The Court of Session
Before Lord Sutherland
Judgment delivered 6th November 1992
A decision of a university senate to seek the advice of an independent examiner before failing a PhD thesis was not improper or ultra vires.
Lord Sutherland, sitting in the Outer House of the Court of Session, so held, dismissing a petition for judicial review brought by Ahmed Saleh seeking a reduction of the decision of the Senatus of the University of Dundee not to allow him an opportunity to revise and re-submit his Ph.D thesis.
Ms Leeona Dorrian for Mr Saleh; Mr Neil Davidson for the respondents.
Lord Sutherland said that the petitioner had submitted a Ph.D thesis for examination by a committee appointed by the respondents comprising two members of their staff and an external examiner.
The committee had unanimously reported to the Senatus that the thesis did not merit a degree, but the two university members had considered that he should be allowed to revise and re-submit the thesis, to which proposal the external examiner had dissented.
The Senatus had requested further advice from an independent examiner as to whether the opportunity of re-submission should be allowed. Having received that advice the Senatus had refused this petition or an opportunity to resubmit.
The petitioner contended that the appointment of an independent examiner was ultra vires and amounted to procedural impropriety. The university regulations quite specifically provided for the appointment of a committee to examine a thesis initially and report thereon to the Senatus; there was no provision for any further examiner. The Senatus therefore had to make up their minds on the basis simply of the examining committee's report.
However, there was nothing either in the regulations or in the university's code of practice to preclude the appointment of a further external expert.
There was no provision whatever as to what the Senatus might or might not do having received a committee's report, yet it was quite clear that it was for the Senatus to decide whether to order a degree.
It could not be said that in the circumstances the Senatus were bound simply to rubber-stamp whatever recommendation the examining committee might choose to put forward. It could not be said to be unreasonable for the Senatus to decide to make further investigations before coming to a conclusion.
The petitioner also founded on the fact that the committee had decided that it was a viva voce examination was appropriate; it followed that the independent examiner also should have examined him viva voce. However, again there was nothing in the regulations which required the committee to do so, it was a matter for their discretion. Equally therefore it would be a matter within the discretion of an independent external examiner.
Finally, it was submitted that the independent examiner had sought information extraneous to the content of the terms of the thesis. The committee had decided that it would not be appropriate to make any further information available to him.
It was submitted that his request had nevertheless been a procedural impropriety: see Barr's vs. British Wool Marketing Board (1957 SC 72). In Barr's, however, the board had been acting in a quasi-judicial capacity. That was an entirely different situation from the present one where the independent examiner was acting not in a quasi-judicial capacity, but simply as an expert.
In any event, what had been sought had been any information which could be provided by the petitioner's supervisor which would have been favourable to his being given an opportunity for re-submission. His Lordship was unable to see how any prejudice could in consequence have been suffered by the petitioner.
Law agents: Drummond and Miller, WS; Garden Haig Stirling and Burnet, WS