HEARING DATE 9 October 1997
Student - University - M seeking review of decision of board of examiners - M
also invoking grievance procedure - Complaint of bias - Application for review
of decision of board of examiners refused because of failure to provide proper
details of mitigating circumstances - Whether application should have been
determined before grievance procedure completed - Grievance complaint rejected
Judicial review - Delay - Extension of period for seeking review
HEADNOTE
On 3 July 1996 M was awarded a pass degree by the Leeds Metropolitan University. He alleged that one of his tutors had been biased and had marked him down. On 18 July 1996 M requested a review of the decision of the board of examiners. The ground of review indicated by M was 'Extenuating or mitigating circumstances'. Next to a reference on the form to 'Other grounds' M wrote 'see Grievance'. On 25 July 1996 M submitted a Grievance Procedure Form. The form was not submitted to the right person and did not name the tutor concerned. On 1 August 1996 M identified the relevant tutor. However, on 30 July 1996 the relevant dean for the purposes of the review of the decision of the board of examiners decided that M had not given the proper details of the mitigating circumstances and that his complaint could not therefore be considered. M asked for a review of that decision. After consideration of the evidence relating to the grievance procedure the deputy vice-chancellor rejected M's complaint on 5 February 1997. M submitted that: (i) the review body should have asked him in what way the grievance impacted upon the review; (ii) once the review body was aware of the existence of the grievance it ought to have deferred the consideration of the second stage, ie the review of the original decision, until the grievance had been disposed of.
Held
(1) It was arguable that there was a procedural impropriety in all the circumstances.
(2) Matters which are properly the subject of a student grievance procedure could impact upon a review of a decision of a board of examiners.
(3) An allegation of bias and marking down is not a question of academic judgment.
(4) The grievance having been rejected it could not have impacted upon the examination result. There was no arguable case that there was any marking down of the examination papers.
(5) The university could properly say that insufficient information had been given to enable it to permit mitigating circumstances to be raised as a proper ground for reviewing M's results.
(6) Even if M had had an arguable case there was no good reason for extending the period within which judicial review should have been brought.
COUNSEL
Philip Engleman for the applicant
Hugh Tomlinson for the respondent
PANEL: Collins J
JUDGMENT BY COLLINS J
The applicant, Mr Steven Manders, was in 1996 reaching the end of his university degree course at the Leeds Metropolitan University in which he was seeking an LLB. It seems that two factors, according to him, affected the way in which he was able to sit his exams. First of all, he fell ill. Unfortunately at no relevant stage did he indicate to the university the precise nature of that illness. It now transpires that, according to a doctor's note which is in the papers, he was suffering from what is described as chronic fatigue syndrome. Secondly, he had unfortunately fallen out with one of his tutors, Mr Cousins, who was also responsible, it seems, for marking at least one of the papers which he took, namely employment law.
He was granted a pass degree. His work in the years leading up to his finals, he says, suggested that he ought to have achieved a lower second and at worse, one would imagine, a third and thus have received an honours degree. Having received his pass degree on 3 July 1996, he says he spoke to Mr Cousins on 8 July 1996 and he complains that Mr Cousins said words to this effect, which are set out in a complaint that he subsequently made:
'I don't care if you are ill or not, and have grounds for successful mitigating circumstances. The fact of the matter in language you can understand is that you are crap. I am still going to fail you even if you are entitled to resit your exams. Write all of this down, because I just don't care if I am subject to disciplinary procedures as a consequence of what I am going to do...'
That was the culmination of various matters in respect of which he had complained about Mr Cousins. In particular, he had asserted that back in November of the previous year Mr Cousins had described him as a 'belligerent bastard' and that in March 1996, in the course of a tutorial, Mr Cousins had described him as: 'A bastard whose face has been around too long'. Mr Manders had a tape recording which it was said confirmed those remarks. He had recorded the tutorial, and the tape recorder had continued to run after its conclusion. It was at that stage that the observations in question were allegedly made.
The finding by the deputy vice-chancellor, who was eventually responsible for deciding on the grievance, was to reject it. This was done on 5 February 1997 and what the deputy vice-chancellor said was this:
'Taking the tape at face value, I have concluded that the tutorial was conducted in a reasonable and constructive manner throughout and did not abuse the lecturer's and student relationship. Mr Cousins was helpful in his advice on health related matters, subject to relevant matters and matters associated with the final presentation of material. Whether elements of this advice were strictly correct is not relevant, because it is my belief that the advice was given in good faith. I now refer to the alleged statement. This part of the tape is very unclear and it is not possible for me to determine whether a statement of this form was made for illustrative purposes or was meant to be factual. The actual phrase which can be heard on tape is "...Steven Manders is a bastard, you know he's been around before, we'll knock a few [marks] off..." and not "a bastard whose face has been around too long". This uncertainty is compounded by the tape itself which has a number of approximately one second silences towards the end which is consistent with editing.In these circumstances, this part of the grievance is not upheld.'
He then goes on to indicate that the allegation as to what was said on 8 July 1996 was not upheld on the basis, it would seem clear, that it simply had not been said. It had been denied, I should say, by Mr Cousins.
The observation: 'Steven Manders is a bastard, you know he's been around before, we'll knock a few [marks] off...', of course is capable, if said in a hostile manner, of at least enabling the applicant to be concerned that there might be bias and that his exam might well have been deliberately marked down insofar as Mr Cousins was responsible for the marking of it. However, if it was merely an observation following something like, 'We don't approach matters on the basis etc.', then it has a very different meaning. That is, it would seem, what is meant by the deputy vice-chancellor's observation that it might have been made for illustrative purposes.
This, of course, is all in the context that Mr Cousins had denied that he had said anything to indicate that he was biased and had not used those words in a hostile manner. It is plain, as it seems to me, that effectively the deputy vice-chancellor is saying that Mr Cousins' account is accepted and Mr Manders' account is rejected. It may be that it could have been put a little more clearly but that, as it seems to me, is implicit in the rejection of the complaint.
That being so, there could not have been any grounds for suggesting that there had been actual marking down of the papers, and it is to be noted that a review of academic results, that is to say a review of exam results, is only permitted on grounds which are set out in the relevant regulations. These specifically do not include any question of academic judgment. Of course, if it is said that there has been bias and a deliberate marking down, that is not a question of academic judgment, but is a specific matter which a student, as I see it, will be clearly entitled to raise on any review.
What Mr Manders did was to follow the regulations, which I am bound to say are not as clear as they ought to be, but which in this respect, at least, indicate that there is a separate student grievance procedure from a request for review of a decision of a board of examiners. However, it is perfectly clear that matters which are properly the subject of a student grievance procedure could impact upon a review of a decision of a board of examiners. What happened here was that on 18 July 1996 the applicant requested a review of a decision of the board of examiners and that form has on it a printed part which says:
'Grounds for review (please tick)'and then:
'(i) Extenuating or Mitigating Circumstances.(ii) Administrative or Procedural Grounds.
(iii) Other Grounds.'
What the applicant did was to tick (i), that is 'Extenuating or Mitigating Circumstances'. He did not tick (iii) but he wrote against it: 'See Grievance'. On the same day, he filled out a Student Grievance Procedure Form. In that he set out the substance of the alleged grievance. He does not name Mr Cousins. He refers to a 'member of staff'. He complains about the observations that were made, to which I have already referred. He says this:
'The fact that a member of staff is prepared to act in this manner is detrimental to my situation. It would deter the Board of Examiners from allowing grounds for mitigating circumstances, in the light of what I have mentioned....
Please deal with this urgently as the consequences and outcome will determine my future over the coming weeks.'
That grievance procedure form was submitted on 23 July 1996. Unfortunately it seems that it was not passed on by the university secretary to the proper person immediately because it did not contain the detailed information to identify the relevant employee. What happened was that by letter, dated 29 July 1996, the university secretary, Mr Wilkinson, wrote to the applicant acknowledging receipt of the student grievance form and saying:
'Please note the following points of concern... [it was sent to the wrong person and that perhaps is not a vital matter]... you have not indicated on the form whether you are invoking the Procedure in respect of the "University's arrangements, practices or activities..." or in respect of an individual "University employee".'
Then:
'...you do not identify any University employees by name; and the tape [does not indicate]...'
Then it goes on to say that he ought to say who it was. The applicant, by letter of 1 August 1996, wrote back identifying Mr Cousins as being the employee in question. However by then, by a decision of 30 July 1996, the dean, who deals with the matter initially, reached the conclusion that he had not given in advance, as he ought to have done, the proper details of the mitigating circumstances.
Therefore, the complaint could not be considered. Mr Manders was not happy with that and asked for, as he was entitled to do, a review of that decision.
In the meantime the link between the student grievance and the academic review had clearly been drawn to the attention of those responsible by Mr Wilkinson in a memorandum of 8 August 1996.
The complaint is made that by the university's own regulations where there is a student grievance, which is running in tandem, as it were, with an academic complaint, the academic complaint should not be disposed of until the grievance has been decided upon. One can see the force of that if the grievance could impact upon the academic review. The point is taken that the regulations, if read strictly and carefully, only provide that that should be the case if the student grievance is in existence before the academic review claim.
Mr Engleman submits that the regulations do not, in fact, produce that result but that, in any event, if one looks here at the form of the academic review one sees that it specifically refers to the grievance and, at the very least, the review body ought to have asked Mr Manders in what way he said the grievance impacted upon the review. They ought to have made inquiries, or they ought to have had regard to the grievance. Once they were aware, after the first stage of 29 July 1996, of the existence of the grievance they ought to have deferred the consideration of the second stage, that is to say the review of the original decision, until the grievance had been disposed of.
If that were all that this case were about I would have regarded it as being arguable whether there had been a procedural inpropriety here in all the circumstances.
However, it is not the end of the matter, because, as I have said, at the end of the day this grievance was rejected. Mr Engleman, on behalf of the applicant, submits that the finding that I have referred to relating to the tape recording is effectively a flawed finding as a matter of law. That once that tape was there it was not open to the relevant board to reach the conclusion that they did.
In my judgment there is nothing in that for the reasons that I think I have already indicated. That being so we have the position that the grievance has been rejected and the grievance having been rejected it could not have impacted, as I see it, upon the examination result. There is no arguable case that there was any actual marking down of the examination papers. Indeed, when one looks at the grievance as initially set out on 18 July 1996, and I have read it, it is said that it impacted, if at all, on the mitigating circumstances. It was quite open, as I see it, to the university, following its regulations, properly to say that insufficient information had been given to enable it to permit mitigating circumstances to be raised as a proper ground for reviewing the result of the applicant's examination.
That being so, in my judgment there has not been an arguable case shown. However, even if there had the applicant is faced with a problem of delay. The final decision of the academic review process was given on 22 August 1996. True it is that there was then still being pursued the grievance procedure, but the grievance procedure could not have affected the academic result. What the applicant really wants is the pass degree that he obtained to be reviewed. That must be the real purpose behind this application for judicial review. That decision had been reached, as I say, on 22 August 1996. The major complaint was that the procedures had unfairly not been properly pursued and that that decision was premature because it should have awaited the outcome of the grievance procedure. That, as it seems to me, was the time when proceedings for judicial review should have been brought. That was the decision which was the relevant decision.
I can understand that the applicant may well have been unaware himself of the importance of the time-limits and the importance of focusing on the right decision, but I am told by Mr Engleman that he was, in September 1996, receiving advice from solicitors. They should have been aware of the significance of that decision.
By Ord 53, r 4(1) it is provided that:
'An application for leave to apply for judicial review shall be made promptly and in any event within three months from the date when grounds for the application first arose unless the Court considers that there is good reason for extending the period within which the application shall be made.'
I am afraid I see no good reason for extending the period within which that decision for the Academic Review Board should have been attacked. In those circumstances, even if I had felt that there was a possibility of an arguable case on the procedural basis that Mr Engleman relies on, I would not have allowed this matter to go forward because of the undue delay. Accordingly this application is dismissed.
SOLICITORS
Lee & Priestley for the applicant
Addleshaw Booth & Co for the respondent
DOMINIC MCGOLDRICK BARRISTER