HOMAM ASSI v LEEDS METROPOLITAN UNIVERSITY [2001] EWCA Civ 641

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM LEEDS COUNTY COURT
(HIS HONOUR JUDGE GULLICK)
[2001] EWCA Civ 641Case No NO: B2/2000/6474Venue Royal Courts of Justice, Strand, London WC2, Friday, 16th February 2001
Between
HOMAM ASSILEEDS METROPOLITAN UNIVERSITY
Before
Lord Justice PillLord Justice TuckeySir Ronald WaterhouseMR HOMAM ASSI the appellant in PersonMR PETER SUSMAN QC (instructed by Addleshaw Booth & Co, Sovereign House, PO Box 8, Leeds LS1 1HQ) appeared on behalf of the respondentDate 16 February 2001

LORD JUSTICE PILL:

Sir

[1]Ronald Waterhouse will give the first judgment.

SIR RONALD WATERHOUSE: This is an appeal against the judgment of His Honour Judge Gullick given on 8th October 1999 when sitting in Leeds County Court in which he dismissed the appellant's action for breach of contract brought against the respondent university in relation to an alleged compromise agreement said to have been made between July and September 1993.

[3]The background to the proceedings, in brief, is that the appellant, who is an Iraqi national, came to this country in September 1977, when he was 18 years old. He had received secondary education in Iraq and his father wanted him to pursue graduate and post-graduate studies in the United Kingdom. In the following nine years the appellant did that, obtaining A levels in physics and mathematics after two years, then a Bachelor of Science degree in Enineering Science with third class honours at Leicester University and a Master of Science Degree in digital communication systems at Loughborough University in 1986.[4]At that point the appellant's financial support from the Iraq government ended but he wished to obtain further qualifications and pursue a career here at least for the time being. After a gap of two years he obtained a post as a part-time lecturer at Nottingham Polytechnic, which enabled him to embark on part-time research designed to lead to a Doctor of Philosophy degree, the subject of his research being multi-path propagation in signal processing. His hope then was that this would enable him to obtain the degree in 1993 and then to secure well paid employment in the communications industry.[5]In the event, however, the appellant left Nottingham for Leeds in April 1991. This was in response to a poster advertisement that had appeared at Nottingham Polytechnic the previous summer, inviting applications to Leeds Polytechnic (as the respondent then was) for a full-time research post in the field of speech analysis and synthesis, which would be funded by the government and private industry. It was indicated in the advertisement that there would be opportunities for sponsored or self-financed students to undertake research programmes leading to a higher degree such as Master or Doctor of Philosophy.[6]The appellant, who was dissatisfied with the level of supervision at Nottingham, was offered the Leeds post in December 1990 and began his research in the respondent's Faculty of Information and Engineering Systems four months later.[7]The appellant's history from then on is an unhappy one. For reasons that are only marginally relevant to this appeal, there were disputes between him and the respondent, which became Leeds Metropolitan University in 1992, and he made repeated written complaints. Ultimately, following a meeting attended by the appellant on 4th March 1992, he was informed by a letter dated the following day that it would be recommended that the government funding of the appellant's work should cease and his post as a research student ended. There followed written protests by the appellant and he invoked the respondent's appeal or grievance procedure. The present proceedings are based on an alleged agreement made between July and September 1993 by way of compromise of that appeal by the appellant.[8]In the hearing before us the appellant has acted in person but he was legally represented throughout the Court proceedings below and until after permission to appeal to this Court had been granted by a single Lord Justice, following an oral hearing. In the Particulars of Claim settled on his behalf it was alleged that the compromise agreement had been made in meetings "from about July 1993 to 22nd September 1993" and that the terms of the agreement (express or implied) were as follows:
"(a) that the Defendants would enrol the Plaintiff and provide him with a three year bursary commencing in the 1993/1994 academic year, such bursary to be updated to include the standard 'case award' uprating; (b) that the said agreement was subject to the Plaintiff finding an appropriate research topic; (c) that the Plaintiff would be provided with suitable and satisfactory supervisors in the research area chosen by him; (d) once a suitable research area had been identified and suitable supervisors appointed that the Plaintiff could commence his research and would attend weekly meetings with his supervisor and a monthly meeting with both his supervisor and the Faculty Research Manager; (e) that the Plaintiff's bursary would be reviewed on an annual basis."
[9]It was further alleged that, in breach of these terms, although the plaintiff identified and chose a suitable research topic, the defendants failed to provide him with suitable supervisors in that the supervisors were not (with one exception suggested as second supervisor) sufficiently experienced or knowledgeable in the chosen area of research to afford the plaintiff reasonable supervision or any reasonable opportunity of carrying out his research successfully. Extensive further and better particulars were subsequently served on behalf of the appellant purporting to identify the alleged "suitable research topic" chosen by him.[10]By its Defence, the respondent admitted and averred that there was a compromise agreement with significantly different express or implied terms, namely:
"2.1 The Plaintiff should pick an appropriate research project as soon as reasonably practicable, and having done so should communicate it promptly to the Defendant; 2.2. The Plaintiff should accept and co-operate with the supervisors selected for him by the Defendant; 2.3 The Plaintiff should accept and comply with the Defendant's requirements as to the Plaintiff's place of work; 2.4 The Plaintiff should promptly initiate and diligently pursue appropriate work on his research project."
[11]The respondent's defence to the action accordingly was that it had not been in breach of the Act because the appellant had not complied with any of these terms and that, in any event, the appellant had not suffered any recoverable loss or damage.[12]Much of the evidence in the course of the interrupted hearing over four days related to events that had occurred after the alleged compromise agreement had been made and to the appellant's efforts to secure an alternative university research post or other appropriate remunerated employment. The trial judge, however, indicated at an early stage in the trial that he had grave doubts about the existence of any compromise agreement. Those doubts were not dispelled and his major finding at the conclusion of the case was that the purported agreement failed for uncertainty. In his view the contract was:
"... of a type, which could not become legally enforceable until all the important details had been agreed. Those details were the precise topic of research and the identification of two supervisors, their acceptance of that position and, so far as the academic supervisor was concerned, his agreement with [the appellant] as to the exact topic of research."
[13]The learned judge went on to make further findings that(a) if contrary to his view there was a concluded agreement, the respondent had committed a breach of it, and(b) the appellant was entitled to recover only nominal damages limited to £25.[14]By his notice of appeal, settled by counsel, the appellant seeks judgment in his favour for damages to be assessed by this Court or a new trial on that issue. There is also a respondent's notice praying that the judge's order in its favour should be affirmed on the ground that, although there was an enforceable compromise agreement, the appellant was in repudiatory breach of that agreement with the result that the respondent was entitled to terminate it in April 1994 and that the respondent was not in breach of that contract.[15]Thus, the first issue that arises in the appeal is whether Judge Gullick was correct in his major finding; and it is necessary to set out what happened between July and September 1993 in some detail. On 23rd July 1993, the appellant wrote to the respondent's principal stating that he wished to have a formal apology from the university. In addition, he demanded a choice of either (1) an offer of:
"... an appropriate research place leading to the degree of PhD under equivalent conditions which made me leave my job in Nottingham and come here or [2]... the equivalent amount in money to go and study for my degree somewhere else."
[16]Later that month the appellant was called to a meeting with the respondent's deputy principal, the deputy head of the faculty, the academic standards officer and a representative from the students union. In the course of that meeting the appellant was offered a further research post together with a bursary. The appellant said in his witness statement that, at that meeting, he made it clear that he would only accept such an offer if he was allowed a different supervisor together with a suitable research topic. He was also concerned, he said, that the scholarship offered was insufficient.[17]The offer made to the appellant was confirmed to him by a letter dated 28th July 1993 from the respondent's principal. It stated that:
"In his recent discussion with yourself Dr Hitchins [the deputy principal] was acting with my full authority. Dr Hitchins offered you a maximum three-year bursary at a current value of £6,115 per annum, commencing in the 1993/94 academic year. The Faculty will not ask you to undertake any teaching or supervisory duties as required from other research students. In making this offer Dr Hitchins was attempting to be constructive so that you had an opportunity to continue as a research student in September. This offer from Dr Hitchins remains on the table.... I have given further consideration to your original application for a case award. In all the circumstances I have determined that it is appropriate to make you a final offer uprating this bursary to include the standard 'case award' rating. I understand that, for 1993-1994, this would be of the order of £1,800. I consider that this final offer is reasonable in all the circumstances. It is not appropriate for the university to fund a student attending another institution.... I therefore require your response to this offer by Monday, 13th September. The offer will lapse from that time. Should you accept the offer of a bursary then it must be accepted that your outstanding academic appeal will be irrelevant. If you reject the bursary then you have every right to continue with the appeal which we will progress in accordance with our regulations."
[18]The appellant wrote to the Chairman of the Board of Governors of the University on 18th August 1993 and again aired his complaint. He stated in that letter, when referring to the research that he had come to do in April 1991, that the relevant supervisor (Dr AlSayed) had a limited knowledge of the field of his research and that another, Dr Trinogga, specialised in a different area altogether and that neither the equipment nor the research place was adequate.[19]Thereafter, the appellant continued to correspond with the university, seeking changes to the offer made to him at the end of July, and in due course the time for acceptance of the offer was extended to 20th September. Then, on the latter date, the deputy principal wrote to the appellant as follows:
"The letter from the Principal dated 28th July 1993, made it quite clear that the bursary would be available for three years. However, I must inform you that, in accordance with both our and SERC procedures, continuation of the bursary will be reviewed on an annual basis. This review of your progress will give rise to a formal report from your research supervisor and the Faculty Research Manager to the appropriate bodies of the University. During the year you will be expected to attend a weekly meeting with your supervisor and a monthly meeting with both your supervisor and the Faculty Research Manager. I hope this will provide a support environment, which will help you succeed in your studies... We do need to know as a matter of urgency whether you intend to take up our offer for the 1993/4 academic session."
[20]The appellant replied on 22nd September 1993 in a letter headed "Without Prejudice". The relevant part of the letter read as follows:
"Although I am not fully satisfied with the University's offer, I have decided to accept the offer subject to finding appropriate research topic. Perhaps the current Dr Danaher's research topic on singular value decomposition can provide an appropriate opening. Other signal processing topics or supervisors can be considered."
[21]The appellant agreed that there was no mention in that letter of Dr Trinogga. His explanation for that was that he was being diplomatic in not mentioning him and that in any event he considered that it was well known that Dr Trinogga was not acceptable to him as a supervisor.[22]On the same date the deputy principal wrote to the appellant:
"I acknowledge receipt of your correspondence of 22nd September 1993 which I have passed on to Dr Etheridge as the Dean of the Faculty of Information and Engineering Systems. Undoubtedly Dr Etheridge will be inviting you in to the Faculty in order to complete your enrolment for 1993/1994, and determine an appropriate research topic along with a new supervisor. In making these arrangements I am assuming that you have accepted the offer subject to finding an appropriate research topic as stated in your second paragraph."
[23]Having set out this history and the later history of attempts to agree a research topic and supervisors in full and helpful detail, the trial

judge went on in his judgment to deal with the question of uncertainty as follows:

"I am, of course, conscious that it was I who raised the question of certainty of terms. It was certainly not a matter which I raised 'in passing', since as will be apparent from what follows I regard the peculiar subject matter of this contract as crucial to the question of whether it had the necessary certainty to be enforceable. Further, it seems to me, upon close examination, that it is a proposition, which is worthy of greater consideration than Mr Ferm [that is counsel for the appellant] was prepared to give it. It was clear to me on the evidence that the relationship between a research student and his supervisor - particularly his first or 'academic' supervisor - is a special one. My attention was directed to a document entitled 'Research Student and Supervisor, An Approach to Good Supervisory Practice' which was published by the Science and Engineering Research Council in 1989. Under the heading 'Beginnings' the document reads: "
The relationship between a student and supervisor is a peculiarly close one. They start as master and pupil and ideally end up as almost equal colleagues. In these circumstances it is obviously desirable that the student and supervisor should be carefully matched." Both parties were fully aware of the peculiar nature of the research student/supervisor relationship. The Claimant had been working or studying in higher education establishments for a number of years and the Defendants had considerable experience of students studying for higher degrees. In the particular circumstances of this case it is clear to me, given that the Claimant had 15 or so months before being dismissed from his research post and had thereafter pursued an appeal against that decision using the Defendants' appeal procedures, that in his case much bridge building needed to be done and that the establishment of a working relationship between student and supervisor would take some time. In September 1993 the question of which research topic the Claimant was to pursue and who was to supervise him had not been discussed let alone agreed. An invitation to the Claimant to go and discuss both a research topic and a supervisor initially with Dr Etheridge was not extended until the 27th September, some days after, it is submitted, this contract came into being as an enforceable agreement. Whilst the general area of interest to the Claimant was known within the Faculty of Engineering an exact topic had not been identified and no supervisor had been either chosen or approached. It seems to me that those two matters - research topic and the supervisor - not only go hand in hand but also, and more importantly, in my judgment, go to the very heart of this agreement. Neither, despite 6 months of effort on both sides, was ever satisfactorily identified or agreed. Whilst the Defendants could make the financial offer which they did to the Claimant he was in no position to accept it unless and until he had identified both the research topic and the person who was to supervise him. In my judgment he made that very clear to the Defendants because he did not wish to commit himself to their proposal if that would mean that his ongoing academic appeal would be lost to him. In my judgment, perfectly understandably, he was careful throughout to ensure that no action by him would produce a situation whereby he would not only not be able to do the research but also he would lose his ongoing appeal as well. In his acceptance letter of 22nd September 1993 which is headed WITHOUT PREJUDICE (presumably to his academic appeal) he wrote (and I quote word for word)"[24]The judge then set out the words that I have already quoted and went on to refer to a letter written on 12th October to the deputy principal by the appellant in which he said:
"I would like to draw your attention to the fact that my acceptance of your offer of re-instatement is subject to finding an appropriate area of research. I will not work on a topic to suit the department's vacancies nor will I allow myself to be experimented with by an inexperienced member of the staff who wants to be a PhD supervisor."

The judge continued:

"In evidence the Claimant told me that his acceptance was also subject to a suitable supervisor being appointed other than Dr AlSayed or Dr Trinogga. It was, so far as he was concerned, an essential part of the compromise agreement reached that he would have different supervisors to those who had acted previously. When writing to the Chairman of the Board of Governors in April 1994 the Claimant wrote of his 'conditional acceptance of the University's offer', a phrase which he expanded upon slightly when he was writing to the University Secretary in June 1994 when he described the offer as being 'conditional upon finding appropriate research topic'. When writing to the Higher Educational Quality Council in September 1994 the claimant wrote that he had 'reluctantly accepted the former offer conditional on finding a new supervisor, and an appropriate research topic. I have named the topic and the supervisor in my acceptance letter'."
[26]Thus,

the judge concluded:

"It is clear, in my judgment, that the Claimant saw the identification both of a suitable, original and academically valuable research topic and of an appropriate supervisor as central to the exercise in which he was engaged. In evidence he told me as much. It is clear to me that he wished to leave all his options open, including, if necessary, the resurrection of his academic appeal; he was not prepared to do research at any price and be slotted into a convenient hole where others thought it appropriate to put him. He was not willing to be the Department's research 'dogs-body'. To him the topic he was to research and the person who was to guide his studies was central to his agreement. In my judgment, he was quite right to so regard it, but the fact that such an important issue was left to be resolved at some future (unspecified) date, in the form it was, poses a very serious question as to whether this contract was sufficiently certain for it to be legally enforceable at all."
[27]I have quoted that extract from the learned judge's judgment in full because it gives the clearest possible indication of his reasoning in reaching his conclusion. Having set out his view of the facts, as I have indicated, he went on to summarise the law as he understood it governing the issue of uncertainty in relation to the enforceability of a contract. He cited passages from Halsbury's Laws of England and referred to a number of cases including the well-known passage from the judgment of Maugham LJ in Foley v Classique Coaches [1934] 2 KB 1, 13, which was cited by Sir John Pennycuick in Bushwall Properties v Vortex [1976] 2 AER 283, 287H. The judge's conclusion was that the alleged agreement was unenforceable because essential terms had not been agreed. In his judgment the choice of research topic and supervisor was of the greatest possible importance to the appellant, as the events over the following six months demonstrated. His view of those events subsequent to September 1993 was that they comprised a long series of negotiations between the parties to see if agreement could be reached on the essential issues left unresolved by the purported compromise "agreement".[28]As a litigant in person, the appellant has obviously been at a considerable disadvantage in arguing this first issue in the appeal, which is essentially a question of law. He has, however, made his points very clearly and, as before the trial judge, he has expressed his distrust of the respondent and his wish in September 1993 to keep open his right to invoke the appeal procedure, if his attempt to select a research topic with acceptable supervisors were to fail. In doing so he has referred to the events between September 1993 and April 1994, narrated in Judge Gullick's judgment, which culminated in a letter dated 14th April 1994 from the respondent's acting dean in the following terms:
"I have received a number of communications which lead me to believe that by your actions you have managed to alienate Dr Al-Ahmad who is not now prepared to act as your second supervisor. You mentioned in your letter [of 7th April 1994] That you do not wish to work with your chosen supervisor Dr Trinogga, and suggest that Dr Danaher be involved with supervision. I have to tell you that I have spoken with Dr Danaher and he has confirmed what he told Dr Etheridge, that he is not able to act as your supervisor in any capacity. My summary of the situation is: That the Faculty has provided you with suitable supervisors, a place to work and equipment to carry out research. You have decided not to work with Dr Trinogga, your designated supervisor. You have refused to attend your designated place of work. You have alienated Dr Al-Ahmad, your second supervisor and he now refuses to have you as a research student. This leaves you in a position where it appears you are not in a position to carry out your responsibilities as a research student. Under these circumstances, I feel that the Faculty has discharged its responsibility to you in terms of the agreement you have reached with Dr Hitchins."
[29]That termination, in effect, of the "agreement" was confirmed by the university's secretary in a further letter dated 7th June 1994, alleging that the breakdown in the relationship between the parties had been caused by the appellant's "own frustration of the university's arrangements". The situation was reviewed, at the request of the appellant, by the respondent's principal but he confirmed the decision to exclude the appellant from the university. The appellant, however, alleges that the respondent acted in bad faith in failing to implement what he still regards as the compromise agreement, and submits that it was the respondent that frustrated his own genuine attempt to identify a research topic and appropriate supervisors.[30]The submissions made by counsel on behalf of the appellant at the hearing below were to the effect that the compromise agreement constituted an enforceable contract and that the contract was subject to the appellant finding an appropriate research topic and being provided with suitable and satisfactory supervisors in his chosen area of research. He submitted, firstly, that there was both an offer and an acceptance, and that the correspondence as a whole and the actions of the parties between July 1993 and April 1994 show that a contract had been formed by 23rd September 1993 at the latest. The difficulties in performing the contract had not arisen out of uncertainty about its terms but in part out of the haste in which the contract has been made. Those difficulties had arisen from the peculiar circumstances in which the contract had been made and the respondent's difficulties had been of its own making.[31]It is, of course, striking in this case that, although both parties submitted to the trial judge that an enforceable compromise agreement had been made, there was virtually no agreement about important terms of it. I have already referred to the rival contentions as to those terms set out in the pleadings and need not repeat them here. Mr Susman's submission on behalf of the defendant was that it undertook to enrol and fund the appellant as a post-graduate student for three years from September 1993 with a view to the appellant undertaking an original research project intended to lead to the award of a PhD degree but subject to satisfactory progress being made throughout the period of study. Mr Susman submitted further that the contract contained the four terms pleaded in the defence but the appellant denies vehemently that he accepted two of them, namely, a requirement that he should accept and co-operate with supervisors selected for him by the respondent and that he should accept and comply with the respondent's requirements as to the appellant's place of work.[32]Before this Court, Mr Susman has, for understandable reasons, including the respondent's wish to act in good faith and to avoid revival of the appellant's earlier grievance, repeated his argument to the Court below. He submits that the respondent's letter of 20th September 1993 constituted an offer capable of acceptance and that it was accepted by the appellant's letter of 22nd September 1993; there was no formal pre-condition to the conclusion of agreement, such as the selection of a suitable research topic. Mr Susman recognises his difficulty, however, in proceeding from those premises to persuade the Court to imply as a necessary term a slightly expanded version of the terms pleaded in paragraph 2 of the defence.[33]It is clear in my judgment that the question before the Court has to be decided on the basis of an objective interpretation of the exchanges between the parties between July and September 1993, viewed against the relevant matrix of background facts then known to both parties. For my part, despite the helpful submissions made by both the appellant and Mr Susman, I remain of the opinion that the trial judge's conclusion that the alleged compromise agreement failed for uncertainty and the reasoning by which he reached that conclusion are correct on the particular facts of this case.[34]In these circumstances, I need add only a few comments on the major issue in this appeal. Speaking generally, universities are, of course, anxious in the current educational climate to attract suitable potential candidates for post-graduate research and they offer various incentives for such candidates to apply. But the selection of a suitable research project, which requires the approval by a designated university body, is critical; and this is particularly so in highly specialised scientific fields, in which the pace of advance may well be very rapid.[35]Equally, the matching of supervisors who are suitable for both the research project and the student is of central importance and may present difficult problems in view of a university's limited staff resources. Whether or not an alleged agreement of the type under consideration in this appeal is sufficiently certain in its terms to be an enforceable contract must be judged on the facts of each particular case but in the instant case the appellant made it clear repeatedly, as the trial judge explained, that the selection of his research project and supervisors were vital to him. He did not trust the respondent and he was not prepared to abandon his existing rights under the grievance procedure until agreement had been reached on these crucial matters.[36]In the event it appears that the appellant's caution was justified, at least in his own mind, and the parties' widely differing assertions as to what that was agreed in July to September 1993 serve to underline the validity of the trial judge's finding, on objective consideration of what was then said, that the compromise was too uncertain in its terms to constitute an enforceable contract.[37]In the light of this Court's decision to uphold the trial judge's primary finding, it has not been necessary to hear argument about the judge's alternative findings on which the other grounds of appeal and the counter-notice are based or to recite here the detailed history of events after September 1993 leading to the breakdown of negotiations between the parties in April 1994, which was set out fully in the judgment below. There was before us an application by the appellant to adduce further evidence relating to those other grounds of appeal, but it was unnecessary for him to pursue that application because of our decision on the major issue.[38]I would, therefore, dismiss the appellant's appeal and affirm the judge's order that the appellant's claim in the action be dismissed.

LORD JUSTICE TUCKEY: I agree.

LORD JUSTICE PILL: The judge found, contrary to the submissions of both parties, that a contract did not exist between Mr Assi and Leeds Metropolitan University. I accept the good faith in which the university as well as Mr Assi acted in making those submissions. It is necessary to consider whether terms were offered and accepted. Sir Ronald Waterhouse has analysed the situation with his customary clarity. An offer was made to Mr Assi. There was, in my judgment, no final and unqualified expression of assent by him. He repeatedly kept his position open. He did so in a succession of letters up to April 1994 when the university sent him a letter on 14th April to which Sir Ronald Waterhouse has referred.

[41]Mr Assi did so deliberately and for what he regarded as good reason, and indeed may well be good reason. Mr Assi was not contractually bound to the university. The parties were never at one either as to the important question of the research topic to be undertaken or as to who would supervise Mr Assi. He was not contractually bound to the university and cannot claim that the university was contractually bound to him.[42]I agree with Sir Ronald Waterhouse and with the judge that there was no contract between the parties and that the appeal must be dismissed. (Appeal dismissed; respondents to have costs of the appeal; Mr Assi was legally-aided until 18th December 2000; up to that date order is not be enforced without further detailed assessment; application for permission to rely on further evidence dismissed with no order for costs on that application)

Cited in 1 later judgment