HEARING DATE 5 June 1997
University - Jurisdiction - M not awarded degree by London Guildhall University - M brought proceedings based on negligence, breach of contract and misrepresentation in Mayor's and City of London Court - Claim struck out as disclosing no cause of action - Abuse of process - M sought leave to bring proceedings for judicial review
HEADNOTE
M was a law student at London Guildhall University (LGU). LGU did not award him a law degree. M brought an action in the Mayor's and City of London Court based on negligence, breach of contract and misrepresentation. LGU reviewed its decision and offered M an ordinary degree. M, considering that he was entitled to an honours degree, continued with the proceedings. In 1994, on the university's application, M's claim was struck out on the basis that it disclosed no cause of action. The court applied the principle in Thorne v University of London, namely that the High Court would not act as a Court of Appeal from university examiners. M then instituted proceedings in the High Court. He did not have recourse to LGU's internal procedures. LGU applied to strike out M's claim. It also argued that the claim was an abuse of process, having regard to the striking out of the almost identical claim in the Mayor's and City of London Court. Deputy Judge Mawrey struck out the case, took the view that the proceedings were an abuse of process and refused M leave to appeal. M applied to the Court of Appeal for leave to appeal. He argued that Thorne v University of London did not apply because: (i) LGU had no visitor; and (ii) there had been bad faith.
Held - refusing the application -
(1) The application was not arguable. LGU had a provision to determine disputes of this kind and that provision and those administering it were the proper vehicles for that determination, not the High Court.
(2) The court could not judge whether it was entitled to intervene on the ground of bad faith where the very matters upon which M relied were issues which fell first to be determined in the internal procedures provided by the university.
(3) The action was a clear abuse of process having regard to the earlier dismissal of the matter in the Mayor's and City of London Court.
CASES REFERRED TO
Patel v University of Bradford Senate [1979] 1 WLR 1066, [1978] 3 All ER 582,
CA
Thirunayagam v London Guildhall University (1997) 14 March (unreported)
Thomas v University of Bradford (No 2) [1992] 1 All ER 964
Thorne v University of London (1996) 2 WLR 1080
COUNSEL
Nicola Shaldon for the respondent
The appellant appeared in person.
PANEL: Auld and Pill LJJ
JUDGMENT BY AULD LJ
Mr M, the applicant, was a student at the London Guildhall University reading law and enrolled for its LLB course. He was, according to the university, unsuccessful in the course, and it did not award him a law degree. Mr M commenced an action in the Mayor's and City of London Court, based on negligence and contract, claiming that he was entitled to an honours degree in law. In 1994 the university reviewed his claim and decided that he was after all entitled to an ordinary degree, but not to an honours degree. It made him an offer to that effect, inviting him to withdraw his court proceedings. Mr M considered that he was entitled to an honours degree and continued with the proceedings.
The university applied to strike out his claim as disclosing no cause of action on the well-known authority of Thorne v University of London (1996) (unreported). In late 1994 the judge struck out the claim.
Mr M then instituted proceedings in the High Court (these proceedings) in much the same terms, alleging negligence, breach of contract and, I think, misrepresentation by the university in its failure to award him an honours degree. He does not appear to have sought to make use of the domestic procedure provided by the university for the challenge of decisions of boards of its examiners.
The university applied to strike out his cause of action, again on the authority of Thorne v University of London on the principle adumbrated in that case that the High Court will not act as a court of appeal from university examiners. It also urged the court to rule that the claim was an abuse of process, having regard to the striking out of the almost identical claim in the Mayor's and City of London Court. Deputy Judge Mawrey took the view that the case was governed by the authority of Thorne v University of London and that the court had no jurisdiction to consider an issue which was essentially one between Mr M and the examiners at the university. He also took the view that the proceedings were an abuse of process, having regard to the previous striking out of the almost identical proceedings.
Mr M applies for leave to appeal against that ruling of the deputy judge after the deputy judge's refusal of leave to appeal. He maintains, first, that the authority of Thorne v University of London does not apply to this case. Here the London Guildhall University, unlike the University of London, has no charter and has no visitor. The relevance of a visitor is as to the provision which a university makes for the determination of issues between its examiners and students who feel aggrieved by their decisions. Hirst LJ so held, when sitting on an application in a very similar case for leave to appeal called Thirunayagam v London Guildhall University (1997) 14 March (unreported). The applicant there had commenced proceedings in the Mayor's and City of London Court to compel the university to award him a first-class honours degree in law, alternatively damages. There was a dispute between him and the university as to whether he had properly completed his course. He claimed that he had completed the necessary modules for which he should have been given credit in order to be awarded his degree, circumstances very similar to those before this court. Hirst LJ held that he was bound by the decision in Thorne v University of London and the case of Patel v University of Bradford Senate [1979] 1 WLR 1066 that disputes as to the application of university regulations relating to degrees and satisfaction of examiners were within the exclusive jurisdiction of the university. The applicant in that case complained that as that university did not have a visitor, Thorne v University of London was distinguishable. Hirst LJ found that to be unsound as an argument, because although the university had no visitor, the university's regulations provided a complaints procedure. Hirst LJ observed that if the university had departed from its own procedure there might have been a ground for a judicial review, but that that was not the application before him. Mr M referred to Thomas v University of Bradford (No 2) [1992] 1 All ER 964, attempting to unseat the reasoning of Thorne v University of London and Thirunayagam v London Guildhall University. However, in my view, the case does the reverse of that; it emphasises the primacy of the university authorities where proper machinery is provided for the regulation of issues between them and those making complaints about their performance of their university duties.
Mr M suggested that the principle in Thorne v University of London does not apply where there has been bad faith, and he cited what he said were examples of that in this case. But this court cannot judge whether it is entitled to intervene on the ground of bad faith where the very matters upon which the applicant relies are issues which fall first to be determined in the internal procedures provided by the university. Mr M has not sought to take advantage of those procedures, certainly post the striking out of his claim in the Mayor's and City of London Court, and there is no indication that the university has declined or refused to apply them in his case.
In my view, this application is not arguable. We are bound by Thorne v University of London. The university has a provision to determine disputes of this sort, and that provision and those administering it are the proper vehicles for that determination, not the High Court. In addition, this action is a clear abuse of process, having regard to the earlier dismissal of the matter in the Mayor's and City of London Court.
For those reasons I would refuse the application.
JUDGMENT BY PILL LJ
I agree.
DISPOSITION
Application refused with costs.
SOLICITORS
Ashurst Morris Crisp for the respondent
DOMINIC MCGOLDRICK BARRISTER