McKoy, R (on the application of) v Oxford Brookes University [2009] EWHC 667 (Admin)

[2009] EWHC 667 (Admin)Case No CO/10076/2007
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Venue Royal Courts of JusticeDate Thursday, 19th February 2009
Strand
London WC2A 2LL
B e f o r e:
MR JUSTICE McCOMBE
Between
THE QUEEN ON THE APPLICATION OF JENNIFER AMANDA MCKOYClaimantv
Between
OXFORD BROOKES UNIVERSITYDefendant
Computer-Aided Transcript of the Stenograph Notes ofWordWave International LimitedA Merrill Communications Company190 Fleet Street London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
Miss M Patel (instructed by Truemans) appeared for ClaimantMr O Hyams (instructed by Oxford Brookes University Legal Services Department) appeared for Defendant
J U D G M E N T
[1]MR JUSTICE McCOMBE: This is a claim for judicial review brought by Miss Jennifer McKoy against Oxford Brookes University, which I shall call "the University". In the claim Miss McKoy challenges the decision of the Appeal Committee of the University, communicated to her by letter of 7th August 2006, upholding the decision of the Examination Committee to withdraw her from its Bachelor of Science course in midwifery.[2]The initial decision of the Examination Committee was communicated by letter of 24th January 2006 from Dr GA Scurry, the Dean of the Modular Programme, which said this:
"I regret to inform you that your results to date do not satisfy the course requirements. The Examinations Committee has therefore decided that you must be withdrawn from the Midwifery course immediately."
The remainder of that letter deals with alternative courses that the claimant might take if she was so advised and offers advice as to her future.[3]Miss McKoy asked for amplification of the reasons, which had been given so shortly in the letter of 24th January, by way of a letter from her solicitors of 3rd February 2006 to Dr Scurry. That enquiry elicited a response (which is to be found at the same volume of documents at page 17) in the following terms:
"In answer to your question about failed modules, the definition quoted is to distinguish it from a resit grade. A resit entitles the student to reassessment without retaking the module whereas a fail does not. Of course in Miss McKoy's case she has been withdrawn from the University permanently and so does not have the opportunity to retake the module. If she was to transfer to Health Related Studies, she could retake the module if it were an acceptable part of her new programme. In answer to your specific question: 1. The course requirements are that students must not fail two practice based modules. Miss McKoy has done this on modules U41733 and U4175O. 2. This is specified in Undergraduate Regulations 14 (vii) 3. The University Examination Committee took this decision on the recommendation of the Midwifery Subject Examination Committee. I wrote on behalf of the examiners. 4. The full reasons for the decision are exactly as I have described above. 5. Her position with regard to the failed modules is, again, for the reasons described above."
The remainder of the letter deals with the possibility of appeals and questions of alternative studies or options for Miss McKoy.[4]The Appeal Committee upheld the decision communicated in the manner that I have stated in the following terms. (I shall concentrate, first, on the Appeal Committee's decision on the regulation 14(vii), which was at the forefront of the decision. The first heads of the decision letter concentrated on other aspects of the regulations and I will come to them where necessary hereafter). The letter said this (page 35 h)):
"while the wording of the second part of the first sentence of Regulation 14(vii) was ambiguous, i) each Examination Committee has (under Regulation C1.3) wide discretion in coming to its decisions and the power to interpret any regulation if difficulties arise; ii) all the Examination Committees in all the fields involving professional practice (including the Midwifery Subject Examination Committee), and the Modular Examination Committee, had consistently interpreted Regulation 14(vii) to mean that a student who failed two practice based modules would be required to withdraw from that course; (iii) Miss McKoy was fully aware that this was the case from the start of her course as it was clearly set out in that form of words in the Course Handbook she had been given upon enrolment..."
The decision went on to say this in paragraph j):
"both the Midwifery Subject Examination Committee, the Modular Examination Committee and the University as a whole (sic) also have an over-riding duty to ensure that its decision do not result in the possibility of danger to the public."
[5]The present claim is brought with the permission of Pitchford J, granted by the terms of an order that is contained within the papers. The judge also granted an extension of time in which to apply. (It can be seen from the dates that I have recited that these proceedings come into existence some time after the time limits that one might envisage at making of an application for judicial review. This was because, following the appeal, the claimant invoked the procedures of the Office of the Independent Adjudicator for Higher Education. This took up further time.)[6]Most of the argument turned in first instance upon regulation 14(vii) of the Undergraduate Modular Regulations in force at the time that the decision was taken. That regulation provided as follows:
"No practice based module or School Experience module may be taken more than twice and a student may take no more than two such modules twice. A student who is consequently unable to complete an award will be required to withdraw from the course."
Miss McKoy had failed in fact three modules of which two were "practice based modules" within the meaning of that regulation. They were Nos 41733 and 41750.[7]It seems that the University Exam Committee and the University generally had consistently interpreted rules 14(vii) to mean that a student who had failed two practice based modules would be required to withdraw from his or her course. It appears further that the University regarded itself as having an overall discretion as to when it permitted a module to be retaken. It considered that regulation 14(vii) merely provided an upper limit to the number of times a "retake" would be permitted. By contrast, Miss McKoy, for whom Miss Patel of counsel appears, submits that regulation 14(vii) in fact confers an entitlement upon a student to retake up to two practice based modules.[8]The University's regulations are not an example of the most clear of regulatory provisions. It is necessary therefore to trawl through voluminous and scattered materials, appearing throughout the papers and in various statutory and sub-statutory provisions.[9]The University was formed in April 1989 from the former Oxford Polytechnic. This was achieved by the Education Reform Act 1988; the University was granted its present status by the Further and Higher Education Act 1992. The 1988 Act (section 125) requires the University to have an Instrument and Articles of Government. Those Articles of Government in this case establish the Academic Board, which in turn is responsible for, among other things, policies and procedures for assessment and examination of the academic performance of students, academic standards and the procedures for exclusion of students on academic grounds.[10]The courses at the University are governed by regulations made pursuant to the Articles of Government. Regulation 14(vii), which I have quoted and upon which the decision of the Exam Committee was apparently founded, forms part of the Undergraduate Modular Programme Regulations 2004 which applied to Miss McKoy's course. I will return to the relevant further provisions of those regulations shortly.[11]It should be added that Miss McKoy was a midwifery student. She was pursuing a course at the University which was accredited by the Nursing and Midwifery Council (which I call "the NMC") so as to lead to a professional qualification in that discipline. Obviously therefore certain minimum standards as to the contents of the course and the assessment of students have to be provided so as to ensure proper protection of the public. In essence, Miss McKoy's course was approved by the NMC pursuant to article 15 of the Nursing and Midwifery Order 2001.[12]Miss Patel for Miss McKoy submits that, on the proper construction of the regulations, the Exam and the Appeal Committee erred in law in interpreting regulation 14(vii). Therefore, the impugned decision should be reviewed.[13]The University submits, through Mr Hyams of counsel, that the court's only remit is to consider whether the Exams Committee's decision was taken "reasonably", in accordance with the principles of natural justice. In addition he argues that the University:
"has a discretion under the 1988 Act and general principles of public law which it has consistently applied in exercised lawfully for many years. This discretion is not rendered unlawful by virtue of the claimant taking a different view of the meaning of the regulation."
[14]It is argued that it is to be inferred that this means that the University has a discretion to exclude a student whatever the correct reasoning in law of its own regulations. This argument is expanded upon in the skeleton of Mr Hyams for the University in the following terms. In paragraph 5 of that document, Mr Hyams says this:
"The ultimate question here is surely as stated in paragraph 2 of the defendant's detailed grounds, namely whether or not the defendant's determination that the claimant is not fit to practise as a midwife was made lawfully and, if it was not made lawfully, whether the court should grant the claimant any remedy."
It is perhaps to be noted that formulation of the question and the nature of the determination did not find its way into any of the decisions presently impugned. In paragraph 8 Mr Hyams further submits:
"Furthermore, it is not the defendant's case, as claimed in paragraph 8 of the claimant's skeleton argument, that a prior question is whether or not the proper construction of the original regulation 14(vii) is justiciable. It is the defendant's case that a judgment that the claimant should not be permitted to proceed to registration as a midwife because she was not fit to be qualified as a midwife is not justiciable."
[15]Miss Patel submits in contrast that all turns upon the construction of the regulations and nothing else. In the course of evidence a number of provisions of the labyrinthine regulations of the University have been mentioned, principally in the statement of Mr Appleton to which I have already referred. However, I take it the University now relies simply on the basis of those points and those regulations which are identified in its detailed grounds and in the oral and written arguments of Mr Hyams.[16]Apart from the provisions of the regulation to which I have already referred, it is necessary to set out some further extracts from them. First, I have mentioned the Articles of Government. Article 3.4 of that instrument provides as follows:
"Subject to the provisions of these articles to the overall responsibility of the Board of Governors and to the responsibilities of the principal the Academic Board shall be responsible; (a) subject to the requirements of validating the accredited bodies for general issues relating to the research scholarship, teaching and courses of the institution including... policies and procedures for assessment and examination of the academic performance of students... academic standards and validation of courses... and the procedures for the exclusion of students for academic reasons."
Under the Articles of Government the University has made Academic Regulations and the Undergraduate Modular Regulations to which I have already referred. The defendant relies upon article C1 of the Academic Regulations as conferring a general discretion on the University to determine the fulfilment of course obligations and to interpret where necessary the underlying assessment regulations in cases of difficulty. Those provisions (at page 84 of the claimant's bundles) are in the following terms:
"C1.1 Fulfilment of programme objectives. The purpose of assessment is to enable students to demonstrate that they have fulfilled the objectives of the programmes of study and achieved the standard required for the award they seek. The University requires all programmes of study to be subject to course regulations which relate the assessment requirements of the programme to its objectives, and it is within these course assessment regulations that examiners make their judgments on student performance. ... C1.3 1. Assessment is a matter of judgment, not simply computation. Marks, grades and percentages are not absolute values but symbols used by examiners to communicate their judgment of different aspects of a student's work, in order to provide information on which the final decision on a student's fulfilment of course objectives may be based. It is particularly important for students to understand the nature of examiners' discretion and judgement when details of individual marks are available to them. 2. Within the constraints imposed by the requirements of C.1.1 above, examiners have wide discretion in reaching decisions on the awards to be recommended for individual candidates. They are responsible for interpreting the assessment regulations for the programme if any difficulties arise, in the light of the University's requirements and good practice and higher education, and their academic judgements cannot, in themselves, be questioned or overturned."
[17]Returning to the Undergraduate Modular Regulations, some other provisions are necessary to be recited (pages 74 and following of the bundle). Miss McKoy, through Miss Patel, relies upon the provision in paragraph 13 of the regulations relating to grades where it is said of the F grade, awarded to Miss McKoy in the exams which she failed, the following:
"Fail. Not entitled to re-assessment without retaking the module."
This is to contrasted with provisions in relation "resits" in cases governed by grades RC, RE and RB, which respectively read:
"Resit. Entitled to re-assessment by submission of further coursework only without retaking the module. RE Resit. Entitled to re-assessment by examination only without retaking the module. RB Resit. Entitled to re-assessment by submission of both coursework and examination without retaking the module."
I have been referred to further parts of regulation 14, regulation 14(i):
"The Examination Committee may require a student to withdraw who does not pass at least three module credits in any two successive semesters of study... iii A student may be required to withdraw from a module, which has prerequisite modules if she/he did not achieve at least 30% on the assessment of each prerequisite. iv A student may be required to withdraw from an advanced module, which has basic prerequisite modules if she/he did not pass those modules... vi A student who has not satisfactory completed, after taking 3 times, a module which is a specific field requirement may be required to withdraw from the course."
[18]Finally, I should refer to the Course Handbook upon which the defendant has relied in certain respects. This has been before the court in two forms. First, in the form available to Miss McKoy on her enrolment in June 2004, and this contained the following, with regard to "R" and "F" grades (at page 119 of the same bundle):
"R In all compulsory or required module students are normally offered the chance to resit, although this is discretionary. This takes place in the period following the end of the module ... F A student who has gained an F grade will be required to retake the module on its next run. There are limitations on the number of times a module may be taken. No advanced practice based module may be taken more than twice and no more than two such modules can be taken twice. Other compulsory or required modules may be taken no more than 3 times."
So there, as can be seen, a contrast between a discretion to permit resits and a statement of requirement to retake the F modules with limitations in the precise terms of regulation 14(vii) of the Undergraduate Modular Regulations which applied in this case.[19]In fact while the regulations stayed the same throughout the material period, the Handbook entries changed during the semester of 04/05. This document provides in one place an interpretation of regulation 14(vii), which is as contended for by the defendant. That extract (in the second of the claimant's bundles at page 229) in the following terms:
"You cannot continue on the programme if you fail a practice module twice and you also cannot continue if you fail two practice modules. In addition, you cannot continue if you are unsuccessful after taking any module 3 times."
At another place (at page 231 of the same bundle) also from the Handbook, there is again a restatement of regulation 14(vii) in its old form.[20]It is convenient to approach the various arguments that have been addressed to me by taking the point of construction of regulation 14(vii) first. The defendant comes close to accepting that the words of the regulation on their face in fact confers the entitlement for which Miss McKoy contends (I refer to paragraph 27 of Mr Hyams' skeleton argument). Mr Hyams submits, however, that the wording cannot be read in isolation and reference must be made to the other provisions to which I have referred and the regulatory framework, including the accreditation of the course by the NMC under its rules.[21]In my judgment, when first read, the regulation does indeed suggest the entitlement on the part of the student for which Miss McKoy contends. This is largely a matter of impression and is not capable of great amplification. That impression, however, is fortified by reference to the description of the consequences of an F grade at page 75 of the bundle to which I have just referred. It is further fortified, in my judgment, by the provisions of clauses 14(i), (iii), (iv) and (vi) which deal with other factual situations which clearly indicate a discretion conferred upon the University to require a student to withdraw. It may or may not do so. In contrast, regulation 14(vii) states the limits on "retakes" and then says categorically that in such circumstances a student will be required to withdraw.[22]Of course the provisions of 14(i), (iii) and (iv) expressly state a discretion conferred on the University rather than upon a student, and this does not exclude the existence of an overriding discretion to which 14(vii) may be subject. However, regulation 14(vii) also uses the word "may". It does not talk about any discretion to the University and it talks of a mandatory requirement of withdrawal when the limits are reached. It does not assume any such mandatory withdrawal short of that and does not speak of any discretionary role for the University in that respect. It is to be noted that the fact that the University has invoked what it understood its powers to be so as to require the withdrawal of the student who did fail more than one practice module. In fact, as a result of this case and the Appeal Board's decision the University has redrafted regulation 14(vii) to read more clearly in accord with the contention that it makes as to its construction of its old form. That redrafted regulation appears in the claimant's bundle at page 83.[23]Miss Patel submits that this shows that the defendant's desired interpretation of the old rule was incorrect. I do not consider it can go as far as that. I do, however, think it is right that it does indicate the construction to which the defendant contends is a strained and unnatural one.[24]Mr Hyams, in the course of helpful and attractive submissions, relied upon the regulatory framework under which regulation 14(vii) had to operate, namely the NMC accreditation. He submitted that the accreditation was achieved in 2004 on the basis of the rule as interpreted in the 2004 version of the Handbook and the University's consistent practice over many years in applying its own interpretation of the regulation. It is here that he invokes article 3.4 of the Articles of Government to which I have referred, to say that the University's interpretation is a requirement of the NMC in validating the course. I do not think he can go that far. The course had been validated for many years under the regulation as previously drafted and no doubt with a Handbook in terms of 2003 - 2004 version which simply restated the regulation. There is no evidence to suggest that the NMC adopted any particular understanding of regulation 14(vii) in affording accreditation to this course. It did, in 2004, make certain other requirements for amendments of the rules but it remained silent as to the provisions of regulation 14(vii). All the NMC had to go on in earlier years was the regulation itself. There is no reason to suppose that it was dissatisfied or uncertain as to its meaning.[25]Mr Hyams further relies upon the provisions of Article C.1 to show that examining bodies have a wide discretion in the application and in doubtful cases the interpretation of the regulations. I have already set out regulation C.1 of the academic regulations. In my judgment, C.1 makes it clear that the progress of a student is subject to the course regulations and it is within the regulations that the examiners must make their judgments. C1.3 indicates that grades, along with marks and percentages, are not absolute values and are used to communicate judgments about a student's work. C1.3 sub-rule(ii) goes on to say that within the requirements of C.1, ie within the course regulations, the examiners have a discretion in reaching decisions on awards to be recommended. Thus, they are required to operate within the meaning of the regulations whatever they may be. They are, however, given limited discretion where difficulties arise in the interpretation of the regulations.[26]I do not consider that the regulations confer simply a limited expectation of a possibility of retaking a module. They seem to me to set out the ambit of that possibility and to state when the retake is to be available and when a student will be required to withdraw.[27]As Miss Patel notes, Article 2 of the Articles of Government prescribe that bylaws of the University have effect as rules of law upon which all interested parties can rely in accordance with their tenor.[28]Mr Hyams submits that what the Exam Board and the Appeal Committee did here was to determine that Miss McKoy was not fit to practice as a midwife and applied its discretion to withdraw her from the course on that basis. This, says Mr Hyams, was an academic judgment which cannot be justiciable in this court. However, that is not what the Exam Committee stated in its decision. Nothing was said by it that reflected any such decision on its part. Moreover there is nothing in the list of materials before the Appeal Committee that suggests that any such decision was in issue. That list appears in the supplementary bundle of page 198. The Appeal Committee concentrated primarily upon the application of the regulations and ended simply with the comment in subparagraph (j) that the Exam Committee had to ensure that its decision did not endanger the public. However, it does not appear that anything other than a failure to meet the requirements of the regulations was seen by it as constituting any such danger.[29]In fact when one reads the evidence of Miss Bowler for the defendant, it appears that the examiners were in truth concerned as to the fitness of Miss McKoy to practice in this field and records the external examiner's view pointing in this direction. However, in giving its reason to Miss McKoy did not so state. Further, the appeal regulations suggest that an appeal would not have been entertained if truly based on an academic judgment of this type. This can be seen by reference to the supplemental bundle (at pages 192 and 193). Rule 7 of the Appeal Rules provides as follows:
"Requests can only be made on the ground set out in paragraphs 10 and 13 below. Disagreement with the academic judgment of the appointed Examination Committee in assessing the marks of individual piece of work or in reaching any assessment decision based on marks agreed or other information relating under inclination performance cannot in it self constitute grounds for request to review by the candidate."
Paragraph 10 referred to in that paragraph deals with medical or other adverse circumstances and then in 13, one finds this:
"A candidate may request that an assessment decision is reviewed on the ground that (a) the assessment was not conducted in accordance with the regulations of the programme or. (b) the judgment of an examiner and examiners was improperly affected by personal bias or. (c) there was an material administrative error or some other material irregularity in the conduct in the assessment such that the assessment decision would be different had the error or irregularity not occurred."
[30]It seems clear that the Appeal Committee therefore was acting on the basis of an assessment that had to be reviewed on the basis that it had not been conducted in accordance with the regulations for the programme. No more and no less. It was not considering the exercise of an academic judgment or decision.[31]I agree with Mr Hyams' submission, based upon cases such as Clark v University of Lincolnshire and Humberside [2000] 1 WLR 1988, that where academic decisions are made, they are not generally within the purview of this court. It has to be noted that disputes about the rules to which the relationship of a student and university are subject, however, are within that purview. In Clark's case itself Mr Clark had submitted a paper which the examiners had failed on plagiarism grounds. The claimant claimed that the university had misconstrued the meaning of plagiarism and had awarded a mark beyond the limits of academic convention. It was alleged that in doing so the university had broken its contract with the claimant. The judge before whom the matter had come in the County Court had struck out the claim on the grounds that the issue raised was not justiciable. The Court of Appeal held this, quoting the headnote of the case:
"...although the arrangement between a fee-paying student and a higher education corporation was a contract, there were issues of academic or pastoral judgment which the university could adjudicate upon under its contractual dispute resolution procedures which were unsuitable for adjudication in the courts; that the claim as originally pleaded had travelled deep into the field of academic judgment and, on that ground, the judge had been right to strike it out; but that the allegations pleaded by amendment concerned breaches of contractual rules upon which, in the absence of a visitor, the courts were well able to adjudicate."
In the judgment of Sedley LJ one finds the following at page 991F - H referring to the decision of the County Court judge:
"His briefly expressed decision was to the effect that alleged breaches of contract by universities are not justiciable by the courts. 9. For reasons to which I will come, this proposition is in my judgment too wide. First, however, it is necessary to return to the particulars of claim. It emerged in the course of argument that Miss Clark's case in contract could be more tenably put in two ways not so far pleaded. First there was arguably a failure of the academic board to comply with the decision of the governors' appeal committee: on remission, it repeated exactly what the governors had held not to be an appropriate academic response to her performance by confirming the mark of 0. Secondly, there was evidence from the university itself that the resit was treated as an opportunity only to obtain a third class degree: if so, this was arguably in breach of regulation 6.5.4, which allows for the possibility of doing better. We allowed Mr Mulholland to amend his claim to add these elements, and it is on the claim as amended that the appeal has turned."
At page 992 and following Sedley LJ went on as follows:
"The arrangement between a fee-paying student and U.L.H. is such a contract: see Herring v. Templeman [1973] 3 All E.R. 569, 584-585. Like many other contracts, it contains its own binding procedures for dispute resolution, principally in the form of the student regulations. Unlike other contracts, however, disputes suitable for adjudication under its procedures may be unsuitable for adjudication in the courts. This is because there are issues of academic or pastoral judgment which the university is equipped to consider in breadth and in depth, but on which any judgment of the courts would be jejune and inappropriate. This is not a consideration peculiar to academic matters: religious or aesthetic questions, for example, may also fall into this class. It is a class which undoubtedly includes, in my view, such questions as what mark or class a student ought to be awarded or whether an aegrotat is justified. It has been clear, at least since Hines v. Birkbeck College [1986] Ch. 524... that this distinction has no bearing on the availability of recourse to the courts in an institution which has a visitor. But where, as with U.L.H., there is none, the decision of the New Zealand Court of Appeal in Norrie v. University of Auckland Senate [1984] 1 N.Z.L.R. 129 and the remarks of Hoffmann J. in Hines's case... open the way to the distinction as a sensible allocation of issues capable and not capable of being decided by the courts. It would follow, I think, that the issues which the courts remitted with obvious relief to visitors in such cases as Thomson v. University of London... and Patel v. University of Bradford Senate [1978] 1 W.L.R. 1488 (both of which concerned the plaintiff's academic competence) would still not be susceptible of adjudication as contractual issues in cases involving higher education corporations. 13. It is on this ground, rather than on the ground of non-justiciability of the entire relationship between student and university, that the judge was in my view right to strike out the case as then pleaded. The allegations now pleaded by way of amendment are, however, not in this class. While capable, like most contractual disputes, of domestic resolution, they are allegations of breaches of contractual rules on which, in the absence of a visitor, the courts are well able to adjudicate."
The case of Hines v University of Plymouth [2005] ELR 547 merely is an illustration of the application of those principles.[32]In my judgment, the meaning of these regulations and therefore the validity of the decision under challenge made on the basis of the regulations are very much matters within the range of competence of this court. For these reasons I consider that the construction of the regulations contended for by Miss Patel is the correct one and the decision under challenge was unlawful.[33]The remaining question is whether in my discretion I should grant relief. It was submitted by Mr Hyams that the evidence discloses an understandable judgment, based on Miss McKoy's performance on the course as a whole that she would not make a fit midwife. Perhaps as a matter of charity this was not expressed. It is pointed out further that she had already failed one midwifery course and had not attended sufficient practical sessions to qualify on this occasion. All this is quite understandable. Miss Patel says that I should grant relief nonetheless because the decisions under challenge were never stated to be founded upon fitness to practise but only on the regulations and their consequences. She submits that the regulations on the true construction addressed the question of fitness to practise by reference to the ability to retake modules as they may permit with whatever results may emerge. She argues these rules, as I have found, permit such retakes. If Miss McKoy fails again, submits Miss Patel, the unfitness to practise will follow. In the end she submits the overarching judgment of fitness is that of the NMC which can keep its register under review. Residual questions of fitness, it is argued, should be left to that body.[34]I accept that submission. Accordingly, this claim succeeds and I will hear counsel as to the appropriate order.[35]MR HYAMS: I rise first because I have been looking at this question in anticipation of your Lordship's judgment. You can see, my Lord, that the power of an Appeal Committee is stated at page 194 of the supplementary bundle. I am sure you will hear from my learned friend in a moment but I thought it right to draw it to your attention.

MR JUSTICE McCOMBE: Page 194 of the supplemental bundle.

[37]MR HYAMS: Paragraph 22.

MR JUSTICE McCOMBE: Yes.

[39]MR HYAMS: The Committee has power to apply to the Examination Committee to reconsider its decision and may make recommendations to consider when it does so, annul previous decision of the Examination Committee if it is not possible to reconvene. I have taken instructions, it is possible to.

MR JUSTICE McCOMBE: Which Committee?

[41]MR HYAMS: The Examination Committee. Then the possibility is of making recommendations as to recurrence. That was done here in any event. My Lord, all you are concerned with, as I understand it, is paragraphs 22A there. I will sit down now if I may perhaps and you might wish to hear from Miss Patel who will now respond.

MR JUSTICE McCOMBE: Miss Patel, what do you submit as to the formal order?

[43]MISS PATEL: My Lord, the order that was sought in the claim form was an order declaring the decision that was reached by the Appeal Committee to be unlawful. It was an order essentially requiring the claimant to retake the two practice based modules in question. That my Lord is in the claim form.

MR JUSTICE McCOMBE: Let us have a look at the claim form again.

[45]MISS PATEL: Which your Lordship should have at page 16 of the supplementary bundle.[46]MR JUSTICE McCOMBE: Yes. That does not refer to the declaration which you have just mentioned, does it?[47]MISS PATEL: No. You are quite right, my Lord, it does not. Starting with 26(1) though, it appears the quashing order that was sought--[48]MR JUSTICE McCOMBE: To cut this short, I would be inclined to make a declaration in the terms you have just mentioned, which was not in the claim form, and order in terms of 1 and 2.[49]MISS PATEL: And 2.

MR JUSTICE McCOMBE: I am not having this Committee meeting again.

[51]MISS PATEL: I am grateful my Lord. That was the concern I was concerned to avoid.[52]MR HYAMS: My Lord there are some difficulties in relation to the practicalities of the matter to which I need to draw to your Lordship's attention if you are going to go further than quash the decision. The concerns of the University are that the course is validated by NMC as your Lordship knows and the position is that the NMC has given guidance which was appended to the witness statement of Miss Bowler and if you look at page 134 of the supplemental bundle.

MR JUSTICE McCOMBE: Yes.

[54]MR HYAMS: You will see, turning on its side, bottom of page 21 of the guidance. It says:
"If there are interruptions to a 3 year full-time programme the education programme be completed within 5 years of the commencement date."
Then on the next page, because the next bit does not apply, it not being part-time, 7 years. It says at the top of the next page:
"If there are interruptions to an 18 month full time midwifery full time of education the programme completed within 2 years and 6 months of the commencement date where a student attends a part- time programme completed within 3 years and 6 months of the commencement date."
[55]The position is therefore that this University would be in difficulty with the NMC if it merely permitted the claimant to retake these modules. There is a further problem, in that anybody who is already a qualified midwife and is out of practice for 3 years or more, there is a requirement that they undergo re-acquaintance training of no less than 3 months. I am telling you this because these are my instructions.

MR JUSTICE McCOMBE: I understand that.

[57]MR HYAMS: So it is not going to be possible for the defendant to simply allow the claimant to retake these two modules. She will need to arrange with the hospital to which she was previously attached that she be permitted to attend in order to undertake the modules and be assessed. It really is not as simple as all that. What I suggest you do is simply quash the decision.

MR JUSTICE McCOMBE: And make the declaration that I have indicated.

[59]MR HYAMS: Exactly, my Lord. The defendant will then revisit the matter and take such steps as it reasonably can, bearing in mind its accreditation. That was what I have been asked to say to you, it can do, and what is all that it can do. I cannot really go any further than that, but you can see the difficulties.

MR JUSTICE McCOMBE: There are practicalities.

[61]MR HYAMS: There is certainly no possibility of the claimant simply going back and into position and resuming. So there are mechanical problems.[62]MR JUSTICE McCOMBE: May be the answer is this? If I make the declaration that I have indicated and quash the decision and give each party permission to re-apply, having considered the practical ramifications as to how the proper effect can be given to those matters.[63]MR HYAMS: I will take instructions.[64]MR JUSTICE McCOMBE: That seems to be more practical and one would hope that one way or another a means can be looked into, no doubt possibly with the Council as to how this rather unusual situation should be dealt with. I do not expect you to agree with every word that has fallen from my lips, far from it, but the problem that now exists, on the assumption that the judgment I have given is correct, is not of this claimant's making.[65]MR HYAMS: We appreciate that my Lord. There is this problem that it is not possible simply to go back.[66]MR JUSTICE McCOMBE: I understand that. That is why I am trying to address the practicalities in the way I have suggested. (Pause).[67]MR HYAMS: We are happy with that.

MR JUSTICE McCOMBE: Miss Patel, what do you say about that proposal?

[69]MISS PATEL: My Lord, it seems right that the third order is not going to be an order that can be made today at least in the terms that I have set out. It seems to me there are two options: one would be to make that order subject to conditions being satisfied. One might be obviously that arrangements with the hospital are in fact made and the other might be that arrangements with the NMC to get around the interruption problem are reached to the satisfaction of all concerned.[70]MR JUSTICE McCOMBE: I think it is too difficult, at this stage, to compose a form of order that meets every possible contingency. I think what the best course remains, as I have suggested, that I make a declaration in the terms that you have asked for, quash the decision under challenge and leave it to the parties to consider the ramifications of it, to see what the practical difficulties are and come back to me if necessary. If agreement cannot be reached those matters can be investigated, if necessary on a further application. I do not think one can do better than that, Miss Patel. I will make that order. Perhaps that can be drafted by one or other of you and be submitted to me for final signature. Is there anything else?[71]MISS PATEL: Simply, my Lord, the matter of costs. A schedule was served yesterday, I do not know if it has reached you.[72]MR JUSTICE McCOMBE: Let us look at the principle first. You apply for your costs of this application in these proceedings so far. I better see what Mr Hyams says about the principle before we look at the question of quantum.[73]MR HYAMS: I am in some difficulty my Lord in saying there should be an order for costs. The question is of how much.[74]MR JUSTICE McCOMBE: On that basis I will make an order that your client pays the claimant's costs. We now come to the question of whether I should summarily assess them and to questions of quantum. There is a schedule -- I remember getting it -- I will see if I can find it.[75]MR HYAMS: It falls to me to respond first.

MR JUSTICE McCOMBE: On what?

[77]MR HYAMS: The schedule.[78]MR JUSTICE McCOMBE: Yes, I have a schedule from Truemans, which you ask for the figure there stated. Are you asking me to assess them summarily on that basis?[79]MISS PATEL: I do, my Lord. There is one thing that I want to flag up which is that obviously there were costs of going to the OIA which are not properly the costs of this action and they are not in the schedule. Just to make that clear.[80]MR HYAMS: I must have a different schedule, my Lord. If you look at the bottom of page 1 it says:
"counsel's fees ... fee for telephone advice application to OIA."
And then: "Miss Patel, fee for drafting note for leader" et cetera. So those seems to relate to OIA.[81]MISS PATEL: I am very happy to respond.[82]MR JUSTICE McCOMBE: Subject to that -- you take instructions -- your solicitors, with all respect to you, Miss Patel and myself, solicitors tend to be more experienced on the questions of quantum of costs. Have you taken instructions on the rest of the bill?[83]MR HYAMS: I have not, my Lord, I have to say.[84]MR JUSTICE McCOMBE: Do you want to do that. I think that may be wise. I am not asking you to do it lengthily. Do you want to ask your instructing solicitor if there are any particular items that you wish to quibble about? (Pause).[85]MR HYAMS: My Lord, if I may? The questions that arise in our minds are: why was there so much by way of costs incurred in attendances on others? And: what precisely was the work done on the documents bearing in mind that counsel were also instructed? I am not quite sure about that.[86]MR JUSTICE McCOMBE: We will hear from Miss Patel. I suspect that item at the bottom of hers may well be the advice and the second grounds of claim. I take your point, that if counsel has drafted the grounds of claim in this case, then query what is the work on documents. That is your point, is it not?[87]MR HYAMS: It is, my Lord. The question of attendances on others is an interesting one.

MR JUSTICE McCOMBE: There are things like attending on courts, we will see.

[89]MR HYAMS: I would be grateful if we could hear more.[90]MR JUSTICE McCOMBE: We better hear from Miss Patel on that basis. First of all Miss Patel, which bits of counsel's fees really relate to this matter. Am I right in thinking that it is the item at the bottom of the first page?[91]MISS PATEL: It is in fact all of them. I will explain why.

MR JUSTICE McCOMBE: We are getting to the stage when I am going to order a detailed assessment.

[93]MISS PATEL: No, I can be very brief. This matter began by way of an advice given by myself and the Silk who is listed on the schedule, advice on the merits. That figure there for the Silk -- I have the fee sheets here -- was for the initial advice on the merits of the claim.

MR JUSTICE McCOMBE: The application to the OIA.

[95]MISS PATEL: At that stage it was the merits of the judicial review. The advice given was that although the judicial review had merit, there was an alternative remedy. The sum there for the leader, on this fee sheet relates to working on papers and advising by telephone with myself. There was then 20 minutes spent by the leader looking over the application to the OIA which I drafted for which essentially nothing was charged because I have the fee sheet here and it is the same figure as for the initial advice. Although the schedule says: "fee for telephone advice/application to the OIA", the 20 minutes spent by the Silk on the application to the OIA were not charged for. So that is for the initial advice, my Lord.[96]In relation to my fees, the fee drafting the note for the leader related to what I have just discussed and namely the merits of the review and then the conclusion that there was an alternative remedy. There was then some £400 additional to my fees which do not appear now, which relate to the actual drafting of the application to the OIA and the response that I subsequently drafted and then what you have are the fees for this action.

MR JUSTICE McCOMBE: I see.

[98]MISS PATEL: So, in our submission, the element.[99]MR JUSTICE McCOMBE: What about the other matters that Mr Hyams raised, the work on documents and attendances on others?[100]MISS PATEL: My Lord, yes. The attendances on others are largely attendances on myself. There was a conference held in London, my instructing solicitor is in Oxford. That doubtless will include travel time. That was held prior to the lodging of the claim form and I believe that my instructing solicitor also lodged the claim form and the bundle himself. Thereafter there have been telephone conferences relating to this matter and obviously taking my instructing solicitor's input on the documents by telephone.[101]In relation to documents, and I have had several detailed and extremely helpful sets of instructions which I am sure my instructing solicitor did spend some time drafting. My Lord will appreciate that it is quite a technical case. There are numbers of regulations that my instructing solicitor has trawled through and the bundles. While I appreciate my Lord does not find them particularly easy to follow, they did involve considerable work collating the documents.[102]MR JUSTICE McCOMBE: What I have got is quite understandably the original claim forms bundle and rather than preparing a new bundle for the hearing, you prepared a supplemental one.[103]MISS PATEL: It is right my Lord that I was responsible for settling the grounds but the bulk of my instructing solicitor's time, a lot of it has been spent on the bundles.[104]MR JUSTICE McCOMBE: Right. Those are the explanations. Mr Hyams?[105]MR HYAMS: Well, my Lord, some of that cost of attending on others must have been for lodging and for filing the claim form, for example. Normally one would expect a process server to do that at rather lower cost.[106]The work done on the documents I can understand my Lord, but still looks a little high. I would ask you to reduce the bill to a considerable extent in those respects, but also the fee for the telephone advice for leader is, in my submission, high as well, having heard what it was about. It would not be right, in my submission, for all of that to be the subject of an award against the defendant. I am not in a position without knowing quite how much Mr Karl Frisk did to say how much it should be reduced by. We are in the usual difficult position where there is a summary assessment of simply not knowing on what basis these fees are claimed.

MR JUSTICE McCOMBE: Yes.

[108]MR HYAMS: I do not know if I can assist your Lordship any further.

MR JUSTICE McCOMBE: Last words Miss Patel.

[110]MISS PATEL: Just in relation to that last point. There were, if I am not mistaken, two, if not three bundles of documents in the first instance that both myself and Mr Karl Frisk had to read. That in itself would have taken a considerable amount of time. If I am not mistaken, the telephone conference itself will have run to between half-an-hour and a hour. If that is of assistance.[111]MR JUSTICE McCOMBE: I will assess these costs summarily because I think in the end it saves expense. However, one remains conscious that on detailed assessments bills of this type do achieve a reduction to some extent, perhaps not as high as they were in the old days when one looked at solicitor and client costs and then had a taxation by the Costs Master thereafter.[112]I think for the grounds advanced by Mr Hyams, it is unlikely that the whole of this sum would be recoverable on a detailed assessment. A good proportion of it clearly would be. Doing the best that I can what I am going to do is strike a global figure, endeavouring to take into account the validity to an extent of the point by Mr Hyams and, of course, the points made in opposition by Miss Patel.[113]I think that the appropriate course, in the end, is to assess these recoverable costs summarily, including VAT, at the sum of £16,000.