HEARING DATE 20 July 2001
University - Examination - Conferring of degrees - Claimant disputing examination marks citing extenuating circumstances - Later meeting took place but matter not considered - Evidence of meeting not disclosed - Whether non-disclosure of meeting constitutes new evidence
COUNSEL
G Jones for the Claimant;
R Warren for the Defendant
JUDGMENT BY STANLEY BURNTON J
[1] I have found this a troubling case as I have indicated. The provisional view that I formed on the last occasion was that I should not give permission to appeal because it seemed to me that, even if an appeal was successful, it would be unlikely to make a substantial difference or a significant difference to the class of degree that Miss Nash would be awarded by Chelsea College, having regard to the fact that the evidence of the College was that extenuating circumstances had been taken into account and, it seems to me, the principal dispute between the parties was the extent to which they were described and specified before the relevant tribunal. I also bore in mind that questions of assessment of academic work are very much a matter for an academic body. It is an area in which the courts are reluctant to tread, assuming that the academic body in question has behaved properly and in accordance with its rules.
[2] So far as that matter is concerned the letter of Mr Yates, if anything, fortifies my provisional view. I see that extenuating circumstances, certainly in the third year, were taken into account and, as a result, Miss Nash's results were improved to a 2:1, and a middle 2:1. For practical purposes, therefore, we are in the present case, and to some extent the pending appeal within the College, are concerned with the possibility of that grade going from 2:1 to a First. That, of course, is very much a matter of academic judgment and the class of quality of the work concerned and, to some extent, an assessment of the impact of extenuating circumstances. As I said in my judgment, so far as the assessment of extenuating circumstances is concerned, it seemed to me that the matters in issue in this case are marginal, or would have a marginal effect.
[3] If the matter rested there, therefore, I should have refused permission to appeal. However, a new matter has been put before me, namely that there was in fact a meeting of the Academic Committee of the College, in March 2000. On the evidence before me, at the moment, the evidence of the College is that it did not consider this matter at that meeting. However, the existence of that meeting might have led me, had I known about it, to a marginally different view as to the acceptability of the evidence that was given as to the reasons for the decision made by the committee when it found that there had been no material irregularity in the meeting examination board.
[4] I have before me, at the moment, no more than a letter indicating that a meeting took place and that it did not deal with or consider the present case or anything connected with it. I have been given to understand by counsel, on instructions, that the persons present at that meeting were not the same persons as those who were present at the meeting which considered Miss Nash's case. The information I have been given as to that meeting does not include any witness statement by any of the relevant parties.
[5] The meeting, which took place on 23 March 2001, was not a matter known to the lawyers representing the Claimant although it was known to the Claimant during the course of the hearing. She sat through the hearing and was present when I asked questions of counsel for the College as to the practicality of obtaining more evidence as to the reasons why the academic committee had arrived at the decision it did.
[6] On the other hand, representatives of the College were present. I presume that counsel for the College was unaware of that meeting. It is a matter which I would have preferred to have known about and, if it had been referred to in evidence, no doubt the matter might have been explored, and reasons explained as to why nothing was done to obtain any other evidence as to the views of other members of the academic committee.
[7] But, I come back to the matter which concerned me on the last occasion and that is the potential impact of these proceedings. I am concerned that that is a long running matter in which it would seem extenuating circumstances have been considered by the College. It is becoming increasingly evident that there is a large area of distrust between the parties in this case. That is something which I regret. I cannot say whether it is justified or not.
[8] Having regard to the materiality of this matter, as it appears to me, it seems to me that the better course is for me not to give permission to appeal. That will enable, if thought fit, counsel for Miss Nash and her solicitors to put before the Court of Appeal this matter in writing and the observations that they wish to make about the meeting that was not referred to before me. I would suggest that it is appropriate for the College to set out in writing, the reasons why it was not referred to during the course of the hearing before me.
[9] It seems to me this is a case in which one is concerned with material being put before the Court of Appeal, which was not before me and it seems to me that it is better that the decision as to whether the Court of Appeal should consider these matters and take them into account is one which ought to be made by the Court of Appeal rather than myself.
[10] For those reasons, not without hesitation, I shall not give permission. I leave it to those representing Miss Nash and Miss Nash to decide whether to make an application for permission to put before the Court of Appeal.
DISPOSITION
Application dismissed.
SOLICITORS
Teacher, Stern & Selby; Kingsley Napley