed straight to that part of the application to which most of the submissions by both counsel were directed, namely whether it is arguable in the Part 3 and Part 24 sense that the matters about which the claimant complains in his Particulars of Claim are, in principle, open to scrutiny by the court at all.
8. Ms Morris initially argued that all the claims are actually no more than an attack on the defendants' academic judgment, and that such matters are not open to the scrutiny of the court. I should say that in the course of argument on this point and indeed others, I have been referred to a great many cases. I had initially taken the view that a consideration of these matters would require me to reserve judgment, so that I could assimilate these cases and the law at greater leisure. That was not a course that commended itself to counsel, and I accept, for good reason. Accordingly, I agreed not to reserve. Insofar therefore that this judgment may be inelegantly phrased, or does not deal specifically with matters referred to, then that is the reason but both parties are invited to invite me to clear up any omissions or inaccuracies, when I have concluded.
9. It is as well, I think to briefly set out about what the claimant actually complains. In 2002 the claimant was accepted by the second defendant, the University of Leeds, to undertake full-time post-graduate research in the Department of Applied Mathematics, with a view to submitting to a thesis for a PhD. Ultimately his thesis was submitted, and in February 2007, the claimant attended a viva. On 21 February 2007, he was notified that the examiners who conducted the viva intended to recommend that the thesis be failed. That recommendation was accepted by the Graduate Board Examination Group on 15 March 2007 and the claimant was notified by letter on 19 March 2007 that his thesis had indeed failed. In fact, as he was entitled to do, the claimant appealed that decision to a body called the Appeal Group. His appeal was allowed in December 2007 because the Appeal Group accepted that, as contended by the claimant in his grounds of appeal, the supervision or other arrangements during the period of his study were unsatisfactory.
10. That was not the only ground upon which the claimant had based his appeal. Paragraph 28 of the Particulars of Claim reveal that he appealed on three other grounds, relating to the manner in which his viva had been conducted. No finding was made in respect of these grounds by the Appeals Group. It was not convinced that those grounds could be upheld, but felt that in the light of the fact that the appeal was allowed in any event, and the fail set aside, it was unnecessary to reach a conclusion.
11. The failure to adjudicate on those three grounds is also a matter about which the claimant complains, on the basis that, had the appeals committee addressed these issues and adjudicated on them, it may have made a more favourable determination than the one that in fact it made. In the event, the determination that the committee made was simply to set aside the fail and to give the claimant a further 12 months to revise his thesis and present it to different examiners and in the meantime to work under a new team of supervisors. The committee also waived academic fees for that repeat year.
12. The claimant's primary contention, as pleaded in paragraphs 13 and 24 of the Particulars of Claim, is that his thesis was indeed worthy of a PhD, and should not have been failed.
13. His alternative position, encapsulated best at paragraph 16, is that it was failed because

a. First, in breach of their contractual and/or tortious duties to him, the defendants inadequately supervised his thesis, and also inadequately prepared him for his viva. The specific allegations in this respect, are set out in paragraphs 11, 12, and 14(1 to 9) on the Particulars of Claim.

b. Secondly, that in breach of their contractual and tortious duty to him, the defendants arranged for the viva to be conducted by examiners who were not suitable to properly assess the thesis, because they lacked the necessary expertise and insight into the area of research that the thesis covered. That allegation is set out in paragraph 17 of the Particulars of Claim.

c. Thirdly, that in breach of the second defendant's contractual and tortious duty to the complainant, the examiners had not fully familiarised themselves with the thesis, and further, they conducted the viva in a manner contrary to the University's guidance on how vivas ought to be conducted. Specifically that, rather than conduct the viva in a manner that would put the claimant at his ease and thus best places to defend his thesis, they conducted it in a hostile manner which put the claimant at an unfair disadvantage. In addition, in other ways the examiners conducted the viva other than in accordance with the duty to exercise skill and care owed by the defendants to the claimant. I summarise for brevity's sake but the details are in paragraph 18 of the Particulars of Claim.

d. Fourthly, the claimant argues that in breach of contract, the second defendant failed to implement with reasonable despatch The Appeal Group's decision to which I have already referred. I refer to paragraphs 35 and 36 of the particulars.

14. For completeness it has to be said that there is a further complaint which is expressed at paragraph 31. That is that documents provided to the Appeals Group were inaccurate, unfair and incomplete. I will be corrected if I am wrong, but I cannot see that the Particulars of Claim indicate what adverse consequences flow from that, bearing in mind the appeal was successful. I apprehend it may be alleged that, absent these inaccurate, unfair or incomplete documents, the appeal may have resulted in an even more favourable result. For example a decision that may not have required the thesis to be resubmitted after a further year's study.
15. The claimant contends that the matters about which he complained have had a very deleterious effect on his mental and physical health. Those are set out at paragraph 37, wherein he seeks damages to compensate for his lost health and lost earnings suffered by virtue of the breakdown of his health and the delay he has experienced in securing the sort of job that would be available to him if he had a maths doctorate.
16. His contractual claim is derived from the terms implied by the Supply of Goods and Services Act 1982, and common law viz that the university would exercise reasonable skill and care in providing him with his education and in the format of his examination for PhD and that it would act in a way that did not jeopardise the claimant's health and wellbeing. I have in mind paragraph 2 of the Particulars of Claim.
17. His tortious claim is based on the contention that the defendants have a duty of care to him in terms similar to those implied by the contract. In this connection I have in mind paragraph 3 of the Particulars of Claim.
18. His claim against the first defendant (which is set out in paragraph 10) is that the Professor personally owed the claimant a duty of care identical to that owed by the University.
19. The defendants deny that either owe a tortious duty of care, but I will come to that later. The defendants' first contention is, as I have said, that insofar as the matters complained of are complaints about the exercise by the defendants of academic judgment, they are not susceptible to the scrutiny of the court. Mr Oldham denies that that is the law, or in any event, in the context of this application, it is at least arguable that it is not the law. He makes that point in paragraph 43 of his skeleton argument.
20. The starting point so far as Ms Morris is concerned, is Clark v University of Lincolnshire and Humberside [2001] WLR 1998, to be found at tab 5 of the authorities bundle. In particular I was referred to paragraph 12, the judgment of Lord Justice Sedley:

Unlike other contracts, however, disputes suitable for adjudication under its procedures [that is the university] may be unsuitable for adjudication in the courts. This is because there are issues of academic or pastoral judgment which the university is equipped to consider in breadth and in depth, but on which any judgment of the courts would be jejune and inappropriate. This is not a consideration peculiar to academic matters: religious or 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 aegrotat is justified."

Miss Morris argues that the case is clear authority for the proposition that matters of academic judgment which a university is equipped to consider in breadth and depth, are not matters with which the court ought to get involved.

21. It seems to me however, that that case does make it clear that there is a distinction to be drawn between those issues involving a student's treatment at university that are capable of being decided by the court, and those relating to academic or pastoral judgment which are not. I quote again from paragraph 12 of the judgment:

"It has been clear, at least since Hines v Birkbeck College [1986] Ch. 524 (approved in Thomas), that this distinction has no bearing on the availability of recourse to the courts in an institution which has a Visitor. But where, as with ULH, there is none, the decision of the New Zealand Court of Appeal in Norrie v University of Auckland Senate [1984] 1 NZLR 129 and the remarks of Hoffmann J in Hines at 542-3 open the way to the distinction as a sensible allocation of issues capable and not capable of being decided by the courts. It is on this ground, rather than on the ground of non-justiciability of the entire relationship between student and university, that the judge was in my view right to strike out the case as then pleaded. The allegations now pleaded by way of amendment are, however, not in this class. [that is the class of academic or pastoral judgment] While capable, like most contractual disputes, of domestic resolution, they are allegations of breaches of contractual rules on which, in the absence of a Visitor, the courts are well able to adjudicate."

It is not therefore, the entire relationship between the student and the university which is non-justiciable, disputes relating to contractual rules are not off judicial limits.

22. I think it is right to say that Ms Morris does not now dispute that. Indeed, as a result of how arguments have evolved during the course of the hearing, she no longer asserts that all the allegations made by the claimant fall into the category of academic judgment. It seems that she recognises that some are allegations of breach of contractual rules. That must, I think be clear from her concession that she no longer seeks, on the basis of non-justiciability, to strike out paragraphs 14(2),14(3), 14(5), 14(7) and 14(8), and paragraphs 14(1)(a), 14(1)(b), 14(1)(c), 14(1)(e), 14(1)(g), 14(1)(h) and 14(1)(i), or indeed 14(1)(d), insofar as it simply suggests that the university is culpable for having failed to consider whether the claimant needed guidance as to how actually to undertake research for a PhD, as distinct from a complaint about the quality of the research training. As for 14(1)(f), she concedes that the allegation of failure to prepare regular reports on the claimant's progress is not an issue of academic judgment. The university either did or did not provide such reports, but she argues that advice on the format of his thesis and what changes to the thesis it was appropriate to suggest, are matters of academic judgment. I think she puts it quite neatly by agreeing for example that quantum of supervision is open to the court's scrutiny, but quality is not.
23. In the course of argument a shorthand expression for these allegations relating to contractual rules as opposed to academic judgment seemed to evolve, so that by yesterday afternoon, the former were referred to as issues to do with "process". On that basis Ms Morris concedes that for example, the allegations at 18(2)(a) to 18(2)(h), with the exception of 18(2)(d), are "process", upon which the court can in principle adjudicate. I say "in principle" because I do not overlook that she contends that the claimant faces an insurmountable causation hurdle, which justifies strike out even of the "process" allegations. She also has a duty of care point of course, which I shall come to shortly. But she argues that support for the contention that academic judgment issues are not justiciable, comes not only from Clark (which is a binding authority) but also from other cases which she refers to in paragraph 12 of her skeleton, and to which she took me in her oral submissions. In particular, R v HM the Queen in Council, ex parte Vijayatunga [1988] QB 322 to be found at tab 12 of the bundle.
24. However, before I come to that case, let me record what Mr Oldham says about Clark. He has a different take on it to that of Ms Morris. He argues that it is about substandard services, and it therefore about process. The claimant in that case had amended her claim to plead a breach of contractual rules, and her claim was allowed to proceed on that basis. So, the court accepted jurisdiction in that case because it was a case about process. He refers me to paragraph 9 of the judgment:

It emerged in the course of argument that Miss Clark's case in contract could be more tenably put in two ways not so far pleaded. First, there was arguably a failure of the Academic Board to comply with the decision of the Governors' Appeal Committee: on remission, it repeated exactly what the governors had held not to be an appropriate academic response to her performance by confirming the mark of 0. Secondly, there was evidence from the university itself that the resit was treated as an opportunity only to obtain a third class degree: if so, this was arguably in breach of Regulation 6.5.4, which allows for the possibility of doing better. We allowed Mr Mulholland to amend his claim to add these elements, and it is on the claim as amended that the appeal has turned.

However, the head note in Clark is itself instructive, the first holding is that the claim as originally pleaded had travelled deep into the field of academic judgment, and on that ground the judge had been right to strike it out, but that:

The allegations now pleaded by way of amendment are, however, not in this class. While capable, like most contractual disputes, of domestic resolution, they are allegations of breaches of contractual rules on which, in the absence of a Visitor, the courts are well able to adjudicate.

25. I now turn back to Vijayatunga. That was a judicial review case, so perhaps not quite on point because the court was actually only concerned with the lawfulness of the decision of the Visitor at the University of London. Nonetheless, the point is that the applicant in that case complained that there was a mismatch between the examiners appointed by the university to assess her thesis, and her own specialisation. In that respect, it mirrors Mr Winstanley's complaint at paragraph 17(1) and 17(2) of the Particulars of Claim. The Visitor declined to interfere with the University's choice of the examiners and the court declined to interfere with the Visitor's decision.
26. The headnote suggests that the case is premised on the basis that an exercise in academic judgment is not open to scrutiny, but that the issue was whether the question of whether there was a mismatch between examiners and the subject of the thesis was or was not a matter which was an exercise in academic judgment.
27. Ms Morris argues that the tenor of the judgment is that, as a matter of principle, an exercise of academic judgment is not open to scrutiny, either by the Visitor, or, by extension, the court. She refers me to page 458 of the judgment:

The committee took the view, with which I agree, the choice of examiner may well, and in this case did involve an exercise of expert judgment"

She also referred me in particular to the last sentence of the judgment of Lord Justice Mann:

This seems to me wholly a matter of academic judgment in which this court should not interfere.

This was a view with which Lord Donaldson MR agreed.

28. It is right to say that Mr Oldham himself cites this case of Vijaytunga in support of his contention that the law does not prevent scrutiny of academic judgments. He refers to the judgment of Lord Justice Bingham as he then was, at 459(b). I need not read it out but the essence is that Bingham LJ considered whether the particular examiners were appropriate and took the view that they were. Why, Mr Oldham asks, would he have gone to the trouble of considering their suitability if that issue was out of bounds to the court? The answer in my view is that the learned judge was considering whether the choice of examiners was a question of process or academic judgment. In any event, it does not detract from the fact that that the majority of the court clearly felt, as a matter of principle, that the identity of the examiners was a matter of academic judgment, and as such was something with which the courts should not interfere.

28. Ms Morris then took me to R V Cranfield ex parte Bashir [1999] ELR 317 at tab 24 of the authorities bundle, also a judicial review case on the appropriateness of examiners. Holding 5 confirms what was clearly seen by the court in Bashir to be the ratio of Vijayatunga. By that holding it was held that in so far as there was a disagreement between Mr Bashir and the university, it was a disagreement about matters of academic judgment only and the court should not interfere in such judgements.
29. Mr Oldham argues that Bashir should be treated with some circumspection. The applicant appeared in person, the university was not represented at all and Vijayatunga was the only case referred to. He argues that what is said at page 332 (which actually is what I have just quoted as Holding 5) is not what Vijayatunga actually says. I have to disagree. It seems to me to be exactly what was said by Mann LJ in Vijaytunga and with which Lord Donaldson MR agreed.
30. As for Ms Morris' next case, that was R (on the application of Tiago Cardao-Pito v OIA [2012] EWHC 203 (Admin), to be found at tab 25, I have to say I was not taken, as far as I can recall, to any specific reference in that case, and since it runs to 54 pages, plus another 20 pages by way of an appendix, I have not had the opportunity of reading it. Ms Morris contends, in her skeleton argument at paragraph 12(b) that this too was a case where the Court of Appeal declined to interfere in a decision as to the selection of examiners.
31. I was next taken to Van Mellaert v Oxford University [2006] EWHC 1565, that is at tab 9. That is another claim about inadequacy of examiners. Holding 2 repeats the principles as I see them in Clark and Vijayatunga. The distinction between "process" and academic judgment is referred to in paragraph 25:

"I accept that there may be aspects of the Claimant's examination, as well as the appeals to the Senior Proctor and the High Master, into which it would not be inappropriate for the court to intervene. Thus the court would no doubt in a suitable case intervene if it were shown that there had been a material procedural irregularity or if actual bias on the part of one tribunal or another were demonstrated or if it could be shown that there was some procedural unfairness to the Claimant.

32. Mr Oldham himself prays in aid Van Mellaert in paragraph 43 of his skeleton argument. He contends that it is authority for the proposition that some claims about the adequacy of examination marking and exam results have been found to be justiciable. I have to say, with some temerity, that I cannot recall that I was referred by Mr Oldham to any part of the judgment where that is expressed but I do accept that Grey J in that case did undertake an analysis of whether the examiners were appropriate, and found in fact that they were, and he also undertook an analysis of whether the viva was conducted fairly.
33. However in that case, Grey J at paragraph 23 referred to what he described as: "a second formidable difficulty in the way of the appeal". That was to do with the justiciability of academic judgment and having considered that, the judge formed his view that the claimant's complaint that his thesis should not have failed, had no real prospect of success.
34. But Mr Oldham argues that Van Mellaert leaves open in some sense what is and is not protected from the court's scrutiny, because it accepts that the court can intervene on the issue of procedural irregularities for example. In my view however I am not convinced that it does anything more than repeat the principles enunciated in Clark.
35. Moroney v Anglo-European College of Chiropractic [2008] EWHC 2633, tab 26 was the next case to which I was referred. Ms Morris' skeleton at 12(d) holds up this case as authority for the proposition that a mark for an academic paper given in good faith is not open to challenge. The point is that in that case, the claimant appeared to acknowledge the need, if he was to get anywhere with his claim, to avoid a challenge to academic judgment, and instead confine his challenge essentially to process. I quote:

"However, Mr. Hartman emphasised before Owen J. and repeats before me that his intention has been to avoid any challenge to questions of academic judgment and to raise only complaints which fell outside the zone prohibited by Clark."

In paragraph 26 of that same case, Mr Justice Underhill made the point that:

"once it is established that the mark was given in the exercise of bona fide academic judgment, it is incapable of being challenged in this Court."

36. Mr Oldham contends that the challenge to the mark awarded is only off limits to the court insofar as the marking is in good faith. He asks, for example whether, if the examiners in this case were not qualified, and knew that they were not qualified to assess this thesis whether that can arguably be seen as acting in good faith. But it seems to me that the pleadings must in the end define the parameters of the case, and bad faith is not alleged.
37. Mr Oldham himself had a series of cases on this issue to refer me to, once Ms Morris had exhausted her authorities. The first was Abramova v Oxford Institute of Legal Practice [2011] EWHC 613 (QB), tab 3. Here, he says the court looked at the quality of teaching, but the issue actually was whether it was delivered with reasonable skill and care. In my view it was the court looking at "process" and not outcome.
38. I think authority for that view can be derived from paragraph 58:

She [the applicant] is suggesting that the teaching was lacking in reasonable skill and care, rather than basing a claim on a disagreement about the outcome."

and paragraph 61:

"the giving of guidance relating to examination technique and feedback after an unsuccessful attempt at an examination may fall to be considered as an aspect of breach of the implied statutory term."

In other words, it may fall to be decided as a "process" issue rather than an academic judgment issue.

39. I was referred to a further series of cases on the conduct of exams, all in the context that the claimant's complaints can be categorised as first, complaints about how he and his thesis were prepared for the exam, and secondly the conduct of the exam or the viva itself. In this context, Mr Oldham's first case was R (on the application of London Borough of Lewisham) v AQA and others [2013] EWHC 211, tab 7. Another judicial review decision but one that actually gained some celebrity because it concerned the unheralded shift in the grade boundary between C and D in English GCSEs between January and June 2012.
40. In particular, Mr Oldham refers me to paragraphs, 60, 67, 74, 78, 81, 82, 118 and 119. I have read them. It seems to me that in paragraphs 81 and 82 the court acknowledged that fixing the point of the grade boundary was an exercise of judgment but nevertheless the court still looked critically at the examining body's reasons for changing it.
41. At paragraph 118 the court said:

In my judgment it is not a sufficient answer to say, as the AOs do, that on each occasion in January and June they exercised a judgment as to the proper grade boundary, and that was an academic judgment which, in accordance with cases such as Clark v University of Lincoln and Humberside [2000] 1 WLR 1988 is not suitable for adjudication by the courts.

Mr Oldham cites this as indication that the law has actually moved on since Clark.

42. However, once again, in my view what the court is saying in this case is that in effect, decisions as to the movement of a grade boundary are not academic judgments in the Clark sense, they are essentially actions to maintain the integrity of the grading structure for GCSEs year on year. The decision that the court is scrutinising therefore is more a decision essentially on where the pass mark is, rather than whether and how it is achieved. As Ms Morris points out, in any event, the Lewisham case is a world away from the assessment of a single piece of work, it is an exercise in setting standards for a very broad cohort of children studying GCSE English in England and Wales.
43. Mr Oldham cited other cases, in support of his contention that the law has moved on, and that areas of immunity from the court's scrutiny are being squeezed. Jones v Kaney [2011] UKSC 13, tab 20 was one such example. In that case, the court abolished immunity from suit for experts, and Smith v MOD [2013] UKSC 41 at tab 22 where the court had circumscribed the principle of combat immunity. It should be said, for the sake of accuracy, that that case did not abolish combat immunity, it restricted it to action taken in the course of actual or imminent armed conflict. But in any event these two cases are completely different cases to the one with which I am concerned.
44. In Jones v Kaney, it seems the matter which exercised the court was the principle that no wrong should be without a remedy. But certainly as regards the viva, any wrong in respect of its conduct did have a remedy in the form of an appeal to The Appeal Group. Ms Morris argues that there is no principle to the effect that the remedy to right a wrong must be one which is exercisable by the court.
45. Next, I am referred to Persaud v Cambridge University [2001] ELR 480, tab 8 in the bundle. That case too has a depressing familiarity in that it concerns somebody experiencing trouble with their doctorate. Holding 5 and paragraph 41 suggest however, that it does not change the principles that judicial scrutiny of academic judgments is off limits.

On a true analysis, this case is not, as it seems to me, a challenge to academic judgment; it is a challenge to the process by which it was determined that she should not be reinstated to the Register of Graduate Students.

So it merely held that in that case the challenge was not to academic judgment but to process.

46. Mr Oldham argues that the relevance of this case is precisely that the issues complained of were held to be issues of process rather than academic judgment. He suggests that it shows that the boundary between the areas off limits to the court and the areas where the court can exercise scrutiny is moving, in the sense that the academic judgment category, if I may phrase it such, was becoming more restrictively defined.
47. In Persaud a decision that the applicant should not be permitted to continue as a research student, and a failure to reinstate her to that status were held to be open to judicial scrutiny, but it seems to me that holding 4 really explains why that was. All that was contended was that the university had acted unfairly in making its decision. It was not a question of the court assessing her suitability for a PhD, it was simply the fairness of the decision to refuse to reinstate her.
48. I do not see that, I have to say, even arguably, as an extension of the ambit of "process", or a sign of the shrinking of the ambit of academic judgment.
49. Mr Oldham argues that his next case, R v Higher Education Funding ex parte the Institute of Dental Surgery [1994] 1WOR 242, (tab 10), introduces the concept of an "informed" exercise of academic judgment. Paragraphs 17 and 18 of the Particulars of Claim, he says, allege that the exercise of academic judgment, insofar as there was one was not "informed".
50. There is no indication that I can see in this case as to what "informed" actually means, save at page 261 between paragraphs A and D where the expression seems to have its genesis. But the case still makes clear at 261D that:

purely academic judgments will, as a rule not be in the class of case exemplified",

in other words, purely academic judgments are not open to scrutiny. In any event, it has to be said that this case can hardly be seen in the context of moving the boundaries initially set by Clark, when it predates Clark by six years.

51. Mr Oldham then takes me to Higham v University of Plymouth [2005] ELR 547, (tab 11). That case concerned the judicial review of the decision to deregister the applicant as a student at the university, and Mr Oldham prays in aid paragraph 29 which he refers to in paragraph 44 of his skeleton. In essence, he says there is no rule that academic judgments are off limits, only that the court should treat such judgments with the respect and deference due in the circumstances. I quote paragraph 44 of his skeleton argument:

It is impossible for a court on a summary judgment application to decide whether this is a case where respect and deference mean that the court cannot consider and find for claimant on the outcome of his viva

52. The fact is though, that the court in Higham, having introduced this concept of "according respect and deference" then quoted with obvious approval the remarks of Sedley LJ in Clark. Not only that, the court in Higham actually added to Sedley LJ's list of areas which are off limits to the court rather than detracting from them.
53. Finally, for completeness, I mention R v Chelsea ex parte Nash [2000] ELR 686, (tab 6). I do so because it was referred to by Mr Oldham but I have to say I do not see how it takes matters any further. The court was clearly scrutinising a process in that case, not academic judgments.
54. Having considered all these cases I have come to the conclusion that the state of the law as it stands, and importantly, by which I am bound, compels me to the view that the matters of complaint by the claimant which relate to matters where the defendants have exercised academic judgment (as opposed to matters of "process") have no real prospect of success, and that in these circumstances are susceptible to strike out unless the claimant is able to get home on his next contention which is that he has an arguable Article 6 point.
55. The Article 6 argument is made in paragraph 46 of the Mr Oldham's skeleton argument. It has to be said that the skeleton seems to confine the Article 6 point to issues surrounding the viva but I shall proceed on the basis that the point is equally applicable to academic judgments that pre-date that, for example those in paragraph 14 which Ms Morris still asserts are susceptible to strike out.

57. Wilson v First County Trust [2003] UKHL 2 40, tab 13 is his first in this category. This case concerned the Consumer Credit Act legislation to the effect that an agreement which fails to comply with the Act or Regulations cannot be enforced by the court. The issue was whether an absolute bar on enforcement amounted arguably to infringement of the right to a fair trial under Article 6. The issue which exercised the court is best expressed at paragraph 35

The crucial question in the present context is whether, as a matter of substance, the relevant provision of national law has the effect of preventing an issue which ought to be decided by a court from being so decided."

The analogy with this case is that if scrutiny of academic judgment is, as a matter of law, off limits to the court, then that too is arguably an infringement of the right to a fair trial.

56. In fact, in Wilson the court held that the creditor's Article 6 rights were not infringed. At paragraph 36 it was said

In the present case the essence of the complaint is at section 127(3) of the Consumer Credit Act which has the effect that a regulated agreement is not enforceable unless a document containing all the prescribed terms is signed by the debtor. In my view, thus framed, the complaint does not bring Article 6(1) into play. In terms of labels, that is a restriction on the scope of the rights that a creditor acquires under a regulated agreement. It does not bar access to court to decide whether the case is caught by the restriction. It does bar a court from exercising any discretion over whether to make an enforcement order. But in taking that power away from a court the legislator was not encroaching on territory which ought properly to be the province of the courts in a democratic society.

57. By the same token, the rule against scrutiny of academic judgments does not bar access to the courts. The claimant has access to the court to decide whether the claim is caught by the rule or not.
58. What about Barrett v Enfield, [2001] AC 550, (tab 15)? This case concerned allegations of breach of duty by a local authority to a child in their care. In that case Lord Browne-Wilkinson took the view at page 560(b), that essentially there was no point in striking out the claimant's case, because on the authority of Osman v United Kingdom (The Times, 5 November 1998), the European Court of Human Rights would overturn it. However, in Z v United Kingdom [2002] 2002 34 EHRR 3, the ECHR did not see its approach in Osman as remaining appropriate in view of developments since that decision.

61. I refer to paragraph 100 on page 138, and also paragraph 102, where the ECHR found that a rule preventing a child from suing a Local Authority for negligent decisions made in his upbringing was not contrary to Article 6. I quote from the court's judgment at page 100, H20:

There is no reason to consider the striking out procedure which rules on the existence of sustainable causes of action as per se offending the principle of access to court."

59. It is difficult to see how it is arguable therefore, that a rule that academic judgments are not justiciable would be treated any differently.
60. In this canter through European Law, we next come to Olinikov v Russia, (tab 14). This is a 2013 case in the ECHR. Mr Oldham refers me to paragraphs 58 and 60, as authority for the proposition that a legal system where one cannot sue is arguably not Article 6 compliant. But this case is to do with state immunity, and I do not accept that really, it has any bearing on the matters which concern me. I note, for example that Z v United Kingdom does not even get a mention in Olinikov, that is clear from a perusal of the cases referred to, which can be found at H10.
61. I am satisfied having considered all these cases on Article 6 to which Mr Oldham has referred me that the Article 6 point is not one which is realistically arguable in a context Part 3 or Part 24 context as a means of compelling judicial scrutiny of academic judgments.
62. So, can I now turn briefly to causation? The point made by Ms Morris is contained in paragraph 16 of her skeleton argument. She argues that this causation point renders any issue, whether it be an issue relating to academic judgment or process, unsustainable, and therefore amenable to strike out. I think I can do no better than actually read her submission at paragraph 16:

"However, even if the Court were persuaded that any of the terms of breach, for example in paragraph 14 of the Particulars of Claim, were capable of judicial dissemination, it is submitted that the Court would nevertheless not be capable of adjudicating upon the issue of whether any such breach caused a material deficiency in the PhD thesis submitted on behalf of the Claimant (see paragraphs 16 and 38 of the Particulars of Claim where it is alleged that 'but for the breaches, the Claimant would have obtained his PhD'). The question of whether and how the PhD was deficient, and the cause of such deficiency i.e. whether deriving from a default or deficiency in the Claimant, or from negligent teaching, also clearly falls within the ambit of academic judgment, and outwith that which it is apt for a court to determine."

63. But I have to say that I am persuaded by Mr Oldham's arguments about this. If there is a contractual or common law duty, or indeed both, it is, in my view at least arguable, and in my view probably a great deal more than that, that you cannot say it is not sustainable essentially because it is hard to say what damages if any flow from it. The court would have to take a view, as best it could. At any rate, in my view, it is at least arguable that that is the view that a court would adopt on trial.
64. That brings me to duty of care. The defendants say that it is not arguable that there is a tortious duty of care as set out in paragraph 3 and 10 of Particulars of Claim. This is particularly relevant because it is, at least to some extent, the means by which Professor Sleeman is regarded as personally liable to the claimant.
65. The argument runs that there is no duty, not least because it is not foreseeable that injury would result from the matters complained of. Ms Morris accepts that there may be some circumstances where there is a duty to exercise reasonable care in the provision of education, particularly with regard to issues of safety, and in the light of that, I think I need not consider in any detail the cases of Woodbridge, Hippolyte, or Tuttle at tabs 16, 17 and 18, which respectively deal with duty of care in the context of safety.
66. But, Ms Morris argues, the duty does not apply in this case because loss or injury is not foreseeable. The starting point on the question of duty of care is Phelps v Hillingdon [2004] LBC All ER 54, (tab 4) and in particular 67, the relevant parts of which are reproduced at paragraph 21 of Ms Morris' skeleton argument and which is there for all to see and therefore need not be read out. I focus in particular on the reference in that extract to specific identifiable mistakes. It is in the context of a sentence running thus:

This is not to open the door to claims based on poor quality of teaching. It is one thing for the law to provide a remedy in damages where there is manifest incompetence or negligence comprising specific identifiable mistakes. It would be an altogether different matter to countenance claims of a more general nature.

67. I do not see why it is not arguable that the defendant owed the claimant a duty at common law, to exercise a reasonable skill and care in the process by which they prepared him and his thesis for evaluation, and the evaluation or the viva process itself. I disagree that the claimant does not allege negligence of the requisite Bolam kind. The claimant does so in paragraph 4.1 of the Particulars of Claim. I also accept that injury is, arguably at least, a foreseeable consequence of falling short of this duty.
68. If a university fails to take proper care of a student's career by falling short in the delivery of the processes involved in obtaining the qualification for which the student is studying, why is it not arguable that it is foreseeable that the claimant will suffer some loss or injury as a result? The nature of the injury need not, as a matter of law be foreseeable but the possibility of injury of some description is surely foreseeable, or at least arguably so.
69. Therefore I do not propose to strike out the claim for breach of duty. Neither counsel suggested that a breach of duty claim was inconsistent with the contractual claim, neither demurred from the proposition that liability can arise in contract and in tort simultaneously.
70. So, finally, I turn to the fourth leg of the claim, namely that the claim against Professor Sleeman ought to be struck out. The application is on the basis that his involvement is otiose, by virtue of the fact that the university acknowledges that it is vicariously responsible for his conduct and it has no intention of suggesting that he was on a frolic of his own, and the defence makes that clear.
71. The arguments put by the first defendant for the proceedings against him to be struck out are essentially that there is no need for him to be a party. It is argued that keeping him in is going to add to the cost, the complexity and possibly the length of the trial, and that these are all matters that the court has to take into account in the active exercise of its case management responsibilities. Furthermore, that keeping the first defendant in offends the overriding objective which includes the imperative to deal with cases justly, which includes a consideration of the effect that an unnecessary lengthening of the case will have upon the court's obligations to hear other cases. Ms Morris also argues that there are issues of proportionality, bearing in mind that the factual issues and the legal basis of the claims are identical in both cases.
72. Mr Oldham, on the other hand, argues the matter thus: that I have found that there is an arguable case against Professor Sleeman for the purposes of this application at least in connection with "process". That if there is an arguable cause of action, the court really does not have the power to prevent that cause of action being prosecuted, if that is what the claimant wants to do. It cannot be held to be abuse of process to prosecute a case in so far as the court has found it has an arguable prospect of success.
73. He also argues that there are in fact good reasons why it would be appropriate to keep the Professor in, there may be defences open to the university which are not open to him. It is conceivable that under the circumstances they may get a judgment against him but not against the university. But he says he need not go that far. All he needs to establish is that he has a good arguable case against the first defendant.
74. I have to say that it seems to me that it would be difficult to conclude that a litigant is abusing the court process in pursuing proceedings in which he has a good arguable case. Under those circumstances, I conclude it would be inappropriate to strike out the claim against the first defendant. But I do add this caveat: if the claim is pursued against Professor Sleeman, when in fact there is no real need to do so, because the claimant is actually no better off, then it seems to me that even if the claimant were to succeed at trial, there may be a good reason to depart from the general rule that the loser pays the winner's costs. Indeed it is not inconceivable that the court may make an order that the claimant pay Professor Sleeman's costs, even if Professor Sleeman loses. It is a matter, I think that the claimants need to be aware of, and although I accept of course, it will be a matter for the trial judge, my views will no doubt be recorded by the first defendant in the expectation that they will be raised at the end of such a trial, if circumstances justify it.
75. There is another point. There can be little doubt that this action against Professor Sleeman personally will be causing him distress and anxiety, and the claimant needs to think carefully about whether under the circumstances there is much to be gained in pursuing it. But I do not think, bearing in mind that I have found that there is a good arguable case that it is appropriate to find that doing so is an abuse in the term envisaged by the Rules.