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

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION

		Royal Courts of Justice Strand, London, WC2A 2LL
		5 December 2016

MR JUSTICE KERR:

1. The defendant university applies to strike out or for summary judgment on this claim by one of its former students. The claimant is a former history student at Brasenose College, Oxford. The defendants are, or the defendant is, collectively, the Chancellor, Masters and Scholars of the University of Oxford. I shall refer to the defendant as the University.
2. The claimant sat his final examinations in June 2000 and obtained an Upper Second Class Bachelor of Arts Honours degree in history. His claim against the University is for damages for negligent teaching leading, he alleges, to him failing to get a higher 2:1 or a first class degree which, he says, he would otherwise have achieved.
3. The claimant also sued Brasenose College. I shall refer to it as the College or Brasenose. Its full title is, I understand, the King's Hall and College of Brasenose in Oxford. The claim against the College has been discontinued on agreed terms.
4. The claimant alleges specific poor teaching of one part of the course, in large part due, he says, to unavailability of sufficient teaching staff at the time, due to sabbatical leave. He also alleges that the University inadequately handled certain medical information about the claimant in the possession of a Dr Ingram, of Brasenose, with the consequence that it was not passed on to the right people and acted upon.
5. The University has applied to strike out the claim and/or for summary judgment on the ground that it is hopelessly bad on the merits and also plainly time barred. The matter was argued before me on 25 November 2016. The claimant says the claim is fit for trial and not doomed to fail; that the points raised in this application, both on the merits and on limitation, should properly be for the trial judge; and that the case is not appropriate to be dealt with by a summary process.

An outline of the facts

6. I confine my account mainly to undisputed or indisputable facts from the documents. The claimant joined the College in October 1997 as an undergraduate student. He showed signs of distress in February 1999, which were noted by his tutor, Dr Martin Ingram of the College. According to Dr Ingram, this did not lead to any suggestion that he should seek any special treatment on medical grounds when it came to examinations, which were then some time away.
7. In Michaelmas term 1999, the claimant and others took the Indian Special Subject (ISS) as part of their history course. The ISS covers the influence of Ghandi and the civil disobedience campaigns in India and British imperial responses to these challenges during the early 20^th century. Its full title was: India, 1916-1934: Indigenous Politics and Imperial Control. The course was taught in a weekly documents class and supporting tutorials, supplemented by an eight week lecture course.
8. Another student, also taking the ISS, was a Ms Sasha Blackmore, then an undergraduate at Balliol College, Oxford. Her college tutor was Dr Martin Conway. According to Dr Conway's witness statement, during the 1999 Michaelmas or autumn term, Ms Blackmore raised with Dr Conway her frustrations about the course and in particular that she felt she had not received the quality of teaching she had expected. She felt classes and tutorials had not covered all the set texts and had not been sufficiently demanding. Dr Conway was an expert in the subject. He agreed to read and critique, but not mark, some of her analyses of "gobbets", i.e. primary source texts, when it came to revision for finals the following summer.
9. In May and June 2000, the claimant sat his final examinations, including two papers on the ISS course, of which one required him to write about gobbets. A medical certificate called "Form 1" dated 27 June 2000 appears to show that he sat examination papers on 30 May and 8 June 2000, both in the afternoon. The Form 1 stated that his medical condition will have affected his performance in "all" examinations, "but particularly" the two taken on 30 May and 8 June respectively.
10. It is common ground that the claimant was suffering from hay fever at the time, that the examiners were aware of this and that it was taken into account. A second form, "Form 2", appearing to emanate from a doctor, described his hay fever symptoms as severe: "runny blocked nose, can't breathe, nose bleeds, sinus congestion, headache, itchy sore red eyes running all the time, scratchy throat, itchy skin, poor sleep, poor concentration, irritability." The doctor went on to say he had tried "many treatments & consulted several times but is still suffering".
11. The claimant sat all the examinations including the two ISS papers. He was awarded an Upper Second Class BA Honours degree or, in more colloquial language, he a got a 2:1. His marks in individual examination papers ranged quite widely. In the two ISS papers, his marks were towards the bottom of that range, and in one he scored his lowest mark of all.
12. Ms Blackmore, who was awarded a First Class degree, wrote a letter dated 4 July 2000 complaining of the teaching on the ISS course. She copied it to two Balliol tutors, one being Dr Conway. She addressed it to the Co-ordinator of Undergraduate Studies, Dr John Robertson. It is not suggested that the claimant was aware of this letter at the time, although he was acquainted with Ms Blackmore and others taking the ISS option.
13. I will not set out the letter in detail. It complained about the quality of the classes and the tutorials. There is an issue between the parties as to whether what she was complaining about, or parts of it, were non-justiciable matters of academic judgment. At any trial, that would be an issue for the trial judge. Part of the complaint related to the low incidence of coverage of the gobbets. She expressed gratitude to her college tutor, saying she had found him more help than the classes.
14. As to the tutorials, she complained that only one tutor, Dr Washbrook, had to teach all 16 of the students. She complained of what she perceived as his disengagement and indifference. She had, she said, even "facilitated an informal India Special Subject discussion group" among the students, as a sort of auto-didactic measure to make up for what she perceived as the shortfall in the quality of the teaching.
15. On 19 July 2000, the claimant's college tutor, Dr Ingram wrote to inform him of his degree result and congratulated him, though noting that "surprisingly you underachieved significantly on the Special Subject". He confirmed that the medical evidence was considered but he did not think it had affected the overall classification. He described the result as "very respectable", and offered to help with writing references in future.
16. The University took Ms Blackmore's complaint seriously. Dr Robertson wrote a preliminary response letter dated 25 July 2000, saying he had forwarded the complaint onward for comment from others. He said that the University had known that due to sabbatical leave only one tutor, Dr Washbrook, had been available to give the tutorials. They had decided, however, to "cap" the course at 16 students rather than reduce it to eight, with Dr Washbrook's "blessing". This meant that Dr Washbrook was "teaching well over his tutorial stint". Retaining the cap at 16 students "may have resulted …. in undergraduates receiving less tutorial attention that is possible in most Special Subjects".
17. Dr Washbrook, of the Centre for Indian Studies at St Anthony's College, Oxford, responded, not to Ms Blackmore but to the Chair of the Modern History Faculty, Dr Felicity Heal. He wrote at length. In part, he commented on the nature of the ISS course and teaching methods. He described as a "considerable understatement" the proposition that he had been teaching "over my stint". Referring to 17 students rather than 16, he said he had had to do everything and his workload was "intolerable" [bold italics in the original].
18. The rest of the letter comprised expressions of regret at Ms Blackmore's dissatisfaction mixed with an attempt to rebut her criticisms and to defend the standard of his teaching. He ended with a denial that he willingly put himself forward for such a heavy teaching load and said he had "agreed to teach the whole group under pressure from Teaching Committee to keep the Special Subject going in spite of the grossly inadequate teaching provision made by the Faculty". He ended by saying this:

If the Faculty is unable to provide adequate means to teach its own syllabus, then as far as I am concerned, the syllabus cannot be taught – and the Teaching Quality Assessors can make of that what they may.

19. Next to respond to Ms Blackmore's complaint was Professor Judith Brown of Balliol College. She is a renowned expert on the history of India under British rule. She wrote on 27 September 2000 to Dr Heal, saying she had seen Dr Washbrook's response and thought it "accurate and very fair". She questioned the wisdom of the decision to set the cap at 16 students rather than fewer, and placed responsibility on the Faculty for tutorial provision "though legally it may not be".
20. Professor Brown went on to write that she had been asked by Ms Blackmore to mark a gobbets paper at the start of Trinity term but had declined, as she had much other work to do and did not think it appropriate for students to be seeking "special individual assistance". The rest of her letter attempted to rebut some of Ms Blackmore's points; and she concluded with the observation that the choice may be either to limit student numbers further or restrict the course to students with prior background knowledge of the ISS.
21. If Dr Heal or Dr Robertson ever responded further to Ms Blackmore, the content of that response is not before the court. Her complaint did, though, come before the board of the Teaching Committee of the Faculty on 17 October 2000. The complaint was noted; the committee noted that some of the issues raised related to "college and tutorial teaching", while the issues relating to "the role of gobbets within the syllabus" would be considered "during the review of the Special Subjects scheduled for 2001/2".
22. On 15 December 2000, the claimant wrote to Dr Ingram. He was disappointed with his 2:1. He also explained that he was looking for jobs in the world of law and accountancy where employers often demand a breakdown of results. He sought a "clerical recheck" in time for a deadline he understood was shortly to expire. He said he would "probably not take this matter any further after the clerical recheck".
23. He cited two papers he particularly wanted looked at again, one of which was one of the two ISS papers – the essay paper, not the gobbets paper. He also wanted to be sure the marked papers were truly his scripts and that there was not a case of mistaken identity. He clarified that he only wanted the checks done if it did not put him at risk of his overall result being lowered.
24. Four days later, Dr Ingram wrote to the Junior Proctor, Professor Richard Sharpe, asking for the re-check to be done, provided it would not result in any downgrading of any of the claimant's marks. The Junior Proctor responded by letter of 12 January 2001 saying that investigations confirmed the identity of the candidate as the claimant and the correctness of the marks awarded. Next, the claimant queried how "the medical evidence" had been taken into account. He did not specify what medical evidence he was referring to. Dr Ingram wrote again to the Junior Proctor on 16 February 2001, passing on the query.
25. Professor Sharpe replied on 20 February 2001, explaining that the medical evidence had led to the claimant's gobbets paper in the ISS being lifted to "CB", resulting in him being awarded a 2:1 overall instead of a 2:2 overall. In other words, the Professor was saying that but for the medical evidence the claimant would have got a 2:2 instead of his 2:1.
26. There matters rested until October 2001, when on 24 October the claimant emailed Dr Ingram again. It was a long and discursive email. He was very concerned to secure a favourable reference from Dr Ingram. He was clearly having a difficult time due to some pending legal proceedings against him in some unconnected matter. He had been unable to obtain a place at one of the top law schools in the United States of America. The claimant described himself as serious minded and able to hold his own at a top US law school, "[i]llness and personal circumstances aside".
27. He added that the ISS gobbets paper "was appallingly badly taught (only covering 5% of the gobbets!!) and this may also have affected the outcome of this exam". He commented that it was "out of the goodness of my heart that I chose not to make a complaint afterwards, although several other students did". On the evidence before me, only Ms Blackmore had complained in writing. He concluded the long email by asking Dr Ingram to write a reference and saying he had "underachieved at Oxford for various factors unrelated to my ability, but I am very hungry for another bite at the cherry".
28. Dr Washbook provided a report on the ISS 1 January 2002. Although its purpose is not explained, it may have been produced as part of the process of reviewing the special subjects generally. In his report he said that such was the popularity of the course that it had been necessary to limit the numbers to 16-24 students "to accommodate teaching constraints". He commented that students' reactions to the course had generally been positive and their performance good, with the exception of the academic year 1999-2000 when there had been "chronic teaching problems" because "four of the seven members of staff involved in teaching African and Asian history were on leave at the same time without replacement".
29. A note prepared by the board of the Faculty of Modern History and dated 4 March 2002, merely stated that in some subjects, including the ISS (identified by the number 19), there had been "concern over staffing resources, because a course depended on a small number of teachers or because it was very popular with students". After that, there is no further reference in primary source contemporary documents to the teaching of the ISS in the academic year 1999-2000.
30. Just over six years later in May 2009, the claimant was applying to take a "tax LLM" course at King's College, London, with the objective of becoming a barrister specialising in tax law. Once again, he was in email correspondence with Dr Ingram asking for a reference. In an email of 13 May 2009, he asked Dr Ingram to include in it a statement to the effect that his degree classification had not represented "a fair outcome of my abilities", as the claimant had, he said, had "family related problems and ill health at the time of my finals" which had caused him to underachieve; and he repeated the complaint that "my gobbet paper ... was taught appallingly badly (less than 10% of the gobbets were covered in tutorials …)".
31. I then have evidence, though the University has not confirmed it is agreed, that a further four and a half years later, the claimant was dining with his old University friend James Darbyshire, a solicitor who had read geography at St Catherine's College, Oxford, from 1998 to 2001. Mr Darbyshire says that over drinks before dinner the claimant mentioned his sense of grievance about his underachievement in finals, and in particular mentioned his low grades in the ISS papers. Mr Darbyshire mentioned that he had heard that another student had had his or her grades reviewed because of, in Mr Darbyshire's words, "issues with the teaching or whether the necessary syllabus had been covered".
32. Mr Darbyshire says he did not know before this conversation that the claimant had taken the ISS course. He says the claimant became concerned and upset and indicated his resolve to make further enquiries. He evidently did so with zeal, since by the end of the same month he was in email contact with Ms Blackmore, who had become a practising barrister. The claimant explained that he felt the victim of an injustice he wished corrected. They also spoke by telephone. Ms Blackmore confirmed that she had complained in writing to the Faculty, copied her complaint to Balliol College, and that Balliol would have the correspondence.
33. She was unwilling herself to provide a written statement or become further involved, but the information she provided was enough to enable the claimant to track down Dr Conway in September or October 2013. Dr Conway was still at Balliol. The claimant emailed him on 18 October, asking for a written statement which he could provide to Brasenose, where he was seeking to have his case formally referred to a committee. The claimant was in touch with a Dr Smith, the Senior Tutor at Brasenose, but it is clear from the email correspondence that the latter had not agreed to reopen the claimant's case.
34. Dr Conway provided a written statement dated 23 October 2013. He sent it to Dr Smith at Brasenose, with a copy to the claimant. In his written statement, he summarised the correspondence from Ms Blackmore and the responses to her complaint, and confirmed that they were still in Balliol's possession, in Ms Blackmore's "dossier". He did not provide copies of that correspondence to the claimant, but the claimant learned from the statement for the first time the gist of what it contained.
35. After that, the matter became litigious, although Brasenose academic staff also expressed some support for a review of the claimant's degree marks. I have not been provided with a chronology of events or a chronological bundle, and have had to piece together the above account from documents spread far and wide through the bundles. Nor do I have a complete chronology of the litigious phase in this matter, but it is agreed that the claimant thereafter obtained disclosure, including of Ms Blackmore's letter of complaint and the University's documents responding to it, which I have summarised above.
36. I do not know when that disclosure was obtained. It appears from the documents that Professor Mapstone, the Pro Vice Chancellor of the University, rejected the claimant's application to reopen the issue of his final grades, saying she would not reopen the matter after such a long time. It is clear that the claimant had not yet received the disclosure when his solicitors wrote a long and detailed letter before claim dated 19 June 2014. In that letter, the solicitors referred to Dr Conway's summary of those documents and asked for disclosure of the documents themselves.
37. The claim was issued on 26 August 2014. The pleading supporting it was signed by leading and junior counsel and supported by a statement of truth signed by the claimant on 15 December 2014. It did not quote directly from the documents of which disclosure had been sought, but referred to Dr Conway's summary. The matter then proceeded towards trial, and dates were fixed for a trial of the preliminary issues of limitation and liability. The present application was brought unusually late, on 8 July 2016, after disclosure and exchange of witness statements. As a result, the trial date was lost and, if the present application does not succeed, fresh trial dates will shortly be fixed.

Summary judgment and striking out: applicable principles

38. The application to strike out the claim is brought under CPR 3.4(2)(a) on the basis that "it discloses no reasonable grounds for bringing the claim". The application for summary judgment is brought under CPR 24.2 on the basis that "on the evidence the claimant has no real prospect of succeeding on the claim and there is no other compelling reason the case should be disposed of at trial".
39. There was no disagreement between the parties about the correct approach to such an application. They agree that the court should not conduct a mini-trial. That does not mean that factual assertions susceptible of summary disposal may not be determined summarily, where it is clear there is no real substance to the factual case advanced, particularly if it is contradicted by contemporary documents (ED&F Man Liquid Products Ltd v. Patel [2003] CP Rep 51, per Potter LJ at paragraph 10).
40. As regards the merits, therefore, I have to ask myself whether the claim has a real prospect of success which is more than merely arguable, in respect of each of the two "limbs" of the claim. The first limb can broadly be described as inadequate or insufficient teaching; the second can broadly be described as the mishandling of medical information about the claimant. As to limitation, the question becomes whether there is a real prospect, which is more than merely arguable, that at trial the claimant will succeed in establishing that the claim is not barred by the provisions of the Limitation Act 1980.

The issues, reasoning and conclusions

Private law claims for breach of duty in the field of educational provision

41. Claims for negligent educational provision can take various forms. They are notoriously difficult to win, but that has been held not to be a good reason for excluding the existence of duty of care. In private law claims founded on tort or contract (as distinct from public law claims, normally brought by judicial review), the relevant principles are now reasonably well settled. I do not begin to attempt a full exposition here. It is sufficient to identify three broad categories of claim, which do not necessarily occupy the entire field.
42. The first category is a claim which asserts a breach of a duty owed in tort or contract arising in the exercise by the defendant's professional teaching staff of academic judgment. An example would be a decision to award a particular grade to a student sitting an examination. Such a claim is not justiciable as a matter of law, and is therefore liable to be struck out (see e.g. Clark v. University of Lincolnshire and Humberside [2000] 1 WLR 1988, CA, per Sedley LJ at paragraphs 12-13).
43. The second category is that of claims which allege the use of negligent teaching methods, in the devising of courses or the means of acquainting students with the educational content of the courses that are being taught. Such claims can be actionable in principle; see the appeals heard together in Phelps v. Hillingdon London Borough Council [2001] 2 AC 619, per Lord Slynn at 653F-654B. However, because the claimant's attack is on the competence of the defendant's performance in the exercise of skill and care in a profession, the merits of the claim must be assessed by reference to the Bolam test.
44. As is well known, that test is derived from Bolam v. Friern Barnet Hospital Management Committee [1957] 1 WLR 582). In such a case, the question is "whether the defendants, in acting in the way they did, were acting in accordance with a practice of competent respected professional opinion"; that is to say, "in accordance with a practice accepted as proper by a responsible body of … men skilled in that particular art."; see, in the medical context, McNair J's address to the jury in Bolam at 587.
45. A claimant advancing such a claim will therefore require expert evidence that the Bolam standard was not met; cf. Phelps v. Hillingdon LBC (cited above), per Lord Clyde at 672E-H. A recent example is the decision of Burnett J (as he then was) in Abramova v. Oxford Institute of Legal Practice [2011] EWHC 613 (QB), [2011] ELR 385, where the unsuccessful complaints included, in particular, an attack on the practice of having students mark their own mock examination papers; see Burnett J's judgment at paragraphs 58-63 and 68, on the requirement for expert evidence in such a case.
46. The third category of claim could be described as one founded on simple operational negligence in the making of educational provision. Again, hypothetical examples would include administrative error leading to a student sitting the wrong examination paper, containing questions about which the student had received no tuition; or where classes are cancelled due to non-availability of teaching staff; or a case where a teacher was habitually drunk or asleep during classes.
47. In such a case if it is proved on the facts, a court does not need expert evidence to accept the proposition that the required standard of professional skill and care has not been met. Mr Milford, for the University, rightly accepted that in the latter example, expert evidence would not be necessary to establish a breach of the duty of skill and care.
48. In Winstanley v. University of Leeds [2013] EWHC 4792 (QB), the claimant's PhD thesis had initially failed, but on an internal appeal that decision was reversed, the appellate body accepting the contention that the supervision or other arrangements during his period of study had been unsatisfactory. An application by the defendants to strike out the claimant's subsequent damages claim, or for summary judgement on the claim, failed for various reasons, including the rejection by HHJ Saffman (sitting as a deputy High Court judge) of the proposition that the Phelps duty of care was not arguably owed because the pleaded injury was not foreseeable.
49. At paragraph 71 of his judgment, the learned judge observed:

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.

50. The propositions of law just mentioned were not the subject of any disagreement between the parties at the hearing. Mr Milford's case was that the claim had no real prospect of success on its factual merits, in relation to either of its two limbs. He did not dispute either the existence of a relevant duty of care, outside the domain of the non-justiciable exercise of academic judgment. Nor did he contend that the claimant's case on causation of loss was unarguable. His contention was that the claim was manifestly bad on the facts and, even if that were wrong, manifestly time barred.

The first issue: whether the claim founded on allegedly negligent delivery of the ISS course has a real prospect of success on its merits

51. Mr Milford, for the University, made the following main submissions on this issue:

(1) that the claimant does not adequately plead in what way the teaching of the ISS course was deficient; he merely pleads the assertions of Ms Blackmore in her complaint letter, and the reaction to it;

(2) that Ms Blackmore is not a witness in the case and therefore cannot contradict Dr Washbrook's denials of her criticisms of his teaching and of the delivery of the ISS course;

(3) that Ms Blackmore is not an apt comparator or proxy for the claimant since she achieved more highly in the ISS papers and generally, and was in a different documents class to the claimant;

(4) that Dr Washbrook's references to teaching problems refer to the sufficiency of teaching resources and not the quality of teaching of the course;

(5) that the University's irrefutable statistical analysis of marks received by students on the ISS course does not support the proposition that students generally scored lower than would be expected in the two ISS papers;

(6) that the claimant's case cannot succeed (applying the Bolam test) without expert evidence about acceptable educational standards, and the claimant is not intending to call any such expert evidence.

52. Mr Mallalieu, for the claimant, made the following main submissions in answer to those of the University:

(1) the claimant does not rely only on Ms Blackmore's complaint; he relies on the body of documentary evidence which was created because of, and in response to, her letter of complaint.

(2) That body of evidence shows that the teaching of the ISS course in the 1999-2000 academic year was plainly deficient; that the University recognised as much in its own documents, but did nothing about it.

(3) The evidence established an arguable case that there was, in the words of Mr Mallalieu's skeleton argument:

a significant and systemic problem with the teaching of this particular subject in this particular year and that, moreover, the problem was predicted and anticipated in advance, a remedy was identified, but not pursued, the deficient teaching was persisted with and then acknowledged by its provider and the [University] itself then further acknowledged the likely effect that this had had on students' performance, but chose not to take any remedial action.

(4) The claim is not one which requires evidence from an expert addressing the Bolam test. The issue is not one of academic judgment nor of particular teaching style, but involves, again in Mr Mallalieu's words:

a deliberate decision to proceed with provision of a service in the fact of a prior acknowledgement that the service could not properly be provided with the resources available, and the subsequent recognition that that prediction had proved entirely accurate.

53. I turn to my reasoning and conclusion on this first issue. I prefer the submissions of the claimant. The pleaded case plainly includes the propositions that the University did not provide adequate teaching; that it was aware it lacked sufficient teaching staff to teach the course properly; and that it did not do enough, or indeed anything, to make good the deficiency: see the particulars of negligence in the particulars of claim at paragraphs 42(i)-(iv).
54. I do not think it is fatal to the claimant's case that Ms Blackmore is not going to be giving evidence. Her letter of complaint is admissible as evidence of the dissatisfaction of the author, whether or not (a point on which I express no view) it is admissible as evidence of the correctness of what she alleged. The University's documentary response to the complaint is plainly admissible as evidence of negligence. The letter of complaint can be put to the University's witnesses, and their responses given orally and in written witness statements are also admissible.
55. I do not think there is much force in the point that Ms Blackmore was in a different documents class to the claimant and was, to judge by her First Class degree, a better student than he. She may well have been; but these are forensic points for trial, not a knock-out blow in a summary process such as this.
56. The same applies to the statistical analysis undertaken by the University. Mr Milford took me to the University's interpretation of the statistics, but they are not common ground and are very much a matter of interpretation. I do not accept that they are necessarily irrefutable or that I should accept them, without cross-examination, as fatal to the merits of the claim.
57. In my judgment, the University's documentary response to Ms Blackmore's complaint does tend to show, or could well at a trial be found to show, that there was a debate within the University, not about the adequacy of the teaching resources available for the ISS course – everyone agreed that they were to say the least stretched – but about which person or body should bear responsibility for the insufficiency of teaching.
58. Dr Washbrook was said by Dr Robertson, to have bestowed his "blessing" on the proposal to adopt a cap of 16 students rather than fewer. Dr Washbrook reacted to that by denying that he had willingly volunteered himself for the task of teaching all the tutorials. He had done so "under pressure from Teaching Committee", in spite of "grossly inadequate teaching provision". It made his workload "intolerable" and he arguably recognised that standards had to a limited extent suffered as a result.
59. The debate was quite nuanced, touching on the division of responsibility, legal and practical, between colleges and the Faculty, but it did not include any sustained assertion that the amount of teaching capacity devoted to the ISS course that year had been sufficient; nor that Ms Blackmore's complaint was trivial and unfounded.
60. In the light of that evidence, the merits of this part of the claim have a real prospect of success and are properly for the trial judge to determine, and not for me.
61. I recognise that there are parts of Ms Blackmore's complaint letter which touch upon matters of teaching style, such as for example whether the full amount of required reading should be given out to students at the start of the course. In so far as those were matters pursued in this claim, there might need to be expert evidence addressing the Bolam test in relation to those matters. But that is not the gravamen of the claim; it focusses on the insufficiency of teaching capacity and the alleged failure to remedy that. As such, the claim looks to me more like one of alleged mis-delivery or under-delivery of course teaching, rather than an attack on a conscious choice of teaching style.
62. Is the claim fatally flawed by the absence of expert evidence to support it? I think it should be for the trial judge to say how much, if any, of the claim is unsustainable because it seeks to raise challenges to the exercise of academic judgment or challenges to decisions about educational methods unsupported by expert evidence that these are negligent, applying the Bolam test.
63. There may be much to be said for the view that, even in a claim where what is criticised is a style of teaching, a claimant may not need expert evidence if the defendants' witnesses of fact, who are also experts, chastise themselves, or each other, or the defendant, on some of the very issues raised in the claim. That is a matter not for me but for the trial judge; but it helps to persuade me that absence of expert evidence is far from a complete answer to this part of the claim.

The second issue: whether the claim founded on alleged mishandling of medical information about the claimant has a real prospect of success on its merits

64. The University, through Mr Milford, made the following main submissions on this second issue:

(1) the claimant had wrongly pleaded that Dr Ingram and the University had failed to take any or any adequate step to address the claimant's medical condition; that was unsustainable because the evidence showed it was taken into account and the claimant's marks and class adjusted accordingly;

(2) as regards the claimant's contention that his anxiety, insomnia and depression were inadequately addressed at the time, the evidence shows that the claimant knew Dr Ingram did not tell the Proctors about that condition and the claimant did not ask him to do so;

(3) there was no basis for Dr Ingram to do so in the absence of a request from the claimant that he should; and the claimant had himself recognised, in an email he sent to Dr Ingram in 2014, that such was the effect of the relevant regulations at the time.

(4) Dr Ingram's role in the matter was performed in his capacity as the claimant's college tutor, not on behalf of the University which, therefore, could not be vicariously liable for any negligent omission by Dr Ingram to bring more medical information than he did to the Proctors' attention.

(5) The evidence is "overwhelming" (in Mr Milford's word) that if Dr Ingram had told the Proctors about the claimant's depression, that could not under the relevant rules have led to any adjustment in the claimant's marks.

65. Mr Mallalieu for the claimant countered those arguments by making the following main points:

(1) The claimant accepts that his hay fever was properly notified and taken into account; his case is that Dr Ingram ought to have drawn to the examiners' attention his other medical conditions and that, had that been done, his marks would have been further adjusted.

(2) Again, the claimant's challenge is not to the exercise of academic judgment. The point is that, aside from the claimant's hay fever, the examiners were denied the medical information which would have enabled them to exercise academic judgment.

(3) Whether the relevant rules in force at the time precluded an adjustment to the claimant's marks is a matter for argument at trial; the duties owed by college tutors are defined in contracts between tutors and the University as well as between tutors and their colleges.

(4) What is clear is that a college tutor owes (and owed then) a duty to his or her college student to ensure that all proper information relevant to that student is conveyed to the responsible bodies within the University, to enable the latter to perform properly the duties it owes to the student.

66. Having considered these rival contentions and the evidence before me, I am of the view that this aspect of the claim is also properly fit for trial, and has a real prospect of success if, as may happen, the claimant's evidence is accepted. I have considered the pleaded defence of both defendants, in which the claimant is put to proof of what discussions took place between the claimant and Dr Ingram, prior to the 1999-2000 academic year, on the subject of the claimant's depression, anxiety and insomnia.
67. Dr Ingram says in his witness statement that his recollection is adversely affected by the passage of time, and he has examined the documents to aid his recollection. He does not dispute that the subject of the claimant's depression was touched upon in 1999. His evidence is to the effect that there was nothing in the discussions that did take place that would or should have alerted him to the need to communicate with the examiners on the subject; that there is nothing in the documentary record suggesting he should do so; and that he was not invited to do so by the claimant.
68. If that evidence is accepted in full, it may well be that the claim under this head would fail for want of any breach of duty. The medical certificate relating to hay fever shows that Dr Ingram was able to deal appropriately with medical conditions. But I do not think it is right to determine summarily the issue of breach of duty in relation to this part of the claim. I think it passes the test of having a real prospect of success, even though it does not at this stage appear particularly strong.
69. I was shown certain rules said to be in force at the time, relating to the proper handling of information about students' medical conditions. I did not accept Mr Milford's contention that what he showed me demonstrated beyond doubt either that there was no duty to raise the subject of relevant medical conditions unless prompted by the student concerned, or that if the claimant's depression, anxiety and insomnia had been raised at the time, that could not possibly have affected the claimant's marks.
70. Those are, it seems to me, properly matters for trial. The extract from the rules I was shown was not placed in its full context as would happen at a trial; and the rules did not seem to me to point inexorably to the conclusions contended for by Mr Milford. The concession made by the claimant in correspondence with Dr Ingram is clearly not maintained any longer, and the claimant may at trial be found not to be bound by it. The issue of vicarious liability for any breach of duty on the part of Dr Ingram was conceded by Mr Milford at the hearing to be a matter fit for argument at trial, rather than summary determination.
71. For those reasons, I do not accede to the application to strike out or for summary judgment, in so far as it is made on the basis that its merits are palpably bad. I turn next to the remaining three issues, which all relate to limitation.

The third issue: whether the claimant has a real prospect of establishing that the "date of knowledge"within section 14 of the Limitation Act 1980 fell less than three years before issue of the claim

72. Mr Milford submits that the claimant has no real prospect at trial of showing that the date of knowledge fell less than three years before issue of the claim. His main submissions under this heading were the following:

(1) the emails of 15 December 2000, 24 October 2001 and 13 May 2009 satisfied the knowledge requirement in section 14(1)(b) of the Limitation Act 1980; they show he had "knowledge….that the injury was attributable in whole or in part to the act or omission which is alleged to constitute negligence, nuisance or breach of duty";

(2) it was sufficient that he had "broad knowledge of the essence of the causally relevant act or omission to which the injury is attributable", i.e. capable of being attributed to the act or omission in the sense of being a real possibility (Spargo v. North Essex District Health Authority [1997] PIQR 235, per Brooke LJ at 242).

(3) Specifically, he then knew enough to make it reasonable for him to begin to investigate whether or not he had a case against the defendant; he was not "barking up the wrong tree" and, subjectively, believed firmly in the strength of his case and in the attribution of his loss to the University's wrongdoing; his confidence being sufficient to warrant embarking on the preliminaries to the issue of a claim (AB v Ministry of Defence [2013] 1 AC 78, per Lord Wilson at paragraph 12). The belief need not be based on evidence (ibid., per Lord Mance at paragraph 87).

(4) The claimant knew in 2000 and 2001 how he had been taught the ISS; he knew the percentage of gobbets that had been covered and that, in his view, not enough gobbets had been covered in the tuition he received; and he must have shared Ms Blackmore's view that Dr Washbrook was insufficiently engaged in the teaching of the ISS course; since the three emails clearly express that view.

(5) It is therefore untenable for him to say that all he had at the time was an unsubstantiated suspicion amounting to speculation and guesswork. The claimant is and was then an intelligent highly educated person who had attended a leading university; he plainly had well developed subjective views about the injustice he perceived, as early as 2000 and 2001.

(6) The documents he obtained much later, comprising the University's written responses to Ms Blackmore's complaint, add nothing of substance to the knowledge the claimant already had, forming the basis of the claim founded on allegedly deficient teaching of the ISS course.

(7) As to the second limb of the claim, the claimant received in 2001 the information from the Proctors concerning the use to which the information about his medical condition had been put. He also knew he had spoken to Dr Ingram about his depression, anxiety and insomnia. Therefore, he knew enough to investigate and initiate a claim founded on failure to pass on information about his depression, anxiety and insomnia.

73. Mr Mallalieu countered those arguments with the following main points:

(1) He submitted that there was no good reason why the issue of the date of the claimant's knowledge should not, in the normal way and as the University had itself until recently agreed, be tried as a preliminary issue with the benefit of cross-examination. It could not be said at this stage that the claimant's case on the date of his knowledge falling in 2013 or 2014, was bound to fail.

(2) The focus of the claimant's dissatisfaction in 2000 and 2001, and until his contacts with Ms Blackmore and Dr Conway in 2013, was the reopening of his grades and the securing of references for his job applications, which he felt would counteract and remedy his perceived underachievement in his finals. He was not focussed on the potential for litigation in 2000, 2001 and 2009. He is "no shrinking violet" and would have sued much earlier if he had had the knowledge required under section 14(1)(b).

(3) Without the knowledge he later acquired of Ms Blackmore's complaint and the University's written responses to it, he was aware only in a vague and general sense of dissatisfaction among students, including himself, with the teaching of the ISS course. Crucially, he lacked knowledge of the nature and extent of Ms Blackmore's complaint and the recognition by the University that aspects of it were well-founded; in particular, the inadequate teaching resources devoted to the teaching of the course, attested to by, for example, Dr Washbrook's protest of an "intolerable" workload.

(4) Thus submitted Mr Mallalieu, in 2000 and 2001 the claimant lacked the requisite knowledge of the acts or omissions later said to constitute negligence. At the very least, subject to cross-examination the matter is strongly arguable and not fit for summary determination.

(5) Furthermore, it is arguable that the University remained in continuing breach of its duty of care, at least until the finality of Professor Mapstone's refusal in 2014 to reopen the claimant's grades; such that the limitation period may not have expired at all. This last point, which does not go to the date of knowledge, was countered by Mr Milford's argument that the cause of action must have been complete in 2000, by analogy with Bell v. Peter Browne & Co [1990] 2 AB 495, per Nicholls LJ (as he then was) at 500-501 (a contract case where the cause of action is complete on the date of the breach of contract).

(6) As to the claim founded on the mishandling of medical information about the claimant, his case is that until October 2013, he thought that what Dr Ingram had reported to the Proctors included information about his depression, anxiety and insomnia, and not just about his hay fever. Until then, he did not have the requisite knowledge to start time running in respect of this limb of the claim.

74. I now come to my reasoning and conclusion on this third issue. The question for me here is whether there is a real prospect, which is more than merely arguable, that at trial the claimant will be able to show that the date of knowledge for section 14 purposes fell less than three years before issue of the claim. Applying the approach in Spargo and AB v. Ministry of Defence, the issue is whether the claimant had, in 2000, or in 2001 or in 2009, enough knowledge to make it reasonable for him to begin investigating whether to pursue a claim against the University.
75. Another way of putting the issue is to ask the question whether at those material times he firmly believed, subjectively, and whether or not on the basis of evidence, that his condition was capable of being attributed to acts or omissions of the University which he could identify in broad terms, such as to warrant going to a solicitor for legal advice on the matter. Was that clearly the position here? If so, the claim should not proceed further, subject only to the issues of deliberate concealment and discretionary disapplication of the three year limitation period.
76. Or does the claimant have a real prospect of showing that his knowledge fell on the other side of the Spargo line, and amounted to knowledge so vague and general that he could not fairly be expected to know what he should be investigating; or that his state of mind at the material times was such that he thought his condition capable of being attributed to the University's negligent acts or omissions (or was not sure and would need to check with an expert before he could be said properly to know that it was)?
77. I approach this issue on the basis of the claimant not being in possession of Ms Blackmore's complaint letter and the written responses to it. I return to the three emails heavily relied on by the University.
78. In the first email of 15 December 2000, the claimant said nothing about any substandard teaching. Nor did he mention expressly any medical issues. He was seeking a regrading of two of his papers, one from the ISS course, not the gobbets paper.
79. In the second and long email of 24 October 2001, the claimant eventually got round to blaming illness for the underachievement that was hampering his entry to a prestigious law school in the USA. In the course of insisting that he was of sufficient calibre to hold his own in such an institution, he asked to be assessed by his referee at the "peak" of his "game" and not when plagued by the "[i]llness and personal circumstances" that had caused him to underachieve at Oxford.
80. He then said he would "like to add" that the ISS was "appallingly badly taught", covering only five per cent of the gobbets, and that "this may have affected the outcome of this exam." He said he had had grounds for a complaint about the standard of teaching but did not make a complaint "out of the goodness of my heart".
81. He did not mention any issue concerning non-availability of teaching staff; nor did he say anything about what medical information about him had been submitted for consideration by the examiners. He was aware that some had been, but had not then seen the medical certificate mentioned above, citing hay fever only; and his case is that he did not know from Dr Ingram what medical evidence had been considered.
82. In the third email of 13 May 2009, the claimant repeated his assertion that the gobbets paper had been appallingly badly taught, but said he left it to Dr Ingram's good judgment whether he, Dr Ingram, should mention this point in the reference the claimant was seeking from Dr Ingram in the hope of being accepted on a tax law course at King's College, London.
83. Clearly, the claimant had a belief that his gobbets paper had been very badly taught. He felt aggrieved that so few of the gobbets had been covered. Was that enough for Spargo knowledge setting the limitation clock running?
84. I have come to the conclusion that I cannot be confident that it was enough. I think a trial judge might well decide that the claimant's perception about the poor teaching of the gobbets paper was not enough to make it reasonable for him to begin investigating whether to pursue a claim against the University; that it was not enough to amount to a firm subjective belief that his condition was capable of being attributed to that poor teaching, such as to warrant seeking legal advice on the issue.
85. It is difficult to apply the "date of knowledge" statutory provisions in the present context. They were no doubt crafted with more conventional forms of personal injury claim in mind. Claims by students against their former universities are notoriously difficult and rarely successful. The claimant did not have much to go on, beyond his sense of grievance. Although the claimant is not himself a lawyer, it is perhaps of some relevance that many solicitors, if approached about a potential claim in 2000, 2001 or 2009 with no more than an allegation of poor teaching of a gobbets paper, would have advised the claimant not to waste his money.
86. As regards the medical information limb of the claim, I understand the claimant did not obtain a copy of the medical certificate mentioned above, which is confined to medical evidence about hay fever, until less than three years before the issue of the claim. Mr Milford did not suggest otherwise at the hearing before me. I therefore accept Mr Mallalieu's submission that it would be right for the trial judge to consider whether the claimant may not have known until then that other medical evidence or information had not been passed to the examiners by Dr Ingram.
87. I consider next, for completeness, the point made by Mr Mallalieu about an alleged continuing breach of duty by the University in failing to remedy the unjustified grading of the claimant's examination papers. I do not think that argument can be correct, and if the case turned upon it, I would not allow it to proceed further. If it were correct, it is difficult to see how the limitation period could ever start running. The cause of action in contract runs from the date of the breach. The cause of action in tort runs from the date loss and damage are suffered, damage being the gist of the tortious cause of action. But on the claimant's own case, he had started to suffer loss considerably more than three years before the claim was issued.

The fourth issue: whether the claimant has a real prospect of establishing that the claim is in time through the operation of section 32(1), 32(1)(b) and 32(2) of the Limitation Act 1980 (deliberate concealment of any fact relevant to the claimant's right of action)

88. On this issue, the University's main submissions were as follows:

(1) If, which the University disputes, anything at all was concealed from the claimant, it is said to be the University's knowledge of the negligent inadequacy of the teaching of the ISS course. This was, at the most, merely evidential material and not any fact relevant to the existence of the claimant's right of action, as required by section 32(1)(b) of the 1980 Act.

(2) A defendant in a deliberate concealment case must either take active steps to conceal its own breach of duty or must be guilty of deliberate wrongdoing and must conceal or fail to disclose it in circumstances where it is likely to remain undiscovered for some time (Cave v. Robinson Jarvis & Rolf (a firm) [2003] 1 AC 384, per Lord Millett at paragraphs 24-25; per Lord Scott at paragraph 60).

(3) Here, what was manifestly lacking was "the intention of concealing the fact or facts in question" (per Lord Scott at paragraph 60). In this case, the University was unaware (if it be so) that it had erred in the provision of teaching on the ISS course, and was unaware that its error was negligent. And in any event, Dr Washbrook's response to Ms Blackmore's complaint did not contain facts that were unlikely to be discovered for some time. They were already known to students on the ISS course. That is enough to defeat the application of section 32, and the claimant could not hope to show otherwise at any trial.

89. Mr Mallalieu countered those arguments with the following main points:

(1) He confirmed that this argument is pursued only in relation to the first limb of the negligence claim (deficient teaching of the ISS course), not the second limb of the claim (mishandling of medical information).

(2) It is unnecessary to show the deliberate commission of a breach of duty in circumstances where it is unlikely to be discovered for some time; that is only one way of invoking section 32, as provided for in section 32(2). Under section 32(1)(b), there can be a deliberate concealment of a fact relevant to the claimant's right of action without deliberate commission of a breach of duty.

(3) Although the claimant does not rely primarily or solely on commission of a deliberate breach of duty falling within section 32(2), it is arguable that the University had sufficient advance knowledge of the deficiencies in the teaching of the ISS course in the 1999-2000 academic year to amount to knowingly providing materially deficient teaching in breach of its contractual and common law duties.

(4) Under section 32(1)(b), the University concealed from the claimant (and others) the state of its knowledge of Ms Blackmore's complaint, and the recognition in its written responses to it that aspects of it were well-founded, which were facts relevant to the claimant's right of action, not merely evidential material. The concealment was deliberate; the documents had to be prised from the University against its will.

90. In my judgment, the claimant's case is not bound to fail under this head; it has a real prospect of success, and is not suitable for summary determination. My reasons are briefly as follows.
91. I confess that I find section 32 opaque and difficult to interpret, even with the considerable benefit of Lords Millett and Scott in the Cave case to help with its interpretation. I accept, of course, the construction of section 32(1) and (2) adopted by their Lordships in Cave. Applying that construction, Mr Mallalieu is right to point out that a deliberate commission of a breach of duty in circumstances in which it is unlikely to be discovered for some time is but one way of relying on the section.
92. Mr Milford is right to say that the question is whether, in Lord Scott's words at paragraph 60, the claimant can "show that some fact relevant to his right of action has been concealed from him either by a positive act of concealment or by a withholding of relevant information … with the intention of concealing the fact or facts …". I have to consider whether the claimant has a real prospect of success at trial in meeting that burden.
93. I conclude that he has. The complaint of Ms Blackmore and the University's responses to it may be found at trial to be facts relevant to the claimant's right of action. The claimant may be right to say that the University was aware that it was acting wrongfully by providing the ISS course to as many as 16 students without the necessary teaching capacity, due to sabbatical leave, to make that a viable option. I put it no higher than that, but it is sufficient for present purposes.
94. The claimant may, furthermore, be right to say that the University withheld from the claimant that factual information relevant to his right of action, with the intention that he would not find out about the non-availability of teachers other than Dr Washbrook to teach the course that year; and withheld from him the University's prior knowledge of that, and its decision to proceed with the course nonetheless, relying only on Dr Washbrook to teach the tutorials.
95. Again, I put the matter no higher than that; I do not say the arguments of the claimant are certainly good or will necessarily succeed at trial. It may be that what was not disclosed would be characterised by the trial judge as no more than evidential material which strengthens the case for the claimant but does not complete his cause of action.
96. On the other hand, in so far as the gravamen of the claim is the University's failure to act on its knowledge of the unavailability of teaching staff, the claimant may not have known about that unavailability, and about the University's advance knowledge of that unavailability, when he sat his finals and was awarded his degree. The section 32 issues should, in my judgment, be left to the trial judge to determine.

The fifth issue: whether the claimant has a real prospect of persuading the court at trial that it would be just and equitable to disapply the primary limitation period and allow the action to proceed, pursuant to section 33(1) and (3) of the Limitation Act 1980

97. On the fifth and final issue, Mr Milford submits that the claimant could not realistically hope to persuade a trial judge that the primary limitation period of three years should be disapplied and the action allowed to proceed. He points out that the extension of time needed would be one of about 11 years. His main submissions were as follows:

(1) He took me through the six discretionary considerations set out in section 33(3) of the 1980 Act which, in particular, must be considered, as well as all the circumstances of the case.

(2) He submitted that the delay is long; the reasons for it bad; the claimant had a propensity to complain and could easily have investigated and brought a claim within the primary limitation period. Yet he was inactive for long periods.

(3) Mr Milford complained that primary evidence is now less cogent than it was in the early part of the millennium: the claimant's examination scripts have been destroyed; Dr Washbrook (though a witness) has retired; Dr Ingram's recollection (though he is a witness) is hampered by the passage of time.

(4) It would have been wrong for the University to reopen the claimant's examination marks in 2014, so long after the events; that would compromise the integrity of the examination system. Furthermore, the University had not "rebuffed" alternative dispute resolution (ADR); it was willing to engage in ADR but disabled from that course by the absence of a proper schedule of loss.

(5) The University had behaved properly in the procedural history since the issue of the claim, responding appropriately to requests for disclosure, making the present application after exchange of witness statements and agreeing to an adjournment of the trial dates.

(6) The claimant's depression is long-standing, dating back to 1999 on his own case. It has not prevented him from making complaints, corresponding with the University, working for solicitors and accountancy firms and eventually bringing this claim. The medical evidence does not support any inability to function to the extent needed to bring the claim timeously.

(7) Finally, the claimant waited nearly four months after issue of the claim before serving it. In all those circumstances, Mr Milford submitted that the claimant could not realistically hope to persuade any trial judge to grant the necessary extension of time that would enable the action to proceed.

98. For the claimant, Mr Mallalieu contended by way of riposte as follows:

(1) The circumstances of the case include everything relevant, and in particular the claimant's medical condition dating back to 1999 and since then.

(2) It is part of his case on causation that the University's breaches of duty have exacerbated his long term medical difficulties and depressed his earning power, such that he is unemployed in the long term and of very limited means.

(3) Any prejudice to the defendant is minimal or exaggerated because of the survival of the key documents relevant to liability. The withholding of those documents for so long was the University's doing.

(4) The reasons for the delay were good, not bad, as already submitted previously in relation to other parts of the arguments, canvassed above. If the case on date of knowledge or deliberate concealment should fail at trial, the matters relied on in those parts of the argument would be grist to the mill of the trial judge's discretion under section 33.

(5) The law in this area is difficult and developing. It was reasonable for the claimant to focus on securing redress through regrading, references and consequent improved job prospects rather than go into litigious mode early on in the process, while in ignorance of the key documents he only much later obtained. He acted diligently once he obtained them, getting legal advice from leading and junior counsel, and bringing the claim.

(6) The claimant has dealt fully in a recent witness statement with the discretionary considerations expressly required to be taken into account under section 33(3)(a)-(f). Among the additional points there made is that the claimant has enjoyed some sympathy and support from staff at Brasenose (though I believe that was before he sued the College), at a time when he was seeking permission to submit dissertations in place of the two ISS papers he sat in 2000.

99. I turn to my reasoning and conclusions on this final issue. I note, first, that the pleaded particulars of injury include a "significant exacerbation of his psychiatric conditions as a result" of the wrongs he says he has suffered. The conditions mentioned in the psychiatric report attached to the particulars of claim – that of Dr Jonathan Beckett dated 2.12.14 – are chronic major depressive disorder with depression, pervasive low mood, loss of enjoyment, marked loss of energy, motivation, insomnia, poor concentration and anxiety.
100. Those are matters that would be or could be considered relevant to the exercise of the court's discretion under section 33 of the 1980 Act. The claimant has been inactive in this case for long periods, but that has been punctuated by sporadic episodes of strenuous and determined enquiry, finally yielding knowledge of tangible documentary evidence in the autumn of 2013 that was enough, on his case, to transform an unsubstantiated sense of injustice into a potentially viable cause of action.
101. The University is undoubtedly right to say that the period of any section 33 extension of time would be a long one that memories are likely to have dimmed, that the claimant's examination scripts have not survived and that a judge would have to weigh that prejudice to the defence in the balance when considering the section 33 issue. But it does not follow that the balance is all one way and that there is nothing that might tip the scales the other way.
102. There have been cases where long extensions of time have been granted under section 33. In our legal system, it is recognised that the policy imperative of access to justice, and the righting of wrongs, can override the right of a defendant to feel secure from litigation after expiry of a long period since the alleged wrong was committed. Thus, in the case of minors under the age of 18, limitation does not start to run until the person turns 18. In the case of patients without capacity, limitation never starts to run at all.
103. For my part, I do not consider it unrealistic or fanciful to suppose that this claimant may persuade a judge at trial to allow this claim to proceed. I bear in mind that section 33 issues are often decided by way of a preliminary issue rather than adopting a summary process such as in this case. Indeed, the University itself envisaged a process which would include cross-examination, until it decided to issue this unusually late application.
104. Similarly, experienced leading counsel in the Winstanley case, mentioned above, conceded before the judge that the limitation issues were better suited for determination as a preliminary issue. Like the judge in that case, I consider that she was right to do so. I think the same proposition applies in this case.
105. I am firmly of the view that the issue ought to be determined with the benefit of oral evidence and cross-examination. I do not think this is a case in which the prospects of the trial judge being persuaded to extend time and disapply the primary limitation period are too low to justify a trial of the issue. A judge determining that issue will have to consider "all the circumstances of the case", which are not necessarily limited to those listed in section 33(3)(a)-(f).
106. I did not feel fully equipped at the summary hearing to undertake that task. In particular, although the conduct of the parties since issue of the claim was touched upon, I was not provided with full knowledge of all potentially relevant matters after the claim was brought. While that may be less important than what happened earlier in the history, it illustrates why a preliminary issue is often a more suitable vehicle for determining a discretionary issue of this kind.

Overall conclusion:

107. For those reasons, I am satisfied that the University has a case to answer that is fit for trial in relation to both limbs of the claim for damages; and that the claimant has a real prospect of succeeding in persuading the court to entertain his claim, either on the basis that it is not out of time, or by persuading the court that it is just and equitable to allow the action to proceed, exercising the power under section 33(1) of the 1980 Act to disapply the primary three year limitation period.
108. I therefore decline to strike out the claim and I refuse the University's application for summary judgment on the claim. I dismiss the University's application and direct that the case be fixed for trial as soon as possible.