Queen's Bench Division

R vs. University of Cambridge ex parte Persaud

[2001] ELR 64

HEARING DATE 21st July 2000

University - Student - Alleged difficulties with supervisors - Reports on research student P from supervisor and senior academic - Decision to remove P's name from register of graduate students - Fairness - P not provided with reports of supervisor or senior academic - Identity of senior academic not disclosed - Duty to give reasons - Whether application of policies fettered university's discretion - Alleged unlawful delegation of power to senior academic - Whether board acted ultra vires in absence of express power to appoint senior academic to report Judicial review - Challenging academic decisions

HEADNOTE

P was a doctoral candidate at the University of Cambridge, beginning in October 1992. The expected date for completion was September 1995. After difficulties with her supervisor and minimal progress on the research, a team of three new supervisors was appointed. The change was not a success. In October 1997, the board of graduate studies accepted a recommendation from the degree committee that P should remain registered for 6 months under a new supervision arrangement. This involved Professor B being her nominal supervisor in Cambridge while Dr G, based at a laboratory in Oxfordshire, acted as her de facto supervisor. P began working at the laboratory in October 1997, by which time she was living in London with her family. P's relationship with Dr G deteriorated. P's view was that Dr G was requiring her to work for the benefit of his projects rather than towards the completion of her research. Dr G retired in February 1998, after which time P did not have an effective supervisor. In May 1998, P produced a report on her research and results. In June 1998, Dr G reported to the degree committee and to the board of studies. This stated that he was unable to report positively on P's progress over the whole period of working with him, and that P had stopped coming to the laboratory in January 1998. The degree committee concluded that no real progress had been made and recommended that P's name be withdrawn from the register of graduate students. The board of studies accepted this recommendation. P appealed. P maintained that Dr G had not seen her post-February work and had not seen her May report, which had been updated to include June. P wished to remain registered as a PhD student, supervised by a new supervisor in Oxford and with a new area of research. In December 1998, the degree committee decided to seek the opinion of a senior academic member of the faculty on P's progress in the light of the reports prepared by P. The senior academic reported that the reports represented a very small amount of work, that there was no evidence of significant effort, understanding or proposed development and that they did not form a viable basis for any future research. The opinion was categorical in recommending that P should not be permitted to continue as a research student.

After considering the opinion, the degree committee recommended that P's appeal be rejected. The board of studies rejected P's appeal. P was refused access to the report by Dr G. In November 1999 the degree committee reconsidered P's case but affirmed its recommendation. In December 1999 the board of studies was not willing to change its decision of January 1999. P sought to challenge the decisions of the board of studies of January and December 1999. There were five grounds of challenge. First, the way the university made the decisions was unfair. The identity of the senior academic was not disclosed. Therefore, P could make no representation about his independence or the suitability of his qualifications for the task. In addition, as the reports of Dr G, and of the senior academic, were not disclosed, P could not make meaningful representations on them. Secondly, the university had failed in its duty to give reasons in a legally acceptable form. Thirdly, the board of studies had fettered its discretion. It applied a pre-existing policy of non-disclosure of reports. It also applied a policy that reinstatement could only be considered when a student had completed a project for which they were registered. Fourthly, the board had acted unlawfully by delegating the making of the decision about P to the senior academic. Fifthly, the appointment was ultra vires because university regulations did not expressly provide for the possibility of the appointment of a senior academic to provide a report.

Held

Dismissing the application

(1) It was not appropriate for courts to be involved in academic or professional judgments. The decisions under challenge were clearly academic decisions based on lack of progress. P's name was removed from the register because of professional and academic advice about a lack of progress and the lack of a viable basis for future research.

(2) It was not unfair for the university authorities not to disclose the reports to P. The reports of those who have to make academic judgments should remain confidential, thus, enabling the reporters to express themselves frankly in the knowledge that what they have to say will not be made available to the subjects of the reports. Nor was it unfair not to disclose the identity of the senior academic. It was fanciful to suggest that that appointment was potentially subject to representations from P or to the appropriateness of his qualifications and independence.

(3) Assuming, arguendo, that at some stage, there arose a legal duty to give reasons, the challenge failed on the facts. P had been informed that Dr G had been unable to report positively on her progress over the whole period when they were supposed to be working together.

(4) The policy of non-disclosing reports was not unlawful. There was also evidence that consideration had been given to disclosure in the particular circumstances of the case. The alleged fetter on reinstatement was unarguable. The university could not be criticised for refusing to depart from policy by reinstating P to pursue a new course of research under a different supervisor.

(5) There had been no delegation of decision-making power. The degree committee and the board of studies exercised independent academic judgment in the light of all the material before them, including the report of the senior academic.

(6) The degree committee and the board had powers to regulate their own procedures subject to considerations of fairness and reasonableness. Fairness and reasonableness were manifest in this case, particularly as P had actually complained about Dr G's input.

(7) It was arguable that even if one of the five grounds had been sustained it would have been inappropriate to quash the decisions and require reconsideration because, on any view, P had failed to reach the required standard and it was very unlikely that any amount of conscious reconsideration would produce a favourable result for P.

CASES REFERRED TO

Bugdaycay v Secretary of State for the Home Department;
Nelidow Santis v Secretary of State for the Home Department;
Norman v Secretary of State for the Home Department [1987] AC 514, [1987] 2 WLR 606, sub nom
R v Secretary of State for the Home Department ex parte Bugdaycay [1987] 1 All ER 940, HL
Clark v The University of Lincolnshire and Humberside [2000] ELR 345, CA
Herring v Templeman and Others [1973] 2 All ER 569, CA
R v Chelsea College of Art and Design ex parte Nash [2000] (1/4) ELR 686, QBD
R v Higher Education Funding Council ex parte Institute of Dental Surgery [1994] 1 WLR 242 [1994] 1 All ER 651, QBD
R v Joint Higher Committee on Surgical training ex parte Milner [1995] COD 66, QBD
R v London Borough of Camden ex parte Paddock [1995] COD 130, QBD
R v Secretary of State for the Home Department ex parte Doody; Same v Same ex parte Pegg; Same v Same ex parte Pierson; Same v Same ex parte Smart [1994] 1 AC 531, [1993] 3 WLR 154, [1993] 3 All ER 92, HL
R v University of Aston ex parte Roffey and another [1969] 2 QB 538, [1969] 2 WLR 1418, [1969] 2 All ER 964
Wiseman and Another v Borneman and Others [1971] AC 297, [1969] 3 WLR 706, [1969] 3 All ER 275, HL

Statutory provisions considered

European Convention for the Protection of Human Rights and Fundamental Freedoms 1950, Art 6, Protocol 1, Art 2

COUNSEL

Gregory Jones and Angus Warner for the applicant
Robert Jay QC for the respondent

JUDGMENT BY KAY J

(1) The applicant is a scientist of undoubted ability. In 1992 she was awarded a first class honours degree in astronomy after 3 years at University College, London. Her ambition was to work in the field of astrophysics. In October 1992 she was admitted to the University of Cambridge as a graduate student in order to carry out research leading to the award of a PhD. She commenced work on 'Broad Emission Lines in Active Galactic Nuclei'. Her research supervisor was Dr Andrew Robinson. The expected date for the completion of her research was September 1995. For the first year she made normal progress. However, in the second year things began to go wrong. According to the applicant the problem stemmed from conflict with Dr Robinson. She considered that he had involved her in collaboration without her knowledge and was more interested in using her work for his own purposes. Dr Robinson, on the other hand, considered that she had made limited progress in the second year and had become increasingly uncommunicative. In the summer of 1994 he wrote to Mr Paul Aslin, the Secretary to the Institute of Astronomy, to express his concerns. In September 1994 Mr Aslin involved Dr Paul Hewett in the matter. There followed a somewhat drawn out series of discussions and communications with and about the applicant. At one stage it was proposed that Dr Brian Boyle should replace Dr Robinson as supervisor but this was rejected by the applicant. On 11 October 1994 Dr Hewett suggested a team of three supervisors, namely Dr Carswell, Dr Terlevich and Dr Hewett himself. The applicant agreed to this and Dr Hewett was appointed as the official University supervisor.

(2) The change of supervisors was not a success. On 17 May 1995 Dr Hewett met with the applicant to discuss a further lack of progress and on 26 May 1995 he wrote to Mr Duncan McCallum, Secretary to the Board of Graduate Studies, reporting a lack of progress and saying that the applicant's contact with the three supervisors was 'sporadic at best'. For her part, the applicant is extremely critical of Dr Hewett's performance in his role as supervisor.

(3) By July 1995, Dr Hewett was expressing concern that requests he had made of the applicant in May had not been fulfilled. On 7 July 1995 he wrote to her expressing 'disappointment and increasing... concern about the non-appearance of the written material that I requested you to provide'. He added:

'It is not possible for me to supervise effectively someone who does not provide written work as requested or someone who does not communicate regularly when specifically asked to do so.'

By this time, of course, the anticipated 3-year period of research was coming to an end and the question of further funding was an issue. On 11 September 1995 Professor Ellis, the Director of the Institute of Astronomy, wrote to the applicant requesting information as to progress so as to address further funding. The applicant did not reply to Professor Ellis until 1 March 1996. She blames a lack of supervisory guidance for the delay.

(4) On 1 May 1996 Professor Ellis wrote to the applicant to say that Dr Carswell was now her supervisor with immediate effect and that the most important thing for the applicant was to come in as soon as she could and to start interacting with Dr Carswell with a view to her completing her PhD the following year. However, this does not appear to have had the desired effect because on 29 November 1996 Dr Carswell sent the applicant an email saying that 'our contact has been so infrequent that I have no idea what you have done since about March. Can we at least set this to rights?'. In a further email of 4 December 1996 he referred to trying 'to put the past behind us' and to improved communications and contact. However, this did not materialise. On 14 March 1997 he wrote to the applicant referring to a review of her progress which was to be undertaken by 6 June 1997 at the latest. He told her what was required of her in that regard and that her continued registration depended on the outcome of the review.

(5) The applicant produced a report by 6 June 1997 which was reviewed by Professor Fabian and Dr Aragon. The applicant was interviewed by them on 13 June 1997. According to her they were sympathetic and constructive but according to Mr McCallum they reported on a lack of clear direction in her work and that it was not apparent to them where the research would lead. What is not in doubt is that the applicant wrote to Professor Ellis on 16 June 1997 referring to various personal, health and academic problems in the previous 15 months and adding that 'regrettably my level of productivity has been well below par as a result of all these difficulties'.

(6) Professor Ellis was unimpressed. He met with the applicant and suggested that she withdraw. Also, by this time Dr Carswell had asked to be relieved of his appointment as supervisor in view of a lack of progress. On 18 August 1997 Mr McCallum wrote to the applicant advising her that the Degree Committee expected to receive a recommendation that her name be withdrawn from the Register of Graduate Students and inviting her to submit her written representations. She responded with a 26-page letter dated 30 September 1997. It was critical of all her supervisors, it offered her explanation for the lack of progress and stated that she now had 'a firm arrangement for continued supervision'. The arrangement was that Professor Boksenberg would be her nominal supervisor in Cambridge but that Dr Gondhalekar of the Rutherford Appleton Laboratory in Oxfordshire would act as her de facto supervisor.

(7) The Degree Committee met on 10 October 1997 to consider the recommendation of Professor Ellis that the applicant's name be removed from the Register of Graduate Students. In the event the Committee did not accept the recommendation. It recommended that the applicant should remain registered for 6 months while she worked under the arrangement which she had put forward. On 28 October 1997 the Board of Graduate Studies adopted this recommendation and on 30 October 1997 Mr McCallum wrote to the applicant setting out the terms of the decision:

'(i) Your name may remain in the Register of Graduate Students for, at this stage, a period of 6 months;

(ii) you be permitted to pursue your research at the Rutherford Appleton Laboratory under the supervision of Dr Gondhalekar;

(iii) Professor Boksenberg will act as your contact with the Institute of Astronomy;

(iv) Dr Gondhalekar will be asked to submit, in time for its consideration at the Degree Committee's meeting on 5 June 1998, a report on your attendance, progress and research potential; and

(v) your continuation on the Register of Graduate Students will then be considered in the light of that report.'

On 14 November 1997 the applicant replied confirming her understanding of those terms.

(8) The applicant had in fact commenced work at the laboratory on 22 October 1997. By this time she had no grant. She was living in London with her family and commuting to Oxfordshire with considerable logistical difficulty. Initially she had contact with Dr Gondhalekar 'practically every day' but found his attitude 'very straining and discouraging' and considered that he made 'unnecessary or unreasonable demands.' According to her she had a discussion with him on 19 December 1997 in which his attitude was unhelpful but when she complained to Professor Boksenberg he (the Professor) was encouraging. In January 1998 relations with Dr Gondhalekar appear to have deteriorated further, with the applicant taking the view that he was requiring her to work for the benefit of his projects rather than towards the completion of her research.

(9) On 13 January 1998 the applicant heard from a third party that Dr Gondhalekar was to retire at the end of February. She started to inquire about further supervisory possibilities. However, her visits to the laboratory had become infrequent. Dr Gondhalekar did indeed retire at the end of February and the applicant met with him for the last time on 6 March 1998. Her account is that he appeared to be happy with a summary which she had prepared in respect of her work in the previous November and December 1997 but that he would not be drawn into a scientific discussion about a 'draft plan for work and discussion', except that, in response to her persistence, he agreed that it was 'a good course of action'. She also sent copies of the same documents to Professor Boksenberg who thought they 'looked pretty good'.

(10) After the retirement of Dr Gondhalekar, the applicant did not have an effective supervisor although she had intermittent contact with Professor Boksenberg whose role seems to have been more pastoral. She remained in London most of the time 'continuing to work on my research on my own, unsupervised' and using the facilities of Imperial College. In May 1998 she produced a report on her research and results. Events now moved towards the decisions which the applicant seeks to challenge by way of judicial review.

(11) In June 1998 Dr Gondhalekar reported to the Degree Committee and to the Board of Graduate Studies. The Degree Committee met on 3 July 1998 and considered the report. Mr Mc Callum states:

'The Degree Committee were of the view that the report described a pattern of interaction which also occurred between the applicant and her previous supervisors. It concluded that no real progress had been made and therefore it unanimously agreed to recommend that the applicant's name be withdrawn from the Register of Graduate Students.'

On 10 July 1998 the Board of Graduate Studies agreed that that course should follow and on 13 July 1998 Mr McCallum wrote to the applicant informing her of the decision. The letter stated that 'Dr Gondhalekar was not able to report positively on your progress over the whole of the period when you were supposed to be working with him and that you had apparently stopped coming to the Rutherford Appleton Laboratory from January 1998'.

(12) On 17 July 1998 the applicant wrote to Mr McCallum indicating that she would be appealing and would provide her 'written case' in due course. This followed on 23 September 1998 in the form of a 20-page letter and enclosures. It was critical of Dr Gondhalekar but appreciative of the attentions of Professor Boksenberg. It also enclosed the report which the applicant had prepared in May, now updated to June. She maintained that, through no fault of hers, Dr Gondhalekar had not seen her post-February work and had not seen the May/June report. Her suggestion was that she ought to remain registered as a PhD student, supervised by an eminent and supportive Oxford-based astronomer, Dr Elizabeth Griffin, with a new area of research, namely 'The Long-Term Properties of Stellar Chromospheres'.

(13) Mr McCallum asked the Degree Committee to reconsider the position. On 20 November 1998 the Degree Committee decided to obtain an academic opinion from a senior member of the faculty in the light of the reports which she had prepared after his retirement. On 15 January 1999 the Degree Committee considered the opinion of the senior member of the Faculty (whose identity remains unknown to the applicant and to me). Mr McCallum states:

'The senior academic reported that [the reports] represented a very small amount of work, were equivalent to the introduction for an undergraduate essay, that there was no evidence of significant effort, understanding or proposed development and they did not form a viable basis for any future research. The senior academic was categorical in recommending that the applicant should not be permitted to continue as a research student.'

(14) In May 1999 the applicant's solicitors first wrote to Mr McCallum. They requested sight of Dr Gondhalekar's report but this was refused on grounds of confidentiality. The solicitors made a further request for it, together with the report of the senior academic. Correspondence carried on for some months. The Degree Committee and the Board of Graduate Studies became involved again and considered the requests and representations made by the solicitors. On 19 November 1999 the Committee reconsidered the applicant's case but affirmed their recommendation of 10 months earlier. On 7 December 1999 the Board met but was not willing to change its decision of 26 January 1999.

(15) I have recounted the history at some length but have omitted a great deal of the detail of accusations and recriminations. Its outcome was that, about 6.5 years after arriving at Cambridge, this talented young woman left empty-handed. On 1 March 2000 she lodged her application for permission to apply for judicial review. She was granted permission on 5 May 2000 by Turner J and the substantive hearing came before me on 7 July 2000. If this procedural chronology seems leisurely, it is explained by the fact that on 6 August 1999, the university agreed not to take any point on delay 'should it subsequently be necessary for you to commence proceedings'. In the Form 86A the decisions sought to be challenged are:

'(1) Decision of the Board of Graduate Studies to withdraw the applicant's name from the Register of Graduate Students by letter dated 28 January 1999.

(2) Decision of the Board of Graduate Studies... not to reconsider the previous decision and to decline the applicant's representations made against that decision by letter dated 17 January 2000.'

In reality, the Board did reconsider its decision on 7 December 1999 but was not willing to reverse it.

(16) Before turning to the grounds of challenge, it is appropriate to refer to the regulatory framework. It is to be found in the university's General Regulations for Admission as a Graduate Student. By reg 8(a):

'Each Graduate Student shall pursue... a course of research approved by the Board and by the Degree Committee who recommended his admission, or with the consent of the Board and the Degree Committee concerned, by some other Degree Committee, under the direction of a Supervisor appointed by the Degree Committee concerned, and he shall comply with any special conditions that the Degree Committee or the Board may lay down in his case...'

Regulation 10(e) states:

'The Board shall have power to deprive any person of the status of Graduate Student... if the Degree Committee have satisfied the Board: (i) that he has not been working to their satisfaction; or (ii) that he has not complied with the conditions laid down for him; or (iii) that, in their opinion, he is not likely to reach the standard of... any... qualification for which he might be registered.'

I turn now to the grounds of challenge.

1. Fairness

(17) This is the principal ground of challenge. It is common ground that the university was under a duty to act fairly towards the applicant when considering whether to allow her to continue or to remove her from the Register of Graduate Students. On behalf of the applicant, Mr Jones submitted that the way in which the university came to make the challenged decisions was unfair and contrary to the principles of natural justice. In essence he sought to identify two manifestations of unfairness:

(1) the failure or refusal to inform the applicant of the existence and identity of the senior member of the faculty who provided the opinion on reports she submitted after the retirement of Dr Gondhalekar; and

(2) the refusal to disclose to her the reports of Dr Gondhalekar and the senior member of the faculty so as to enable her to comment and make representations upon them.

The decisions were always likely to be of great importance to the applicant, with the potential damage to her career. I do not doubt that this underlined the duty to act fairly but I do not think that Mr Jones was correct to identify this case as an 'anxious scrutiny' case in the sense of Bugdaycay v Secretary of State for the Home Department; Nelidow Santis v Secretary of State for the Home Department; Norman v Secretary of State for the Home Department [1987] AC 514, 531, where Lord Bridge was specifically referring to the approach of the court 'when an administrative decision under challenge is said to be one which may put the applicant's life at risk'. As I see it, the task of the court in the present case is to ensure that the applicant was considered by the university in the fair and proper way that the serious circumstances required. At one point Mr Jones sought to rely on Art 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950 and Art 2 of Protocol 1 thereto but he later retreated, correctly in my view, to the proposition that these instruments do not, in the circumstances of this case, provide the applicant with any additional rights. Indeed it is difficult to see what relevance Protocol 1 can possibly have. It is more a case of the common law needing not to be less protective. In any event, I do not believe that this rather parenthetical part of the case has a significant bearing on the outcome of the application, one way or the other.

(18) Mr Jones' submissions on fairness are to some extent interlinked. As regards the identity of the senior member of the faculty, the contention is that, unless his existence and identity were disclosed prior to the decision, the applicant was in no position to make timeous representations about his independence or the suitability of his qualifications for the task he had undertaken. That, in turn, leads to the more general submission that, without being provided with copies of the reports of Dr Gondhalekar and the senior member of the faculty, she was unable to make meaningful representations to the Degree Commission or the Board. At each stage, fairness required disclosure.

(19) In support of these submissions, Mr Jones relied upon a number of authorities. I do not propose to refer to them all. R v Chelsea College of Art and Design ex parte Nash [2000] (1/4) ELR 686 was concerned with an undergraduate who sought to appeal her second year assessment by reference to extenuating circumstances including, eventually, an allegation of sexual harassment by her tutor. In granting her relief by way of judicial review, Elias J said (at paras 46-48):

'Finally, the question also arises whether the applicant should have been informed of the material which was to be placed before the Committee. It is a strong principle of English law that a decision-making body should not consider relevant material without giving the affected person the right to comment upon it: see for example, Wiseman and Another v Borneman and Others [1971] AC 297, per Lord Morris at 309 and per Lord Wilberforce at 320. As Sedley J pointed out in R v London Borough of Camden ex parte Paddock [1995] COD 130, this applies as much to public administration as it does to adjudication ... the material in the pack of documents made available to the members of the Committee was considered and debated for an hour before the Committee reached its decision. This shows commendable fairness by the Committee, but it also suggests that the background material as provided was considered to be of some real significance. It is well established that the question is not whether the applicant was in fact prejudiced but rather it is whether there is not a risk of prejudice.'

There are numerous examples of this approach in various spheres of decision-making, many of them in the context of factual disputes and/or disciplinary proceedings in relation to alleged misconduct. In R v Chelsea College of Art and Design ex parte Nash [2000] (1/4) ELR 686 itself, while the underlying issue related to academic assessment, the matters which were central to the internal appeal related not to the objective assessment of the applicant's work but to extenuating circumstances personal to her, including the allegation of sexual harassment. Nevertheless, Mr Jones submitted that the principle of disclosure as an aspect of fairness extends to the circumstances of the present case.

(20) On behalf of the university, Mr Jay QC sought to distinguish between the disciplinary type of case and the situation where what is in issue is pure academic judgment. He referred to Clark v The University of Lincolnshire and Humberside [2000] ELR 345 which came before the Court of Appeal as an action in contract rather than an application for judicial review. The unfortunate appellant, having been required to submit a dissertation for assessment in relation to her finals, suffered a computer mishap at the last minute and lost all her stored data. She felt constrained to submit something wholly inadequate instead and was failed. She later retook her finals and was awarded a third class degree - the most she could be awarded under the regulations following a resit. Her action in contract at least in part raised issues of academic judgment on the part of the appeal board. The facts do not resemble those of the present case but Mr Jay relied on certain statements of principle in relation to academic judgment. Sedley LJ stated (at para (12)):

'Like many other contracts, it [ie the contract between the student and the university] contains its own binding procedures for dispute resolution, principally in the form of the Student Regulations. Unlike other contracts, however, disputes suitable for adjudication under its procedures may be unsuitable for adjudication in the courts. This is because these are issues of academic or pastoral judgment which the university is equipped to consider in breadth and depth, but on which any judgment of the courts would be jejune and inappropriate. This is not a consideration peculiar to academic matters: religious and aesthetic questions, for example, may also fall into this class. It is a class which undoubtedly includes, in my view, such questions as what mark or class a student ought to be awarded or whether an aegrotat is justified.'

Lord Woolf M.R. added (at para (29)):

'A university is a public body... Court proceedings would, therefore, normally be expected to be commenced under Order 53. If the university is subject to the supervision of a visitor there is little scope for those proceedings... Where a claim is brought against a university by one of its students, if... it does not have a visitor, the role of the court will frequently amount to performing the reviewing role which would otherwise be performed by the visitor. The court... will not involve itself with issues that involve making academic judgements. Summary judgment dismissing a claim, which if it were to be entertained, would require the court to make academic judgments should be capable of being entertained in the majority of situations.'

I should add that, apparently, there is no visitor procedure available in the present case. Mr Jay also pointed to support for this approach in R v Senate of the University of Aston ex parte Roffey [1969] 2 All ER 964, where the student's application succeeded because the central issue was not simply one of academic judgment, and Herring v Templeman [1973] 2 All ER 569. He also referred to R v Joint Higher Committee on Surgical training ex parte Milner [1995] COD 66, in which Ognall J distinguished between 'a decision based on professional opinion, on the one hand, and one based on disputed fact on the other'.

(21) I have absolutely no doubt that, so far as the present case is concerned, Mr Jay's submissions are correct. Whilst it is true that, in the decision letter referable to the decision taker in July 1998, reference was made to both a lack of progress and recent absences from the Rutherford Appleton Laboratory, and whilst it may seem that the former is a matter of academic judgment but the latter is less obviously so, the later decision of January 1999, the one under challenge, was clearly based on the lack of progress. At the heart of this case is the reality that the Board of Graduate Studies resolved to remove the applicant's name from the register because of the professional and academic advice it received and accepted about a lack of progress and the lack of a viable basis for future research - and this after over 6 years had elapsed since her arrival in Cambridge. Moreover, the less important issue of recent absences was not really a live issue at all. Dr Gondhalekar's observations that 'you had apparently stopped coming to the Rutherford Appleton Laboratory from January 1998' is only marginally disputed by the applicant (albeit she has her own explanations or excuses).

(22) In my judgment it was not unfair for the university authorities to decline to disclose the reports of Dr Gondhalekar and the senior member of the faculty to the applicant. Nor was it unfair (although in the circumstances it is a little surprising) that they refused to disclose the identity of the senior member of the faculty whose opinion was sought and obtained. It is fanciful to suggest that for the Degree Committee to decide that a particular colleague should be appointed to provide a qualified and independent opinion was to enter territory in which the choice was potentially subject to representations from the applicant or to the appropriateness of his qualifications and independence.

(23) At all material times the applicant must have known that she was walking an academic tightrope at least from October 1997. With apologies for the mixing of metaphors, she was in the last chance saloon. Her future depended on her satisfying the judgment of Dr Gondhalekar, the Degree Committee and the Board of Graduate Studies as to her progress. In their academic judgment, after obtaining appropriate advice and considering the lengthy representations which the applicant was enabled to make, she was found wanting. I am entirely satisfied that that decision and its subsequent reconsideration complied with the requirements of fairness in the circumstances of this case. Put another way, the non-disclosures of which the applicant complains were not unfair. There are sound and obvious reasons why reports to those who have to make academic judgments of this type should remain confidential, thus enabling the reporters to express themselves frankly in the knowledge that what they have to say will not be made available to the subjects of the reports.

(24) The applicant has not established unfairness and, accordingly, this ground of challenge fails.

2. Reasons

(25) The next ground of challenge is that there was a failure to give the applicant adequate, proper and intelligible reasons for the decision to remove her name from the Register of Graduate Students. Mr Jones submitted that the giving of reasons was particularly important in this case because of the significance of the decision for the applicant's future and because she had not been allowed to see the case against her. He also referred to the need for a research scientist to receive feedback so as to assist her in her future research. He contended that even if there was initially no legal duty to give reasons, the university had chosen to advert to the reasons and in that case they were under a duty to give reasons in a legally acceptable form.

(26) Mr Jay did not accept that there was a legal duty to give reasons in relation to academic decisions such as this, relying on R v Higher Education Funding Council ex parte Institute of Dental Surgery [1994] 1 WLR 242, in which Sedley J, giving the judgment of the Divisional Court, said (at 261): 'But purely academic judgments ... will as a rule not be in the class of case exemplified, though by no means exhausted, by ex parte Doody [1993] 3 WLR 154, where the nature and impact of the decision itself call for reasons as a routine aspect of procedural fairness.' He also submitted that the fact that the university purported to give reasons did not create a legal duty where none existed beforehand. Whereas a decision-maker who voluntarily chooses to consult may create a legitimate expectation that such consultation, which by definition precedes the eventual decision, will be meaningful, it does not follow that a voluntary giving of reasons following a decision carries with it any legal duty as to the form of the reasons. Alternatively, if there was a legal duty in the present case, it had been discharged.

(27) I am prepared to assume without deciding that, at some stage, a legal duty arose in the present case. However, even on this basis, the ground of challenge fails. The original decision under challenge was explained to her in the statement 'Dr Gondhalekar was not able to report positively on your progress over the whole period when you were supposed to be working with him'. This was effectively a statement that the decision had been taken by reference to reg 10(e)(i) and/or (ii).

3. Fetter of discretion

(28) The case for the applicant in relation to this ground of challenge is that the Board of Graduate Studies rigidly applied pre-existing policies without regard to the circumstances of the particular case. The policies referred to are a policy not to disclose reports and a policy that reinstatement 'can only be considered when a student has completed a project for which they were registered' (letter dated 4 February 1999).

(29) I do not consider that a policy of not disclosing reports of supervisors or academic references is unlawful. Moreover, although there is such a policy, there is also evidence that consideration was given to disclosure in the particular circumstances of this case.

(30) The other alleged fetter is in my judgment unarguable. Regulation 8 requires a student to pursue 'a course of research approved by the Board and by the Degree Committee'. For more years than were originally anticipated the applicant was registered to pursue a particular course of research approved by the Board under a succession of supervisors appointed by the Degree Committee. It did not bear fruit. I do not believe that the university can now be criticised for refusing to depart from policy by reinstating the applicant to pursue a new course of research under a different supervisor.

4. Unlawful delegation

(31) Mr Jones next submitted that the Board had acted unlawfully by delegating the making of the decision about the applicant to the senior member of the faculty. It was actually the Degree Committee who sought the view of this person. They did so as a response to the applicant's complaint that Dr Gondhalekar had not seen her report produced after his retirement. It seems almost churlish to complain that a further opinion was sought in the prevailing circumstances. However, the real question is whether there was in fact a delegation of the decision-making power. I am quite sure that there was not. There is nothing to suggest that the Degree Committee and ultimately the Board did not exercise independent judgment in the light of all the material before them, including the report of the senior academic. I have to say that this ground of challenge is a total non-starter.

5. The appointment of the senior academic

(32) The final ground of challenge is that the Board acted ultra vires by appointing the senior academic to provide an opinion on the applicant's May/June report. As I have just said, it was actually the Degree Committee who involved this person. The point which Mr Jones sought to exploit was the fact that the Regulations do not expressly provide for such an appointment. It is true that they do not do so. However, Mr Jay submitted that the Degree Committee and the Board have the power to regulate their own procedures subject to overriding considerations of fairness and reasonableness. Fairness and reasonableness were manifest in this case, particularly when the applicant had complained about Dr Gondhalekar's input. I entirely agree with Mr Jay's submission on this ground of challenge which is without merit.

Conclusion

(33) I can find no merit in any of the grounds of challenge and, accordingly, this application for judicial review fails. Mr Jay made an additional submission, namely that even if one or more grounds had been sustained, it would still have been inappropriate to quash the decisions and to require reconsideration because, on any view, the applicant has failed to reach the required standard and it is very unlikely that any amount of conscientious reconsideration would produce a result favourable to the applicant. In my view there is force in this submission. However, it is unnecessary for me to decide the point in view of my findings on the substantive grounds of challenge.

DISPOSITION

Application dismissed.

SOLICITORS

Teacher Stern Selby for the applicant
Mills & Reeve for the respondent

DOMINIC MCGOLDRICK, Barrister