Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION [2013] CSOH 201
P833/11	OPINION OF LORD JONES in the cause REHAB ABDEL-RAHMAN Petitioner; for Judicial Review of decisions of the University of Edinburgh ________________

Petitioner: Party

Respondent: O'Brien QC, Poole QC; Lindsays

27 December 2013

Introduction

[1] The petitioner in this case represents herself. She seeks judicial review of certain decisions which the respondent, the University of Edinburgh ("the university"), took whilst she was studying as a post-graduate student there. She avers that the effect of those decisions was to suspend her from attendance at the university's Public Health Department and to exclude her from re-matriculation, so preventing her from continuing her studies for a PhD in public health. She complains of breaches by the university of: its own regulations; the Human Right Act 1998 ("the HRA"); the Race Relations Act 1976; Council Directive 2000/43/EC and various provisions of the European Convention on Human Rights.

[2] The decisions complained of are those communicated to the petitioner in the university's letters, emails and forms, dated 13 May 2009, 25 June 2009, 1 July 2009, 11 September 2009, 7 October 2009, 10 and 22 December 2009, 20 January 2010, 2 February 2010, 3 and 26 May 2010, 6 June 2011 and 4 November 2011. She also challenges a decision, purportedly taken by the principal of the university on 24 June 2009, to delegate certain powers to the university secretary. Amongst the numerous grounds of opposition tabled by the university in its answers to the petition are that the petitioner is barred by mora, taciturnity and acquiescence (to which, for convenience, I shall refer as "the mora plea" or a variant thereof) from seeking review of the decisions complained of, and that any claim competent to the petitioner in respect of alleged breaches of her convention rights has been terminated by passage of time in terms of section 7(5) of the HRA.

[3] The matter came before me for a hearing on both of these matters on 1 July 2013 and two succeeding days. Miss O'Brien QC, who appeared for the university, explained that, for the purposes of her arguments, she would take the petitioner's factual averments as if established, without prejudice to her right to dispute their accuracy if the action were to proceed further. She explained, also, that the university has challenges to the competency of certain elements of the petitioner's application for judicial review which she wished to reserve.

The factual background

[4] Counsel laid out the foundation for her mora and HRA submissions by referring to a chronology, which is number 7/290 of process, and to a series of documents. Whilst it was helpful to have the broad understanding of the circumstances of the case which the chronology and documents facilitated, it is unnecessary for me to refer to them all for the purposes of this opinion, and I shall restrict my narrative to those events which, in my view, have a bearing on the pleas under consideration.

[5] On 3 August 2005, the petitioner accepted an unconditional offer from the university's College of Medicine and Veterinary Medicine of a place to study for a PhD in genetic epidemiology, over a period of 36 months. (Number 7/292 of process) In accordance with the terms of the offer, she began work on 15 September 2005, and she matriculated on 4 October 2005. (Number 7/51 of process)

[6] Miss O'Brien referred me to one of the petitioner's productions, number 6/52 of process, explaining that it is accepted by the university that the petitioner was considered to be a good and able student whose work was progressing satisfactorily. That production, dated September and October 2008, is an annual report on the petitioner in which her progress is described as "Very Good/Good". In October 2008, however, the petitioner went absent on sick leave. (University's chronology) By email, dated 15 October 2008, the petitioner complained to the university authorities of "severe persecution" and "harassment". (Number 7/56 of process) By further email, dated 28 October 2008, she wrote to one of her two PhD supervisors, complaining about the other PhD supervisor and informing the addressee that, on medical advice, she was unable to come in to the department "at least currently and in the near future". (Number 7/286 of process)

[7] On or about 18 December 2008, the petitioner made what she described as "a formal complaint" to the university about the behaviour of a number of named individuals. (Number 7/64 of process) According to the university's chronology, senior representatives of the university had a meeting with the petitioner on 4 February 2009. On 20 February 2009, the petitioner wrote to one of the persons whom she had met to say that there were "two outstanding issues" in her complaint. (Number 7/69 of process, appendix A) The first was about the removal of supervisors about whom she had complained, and the second concerned her request that her studies be suspended from March 2008 until February 2009 so that she might complete them within the 36 month period specified in the university's offer of 3 August 2005. In March 2009, the university issued a document which is described in the chronology as "Determination of Complaint (Stage 1)" and which contained, among other things, a section headed "Summary of findings" and another entitled "Recommendations". (Number 7/69 of process) It is not necessary to narrate these for the purposes of this opinion, other than to say that one of the recommendations was to the effect that retrospective suspension of the petitioner's studies should be sought, from March 2008 to February 2009. The recommendation was implemented shortly thereafter, and the suspension granted.

[8] Following the issuing of the determination, the petitioner continued to correspond with the university authorities. It is clear from that correspondence that, so far as the petitioner was concerned, certain matters which were the subject of her complaint were not resolved. On 12 May 2009, the petitioner emailed the university, informing it that she had visited her GP, had been given a six months' supply of medication, and did not expect to resume her studies for three to six months. (Number 7/90 of process) On the same day, in response to an email dated 9 May from the petitioner, her head of college wrote to her in the following terms:

"Thank you very much for letting me know that you have visited your GP and that ill-health currently prevents you from pursuing your PhD studies. Rest assured that your period of study can be suspended until such time as you feel well enough to return to your work.

...

I will inform the Head of School (Professor Weller) and Professor Campbell that you are currently on sick leave. I would be grateful if you could keep the School informed as to when you might be well enough to return to your studies." (Number 7/89 of process)

On 15 May 2009 her head of college wrote again to the petitioner, saying this:

"I am writing to express grave concern about your health and wellbeing. I would be very grateful if you could share this confidential letter with your GP. Your doctor needs to know that you have been on hunger strike all this week and that you have been making public demonstrations.

I am also very worried that you believe that I have been sending electricians to your home, which is not true.

For the moment, your complaints process is suspended, in the same way as your PhD studies, until your health improves." (Number 7/96 of process)

The petitioner emailed her head of college on 18 May, in these terms:

"I think you are investigating my problems. I think you have contacted my husband. I think the medical team who came to my home today were sent by you or by some means related to you. You cannot use this email by any means in my complaint as I refuse for this to be included by any means in my complaint. But I think I need help and I am going to accept their help even though confident you are behind all of this.

In spite of this email and my recent thoughts, I will continue in my protest campaign till you fairly conclude my complaint. Please do this very soon." (Number 7/288 of process)

(It should be appreciated that English is not the petitioner's first language. All of the quotations from her correspondence are accurate.)

[9] I have set out some, but by no means all, of the events leading up to the date of the first of the university's decisions which the petitioner seeks to reduce in these proceedings, in order to communicate a flavour of the escalation of the dispute between her and the university. On 24 June 2009, according to the university's averments, the principal of the university formally authorised the university secretary in writing to act as his deputy in dealing with the petitioner's case. On 25 June, the university secretary wrote to the petitioner in the following terms:

"Acting on behalf of the Principal of the University I am writing to formally notify you that, with immediate effect, you are suspended from your studies at the University, in accordance with Section 5.1.7 of the University's Code of Student Discipline.

The Head of College has repeatedly expressed concerns about your health status, which impacts on you and many colleagues who work alongside you in the University. There is growing concern that your distress and anxiety are now making it very difficult for other colleagues to work normally. In addition you have been sending emails to members of the University staff making serious unfounded allegations about specific members of the academic staff with whom you work.

In the circumstances, acting as the Principal's deputy for this purpose, I have decided that your right of access to University facilities should be suspended until such time you (sic) can provide medical evidence that you are able to resume your studies without disrupting the work of others.

Please do not attempt to access University buildings for the time being, as you will be turned away.

The University's code of Student Discipline is located at:

...

You will see in sections 5.1.6 and 5.1.7 that you have five days within which to make written submission to me in regard to your suspension. Sections 5.1.8 and 5.1.9 set out arrangements for review of your suspension after four weeks if it has not been lifted before then.

Furthermore, to ensure unbroken communication with you, your outgoing emails will be directed to the College Registrar, Mr Louis Golightley, who will keep you informed. If you need personal items from study sites, Louis Golightley will help with arrangements to provide these to you.

It is recognised that your complaint is unresolved. The University wishes to ensure that it is considered appropriately. I shall write separately about this matter in the near future." (Number 7/133 of process)

I say more about the university's recourse to the Code of Student Discipline ("the code") later in this opinion.

[10] Over the next few months, relations between the petitioner and the university deteriorated further. The main bone of contention was the university's continuing insistence that the petitioner's suspension would remain in place until such time as she provided medical evidence that she was able to resume her studies without disrupting the work of others and the petitioner's continuing refusal to do so. In a letter, dated 11 September 2009, to the petitioner, the principal said this:

"This situation cannot continue indefinitely, and with great regret I have concluded that this leaves the University with no option but to decline to register you as a student in the 2009/10 academic year which has just commenced. I have asked the University Secretary to take the necessary action to ensure that you are not registered as a student, and to inform the Egyptian Cultural Counsellor and Director in London of our decision." (Number 7/166 of process)

It is relevant to note that, in its answers to the petition, the university avers that it declined to re-enrol the petitioner: "because she had not produced appropriate medical evidence, and her suspension continued." It "was not a decision taken under the Disciplinary Code". (Answer 4) Those averments are consistent with the university secretary's letter of 7 October 2009 to the petitioner, in which he explained that she had not been registered as a student "in the academic year which commenced in September 2009" because she was suspended from study. In his letter of 10 February 2010, to the petitioner, he repeated that explanation and advised her that, as at the date of that letter, the suspension remained in place. (Number 7/224 of process) The petitioner remained unregistered, and her PhD work was incomplete when this action was raised.

The mora plea

[11] In its answer to statement 3 of the petition, the university makes the following averments:

"... the petition is barred by mora, taciturnity and acquiescence. The true substance of the petition is a challenge to the university's decision to suspend the petitioner which was made on 25 June 2009. First orders in this petition were granted on 2 August 2011. The petitioner had consulted solicitors in November 2009. It is prejudicial to good administration for decisions to be challenged so long after they have been made. The whole circumstances as set out in this petition indicate taciturnity and acquiescence on the part of the petitioner, and the petition is barred by delay."

[12] The law on a plea of mora is not the subject of dispute in this case. Its essential features are set out in the following passages in the opinion of an Extra Division of the Inner House in Portobello Park Action Group Association v City of Edinburgh Council 2013 SC 184 ("Portobello Park"):

"[13J For the plea of mora, taciturnity and acquiescence to be sustained, all three elements must be present (Somerville v Scottish Ministers at 2007 S.C., p.182; 2007 S.L.T., p.120, para.94). The court must have regard to all the circumstances of the case (Somerville, p.182 (p.120) para.94).

[14J Whether the passage of time amounts to mora is a question of fact and degree. As Lord Glennie noted in United Co-operative Ltd v National Appeal Panel for Entry to the Pharmaceutical Lists, 2007 S.L.T., p.841 , para.30: 'Mora simply means delay beyond a reasonable time. What is a reasonable time will depend on all the circumstances ... In assessing what is a reasonable time, account must, of course, be taken of the complexity of the matter, and the need to take advice, gather information, and draft proceedings. In some cases, this will require considerable time ....'

Similarly in Somerville v Scottish Ministers, p.181 (p.120) para.92, it was explained that: 'The plea is necessarily protean and it must depend on the particular circumstances of the case whether or not its requirements are satisfied. There may be cases where the passage of time, as related to the surrounding circumstances, may be such as to yield the inference of acquiescence in the decision in question ... The petitioner may, however, be in a position to put forward an explanation for the delay sufficient to rebut the inference.'

[15J Taciturnity has been defined (United Co-operative Ltd, p. 841, para.32) as: '... a failure to speak out in assertion of a right or claim when a reasonable person in that position would be expected to speak out.'

[16] As for acquiescence, we again refer to United Co-operative Ltd, at p.842, para. 33: 'Acquiescence simply means assent to what has taken place. The enquiry is not a subjective one to be answered by looking into the mind of the petitioner. The test is objective. Acquiescence requires to be inferred from the petitioners' inaction and silence. The question is how the matter would have appeared to a reasonable person observing the petitioners' conduct, knowing of all the circumstances of which the petitioners knew or ought to have known when acting in the way they did.'"

Facts relied on by the university

[13] In amplification of the university's position as stated on record, counsel provided me with written submissions. On the issue of delay, the university says this:

"Delay The court should look at the substance of the petitioner's complaints. The petition stems from a suspension which occurred on 25 June 2009 (7/133). Yet the petition was not brought until August 2011. Even if decisions other than the suspension are properly within the supervisory jurisdiction (which is not accepted; see below) the decision to decline to re-register the petitioner in the absence of medical evidence of fitness was made on 11 September 2009 (7/166). The University made the petitioner a conditional offer to return which they made clear was their final position in February 2010 (7/218, 7/221). The petitioner did not accept that final offer (7/122, P15 (sic)), as confirmed in correspondence with the University Secretary and Vice Principal in February and March 2010 (7/224, 7/231, 7/232, 7/244). The offer was open, at the latest, to June 2010 when the academic year ended. The petitioner has delayed in bringing the petition by over two years from the decision to suspend, almost two years from the refusal to re-register, and by well over a year after final proposals for return by the university had lapsed. Those proposals were in any event rejected by the petitioner one and a half years prior to bringing the petition."

[14] The university contends that there has been the requisite taciturnity to found the plea, having regard to these circumstances:

"Taciturnity The petitioner has failed to assert her rights due to her failure to bring court proceedings until August 2011. The University's position on their interpretation and application of the Disciplinary Code, and the powers under which the decisions were made, was made clear to her at the latest by 16 December 2009 (7/206, 7/215: communications to the petitioner from the University Court, and Lindsays). The petitioner took legal advice at the latest in November 2009 on the matters relating to her suspension and non-registration: see the letter from Morton Fraser to the solicitors for the University (6/45). The petitioner was told in February 2010 that the university's conditional offer to return was time limited and that it was their final position (7/218, 7/221). The petitioner's awareness of the need to bring legal proceedings is shown by her claim under legal expenses insurance prior to July 2010 (6/42). Yet she did not commence an action, and behaved with taciturnity."

[15] Finally, submits the university, acquiescence is made out, standing the following:

"Acquiescence By failing to challenge the decisions earlier, there has been tacit assent. It was clear at the latest in February 2010 that the University had made a final conditional offer which was time limited, but the petitioner did not issue proceedings until August 2011. Her acquiescence is demonstrated by her failure to challenge the absence of an offer to re-enrol for the academic year 2010/2011. Instead, on 7 August 2010 she intimated a change of address to Philadelphia, USA for the following 12 months (7/261). The interests of good administration in the University require to be taken into account in considering acquiescence. Challenging decisions a long time after they are made is not conducive to good administration. Evidence has been lost as the student and academic population of the University is not fixed: some students working in the same school who were distressed by the petitioner's behaviour will have completed their studies; the University Secretary dealing with much of the case has retired; and some documents have been lost e.g the written authorisation of the University Secretary of 24 July referred to in 7/141."

Petitioner's response

[16] In reply, the petitioner referred me to a chronology which she had prepared. In the discussion section of this opinion, I shall be looking at some of the material that she relied on in contending that the mora plea is not made out.

Discussion on the mora plea

[17] A convenient starting point for this discussion is what Miss O'Brien described as the university's final time limited conditional offer to return, of February 2010. To put that in context, it is necessary to look first at number 7/218 of process, which is a letter, dated 20 January 2010, to the petitioner, from Professor Lorraine Waterhouse, the university's Vice-Principal, Equality and Diversity. It refers to two recent meetings between Professor Waterhouse and the petitioner and sets out a proposal that had been put to the petitioner at the second of these meetings. The letter contains the following text:

"Discussion with relevant people in the University has led me to conclude, on behalf of the University, that there is a way forward that is possible and should allow you to complete your PhD. The College of Medicine and Veterinary Medicine is willing to proceed on this basis. If you find the proposal otherwise acceptable, the University would do its utmost to address the three factors you raised in our second meeting.

The proposal as outlined below would allow you to be registered as a postgraduate student at the University and to resume work on your thesis under supervision. It takes into account the wish of the University to support you to complete your thesis and the need for the University to exercise its duty of care for all students and staff.

Progress so far

You were making good progress towards completion of your thesis, and it is for this reason that the University believes that, if the present difficulties can be resolved, you should be able to complete your PhD successfully. Taking into account approved interruptions in 2008 and 2009 and current suspension, you have expended 30 months on your Ph.D. work and remain well within the 48 months permitted. All things being equal, it appears that the thesis could be completed in a relatively short period of time, approximately 6-8 weeks. (It appears that Professor Waterhouse was in error when she referred to "48 months", rather than to 36 months.)

...

Supervision

The proposal does not require you to remain in Edinburgh while finishing the thesis under the supervision provided by the University, although you can do so if you choose.

Continuity of supervisors very probably has the best chance of getting the thesis to conclusion in the shortest possible time. New supervisors, if they could be found, are likely only to be willing to provide comments anonymously through a third party which is unlikely to be satisfactory.

Registration

Under this proposal you would be registered at the University, with suspension being lifted.

...

You are offered the following choices:

-To remain in Edinburgh and have the restricted access as set out in the option

-To leave Edinburgh and complete by email with remote access to Library facilities

...

I hope you will give this proposal your serious consideration. It is a realistic way forward which should allow you to be able to complete your PhD successfully and pursue the next stage in your career.

Please let me know if you are prepared to agree this proposed way forward by Monday 25th, January 2010."

[18] As it is put in the university's chronology, on 25 January 2010 the petitioner replied "purporting to accept the offer to enrol, but not the conditions set." Her letter contained counter proposals. On 2 February 2010, Professor Waterhouse wrote in these terms:

"Thank you for your reply of 25th January to the proposal in my letter of 20^th January 2010. The University continues to wish to resolve matters so that it may be possible for you to complete your PhD successfully. You raise a number of matters in your reply concerning your status under the University of Edinburgh Code of Student Discipline, your complaint, future supervision of your PhD thesis and the possibility of compensation.

The points raised in your reply have been given careful consideration. Having taking (sic) these into account, the University's final response to your reply is set out below. It offers a positive and realistic way forward for you to complete your PhD thesis and I hope you will give it your full and serious consideration. It is important that you understand that this represents the University's final position and it will not be possible to enter into any further negotiation on the matters as set out below. I firmly believe it is in the interests of both parties that this matter is now drawn to a conclusion.

Suspension

You will be aware that the background to your suspension has been considered under the University's Code of Student Discipline. You were suspended on 25th June 2009 by the University Secretary acting as the Principal's duly authorised deputy under paragraph 5.1.7 of the Code. The Principal formally notified you of the Secretary's authority in that respect. You were given the opportunity to make representations so that the matter could be reviewed after 5 days in keeping with section 5.1.6 and 5.1.7.

The University Secretary in keeping with Section 5.1.9 has thereafter reviewed your suspension at monthly intervals. Because you were suspended from study until the end of the 2008/9 academic year, you have not been registered as a student in the academic year which commenced in September 2009. The Principal wrote on the 11^th of September 2009 to inform you that the University had no option but to decline to register you in the academic year 2009/2010 that had just commenced for the reasons given in the letter.

You question your status under the Code of Student Discipline. You have corresponded about this before. Every effort has been made to explain to you that, under the Code, you have been suspended from your studies and that the University has acted in accordance with the regulations in handling your suspension. It has also been explained that the question of a review by Court members does not arise because the Principal did not suspend you. The Vice-Convener of the University Court advised you that you could not expect to receive replies to any further communications regarding this matter. The University considers this matter closed." (Original emphasis)

Professor Waterhouse went on to advise the petitioner that the university considered the matters of her complaint and of her claim for compensation closed. She put forward further proposals for supervision and set conditions for the reinstatement of the petitioner's university email account. On the issue of registration, Professor Waterhouse wrote this:

"If you agree to the terms of this letter and if supervisors can be found you would be registered at the University, your suspension being lifted. Further complaint of misconduct will be dealt with under the University of Edinburgh Code of Student Discipline." (Original emphasis; number 7/221 of process)

[19] By email, dated 4 February 2010 and addressed to the principal, the petitioner again said that she accepted the offer to enrol, but rejected the conditions attached (Number 7/222 of process). On 10 February, the university secretary wrote to the petitioner saying, among other things, this:

"It is my understanding that you have not accepted the proposals put to you by Vice Principal Waterhouse for resuming your PhD studies, intended to enable early completion of your PhD. Whilst you have indicated that you wish to re-enrol, you do not accept the specific arrangements which are intended to make this possible.

The University considers that this matter cannot be progressed any further whilst your attitude towards these proposals remains unchanged. Could you please carefully note the following points.

...

You are not currently registered as a student of the University. On 22 February of this year the University will become required by law to inform the UK immigration authorities that you are not registered as a student and are not in attendance. You will wish to consider the implications of this for remaining in the UK, according to the nature of the entry visa you hold

The University remains anxious to help resolve your difficulties, and you are strongly encouraged to reconsider the proposals put to you by Vice Principal Waterhouse, intended to allow you to resume your studies and complete your PhD thesis. These proposals will not be of practical relevance indefinitely, and certainly will not be available beyond the end of the present academic year: you are urged to reconsider them soon." (Number 7/224 of process)

[20] Thereafter, communications between the petitioner and the university continued. I find the following relevant in the context of the mora plea. The petitioner emailed Professor Waterhouse on 11 February 2010, in the course of which she referred to what she described as "the actions he (the university secretary) carried against me on 25/6/2009" and reiterated her wish that they be "fully reviewed and substantiated from the Students Codes in respect to my various representations". By email, dated 24 February and addressed to the principal, the petitioner wrote: "I look forward to see the Head of College delivering to me my rights according to the Students Codes ..." In March and April 2010, the petitioner emailed various people connected with the university, pressing her complaint and seeking a review of the decision not to allow her to register. (Numbers 7/230, 7/237, 7/238, 7/239 and 7/241 of process) On 3 May 2010, Professor Waterhouse wrote to the petitioner in conciliatory terms, saying, among other things, this:

"The College is willing to do all that is necessary to support you at the end of your studies to finish your thesis which was nearing completion.

I hope that you will consider resuming work on your thesis so that you can complete it and pursue your longer-term aspirations." (Number 7/242 of process)

[21] In a letter, dated 4 May and addressed to the principal, the petitioner wrote that she had "submitted all the matters related to my complaints and the procedure as followed in the suspension and exclusion from studies for the SPSO [Scottish Public Service Ombudsman] considerations." (Number 6/54 of process) That had been done on 29 April. (Number 6/83 of process) Her complaint to the SPSO contained the following passage:

"The University has suspended and further excluded me from studies for unsubstantiated reason's from the student's codes and did not provide opportunity to review those decisions adequately in light to my various representations."

[22] On 2 June 2010, the petitioner wrote to the Member of Parliament for Edinburgh South, Ian Murray MP, asking him to contact the university "to resolve the situation". (Petitioner's chronology) Mr Murray wrote to the university secretary on 9 July and to the principal on 12 July. (Number 7/257 of process) The secretary explained at length the nature of the dispute between the petitioner and university, from the university's viewpoint. It is unnecessary to set out the full terms of that letter, but the following extracts are, in my opinion, worthy of note:

"The University is willing to do all that is necessary to support Dr Abdel-Rahman at the end of her studies to finish her thesis which should take around two months. The College has offered to seek to find two new supervisors for this purpose and for this purpose alone.

...

... the University believes, and has so informed her, that Dr Abdel-Rahman has undertaken sufficient research work to be able to complete writing up and submit her PH.D. thesis in a few weeks, although the longer the matter is left unresolved the more difficult it will be for her to do so. There is no need for further laboratory work or data analysis, and no requirement for an office in any specific location. Relevant senior academic colleagues do not share Dr Abdel-Rahman's view of the immense significance of her research, but accept that it should be worthy of a PhD if properly written up.

...

The University will re-register Dr Abdel-Rahman as a student if we can reach agreement on the basis for doing so."

[23] On 6 July 2010, FirstAssist Legal Protection emailed the petitioner and her husband, attaching claim forms for completion in connection with the petitioner's dispute with the university. (Number 6/42 of process) It appears that the claim was declined, and the petitioner's husband emailed FirstAssist on 2 August asking them to reconsider their decision. By email, dated 20 August, FirstAssist confirmed their decision to decline cover. (Number 6/42 of process)

[24] Between 14 July and 3 September 2010, the petitioner made ten subject access requests under the provisions of the Data Protection Act 1998, addressed to the university. (Number 7/272 of process) In its letter of 30 September 2010, addressed to the petitioner, the university summarised the information sought in the first eight requests. That information included "Responses of the individuals involved in (the petitioner's) complaint of 18 December 2008 as indicated in the complaint report 2009" and "Correspondence about the complaint from first submission to date, plus correspondence about (the petitioner's) suspension and exclusion". (Number 7/272 of process) On 4 October 2010, the petitioner emailed the university asking it to review the data disclosure made in its letter of 30 September.

[25] By email, dated 7 August 2010, which Miss O'Brien described as a "most important" document, the petitioner advised the university's registry of a change of address, in the following terms:

"My current address in the records will expire on 11/Sept/20l0. please note letters. might be delayed for any reason, hence letters sent in september/20l0 has probability for not to be delivered, if any.

...

New Semester Address change:

PO Box 56208

philadelphia, PA 19130

USA

please note that I am away from Edinburgh starting from 10/8/2010, despite my current address is valid till Early sept. The provided address will be valid for the coming 12 months for contact. My email is: ... as an easy and rapid way of communication.

I will be on and off to Edinburgh for short time after the new academic year begins in a temporary address, I can provide if requested (still have not made this arrangements).

Thanks for the help and please let me know if you require further details to update my information!" (Number 7/261 of process)

[26] By email, dated 10 April 2011, the petitioner's husband wrote to the principal in these terms:

"My wife was a student at University of Edinburgh from October 2005 when she was suspended in June 2009. In September 2009, she was excluded from her studies for the academic year 2010/2011.

...

Although the September 2009 letter clearly indicated that exclusion was for the academic year that had just commenced, no university position was indicated for the academic year which is now just ending. I am writing this as this situation has so far affected our live as a family considerably and I want this finished and sorted as soon as possible.

Therefore, I request of you to reconsider the current situation in regards to my wife re-enrolment in order for her to be able to finish her studies before the end of the current academic year." (Number 6/89 of process)

It will be appreciated that the petitioner's husband erred when he referred to the exclusion as being for the academic year 2010/2011. As I have noted in paragraph [10] above, the petitioner was excluded for the academic year 2009/2010.

[27] The university replied to the petitioner's husband by letter, dated 21 April 2011, and requested further information by 16 May. The petitioner responded by letter, dated 5 May 2011, in which she wrote:

"... I have already accepted the University's offer on re-enrolment as conveyed in January and February 2010 University's letters, while keeping the right to reject any condition that cannot be justified by the University own regulations." (Number 7/279 of process)

The university wrote again to the petitioner on 26 May 2011, informing her that it was not able to accept her request to re-enrol. (Number 7/281 of process) On 1 June 2011, the petitioner emailed the principal, requesting that he review the decision to exclude her from studies, which had been conveyed to her on 11 September 2009. (Number 7/282 of process) As printed out for lodging in court, the email extends to seven A4 pages and, in it, the petitioner complains that the suspension letter of 25 June 2009 "provided unfounded reasons to suspend me from my studies". The principal's response was to adhere to the position as expressed in the letter of 26 May. (Number 7/283 of process)

[28] On 11 July 2011, the Lord Ordinary, having considered her petition for judicial review, granted the petitioner leave to proceed without a duly authorised signature in terms of Rule of Court 4.2(5) and, on 2 August, first orders were granted. (Record, Page 95)

[29] The petitioner has produced a printout of emails, dated 17 and 30 December 2010, and 1 February, 5 April, and 25 July 2011 to demonstrate that five solicitors, each from a different organisation, declined to assist her in pursuing a case against the university. (Number 6/14 of process) The petitioner's final attempt, an email dated 23 July 2011, contains the following passage:

I could not find any legal assitance to help me in conducting Judicial review for exclsuion from studies and rejection of re-enrollment for PhD degree at the University of Edinburgh, while I was just 8 weeks far from obtaining my PhD degree. My future is being destroyed. I have been granted a leave to proceede as party litigant, but very afraid to proceede alone with no knowledge in law. I have tried all possible resources to find legal help, I could not find who can accept my case as most said the educational matters are not relevant to them and suggested yourself for advice. However, I know you office deals with school matters in general. I contacted you as the source of only possible help in such situaiton I can find after I decided to act as party litigant. Should you have any interest to help me I can send you my granted petition for your review, if this can be of any interest to you. My pleas-in-law include section 14 of the Human Right Act, 1998 and I have knowledge that you have interest in this area of law, I hope to hear from your in the very near future."

Delay

[30] Against that background, I turn now to consider each of the elements of the mora plea. In Donnelly Petr [2013] CSOH 106, I expressed the following view, to which I adhere:

"As I have noted above, under reference to Portobello Park, "mora simply means delay beyond a reasonable time." What is a reasonable time is a question of fact to be determined on a consideration of the relevant circumstances of the particular case. In my view, given that the question whether or not there has been acquiescence, which is also a question of fact to be inferred from the inaction and silence of the person complaining of a wrong, is to be determined objectively, the same approach should be taken to the question whether a given delay was or was not reasonable in the circumstances. Whether the delay founded on by the respondents in this case was reasonable, therefore, falls to be determined by considering how the matter would have appeared to a reasonable person observing the petitioner's conduct, knowing all of the circumstances of which the petitioner knew or ought to have known when acting in the way that he did. In my opinion, that approach is consistent with the passage in the opinion of Lord Nimmo Smith in Singh v Secretary of State for the Home Department 2000 SLT 533; 2000 SCLR 655, which is cited with apparent approval in Somerville, in which his Lordship expresses the view that the party alleging a wrong may be able to rebut an inference of acquiescence by putting forward an explanation for a given delay."

[31] As is recorded in paragraph [13] of this opinion, Miss O'Brien submitted that the petition stems from a suspension which occurred on 25 June 2009 and that proceedings were not raised until over two years later. It is clear, however, that, for a number of months after receipt of the suspension letter, the petitioner engaged with the university in an attempt to persuade it to allow her to continue her studies. It was in that context that Professor Waterhouse wrote to the petitioner on 3 May 2010, expressing the hope that she would consider resuming work on her thesis so that she could complete it. As late as July of that year, the university represented to Ian Murray MP that it was "willing to do all that is necessary to support Dr Abdel-Rahman at the end of her studies to finish her thesis" and that it would "re-register Dr Abdel-Rahman as a student if we can reach agreement on the basis for doing so". In my judgment, it cannot be said that the delay in raising proceedings up until then was unreasonable. The petitioner had instructed a firm of solicitors to make representations to the university in November 2009. (Number 6/45 of process) She had sought legal expenses cover, unsuccessfully, in July 2010. In its written submissions, the university records, and does not challenge, the petitioner's assertion that, because of the amount of her husband's salary, she did not qualify for legal aid. I reject the university's contention that her ineligibility for legal aid "is not an excuse for unreasonable delay - rather it is evidence of her choice about the deployment of family resources". In my opinion, it is a relevant circumstance that may properly be taken into account when determining whether the delay in raising proceedings was or was not reasonable. In all of the circumstances as known to the petitioner, to paraphrase what was said by the extra division in Portobello Park, it is understandable that the petitioner would attempt to achieve an extra judicial solution. It was not unreasonable of her to do so. (Portobello Park page 1143C)

[32] Between July and September 2010, the petitioner was engaged in attempting to ingather information about the circumstances surrounding her suspension, and the handling of her complaint. Her data subject request was not responded to by the university until 30 September. (Number 7/272 of process) After that material was made available to her, the petitioner went about trying to enlist the services of a solicitor. The first refusal email that she received was dated 17 December after what its author described as "the delay in coming back" to her, for which he apologised. I note that, after the fourth refusal to assist, which was received on Tuesday 5 April 2011, the petitioner's husband wrote the email to the university, which is referred to in paragraph [26] above, on the following Sunday. The university's letter of refusal to re-enrol the petitioner was written on 26 May. The principal's final email, confirming that the petitioner would not be enrolled, was sent on 6 June. The petitioner was granted leave to proceed as a party litigant on 11 July, by which time the petition had been drafted. Once again, I am of the view that, looking at the whole circumstances as known to the petitioner, it cannot be said that she unreasonably delayed in raising proceedings between July 2010 and 2 August 2011. She was continuing in her efforts to persuade the university to reconsider its position, while ingathering information and attempting to enlist professional assistance to enable her to litigate. That all took time. In the whole circumstances, in my opinion, and applying the test set out in Portobello Park, the passage of time between 2 February 2010 (the "final time limited conditional offer") and 2 August 2011 did not constitute an unreasonable delay.

Taciturnity

[33] In my opinion, the university's submissions in support of its contention that the petitioner has "behaved with taciturnity" do not address the requirements imposed by the relevant test. Taciturnity is a failure to speak out in assertion of a right or claim, when a reasonable person in the claimant's position would be expected to do so. (Portobello Park) As I have noted in paragraph [14] of this opinion, however, Miss O'Brien opens her written contentions on taciturnity with these words: "The petitioner has failed to assert her rights due to her failure to bring court proceedings until August 2011". She appears, therefore to regard what she describes as the petitioner's "failure to litigate" as constituting "a failure to speak out". She cites instances of the petitioner's demonstrating an awareness that she might need to raise an action, for example: "The petitioner's awareness of the need to bring legal proceedings is shown by her claim under legal expenses insurance prior to July 2010 (6/42)". Miss O'Brien closes her submission on the point with the words: "Yet she did not commence an action and behaved with taciturnity."

[34] Applying what, in my view, is the correct test as set out in paragraph [33], I have no hesitation in holding that the university has failed to establish the requisite taciturnity on the part of the petitioner. Indeed, she might properly be regarded as having been dogged in the assertion of what she perceived to be her rights and what is now her claim. She challenged the initial suspension on 27 June 2009 (in an eight page letter addressed to the principal headed "RE: Written representation on alleged urgent suspension") and again by letter, dated 29 June (a six page letter to the principal, "RE: Serious unfounded allegations by the University Secretary and update on the alleged suspension"). (Numbers 7/137 and 7/138 of process) On 1 July, she wrote to the principal protesting against the procedural aspects of her suspension. (Number 7/142 of process) Thereafter, as can be seen from my account of the correspondence emanating from the petitioner, she made frequent challenges, first to the decision to suspend her and then, in addition, to the decision to prevent her re-enrolment. What follows is a list of a selection of the communications sent by the petitioner to the university during 2009 in which, in my judgment, she asserted her rights:

6 July 2009 to the head of the College of Medicine; (Number 7/146 of process);

27 July 2009 to the principal; (Number 7/154A of process);

7 August 2009 to the principal: "I have made a complaint about all what I have brought to your attention to the First Minister dated August/6/2009. I want to exercise my right to complain about the injustice I'm experiencing."; (Number 7/159 of process);

26 August 2009 to the principal: "This alleged suspension is inappropriate for two main reasons: ..."; (Number 7/162 of process, Appendix);

31 August 2009 to the principal; (Number 7/165 of process);

11 September 2009 to the principal: "... I reiterate my request to kindly revise the whole procedure of this alleged suspension and current state of my registration to provide me with a detailed report on basis of these events in accordance to the University established regulations."; (Number 7/167 of process);

25 September 2009 to the Vice Principal Planning, Resources and Research Policy: "I am challenging this inappropriate suspension on the following grounds ..."; (Number 7/173 of process);

1 October 2009 to the Vice Principal Planning, Resources and Research Policy: "I am calling for section 5.1.9 of the student's code of practice to have the Principal's decision to exclude me this academic year reviewed I am elaborating the University of Edinburgh court. I'd appreciate your detailed review to my case as an attending court member within five days. ... It remains that I have the right to challenge all the unfair decisions that are being made regarding my case."; (Number 7/177 of process);

5 October 2009 to the principal; (Number 7/178 of process);

17 October 2009 to Professor Haywood: "I am protesting in front of the Old College Monday 19/Oct./2009 for the University of Edinburgh Court to make a fair conclusion to the evolving Edinburgh-Gate. My requests in this protest are very fair and they are: 1-to return me to my studies immediately with no delay ..."; (Number 7/186 of process);

17 November 2009 to Professor van Heyningen, a member of the university court: "I am elaborating my defence for the sanctions the University has imposed against me in this letter and request your support to alleviate this unfair situation which lack any grounds from the established regulations. I will deal with the two letters of suspension and decline of registration as sent earlier to yourself." Reference is then made to, among other things, the letter of 25 June 2009; (Number 7/188 of process);

4 December 2009 to "The Right Honourable Lord Provost George Grubb University of Edinburgh Court Member"; (Number 7/195 of process);

8 December 2009 to the university secretary; (Number 7/197 of process);

8 December 2009 to the Rt Hon Lord Cameron of Lochbroom; (Number 7/198 of process);

13 December 2009 to the "Principal, Rector, Court members, Curators of Patronage, and Vice Principles of the University of Edinburgh"; (Number 7/204 of process);

16 December 2009 to the same addressees as number 7/204 of process: requesting an "urgent review for my case under section 5.1.8 (of the disciplinary code)"; (Number 7/207 of process);

20 December 2009 to the "Principal, Rector, Court members, Curators of Patronage, Vice-Principles of the University of Edinburgh": "I request urgent review of the exclusion of studies before the University closes its doors for the Holidays. This as I am requested a review since 11.9.2009 and never offered one"; (Number 7/210 of process).

[35] As I have noted in my discussion of the delay issue, at the beginning of 2010 the parties entered into a dialogue in an attempt to find a negotiated resolution to the dispute. The petitioner did not, however, abandon her challenge both to the legitimacy of her suspension and the decision to prevent her re-enrolment. In her letter of 31 January 2010 to the principal, for example, she says this: "I have been advised that the University cannot ignore emails from me with requests to consider my case from the legal point of view." In her letter to Professor Waterhouse of 2 March 2010, the petitioner wrote:

"I am very cooperative with the University to achieve a local resolution to the current situation and definitely to accomplish my PhD degree which was in a very advanced stage and the University has decided to exclude me from 2009/2010 academic year registration on 11/9/2009. There is a general concern that the University is unreasonably reluctant in progressing matters forward which has direct impact on my future and career perspectives. In addition to the University offers of re-enrolment the University repeatedly has been enforcing conditions with no clear grounds from the University established regulations or has been substantiated by other legal basis." (Number 7/230 of process)

[36] In an email, dated 29 May 2010 and addressed to Professor van Heyningen, the petitioner wrote the following:

"This e-mail is part of my cyber protest actions which has a sole aim to resume my studies while enjoying the same merits and benefits other PhD students enjoy. Please support this basic right as it is unacceptable for a PhD student to be left out of her studies for a year without consideration from the University of Edinburgh of such grieving situation." (Number 7/247 of process)

[37] Among the productions lodged by the university are emails written by the petitioner in June, July and August 2010, apparently in furtherance of her "cyber protest". (Numbers 7/250, 7/251, 7/252, 7/253, 7/254, 7/259 and 7/263 of process) I have already recorded that, between 14 July and 3 September, the petitioner was engaged in making data subject access requests of the university in support of her challenge to the decisions to suspend her and to prevent her re-enrolment, all as mediated through her official complaint of December 2008. In October and November 2010, she exchanged correspondence with the university about her data subject access request, and about a Freedom of Information (Scotland) Act request that she had made, expressing dissatisfaction with the university's responses. (Numbers 7/274, 7/275 and 7/276 of process) It is clear, in my judgment, that these requests flowed from the petitioner's belief that she had suffered an injustice in having been suspended and then prevented from re-enrolling.

[38] I have already mentioned the email of 21 April 2011, written to the university by the petitioner's husband on her behalf, the petitioner 's letter of 6 May 2011, in response to the university's request that she give reasons in support of her request to be reinstated and her further letter, dated 1 June 2011, to the principal. Each of those conveys the petitioner's disagreement with the university's various decisions.

[39] It can be seen that no decision of the university which affected the petitioner was met with silence. On every occasion when a decision that is now the subject of challenge was communicated to her, she responded immediately and disputed it. Moreover, as I have indicated, she pressed her challenges even where there had been no communication from the university which called for a response. It cannot be said, therefore, that, at any time, the petitioner failed to speak out when a reasonable person in her position would have been expected to speak out

Acquiescence

[40] I have set out the university's written submission on acquiescence in paragraph [15] of this opinion. It is convenient to repeat it here:

"By failing to challenge the decisions earlier, there has been tacit assent. ... Her acquiescence is demonstrated by her failure to challenge the absence of an offer to re-enrol for the academic year 2010/2011. Instead, on 7 August 2010 she intimated a change of address to Philadelphia, USA for the following 12 months (7/261). The interests of good administration in the University require to be taken into account in considering acquiescence. Challenging decisions a long time after they are made is not conducive to good administration. Evidence has been lost as the student and academic population of the University is not fixed: some students working in the same school who were distressed by the petitioner's behaviour will have completed their studies; the University Secretary dealing with much of the case has retired; and some documents have been lost e.g. the written authorisation of the University Secretary of 24 July referred to in 7/141."

[41] The petitioner challenged the decision to suspend her on 27 June 2009, 2 days after it was intimated to her, and she protested the decision to prevent her re-enrolment on the same day as the university communicated it to her. In these circumstances, the university's assertion that the petitioner failed to challenge its decisions "earlier" must be taken to mean that she failed to raise proceedings earlier. In paragraph [12], I have quoted from the opinion of the Extra Division in Portobello Park that: "Acquiescence requires to be inferred from the petitioners' inaction and silence." (My emphasis) Since I have held that the university has failed to establish either mora or taciturnity, it follows that no inference of acquiescence may properly be drawn.

[42] Further, and in any event, I am of opinion that when the petitioner's intimation of change of address is seen in context, it does not yield the inference which the university contends should be drawn from it. As I have recorded earlier in this opinion, completion of the petitioner's work on her PhD was expected to take only six to eight weeks. "The key work remaining to complete the thesis (was) to write the discussion chapter" an outline of which the petitioner had already drafted. Completion of her work could be achieved away from Edinburgh "with remote access to Library facilities". (Letter, dated 20 January 2010, from Professor Waterhouse to the petitioner, number 7/218 of process) There was no reason known to the petitioner or the university, therefore, why she could not relocate to the United States for the following year and also complete her PhD, either by working remotely, or by returning to Edinburgh for the short time required. (I was advised that, in the event, there was no relocation.) The fact that she was intimating a change of address indicates that she considered that her association with the university was to continue for the "New Semester", particularly when she was describing her programme of study as "Ph.D. in public health" in the "Clinical Science & Community Health" school. Moreover, shortly after the petitioner intimated her change of address, she could be seen to continue her cyber protest, and to press her data subject request. (Numbers 7/262, 7/263 and 7/270) Applying the test approved in Portobello Park, no reasonable person observing the petitioners' conduct in intimating her change of address, knowing of all the circumstances of which she knew when she did so, would have inferred that she was assenting to those decisions of which she complains in this process.

[43] Finally, on the acquiescence point, I reject the university's contention that the interests of good administration in the university require to be taken into account in considering acquiescence. As the university recognises, acquiescence is assent by a claimant to what is later challenged and, as I have said, is to be inferred from what the claimant has done or failed to do. The university seems to be arguing that it has been prejudiced by the passage of time prior to the raising of proceedings, but I am not persuaded that there has been any such prejudice. It is no doubt true that some students that the university claims to have been distressed by the alleged actings of the petitioner have completed their studies, but it is not suggested that any such student is now untraceable. It is clear from the material with which I have been provided that the university secretary dealing with much of the case has now retired, but it is not said that he could not, if necessary, provide a statement or give evidence. The only document that the university specifies as having been lost is the delegation appointment of 24 June 2009 (erroneously referred to by the university in its written submissions as dated 24 July). There is no averment disclosing by what date it was discovered to have been lost, and, therefore, no basis on which it could be concluded that, if the petitioner had raised proceedings sooner, it would not have been lost. In any event, in my opinion, nothing turns on its unavailability.

Decision on the mora plea

[44] For the foregoing reasons, I shall repel the university's second plea-in-law.

The HRA time bar plea

[45] The university's third plea in law is in these terms:

"Any claim competent to the petitioner in respect of breach of her Convention rights being terminated by passage of time in terms of section 7(5) the Human Rights Act 1998, the remedies sought should be refused."

The averments in its answers which are intended to be the factual foundation for that plea read as follows:

"The petitioner's right to challenge any breaches by the respondent of Convention rights is subject to time bar as proceedings have been brought more than one year after the act complained of took place. Reference is made to section 7(5) of the Human Rights Act 1998 for its terms. The court ought not to exercise its discretion to hear the petitioner's out of time claims, as the delay is significant (the decisions which are the true substance of this action having been taken in 2009), and there is no good reason for a delay in bringing proceedings until August 2011."

The university's written submissions on the point include the following:

"It is not accepted that (the) respondent was acting as a public authority within Section 6 HRA in relation to all matters in the petition (see below), but it is convenient to address the time bar issue here as it raises similar issues to the mora plea. First orders were granted in the petition on 2 August 2011. Under Section 7(5)(a) HRA, challenges based on the Convention could only be taken in respect of acts taking place after 2 August 2010. It is clear from the dates set out above that the decisions which are the true substance of this petition were taken a considerable time before that date. The true substance of this petition concerns (1) the suspension, (2) the intimation that the University would not reregister the petitioner for the 2009/2010 academic year in the absence of appropriate medical evidence, and (3) the conditional offers to permit the petitioner to resume her studies, which date from 2009 and early 2010. All the other issues raised by the petitioner are not fresh matters, but are the consequences of these time-barred complaints. It is also not accepted that this is a case of continuing breach. The correct analysis is that there were a number of discrete and separate decisions. The fact that a decision has a lasting effect does not mean it is a continuing act (an analogy being a road traffic accident which is not a continuing act merely because it has lasting effects). Even if the suspension could be viewed as a continuing act rather than a series of separate decisions to suspend and on review not to reverse the suspension (which is not accepted), it ended when the parties' contractual relationship terminated. That relationship commenced in October 2005 and the contractual period of study initially lasted for 3 years until October 2008. De facto two authorised interruptions of studies extensions add one year and three months to that period. Had she not been suspended, this would have permitted the petitioner to re-enrol in October 2009 for her last three months, and as enrolment is for one year, her registration would have terminated at the end of June 2010 at the latest. In fact, the contractual relationship ended when the petitioner rejected the University's final offer in February 2010. (7/122, P15, 7/224, 7/231, 7/232, 7/244) The court should look at the substance of the complaints in the petition, and find that any complaints which do invoke Convention rights have time-barred under HRA.

...

The petitioner seeks to invoke the court's discretion under Section 7(5)(b) to extend the one year period. It is for the petitioner to persuade the court that its equitable jurisdiction should be exercised in her favour. In doing so, the court will examine the factors that weigh on either side of the argument."

[46] The petitioner's response to the time bar point as set out in her petition runs to 1,195 words. She addresses the matter, also, in her own written submissions. I confess to having found some of what she says not easy to follow. Rather than attempt to précis her arguments, I will deal with the thrust of them in the discussion section which follows.

Discussion on the HRA time bar plea

[47] Section 7(5) of the HRA provides as follows:

"(5) Proceedings under subsection (1)(a) must be brought before the end of-

the period of one year beginning with the date on which the act complained of took place; or

such longer period as the court or tribunal considers equitable having regard to all the circumstances,

but that is subject to any rule imposing a stricter time limit in relation to the procedure in question."

[48] In Somerville, the petitioners were serving prisoners who sought judicial review of their removal from association (referred to colloquially as "segregation") under rule 80 of the Prisons and Young Offenders Institutions (Scotland) Rules 1994. Rule 80(1) provides that the governor may order in writing that a prisoner shall be removed from association with other prisoners either generally or during any period he is engaged or taking part in a prescribed activity. Rule 80(5) provides that a prisoner who has been removed from association by virtue of an order made by the governor shall not be subject to such removal for a period in excess of 72 hours from the time of the order, except where the Scottish Ministers have granted written authority on the application of the governor. Rule 80(6) provides that an authority granted by the Scottish Ministers under rule 80(5) shall have effect for a period of one month from the expiry of the period of 72 hours but that they may, on any subsequent application by the governor, renew the authority for further periods of one month commencing from the expiry of the previous authority. The periods of segregation that were in issue extended over periods in excess of 72 hours. In each case, decisions were made by a governor that the petitioner should be removed from association, applications were made to the Scottish Ministers for authority to continue to hold the petitioner under rule 80 conditions for further periods, and written authority to do so was granted by the Scottish Ministers. A time bar point was taken against some of the petitioners by reference to section 7(5) of the HRA. On appeal to the House of Lords, Lord Mance construed that provision in this way:

"[197] ... the language of sec 7(5) appears to me clear-cut. The starting point is to identify 'the date on which the act complained of took place'. Each monthly order and authorisation constitutes for that purpose a separate act. Subject to any shorter time-limit, a segregated prisoner who complains of segregation pursuant to any such order or authorisation must do so within one year of the relevant order or authorisation under sec 7(5)(a), or ask the court to grant an 'equitable' extension under sec 7(5)(b). Similarly, so far as the complaint is that during any monthly period the prison governor failed to exercise his power under r 80(7) to cancel or vary that complaint can under sec 7(5)(a) only relate to any such failure occurring within the year prior to the bringing of proceedings, or otherwise the court's discretion must be invoked under sec 7(5)(b). No doubt, the court's equitable discretion would be exercised to take account of the fact of continuing segregation (although segregation does not equate with absence of access to legal assistance) as well as the undesirability of confining attention to only part of an overall picture. The fact of any prior segregation (even if the time-limit did prevent it being the subject of any claim) would also be relevant when considering the justification for any subsequent segregation in relation to which any complaint was not time-barred." (Somerville v Scottish Ministers 2008 SC (HL) 45)

[49] The decision to suspend the petitioner was taken by the university secretary under what he represented were the provisions of section 5.1.7 of the university's code. (Number 7/38 of process) Section 5 falls under part II of the code which is headed "Procedure". Section 4, which is the first section in part II, concerns "Summary Cases". Section 5 is entitled "Serious Cases" and section 5.1 is headed "Before Discipline Committee". Section 5.1.1, which provides that, where the gravity of an alleged misconduct appears to warrant it, or where for any other reason he or she considers it desirable, an "Authorised Officer" shall refer the case to the principal. Nothing turns on the definition of authorised officer for the purposes of this opinion. When the case is referred, the principal, or his or her deputy, may (a) authorise proceedings to be brought before the discipline committee, (b) request the authorised officer to deal with the case or (c) where the student elects to have his or her case heard before the discipline committee, the authorised officer shall similarly report the matter to the principal and the principal shall decide that no proceedings shall be taken or shall authorise proceedings to be brought before the discipline committee. None of these powers was exercised in this case nor is it averred by the university that it was ever intended that any of them would be. The power to suspend a student who is the subject of a complaint of misconduct is granted to the principal or his or her deputy "pending the disciplinary hearing". (Section 5.1.2) Suspension involves a total prohibition on attendance at or access to the university and on any participation in university activities. (Section 5.1.2(a)) Section 5.1.7 makes provision for "cases of great urgency". It is one of the petitioner's contentions that, since it was not intended that there should be a disciplinary hearing, her suspension cannot be justified as having been imposed pending a disciplinary hearing and that, therefore, the university had no power to suspend her under the provisions of the code. If that is correct and, in any event, so runs the argument, the university had no power under the code to make the lifting of the suspension conditional upon the petitioner's providing medical evidence that she was able to resume her studies without disrupting the work of others. Rather, she argues, the principal or his deputy had power in terms to do only what was provided for in section 5.1.1.

[50] The principal's decision to decline to register the petitioner as a student in the academic year which had just commenced, which was communicated to her by letter of 11 September 2009, did not bear to have been taken in accordance with the provisions of the code. Indeed, the university's position in these proceedings is that the decision was not taken under the code. In the 11 September letter, the petitioner was told this: "If you are willing to cooperate with the university in the manner set out above, [i.e. by producing medical evidence of fitness] it may then be possible to reconsider this decision". The university secretary explained in his letter to the petitioner of 7 October 2009 that she had not been registered as a student in that academic year "because (she was) suspended from study". In my view, it is clear that the decision not to register the petitioner in the year 2009/2010 was separate from, but dependent upon, the decision to suspend her.

[51] In its answers to the petition, the university avers that the monthly reviews carried out by the university secretary stopped after March 2010. It gives the following explanation:

"By that time the Vice Principal had made proposals to move matters forward with the petitioner, as detailed in Answer 12. Thereafter the Petitioner had no legitimate expectation that she could be re-enrolled for the academic year 2010-2011." (Answer 2)

The proposals referred to in answer 12 are those made by Professor Waterhouse in January and February 2010. In her written submissions, the petitioner contends that, in terms of the code, her suspension ought to have been reviewed every four weeks. After March 2010, the petitioner argues, each failure to review "constituted a new act that is complained about". In making that submission, she relies on the words of Lord Mance in Somerville, at paragraph [197] which are set out at paragraph [48] of this opinion. In order to adjudicate on that issue, it would be necessary for me to determine the meaning and effect of the review provisions in section 5 of the code. I was not addressed by either party on that question, and I decline to do so in the absence of detailed argument. In any event, for reasons that will emerge, it is not necessary to do so for the purposes of the decisions that I have to make at this stage.

[52] In his letter, dated 10 February 2010, the university secretary encouraged the petitioner to reconsider the proposals that had been put to her by Professor Waterhouse, adding that they would "not be of practical relevance indefinitely, and certainly will not be available beyond the end of the present academic year". It is on these words, which were repeated in the university secretary's letter of 15 March 2010, that Miss O'Brien founds in her submission that the proposals were time limited, and that they would not remain open to the petitioner to accept beyond the end of the current academic year in June 2010.

[53] In fact, however, in his letter of 20 July 2010 to Ian Murray MP, parts of which are quoted at paragraph [22] of this opinion, the university secretary said in terms that the university would re-register Dr Abdel-Rahman, if agreement could be reached on the basis for doing so. That letter was written to Mr Murray in the expectation that it might be communicated to the petitioner. (Number 7/256 of process) It is clear from its terms, in my view, that the university extended the time for acceptance of Professor Waterhouse's proposals to beyond the end of the academic year 2009/2010. The university's willingness to re-register the petitioner, if the basis for doing so could be agreed, was communicated in the same words in an email of the same date, written by the university secretary to the Cultural Counsellor and Director at the Egyptian embassy in London. By the time when the letter and email of 20 July were written, re-registration of the petitioner could no longer take place in the academic year 2009/2010. Consequently, if the petitioner were to be re-enrolled, that could only happen in the academic year 2010/2011 or thereafter.

[54] The university's response to the petitioner's April/May 2011 request that she be re-enrolled contained the following passage:

"In your, email, you state that you accepted previously the University's offer to re-enrol in order to complete work towards your PhD. However, you did not accept the terms of the offer as presented in Vice Principal Lorraine Waterhouse's letter to you of 20 January 2010. You were informed that you had not accepted the offer in letters from University Secretary Melvyn Cornish dated 10 February 2010 and 15 March 2010 and in three letters from VP Waterhouse dated 3 May 2010. The two letters from Mr Cornish and one of the 3 May 2010 letters from VP Waterhouse also informed you that the offer was time limited and available only until June 2010. Because you did not accept the terms of the offer as presented to you, the offer expired." (Letter of 26 May 2011, number 7/281 of process)

[55] In my opinion, the assertion, which is made in that letter and in the university's written submissions, that the university's offer to re-enrol the petitioner expired in June 2010 is inconsistent with its position as reported to Mr Murray MP and to the Egyptian embassy. Further, as can be seen from Professor Waterhouse's letter of 20 January 2010, taking into account approved interruptions in 2008 and 2009 and her suspension, the petitioner had expended 30 months on her PhD work. It is not suggested by the university that the suspension was ever lifted, so that, on the reasoning of Professor Waterhouse, six months of her allocated 36 months remained within which her studies could have been completed, when she sought re-enrolment in April 2011.

[56] I am unable at this stage to express a view on the university's contention that the petitioner's suspension ended "when the petitioner rejected the university's final offer in February 2010" because both the university's entitlement to suspend the petitioner under the provisions of the code and to make the lifting of a section 5.1.7 suspension conditional upon her providing medical evidence are substantive issues in this case on which I have not been addressed. That contention, however, sits oddly with university's averment that the monthly reviews stopped "after March" 2010.

[57] In the foregoing circumstances, I am of opinion that the reason for the decision not to allow the petitioner to re-enrol for the academic year 2010/2011 (Professor Waterhouse's offer was time limited and had expired) was different in substance from the decision not to allow her to register in the year 2009/2010 (because she was suspended from her studies). The 2011 decision was in respect of a new application for enrolment and, although the outcome was the same as it was before, it was taken for different reasons. To borrow the words of the university in their submission, it was a fresh matter based on a different issue. If the 2011 decision or the circumstances in which it was taken involved a breach of the petitioner's convention rights, therefore, her right to bring proceedings in respect of that decision is not time barred.

[58] The question that then arises for determination is whether or not the court's equitable jurisdiction should be exercised to extend the time for bringing proceedings in respect of acts or failures to act which were completed before 3 August 2010. I propose to approach the determination of that question "by an open ended examination of the factors that weigh on either side of the argument that this is a case in which the discretion of the court should be exercised to extend the time under section 7(5)(b)". (A v Essex County Council [2011] 1 AC 280 ("A v Essex County Council"), per Lord Kerr of Tonaghmore JSC, at paragraph [167]) In doing so, I am conscious that "'(e)quitable' must mean fair to each side". (A v Essex County Council, per Baroness Hale at paragraph [114])

[59] The petitioner's position can be simply put. The section 7(5) time bar provision is "purely procedural" and an unlawful act remains unlawful even after the twelve month time limit expires. (See Somerville, per Lord Rodger of Earlsferry, paragraph [112]) If the court's equitable jurisdiction is not exercised in her favour, she will, by operation of the passage of time for which she cannot properly be blamed, be deprived of human rights remedies to which she became entitled as a result of the university's unlawful acts. Against that, the university relies in its written submissions on five factors which, it argues, tip the balance in favour of refusing to extend the time limit. (Para 12) The first is that this is a case involving a "significant delay". The petitioner took legal advice towards the end of 2009, was given a detailed analysis of the university's legal position in December 2009, and sought legal expenses cover in July 2010. (Numbers 6/42, 7/206, 7/215 and 6/42) Thus, it is argued, she was aware of the need to bring proceedings. The second factor is the prejudice that the university contends that it will suffer, as set out in the acquiescence section of its arguments on the mora plea. Thirdly, the university contends that the true reason for the petitioner's inability to complete her PhD "is her extraordinary and intransigent refusal to provide medical evidence of her fitness to study." The court is invited to take into account that, rather than bringing proceedings timeously in order to resolve matters, the petitioner elected to embark on a course of behaviour which included defaming and distressing many people. The fourth factor is an assertion that it is not an excuse for failing to commence proceedings timeously that there is a chance that a case might resolve amicably. That, says the university, is a feature of all cases. Finally, it is contended that failure to qualify on financial grounds is an indication that the potential claimant requires to fund an action from his or her own means, and is not a valid reason for ignoring time limits.

[60] In the section of this opinion in which I discuss the mora plea, I have set out the circumstances in which, and the reasons why, the petitioner did not raise proceedings until 2 August 2011. Among these are that she sought first to persuade the university to allow her to continue her studies without the need to resort to litigation. In the circumstances of this case, I reject the university's argument that it is not an excuse for failing to commence proceedings timeously that there is a chance that a case might resolve amicably. (The fourth factor) The petitioner's efforts to settle her dispute with the university before litigating is a factor that I may properly take into account in determining whether it would be equitable to extend the time for bringing proceedings. I find the following words of Baroness Hale, in dealing with a similar point in A v Essex County Council, helpful:

"Had judicial review proceedings been launched before the claimant went back to school, with a claim for damages included, there would have been no [time bar] problem. I do not think it fair to blame the claimant for not having tried to launch judicial review proceedings earlier. It is not obvious to me that the right approach to difficult problems such as this is to rush to the Administrative Court. Most people try to resolve their difficulties over access to public services by negotiation and agreement with the authorities. Very few have the knowledge or the resources to approach the Administrative Court. If all the people who were trying to persuade public authorities to comply with their legal obligations did so, the court would soon be swamped. Better by far to try and achieve a negotiated solution. Indeed, while negotiations are going on, the court may well refuse leave on the ground that the application is premature."

[61] When it appeared that the university would not be persuaded to reverse its decisions, the petitioner attempted and failed to obtain funding for a court action. (The fifth factor) I do not accept that her inability to do so counts against her. "Difficulties with funding are often regarded as a good reason to extend time unless there is real prejudice to the other side." (A v Essex County Council, per Baroness Hale of Richmond at paragraph 115) Thereafter, the petitioner tried and failed to persuade a series of solicitors to act for her. In my opinion, whether or not the time taken before proceedings were commenced may properly be characterised as "significant", it was excusable for the reasons given in the mora section. (First factor)

[62] Turning to the university's second factor, in my opinion it will not suffer material prejudice if the equitable discretion is exercised. I have already addressed its complaints of prejudice when dealing with Miss O'Brien's arguments on acquiescence, and have held them to be unfounded. Further, the decisions to suspend and not to re-enrol the petitioner lie at the heart of this application and are challenged not only on the ground that they breached one or more of her convention rights, but also on other grounds. Consequently, the circumstances giving rise to her challenge to these decisions will have to be investigated whether or not the HRA challenges go forward. Holding the petitioner's HRA challenges time barred would have little or no practical impact either on the factual matters that will need to be explored in future proceedings or on their likely length. In these circumstances, therefore, and on the assumption that the petitioner has good HRA grounds for challenge, which is the assumption that I am asked to make only for the purposes of the university's arguments, the prejudice to the petitioner in losing remedies in respect of the university's unlawful acts outweighs any prejudice to the university in allowing the HRA claims to proceed.

[63] During the course of her oral submissions, Miss O'Brien was at pains to stress that the university acted as it did in the summer of 2009 because the petitioner was mentally unwell. It is for that reason that the lifting of her suspension was said to be conditional on her providing medical evidence of her fitness to continue her studies. Whether or not the university was entitled to invoke the provisions of the code to suspend the petitioner, and to impose that condition, are issues in the case, on which I have not been addressed, and I am not prepared, for the purposes on the time bar argument, to accede to the assertion that the petitioner was unable to complete her studies because of an extraordinary and intransigent refusal to comply with a condition which, she avers, the university had no power to impose. Further, if the petitioner was mentally unwell as the university itself contends, I am not prepared to exercise my discretion against her on the basis of an assertion that she defamed and distressed people. (Third factor)

[64] I am also mindful of Lord Mance's words to the effect that, where proceedings are brought within the year in respect of the latest in a series of human rights breaches, it is to be expected that the court's equitable discretion will be exercised to allow claims to be brought in respect of earlier breaches, having regard to the fact of the continuum as well as to the undesirability of confining attention to only part of an overall picture. (Somerville paragraph [197])

[65] In the whole circumstances of this case as I have outlined them, it is, in my view, equitable to allow all of the petitioner's human rights challenges to proceed.

[66] In any event, even if I had not found that the two re-registration decisions were different in substance, I would have exercised my discretion in favour of allowing the petitioner's human rights challenges to go forward, for the other reasons I have given: in particular, that holding the petitioner's HRA challenges time barred would have little or no practical impact either on the factual matters that will need to be explored in future proceedings or on the likely length of such proceedings. In these circumstances, therefore, and on the assumption that the petitioner has good HRA grounds for challenge, which is the assumption that I am asked to make only for the purposes of the university's arguments, the prejudice to the petitioner in losing remedies in respect of the university's unlawful acts outweighs any prejudice to the university in allowing the HRA claims to proceed.

Decision on the HRA time bar point

[67] For the foregoing reasons, I shall repel the university's third plea-in-law.

Further procedure

[68] I shall put the case out by order to discuss further procedure. Parties should exchange and lodge a statement of issues for determination and proposals for further procedure, seven days before the date of the hearing.