Kwao v University of Keele [2013] EWHC 56 (Admin)

Case No CO/5577/2012[2013] EWHC 56 (Admin)IN THE HIGH COURT OF JUSTICEVenue ADMINISTRATIVE COURT (Manchester), Manchester Civil Justice Centre1 Bridge Street WestVenue ManchesterM60 9DJDate 24 th January 2013
Before
HHJ GRAHAM WOOD QC(sitting as a Judge of the High Court)
Between
ALEX KWAOClaimantUNIVERSITY OF KEELEDefendant
(Transcript of the Handed Down Judgment ofWordWave International LimitedA Merrill Communications Company165 Fleet Street, London EC4A 2DYTel No: 020 7404 1400, Fax No: 020 7831 8838Official Shorthand Writers to the Court)
JudgmentIntroduction
[1]The Claimant has been granted permission to apply for judicial review of the decision of Keele University not to award him a doctorate in education (EdD) on the examination of his thesis, but instead to award a Masters degree. I heard the parties’ submissions at the substantive hearing on 7th December. Because of the lateness of the hour and the extent of the documentation I reserved my judgment which is now provided.[2]Two bundles of documents were prepared by the Defendant’s solicitors for use at the hearing, because the Claimant no longer has the benefit of representation. These bundles, which I have carefully considered, contain all the relevant material, including the pleadings and skeleton arguments, e-mails, correspondence, the Keele University relevant Code of Practice, extracts from the Doctorate in Education Handbook, documents generated by the thesis assessment process including the report of the examiners, and material from the Office of the Independent Adjudicator.[3]For reasons which will become apparent, the court has not considered any academic material, including the thesis itself which was entitled "The patriarchal system and its influence on girls education: a case in Ghana".[4]The Claimant appeared in person and expanded the skeleton argument which had been prepared on his behalf. His submissions were reasonably succinct and helpful, although at times he sought to introduce extraneous matters, including theories as to the motives of the Defendant for rejecting his thesis. Ms Holly Stout appeared on behalf of the Defendant.[5]The Claimant was granted permission to apply for judicial review by His Honour Judge Stewart QC on 26th July 2012. At that time, detailed grounds of response had not been served and the defence of Keele University was based largely upon procedural matters. In short, it was contended that the claim was out of time, an appropriate alternative remedy was available, and that the substance of the complaint was not amenable to judicial review because it related to academic analysis. Subsequently detailed grounds of resistance were served, and these have expanded significantly the Defendant's response.

Background and Evidence

[6]In June 2006, the Claimant was offered a place by the Defendant University on a four-year research degree in the Public Policy and Management Research Institute, with a view to obtaining a doctorate in education. The course commenced in November 2006 on a part-time basis, and the initial part of the course entailed teaching on the skills and process involved in achieving the research degree, principally by the submission of written work.[7]The proposed length of the teaching element was two years, but the Claimant took a third year to complete it because of a problem with the payment of course fees.[8]Research students under the Code of Practice would normally have two supervisors, a lead supervisor and a second supervisor. During the teaching element the Claimant was supervised by Professor Ken Jones and a key assessment was the thesis proposal, in other words an outline of the thesis to be written.[9]At an internal examination board meeting held on Wednesday 21st October 2009, the Claimant was awarded a pass on his re-submission, which was considered to represent "a clear improvement to the original failed submission". However at the external examination board meeting approximately ten days later, when the pass was confirmed, the following comment was provided:
“IM thinks if Alex proceeds to write his thesis, he will need a substantial amount of support. This submission is not focused and grammatically is not strong.… KJ emphasised that this would not be an early submission.”
[10]The Claimant has asserted that when under the supervision of Professor Jones (KJ) his work was recommended at grade A, in apparent contradiction to some of the comments above, but there is no evidence in any of the papers that this was the case.[11]Thus with reservations and recommendations the Claimant was ready to proceed in 2009 to write his thesis. He had between two and four years to provide a thesis of up to 60,000 words under the supervision of his supervisors, and when the thesis was deemed to be ready for assessment, an internal and external examiner would consider it on paper and subsequently orally at a viva.[12]Because an issue has arisen in respect of the supervisors appointed, in that it is part of the Claimant's case on procedural impropriety that the Code of Practice was not followed, it is necessary to consider what each party says in this regard. The Claimant asserts that he was never assigned a second supervisor at any stage of his course, both at the teaching and thesis writing stage. Further, although there had been a short period when Professor Jones was supervising the writing stage, a new lead supervisor was appointed after Professor Jones moved on from the University, namely Dr Nafsika Alexiadou, without consulting the Claimant about this appointment. She remained the supervisor throughout the period leading up to the submission of the thesis, and her role is the subject of criticism.[13]The Defendant, on the other hand, by the statement of Andrew Holden, says that whilst only one supervisor was necessary for the taught part of the course, at the very beginning of the writing stage Professor Jones was briefly lead supervisor, and Dr Alexiadou the second supervisor, and the Claimant was informed of this. When Professor Jones left, Dr Alexiadou became lead supervisor, and Dr Sally Findlow the second supervisor. Dr Alexiadou was already known to the Claimant because she had been involved in the teaching element. Further, no objection was raised by the Claimant to this arrangement. Thus, says the Defendant, there is full compliance with the Code of Practice requirement. For reasons which will become clear, I do not believe that it is necessary to resolve this factual dispute.[14]Although the Claimant at this point had a further four years during which he could write his thesis and before it had to be submitted, he was anxious to complete by the summer of 2010 because he was under pressure from his university in Ghana where he was teaching. However it is plain that by the early part of 2010, Dr Alexiadou was providing negative feedback on the first draft of the thesis, and doing her best to persuade the Claimant to postpone submission. Further comments throughout that year were again not especially encouraging. In particular in September 2010 Dr Alexiadou passed on comments from the second supervisor in the following terms: “ (the thesis has) major deficiencies in terms of presentation, organisation, coherence, methodology, analysis and significance as a piece of doctoral research and… fails to give any clear sense of exactly what was carried out and why…"[15]Dr Findlow, the second supervisor, indicated that the thesis lacked any kind of analysis and needed significant reworking before it could be submitted. The Claimant had agreed, and a later submission target date of spring and early summer 2011 was proposed. There is an issue as to whether the feedback was positive or negative, in that the Claimant appears to be asserting that he was getting good appraisal reports on the progress meetings and that only minor issues were arising but once again it is unnecessary for the court to resolve such an issue.[16]Important, however, is the most recent assessment in April 2011 by way of feedback from Dr Alexiadou before the submission of the thesis. She made several references to "problematic" aspects of the thesis and many language-/grammar-related comments that needed to be improved. She followed this up with an e-mail on 26th April 2011 in the following terms: Dear Alex, Can you please let me know if you will be submitting your thesis by mid-May? You do not need to pressure it if you feel you are not ready, but if you do not submit in a couple of weeks than the viva will have to be after the end of summer. Thus, says the Defendant, the Claimant was not being encouraged to make a submission by May 2011.[17]In the meantime, and this becomes relevant because of the way in which the Claimant has sought to expand his case during the course of oral arguments, in 2010 the Claimant was having significant domestic difficulties with his then partner, which led to accusations of domestic violence, arrest, and the pursuit of criminal charges. Those charges resulted in a criminal trial which took place in January 2011, and the Claimant was acquitted.[18]Because of the potential disruption of his studies, the Claimant would have been entitled to rely upon "extenuating circumstances" to justify an extension of the period allowed for his thesis submission. Insofar as he was intending to submit the thesis early, this would probably not have been necessary. However he was asked by Ms Fay Harris of the Independent Advice Unit (IAU) if he wanted to rely upon "extenuating circumstances" in June of 2010, and the Claimant indicated that he did not. At no point prior to the thesis submission did the Claimant make any further requests on such a basis. However, at paragraph 31 B (viii) of his grounds, the Claimant criticises the failure of the "Academic Research Committee" to take into account extenuating circumstances following the marking of his thesis. I shall refer to this later.[19]The assessment/examination of the thesis therefore took place in May 2011. The process involves the appointment of two examiners, one internal and one external. Paragraph 4.2.1 of the Code of Practice makes this the "normal" requirement, and stipulates that in no circumstanceswill a member of the supervisory team be an examiner. This is significant because it is the Claimant's case that he had been led to believe that Dr Sally Findlow would be the internal examiner. However, if she had been a supervisor, as would appear to be the case, this was prohibited under the Code of Practice.[20]The way in which these examiners were appointed has been the subject of significant criticism by the Claimant and therefore this also requires scrutiny. The external examiner was Dr Colin Brock. The Claimant says that he had been led to believe from the Doctorate in Education Handbook that Professor Ian Mentor of the University of Glasgow would be the external examiner. However, the Research Degrees Committee, which approved the appointment of Dr Brock had reported on his expertise: …arising from extensive research and consultancy experience of education,… in particular in sub-Saharan Africa with good knowledge of the country,… where he was the consultant for their teacher education reform in the 1990s. He had supervised 72 successfully completed doctorates.[21]The Claimant had been made aware in October 2009 of the appointment of Dr Brock, and appeared to raise no objection. However, at the time, the Claimant believed that Dr Brock was still an active lecturer at the University of Oxford, whereas he was in fact retired from such a post.[22]The appointed internal examiner was Dr Michael Tomlinson from Keele University who was specifically interested, in research terms, in the interface between higher education and labour markets. He had previously examined one EdD student on a thesis as an internal examiner. Annex B7 of the Code of Practice deals with the criteria for the qualification of nominated examiners, who will normally hold a higher degree of at least the level which they are to be nominated examiner, and will normally hold the post of senior lecturer or above.[23]Paragraph 4 of annex B7 stipulates that the lead supervisor will be invited by the postgraduate committee to discuss possible examiners with the candidate, who will thereafter be informed of the names of the two examiners. The Claimant denies this ever took place, although he does not appear to assert either a duty of consultation or a legitimate expectation of such, instead relying upon the alleged failure under the general heading, in terms of criticism, of "procedural impropriety".[24]When a thesis is submitted for examination, it is considered first on paper. The Code of Practice for postgraduate research degrees has five levels of recommendation which apply and which can be selected on this initial consideration. It would seem that four out of these five levels still require the student to attend for viva voce examination, although at the highest level this is likely to be a formality. The Claimant scored, after Dr Tomlinson and Dr Brock had considered the thesis on the papers, at recommendation 3 which reads as follows: Although the required standard for the award for which the student is submitted has not been met, the submission is of sufficient merit to justify the student being permitted to re-present the thesis and to submit to a further oral examination within two calendar years from the date of the decision at the relevant meeting of Senate. Appropriate recommendation (sic) where the thesis is unsound in terms of its aims, methods, results or interpretation or conclusions. Substantial additional work is required which may lead to a significant change in the results, interpretation and conclusions.[25]Thus the examiners were expressing significant reservations about the quality of the Claimant's thesis, but they were still prepared to consider awarding the doctorate if substantial revision was undertaken. However there was still to be a viva voce. Dr Brock made this comment:
“This judgment can be tested in the viva voce examination from which the capacity of the candidate both to appreciate the criticisms of the thesis and to meet the challenges they represent should become apparent.”
[26]The Claimant attended at the oral examination on 23rd June 2011, but did not perform very well. In fact following the viva voce, the examiners changed their recommendation from level 3 to level 4 and said this:
“…on the basis of our reading of the thesis alone, we both recommended option three. Throughout the lengthy viva in which the candidate was given the opportunity to respond effectively to criticisms of the thesis, it became clearly apparent that he did not have the ability to respond as we had hoped. This was true of virtually all aspects of the work that had been presented, both in terms of theoretical and conceptual understanding of what was required and of the issues relating to the empirical dimension and the analysis of the information gathered. He had no understanding of what was meant by ethnographic methodology or of case study. We feel that the candidate’s best interests resid in the acceptance of a Masters degree for the thesis presented as it stands, and therefore we recommend option four to Keele University.”
[27]Option 4, or recommendation 4, clearly provided a lower level of qualification, and it was on the basis that the examiners had determined that the student had not reached the standard required for the award of a doctoral degree. More significantly, it excluded the possibility of a re-presentation of the thesis, and thus the opportunity at a later stage to incorporate revisions, which had been open to the Claimant before the viva voce. This decision was communicated to the Claimant on 26th July 2011. It is the Defendant's contention that this is the significant date for the purposes of judicial review time limits.[28]The Claimant was entitled to and did utilise the complaints procedure under regulation 26 of the University's internal regulations, submitting his form on 17th August 2011. He made two principal complaints in relation to "academic matters", one in respect of his supervision by Dr Alexiadou, and her role in seemingly approving the submission of the thesis, and the second concerning the qualification of the examiners, both external and internal. These complaints have also formed the substance of the judicial review.[29]In addition, the Claimant sought to refer to "extenuating circumstances" in relation to his domestic problems in 2010, although the relevance of such a reference, as indeed in the present proceedings, remains somewhat opaque. I shall refer to this in more detail below.[30]The Claimant's complaint was not upheld, and in October 2011 the Claimant invoked the next stage of the complaints procedure by appealing to both the University Academic Appeals Committee (UAAC) and the pro Vice Chancellor, Prof Marilyn Andrews. In relation to the former, the Claimant described the nature of the appeal in the following terms: Procedural irregularity in the conduct of the assessment based on the following:(1) the mark awarded for any unit of assessment.(2) The overall outcome of the programme of study(3) the decision of the board of examiners at variance with work supervised and approved by my supervisor (sic) The Claimant then repeated the substance of his earlier complaint.[31]On 4th January 2012 the UAAC determined that there was no prima facie case for appeal on the basis of procedural irregularity, substantially on the grounds that any alleged inadequacy of supervision or other arrangements during the period of study were required to be raised at the time and not subsequent to the submission of the thesis.[32]Further on 17th January 2012 Professor Andrews wrote to the Claimant informing him that the award of a Masters degree would stand. The Claimant pursued one last avenue open to him by making submissions to the University Council, and at the same time instructed an advice centre which purported to set out grounds for judicial review. I will consider this process in a little more detail below in the context of the time limit objection. However by February of this year the Claimant had exhausted the internal processes available to him. Discussion and findings 33. Time limits

Discussion and findings

[33]The time limit for bringing a judicial review claim is three months at the outside from the date of the decision complained of. In any event such proceedings must be brought promptly, for good reason. I indicated in the course of the argument that I would not be excluding the Claimant from any relief on grounds of delay. Briefly, these are my reasons.[34]The Claimant was not only entitled but also obliged to use the internal complaints procedure. If he had not done so then he would have been criticised for failing to avail himself of alternative remedies, or at least exhausting all other avenues open to him. Such an appeal had the potential to be successful.[35]It is quite right that the pro-Vice Chancellor, Professor Marilyn Andrews, informed the Claimant by letter dated 17th January 2012 that his complaint was not upheld. In accordance with Regulation 26 he was invited to submit a grievance to the University Council if he had appropriate grounds for so doing, one of which was that new evidence may have come to light.[36]It is unfortunate that there were two responses to this letter, the first from an organisation purporting to be an advice centre, Crystal law, and asking for an informal review, but referring to the letter as being under the pre-action protocol for judicial review. On the same day, 7th February 2012, the Claimant himself wrote a more detailed letter which appears to be an invocation of his entitlement to submit a grievance to the University Council, although this is not clearly expressed.[37]In any event, it was not until 13thMarch 2012 that Rama Thirunanachandaran responded to the Claimant, c/o Crystal Advice Centre after apparently conducting a significant review of the Claimant's case. It purported to be under regulation 7.22. It was this letter which advised the Claimant of his entitlement to further pursue a grievance to the Office of the Independent Adjudicator.[38]The Claimant has regarded this as the final decision letter, as it represented a confirmation of the decision, and the exhaustion of the internal appeals process. It is also submitted on his behalf that the principle set out in R v Secretary of State for health ex parte Furneaux [1994] 2 ALL ER 652, whereby it is no excuse that the delay was on the part of solicitors, because his initial representatives were an advice centre, does not apply. I do not think that it is necessary to determine this point, because in my judgment even if the March response from the University Council was an adjunct to the earlier final decision rather than the final decision itself, nevertheless it was not unreasonable to treat the time clock as running from the March letter, and in any event I would be prepared to exercise my discretion under the rules to allow this claim to proceed notwithstanding the delay.[39]I now turn to deal with the substantive merits of the claim on the basis of the two principal grounds advanced by the Claimant. Unreasonableness /irrationality[40]It is appropriate to deal with this substantive challenge first and foremost because of the objection in principle advanced by the Defendant in respect of justiciability.[41]As I understand the Claimant's case, he appears to be saying that the decision to deny him a doctorate but to award a Masters was not only inconsistent with the progress which he had made prior to submission of the thesis, where he had been achieving generally good grades, but was so out of kilter with his expectation and indeed the prediction which could be inferred from the fact that the thesis was approved for submission by his supervisor, that it satisfies the Wednesbury test for irrationality. In other words, this is not just a case of flawed academic judgement but a conclusion which no reasonable university could have arrived at.[42]Whilst this argument appears to ignore the fact that the ultimate assessment as to whether the Claimant is granted a doctorate or Masters is made by a panel independent to the teaching and supervisory body, nevertheless it requires this court to intervene in the decision-making process of those with academic expertise in the fields under examination, and to substitute its own evaluation and analysis.[43]The principle relied upon by the Defendant is that the challenge is one which requires the court to undertake such an academic evaluation which it is not equipped so to do. The Defendant relies upon the case of Clark v University of Lincolnshire and Humberside [2000] 1 WLR 1988. The case is not on all fours with the present situation, but involved issues of jurisdiction in a civil action alleging contractual disputes following a student’s examination failure for plagiarism. However giving the leading judgment in the Court of Appeal Sedley LJ make the following comment at 1992E which in my judgment is apposite: ….unlike other contracts, however, disputes suitable for adjudication and its (the universities) 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 to what mark or class a student ought to be awarded or whether an aegrotat is justified...[44]The Court of Appeal went on to consider the justiciability of breaches of contractual rules, on which the courts were well able to adjudicate.[45]It seems to me that this is a sound principle and one which must inevitably defeat the Claimant's argument of irrationality in the decision not to award him a doctorate. This court could not possibly undertake the evaluation required to determine whether the Claimant's pre-examination work and progress was of such a quality that the examiners departed from an acceptable norm and ventured into the realm of unreasonableness. Were it otherwise, the courts would be called upon to use their valuable resources to substitute academic, pastoral, or religious decisions with their own, probably, ill-informed, if not hastily formed, judgment. For this reason, I agree with counsel for the Defendant, that the primary issue of irrationality is not justiciable.[46]The Claimant, or at least those who are advancing his case when he was represented, has sought to circumvent such an argument by relying upon a contractual relationship between the University and the student, and the application of section 13 of the Supply of Goods and Services Act 1982. This, it is said, gave rise to a duty, principally on the part of the Claimant's supervisor, Dr Alexiadou, to stop the Claimant from submitting the thesis if she was concerned that it was in any way "undercooked".[47]The problem with this argument, even if such a duty can be implied, and defined in such a way, is that it was not her assessment that counted for a successful outcome, but that of an independent board of examiners. Indeed, on paper, the Claimant's thesis was deemed to merit a recommendation 3, where a doctorate was still achievable, provided the Claimant could satisfy the examiners on the viva voce. The fact that he failed to do so does not give rise to a contractual breach (which in any event would not be reviewable by this court) on the part of the University, vicariously through Dr Alexiadou. In my judgment this claim is misconceived.[48]Finally on this general ground of challenge, the Claimant seeks to rely upon a failure of the examiners in placing "heavy reliance" on the viva voce without taking account of the contents of the Claimant's thesis. He refers to paragraph 4.2.7 of the code of practice and the objectives contained therein. However one of those objectives is: …to confirm or revise the examiners initial views about the standard of the candidate's research based on the thesis…[49]It seems to me self-evident that this is precisely what the examiners did in respect of the Claimant's thesis. They gave him a chance to demonstrate that the standard of his research was acceptable, despite misgivings about methodology. They were entitled to come to the conclusion that the Claimant had failed in this respect, and thus to revise their initial views.[50]Accordingly, the Claimant's challenge on the substantive grounds of unreasonableness in my judgment must fail. Procedural irregularity/impropriety[51]Throughout his challenge to the award of a Masters degree rather than a doctorate, the Claimant has complained of procedural irregularity, that is non-compliance with the University's own code of practice and regulations, the purpose of which was to achieve transparency and clarity of expectation for the student, and checks and balances which provide a fair and even-handed approach to the evaluation of research work. It seems to me that fairness is central to this challenge, and that a simple allegation that a failure to follow the rules (i.e. an allegation of acting ultra vires) would render any decision taken in accordance with the code of practice null and void, is unsustainable.[52]The key lies in the description of the source of most of the requirements relied upon, namely "Code of Practice" which is also defined as a guidance to both students and academic staff, inter-alia. Indeed many of the paragraphs in the Code of Practice are not expressed in mandatory terms, or if they purport to be, this is largely in the context of the attribution of responsibility for different tasks.[53]As I understand the Claimant's case on procedural irregularity, it appears to be centred on three main areas. The first concerns the appointment of supervisors both in the teaching phase and the thesis writing phase. The second concerns the appointment of examiners and their appropriateness. The third concerns the appeal process following the degree award, and the communication of the results of the Viva Voce. Tangentially, there is also criticism of a failure to deal with "extenuating circumstances" in the overall assessment. I shall deal with each of these in turn.[54]The reasoning behind the provision of two supervisors is obvious. A student should be entitled to back-up support and a second opinion, particularly if he is unhappy with his lead supervisor. The evidence before the court makes it abundantly plain that Dr Alexiadou had at all relevant times been a second supervisor in the teaching phase. The Claimant was informed of the departure of Professor Jones by the professor himself in November 2009, and the appointment of the supervisors who would guide him through the research and submission phase. They were named as Dr Alexiadou and Dr Findlow.[55]The Code of Practice does not stipulate a consultation process. Clearly, such would be entirely inappropriate, although there is provision for a student who is unhappy with a supervisor to seek a change. That never happened in the case of the Claimant. The provision in the Code of Practice at paragraph 1.6.9 is that: “where a change of lead supervisor is unavoidable, the circumstances should be fully discussed with the student and changes approved by the postgraduate committee".[56]There is no requirement that the change be approved by the student, as such. Therefore, the Claimant has failed to demonstrate any departure from the guidance, quite apart from laying the groundwork for establishing unfairness in the procedure.[57]As far as the examiners were concerned, annex B7 of the Code of Practice deals with the process of appointment and the qualification for appointment. Paragraph 4 states as follows: The lead supervisor will be invited by the postgraduate committee to discuss possible examiners with the candidate, who will thereafter be informed of the names of the approved examiners.[58]It is noteworthy that there is no entitlement on the part of the student to approve such examiners, although implicit in this requirement is a consultation element, so that representation could be made. Again, the evidence indicates that this occurred in respect of both the internal examiner and the external examiner. The Claimant had expressed himself happy with both, and because his criticism is that he had been misled about the current status of Dr Brock of greater significance is the qualification aspect. Here paragraph 3 of annex B7 makes the following provision:• examiners are expected to be experts in the field of knowledge covered by the research thesis being examine, and have an established reputation for research and scholarship.• Examiners will normally hold a higher degree of at least the level which they are to be nominated examined.• Examiners will normally hold the post of senior lecturer or above (or other individuals may be nominated provided information and justification is provided)• at least one of the examiners should be an experienced examiner of research theses of the level to be examined, either at Keele or elsewhere.[59]It is the Claimant's case that Dr Brock did not fulfil bullet point 3, and Dr Tomlinson did not fulfil bullet points 1 and 3. In respect of Dr Brock, he had retired from a full-time lecturing post at Oxford University, whilst Dr Tomlinson was a lecturer, and not a senior lecturer, and did not have the necessary expertise in the Claimant's thesis subject.[60]In my judgment, the fact that Dr Brock was no longer actively lecturing is a complaint of form rather than substance. It does not in any way impinge upon his ability and expertise, which on any interpretation is extensive, and it seems to me that it would have been difficult to find an examiner with more specialist knowledge, because of his understanding of the education system in Ghana. Apart from the fact that the requirement in annex B was one simply to "take into account" criteria, on the part of the postgraduate committee when considering the appointment of examiners, and thus not a mandatory requirement, I am unable to accept any unfairness in the process in relation to Dr Brock. The Claimant was happy at the time and raised no objection, but it seems to me that the subsequent complaint is borne out of frustration and disappointment rather than any real concern that Dr Brock did not have expertise.[61]In relation to Dr Tomlinson, whilst his expertise was not particular to the Ghana education system, he was excessively knowledgeable in relation to the interface between higher education and the labour market, and specifically on methodology. It was the Claimant's methodology which came under such close scrutiny, and it had been remarked on by Dr Alexiadou in the build-up to the submission of the thesis. Therefore Dr Tomlinson was eminently suitable as an internal examiner, and if paragraph 3 had any mandatory force, there has been no resultant unfairness to the Claimant.[62]In any event, for reasons already stated, in my judgment this paragraph has to be read as guidance without compulsory force, and there could be no basis for any argument that the University has acted, in a procedural sense, ultra vires.[63]The challenge to the subsequent appeals process appears to be based upon the absence of any opportunity afforded to the Claimant to make oral representations. Of course, following the Viva Voce, and before the announcement of the results, the Claimant was able to attend the meeting at which an independent professor was present, as well as the Claimant’s supervisor, when he was able to voice his many concerns about the way in which the viva had been conducted. However, there is nothing in the regulations which provide for a complaint or grievance process to be dealt with in an oral hearing in the absence of the establishment of a prima facie case.[64]There are inbuilt safeguards in the process which allow an aggrieved party to present his case, and in view of the fact that the complaint will invariably be concerned with a breach of procedure, as little can be done to undermine an academic judgment on any submitted work, and there is no "hearing" as such where a judicial or quasi-judicial determination is made on conflicting evidence, in my judgment there is no intrinsic unfairness. At several stages of the procedure the Claimant set out his case in significant detail, even adding matters which were considered, even though they were beyond the purview of the complaints/grievance process. In this respect, the Claimant's challenge must fail.[65]His final complaint in relation to procedural irregularity emerged towards the end of his oral submissions, and expanded paragraph 31B (viii) of his grounds. He does not believe that sufficient account was taken of his "extenuating circumstances" by the “Academic Research Committee”. Undoubtedly the Claimant had severe domestic problems in 2009, leading into the following year with a criminal charge which was eventually dismissed. However despite the involvement of the IAU at the time, and a sympathetic ear from his supervisor, the Claimant chose not to avail himself of any special concession, which might have included an extension of the time allowed for submission of the thesis. There is no provision for acknowledging extenuating circumstances retrospectively in relation to performance at a Viva Voce, and it seems to me that this must be determinative of any challenge relating to a procedural complaint in this regard.

Alternative remedy

[66]The Office of the Independent Adjudicator (OIA) has a wide remit to investigate qualifying complaints inter alia about failures in the procedures which regulate the examination process involving a particular student. The OIA is itself amenable to judicial review.[67]It seems to me that insofar as the substance of the Claimant's complaints which would not be excluded from the purview of judicial review on the grounds that they concern matters of academic judgment, namely procedural unfairness and non-compliance, the OIA handbook/guidance specifically states that "complaints we can look at include but are not limited to: teaching provision and facilities… Research supervision… Procedural irregularities… Unfair practices".[68]The role of the OIA is to review the final decision of the University, and to consider, in particular, whether it has applied its regulations and followed its own procedures. Whilst it does not carry out a reinvestigation of the original complaint, it will consider all the material presented. Its power is to make a recommendation which the university would be obliged to follow. Clearly a university which ignores a recommendation would be susceptible to judicial review on the basis of a fresh decision.[69]In the case of R v Regents Park College and the Conference of Colleges Appeal Tribunal ex parte Carnell [2008] EW HC 739 (Admin), the efficacy of the OIA to deal with such a complaint was confirmed. In that case, although the OIA refused to entertain a complaint, not because it was out of time, but because judicial review proceedings had already been begun, the court confirmed that judicial review was a remedy of last and not first resort.[70]The Claimant, in his skeleton argument filed on his behalf, seeks to argue that His Honour Judge Stewart QC at the permission stage was right to acknowledge, by implication, that the OIA remedy could be toothless or limited at least because it did not have the function to determine the legal rights and obligations of the parties nor could it undertake a full investigation into the underlying facts of the matter. That argument relies upon the more recent case of Maxwell v the Office of the Independent Adjudicator [2011] EWCA Civ 1236. However, in Maxwell, the substance of the complaint was one of disability discrimination where not only are the underlying facts absolutely essential to determination, but also an effective outcome will involve an establishment of individual rights and status.[71]No such consideration applies in the case of this Claimant, and in my judgment, bearing in mind that for the reasons stated this court will not enquire into academic judgment, recourse to the Office of the Independent Adjudicator was an entirely appropriate alternative remedy for the Claimant. If, following a successful recommendation, the university had chosen to adhere to its original decision, the Claimant would have a solid case for judicial review. Alternatively, he could still have pursued, if so advised, judicial review proceedings, with good grounds for arguing that the judicial review claim was not out of time because he had been exhausting an appeals process (in fact, the same argument which is used to pursue an extension of time in relation to the exhaustion of the internal appeals procedure).[72]Accordingly, even if I had been prepared to find that the Claimant's case in respect of the procedural irregularities had been meritorious, I would have refused relief on the basis of the availability of an alternative remedy.

Conclusion

[73]In the circumstances this claim for judicial review must fail. The Defendant is entitled to its costs.[74]Since supplying a draft of this judgment I have received written submissions in respect of costs from counsel for the Defendant which I have considered. Mr Kwao has not provided any submissions despite an invitation so to do. In the light of these I direct an order in these terms confirmed on handing down: 1. The Claim for judicial review is dismissed 2. The Claimant shall pay the Defendant’s costs to be subject to a detailed assessment if not agreed. 3. The Claimant shall pay the Defendant the sum of £10,000 on account of costs within 21 days of the date of this order.

Cited in 2 later judgments