REGINA v CAMBRIDGE UNIVERSITY Ex parte PERSAUD JENNIFER PERSAUD v CAMBRIDGE UNIVERSITY [2001] EWCA Civ 534

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM MR JUSTICE MAURICE KAY

[2001] EWCA Civ 534

Case No Case No: C/2000/2892

Venue Royal Courts of Justice, Strand, London, WC2A 2LL, Tuesday 10th April 2001

Between

REGINA v CAMBRIDGE UNIVERSITY Ex parte PERSAUD JENNIFER PERSAUDAppellant

CAMBRIDGE UNIVERSITYRespondent

Before

Lord Justice Schiemann

Lord Justice Chadwick

Lord Justice May

Mr Richard Gordon QC & Mr Gregory Jones (instructed by Messrs Teacher Stern Selby for the Applicant)

Mr Robert Jay QC (instructed by Messrs Mills & Reeve of Cambridge for the Respondent)

Date 10 April 2001

LORD JUSTICE CHADWICK :

This

[1]is an appeal against the order made on 21 July 2000 by Mr Justice Maurice Kay in proceedings for judicial review brought by Miss Jennifer Persaud against the University of Cambridge. The decisions of which the applicant sought review were(i) a decision of the Board of Graduate Studies of the University, taken on 26 January 1999 and communicated to her by letter dated 28 January 1999, not to reinstate her name to the Register of Graduate Students and

(ii) decisions of the Degree Committee of the Faculty of Physics and Chemistry and the Board of Graduate Studies, taken respectively on 19 November 1999 and 7 December 1999 and each communicated to the applicant's solicitors by letter dated 17 January 2000, refusing to reverse that earlier decision. The judge dismissed the application for judicial review. Permission to appeal to this Court was granted by Lord Justice Laws on 5 October 2000. The regulatory scheme for graduate students

[2]The admission of graduate students to the University of Cambridge is governed by regulations promulgated by the University and administered by the Board of Graduate Studies. The constitution of the Board is described in a witness statement signed on 24 May 2000 by Mr Duncan McCallum, the Secretary to the Board:

"The Board of Graduate Studies is a Board of the University, established by the University's statutes. The Board has general responsibility for, amongst other things, the University's arrangements for graduate students, as described in the University's Ordinances and the Regulations for Graduate Students and for the various qualifications required for admission as a Graduate Student. The Board's membership consists of a Vice-Chancellor's deputy, appointed by the Vice-Chancellor, as chairman, together with up to 13 other members, of whom eight are appointed by the University's Council and its General Board and up to five co-opted to membership by the Board. Members are typically senior members of the University's academic staff, almost invariably with considerable experience of supervising and examining graduate students. Members come from a wide range of subject areas, but they are not appointed to represent particular constituencies within the University."

[3]Application for admission as a graduate student is made to the Board of Graduate Studies. The Secretary of the Board refers the application to the Degree Committee of the Faculty with which the proposed course of research or study appears to be most closely connected. If the Degree Committee agrees to recommend approval of the application, their recommendation is considered by the Board, who decides whether or not to approve the applicant for admission as a graduate student. If approved, the applicant is entered on the Register of Graduate Students.

[4]So far as material in the present context, regulation 8 of the General Regulations for Admission as a Graduate Student requires that a Ph.D. student shall pursue a course of research approved by the Board and by the Degree Committee who recommended his or her admission under the direction of a Supervisor appointed by the Degree Committee and shall comply with any special conditions that the Degree Committee may lay down. The Degree Committee is responsible to the Board for the general supervision of each graduate student under their care. Regulation 10 is in these terms, so far as material:

"The Board shall have power to deprive any person of the status of Graduate Student: ... (e) 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 the M.Sc . or M.Litt. Degree, or M.Phil. Degree (two year course) or M.Phil Degree (one year course), or of any other qualification for which he might be registered as a candidate."

It is, to my mind at least, surprising – having regard to other provisions in the General Regulations - that regulation 10(e)(iii) does not refer expressly to the Ph.D. Degree; but it is said that there are historical reasons for this. It has been common ground that the phrase "any other qualification for which he might be registered as a candidate" is to be taken to include the Ph.D. Degree. The admission of the appellant as a graduate student and her subsequent supervision

[5]In 1992 the appellant obtained a BSc. Degree in Astronomy (with first class honours) from University College, London. Her particular field of study as an undergraduate student had been on the topic of active galactic nuclei. Upon graduation she applied for, and obtained, a place at the Institute of Astronomy, in the University of Cambridge, in order to undertake research leading to a Ph.D. Degree. As she put it in a witness statement made for the purposes of these proceedings and dated 9 March 2000:

"A Ph.D. (in Astrophysics/Astronomy) is an essential training in research and is required in order to pursue a career as a professional research astronomer in academia and this is exactly what I intended to do with my Ph.D."

She passed her first year examinations as a Ph.D. research student without difficulty. In August 1993 she was formally admitted to the Register of Graduate Students (with effect from October 1992) in order to undertake research in "Broad Emission Lines in Active Galactic Nuclei". It was expected that she would complete her research and proceed to her degree by September 1995.

[6]The Institute of Astronomy at Cambridge is part of the Faculty of Physics and Chemistry. The Degree Committee of that Faculty (as appears from Mr McCallum's witness statement) is comprised of senior members of the constituent departments within that Faculty – that is to say, the departments of Physics, Chemistry, Materials Science and Metallurgy, and Astronomy. That Degree Committee had general responsibility for the supervision of the appellant. Her individual supervisor, until October 1994, was Dr Andrew Robinson.

[7]The appellant did not complete her research within the expected time. The position is described by

the judge in these terms (at paragraphs 1 – 6 of his judgment):

"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 Astlin, the Secretary of the Institute of Astronomy, to express his concerns. In September 1994 Mr Astlin 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. 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. 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 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 three year period of research was coming to an end and the question of further funding was an issue. On 11 September 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. 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 start interacting with Dr Carswell with a view to her completing her Ph. D. the following year. However this does not seem to have had the desired effect because on 29 November Dr Carswell sent the Applicant an e-mail 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?' 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. 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. 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 referring to various personal, health and academic problems in the previous fifteen months and adding that 'regrettably my level of productivity has been well below par as a result of all these difficulties'."

[8]On 16 July 1997 the appellant was interviewed by Professor Ellis. In an e-mail sent to her on 21 July, Professor Ellis summarised the outcome of that interview:

"I explained that this [Dr Carswell] was your third supervisor since you initially registered and that I am not realistically able to convince another member of staff to take you on at this late juncture. On the basis of your recent report, an assessment of your potential provided by Professor Fabian and Dr Aragon-Salamanca and discussion with other members of staff here, I am of the opinion that the work being done is unlikely to reach the standard of a Ph.D. thesis and that, in the circumstances, you should withdraw. Accordingly I will be sending a recommendation concerning your status as a registered Graduate Student to the Degree Committee of the Faculty of Physics and Chemistry which will be considered at their next meeting."

The October 1997 decision

[9]On 22 July 1997 Professor Ellis wrote to Mr McCallum to recommend that the appellant be withdrawn from the Register of Graduate Students. His letter contains the following paragraphs: "As you know, Jennifer Persaud is currently registered as a Ph.D. student at the Institute of Astronomy but her former supervisor, Dr Carswell, asked to be relieved of her supervision on June 24 th 1997. I recently reviewed the situation, taking into account(i) a scientific report we asked Ms Persaud to produce by June 1997 which demonstrates essentially no progress over the past 15 months,

(ii) an independent assessment of her research potential which two of my staff conducted by interview taking the report into consideration,

(iii) a prolonged discussion with Dr Carswell following his resignation as supervisor where he expressed a genuine desire to help the student but became exasperated because, despite repeated requests for her to come to his office, she rarely complied, and

(iv) an interview with Ms Persaud which I held on July 18 th . On the basis of the above, I have concluded that I would find it impossible to convince a new supervisor of the likelihood that Ms Persaud would ever produce a satisfactory thesis. . . ." [The reference in that letter to an interview on 18 July 1997 is, I think, in error; the interview took place on 16 July 1997. But nothing turns on that.]

[10]It is clear that Professor Ellis had informed the appellant, by the end of the interview, that he would be making a recommendation to the Board of Graduate Studies that her name should be removed from the Register of Graduate Students. On 18 July 1997 Dr Elizabeth Griffin, a former member of the Institute of Astronomy but by then at Oxford, wrote to Mr McCallum to extol the appellant's virtues in the most glowing terms. The following passage is indicative of Dr Griffin's support: "Her intelligence and suitability for research shone throughout her first year; she had been able to identify short-cuts in the analyses which other professionals carried out, and succeeded in devising original improvements that would enable her to calculate more realistic physical models than anyone previously had achieved; she was spoken of as a 'power-house' of intellectual ability and dynamism, and her supervisor's first-year report on her progress was described as 'excellent'.

[11]In a letter to the appellant dated 18 August 1997, Mr McCallum, after referring to a telephone call in July 'regarding the timetable for formal consideration, by the Degree Committee for the Faculty of Physics and Chemistry and the Board of Graduate Studies, of your status as a graduate student', wrote:

"I am now able to let you know that at their first meeting next term, the Degree Committee expect to have to consider a recommendation from the relevant authorities in the Institute of Astronomy that you no longer be permitted to continue on the Register of Graduate Students here. I feel quite sure that, in considering your case, the Degree Committee and the Board will wish to allow you the opportunity to put your views of your position in writing, so that they can give proper consideration to all aspects of your case. Accordingly, I write now to invite you to provide me, by the end of September 1997, with a written statement, setting out your own position. I will then arrange for this statement to be considered by the Degree Committee and, subsequently, by the Board."

[12]The appellant's response to that invitation was to send Mr McCallum a long letter (extending over 26 pages) with a further 54 pages of supporting documentation. The letter, which is dated 30 September 1997, was written, as she said in the second paragraph, 'to present my side of the situation and to ask that I be allowed to remain on the Register of Graduate Students to complete my Ph.D.' The way in which she proposed that that should be achieved appears from the third paragraph of that letter:

"I am very keen to complete my Ph.D. thesis and I now have a firm arrangement for continued supervision. Professor A. Boksenberg has agreed to be my nominal University Supervisor at Cambridge and I will be working with Dr P. Gondhalekar (Rutherford Appleton Laboratory) who is willing to supervise me in a set-up whereby I remain registered for my Ph.D. at the University of Cambridge whilst being based temporarily at the Rutherford Appleton Laboratory. It is estimated that I will complete my Ph.D. in two years. Professor Bokesenberg and Dr Gondhalekar will also be writing in support of this proposal."

[13]The Board of Graduate Studies met on 28 October 1997 to consider the recommendation that the appellant's status as a graduate student be withdrawn. It appears from paragraph 53 of Mr McCallum's witness statement that the following documents were available for the Board to consider:(i) a letter from the secretary of the Degree Committee, with a brief history of the circumstances which had given rise to the recommendation,

(ii) formal reports from the appellant's various supervisors,

(iii) the appellant's letter of 30 September 1997 and

(iv) letters from Professor Ellis, Dr Gondhalekar, Professor Boksenberg, Dr Mason (the appellant's College tutor), Dr Griffin and Dr Dworetsky (Acting Director of the University of London Observatory, who had supervised her as an undergraduate at University College London). The Board decided not to remove the appellant's name from the Register of Graduate Students. The proposal that the appellant complete her Ph.D. thesis at the Rutherford Appleton Laboratory under the supervision of Dr Gondhalekar was accepted in principle. On 30 October 1997 Mr McCallum wrote to the appellant:

"The Degree Committee for the Faculty of Physics and Chemistry and the Board of Graduate Studies have now considered the question of your continuation as a Graduate Student. After very careful consideration of all relevant documentation, they have agreed that: (i) your name may remain on the Register of Graduate Students for, at this stage, a period of 6 months; (ii) you will 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 appellant acknowledged that letter and confirmed that she understood its contents.

[14]I do not, myself, read the letter of 30 October 1997 as imposing conditions within the meaning of regulation 8 of the General Regulations, so as to bring a failure to comply within regulation 10(e)(ii). There is no requirement that she attend at the Rutherford Appleton Laboratory on a daily basis (or on the basis of any other prescribed frequency or regularity). There is no requirement that she provide written work by any prescribed date. But the message was clear enough. The judge observed that she must have known "that she was walking an academic tightrope . . . she was in the last chance saloon." I would prefer to put it in less colourful terms. The appellant (as she was, herself, to acknowledge in her letter of 23 September 1998 - to which I refer below) can have been in no doubt, upon receipt of the letter of 30 October 1997, that her continued status as a graduate student of the University would be reviewed in June 1998; and that the result of that review was likely to be unfavourable unless Dr Gondhalekar reported positively upon three elements – that is to say,(i) attendance at the Rutherford Appleton Laboratory,

(ii) progress in her approved field of research (Broad Emission Lines in Active Galactic Nuclei) and

(iii) potential for a thesis of Ph.D standard on the conclusion of that research. The July 1998 decision

[15]The appellant had commenced work at the Rutherford Appleton Laboratory on 22 October 1997 - that is to say, a week or so before the decision of the Board of Graduate Studies had been communicated to her by the letter of 30 October 1997. But the new arrangements did not prove altogether satisfactory. She had no grant; she was living in London with her family; and commuting to the Rutherford Appleton Laboratory, which was near Didcot, presented considerable difficulties.

The judge described the position at paragraphs 8, 9 and 10 of his judgment:

"Initially [the Applicant] had contact with Dr Gondhalekar 'practically every day' but found his attitude 'very straining and discouraging' and considered he made 'unnecessary and 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. 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 enquire 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. Her account is that he appeared happy with a summary which she had prepared in respect of her work in the previous November and December 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'. 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."

[16]On 17 June 1998 Dr Gondhalekar made a report to the Degree Committee, as had been envisaged at the time of the October 1997 decision. On 30 June 1998 he made a report in similar terms to the Board. Mr McCallum's account of events immediately thereafter is set out in paragraphs 57 to 60 of his witness statement:

"On 3 July 1998 the Secretary to the Degree Committee reported to me and advised me that the Degree Committee had met on 3 July 1998 and considered the report from Dr Gondhalekar. 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 Studies. Regulation 10 at page 5 of the Regulations for Graduate Students provides that the Board of Graduate Studies shall have the power to withdraw any person from the Register of Graduate Students if the Degree Committee has satisfied the Board of Graduate Studies that the student has not been working to its satisfaction. On 10 July 1998 the Board of Graduate Studies met and again had available the documents available at their previous meeting on 28 October 1997 (as described above), plus a copy of my letter dated 30 October 1997 to the Applicant, setting out the Board's decision, and a letter from the Secretary of the Degree Committee containing their recommendation that the Applicant be withdrawn from the Register of Graduate Students. I summarised the Board of Graduate Studies' previous consideration of the case which had taken place at their earlier meeting of 28 October 1997. The Board of Graduate Studies agreed to remove the Applicant's name from the Register of Graduate Students."

[17]On 13 July 1998 Mr McCallum wrote to the appellant to advise her of the decision which had been reached on 10 July 1998. The letter was in these terms:

"At their meeting on 10 July 1998, the Board of Graduate Studies considered a report by Dr Gondhalekar on your progress since you were permitted to work under his supervision, at the Rutherford Appleton Laboratory. The Board were reminded of their previous consideration of your case and of the importance to be attached to Dr Gondhalekar's report, as indicated in my earlier letter of 30 October 1997. Having noted 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, the Board agreed, on the Degree Committee's recommendation, that your name be withdrawn from the Register of Graduate Students with immediate effect."

That letter has to be read in conjunction with Mr McCallum's letter of 30 October 1997. It had been made clear to the appellant, by the letter of 30 October 1997, that the result of the review which (as that letter had indicated) was to be carried out in June 1998 was likely to be unfavourable unless Dr Gondhalekar had reported positively upon three elements – that is to say, (i) attendance at the Rutherford Appleton Laboratory, (ii) progress in her approved field of research (Broad Emission Lines in Active Galactic Nuclei) and (iii) potential for a thesis of Ph.D standard on the conclusion of that research. The letter of 13 July 1998 states, in terms, that Dr Gondhalekar has not been able to report positively on the first two of those elements – progress and attendance. The letter makes no reference (at least, no reference in express terms) to any report by Dr Gondhalekar on the third of those elements – potential for a thesis of Ph.D. standard. The January 1999 decision

[18]The appellant's response to the letter of 13 July 1998 was to inform Mr McCallum that she intended to appeal against the decision to withdraw her name from the Register of Graduate Students. On 22 July 1998 the Academic Affairs Officer of the Cambridge University Students Union wrote to Mr McCallum on the appellant's behalf to request sight of Dr Gondhalekar's report. The letter of 22 July 1998 asked, also, for "any information on all the points that the Degree Committee took into account in arriving at their recommendation". Receipt of the letter of 22 July 1998 was acknowledged, in the absence of Mr McCallum on leave, by a letter from the Board dated 7 August 1998. The Assistant Registrary (sic), Miss Katherine Brown, wrote that:

"We will be in touch again when we are in a position to do so"

. There is nothing in the material before us to suggest that there was any further response to the request made in the letter of 22 July 1998. The appellant, at paragraph 75 of the witness statement which she signed on 9 March 2000, describes the position in these terms:

"Miss Alix Langley, who succeeded Mr Colin Horswell as Academic Affairs Officer at CUSU, had tried to get through to Mr McCallum regarding the matter of the report several times by telephone in September 1998 but could not get access to Mr McCallum. She was finally able to speak to Mr McCallum on 11 September 1998 but he would make no specific comment on the matter of access to the report. There was in the end no reply about access to Dr Gondhalekar's report."

That description of the position has not been contradicted by anyone on behalf of the University.

[19]The General Regulations for Admission as a Graduate Student make no provision for an appeal against a decision of the Board of Graduate Studies, under regulation 10, to deprive a person of the status of a graduate student – or, indeed, against any other decision of the Board. But the Board do not appear to have disabused the appellant as to the existence of a right to appeal; nor to have discouraged her in her attempt to appeal. She pursued that attempt by a long letter dated 23 September 1998. In the introductory paragraph she wrote:

"I am writing now to present new information about my case and to appeal against the Board's decision. I was well aware of the conditions which the Board of Graduate Studies had set, as outlined in your letter of 30 October 1997, and that my continuation rested on progress in my Ph.D. research. I was making very sure that I would fulfil the Board's conditions and, as you will see in what follows, I abided by all the set conditions. The information contained in the parts of Dr Gondhalekar's report that have been reported to me is inaccurate. I am presenting new information here that will refute the inaccuracies of Dr Gondhalekar's report as they have been reported to me."

[20]There follows, over the next fourteen pages, a detailed factual account of events (as the appellant saw them) which had taken place between her introduction to Dr Gondhalekar in August 1997 and his retirement from the Rutherford Appleton Laboratory at the end of February 1998. It appears from that account - and it is not, I think, in issue – that, until the middle of January 1998, the appellant travelled from her home in London to the laboratory at Didcot (at considerable personal inconvenience) on a more or less daily basis; but that, for a period of some two weeks in January 1998, she was unable to do so because she had contracted influenza. Thereafter there were some visits to Didcot at the end of January and one or two visits in February 1998. The appellant's contact with Dr Gondhalekar appears to have ended with a short meeting on 6 March 1998, in the course of which she handed to him a three page document (document "B.9") entitled "Draft Plan of Work for Discussion". She complained, in her letter of 23 September 1998, that Dr Gondhalekar had refused to discuss that document. She sent the document to Professor Boksenberg who (as she says) told her that it "looked pretty good". Thereafter she worked on her own at Imperial College London, with some contact with Professor Boksenberg. At page 16 of the letter there is a paragraph in these terms "In May 1998, entirely on my own initiative, I prepared a report on my research and my results. I had my report ready, but Dr Gondhalekar never contacted me to see my work or my report. However I continued working on my Ph.D. research." That report is a seven page document (document "B.12") entitled "Summary" with a further seven pages of profiles and data.

[21]Mr McCallum referred the appellant's letter of 23 September 1998 to the Degree Committee. In paragraphs 62 to 64 of his witness statement, he sets out his account of subsequent events:

"On 20 November 1998 the Degree Committee agreed to obtain an academic opinion from a senior academic in the field within the Faculty who had not been involved in [the appellant's] supervision, on the progress reports (which were enclosures B9 and B12 of her letter dated 23 September 1998) which the appellant said that Dr Gondhalekar had not taken into account when reporting to the Degree Committee. On 15 January 1999 the Degree Committee received that opinion on the progress reports. The opinion had been written after consideration of the two documents which were enclosures B9 and B12 only. The senior academic reported that the enclosures B9 and B12 represented a very small amount of work, were the 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. After considering this report the Degree Committee recommended a rejection of the Applicant's representations irrespective of the availability of other supervisors."

[22]The Board of Graduate Studies met on 26 January 1999. The following documents were available for consideration by the Board:(i) the documents which had been before them at their previous meetings on 28 October 1997 and 10 July 1998,

(ii) the appellant's letter of 23 September 1998,

(iii) a letter from the secretary of the Degree Committee setting out the decision taken in the light of the senior academic's opinion of January 1999 and

(iv) that opinion. The Board decided that the appellant should not be reinstated. Mr McCallum communicated that decision in a letter dated 28 January 1999:

"Both the Board and the Degree Committee noted that central to your appeal was your argument that in making his report to the Degree Committee in June 1998, Dr Gondhalekar had not taken into account your own report on your work (your enclosure B12), a report which you claimed that he had not read. The Degree Committee therefore agreed that an assessment of that report should be sought from a senior referee with sufficient knowledge of the field, but with no prior involvement with your case. That referee's report was quite categorical in its recommendation that you should not be permitted to continue as a Graduate student."

The December 1999 decision

[23]In the meantime (from October 1998) the appellant had started work on a new research project, under the supervision of Dr Griffin, into "the Long-term Properties of Stellar Chromospheres". She had made reference to that possibility in her letter of 23 September 1998. On 2 February 1999 Dr Griffin wrote to the secretary of the Institute of Astronomy, at Cambridge, referring to the work that the appellant was doing under her supervision and seeking confirmation that oral assurances which (as she said) she had been given in September or October 1998 – to the effect that, notwithstanding the removal of the appellant from the Register of Graduate Students she could be reinstated when the time came for her to submit a thesis – would be honoured. That confirmation was not forthcoming. The reason, set out in a letter dated 4 February 1999, was that reinstatement could only be considered when the student had completed the research project for which he or she had originally been registered. It was said that the research project upon which the appellant had become engaged under the supervision of Dr Griffin was "completely different" from the project upon which she had been engaged at Cambridge or at the Rutherford Appleton Laboratory. That letter was followed by a letter, dated 10 February 1999, from Mr McCallum in which he informed Dr Griffin that the decisions set out in his letter of 28 January 1999 were final. Further efforts by Dr Griffin to re-open the possibility of reinstatement in the future did not bear fruit.

[24]In or about May 1999 the appellant instructed solicitors. On 13 May 1999 those solicitors asked Mr McCallum for a copy of Dr Gondhalekar's report "by return". The response to that request is contained in a letter from Mr McCallum dated 11 June 1999. He wrote:

"It is the policy of the Board of Graduate Studies that Supervisors' reports on student progress are confidential to the Board, the relevant Degree Committee, the Departmental authorities and the Supervisor. I am therefore unable to comply with your request."

The solicitors threatened judicial review proceedings. Mr McCallum wrote again, on 13 July 1999, enclosing a copy of the General Regulations. He went on to say this:

"Regulation 8 indicates that Supervisors send progress reports to the Board of Graduate Studies and the Degree Committee concerned. It makes no provision for making copies of those reports available to a student. The Board's action in withdrawing Miss Persaud's name from the Register of Graduate studies was based on Regulation 10 of the same Regulations. There are no Regulations regarding an appeals procedure in a case of this kind. In accordance with their normal procedures, both the Board of Graduate Studies and the Degree Committee of the Faculty of Physics and Chemistry gave careful consideration to the representations which Miss Persaud made against the Board's decision. I refer you to my letter to Miss Persaud, dated 28 January 1999."

[25]The solicitors responded promptly. In a letter dated 14 July 1999 they asserted that the failure of the Board to disclose Dr Gondhalekar's report and that of the independent referee - "whose identity was not even revealed to Miss Persaud"- breached the rules of natural justice and

article 6 of the European Convention on Human Rights

. They observed that:

"Given the detailed nature of the issue before the Board, it was necessary for Persaud to know in detail the contents of both Dr Gondhalekar's report and that of the independent referee in order for her to be able to make proper representations in pursuit of her appeal to the Board."

[26]Mr McCallum replied to the effect that the Board would consult further with the Degree Committee. That took some time. Despite numerous letters of reminder from the solicitors, it was not until 17 January 2000 that Mr McCallum felt able to inform the appellant's solicitors that the consultation had not led to a change of heart. He wrote:

"The Degree Committee for the Faculty of Physics and Chemistry and the Board of Graduate Studies have now had an opportunity to reconsider their earlier decisions to (a) withdraw Miss Persaud's name from the Register of Graduate Students, and (b) decline her representations against that decision. I am asked to inform you that neither body was willing to reverse these decisions."

[27]The question whether or not to reverse its decision had, in fact, been taken by the Board some five weeks before the date of that letter. The position is described at paragraphs 73 to 75 of Mr McCallum's witness statement:

"On 19 November 1999, the Degree Committee reconsidered their earlier decisions to recommend withdrawal of the Applicant's name from the register of Graduate Students and to decline her representations against that decision. The Committee members unanimously agreed that they were still of the same mind. The Board of Graduate Studies met on 7 December 1999. They had available all the documentation which had been available at all their earlier meetings on this matter, together with subsequent correspondence with the Applicant's solicitors and a letter from the Secretary of the Degree Committee containing that body's most recent recommendation. I summarised their earlier consideration of this case. The Board of Graduate Studies reconsidered their earlier decisions to withdraw the Applicant's name from the Register of Graduate Students and to decline her representations. It considered the matter but was not willing to reverse the decisions."

These proceedings

[28]Application for permission to apply for judicial review was made by a notice in Form 86A dated 1 March 2000. The application for permission was granted on 5 May 2000 by Mr Justice Turner. The substantive application came before Mr Justice Maurice Kay on 7 July 2000. His judgment, which is now reported at [2000] Ed. C.R. 635, was handed down on 21 July 2000. He dismissed the application and refused permission to appeal. As I have said, permission to appeal was granted by this Court on 5 October 2000.

[29]Mr Justice Maurice Kay identified five grounds of challenge on the application before him:(i) lack of fairness (which he described as the principal ground of challenge);

(ii) failure to give reasons for the decision to remove the appellant's name from the Register of Graduate Students;

(iii) fetter of discretion, in that (it was said) the Board applied pre-existing policies rigidly without regard to the circumstances of the particular case;

(iv) unlawful delegation, in that (it was said) the Board left the decision to the senior member of the faculty who had been consulted by the Degree Committee; and

(v) conduct ultra vires the Board, in that the General Regulations do not provide for the Board to consult persons outside the Degree Committee. He rejected each of those grounds. The grounds which I have identified under (iii), (iv) and (v) – fetter of discretion, unlawful delegation and ultra vires conduct - are not pursued in this Court; and I need say no more about them. Nor is it now suggested that the provisions of

article 6 of the Convention

add anything, in this case, to the principles which would be applicable to the consideration of a challenge on grounds of lack of fairness under domestic law as it was before the coming into force of the Human Rights Act 1998.

[30]The judge rejected the challenge based on lack of fairness for the reasons which he gave at paragraphs 21 to 23 of his judgment ([2000] Ed.C.R 635, 646B-647A) :

"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 matter 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 six years had elapsed since her arrival in Cambridge. . . . 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. 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."

[31]The judge rejected, also, the challenge based on failure to give reasons. He said this, at paragraph 27 of his judgment ([2000] Ed.C.R. 647F-G):

"I am prepared to assume without deciding that, at some stage, a legal duty [to give reasons] 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 Regulation 10(e)(i) and/or (ii)."

The issue on this appeal

[32]In opening the appeal in this Court, Mr Gordon QC defined the issue succinctly - and, to my mind, helpfully – in these words:

"The sole question for decision on the appeal is a narrow but important one. It is whether in a decision making process which has such profound effects upon a student such as [the appellant], it is open to Cambridge University to assert that the requirements of fairness start and end with allowing her to make representations as to why she should not be 'dismissed' from the University."

[33]In stating the issue in that way, Mr Gordon assumes, correctly, two propositions of law which are not in doubt and which have been common ground in the arguments before this Court. The first is that in exercising its power to deprive the appellant of her status as a graduate student – a power conferred by regulation 10 of the General Regulations – the Board of Graduate Studies was under a public law duty to act fairly towards her. The second is that what the requirement of fairness demands, in any particular case, depends on the character of the decision making body, the nature of the decision which it has to make and the regulatory framework (if any) within which it is required to operate. Those propositions are too well established to require the citation of authority. But it is, I think, helpful to have in mind the observations of Lord Mustill in Regina v Secretary of State for the Home Department, Ex parte Doody

[1994] AC 531

. In setting out the propositions to be derived from the authorities, he said this, at page 560E-G:

"What fairness demands is dependent on the context of the decision, and this is to be taken into account in all its aspects. . . . (5) Fairness will very often require that a person who may be adversely affected by the decision will have an opportunity to make representations on his own behalf either before the decision is taken with a view to producing a favourable result; or after it is taken, with a view to procuring its modification; or both. (6) Since the person affected usually cannot make worthwhile representations without knowing what factors may weigh against his interests fairness will very often require that he is informed of the gist of the case which he has to answer."

[34]In the present case the Board of Graduate Studies made four relevant decisions:(i) the October 1997 decision – to allow the appellant to remain on the Register of Graduate Students subject to review in June 1998 in the light of a report to be provided by Dr Gondhalekar;

(ii) the July 1998 decision – to remove the appellant from the register, for the reasons given in the letter of 13 July 1998;

(iii) the January 1999 decision – to reject the appellant's application for reinstatement, notwithstanding the representations which she had made in her letter dated 23 September 1998; and

(iv) the December 1999 decision - to confirm the Board's earlier decisions to remove the appellant from the register (the July 1998 decision) and to reject her application for reinstatement (the December 1999 decision). It is only the January 1999 and December 1999 decisions that are the subject of challenge in these proceedings; but those decisions have to be examined in the context of the earlier decisions in October 1997 and July 1998.

[35]The decision upon which these proceedings turn, as it seems to me, is that taken in January 1999. If the appellant was treated fairly in relation to that decision, then it is difficult to see how subsequent events could have made her treatment in relation to the December 1999 decision unfair. Conversely, if she were not treated fairly in relation to the January 1999 decision, then it cannot be said that anything that happened thereafter altered that position. If the January 1999 decision cannot stand on its own, it is not (in the circumstances of this case) validated by the confirmation in December 1999.

[36]The context in which the January 1999 decision was made may be summarised as follows:(i) the power to deprive the appellant of her status as a graduate student was exercisable by the Board (in the circumstances of this case) if the Board were satisfied, on a report or recommendation from the Degree Committee, of one or more of the three matters set out under regulation 10(e) of the General Regulations;

(ii) the power was discretionary – so that, notwithstanding that the Degree Committee satisfied the Board of one or more of the regulation 10(e) matters, the Board had to address its own collective mind to the question whether, in all the circumstances, deprivation of graduate status was an appropriate response to the Degree Committee's report or recommendation;

(iii) the question (under regulation 10(e)(iii)) whether the appellant's research was likely to reach the standard required for the award of a Ph.D. Degree was peculiarly within the academic expertise of the Degree Committee, rather than the Board (none of whose members had expertise in the relevant discipline), so that the Board's role, in relation to that question, was necessarily limited to satisfying itself that the Degree Committee had reached its opinion on a basis which was fair to the appellant;

(iv) if satisfied that the Degree Committee, acting fairly, had reached an opinion that the appellant's research was not likely to reach the standard required for the award of a Ph.D. Degree, it is difficult to see how the Board, in a proper exercise of its own discretion, could allow the appellant to continue with her research;

(v) the material before the Board in October 1997 had not persuaded the Board that deprivation of status was the appropriate response – this suggests, at the least, that the Board were not satisfied, at that stage, that the appellant's research provided no viable basis for a Ph.D. Degree;

(vi) the basis upon which the appellant was allowed to continue with her research, with the status of a graduate student, following the October 1997 decision, would have led her to think that the three elements which were to be the subject of review in June 1998 were attendance, progress and research potential; and that the basis of that review would be a report by Dr Gondhalekar;

(vii) when carrying out the review in July 1998, neither the Degree Committee nor the Board had given the appellant an opportunity to address whatever criticisms were made in the report that Dr Gondhalekar had made;

(viii) the July 1998 decision to withdraw graduate status from the appellant had been made (so far as appears from the material which has been disclosed) on the basis of an unfavourable report from Dr Gondhalekar on the first two elements (attendance and progress); there is nothing in the material disclosed which suggests that Dr Gondhalekar had addressed the third element (research potential), nothing which suggests that either the Degree Committee or the Board addressed that element, and nothing which suggests that the Board took that element into account (one way or the other) in reaching the July 1998 decision;

(ix) the appellant had been told (in the letter of 13 July 1998) that the decision had been made on the basis of an unfavourable report on the first two elements (attendance and progress); she had not been told that the viability of her research, or its potential for the award of a Ph.D Degree, was in question;

(x) the appellant had been given an opportunity to make representations with the object of persuading the Board to reverse the July 1998 decision; but she had not been given any particulars of the factual basis upon which it was said that her attendance and progress were unsatisfactory;

(xi) after receiving the appellant's representations (set out in her letter of 23 September 1998), the Degree Committee had decided, without informing her, to take a further opinion on her progress from an unnamed senior academic;

(xii) the unnamed senior academic had reported unfavourably on the appellant's progress; but, perhaps more significantly, he had reported, without having discussed the matter with the appellant, or (so far as appears from the disclosed material) with anyone else, that there was no viable basis for any future research; in that he had gone beyond the matters which had appeared to be in question when the appellant had been given such opportunity as she had to address the basis on which the July 1998 decision had been taken.

[37]The question for the Court is whether, in that context, the Board acted fairly towards the appellant when making its decision in January 1999 to reject her application for reinstatement as a graduate student. In my view that question must be answered in the negative. There are, to my mind, three factors which compel that answer.

[38]First, the question whether or not the appellant had met Dr Gondhalekar's requirements as to attendance at the Rutherford Appleton Laboratory was an issue of fact. She had provided a detailed account of her attendance at the laboratory. If the Board were minded to reject that account as factually inaccurate, then fairness required that they had to put that possibility to her so that she could meet it. If they accepted the account as factually accurate, then fairness required that they had to put to her the criticism that her attendance did not meet Dr Gondhalekar's reasonable requirements, specifying what those requirements were.

[39]Second, the July 1998 decision that the appellant had made no sufficient progress in her research, based as it was on Dr Gondhalekar's report, had to be revisited once the appellant had alleged (as she did in her letter of 23 September 1998) that Dr Gondhalekar had not read the material she had sought to put before him. The question what progress had she made was, as it seems to me, a question of fact. On that question she had taken the initiative of supplying document for consideration. The question whether that progress was sufficient in the circumstances is a question partly of fact and partly of academic judgment. Fairness required that the appellant be told who (if not Dr Gondhalekar) was to make the academic judgment upon her work. In circumstances in which the appellant's record of past difficulties in relating to the four members of the department who had been involved in her supervision – and given the strongly antipathetic view which had been formed by the head of the department, Professor Ellis – it was not enough, in my view, for the Degree Committee and the Board to refer simply to "a senior academic in the field within the Faculty who had not been involved in [the appellant's] supervision" or to "a senior referee with sufficient knowledge of the field but with no prior involvement with your case". The appellant was given no opportunity to raise any question as to the partiality, or perceived partiality, of the person who was to make a judgment upon her work; nor to raise any question as to his or her expertise in the particular field of her research. That is not to suggest that there is any reason to think that the unnamed senior academic was other than scrupulously impartial and abundantly qualified. That is not the question; the question is whether, in the very special circumstances of this case, fairness required that the appellant should have the opportunity to raise any concern that she might have as to qualities of impartiality and expertise which were so obviously necessary in the person by whom her work was to be judged. In my view fairness did require that.

[40]Third, the senior academic appears to have put in question a matter of which the appellant had never been given warning; that is to say whether her research subject had potential to merit the award of a Ph.D Degree. It must have been accepted that her research had such potential when she was admitted to the Register of Graduate Students in 1993; it must have been thought that it still had such potential when she was allowed to continue following the October 1997 decision; and there is nothing to suggest that the potential value of her research had been called in question by Dr Gondhalekar's report. In those circumstances fairness required that she be warned that the decision to refuse her application for re-instatement was to be taken on the basis of this new, unfavourable, appraisal by an unnamed senior academic. Further, for the reasons that I have already given, fairness required that, in this context also, she be given the opportunity to raise any concerns that she might have as to the impartiality and expertise of her academic judge. And, for my part, I am not persuaded that a fair judgment could be made on the question whether research which had once been accepted as having the potential to merit the award of a Ph.D. Degree had lost that potential could be made without some understanding, after discussion with the research student, of what had gone wrong.

[41]I would accept that there is no principle of fairness which requires, as a general rule, that a person should be entitled to challenge, or make representations with a view to changing, a purely academic judgment on his or her work or potential. But each case must be examined on its own facts. On a true analysis, this case is not, as it seems to me, a challenge to academic judgment; it is a challenge to the process by which it was determined that she should not be reinstated to the Register of Graduate Students because the course of research for which she had been admitted had ceased to be viable. I am satisfied that that process failed to measure up to the standard of fairness required of the University.

[42]I would allow the appeal and quash the January 1999 decision. So far as necessary I would quash the December 1999 decision also.

[43]That leaves in place the July 1998 decision. It was in order to give effect to that decision that the appellant was removed from the Register of Graduate Students. That decision is not, itself, the subject of direct challenge in these proceedings; although there is an indirect challenge to that decision, in that the Court is asked, by order of mandamus , to require the Board of Graduate Studies to reconsider the January 1999 decision not to reinstate her.

[44]I am not, at present, persuaded that it would be appropriate to make an order of mandamus in this case. The jurisdiction to do so is undoubted; but it is a matter for the discretion of the Court whether that jurisdiction should be exercised in any particular case. It is, I think, necessary to ask whether an order requiring the Board of Graduate Studies to reconsider the January 1999 decision could now serve any useful purpose. That is a question upon which we have not been addressed. The position (as it appears from the material before us) is that the appellant is no longer engaged in the approved course of research for which she was registered as a Ph.D. student. She is engaged (so far as I am aware) on a "completely different" course of research under the supervision of Dr Griffin at Oxford. My present view is that, if the Board of Graduate Studies were now asked to consider whether to reinstate her graduate status, it would have to refuse to do so on the basis that she is no longer pursuing the approved course of research for which she was registered. It has not been suggested that the Board could be required to register (or reinstate) her as a graduate student in respect of some course of research which has never been approved by the Degree Committee; nor that the Degree Committee could be required to approve her current course of research. If the appellant seeks to pursue a claim for mandamus , I would think it right to invite further submissions (and, perhaps, some further evidential material) on the question whether such an order could or would now serve any useful purpose.

[45]For those reasons I would allow the appeal, but (at this stage) only to the extent indicated.

LORD JUSTICE MAY:

[46]I agree.

LORD JUSTICE SCHIEMANN:

[47]I also agree.

ORDER

Appeal allowed in part, with costs. (Order does not form part of approved Judgment)