Scottish Court of Session Decisions

EXTRA DIVISION, INNER HOUSE, COURT OF SESSION

[2015] CSIH 48

XA151/14

Lady Paton

Lord Drummond Young

Sheriff Principal Pyle

OPINION OF THE COURT

delivered by LADY PATON

in the appeal

by

GLASGOW CALEDONIAN UNIVERSITY

Pursuers and respondents;

against

LIHE LIU

Defender and appellant:

Act:  D McLean; Kennedys Scotland (for Nolens)

Alt:  K H Forrest;  Drummond Miller LLP (for W.Renfrew)

2 June 2015

[1]        Before us, it was accepted that a contract existed between the parties.  The pursuers were to provide tuition in law, namely the fast track LLB;  the defender was to pay the fees.  We do not therefore require to go into the question of what is or is not admitted on record.  We also note, at the outset, that the appellant does not rely upon the averments in Answer 2 relating to the provision of an academic adviser. 

[2]        Counsel for the appellant contended that the sheriff and the Sheriff Principal erred in holding that the defences did not disclose sufficient relevant and specific averments of a breach of contract on the part of the pursuers.  Counsel relied upon Answers 3 and 5.  No reliance was placed upon Answers 2 and 4. 

[3]        Answers 3 and 5 are in the following terms:

“Ans 3             The Pursuers failed to deliver the services.  Mr Tom McDonnell, a lecturer, half of his time at lectures would be cracking jokes, nothing close to the contents and standards of a degree course that the Defender expected from the Pursuers.  When the Defender raised the issues with the Pursuers, Mr McDonnell abused and shouted at him (on more than one occasion).  On 1 July 2009, Mr McDonnell shouted at the Defender ‘there’s going to be trouble’ for him.  Audio evidence will be provided, if necessary.  On 24 August 2009, Mr McDonnell wrote:  ‘I will present evidence from sources outside the University that this student has an unfortunate history of making false and vexatious claims.  This student has engaged in a vicious attack on my professional and personal integrity, and this is something which I cannot allow to pass unchallenged.’  Mr McDonnell deliberately marked the Defender down on his examination papers of Criminal Law and Evidence.  It was breach of contract on the part of the Pursuers.

Ans 5              The Pursuers would not supply a reference of the Defender’s status at the Pursuers institution.  When the Defender asked the Pursuers to provide reference for enrolling at the Law Society’s training programme.  The Pursuers attempted to prevent the Defender from obtaining Entrance Certificate.  The actions and/or inaction of the Pursuers delayed the Defender’s progress in obtaining the Entrance Certificate.  The actions and/or inaction of the Pursuers delayed the Defender’s progress in obtaining the Entrance Certificate and entering into training contract.  The Pursuers, as a public education body and a contractual party with the Defender (should the Pursuers insist upon), failed to perform the contract.  The Pursuers failed its duty of care in terms of pastoral and academic duties to the Defender.”

[4]        Thus the averments relied upon by the appellant relate to one of the lecturers (Mr McDonnell) spending half of his time at lectures cracking jokes.  Further, Mr McDonnell’s lectures are averred not to come “close to the contents and standards of a degree course that the defender expected from the pursuers”.  The defender also relies upon an incident of an angry exchange between the defender and that lecturer taking place on 1 July 2009.  There is, further, an averment that Mr McDonnell deliberately marked down the defender in his examination papers of criminal law and evidence.  There is an averment that the pursuers failed to provide a reference for the defender, all as set out in Answer 5.  There are averments that there was an attempt by the pursuers to prevent the defender from obtaining an entrance certificate, or at least that there were actions and/or inaction on their part which resulted in delay in the entrance certificate being obtained. 

[5]        We deal with each of these allegations, not necessarily in the order in which they appear in the pleadings. 

[6]        Allegations about the deliberate marking down of a student, or attempts to prevent (or delays occurring in) that student obtaining his entrance certificate, are very serious matters.  These are matters which, in the academic world, would have grave repercussions.  Accordingly, careful and full specification would be required in order that fair notice could be given to the university in preparation for the proof.  There is no such specification. 

[7]        In relation to the angry exchange which took place on 1 July 2009, this is an exchange with one lecturer out of several in the course of a two year degree involving many subjects and many lecturers.  In our view, that one incident on its own is quite insufficient and irrelevant to constitute a breach of contract on the part of the pursuers. 

[8]        Turning to the failure to provide a reference, there is no averment relating to the basis upon which a reference had to be provided by any particular lecturer.  The averments relating to failure to provide a reference are therefore, in our opinion, inspecific and irrelevant.

[9]        In relation to the second sentence of Answer 3, i.e. the averment about one lecturer spending half of his time at lectures cracking jokes, in our opinion, that is insufficient to found a claim of breach of contract in the delivery of a whole university course. 

[10]      Finally we turn to the averment that “nothing close to the contents and standards of a degree course that the defender expected from the pursuers” was delivered.  That averment, in the context of the academic world, is a serious allegation and would, in our opinion, require careful and thorough specification to disclose in what way the course, or that particular subject in the course, failed to come up to the contents and standards of a degree course such that either the defender (or indeed anyone in legal academe) would deem it inadequate, and in what respect.  So averments relating, for example, to the content of the syllabus, proposed course, or outline of lectures or seminars, as compared with the tuition given, would be required to support such a serious allegation.  As with previous matters, there is no fair notice given in the pleadings. 

[11]      In the result, having carefully considered the submissions made to us and the pleadings, we are not persuaded that either the sheriff or the Sheriff Principal erred in their conclusions.  We refuse the appeal to this court.