HEARING DATE 29 October 1998
University - S awarded pass degree - S submitting dissertation late - S awarded no marks for dissertation - Dispute as to whether oral extension granted - Whether university had erred in law in finding that no extension had been granted and awarding no marks - Whether awarding no marks was disproportionate - Whether university had made adequate inquiries before arriving at decision
HEADNOTE
S was a student on the honours degree course in business studies at the University of Central England. As part of his assessed work, S was required to submit a dissertation. The deadline for submission was 12.00 on Friday, 26 April 1996. On that date the machine that S was using to photocopy his dissertation allegedly broke down and computer files containing two chapters of his dissertation were corrupted. S was advised that he needed to request an extension from J, the course director. S claimed that J granted an oral extension of time until Monday, 29 April 1996. The dissertation was handed in at 6.45 pm on that date. A fellow student who asked for and received an extension to later on the day of 26 April 1996 supported S's claim. The fellow student's work was submitted and not penalised in any way. J's version was that he did not grant S an oral extension. The judge's view was that the proper explanation of what had happened was that J had said that S could put in his dissertation and that it would be for the examination board to consider S's explanation.
The examination board met and decided to award S a pass degree. It did so on the basis of a profile that included a mark of 0 for the dissertation that was submitted late with no good reasons for late submission. A resit board of examiners, which considered all the relevant material, subsequently affirmed the decision. It decided that the mark of 0 would stand. An appeal to the Pro-Vice-Chancellor was rejected. The Vice-Chancellor then confirmed the examination board's decision and refused to put the matter before the university senate. The Vice-Chancellor's conclusion was that the decisions of the examination and resit boards to award a pass degree were not unreasonable in all the circumstances. The university subsequently changed its regulations so that only a proportion of marks, but not the whole, would be awarded for a late dissertation.
S submitted that: (i) the university had erred in law in finding that an extension of time had not been granted; (ii) the university had erred in law in awarding S no marks for his dissertation; (iii) awarding no marks for the dissertation because it was submitted one working day too late, and therefore making the award of an honours degree impossible, was disproportionate. The university rules to that effect were Wednesbury unreasonable or irrational; and (iv) the university had failed to make adequate inquiries before arriving at its decision. S sought an order quashing the determination and consequent further determinations that he be granted a pass degree.
Held
Dismissing the application:
(1) The university had not erred in law in finding that an extension of time had not been granted. There was material on which the university could find that there was no valid extension.
(2) The university had not erred in law in awarding S no marks for his dissertation. It was for the examination board to consider the circumstances. That other students may have been granted an extension of minutes was not relevant.
(3) Awarding no marks for the dissertation because it was submitted one working day too late, and therefore making the award of an honours degree impossible, was not disproportionate and the university rules to that effect were not Wednesbury unreasonable or irrational. The examination board had a discretion to consider any extenuating circumstances and if they thought there was good reason they could have allowed the dissertation to be marked and marks to be awarded.
(4) The university had not failed to make adequate inquiries before arriving at its decision. Its inquiries to S's solicitor had been directed to determining whether S had been wrong in his submissions as to the cause of his being delayed being the breakdown of the university computer.
COUNSEL
Anthony Peto for the applicant
Ian Wise for the respondent
PANEL: Owen J
JUDGMENT BY OWEN J
The applicant seeks to quash a determination and consequent further determinations of the respondent university that he be granted a pass degree. At one time he claimed he should have been given a 2:2 but now it is apparent that if his contention is right he should have been granted a third-class honours degree. All turns on what was said and done on 26 April 1996 and it is necessary to look at the chronology.
The applicant commenced the honours degree course in business studies at the University of Central England in September 1992. There were various regulations by which the university ran itself and also ran the various courses. No criticism is made of those as such, although there is a criticism of what in fact happened, as I shall come to later. The various relevant regulations are set out at p 97 in the bundle and onwards, for instance at p 98E 2.1.1 and E 2.1.2 which indicate that the faculty 'shall ensure that the assessment requirements for programmes of study are made known to students' and that 'Students must be made aware of the detailed requirements of both sets of regulations'. No criticism is made of that and it is abundantly clear that the applicant did have made known to him the various requirements - that is not the point which is argued here. There was a handbook to which I must come later. There was in the assessment regulations at E 2.2.1, again on p 98, this requirement:
'It is the responsibility of students to attend examinations and submit work for assessment as required and to provide the examiners in advance of their meeting with any relevant information on personal circumstances which may have affected performance and which they wish the examiners to take into account.'
And at E 2.2.2:
'If a student fails to attend examinations or submit work for assessment without good cause, the examiners have authority to deem the student to have failed the assessments concerned.'
And that is what in effect happened here.
The handbook is copied at p 286 onwards in the bundle. At p 300 there appears reg 6.4:
'At the beginning of each unit/double unit students will be notified of any non-invigilated assessment within the course and the deadlines for submission of these assignments. Students who fail to submit assignments for the assessment by the due date will receive a mark of zero in the assignment(s) in question except where prior approval for late or deferred submission has been obtained from the year tutor/Course Director as appropriate, or extenuating circumstances are subsequently demonstrated.'
That has importance in this application since that is where the dispute lies. The way in which prior extension might at that time be obtained is by the submission of a form which is known as IDP3 Coursework Extension, an example is shown at p 311 of the bundle, that is an extension which was granted to the applicant from 6 November 1995 to 13 November 1995 and was signed in the proper way. That clearly shows, say the respondents, that the applicant was aware of the proper procedure to be carried out and, as I understand it, it is not suggested for one moment that he did not know the proper procedure. It is apparent that in May 1996 he again applied for an extension in respect of other work and that written form is copied at p 314 of the bundle.
In March 1996 letters were sent out indicating that the deadline for the dissertation which each student had to prepare was 12.00 on Friday, 26 April 1996 - the letter is copied at p 329 of the bundle. That indicates the requirements for the project; it indicates the number of words; it indicates how they should be submitted, word-processed and double-spaced; the length, 8000 to 10,000 words, excluding appendices; the necessity to provide two bound copies; and indicating that binding could be done in the Faculty Learning Centre. Both copies, it says, must be handed into the faculty office on the second level: 'There will be a list for you to sign and the projects will be date stamped' - not timed, but date-stamped. It continues:
'The submission deadline for BABS Sandwich projects is 1200 hours Friday, 26 April 1996. Any project submitted after the deadline will not be accepted in the Faculty Office.'
That was sent to the applicant in March 1996. The applicant did not have his dissertation prepared well in advance, which might have been the prudent course, but he is not the first student not to have done that which was prudent nor will he be the last. However, on anybody's version it is clear that he did leave the final preparation to the very last minute. It was on 26 April 1996 itself that he was copying his work on the university copier when, as I understand it, the university machine broke down. No doubt that was bad luck and bad luck it was in addition that apparently he lost two chapters as appears from the letter at p 411 of the bundle:
'He advises that the two files containing chapters 3 and 4 were corrupted, so that they were no longer on the disk.'
That was the position then which faced him, having left these matters until a dangerously late time. He quite clearly was concerned and he made inquiries to see whether he could obtain an extension. He saw Denise Thompson, as appears from her affidavit copied at p 373 of the bundle. The applicant told Denise Thompson that he was having problems in printing off his project in the library. She says that she remembers him asking what he should do, although she cannot recall the exact conversation and of course that is understandable as she was not required to swear an affidavit until 9 January 1998. She says, however, that she impressed upon the applicant that she was unable to do anything since computer failures are not considered acceptable reasons for failing to hand in a project by the deadline given. She says that she does specifically recall telling Mr Sandhu that he should go and find the projects tutor or another relevant tutor and explain his situation. Clearly that did not help him very much. He then went to see Andrea Frame. Her affidavit is copied at p 332 onwards in the bundle. She at that time was concerned with the course but she was not in charge of the course. Mr Sandhu asked her if he could obtain an extension of time, again indicating the difficulties which had occurred. According to her affidavit, she said that her response was that it was most unlikely that he would be able to obtain such an extension. Then he explained about the problems with the computer. She says that she said as a general rule the university will not grant extensions for computer problems and she says that she told him that to leave the printing of his project as late as that was a high-risk strategy and high-risk strategies often fail. But she says that that was not the first nor the last time she had told a student that in similar circumstances. In the event she was not empowered to grant an extension and it is not suggested that she did. She suggested that he ought to apply to the year tutor or the course director. He must have known that that was the case because it is that person who is the person who can sign the written form and who had signed the written form which he had obtained some time before. In the event, he did go to see Dr Johnson and here there is a dispute as to what happened. Dr Johnson was the person who would have been able to sign the form if he had thought right so to do. He gives his version; there are other versions as well and it is quite clear that the versions do not tally. The other versions are those of the applicant himself and also the version of Mr Fisher, who was apparently with the applicant at the time when the applicant requested an extension from Dr Johnson. The way it is put by the applicant is at least twofold. At p 42 he puts it in this way - when I say twofold that does not mean that they are contradictory:
'On the morning of Friday 26 April I was the library computer room printing my project. I began experiencing problems with the computer. As soon as I realised that the problems may cause me some delay I notified Denise Thompson [she is the witness to whom reference has been made].My problems with the computers continued throughout the morning and I knew that this long delay might cause me to miss the deadline. I then informed my project tutor Andrea Truran of the situation, who pointed out that there was very little she could do. My year tutor Phil Laycock was not at the university on the morning of Friday 26 April, so the next option for me was to see Dr Jeffrey Johnson. I went to see Dr Johnson with another student - Jonathan Fisher. I explained my predicament to Dr Johnson in the presence of Jonathan Fisher.'
He said it was a 'hectic day for all those concerned' and he was not blaming anybody at all. He says that it was never suggested that he would receive a zero mark for a late submission; if anybody had suggested that he would have put in what he had already - whether that would have helped very much it is not clear. He has indicated also in the document which is copied at p 44 what happened in a little more detail:
'I later realised that two chapters of project were missing from the disk which were attributed to the computer complications. The disk was checked by the technician of the Galton building and he identified errors on the disk which meant that I was unable to retrieve the missing chapters.I also contacted Dr Jeffrey Johnson and explained the situation to him and he granted me an extension until Monday, 29 April 1996 to hand in the project with a covering letter explaining the circumstances of the extension.'
He says he deeply regrets the circumstances that occurred that were not in his control and as agreed with Dr Johnson the project was handed in on Monday, 29 April 1996. Therefore it can be seen that the applicant was saying at a very early stage that he was granted an oral extension of time by Dr Johnson.
Mr Fisher gave a statement originally and later gave an affidavit. There is no noticeable difference between the two. He was a student on the same degree course as the applicant and his first statement said this:
'Iqbal [the applicant] was granted an extension of time to submit his dissertation, as I was present, and had asked for and been granted an extension of time myself at the same time.'
It goes on to say that although it is almost 2.5 years ago:
v 'I am none the less able to recall [the events] clearly enough to be able to refute the descriptions of the events [given by Dr Johnson].'
He says he asked for and was granted an extension to later that day, that is on 26 April 1996. He did not submit his work by the 12.00 deadline but he did submit it later that day and he was not penalised in any way. He in effect says that when Dr Johnson asserts that what he said did not amount to an extension of time, and that he, Mr Fisher, must have overheard in part and misunderstood what was being said, he said:
'I do not see how such a fundamental misunderstanding is possible.'
That then is the state of affairs so far as the applicant and his witness are concerned.
We then have to look to see what Dr Johnson says about this. At p 319 of the bundle he deals with the matter. At para (8) he says:
'I cannot be precise about the timing, but at about 11.40 or 11.45 am on Friday, 26 April 1996, Mr Sandhu came to see me. I was in the departmental office... Nearly all of the projects had been handed in by then, and I was engaged in the task of putting the completed assignments into batches. 79 projects were handed in that day, each of them in duplicate.I cannot recollect precisely what was said between myself and Mr Sandhu, but he first identified himself to me before going on to say that he was having problems printing out his dissertation. He asked me whether he might hand it in after the deadline.'
And then there come these words:
'I was rather taken aback by his request. This was the first time in all my experience a student had sought an extension at such a late hour for something so important. The project carries double marks, and is therefore of great significance towards a student's overall degree classification. I believe that two written extensions were granted that year, one on the grounds of a terminated pregnancy, and the other because one of the candidate's parents had suffered a heart attack. I think it may be seen that there has to be a persuasive reason for granting an extension. Against this background, Mr Sandhu's approach struck me quite forcibly as being out of the frame.Indeed, it seemed to me that it would have been maverick behaviour on my part to grant an extension in those circumstances.'
He goes on to say that his colleague Phil Laycock was a stickler for procedure and says:
'I asked myself how I would explain myself to Mr Laycock if I granted Mr Sandhu an extension.'
At para (12) he says:
'It was clear to me that I should not grant an extension. I gave Mr Sandhu to understand that I was unable to extend the deadline. I said that a deadline was a deadline, or words to that effect. It was simply too late to extend it now. It would not be something which I could explain...'
Later he says that he recollects that principally he felt indignant at his request. Quite clearly he had been shown Mr Fisher's statement and he says in respect of that:
'I am clear about this though, I did not grant Mr Sandhu an extension, nor did I grant one to anybody else. At best Mr Fisher may have been mistaken.'
He then suggests that that is what in fact may have happened.
That is what Mr Johnson says happened and quite clearly it is in conflict not only with what the applicant and Mr Fisher say, but it is also in conflict, as I see it, with some of the references to what happened later on in the history where he is described as having no very clear recollection that such remarks were made. The question is how to reconcile, if it be possible and if it be proper, these conflicting statements. Certainly so far as the university was concerned, the only way to extend time was by Dr Johnson granting an extension. Certainly so far as the university was concerned there would not have been an automatic extension of the kind which the applicant was seeking merely because the computer had broken down on the very day when the dissertation was to be submitted. It seems to me that it is possible to reconcile these two differing accounts in this way: Dr Johnson clearly did not sign a written form, nor was one put to him. It may very well be that Dr Johnson was not particularly concerned with Mr Fisher's dissertation not being handed in by 12.00. He says he does not recollect granting any extension and certainly nobody suggested a written extension was granted. But to grant what is an extension of possibly minutes is one thing, but to grant an extension going over to an entirely different day, as it seems to me, is another thing altogether and it does appear that what in fact happened may be explained by the letter which eventually the applicant wrote. I start however with this position, that Dr Johnson could have granted a written extension, and it seems to me that I should start with this position as well, that he could have granted, although it would have been contrary to university regulations, an oral extension. Having said that, it seems to me highly unlikely that he would have granted an oral extension because so to do would be contrary to the university regulations and would have been contrary to the experience indeed of the applicant himself. On the other hand it seems that he would not have said: 'You can't submit your papers at any time' because it is apparent that the examination board may in certain circumstances accept an excuse. So what did he say? It was not the next day - perhaps it is right to say that the next day was a Saturday and maybe nobody was present at the university on that day or on the Sunday - but it was on 29 April 1996 when the dissertation was submitted. It was not submitted in the morning; it was submitted at 6.45 pm and with it there was a letter written by the applicant and that is copied at p 44 of the bundle. It is a letter of some concern. It is a letter addressed 'to whom it may concern'. What is important about this document is that it indicates an excuse. It does not claim that Dr Johnson granted an extension which was binding, although it does claim that he granted an extension in the deadline. The question is, was that any more than Dr Johnson saying: 'You can put your dissertation in and it will be for the examination board to consider your explanation'? As it seems to me, that is the proper explanation of what in fact happened. I certainly, in the light of Dr Johnson's affidavit and the parts which I accept, am not prepared to say that I should approach this matter on the basis that Dr Johnson granted an extension, meaning thereby a binding extension and an extension which was equivalent to that which is contemplated by the university regulations. He did not grant such an extension, but he did allow the applicant to put forward his dissertation with his explanation and that of course can be construed in one way as an extension but it is not the extension which is contemplated by the rules.
It was after that that the applicant again requested - and on this occasion obtained - an extension of time for submission of different course work and this permission is copied, as I have indicated at p 314, being granted on 15 May 1996.
The examination board met on 8 July 1996 and it decided to award a pass degree. The minutes are set out at p 370. They are not particularly fullsome and there have been attempts to remedy that by some of those who were there. In the minutes it is said:
'The board reviewed the student's profile noting the failure in the single unit Marketing Communications A. The student had not taken B.
The student had also submitted the project late. He had been unable to submit the project by Friday noon because of printer problems. A written request for an extension to Monday was submitted but the student then experienced disk and printer problems.'
There was no such written request, as I understand it, or certainly there was no written form; it may be that that which I have already read is supposed to refer to or is the written request which was contemplated there. The minutes go on:
'It was observed that this was a very high risk strategy which had failed. The board considered whether to award a 0 for the project due to late submission with no good reasons for late submission.It was observed that the student's placement in the USA had been only for a maximum of 19 hours per week. The student had also attended Black Hawk College in his second year, and marks awarded there had been included in his transcript.
The board considered a 3 v Ordinary noting the 3 unit failures.'
It decided on an ordinary degree.
There is nothing there to indicate that the factual matters which had been put forward by the applicant were in any way not accepted. Indeed, it seems to me that they were.
The bad luck of the applicant did not finish with the computer difficulty since when he received his notification of a pass degree, erroneously it was said that he had been awarded 47 marks for his dissertation; in fact he had been awarded no marks. However, the dissertation had been marked so that if necessary the examination board could take it into account and 47 was the number of marks given on that basis.
On 13 August 1996 the applicant, who did not at that time know that this error had been made, made written representations to the university against his award of an ordinary degree on grounds of extenuating circumstances. Those extenuating circumstances were to do with his own circumstances and family circumstances and so on, and have played no part in this application, although no doubt one should be sympathetic towards him as a result of those.
The procedures for the representation by students against academic decisions are copied out at p 140 and onwards. I do not think it is necessary for me to refer any further to those. The decision of 8 July 1996 is the first of the decisions about which the applicant complains. A subcommittee of examiners next met and this was in September 1996. It decided to refer to the full board of examiners; they noticed the error to which reference has been made about the dissertation marks and corrected them to nil. On 5 September 1996 they issued a revised notification. Thereafter the applicant made further written representations to the resit board (as it is called) and here he alleged that he had been granted an oral extension to hand in the project, that being the oral extension which he says was given by Dr Johnson and those were the representations which I have already read out. On 26 September 1996 the resit examination board met and decided to affirm its previous decision and award a pass degree. The minutes of that meeting are set out at p 359 and again there are affidavits dealing with what in fact went on, to which it is not necessary for me to refer in this judgment. One of the statements in those minutes is one of the statements to which I referred earlier, indicating that Dr Johnson in his affidavit - and certainly I do not suggest and nor has anybody else suggested any wrongdoing on his part - may have come to a conclusion which was not wholly right and I have taken that into account in coming to the conclusion I have come to as to what happened on that day. It is said:
'The Course Director due to work pressures has no clear recollection of giving an extension 10 minutes before a deadline.'
It is the use of the words 'due to work pressures' and 'has no clear recollection' which give cause for concern since the rules and regulations which must have been known to everybody required him only to give an extension in the circumstances where a form is given, the reasons are given, the reasons are accepted and an extension is made. In those circumstances it is unfortunate that those words were used if the conclusion to which I have come is correct and I have considered whether those words are such as to make me come to a different conclusion; they do not. It is fair to say that the minutes have to be seen in the context of what they were: they are minutes which were written up and no doubt were the best that could be done, but they are not signed by everybody as being word for word correct. What others who were there say is that we interpreted that statement attributed to Dr Johnson, as meaning that he could not have done it because he certainly would have had a clear recollection if in fact he had given an extension only some 10 minutes before the deadline. Well, if that be the case it is unfortunate that it is worded in that manner.
On 11 October 1996 the resit board sent the applicant a letter notifying him of the decision and notifying him of his right to appeal to the Pro-Vice-Chancellor. That is copied at p 47 and is in very short form indeed:
'Dear Mr SandhuBA BUSINESS STUDIES
I regret to inform you that the board of examiners has declined to change their decision on your degree. All the information supplied in your appeal was put before them and they deliberated very carefully for a long time.
If you wish to pursue the matter further you will have to put your case to the Pro-Vice-Chancellor ...'
It seems to be perfectly correct that all this material was put before the resit board and it does seem from the minutes that they did consider the matter. Indeed the minutes state:
'The exam board discussed the matter at length in the summer and awarded a 0 for the project due to late submission with no good reason given for late submission.'
It says:
'With regard to his project the student was irregular, unreliable and did not submit a draft.'
Certainly it is correct that he did not submit a draft. The board then fully reviewed the matters raised by the student's appeal with regard to exceptional extenuating circumstances re his emotional, health and financial pressures and so on. Failure in Marketing Communications A was noted. The board reviewed the award of 0 for the project due to late submission without permission and considered whether to award the mark of 47. The applicant was claiming to be a 2:2 student and accordingly the minutes went on:
'Even if 47 was awarded for the project this was not a 2:2 student, he was a 3 on all criteria with a failed Stage 3 unit. It was decided that the mark of 0 stood. Therefore the student had 3 failed units with extensive extenuating circumstances. The board noted he was a full time student, working and who had claimed income support.After full deliberations the board agreed that it would maintain its original decision.'
As it would seem from that, here, as one would expect, was a resit board considering all the matters which had been put forward by the applicant; considering them with care and coming to the conclusion which undoubtedly they must have felt was right, although I must of course consider the complaints which are made about this decision. That is the second of the decisions; the 11 October 1996 decision, as it would be convenient to call it.
The applicant wrote an appeal letter to the Pro-Vice-Chancellor and there were other written representations made to him as well. He in his turn notified the applicant of his decision to reject the appeal in a letter to the solicitors. He had no jurisdiction to examine on the merits and it is conceded that his decision is not a free-standing decision; it follows on the other two. If decision 1 and decision 2 are right then no criticism can be made of the Pro-Vice-Chancellor. If decisions 1 and 2 are wrong, then no doubt the Pro-Vice-Chancellor's actions and decision are of no avail, but nobody suggests that he did not do what was proper when he came to his conclusion.
There were meetings with the applicant and the welfare officer of the Student Union and finally there was an appeal to the Vice-Chancellor. That was in the terms set out at pp 66-67 in the bundle.
The Vice-Chancellor replied to that confirming the examination board's decision and refusing to put the matter before the university senate which was the course which had been proposed to him. His decision is copied at pp 68-69. There is also an affidavit from the Vice-Chancellor. At p 68 he in his letter said this:
'I now move to the question of whether or not he was granted an extension in submitting his dissertation. It is clear from the papers that are available to me and were considered by the examination board, that independent witnesses have indicated that in their view he was granted such an extension. It is equally clear that the academic staff involved cannot recall whether such an extension was granted. In other words there is a dispute as to the circumstances surrounding the granting or not of the extension. While I personally, solely on the basis of the papers in front of me, might be prepared to accept that an extension was given, the matter remains in doubt. It is also clear, although not required by regulations, that drafts of the dissertation had not been submitted to the tutor concerned in advance and Mr Sandhu's strategy of leaving the printing of the dissertation to the very last moment was clearly an unwise one.In deciding what further action, if any, should be taken I have had to consider whether the examination boards that reflected on this matter, reached a reasonable decision and were in possession of all the relevant facts. It is clear to me that the examination board that met on 8 July 1996 and the resit examination board that met on Thursday 26 September 1996, both considered the position of Mr Sandhu at some length. I have to conclude that while I might personally have reached a different conclusion, the decision of the examination board and the resit examination board to award a pass degree rather than a third class honours degree was not unreasonable in the circumstances.
Therefore, while I am sympathetic to the problem that Mr Sandhu has experienced, I regret that I do not believe that this is a matter that should be put before the senate of the university. The examination boards concerned have conducted themselves in a proper manner and have reached their decision in the light of the information that was available to them. That alone ensures that the case is not appropriate for reference to senate. Furthermore I suspect if the matter was referred to senate I would be surprised if the senate took any decision other than to confirm the decision of the examination boards.'
The next part of the history is that this application was made and leave was given by Dyson J on 21 October 1997.
Various submissions are now made. Helpfully there were skeleton arguments and I propose to refer to those. First, it is said that the respondents erred in law in finding that an extension of time for handing in the applicant's dissertation had not been granted in the light of the evidence for the applicant that an extension had been granted and the evidence of the academic staff that they could not recall whether such an extension had been granted or not. That of course refers to the evidence in particular of the applicant and of Mr Fisher and also to that which was said in the minutes about the course tutor not having a clear recollection. What is submitted here is that there should have been a finding that an extension was granted and it is said if that had been the case and if that were to be the finding then he would be entitled to have his marks, 47%, added to those which were granted in any event and that would have meant a third-class degree. Here what is said against this is, first, that to say that an extension was granted is not necessarily to answer the question. The question which should be asked is what sort of extension was granted and was it an extension within the rules and within the understanding of the applicant? As I have indicated, it seems to me that the proper conclusion is that he was told that he could put in his dissertation, that he could put in his explanation and that, of necessity, the matter would then be considered by the examination board. They could have said: 'We will accept this explanation'. As is abundantly clear they considered whether they should do that or not. But in the end they were entitled to find, and certainly it was not in any way unreasonable for them to find, as they did in fact find. In my judgment here there was material upon which they could find that there was no valid extension in accordance with the rules and in those circumstances I reject this argument. It seems to me, as I have already indicated, that what happened is to be explained in the manner which I have indicated.
Next it is said that the respondents erred in law in awarding the applicant no marks for his dissertation given that he was granted an extension of time for submitting the dissertation and it is said that if there was a proper extension given the only reason for that would have been so that the dissertation could be marked. However, as I have already indicated, that was not the situation. The situation was 'You may submit your dissertation by leaving it and it will then be for the examination board to consider the circumstances which you have stated'. The second matter under this heading is that the respondents erred in law in awarding the applicant no marks for his dissertation. A number of students who were granted an extension of time in similar circumstances were not penalised for lateness. This again has raised a difficulty. Certainly Mr Fisher says that he was granted an extension of time in that he did not file his dissertation by 12.00 but did later that day. It is said in a letter which is copied at p 49 onwards, and I quote from p 51, a letter written by the solicitors acting for the applicant:
'It is quite clear that other students have been granted extensions in which to lodge their dissertations but they have not been penalised. In the circumstances, it seems clear that our client has been extremely unfairly treated. For instance, Russell Motler, Minaxi Patel, Richard Milnes, Jonathan Fisher and Majafar Ibrahim were granted extensions in which to hand in their dissertations but they have not been penalised.'
Nothing is before me as to those five, save for that letter. Against that I have the affidavit of Dr Johnson, and I bear in mind again the criticisms which I have already made. He says at p 319, para 10:
'I believe that two written extensions were granted that year.'
That is the passage to which I made reference earlier and as Mr Wise said, presumably that was said after reference to the records. Therefore the position is that it may be that some of those were a minute or two late but I draw the distinction between an extension of minutes on the day, the proper day, and that which has happened in this case when the dissertation was only submitted in the evening of the Monday when quite clearly much more work had been done upon it - not necessarily in the shape of changing it in any way, but in the shape of making it a dissertation which could be read as a whole. Therefore I have to reject that as a matter which has relevance to that which I have to decide.
The third matter which is raised is that the effect of awarding no marks for the dissertation and therefore making the award of an honours degree impossible was disproportionate given that the dissertation was only one working day late and there is a reference then to undergraduate assessment regulations now in force, those having been copied at p 379 onwards. What has happened is that in order that there should be a uniformity in the various schools of the university, new regulations had been prepared and under those regulations, merely because you are out of time does not necessarily mean that you get no marks, indeed that will not be what in fact has happened, what would happen and what happens under the new regulations is that a proportion of marks is awarded but not the whole, necessarily, given that there is no excuse. And so it is said that that at the very least is bad luck on this applicant and so it may be, but again one has to see what the position was for the examination board. They had all the facts which were put before them including the applicant's explanation and they decided in accordance with the rules which were then the rules that they would have to award no marks. It cannot be said that those rules were Wednesbury unreasonable or that they were irrational; it cannot be said that it is unreasonable or irrational to say that you must have your work submitted on time, particularly not when of course there is a discretion which is available for the board to consider any extenuating circumstances and if they think there is good reason they can allow the dissertation in effect to be marked and marks to be given although out of time. Here the examination board were not prepared to do that and they were entitled, in my judgment, to come to that decision. It is certainly not accepted by the university that the original rules were unfair or unreasonable in any way and indeed at one stage it was pointed out that, particularly in a business studies course, there is a merit in demanding that the students should do their work and arrange their work so that they are able to comply with the requirements of the university. That again is a factor, as it seems to me, which it is right for me to state, although it does not go a great way in making me come to the conclusion which I do, which is that this error which is alleged is not an error at all and certainly not an error in law.
Lastly it is said that the respondents erred in failing to make adequate inquiries before arriving at their decision. In particular they failed to inquire into those matters referred to in the respondent's letter of 18 April 1998. That letter is copied at p 405 of the bundle. It is a letter written by the solicitors acting for the university to the solicitors acting for the applicant and it asks, in the second paragraph:
'We wonder whether you can assist us with certain items of evidence? We should be glad if you would let us have answers to the following questions...'
And it sets out some nine questions, all referring to what happened on 26 April 1996; asking about the disk; asking about the difficulties; asking about the computers on which the applicant prepared his dissertation and so on. Without wanting any authority for it, I accept that it would be quite wrong for any of these university bodies to make their decisions on inadequate information. There must be sufficient information for them to make a proper decision. As it seems to me, what these particular questions are about is the respondent's solicitors wondering whether they can obtain information to show that the applicant is wrong in his submissions as to the cause of his being delayed being the university computer which broke down. The individual boards may not take that attitude. I suppose it is right that if the inquiries had shown that the applicant was wrong in what he was submitting way back in April 1996, it might well have helped the respondent. However, the information did not help them and certainly this letter does not in any way indicate that the university takes the view that such information should have been made available to them before they came to the conclusions to which I have referred.
Those then are the arguments which are raised and which I have tried to meet. Mr Wise has said, and it is right to take it into account and I have tried to do so, that this difference between an oral and a written extension, the latter being required by the university regulations, the former being some informal indication that the examination board might accept the explanation proffered, is only raised at a late stage. It was not considered by the decision-making bodies. He says it is ingenious but irrelevant and late. Well it has been raised and in any event it is of use, as it seems to me, in deciding and in analysing what the situation was on 26 April 1996 and in trying to make sense of the affidavits which have been filed. It certainly does not appear in terms in any of the correspondence, but as I see it, it is there implicitly because quite clearly the university says that the only extension which will be granted is one which is on the appropriate form, the course director having accepted the explanation which has been given by the student.
Various other arguments have been raised and I have sought to indicate them in the course of this judgment. As it seems to me, the applicant is one to whom one should extend some sympathy - some sympathy because I do not believe, as I have indicated, that he is the only student who has left things to the last moment. But in doing so, he was running the risk that the university would do what they had said in their rules they would do and they did in fact do it. If it is consolation then he knows that he could claim because it is correct, that if he had put in his dissertation in time he would have a third-class degree and not a mere pass degree. But it does not seem to me that the university did anything which can lead to a reversal or a quashing of the various decisions which I have indicated. In those circumstances this application must be dismissed.
DISPOSITION
Leave to appeal refused. Applicant ordered to pay respondent's costs, order not to be enforced without leave of court. Order for legal aid taxation.
SOLICITORS
Shakespeares for the applicant
J. M. Wilson for the respondent
DOMINIC MCGOLDRICK, Barrister