HEARING DATE 20 JUNE 1997 (Transcript: Smith Bernal)
University - Natural justice - Fairness of reconsideration of matters by same assessment board - Academic judgments - Internal university procedures - Judicial review - Relief which court can grant
COUNSEL
The Applicant appeared in person but was represented by her sister Dr B Hayes; C Lewis for the Respondent
PANEL: COLLINS J
JUDGMENT BY COLLINS J
The applicant, Michelle Hayes, obtained a degree in science. She wanted and still wants to be a pharmacist. To achieve this she needed a degree in pharmacy and so in 1991 enrolled in the School of Pharmacy at the Liverpool John Moores University (the University) with a view to obtaining a BSc in Pharmacy with Honours. This would give her entry to the Royal Pharmaceutical Society to enable her to pursue her chosen career.
Unfortunately, things went badly wrong. Serious problems arose at the end of the second year and, because of poor performance in her examinations, she was failed and was informed that she could not go on to her final year. She challenged this decision with the help of solicitors. In due course, the University accepted that there were substantial mitigating circumstances and that serious errors had been made in dealing with her. By then, her health had been affected and in October 1993 her General Practitioner wrote to the University a letter stating that she was suffering physically because of stress. Her illness took the form of gastro-enteric disorders which continued thereafter. All was due, it seems, to stress resulting from her continuing difficulties with the University.
When she appeared before me, she was in person. She had, she said, already spent some £21,000 in legal fees and the money had run out. She was too ill to represent herself and I was asked to allow her sister, Dr Breda Hayes, to present her case on her behalf. With reluctance, I permitted this, recognising that only in exceptional circumstances should a court allow anyone other than a professionally qualified advocate to represent a party. Dr Hayes herself was not well during the latter part of the hearing and was accordingly concerned that her sister's case had not been adequately presented. I was able to reassure her on this point. The application had been entered by counsel who had drafted re- amended grounds and had lodged a skeleton argument for the purpose of obtaining leave to move. Dr Hayes had herself lodged an extensive skeleton argument before the hearing. I am satisfied that no arguable point has been missed. Indeed, many unarguable points have been taken, but Dr Hayes should not take all the blame for this since counsel was responsible for putting them forward in the first place. I am satisfied that the applicant has not been prejudiced by the representation afforded to her or by her sister's illness.
The reconsideration whether the applicant should be permitted to sit her final year took time and it was not until 14 December 1993 that final agreement was reached through the parties' respective solicitors. One term, or semester, had already passed. So it was agreed that she should have a special year for her finals running from January to December 1994.
There was an inauspicious start. It seems that rumours had been circulating among the student body about the reason for the applicant's reinstatement which reflected upon the marking of the second year papers and which were giving rise to a concern that other second year students might have been given inaccurate marks. The University was understandably concerned to quash those rumours. Accordingly, when the director of the School of Pharmacy, Professor Rubinstein, addressed the third year students (including the applicant, who was just starting her year) at the beginning of the term in January 1994, he said:-
"Following a full review of an individual case the School has allowed the benefit of doubt to go to a student who did not pass all the necessary examinations at the end of the second year and we have allowed that student to join the third year work.The School wants to make it clear that the student has been reinstated because of administrative errors rather than any irregularities of an academic nature.
All students should have full confidence in the marks that they achieved in the second year."
The applicant was very upset by these remarks. Apart from anything else, they were not in her view accurate since there had been errors made in the marking. It has not helped the situation that she has since discovered that Dr Elliott, her tutor, was responsible with Professor Rubinstein for drafting them. She regarded the remarks as humiliating and says that her health was affected by them. It may properly be said that she overreacted but it was known that she was already in poor health and had complained that previous conduct by the University had led to her health difficulties. It seems to me that the manner in which what the University regarded as a problem was dealt with was certainly insensitive: sadly, it soured the relationship with the applicant so that thereafter she was unable to believe that she was being fairly treated. Furthermore, she was, she says, unable to give of her best and failed to do herself justice in course work or, more particularly, in examinations.
There are separate regulations (which to a large extent are in virtually identical terms) governing the University and the School of Pharmacy within it. Generally speaking, all the Regulations seem to me to be somewhat more complicated than is desirable or necessary and this has led the applicant to make submissions which, after receiving guidance from Mr Lewis, who appeared for the University, I am satisfied are based on misunderstandings of the Regulations. I do not entirely blame the applicant or her sister for some of the misunderstandings: their legal advisors have made the same mistakes.
Before I go further, I should refer to the scheme set up under the Regulations for deciding on the award of degrees and on how appeals against decisions can be pursued. Assessment Boards are established for each programme of study available at the University. There is a two tier structure comprising Modular Assessment Boards and Programme Assessment Boards. Save that the latter include two members of staff from outside the particular programme of study (in this case pharmacy), the membership is identical and they usually sit at the same time and are referred to as PAB/MABs. Indeed, many of their responsibilities are shared. PAB/MABs recommend whether each student has passed and, if so, what degree he or she should be awarded. The recommendations are made to the Academic Board, which makes the actual award, but in reality PAB/MABs are the vitally important bodies in the process of deciding on degrees. They also, as MABs, will decide whether mitigating circumstances apply in any particular case so that, where it can be established that a student's performance has been "unduly influenced by illness, unavoidable absence or any other verifiable circumstances", module marks may be recorded which "reflect that student's demonstrated ability in achieving the learning outcomes of a module." (University Regulations 4.15.1 and 10.1). This somewhat convoluted language means that a student's marks in a particular module may be increased if it is felt he has underachieved because of illness or some other circumstances which affected his performance.
What is required of a student to achieve an honours degree is set out in reg 7 of the Pharmacy School Regulations, most of which is repeated in virtually identical terms in reg 7 of the University Regulations. Since the Pharmacy School Regulations covered the course the applicant was taking, it is convenient to refer to them.
The relevant regulations are as follows:-
7.2 Module Pass marks and Eligibility for Compensation.In order better to reflect the responsibilities and standards of professional practice, modules concerned with the sale, supply and dispensing of medicines will be ineligible for compensation and certain of the modules or components of modules will carry a pass mark greater than 40%.
The modules ineligible for compensation are Law, Ethics and Practice of Pharmacy and Dispensing Practice I and II. Other modules are eligible for compensation provided that they are not prerequisites for entry to core modules to be studied subsequently.
The passmarks where they exceed 40% and the corresponding module titles or module components are listed below:
Law, Ethics and Practice of Pharmacy 50%
Dispensing Practice I 50%
Dispensing Practice II 60%The pass mark in Law, Ethics and Practice of Pharmacy is 50% for each of the two sections of the examination paper ie. Law (2 hr) and Ethics and Practice of Pharmacy (1 hr). The passmarks in the Introduction to Pharmacy Practice are 50% of the examination mark in Dispensing and 40% of the weighted aggregate of the course work and theory examinations marks. In all other modules the pass mark is 40% of the module mark.
7.3 Level Completion
7.3.1 Credits are awarded for those modules in which a mark of at least 40%, or a pass mark if different from 40%, has been achieved. Additionally, credits may be awarded by compensation (see s 7.3.5).
7.3.2 Level completion is achieved when a student has completed successfully appropriate modules of total value 30 credits minimum at each level of study. Performance at each level is indicated by the Level Mark, a percentage mark weighted to allow for the credit rating of each module.
7.3.5 At the time of attempted level completion failure may be compensated in the light of overall performance, normally defined as when:
(i) 80% of the credit required at that level has been gained and
(ii) the Level Mark is at least 40% and
(iii) a mark of at least 30% has been achieved in failed modules.In cases where compensation is applied, credits will be awarded to eligible modules but the mark/grade for such modules will not be changed.
7.3.6 Normally no more than 20% of the total credits required for level completion (see s 7.3.2) may be awarded by compensation. Exceptionally, however, additional compensation credits may be awarded in the light of mitigating circumstances.
7.4 Level 1 and Level 2 Completion
7.4.3 Candidates who fail one or more modules may be referred in that module(s). Referrals will normally take place before the September meeting of the School Assessment Board in the year of the attempted level completion. The maximum module mark achievable from referrals is the pass mark for the module. 7.5 Level 3 Completion 7.5.1 Candidates who complete successfully the requisite core modules (13 credits) and option modules (17 credits) at Level 3 will be awarded an Honours degree according to the method set out in s 7.6. 7.5.2 Candidates who fail to meet the conditions set out in 7.5.1 above but whose performance satisfies the conditions for level completion through compensation (s 7.3) shall be eligible for an Honours degree calculated according to the method set out in s 7.6. 7.6 Award and Classification of Degree with Honours 7.6.1 Candidates gaining a minimum of 30 appropriate credits each at Levels 2, and 3 will be eligible for the award of a Degree with Honours in Pharmacy. 7.6.2 The class of degree follows the established percentage band equivalents, viz:
<40%=fail
40 - 49.9%=third class
50 - 59.9%=lower second class
60 - 69.9%=upper second class
>70%=first class7.6.3 Consideration of the class of degree will be based upon two criteria:
(i) the weighted average percentage mark. Module percentage marks are weighted relative to credit value and relative to level. The marks achieved at Level 2 will be weighted at 25%, those at Level 3 weighted at 75%.
(ii) the number of credits gained at each class at Levels 2 and 3. There are some important aspects of these which must be noted. First, three modules are ineligible for compensation, one of which is Dispensing Practice 2 (DP2) which requires a pass mark of 60%. The requisite 30 credits must be achieved either by passing each module by achieving the appropriate percentage mark or by, despite failure in one or more modules, being able to compensate for failures by a good enough overall performance in other modules (7.3.5). Even if the overall performance was not good enough to achieve the necessary credits by compensation, mitigating circumstances may be considered and may exceptionally enable the necessary credits to be awarded (7.3.6). But no compensation credits may be awarded to DP2 so that a failure in that module must result in a failure to achieve an honours degree. However, mitigating circumstances are relevant at an earlier stage in determining whether the marks for any module, including DP2, should be greater than those awarded to the examination and course work on merit. That stage has nothing to do with compensation under 7.3.5 and 7.3.6 which only arises for consideration after the appropriate marks for each module, which should reflect any mitigating circumstances, have been determined. Thus, for example, if a student has been ill during a particular examination, his marks may be adjusted if the MAB is satisfied that his illness meant that he underachieved in that examination.
Rights of appeal against the PAB/MAB assessment are given by University reg 4.16, which reads:-
4.16. Appeals (see also s 12 for detailed regulations and procedures concerning appeals)4.16.1 An Assessment Board may be required to reconsider its decisions in the following circumstances:
(i) if a candidate establishes that his/her performance in the assessment was adversely affected by illness or other factors which s/he was unable, or for valid reasons unwilling, to divulge before the Assessment Board reached its decision. The candidate's request must be supported by medical certificates or other acceptable documentary evidence;
(ii) if a candidate or any other person establishes that there has been a material administrative error, or that the assessments were not conducted in accordance with current regulations or that some other material irregularity has occurred.
4.16.2 Responsibility for hearing appeals is vested in Directors of School (initial appeals against Module Assessment Board decisions) and the University Academic Appeals Committee (all other appeals).
4.16.3 Disagreement with the academic judgment of an Assessment Board in assessing an individual piece of work or so reaching a decision on a candidate's progression or on the final level of award, based on the marks, grades and other information relating to a candidate's performance, cannot in itself constitute grounds for a request for reconsideration by a candidate.
Appeal from PAB/MABs goes to an Academic Appeals Committee (reg 12.4), before which an appellant may appear and be represented. Formal minutes are taken and the decisions conveyed in writing to the appellant and the chair of the PAB/MAB. The PAB/MAB will than reconvene and reconsider its decisions in the light of the Appeal Committee's findings. Regulation 12.5.7 sets out the duties of the PAB/MAB as follows:-
12.5.7 Any Assessment Board that is required by the Academic Appeals Committee to reconvene must report the outcome of the reconvened Board to the Academic Appeals Committee. This report should take the form of draft minutes and supplementary information from the Chair of the Assessment Board and must demonstrate that due and proper account had been taken of the factors causing the appeal to be upheld.
There is then a further right given by reg 12.6 to an appellant who is dissatisfied with the outcome of a reconvened Board to draw this to the attention of the Chair of the Academic Board who then decides what, if any, further action is necessary.
One of the applicant's complaints is that there was a breach of natural justice involved in the same PAB/MAB reconsidering her case on two occasions, once following her appeal to the Appeals Committee and then following a second appeal hearing before a committee chaired by the Vice Chancellor. On neither occasion was she permitted to attend at the Board meeting. But since PAB/MAB was the only body which could decide ultimately on her eligibility for a degree, such reconsideration was inevitable. Only those who had examined her and knew of her academic abilities could make the necessary decisions. Naturally, the PAB/MAB had to be careful to ensure that proper and fair consideration was given to her case and the Board had to be prepared to change its former views.
The right to appear before the Appeals Committee coupled with the requirement that the Board should report back and minute its proceedings sufficed to make the procedure fair. In fact, in the applicant's case, as will become apparent, further steps were taken to ensure that her interests were protected in that at its final meeting on 8 September 1995 an independent chairman and two independent members, all of whom had sat on the Appeals Committee, were appointed to the Board. In my judgment, no unfairness is established in the procedure which was adopted.
At the end of her year, the applicant achieved only 17 credits, failing five modules including DP2. She appealed and in a lengthy letter of 3 March 1995 set out the grounds of her appeal. She claimed she had been unfairly treated and victimised. She complained of the remarks made by Professor Rubinstein in January 1994 which had humiliated her and made her ill. There had been confusion over a particular project. More importantly, she complained that by letter of 19 September 1994, Dr Nolan, the Deputy Director of the School, had broken the agreement reached between her and the University's solicitor in December 1993.
In the letter, Dr Nolan was concerned to indicate to the applicant which modules she should study in the 1994/95 academic session. It is to be remembered that for her that session was due to end in December 1994. The letter was written because the University was moving, as Dr Nolan put it, to 'a semesterised structure' instead of a trimester scheme. What was meant was that some modules were to be taught within a particular term (or semester) and were not to be available in any other. This change applied for 1994/95 to the four optional modules, one of which had to be taken. The letter stated:
"The normal period for delivery and assessment of the pharmaceutical science option modules will be Semester 2 with examination in May. All of the other modules listed above will be presented in Semester 1 (September - December).In respect of the modules presented to BSc Pharmacy in Semester 1, 1994, I have to advise that the examinations will be undertaken at 2 sittings as follows:-
Antimicrobial Chemotherapy December 1994
Dispensing Practice II December 1994
Clinical Pharmacy and Therapeutics December 1994
Dosage Form Technology January 1995
Toxicology and Drug Interactions January 1995
With regard to the outstanding course modules, we believe it is in your best interests to study and/or undertake examinations in these subjects at the scheduled times. If it is still your wish to complete all modules and assessments in December 1994, you should inform me of this in writing as soon as possible".
The applicant chose to treat this as a breach of the agreement and put the matter into the hands of her solicitor. Protracted negotiations, it is said, followed and it was not until 24 November 1994 that a compromise was reached. Yet again, the applicant overreacted. The result was that she spent her last term before examinations distracted by an argument about her optional module, Drugs in Sport, and this, she said, affected her overall performance.
Her appeal letter of 3 March 1995 went on to detail shortcomings in three modules, including the DP2 examination and concluded with more general complaints, ending with the assertion that her overall mean mark was in excess of the minimum required to obtain an Honours BSc. in Pharmacy 'in spite of the appalling conditions I have been subjected to'. The Academic Appeals Committee heard her appeal on 11th may 1995. It upheld complaints in relation to one module, Clinical Pharmacy and Therapeutics (CPT), but otherwise dismissed her appeal. The PAB/MAB reconsidered her case on 22 June 1995. It reached the same conclusions as those reached initially, save only that it allowed her to take a fresh viva voce examination (she had performed very badly) to cover all modules except DP2, for which it was unnecessary.
The applicant was dissatisfied with this and exercised her rights under reg 12.6. She sent two lengthy letters dated 4 July 1995 and 23 July 1995 respectively, the latter commenting in detail on supposed shortcomings in the minutes of the reconvened PAB/MAB and the former setting out her complaints against the School of Pharmacy and her treatment. The Chair of the Academic Board was the Vice Chancellor and he decided that an appeal committee should be convened and the applicant be entitled to present a fresh appeal. This was done and on 23 August 1995 there was a full oral hearing, which the applicant attended, represented by her solicitor. Full minutes were taken. They run to 27 pages of typescript. Following the hearing, the Vice Chancellor wrote a detailed memorandum in which he required (as he had to) the PAB/MAB to reconsider various matters. The memorandum, which is dated 31 August 1995, is important and I must set most of it out.
It reads:-
"In my capacity as Chair of Academic Board, I have now considered the final stage academic appeal lodged by Michelle Hayes. Unusually, and due only to the complexities of this particular case and the need to clarify certain matters which had been presented as written evidence, this appeal was conducted by means of an Appeal hearing.As is proper procedure, I now refer back to the School of Pharmacy PAB/MAB those matters where I am satisfied that there is sufficient reason to reconsider earlier decisions, but where the authority to amend decisions rests with the PAB/MAB itself.
Due to particular aspects of this specific case, I have asked Professor Roger Morgan, Chair of the Division of Engineering and Science and Director of the School of Electrical and Electronic Engineering, to act as an independent Chair of the PAB/MAB. In addition, at least two of the advisory panel who sat with me during the recent final stage Appeal Hearing, will join the PAB/MAB, on this one occasion, as full members.
Listed below are those matters which are referred back to the School of Pharmacy PAB/MAB for thorough and comprehensive reconsideration. Where appropriate, a note or recommendation is included.
As an overall comment, the PAB should note the very exceptional circumstances which have surrounded the progress of this particular student over a long period. The PAB should consider the cumulative effect of the various incidents and matters and take action which amounts adequately for that accumulation of issues in the total end result.
1. Marks
The marks associated with ALL course work, examinations, quizzes etc. in ALL modules undertaken in years 2 and 3, are to be reconsidered. This to include review of the originating work where available; confirmation of the marking system(s) in operation; and, confirmation that all work completed by Ms Hayes has been accounted for, i.e. no work omitted from the final marks agreed.
For recommendation: Any resulting changes which could result in a higher mark being awarded should be credited.
2. Credits
The awarding of credits by compensation due to exceptional mitigation is to be reconsidered.
For recommendation: Where possible, and appropriate, full discretion should be used to award the maximum number of credits by compensation.
3. Clinical Pharmacy and Therapeutics
The way in which the overall mark was arrived at should be reconsidered. The PAB should note that a mean mark of the 5 answers was used rather than a mark derived from the best 4 answers.
For recommendation: Particularly close scrutiny should be made of the final result in this module with a view to judging whether it would be appropriate to move the mark from 39 to 40.
4. Dispensing Practice II
The circumstances surrounding the conduct of the examination in this subject have given cause for concern on more than one occasion as they relate to this student. Thus, I want the maximum discretion to be exercised when reconsidering whether the current mark might be raised to a pass at 60% (subject, of course, to meeting the requirements of the RPS).
For recommendation: Any 'next' attempt by Ms Hayes at DP II should be treated as a first attempt.
The PAB/MAB should make strong recommendations to the appropriate staff about how Ms Hayes should be coached, tutored and supported in the preparations for DP II assessment(s).
5. Assessment Regulations to be used
For recommendation: That where a student has been referred or deferred, the 'old' i.e.: at time of entry regulations should apply UNLESS the regulations have been amended to accommodate accreditation changes OR UNLESS the student(s) has been consulted about regulation changes (e.g. those changes arising from semesterisation).
As is apparent, the PAB/MAB would have to reconsider all the applicant's marks in each module and the cumulative effect of the various incidents of which she had complained. The minutes show that the many complaints were considered in depth and that the Appeal Committee had not been altogether happy with the School's explanations in some instances. It was essential that there should be a thorough and fair re-examination by the PAB/MAB and to this end Professor Morgan was to chair it and two extra members to attend it.
The PAB/MAB met on 8th September 1995. The meeting lasted for some 4 3/4 hours. The applicant asserts that that was insufficient to have gone properly through all her marks in both her second and third years, which is what the PAB/MAB had been directed to do and purported to have done and to have considered all the mitigating circumstances and other matters. I see no reason to doubt that the consideration given was sufficient. The relevant examiners were, with one exception, present and would no doubt have briefed themselves in advance of the meeting.
After setting out those present, the minutes set out what was required of the Board under the heading 1. INTRODUCTION. This reads:-
Members noted that the PAB/MAB meeting being held immediately prior to the scheduled PAB meeting had been arranged at the request of the Vice Chancellor/Chair of Academic Board to consider various matters arising out of the final stage appeal lodged by student, Ms Michelle Hayes. The matters referred back to the School of Pharmacy and Chemistry for reconsideration were detailed in the Vice Chancellor's memo dated 31 August 1995 and included:The PAB/MAB also noted the Vice Chancellor's comments that "the PAB should note the very exceptional circumstances which have surrounded the progress of this particular student over a long period. The PAB should consider the cumulative effect of the various incidents and matters and take action which accounts adequately for that accumulation of issues in the total end result".i. Reconsideration of the marks associated with all course work and examinations in all modules undertaken in years 2 and 3.
ii. Reconsideration of the awarding of credits by compensation due to exceptional mitigation.
iii. Clinical Pharmacy and Therapeutics - The way in which the overall mark was arrived at should be reconsidered.
iv. Dispensing Practice II.
v. Assessment Regulations used.
vi. Confirmation of whether or not the PAB held on 22 June 1995 was quorate.
The chair advised that he had been asked to act as an independent Chair of the PAB/MAB. Two members of the advisory panel, Professor D McEvoy and Mr J Cooke, who had sat with the Vice Chancellor on 23 August at the final stage Appeal Hearing, joined the PAB on this occasion as advisors. The Chair advised that when the meeting considered issues within the MAB remit, all three external members, including himself, would be in attendance as external observers.
Complaint is made that the three extra members (including the Chair) acted as advisors or observers and not, as the Vice Chancellor had directed, full members. That however was their decision and could not in any event have made any practical difference. They were there to ensure fairness to the applicant. Complaint is also made that the minutes breach reg 4.17.6, which reads:-
"Any Assessment Board that is required by the Academic Appeals Committee to reconvene must report the outcome of the reconvened Board to the Academic Appeals Committee. This report should take the form of draft minutes and supplementary information from the Chair of the Assessment Board and the Academic Appeals Committee member in attendance at the Board and must indicate that due and proper account has been taken of the factors causing the appeal to be upheld."
The minutes do not, it is said, indicate that "due and proper account has been taken of the factors causing the appeal to be upheld." The applicant has misread the rule, since 4.17.6 applies only to an appeal and not to the latter stage of an application under r 12.6. But in any event it seems to me that a fair reading does show compliance with the Rules. The purpose is clearly to ensure that the Appeals Committee know that their directions have been properly put into practice. Here, the presence of the three external observers ensured that.
All marks were confirmed. In CPT, an exceptional pass was granted, although the mark remained at 39%, and so four additional credits, bringing the total to 21, were awarded. It was agreed that the applicant should be permitted to resit the other four modules which she had failed, including DP2 for which her resit should be the first of two resit opportunities.
The Board refused to increase the marks for DP2 from 58% to 60%. This meant that powers for compensation within 7.3.5 and 7.3.6 (powers reflected in 7.7.4 of the University Regulations) could not be used to award an honours degree.
The minutes read at their conclusion, following the summary of the decisions made, that powers for compensation were noted and that
"Members are advised to consider the students' experience over the whole period of her time at JMU. The Chair advised that this consideration was not appropriate at the present time."
This has led the applicant to submit that the Board did not, as it should have done, consider the mitigating circumstances. That submission is supported by reference to an affidavit filed on behalf of the University by Dr Nolan in which he states, after referring to concerns expressed about the conduct of the examination:-
"having heard the discussion that took place, I believe that decision [sc. To maintain the failure in DP2] was based solely on academic considerations and whether the mark of 58% could be said to understate the applicant's ability in that respect, bearing in mind the concerns that had been expressed about the conduct of the examination. That was certainly the basis of my decision."
The first point to make is that the Board was undoubtedly correct not to consider mitigating circumstances with a view to possible grant of credits by compensation since DP2 was not eligible for compensation and so it would have been a pointless exercise. However, mitigating circumstances and so the whole background was material in considering whether the marks for DP2 should be increased to 60%. Dr Nolan's affidavit certainly seems to lend support to the submission that he, and inferentially the Board, did not properly take them into account. But I have also the affidavits of Professors Morgan and McEvoy, the Chair and an external member. Professor Morgan (with whom Professor McEvoy agrees) says this in his affidavit:-
"The memorandum of the Vice Chancellor setting out what the Board should do at its meeting is exhibited to Dr Nolan's affidavit. As the independent chairman, I was very concerned to ensure that the precise terms of the memorandum and the recommendations made in it were properly considered and acted upon. The meeting on the 8th September 1995 lasted just under 5 hours. At that meeting, all members had a copy of the minutes of the appeal hearing on 23rd August 1995, the memorandum of the Vice Chancellor and the letter of Miss Hayes' of 7th September 1995. In addition, a full set of the Applicant's correspondence was available for consultation at the meeting and I, Professor McEvoy, Mr Cooke (the two other independent members appointed by the Vice Chancellor) and Dr Nolan had a full set of the correspondence at the meeting."
Paragraph 1.1 of the skeleton argument claims that the minutes do not reflect the fact that all the mitigation was taken into account. In particular, it refers to three letters of the Applicant, those of 3rd March 1995, the 4th July 1995 and the 23rd July 1995. I am satisfied that all the matters referred to by Miss Hayes in those letters was properly taken into account by the Board. The points made in those letters largely reflect the submissions made on behalf of Miss Hayes at the appeal hearing before the Chair of Academic Board on 23rd August 1995, as appears from the minutes of the meeting of 23rd August 1995 (which are exhibited to the affidavit of Dr Nolan). The particular issues arising from those letters had been set out at the outset of the 23rd August 1995 meeting nd had then been considered in detail. Every member of the Board at the meeting on 8th September 1995 had a copy of the minutes of 23rd August 1995. Similarly the general issues including (but by no means limited to) the incident in which Professor Rubinstein was said to have belittled Miss Hayes in early January 1994 and the problems surrounding the basis upon which Miss Hayes began her third year studies and her understanding that there had been a breach of the agreement with the School of Pharmacy and the comments of the Academic Board on these matters were also specifically made known to the members of the Board who were able to assess the effect that those incidents had on her academic performance.
Furthermore, at the meeting on 8th September 1995, as each of the matters that had been raised by Miss Hayes was considered, I read out parts of Miss Hayes' correspondence to ensure that the points made on behalf of Miss Hayes at the appeal meeting were properly before the Board. I have no doubt in my mind that all the specific issues relating to particular subjects and the general issues raised on behalf of Miss Hayes were before the Board for consideration".
He then goes on to deal specifically with DP2, saying:-
"To take an example, I would refer to the consideration of Dispensing Practice II (where the skeleton says that the absence of full mitigation applies more forcefully). The procedure referred to in paragraph 5 above was followed. Miss Hayes' letter of 3rd March 1995, makes specific complaints about the examination in that subject, namely (1) that she believed that she had spotted an overdose and had failed whilst others who had not had passed and (2) her concerns that she had had to print over an old label and was concerned that if she lost 2% on presentation, that was unfair. Similar specific points about Dispensing Practice II were made in her letters of 4th July 1995 and 23rd July 1995 (together with an expression of concern about the way that the examination was run). Those specific matters were fully canvassed at the appeal meeting on 23rd August 1995. A number of matters had emerged in the course of that discussion, including, for example, the fact that Miss Hayes' had not been penalised in any way for the presentation of the label. The memorandum from the Vice Chancellor expressly refers to the concerns surrounding the conduct of the examination in this subject and that the maximum discretion should be exercised when reconsidering whether the current mark should be raised to 60% (subject to meeting the requirement of the Royal Pharmaceutical Society). The Dispensing Practice II Module was to be reviewed in accordance with the procedures set out in earlier recommendations.I made sure that the Board were aware of the specific issues relating to Dispensing Practice II. The Board were also made very well aware of the general circumstances surrounding Miss Hayes and of the memorandum of the Vice Chancellor which asked the Board to consider the cumulative effect of various incidents. The Board did consider Miss Hayes' performance in light of the mitigation; the lost label was not relevant as it had not resulted in any deduction of marks from Miss Hayes; all the surrounding circumstances were considered; the time given to students to complete the examination was specifically considered. Further, the marking system and, where available, the originating materials had been checked by the original teaching team and their conclusions were scrutinised by the Board and I recall a number of questions being asked by Professor David McEvoy (in attendance in an advisory capacity and specifically appointed by the Chair of Academic Board to ensure that the recommendations set out in the memorandum were properly considered).
At the end of a long discussion on Dispensing Practice II, the Board members agreed that the appropriate course of action was to invite Miss Hayes to resit Dispensing Practice II and that the resit be seen as the first of two attempts at passing the subject. Amongst the members of the Board were three external examiners from other universities one of whom was appointed by the Royal Pharmaceutical Society (which has a particular interest in relation to academic standards in subjects such as Dispensing Practice II as the accreditation of a university degree allows that degree to meet the academic stage of qualification for registration in respect of practice as a pharmacist as explained by Dr Nolan in his affidavit). Appointing external examiners i usual practice in universities to ensure that academic standards in one institution are broadly in line with standards at other institutions and in the case of Pharmacy, it is a requirement of the Royal Pharmaceutical Society of Great Britain for an external examiner to be involved in the assessment of professional pharmacy studies. I specifically raised the issue of the marking system and the marking of Dispensing Practice II with the external examiner responsible for that subject who confirmed that they were appropriate. The external examiner did not consider that the circumstances justified raising the mark to a pass mark. I am also satisfied that the members of the Board did properly consider the question of Miss Hayes' performance in that subject and that they had regard to all the mitigating factors that Miss Hayes had raised in her letters and again before the Academic Board.
I am satisfied that the recommendations contained in the Vice Chancellor's memorandum were properly considered. At the end of the day, the Board considered as a matter of academic judgment that the factors relied upon by Miss Hayes were not sufficient to justify increasing the mark awarded in this subject from a fail to a pass. I have dealt in length with the subject of Dispensing Practice II in this affidavit. I would stress, however, that during the nearly 5 hours when this student's case was being considered all aspects of her academic performance were considered to ensure that the recommendations were properly considered. I would also add that the level of intensive scrutiny of this application was in my experience without precedent and, as the independent chairman, I am satisfied that the Board did properly carry out its tasks".
I have no reason to doubt this evidence. I am satisfied that the mitigating factors were properly taken into account. Accordingly, subject to specific matters with which I must deal, there can be no challenge to the failure to increase the 58% to 60% on the basis of the mitigating circumstances. The Board had to apply academic judgment to decide whether in all the circumstances 58% fairly reflected the applicant's ability. It decided that it did. I could not conceivably intervene to say it was wrong.
The first of the three matters can be dealt with briefly. The applicant complained that the examination was not properly conducted. It was intended to reproduce 'real-life' pharmacy conditions. Unfortunately, it seems a computer malfunctioned and some equipment was not available with the result that there were delays. As a result, all those sitting it were given an extra half hour. In addition to this, a label which the applicant was required to and did produce went missing about 10 minutes before the end of the examination. The time spent looking for and then replacing it as best she could prevented her, she said, from completing the questions she should have answered. The School said she had been given 10 minutes more than anyone else to compensate. This she denied, but the invigilator's record was produced to confirm it and the Board, as it was entitled to do, accepted his account. She did not suffer because of the label she had had to replace since she received full marks for that part of the exercise. She complains that the upset caused by the loss of the label disabled her from doing herself justice and that accordingly her marks should have been increased. The Board considered the circumstances and decided that they did not justify an increase in marks. This was a conclusion they were entitled to reach. It was, in part at least, based on academic judgment.
Secondly, the applicant says that she identified an overdose. This, she says, is the essential matter in DP2 and should have meant she should pass. Indeed, a failure to identify an overdose should lead to automatic failure. She says some students did fail to identify the overdose but passed. Explanations were given to the Appeal Committee about this, the effect of which was that the overdose was not in fact dangerous so a failure to identify it was not so important. In any event, performance of other examinees is no ground to challenge the applicant's own results.
The third matter needs more detailed consideration. When the applicant commenced her course in January 1994, one of the course work elements in the CPT Module was a Terminal Care workshop. On 18 October 1994, a notice was sent out which, so far as material, read as follows:-
"NOTICE OF WORKSHOP - DISPENSING PRACTICE 2There is a further workshop to complete in this module. The topic is terminal care and it will be run by the Hospital Tps. A short test counting towards course work will be held at the end of the workshop."
The applicant complained that to remove Terminal Care in this way contravened the Regulations. This was accepted by the original Appeal Committee in May 1995. It must be remembered that the applicant had failed both CPT, in which she had achieved 39% instead of 40% and DP2, in which she had achieved 58% instead of 60%. The PAB/MAB which reconsidered her case on 22 June 1995 decided, as the minutes record:-
"The course work mark in Terminal Care, previously credited to the module DP2, be transferred to the course work for the module CPT. It was accepted on viewing overall recalculated marks for both these modules that the module mark for CPT remained at 39% and the module mark for DP2 was also unchanged at 58% for Miss Hayes".
This the Appeal Committee on 23 August 1995 found it had to follow. The applicant had done well in the Terminal Care test, scoring some 83%. In CPT, the full course work element amounted to 25% of the module; in DP2 it amounted to 10%. Terminal Care was one of three items in the 10% course work for DP2; it made up 40% of the 10%. In CPT, terminal care was part of a component of the course work which itself comprised 20% of the whole course work element of the module. Professor Morgan's evidence is that it in fact contributed 0.625% to the overall module mark so that the applicant's marks (83% of 0.625%) contributed 0.52% to her total module mark. This, taking account of rounding up, ought she says, to have raised her CPT mark from 39% to 40%. Further, she submits that, since it contributed 40% of the 10% course work element in DP2, her marks constituted 3.32% of the total module marks.
This is wrong. Once Terminal Care was removed from the DP2 course work, the other two elements would have had to be increased pro rata to bridge the gap to make the total 10%. Thus whatever marks she had achieved would be uprated. Accordingly, if she had scored 83% in the other items, there would have been no difference to her overall marks. If she had scored less, there could have been an increasing, but small, difference reaching some 1.72% if she had done as badly as 40% in each. She said she did better in course work than in examinations and it is improbable that she achieved less than 50% in her course work elements.
But all this is in fact academic. The applicant contends that her Terminal Care should have been included in both modules. That I find an impossible contention. But, even if it is assumed in her favour, it does not assist her. Although her marks in CPT were not increased from 39% to 40%, she was given an exceptional pass and so earned the necessary credits. The 58% for DP2 included the Terminal Care. Therefore, she could not benefit from its inclusion and if, in reviewing it, the PAB/MAB decided not to reduce her marks, it was being benevolent to her.
As will be apparent, her failure to pass DP2 is fatal to her claim that an honours degree should have been granted. I have dealt with the substantial arguments raised to support the claim for judicial review of the decision of 8 September 1995. Others were raised in the grounds and put forward in argument. None has any merit. A suggestion that there was a breach of an EEC Regulation is equally unmeritorious and irrelevant and I need not lengthen this already overlong judgment by dealing with it.
The applicant decided to resit those modules she had failed but simultaneously to seek judicial review of the decision of 8 September 1995. The application was lodged on 6 December 1995. On 16 April 1996, Sedley J adjourned the leave application to open court and required the applicant's advisors to refine and limit the case and to provide a skeleton argument. Dr Nolan had sworn an affidavit in opposition on 5 March 1996 to try to show that leave should not be granted. On 26 May 1996 leave was granted. All this must have been a considerable distraction for the applicant who sat some of her examinations in January and February 1996 and some in May 1996. Perhaps not surprisingly, she did much worse than she had before, and in the all-important DP2 she only achieved 52%.
At the commencement of her first examination in January 1996, she was approached by Professor Rubinstein who asked her to sign a document stating that she was fit and well to sit the examination. She was understandably upset by this and again it seems that, on the face of things, Professor Rubinstein and the School were behaving in a singularly insensitive manner. In the light of the history, this should not have happened. The applicant complained about it through her solicitors and asked for an undertaking that nothing of the sort would happen again. She also contended that it exacerbated her illness and made her doubt yet further the good faith of the School.
On 21 June 1996, the PAB/MAB considered her case. It recorded:-
"It was noted that no claims of personal mitigating circumstances had been submitted by the student with regard to reassessment of these modules in 1995/1996".
This was technically correct inasmuch as the Regulations require that potential mitigating circumstances be put in writing to the Director of the School before the PAB/MAB meeting. But to rely on that technicality was inappropriate since the applicant had made complaints about her treatment by Professor Rubinstein and about one of the modules, Drugs in Sport. In addition, it was known that communications were made through solicitors rather than strictly in accordance with the Regulations. Again, the history in my judgment required PAB/MAB exceptionally to discover whether there were any mitigating circumstances which the applicant wished to rely on before the meeting was held.
The applicant was complaining about Drugs in Sport because she was resitting the examination based on a course she had undertaken in 1993/1994. The examination was for all students doing the module in 1995/1996 and so the applicant complains that she was seriously disadvantaged. Professor Mottram, who wrote the relevant book on the subject and oversaw the setting of the examination paper, says in an affidavit that it was designed to be fair to the applicant and in any event all examiners were instructed to bear the applicant's difficulties in mind when marking her papers. She has exhibited the paper and contends she was unable to answer part of it because she had not done the necessary work. I am not in a position to judge that since I do not have the necessary knowledge of the details of the course to know whether she is right. I am bound to say that it does seem that she did not exercise a great deal of common sense in her approach to the paper.
By this time, the applicant had totally lost any confidence in the willingness of the School in general and the PAB/MAB in particular to deal with her fairly. Accordingly, she was reluctant to follow the proper appeal process. She wrote a long letter to the Chair of the Academic Board (the Vice Chancellor) setting out in somewhat intemperate terms her views of the shortcomings of the University and the School and asking the Board to intervene. On 11 July 1996 the University's solicitors wrote back saying that the Board had unanimously resolved that:-
"The Board has noted the request of Miss Hayes and is of the opinion that the normal procedures for appeal are still available as detailed in the... Regulations. The Board noted the request and concluded that Miss Hayes should follow the established appeal procedure".
She did lodge a notice of appeal through her solicitors on 25 July 1996, but on the next day gave an absurd ultimatum the effect of which was that the appeal was to be dealt with before 1 August 1996 (and presumably allowed) to enable the applicant to register with the RPS for that year or it would be automatically withdrawn.
In the result, the applicant added the decisions of 22 June and 11 July 1996 to her application for judicial review by amending her form 86A.
In my view the applicant was badly advised. It would be quite impossible for any judge to order that she be awarded an honours degree. The most she has asked for in her reamended 86A is mandamus to require the Academic Board to consider annulling the decision of PAB/MAB and offering an honours degree. In reality, the only way in which she can get a degree is through the PAB/MAB and the most she could hope for from any application for judicial review was that she was given a reassessment with everything considered which ought to be taken into account in her favour. In the course of the hearing Mr Lewis on behalf of the University indicated that the applicant could, notwithstanding the passage of time, appeal the PAB/MAB decision of 22 June 1996. Thus the applicant still has available the remedy she should have pursued.
While I understand and to some small extent sympathise with the applicant's loss of faith in the School, she must realise that, if she wants an honours degree, she can only obtain it through the University, which is constrained to act in accordance with its regulations and must not award a degree unless satisfied that the applicant has achieved a proper academic standard or would, but for mitigating circumstances, have achieved such a standard. She has submitted that she cannot appeal since the decision whether or not to grant a degree is one of academic judgment. That is incorrect since she is seeking to show through the appeal that the PAB/MAB failed to take into account various matters which affected her ability to do herself justice. What effect these matters, if established, would have on her marks is of course a matter of academic judgment, but their existence is not.
In my judgment, Mr Lewis is correct in his contention that the applicant ought to have pursued her appeal. If the University had not offered to reinstate that appeal, I would have had to consider carefully whether I should require it to do so. As it is, I am satisfied that no relief I could grant would do more for the applicant that that which has been offered and so this application must be dismissed.
I would only add this. The applicant is particularly concerned that Professor Rubinstein cannot view her case dispassionately. His actions in the past have, as I have said, been insensitive and it would be desirable, if possible, that he is not a member of any PAB/MAB which may reconsider her case. I recognise, however, that that may be impossible because of his position as Director. For her part, the applicant must try to recognise that she will achieve nothing if she continues to adopt the attitude displayed in the course of the hearing and to believe nothing but ill of the School and the University. No doubt attempts will be made to try to ensure that she is under no more pressure than is essential, but I do not consider it appropriate for me to dictate or even to suggest particular terms and conditions. I must leave that to the parties.
DISPOSITION
Application dismissed.
SOLICITORS
Dibb Lupton and Alsop, Liverpool