Crawford, R (on the application of) v The University of Newcastle Upon Tyne [2014] EWHC 162 (Admin)

Case No CO/11758/2011[2014] EWHC 162 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 31 January, 2014
Before
Andrew Grubb(Sitting as a Deputy High Court Judge)
Between
R (on the application of Paul Crawford)ClaimantThe University of Newcastle Upon TyneDefendant
Mr Anthony Speaight QC (directly instructed) for ClaimantMr James Cornwell (instructed by Berrymans Lace Mawer) for DefendantHearing Hearing dates: 10 December 2013
JudgmentDeputy High Court Judge Grubb:Introduction
[1]The Claimant registered at the University of Newcastle (“the University”) in October 2005 to study for a Bachelor of Medicine and Bachelor of Surgery degree (“MBBS” degree). He completed Stages 1, 2, 3 and 4. In 2010, he failed his final year (Stage 5) examinations. The Claimant was required to repeat his final year and again took the Stage 5 examinations in 2011. On 15 June 2011, the Claimant was informed that he had again failed his final Stage 5 examinations. The reason for his failure, to which I shall return in detail shortly, was that he had been given a ‘B’ grade (which is a borderline fail) in the “Clinical and Communication Skills” (“Skills”) domain (as it has been called) in the assessment, which is part of the Stage 5 examination process, known as the “Multi-Station Objective Structured Long Examination Record” (“MOSLER”).[2]The Claimant was not satisfied with a number of matters concerning the examinations, in particular (for the purposes of this case) the grade he had been awarded in the MOSLER for the “Skills” domain. In essence, the Claimant did not accept that the grade has been calculated in accordance with the University’s MBBS Stage 5 Handbook for 2010/2011 (“MBBS Stage 5 Handbook”).[3]On 27 June 2011, the Claimant appealed under the University’s Academic Appeals Procedure for Students (“Academic Appeals Procedure”) challenging, inter alia, the grade he had been awarded for the “Skills” domain in the MOSLER. An Appeal Adjudicator (Dr Phillips) was appointed. The Appeal Adjudicator considered evidence from the Claimant, including the report of an actuary (Mr Carus) dated 1 July 2011. In addition, the Appeal Adjudicator considered a memorandum from the Chair of the Board of Examiners (Dr Lunn) dated 30 June 2011 which was sent to the Claimant. The Appeal Adjudicator sought further comments from Dr Lunn on the report prepared by Mr Carus. In response, Dr Lunn sent the Appeal Adjudicator a second memorandum dated 25 July 2011. This was not sent, at that time, to the Claimant. On 1 August 2011, the Claimant’s appeal was rejected by the Appeal Adjudicator. On 25 August 2011, the Claimant sought a review of that decision under the Academic Appeals Procedure. On 2 September 2011, the Academic Registrar rejected a review of the Appeal Adjudicator’s decision.[4]On 13 August 2011 (in other words after the rejection of the initial internal appeal) the Claimant made a complaint to the Office of the Independent Adjudicator for Higher Education (“OIA”) – a statutory body set up under the Higher Education Act 2004 to deal with complaints made by students against higher education institutions. On 11 November 2011, the OIA issued a preliminary decision rejecting the complaint. On 2 December 2011, the Claimant wrote to the OIA informing them that he intended to issue Judicial Review proceedings against the University. The current proceedings were issued on that date. As a consequence, under the OIA’s rules the Claimant’s complaint was terminated.[5]On 1 March 2012, Karon Monaghan QC (sitting as a Deputy High Court Judge) refused on the papers the Claimant’s application for permission to bring Judicial Review proceedings. The Claimant renewed his application and on 24 May 2012, John Randall QC (sitting as a Deputy High Court Judge) granted the Claimant permission. On 2 July 2012, the Claimant (without opposition from the Defendant) was granted a stay of these proceedings.[6]On 20 July 2012, the Claimant wrote to the OIA inviting them to reopen its investigation of his complaint. That subsequently occurred and on 28 January 2013 the OIA issued a formal decision and complaint outcome concluding that the Claimant’s complaint was not justified. Thereafter, the Claimant has again pursued these proceedings.

The Issues

[7]The Claimant relies both upon public law and contract.[8]First, the Claimant argues that the University acted unlawfully and in breach of contract by failing to follow the marking or assessment process set out in the “MBBS Stage 5 Handbook” for 2010/2011. The Claimant’s case is that if that published information had been followed then he would have been awarded an “S” grade for the “Skills” domain in the MOSLER and, overall, would have obtained a pass in the Stage 5 examination.[9]The Claimant says that the Defendant had a public law duty to follow its published information and, alternatively, the Claimant had a legitimate expectation that the University would follow its published information. In addition, it is said that the assessment process and scheme were an express term of the contract between the Claimant and the Defendant and, alternatively, that it was an implied term of that contract that the University would follow its published information in assessing the Claimant’s Stage 5 examinations. ( “issue 1”)[10]Secondly, the Claimant says that the Defendant acted unfairly and in breach of its Academic Appeals Procedure by failing to disclose to the Claimant prior to the Appeal Adjudicator’s decision made on 1 August 2011 that he had consulted and obtained from the Chairman of Examiners further information (namely Dr Lunn’s second memorandum) about the assessment process. That, again, is said to be unlawful on public law principles and a breach of contract. (“issue 2”)[11]Thirdly, it is claimed that the Appeal Adjudicator unlawfully abdicated his responsibility for making a decision on the appeal when he had uncritically accepted Dr Lunn’ssecondmemorandum that the Claimant had been correctly marked under the University scheme. That is said to be unlawful on public law principles and, alternatively, a breach of contract. (“issue 3”)[12]The Defendant resists the Claim.[13]First, the Defendant denies that it acted unlawfully or in breach of contract and maintains that the Claimant’s “Skills” domain grade for the MOSLER was calculated consistently with the published information in the MBBS Stage 5 Handbook.[14]Secondly, the Defendant (now) accepts that the failure to provide the Claimant with Dr Lunn’s second memorandum was a breach of the Academic Appeals Procedure but argues that it was immaterial as the Claimant’s grade was calculated in accordance with the MBBS Stage 5 Handbook and, in any event, the Claimant has had an effective remedy already in correcting any procedural error.[15]Thirdly, the Defendant denies that the Appeal Adjudicator abdicated his function to determine the Claimant’s appeal by relying on Dr Lunn’s second memorandum that the Claimant’s marks were correct.[16]Fourthly, the Defendant argues that, even if it did act unlawfully, the existence of the complaints’ procedure to the OIA operated as an effective alternative remedy and, as a result, the Claimant should be denied any relief either in public law or contract. (“issue 4”)[17]Finally, the Defendant argues that the Claimant should be denied any relief as he delayed unnecessarily in issuing these proceedings five months after the Claimant’s examination results were published and four months after the Appeal Adjudicator’s decision. (“issue 5”)

Public Law and Contract

[18]As I have already indicated, the Claimant relies upon a breach of public law principles and breach of contract. No objection in principle is taken by the Defendant to the Claimant pursuing his case on both a public law and a private law basis.[19]The Defendant is public body created by the Universities of Durham and Newcastle upon Tyne Act 1963. It is not disputed that in this case it was performing public functions subject to judicial review and public law principles.[20]As the Claimant was a fee-paying student, there was also a contractual relationship between the Claimant and the Defendant (see, Clark v University of LincolnshireandHumberside [2000] 1 WLR1988). Whilst the Defendant does not accept that the terms of the Stage 5 MBBS Handbook relied upon by the Claimant are, in themselves, contractual terms as they lack the necessary specificity for a contract term, there can be no doubt that if the Claimant were to make good his principal argument that he had been assessed contrary to its terms, that would be a breach of an implied term that the University would follow its published procedures. Likewise, even if the Academic Appeals Procedure does not form part of the contract between the parties, I am in no doubt that it is an implied term of the contract between the Defendant and Claimant that the University will act fairly in applying its Academic Appeal Procedure (see by analogy R v Disciplinary Committee of the Jockey Club, ex p Aga Khan [1993] 1 WLR 909). The substance of the Claimant’s case against the Defendant does not, in my judgement, turn upon whether that claim is couched in terms of public law or contract. I shall, therefore, focus on the claim applying public law principles.

Issue 1: Compliance with the MBBS Stage 5 Handbook

[21]There is no doubt that the assessment process for medical students in the final year examinations (Stage 5) which I have been taken through most helpfully by both Mr Speaight QC (on behalf of the Claimant) and Mr Cornwell (on behalf of the Defendant) is complex and requires more than a little explanation to grasp its detail. The Stage 5 Examinations[22]Stage 5 of the MBBS examines medical students under three so-called “domains”:(1) Clinical and Communication Skills (“Skills”);(2) Knowledge and Critical Thought (“Knowledge”); and(3) Professional Behaviour (“Professionalism”).[23]In assessing those “domains”, there are a number of assessment methods or “assessment episodes” (as Dr Lunn referred to them in his witness statement dated 12 June 2013 (page 127 of the main bundle at para 33). Those assessment methods or episodes are:(1) In-course assessments and assignments;(2) Written examinations;(3) The Objective Structured Clinical Examinations (“OSCE”); and(4) The Multi-Station Objective Structured Long Examinations Record (“MOSLER”).[24]This case concerns exclusively the grade which the Claimant was awarded for the “Skills” domain elements of the MOSLER. Although the Claimant appealed under the University’s Academic Appeals Procedure in relation to other parts of his final year assessment none of those are relevant to this claim. It is accepted that if the Defendant is correct that his grade was “B”, then he correctly failed the Stage 5 final examinations overall. It is also accepted that if Claimant is correct then his grade for the MOSLER would have been “S” (Satisfactory) and he would have passed the Stage 5 final examinations overall.[25]In his written statement, Dr Lunn (the Chair of the Board of Examiners for the Faculty of Medicine), having set out the three assessment “domains” continues that :
“21. …Knowledge and Skills are assessed on the basis of grades of Merit (M), Satisfactory (S), Borderline (B) and Unsatisfactory (U). Professionalism is assessed on the basis of either Acceptable or Unacceptable. The marks for Professionalism are treated in a different way from those for Knowledge and Skills. To pass a Stage a student must be in good standing in respect of Professionalism but the grade is otherwise not taken into account in assessing the overall grade.”
[26]At paragraph 22, Dr Lunn points out that the assessment of the three domains may occur within an “assessment episode” such as a written examination or clinical assessment such as OSCE and MOSLER and, individual assessment items within an assessment episode, for example a question in a written examination or a ‘station’ in the OSCE or MOSLER may also assess one or more of the three domains.[27]Central to the claim is the MOSLER which includes assessments falling within both the “Skills” and “Knowledge” domains. The structure of the MOSLER is set out in Dr Lunn’s witness statement at paragraphs 44-49: “44. The MOSLER consists of four assessment items (“stations”) of 20 minutes each, preceded by five minutes preparation. Three of the stations use patients and assess three separate elements in the Skills domain – observed history, examination and communication. The fourth station (the Non-Physical Examination station) uses a role player to allow assessment of two elements in the Skills domain – observed history and communication. The purpose of this station is to assess complex communication and history taking. There is therefore no physical examination component. Indeed, this fourth station is often referred to by students as the “Communications Station” (as, indeed, I note that the Claimant does).[45]All four stations assess clinical and diagnostic reasoning and management, investigation and treatment (i.e. within the Knowledge domain). Each assessment item (station) contributes equally to the final outcome of this assessment episode (i.e. the MOSLER). Candidates are graded across items to derive a single mark from the MOSLER for each of the two domains assessed (Skills and Knowledge). The result of the MOSLER depends not on how many stations are passed but on how the student does on each domain overall.”[28]At paragraph 46, Dr Lunn explains that in Station 4 greater weight is given to the grade/mark for “Communication” falling within the “Skills” domain for the following reasons: “46. As candidates are not required to examine a patient in the Non-Physical Examination station, but instead are assessed on more complex communication skills, the marking reflects the proportional contribution of each assessed item within the Skills domain for that station. This means that the Communication skill carries greater weight in this station than in others. In this way Station 4 is weighted equally with the other three stations, even though fewer assessment criteria are assessed in this station. It has been our academic judgment that Communication should be weighed more heavily in this station as it is specifically focused on testing that skill.“[29]It is this latter methodology which the Claimant argues is contrary to the published information contained within the MBBS Stage 5 Handbook. In particular, it departs from (it is said) the requirement to “average“ grades set out in the MBBS Stage 5 Handbook at page 144.[30]Before turning to the MBBS Stage 5 Handbook, the effect of increasing the weighting to the “Communication” grade for the Claimant can best be understood by examining the grades and marks awarded to the Claimant for the MOSLER assessment episode. Those marks/grades are helpfully set out in tabular form in paragraph 55 of Dr Lunn’s witness statement as follows: Station 1 Station 2 Station 3 Station 4 Domain Total History S (3) S (3) S (3) B (2) Examination B (2) B (2) S (3) U(1) Skills B Communication S (3) S (3) S (3) x 2 Clinical & diagnostic reasoning S (3) B(2) B (2) S(3) Knowledge S Management investigation & treatment S (3) B (2) S (3) S (3) Professionalism. A A A U[31]In paragraph 56 Dr Lunn sets out how the ‘letter grades’ awarded to the Claimant for each assessment item are converted to a ‘numerical value’ (Merit = 4; Satisfactory = 3; Borderline = 2; and Unsatisfactory = 1). He then continues:
“56. …These numbers are summed for each domain. To balance the proportionate weight of Communication in Station 4 it is counted twice (thus ensuring that all four stations carry equal weight in the final calculation). The average is then calculated to give a domain total. In the case of the Skills domain this is n/12 (where ‘n’ is the sum of the marks given for all the Skills assessment criteria across all four stations) and in the Knowledge n/8 (where ‘n’ is the sum of the marks given for all the Knowledge assessment criteria across all four stations).”
[32]At paragraph 58 of his witness statement Dr Lunn continues by showing how an “average” was calculated for the Claimant in respect of the “Skills” and “Knowledge” parts of the MOSLER:
“58. As can be seen from the figure above the Claimant received a Skills total for the MOSLER of 29/12 that was rounded up to 2.42 and he received a Knowledge total for the MOSLER of 21/8 that was rounded up to 2.63.”
[33]Dr Lunn then continues that those figures are then translated back into grades for “Skills” and “Knowledge” respectively applying the following “grade thresholds” namely:
“58. … M > 3.54; S > 2.54 & < 3.54; B > 1.54 & <2.54; U < 1.54.”
[34]The consequence of this was that for a mark of 2.42 the Claimant received a ‘B’ grade for “Skills” and for a mark of 2.63 a ‘S’ grade for “Knowledge”. Dr Lunn states that:
“58. … An average is used here to compare equally weighted stations…. each station in the assessment episode carries equal weight despite having differing numbers of criteria for which they are marked.”
[35]Dr Lunn then goes on to set out the methodology by which the grade for “Skills” and Knowledge in the MOSLER are accumulated with the equivalent grade for “Skills” and “Knowledge” in the OSCE to produce an overall Clinical Skills grade of ‘B’.[36]On the basis of the ‘B’ the Claimant achieved an overall “end of stage” grade of ‘B’ for “Skills” taking into account the other assessment episode. That combined with a ‘S’ as the “end of stage grade” for “Knowledge” resulted in an outcome of “Fail”.[37]The written and oral arguments of Mr Speaight and Mr Cornwell were detailed and wide-ranging over the course of a day’s hearing. What is said by the Claimant is essentially this. The methodology used to calculate his “average” mark for “Skills” was, in truth, not a true “averaging” as required by the MBBS Stage 5 Handbook. The double counting of his grade and mark (U/1) for the “Communication” grade in Station 4 resulting in a mark of 29/12 = 2.416 (rounded up to 2.42) converted to a ‘B’ using the “grade thresholds” was contrary to the published information in the MBBS Stage 5 Handbook. It was not “averaging”. On behalf of the Claimant it is said that the true calculation should have been that his total marks for the “Skills” domain was 28 (counting the “Communications” grade only once) which, when divided by the number of marks, namely 11 gave an “average” of 2.5454. Using the “grade thresholds” that average was greater than 2.54 and so the Claimant should have been awarded a ‘S’ grade which when combined with his grade in the OSCE of ‘S’ produced an overall Clinical Skills grade of ‘S’. That, when combined with the grade for in-course assessments/assignments, in the “Skills” domain would have resulted in an “end Stage” grade of ‘S’ which, in turn, when combined with the equivalent grade for the “Knowledge” domain would have resulted in an outcome of a Pass in the Stage 5 final examinations.[38]The core, therefore, of the dispute between the Claimant and the Defendant is whether the double counting of the ‘U/1’ grade/mark in Station 4 of MOSLER so as to produce an average of 2.416 was in accordance with the MBBS Stage 5 Handbook.[39]The Claimant relies principally upon a description at page 13 of the MBBS Stage 5 Handbook (page 144 of the Defendant’s bundle) as follows:
“Determination of Outcomes for ‘Clinical and Communication Skills’ and ‘Knowledge and Critical Thought’ You are assessed by: • Summative Clinical Encounter assessment in all components of Stage 5 except Preparation for Practice. • Unseen examination in the End of Stage Examination. [Table setting out the domains which are assessed in the six in-course assessments and in the End of Stage Examination omitted] • For each assessment episode you are graded according to the M, S, B and U grading scheme such that at the end of the year you will have a final overall grade (M, S, B or U) for both Skills and Knowledge. • In order to determine a final outcome for Skills and Knowledge, a combination of grade averaging and Look-Up Tables (see below) are used. • To average grades, each grade will be converted to a numerical score (M=4, S=3, B=2, U=1) and average calculated and the number converted back to a grade using the following thresholds (M>3.54, S>2.54, B>1,54, U<1.54).”
You are assessed by: [Table setting out the domains which are assessed in the six in-course assessments and in the End of Stage Examination omitted]

You are assessed by:

[40]In particular, the Claimant places reliance upon the 4th and 5th bullet-points’ reference to “averaging” grades.[41]The MBBS Stage 5 Handbook then continues with a heading “Clinical and Communication Skills” and states that: “The grades awarded for each in-course assessment/assignment are averaged to give an overall In-Course Grade. “[42]I will not set out the remainder of the MBBS Stage 5 Handbook which sets out the table for combining the OSCE and MOSLER grades to achieve a “Clinical Skills grade” and the ‘Look-up Table’ which provides for the combination of that grade with the ‘In-Course Grade’ to produce an “End of Stage” Skills grade. Nothing turns on those parts of the Handbook. The Submissions[43]On behalf of the Claimant it is argued that the 4th and 5th bullet points set out a methodology that involved “averaging” grades as part of the process (combined with ‘Look-up’ tables) to obtain a final outcome for “Skills” and (although not relevant to the Claimant’s case) “Knowledge”. Mr Speaight submits that bullet points 4 and 5 applied to the Claimant in calculating the Claimant’s “average” mark for “Skills” in the MOSLER and, if properly applied to the Claimant, that did not permit the double counting of the Communication grade of U/1.[44]Mr Speaight accepted that as a matter of academic judgement it would not be wrong in principle to double weight the Communications grade but that was not what the MBBS Stage 5 Handbook permitted. Mr Speaight accepted that Dr Lunn’s evidence was that the policy of the Faculty was to double weight the Communications grade. But, again, he submitted that was not as set out in the MBBS Stage 5 Handbook. Mr Speaight submitted that on an objective reading of the MBBS Stage 5 Handbook, bullet points 4 and 5 must be describing how the MOSLER grade is arrived at. He submitted that if this were wrong it would not make sense as “averaging” did not subsequently occur; only Look-up Tables were used.[45]Mr Speaight relied upon two reports prepared by Mr Carus dated 1 July 2011 and 4 August 2011 which, he submitted, demonstrates that the double-weighting was inconsistent with “averaging”.[46]Mr Speaight also relied upon a General Medical Council’s document entitled “Tomorrow’s Doctors” which states, inter alia, at paragraph 87:
“87. Students will receive timely and accurate guidance about assessments, including assessment format, length and range of content, marking schedule and contribution to overall grade.”
[47]Mr Speaight submitted that the importance of clear assessment procedures was demonstrated by the GMC documents.[48]On behalf of the Defendant, Mr Cornwell’s principal submission is that bullet points 4 and 5 of the MBBS Stage 5 Handbook are not concerned with deriving a grade or mark within an assessment episode such as MOSLER. Rather, they are concerned exclusively with how the grades/marks for a particular assessment domain (“Skills” and “Knowledge”) from each of the assessment episodes (OSCE and MOSLER) is combined with a grade for that domain derived from other assessment episodes. Mr Cornwell submitted that the reference to “averaging” or to “average grades” in bullet points 4 and 5 was a reference as to how in-course assessments/assignments were combined to produce an overall in-course grade as set out below under the heading “Clinical and Communication Skills”. The MOSLER is not an in-course assessment and so the “averaging” requirement was inapplicable.[49]Mr Cornwell submitted that the MBBS Stage 5 Handbook gave no details as to how within an assessment episode the marks for various parts of that assessment were to be calculated, including the number of items (such as questions or stations) or indeed the balance between the three domains that would be tested in that assessment. He submitted that the MBBS Stage 5 Handbook gave no indication as to the weight to be attached to any particular assessment item or sub-item in the MOSLER or indeed the OSCE.[50]Mr Cornwell submitted that I should place little weight upon Mr Carus’ report; he was an actuary and had no expertise in the interpretation of an academic handbook; his evidence had not been submitted on the basis that he was an expert in the case; in any event, he had not been provided with Dr Lunn’s second memorandum and, in particular, in relation to his second report he had not been given a key piece of information that the MBBS Stage 5 Handbook did not deal with internal compilation of marks within an assessment episode.[51]Mr Cornwell also relied upon what was said by Dr Lunn in his witness statement at paragraph 53, that students were told in broad terms that weighting would be used in relation to assessment items. Mr Cornwell drew my attention to a power-point presentation given to students at the beginning of their final year (and so had been available to the Claimant on two occasions) which showed that Station 4, although the assessment time was exactly the same as for the other three stations, only assessed two skills criteria (rather than 3) and thus, as patently having the same weight as the other stations, must have made it clear that differential weighting would be applied. Otherwise, Mr Cornwell submitted Station 4 would contribute materially less by way of percentage to the overall grade/mark for the “Skills” domain in the MOSLER. Discussion[52]In its final determination rejecting the Claimant’s complaint, the OIA noted (at paragraph 32.1) that:
“The assessment of medical students is necessarily complex and difficult to describe.”
[53]Nobody concerned with this case could doubt the wisdom of those words. Dr Phillips, the Appeal Adjudicator remarked when rejecting the Claimant’s internal appeal, that the MBBS Stage 5 Handbook lacks a certain degree of clarity (see e-mail from Dr Phillips dated 25 July 2011 at page 147 of the Claimant’s bundle). The wording was described as “ambiguous” by the OIA in its final adjudication on 28 January 2013 dismissing the Claimant’s complaint (see OIA Complaint Outcome, para 32 at page 271 of the Defendant’s bundle). The wording has subsequently been amended as a consequence of Dr Phillip’s comments to make explicit that “different weightings” may be applied at stations in the MOSLER and OSCE. It is the scope and application of the original wording, however, which I must address in this case.[54]There is no dispute between the parties as to the approach, applying public law principles, that I must adopt. The Defendant will have acted unlawfully if the method of calculating the Claimant’s grade for the “Skills” domain in the MOSLER was not in accordance with what is stated in the MBBS Stage 5 Handbook. If it is not, the Defendant will have acted unlawfully in failing to apply its stated methodology and contrary to the Claimant’s legitimate expectation if the MBBS Stage 5 Handbook amounts to a “clear and unambiguous assurance devoid of relevant qualification” that the Claimant would be assessed on the methodology relied upon by him (see R v Inland Revenue Commissioners, ex p MFK Underwriters [1990] IWLR 154) per Bingham LJ (as he then was) at 1570 approved in Paponette v Attorney-General of Trinidad and Tobago [2010] UKPC 32, [2012] 1 AC 1 per Lord Dyson at [28]).[55]I readily accept that the methodology used to assess medical students in their Stage 5 examinations has consistently been applied by the Faculty since the MOSLER was introduced in 2008 and was applied to this Claimant (see, Dr Lunn’s witness statement at paras 71 and 72, page 143 of the Main bundle). That is further supported by the witness statement of Dr Bradley dated 16 June 2013 (at para 15, page 149 of the Main bundle) who was previously the Chairman of the Board of Examiners. The double weighting, therefore, to the “Communication” mark/grade in the assessment of the “Skills” domain at Station 4 of MOSLER has been applied since 2008 to all medical students.[56]That approach has, in my judgement, an inherent rationality. As only two aspects of “Skills”, namely “Case History” and “Communication” are assessed at Station 4 omitting “examination” – the two grades/marks awarded for “Skills” at Station 4 would, absent any additional weighting to one of them, result in a lower contribution by Station 4 to the overall mark/grade for “Skills “ derived from the MOSLER.[57]The evidence is clear that the focus at Station 4 is, in particular, “Communication”. This is made plain in paragraph 46 of Dr Lunn’s witness statement which I set out above emphasising that Station 4 assessed the “more complex communication skills”. This is repeated and reaffirmed by Dr Bradley at paragraph 15 of his witness statement. It is also, in my judgement, supported by the documentation to which I was referred concerning presentations made to students at the beginning of the year. The structure of the MOSLER assessment is set out including what is to be expected at each of the three “Physical Examination” stations (namely Stations 1–3) and what is expected at the “Non-physical Examination” station (namely Station 4). The total time at each station whether physical or non-physical is clearly identified as 20 minutes. There is no suggestion that Station 4, despite the assessment time being precisely the same as the other stations, is to be weighted less than the others which would, of course, be the position if the Claimant were correct. The emphasis upon communication at Station 4 must, at least, in my judgement indicate to the students that the mark/grade for communication, rather than weighing less at that station, would weigh more heavily at this station so that overall the weight given to Station 4 would be on a par with the marks/grades given at the other three stations.[58]With that background in mind, I turn to the relevant part (namely bullet points 4 and 5) of the MBBS Stage 5 Handbook relied upon by the Claimant.[59]As I understood Mr Cornwell’s submissions, the methodology contained within the MBBS Stage 5 Handbook provided only the mechanism for aggregating or combining grades/marks for a particular assessment domain from one assessment episode (such as MOSLER) with another assessment episode (such as OSCE). The MBBS Stage 5 Handbook had nothing to say about how an individual grade or mark was derived within a particular assessment episode for the “Skills” domain in MOSLER in respect of an assessment item (e.g. at a particular station) or a sub-item. The reference to “averaging” was to the method used in relation to achieving an overall “in-course” grade for “in-course” assessments/assignments which, of course, does not include MOSLER.[60]I was not taken to the precise mechanism used to obtain an overall in-course grade for in-course assessments. I will assume, as no-one suggested to the contrary, that the process set out in bullet point 5 “to average grades” could be applied there including converting the grade to a numerical score and then calculating the average before converting that numerical score back to a grade based upon the Grade Thresholds set out in bullet point 5. However, that looks precisely the process that was applied to the individual grades awarded to the Claimant at the four stations in MOSLER. Each grade was converted to a numerical score and, subject to the double-weighting for the Communications mark/grade, then an “average” was calculated before that numerical score was reconverted to a grade using the Grade Threshold and resulted in a ‘B’ grade for the “Skills” domain part of the MOSLER. Dr Lunn sets that very aetiological process out in paragraphs 56-58 of his witness statement. In other words, Dr Lunn accepts the mechanism set out in bullet point 5 applies in order, so to speak, to derive and strip out the “Skills” component of the MOSLER to add to the equivalent OSCE score in order to achieve a “Clinical Skills” grade which can then be factored in, via Look-up Table 1, with the “in-course” grade in order to obtain an “end of stage” grade for “Skills”.[61]To an extent, that methodology is concerned with obtaining (in order to accumulate with other grades) the “Skills” (and the “Knowledge”) domains scores for the MOSLER. But, it is not concerned with how the ‘raw’ marks that are subject to that process are obtained. I agree with Mr Cornwell’s submissions that the MBBS Stage 5 Handbook provides only an “overview” and not a comprehensive statement of every aspect of the marking scheme or methods of assessments employed in the Stage 5 examinations. Whether that runs counter to the rubric of the GMC’s guidance or not, is not a matter for decision here. The MBBS Stage 5 Handbook says nothing about, for example, how many stations there should be in the MOSLER, what domains should be examined at each station and within any domain how many aspects (or indeed which particular aspects) of the “Skills” or “Knowledge” domain should be tested. The MBBS Stage 5 Handbook, therefore, plays no part in determining the composition of, and resulting marking scheme applied to, MOSLER. It gives no indication of the standard required to be awarded any particular grade. The MBBS Stage 5 Handbook does not spell out in a clear and unequivocal way how individual assessment items (stations in MOSLER) or sub-items (case history; examination or communication) will be assessed or aggregated to provide a “Skills” mark/grade for MOSLER other than by reference to grades being “averaged”. It gives no indication of what, if any, weighting will be given to any or all of the grades awarded at any of the stations. Mr Speaight rightly accepts that weighting is essentially an academic judgement about which he cannot complain in these proceedings.[62]However, I cannot accept the full import of Mr Cornwell’s submission that bullet points 4 and 5 were not in play when calculating the grade that the Claimant was entitled to on the basis of his score for “Skills” in the MOSLER. Quite clearly, the conversion to a numerical score and, once “averaging” had occurred, the conversion back to an overall grade is precisely the process set out in the 5th bullet point in the MBBS Stage 5 Handbook. It cannot be a coincidence that it was applied to derive the “Skills” domain grade from the MOSLER if it was simply irrelevant. I do not accept that the reference to “averaging” is exclusively to the process applied to grades awarded for each in-course assessment in order to obtain an overall in-course grade. But that, in my judgement, does not establish the Claimant’s case.[63]Even applying bullet point 5, there is the need to know what grades an individual has obtained and how they are to be counted (or weighed) in “averaging” them. Mr Speaight places weight upon the reports of Mr Carus. In his first report dated 1 July 2011 Mr Carus stated that: “It would be my presumption that when the word ‘average’ is used then a simple arithmetic average is meant. “[64]Mr Carus contrasts that with a ‘geometric’ or ‘harmonic’ average. Of course, he was unaware, at that time, that the double counting of the Communications grade meant that there were 12 grades to average rather than 11. Subsequently, when he had seen Dr Lunn’s memorandum describing the double weighting of the Communications grade, he stated in his supplementary report dated 4 August 2011 that: “The practice of weighting seems to be contra-indicated by the statement in the Handbook”.[65]As Mr Cornwell pointed out, Mr Carus’ evidence was not technically presented as an expert. There is no indication that Mr Carus took into account, in reaching his opinion, that the issue of weighting within an assessment was primarily an academic judgment and, as I have already indicated, not a matter dealt with in the MBBS Stage 5 Handbook itself. I see nothing inherently inconsistent in the method applied to the Claimant and other Stage 5 candidates of double counting one grade or mark and a requirement to “average” those grades. Certainly, it cannot be said that the requirement to “average” is a “clear and unambiguous” statement that no weighting of marks/grades will occur. The MBBS Stage 5 Handbook simply does not descend to spell out such academic judgements which, for the reasons I gave above, in the double weighting given at Station 4 for Communication is entirely rational and consistent with other information given to final year students. It is also, as I have already indicated, consistent with a balanced “weighting” being given to Station 4 in line with the “weight” given to each of the remaining three stations in reaching the overall grade for the “Skills” domain.[66]For these reasons, I am satisfied that the Defendant did apply the methodology set out in the MBBS Stage 5 Handbook to the Claimant and thus did not breach its public law duty (nor was it in breach of contract) by failing to apply the assessment methodology set out in the MBBS Handbook to the Claimant or in breach of any legitimate expectation based upon the terms of that Handbook.[67]Consequently, the Claimant fails on issue 1.

Issue 2: Failure to Disclose Dr Lunn’s Memorandum

[68]The second basis upon which the Claimant seeks relief relates to the Academic Appeals Procedure and the failure of the Adjudicator, Dr Phillips, to disclose to the Claimant a memorandum written by Dr Lunn dated 25 July 2011 (at pages 94-95 of the Claimant’s bundle) in response to an enquiry by the Adjudicator. The matter arose in the following way. Background[69]Following the publication of the Claimant’s examination results on 15 June 2011, the Claimant lodged an appeal in accordance with the University’s Academic Appeals Procedure on 27 June 2011. That procedure is set out at pages 11-19 of the Claimant’s bundle. It permits appeals on a number of grounds including in paragraph 6: “(ii) Procedural irregularity on the part of examiners. (iii) Inadequate assessment by an examiner or examiners. “[70]The Claimant based his appeal on 9 grounds (see document at pages 1-7 of the Claimant’s bundle, especially pages 5-6).

(i) of the Claimant’s appeal document which was as follows:

“(i) the University provides on p14 of the MBBS Stage 5 Handbook for 2011, a description of how the MOSLER grade in the skills domain is calculated. I accepted the description as clear and transparent, but the University calculated the grade in a way different from what is described in the Handbook. Had the University adhered to its own published description for calculating the MOSLER grade in skills, I would not have failed my exams and would have qualified as a doctor”
[71]In other words the Claimant challenged the grade awarded in the MOSLER for the “Skills” domain. The Claimant’s case, on appeal, was that his grade had not been calculated in accordance with the MBBS Stage 5 Handbook and, if it had, he would have passed Stage 5 overall.[72]In response to the appeal, Dr Lunn, the Chairman of the Board of Examiners submitted a memorandum dated 30 June 2011 (see pages 21-23 of the Claimant’s bundle). A copy of that memorandum was sent to the Claimant. In response to the Claimant’s “ground (i)” Dr Lunn stated that the Claimant had misunderstood the Handbook. He said this:
“There appears to be a misunderstanding on Mr Crawford’s part as to what is described on page 14 of the Stage Handbook (Appendix 1). Page 14 details the way in which the grade from the MOSLER is combined with other grades within the Knowledge domain. It does not describe how the MOSLER grade itself is determined. The contribution of the MOSLER to the Skills and Knowledge domains is different. Pages 13 and 14 of the handbook details this difference and clearly states how the MOSLER grade is combined with other assessments in both the Skills and Knowledge domains to result in a final Skills and Knowledge grade. The regulations stated in the Handbook were followed. Mr Crawford’s grades were calculated in line with the published regulations within the handbook. I believe that Mr Crawford has misunderstood the information presented.”
[73]In response to Dr Lunn’s memorandum, the Claimant submitted comments dated 8 July 2011 (at pages 24-28 of the Claimant’s bundle) and also a report from an actuary, Mr Anthony Carus dated 1 July 2011 (at pages 57-82 of the Claimant’s bundle). In his report, Mr Carus stated that there were a number of discrepancies in the results announced by the University in relation to a number of candidates including the Claimant. In response to the question “Can you confirm that the Handbook suggests that a simple arithmetic calculation is being used?”, Mr Carus responded in his report as follows (at page 65 of the Claimant’s bundle):
“It would be my presumption that when the word ‘average’ is used then a simple arithmetic average is meant. When an alternative such as geometric or harmonic average is to be used then it would be normal to specify that fact As an exercise I repeated the calculation with geometric and harmonic means rather than arithmetic means and produced higher numbers, 24 and 40 respectively, of discords so I conclude that a different interpretation of ‘average’ is not the answer to the discrepancies.”
[74]At this point, neither the Claimant nor Mr Carus were aware that the Communication grade awarded for Station 4 of the MOSLER was double weighted.[75]On 13 July 2011 Dr Phillips was appointed as the Appeal Adjudicator for the Claimant’s case. Dr Phillips then sought further comments from Dr Lunn in response to Mr Carus’ report. On 25 July 2011, Dr Lunn provided a response to Dr Phillips. In his memorandum, Dr Lunn pointed out that the apparent discrepancy identified by Mr Carus in the Claimant’s MOSLER grade was explained by the fact that the Communication grade at Station 4 of MOSLER was double weighted. When that was factored in, so as to give the same weighting to Station 4 as Stations 1-3 in the MOSLER examination, Dr Lunn confirmed that the Claimant grades and marks for the MOSLER examination were correct. The relevant text of Dr Lunn’s memorandum is as follows:
“Mr Carus has clearly gone into great detail in his report and if his assumptions regarding the calculations of marks for the MOSLER examination were correct, then his outcome would have been correct. However, Mr Carus has based his calculations on erroneous assumptions. Mr Carus has assumed that each of the individual criteria feeding into the skills and knowledge domains are equally weighted. This is not the case. The communication criterion within Station 4 is double-weighted. When the MOSLER examination was developed, it was designed with Station 4 being different to Stations 1 to 3. Station 4 was to focus on a candidate’s advanced communication skills. For this reason, it was decided to double-weight the communication criterion within this station. This also allowed for Station 4 to be equally weighted in terms of its contribution to the examination as a whole. Stations 1 to 3 each contributed 5 individual criteria or marks to the overall mark. Station 4 did not have an examination criterion and therefore would only be contributing 4 criteria or marks to the overall grade. The validity of double-weighting the communication criteria therefore was confirmed. The MOSLER has been running now for a number of years. The way in which the examination has been marked and results calculated has not changed. I can confirm that the marking and results calculations for this year have not changed. As stated in my previous response to Mr Crawford’s appeal, the Stage Handbook contains information on how final examination or assessment grades are combined. The Stage Handbook (sic) does not provide information on how individual criteria or marks within a single assessment or examination combine to provide the final examination or assessment result. It does not detail weightings applied to component elements of assessment. Having reviewed Mr Carus’s report, I can confirm that his calculations are based on erroneous assumptions. The calculations presented by Mr Carus have not taken into account the weighting of different criterion or components of the MOSLER examination. Having reviewed Mr Crawford’s grades and calculations again, I am satisfied that the combination of Mr Crawford’s grades and his final outcome accord to the information on final grade calculations that is presented in the Stage [5] Handbook. I therefore confirm the original decision of the Board of Examiners, that of fail.”
[76]At the time, the Claimant was unaware of Dr Lunn’s second memorandum. It was not disclosed to him until after Dr Phillips reached his decision on the Claimant’s appeal. Dr Phillips’ decision was communicated to the Claimant in a letter dated 1 August 2011 sent by Mrs Dawn Grey of the Student Progress Service (pages 100-102 of the Claimant’s bundle). The full decision is at pages 103-104 of the Claimant’s bundle.

(i) ” is as follows:

“The final part of the appeal refers to a claimed error in the calculation of Mr Crawford’s ‘clinical and communication skills’ result. I must admit that reading the Stage 5 Handbook left me rather confused and I sought the advice of another panel member, who was also unclear as to how the results were computed. As a result I asked the Chair of the Board of Examiners to clarify whether the calculations performed on Mr Crawford’s behalf by an actuary were correct. Dr Lunn has pointed out that the calculations performed by the actuary weighted the individual components equally, when the reality is that certain components are weighted more than others. This is not clear from the Handbook and I suggest that Dr Lunn might see whether a different form of words might be chosen to make this more transparent. However, Dr Lunn has assured me that, taking this different weighting into account, the marks as recorded for Mr Crawford are correct and therefore I cannot support this part of the appeal.”
[77]As this makes clear, Dr Phillips did not find the Claimant’s appeal to be justified and his decision disclosed to the Claimant for the first time that Dr Lunn had provided further information to Dr Phillips, namely the memorandum of 25 July 2011. It also disclosed to the Claimant that “certain components are weighted more than others”. The Claimant obtained a copy of Dr Lunn’s memorandum on 2 August 2011. The Claimant then sent (it would appear) the gist or a précis of the points made in Dr Lunn’s second memorandum to Mr Carus who produced a supplementary report dated 4 August 2011 (at pages 207-217 of the Claimant’s bundle). In relation to the communications grade being double weighted, Mr Carus stated (at page 210 of the Claimant’s bundle):
“This extra information has been supplied as an addendum to my instructions and I take it on trust as it is not to be found in the MBBS Handbook. Nor is it to be found in either of the results spreadsheets sent to me. Indeed the practice of weighting seems to be contra-indicated by the statement in the Handbook: “To average grades, each grade will be converted to a numerical score (M=4, S=3, B=2, U=1) and average calculated and the number converted back to a grade using the following thresholds (M>3.54, S>2.54, B>1.54, U<1.54 ).” “To average grades, each grade will be converted to a numerical score (M=4, S=3, B=2, U=1) and average calculated and the number converted back to a grade using the following thresholds (M>3.54, S>2.54, B>1.54, U<1.54 ).”
[78]The Claimant’s case is that the University acted unlawfully and unfairly in failing to disclose Dr Lunn’s second memorandum before a decision was reached. Had that been done, the Claimant says that he would have submitted further evidence, in the form of Dr Carus’ second memorandum.[79]Before returning to the parties’ submissions, I must continue with the narrative of the events following the Appeal Adjudicator’s decision.[80]On 13 August 2011, the Claimant made a complaint to the OIA concerning the way in which his appeal had been dealt with by the University (see pages 106-131 of the Claimant’s bundle). In that complaint, the Claimant’s grounds raise the issue of the double weighting of the Communication grade and that it was not in accordance with the MBBS Stage 5 Handbook and that if his mark had been calculated “on the basis of a simple average” he would have passed; that he was not given an opportunity to respond to Dr Lunn’s second memorandum; and that the Adjudicator had wrongly accepted an assurance from Dr Lunn that the Claimant had failed his examination instead of reaching his own conclusion on the facts.[81]Before any decision was made on his complaint to the OIA, on 25 August 2011 the Claimant applied within the University to the Academic Registrar for a review of the appeal decision by the Adjudicator (pages 132-133 of the Claimant’s bundle). That review was sought on the basis that the University, subsequent to the Appeal Adjudicator’s decision had changed the wording in the MBBS Stage 5 Handbook so as to point out that the individual criteria and weighting for the MOSLER and OSCE are not published and that in the final examination different weighting may be applied to different criteria depending on the components and focus of the given station within the examination. In his application for review, the Claimant states:
“In the light of this fundamental change in the Handbook, I am applying to the Adjudicator for a review of his/her decision to reject my appeal.”
[82]It is common ground that the Defendant’s Academic Appeals Procedure permitted a review of Appeal Adjudicator’s decision if there was some procedural irregularity (see Academic Appeals Procedure at paragraph 32 at page 16 of the Claimant’s bundle). On 2 September 2011 the Academic Registrar, Mrs Janette Strachan wrote to the Claimant rejecting the Claimant’s request for a review on the basis that there was:
“No evidence to suggest that there was any procedural irregularity in the handling of your Academic Appeal. Dr Lunn assured the Appeal Adjudicator that the correct marks were recorded for you and changes to the Handbook for the forthcoming academic year do not affect this.”
[83]On 11 November 2011 the OIA issued a preliminary decision on the Claimant’s complaint which it held to be “not justified” (see pages 155-160 of the Claimant’s bundle).[84]As regards the Claimant’s complaint in respect of the double weighting of the Communication grade, the OIA rejected the Claimant’s complaint. The Assistant Adjudicator’s reasons are set out at paragraph 9 as follows:
“It was recognised that the advice contained in the MBBS Stage 5 Handbook could cause confusion and was unclear. However, I am satisfied that method by which your marks were calculated were checked and confirmed as correct. Whilst I am critical of the University for the lack of clarity in the way that the marking procedure was set out in the MBBS Stage 5 Handbook, I am not persuaded that this lack of clarity meant that a procedural irregularity in the calculation of your marks had occurred. I consider that the University’s decision not to uphold this aspect of your appeal was reasonable in all the circumstances.”
[85]As regards the Claimant’s complaint that he had not been provided with Dr Lunn’s second memorandum, the Assistant Adjudicator accepted that this was contrary to the Academic Appeals Procedure but that the University’s failure had not materially affected the outcome of the Claimant’s appeal. The reasons are at paras 13-14 of the Assistant Adjudicator’s decision as follows: “13. The University has said in its response to the OIA that paragraph 16 of the Appeals Procedure permits the Adjudicator to seek any additional information if they consider that it is necessary to reach a decision. The University says that it does not send this information before the decision is reached by the Adjudicator but does send it with the final decision. It appears that the University’s practice is at odds with the procedures set out in paragraph 17 of the Appeals Procedure which states that a student should receive relevant case documentation in advance of the determination of any outcome. However, I do not consider that you were materially affected by the fact that the University had not provided you with the Chair’s further comments on the marking of your MOSLER exam and the findings of the Actuary. The University provided you with the Chair’s response on 1 July 2011 in which he stated that your marks for your MOSLER exam were correct. I do not consider that the Chair’s position changed following his further comments. Therefore, I do not consider that the University’s failure to provide you with this information prior to the Adjudicator’s decision materially affected the outcome of your appeal. I am not persuaded that had you been in possession of these comments at an earlier stage that you could have put forward any further evidence that would have altered the outcome.[14]I note that the University did provide you with this information on 2 August 2011 by email the day after it had sent you its CoP letter. If you thought that the University’s failure to provide you with this information had amounted to a procedural irregularity then you could have submitted a Request for a Review of the Adjudicator’s decision on this basis. I note from the documentation on file that you did submit a review on 25 August 2011 against this decision. However, it does not seem that your request for a review was based on these grounds.“[86]At the conclusion of the OIA Adjudication decision, the Claimant was invited to submit any reasons (together with any additional information or evidence) within 21 days if he disagreed with the OIA’s preliminary decision.[87]On 2 December 2011, the Claimant wrote to the OIA (see pages 198-205 of the Claimant’s bundle). In that letter, the Claimant put forward essentially the argument relied upon in this case as to the construction of the Stage 5 Handbook and that if he had been provided with Dr Lunn’s second memorandum during the course of the appeal procedure, he would have submitted Mr Carus’ supplementary report to support his appeal to the Appeals Adjudicator, Dr Phillips. In that letter, the Claimant indicated that he was issuing proceedings for Judicial Review against the University on the date of his letter, namely 2 December 2011. In fact, the Claimant did issue these proceedings on that date. As a consequence, the OIA discontinued its investigation as it was required to do by Rule 3.3 of its Rules which states that:
“The Scheme does not cover a complaint to the extent that: ….3.3The matter complained about was the subject of Court or Tribunal proceedings and those proceedings have been concluded, or the matter is the subject of Court or Tribunal proceedings and those proceedings have not been stayed.”
[88]Following the grant of permission in these proceedings on 24 May 2012, on the Claimant’s application these proceedings were stayed on 2 July 2012. On 20 July 2012 the Claimant wrote to the OIA inviting the OIA to reopen its investigation of his complaint. The Claimant now relied only on two aspects of his earlier complaint, namely that the University had incorrectly calculated his mark for the “Skills” domain in the MOSLER and that the University had unfairly failed to disclose to him Dr Lunn’s second memorandum prior to the decision of the Appeals Adjudicator. On 8 October 2012, the Defendant made further detailed submissions and supplied supporting documentation (see pages 202-263 of the Defendant’s bundle).[89]On 28 January 2013, the OIA issued its formal decision on the Claimant’s complaint which it found “Not Justified” (see pages 265-273 of the Defendant’s bundle). In relation to the Claimant’s case that the grade/mark awarded for him for the “Skills” domain in the MOSLER was contrary to what was set out in the Stage 5 Handbook, the OIA referring to the judgement of the Deputy High Court

Judge in granting permission to bring these proceedings noted at paragraph 28 of its decision:

“28. We accept that the straight-forward meaning of the bullet points to which the learned Deputy Judge refers is that marks would be calculated by averaging and that no weighting would be applied. However, the OIA has not heard the arguments which were made to the learned Deputy Judge, and it must be noted that his remit was only to decidewhether Mr Crawford’s case was arguable. We are not persuaded by Mr Crawford’s contention that the learned Deputy Judge’s comments means that his claim cannot fail.”
[90]At paragraphs 29-31, the OIA in its decision analysed the arguments of the University as follows:
“29. The University argues, in its letter to the OIA dated 8 October 2012, that the paragraph relates to each assessment episode. It draws attention to the bullet point paragraph which precedes the two on which Mr Crawford relies:- “For each assessment episode you are graded according to the M, S, B, and U grading scheme such that at the end of the year you will have a final overall grade (M, S, B, U) for both Skills and Knowledge.”
[30]The University says that the two following bullet points, dealing with averaging, refer to how the different assessment episodes are combined to reach the final grade. It does not deal with how the individual assessment items of each assessment episode are combined to reach the grade for the assessment episode. The Handbook, the University says, does not provide a comprehensive account of every aspect of the assessment process. The Handbook itself says that it provides an “overview of the year”. It gives no details as to how, within any individual assessment episode, the marks for the Skills and Knowledge domains are calculated. We consider that argument to be persuasive.[31]The University contends that there is good reason not to include how individual assessment items are weighted in the Handbook. This is because the final examinations are designed to ensure that students have reached the required competencies to enter training and work as a Foundation Year 1 doctor. Revealing such details might give clues about the content of the assessments, or “drive learning strategies based on passing examinations rather than developing the clinical skills that these assessment methods are designed to test”. We accept the logic of the University’s argument, and understand the crucial importance of ensuring that students have reached the competencies required in all areas. However, the University’s position is somewhat weakened by the fact that the 2011/2012 Handbook has been amended to include the following:
“Details of the individual marking criteria within the in-course assessments are available on the in-course summative assessment forms. Details of individual criteria and weighting of criteria for the MOSLER and OSCE are not published. It should be noted that for these final examinations different weightings may be applied to different criterion [sic] depending on the components and focus of the given station within the examination.”
In our view, that wording does indicate to students that items of each assessment episode might carry different weights. Nothing in the 2010/2011 Handbook makes that clear to students. Whatever the University intended the paragraphs to mean, the wording itself was ambiguous and, as demonstrated by the wording in the 2011/2012 Handbook, it could have been made clearer without sacrificing the academic integrity of the assessments.” “For each assessment episode you are graded according to the M, S, B, and U grading scheme such that at the end of the year you will have a final overall grade (M, S, B, U) for both Skills and Knowledge.” “Details of the individual marking criteria within the in-course assessments are available on the in-course summative assessment forms. Details of individual criteria and weighting of criteria for the MOSLER and OSCE are not published. It should be noted that for these final examinations different weightings may be applied to different criterion [sic] depending on the components and focus of the given station within the examination.” In our view, that wording does indicate to students that items of each assessment episode might carry different weights. Nothing in the 2010/2011 Handbook makes that clear to students. Whatever the University intended the paragraphs to mean, the wording itself was ambiguous and, as demonstrated by the wording in the 2011/2012 Handbook, it could have been made clearer without sacrificing the academic integrity of the assessments.”[91]In recognising that the wording of the MBBS Stage 5 Handbook was “ambiguous”, at paragraphs 32-33 the OIA gave its reasons for concluding that the Claimant had not been disadvantaged by any ambiguity in the wording of the MMBS Stage 5 Handbook:
“32. Since we have concluded that the wording of the Handbook was ambiguous, we must go on to consider what effect that ambiguity had on Mr Crawford. We have concluded that it had no effect. This is for the following reasons: 32.1 The assessment of medical students is necessarily complex and difficult to describe. We are satisfied that the information provided to students by the University, both in the Handbook and in final year presentations, was consistent with the requirements set out in the extract from “Tomorrow’s Doctors” (2003), “Assessing student performance and competence.”
The ambiguity identified did not undermine the overall clarity of the information about assessments and how they contributed to the final outcome. 32.2 We are satisfied that the method by which the University marked the MOSLER was: • Consistent across the cohort; • The same as that used for previous cohorts, including Mr Crawford’s previous attempt in 2009/2010; • A legitimate exercise of the University’s academic judgment concerning how students’ skills and knowledge should be assessed before they are judged competent to practise medicine; • Not inconsistent with the wording of the Handbook. 32.3 In the academic judgment of the examiners, Mr Crawford failed to reach the standard at which the University examiners judged students competent, and which all other students who passed the assessment reached. External examiners scrutinised the MOSLER. 32.4 The seriousness of the error made by Mr Crawford, and his subsequent interaction with the role player, and the effects of those on Mr Crawford’s competence in the Skills domain are matters of academic judgment with which we cannot interfere. However, we note here that the examiner who marked Mr Crawford was aware that the communication element was double weighted when he or she awarded Mr Crawford a U for it. 32.5 We do not find it plausible that, if Mr Crawford had been told expressly that the communication element of station 4 of the MOSLER would be double weighted, he would have prepared differently for the exam. If he had prepared selectively for the station, then that would be contrary to the main purpose of the final year assessments which is to test students’ skills and knowledge in all areas.[33]Having carefully considered all the evidence and the cogent arguments made by both Mr Crawford and the University, we have concluded that Mr Crawford was not disadvantaged by the ambiguity in the wording of the Handbook. 32.1 The assessment of medical students is necessarily complex and difficult to describe. We are satisfied that the information provided to students by the University, both in the Handbook and in final year presentations, was consistent with the requirements set out in the extract from “Tomorrow’s Doctors” (2003), “Assessing student performance and competence.” The ambiguity identified did not undermine the overall clarity of the information about assessments and how they contributed to the final outcome.• Consistent across the cohort;• The same as that used for previous cohorts, including Mr Crawford’s previous attempt in 2009/2010;• A legitimate exercise of the University’s academic judgment concerning how students’ skills and knowledge should be assessed before they are judged competent to practise medicine;• Not inconsistent with the wording of the Handbook. 32.3 In the academic judgment of the examiners, Mr Crawford failed to reach the standard at which the University examiners judged students competent, and which all other students who passed the assessment reached. External examiners scrutinised the MOSLER. 32.4 The seriousness of the error made by Mr Crawford, and his subsequent interaction with the role player, and the effects of those on Mr Crawford’s competence in the Skills domain are matters of academic judgment with which we cannot interfere. However, we note here that the examiner who marked Mr Crawford was aware that the communication element was double weighted when he or she awarded Mr Crawford a U for it. 32.5 We do not find it plausible that, if Mr Crawford had been told expressly that the communication element of station 4 of the MOSLER would be double weighted, he would have prepared differently for the exam. If he had prepared selectively for the station, then that would be contrary to the main purpose of the final year assessments which is to test students’ skills and knowledge in all areas.[92]At paragraph 34 the OIA concluded that even if the Claimant had been “disadvantaged”, it would not have recommended that he be awarded his degree as: “34. “Mr Crawford has not demonstrated the level of competence which the University, in its academic judgment, has identified as necessary to pass the MBBS degree. In the event that we had concluded he had been disadvantaged, we would have recommended that he be given an exceptional third attempt to pass the year. “[93]As regards the Claimant’s second ground, namely the failure of the University to disclose Dr Lunn’s second memorandum prior to the determination of the Appeal Adjudicator, at paragraph 35 of its decision the OIA stated: “ 35.…In our view, given the centrality of the issue to Mr Crawford’s complaint, it would have been good practice to allow Mr Crawford to comment on that memo before the University’s appeal adjudicator reached his conclusion on the appeal. “[94]However, at paragraphs 36-38 the OIA rejected this ground of complaint on the basis that the Claimant had not been “materially disadvantaged”: “36. However, Mr Crawford was entitled to request a review of the appeal adjudicator’s decision on the grounds of procedural irregularity. He did so on 25 August 2011, but the ground of his appeal was that the Handbook had been changed for the year 2011/2012. He did not cite the University’s failure to disclose the memo in his review application.[37]Mr Crawford has now had a full opportunity to make his case to us, in the knowledge of all of the information provided to the appeal adjudicator. We have not been persuaded by his arguments.[38]In the circumstances, we are not persuaded that Mr Crawford was materially disadvantaged by the University’s failure to send him a copy of the memo before the appeal adjudicator reached his decision.”[95]Following the OIA’s formal decision, these proceedings were again pursued.[96]I have set out in some detail the procedures followed both within the University and to the OIA by the Claimant because it is important to see in context the Claimant’s complaint about procedural irregularity. The Submissions[97]Mr Speaight submitted that it was unfair and a breach of the University’s own Academic Appeals Procedure for the Defendant to fail to provide the Claimant with Dr Lunn’s second memorandum prior to the Adjudicator’s decision. That memorandum disclosed, for the first time, that the Communications grade/mark at Station 4 of the MOSLER was double weighed. Because the Claimant was unaware of this, he was unable to make submissions to the Adjudicator on its inconsistency with the Stage 5 Handbook and to submit expert evidence in the form of Mr Carus’ second report to the effect that this was inconsistent with the stated requirements of “averaging” in the MBBS Stage 5 Handbook.[98]Mr Cornwell accepted in his oral submissions that the failure to provide the Claimant with Dr Lunn’s second memorandum was contrary to paragraph 17 of the University’s Academic Appeals Procedure which states that:
“In accordance with the principles of openness and best practice the University will disclose to appellant’s any relevant case documentation at an early and appropriate stage and in particular, in advance of any determination of the outcome.”
[99]Mr Cornwell submitted, however, that any unfairness was immaterial or academic. First, he submitted that the Claimant could and should have raised this procedural irregularity under the University’s procedure when seeking a review of the Appeal Adjudicator’s decision. Instead, the review application focussed exclusively upon the fact that the MBBS Stage 5 Handbook had been changed for the future. Mr Cornwell submitted that the Claimant had raised the procedural irregularity in his complaint to the OIA made on 13 August 2011 but that complaint had been rejected on two occasions by the OIA first in its preliminary decision or 11 November 2011 and secondly in its final decision on 28 January 2013. Mr Cornwell submitted that the Claimant had an effective internal remedy for complaining about the procedure which he had not chosen to pursue and, in any event, any unfairness had been corrected by the OIA’s investigation which included consideration of the Claimant’s criticism of Dr Lunn’s second memorandum and Mr Carus’ second report.[100]In response, Mr Speaight submitted that the Claimant had, in effect, raised the procedural irregularity issue indirectly with the University through his complaint to the OIA. That complaint had been sent to the University on 26 August 2011. Mr Speaight relied upon the Claimant’s evidence at paragraph 6 of his witness statement dated 18 October 2013, in particular, that he had not “appreciated the nature of the various appeals and reviews” and further that: “whilst it is a little difficult after the passage of time to be sure of my thought processes then, I believe that what was in my mind was that matters raised in my OIA Complaint Form would have reached the University anyway”.[101]The Claimant refers to the OIA Complaint Form which includes that the signor understands that: “The OIA will send the University a copy of this form and of the information and evidence I provide."[102]Mr Speaight submitted that the Defendant’s position was little more than a pleading point.[103]Mr Cornwell submitted that to suggest that the Claimant had pursued an internal review on the basis of the failure to disclose the second memorandum of Dr Lunn was wholly misconceived. He pointed out that the Claimant had never supplied Mr Carus’ second report to the Defendant although it had been supplied indirectly by the OIA.[104]Further, Mr Cornwell submitted that there was no realistic prospect that the outcome of the appeal to the Adjudicator would have been any different. Mr Carus’ interpretation of the marking scheme failed to understand its proper application. Nothing the Claimant could have said would have justified the Adjudicator in adopting the interpretation of the MBBS Stage 5 Handbook which, Mr Cornwell submitted, was contrary to it true meaning. Discussion[105]It is not disputed in this case that the University owed the Claimant an obligation to act fairly. That obligation was, in particular, reflected in paragraph 17 of its own Academic Appeals Procedure that it would “disclose” to individuals “any relevant case documentation at an early and appropriate stage and in particular in advance of any determination of the outcome”. The obligation of fairness requires that an individual be given an effective opportunity to make representation on the issues raised and the evidence relied upon. In R v Home Secretary, ex p Doody [1994] 1 AC 531, Lord Mustill set out the general approach at page 560 as follows: “…Fairness will very often require that a person who may be adversely affected by the decision will have an opportunity to make representations on his own behalf either before the decision is taken with a view to producing a favourable result; or after it is taken, with a view to procuring its modification; or both. …Since the person affected usually cannot make worthwhile representationswithout knowing what factors may weigh against his interests fairness willvery often require that he is informed of the gist of the case which he has toanswer.[106]On the face of it, the proceedings before the Appeals Adjudicator ran counter to the requirements of fairness set out by Lord Mustill in Doody.Dr Lunn’s second memorandum contained, for the first time, evidence concerning the “double weighting” of the Communication grade/mark at Station 4 in the MOSLER. Without knowledge of that evidence, the Claimant was in effect denied the opportunity fully to understand the basis upon which the grade/mark for the “Skills” domain in the MOSLER was arrived at and, to the extent that he could, to argue that it was contrary to the rubric set out in the MBBS Stage 5 Handbook.[107]The relevance of the internal review procedure and the fact that the OIA considered the substance of the Claimant’s case, including giving him an opportunity to deal with Dr Lunn’s second memorandum and submit Mr Carus’ second report, goes not to the issue of whether the proceedings within the University were fair but rather whether any discretionary remedy whether in public or private law should be granted.[108]That is also, in my judgment, the proper approach to the substance of Mr Cornwell’s second submission that the Claimant had no realistic prospect of a different outcome before the Appeal Adjudicator because the University had correctly applied its marking scheme and, in particular, those parts of the MBBS Stage 5 Handbook relied upon by the Claimant. The Defendant’s submission amounts, in effect, to an argument that in order to demonstrate that the appeal proceedings were unfair it has to be shown that the Claimant was, at least potentially, prejudiced by the failure to disclose to him Dr Lunn’s second memorandum. Although not entirely free from doubt, the better view is that in order to establish a breach of the duty to act fairly it is not necessary for an individual to show that the unfairness caused him prejudice. Rather, the issue of prejudice goes to discretion and the grant of any remedy (see Boddington v British Transport Police [1999] 2 AC 143, Lord Steyn at page 174).[109]First, I am satisfied that the failure to disclose Dr Lunn’s second memorandum did not prejudice the Claimant. As I have concluded above, the Claimant was marked in accordance with the University’s marking scheme and nothing in the MBBS Stage 5 Handbook, relied upon by the Claimant, prevented the University from double weighting his Communication grade/mark for Station 4 of the MOSLER in order that equal weighting was given to the “Skills” marks at each of the 4 Stations in the MOSLER. Nothing in Mr Carus’ second report could, or should, have persuaded Dr Phillips to conclude that the University had wrongly calculated the Claimant’s grade/marks for the Skill domain derived from the MOSLER. There was nothing that the Claimant could have said that could have made any difference on a proper reading of the MBBS Stage 5 Handbook.[110]Put another way: no purpose would now be served by quashing Dr Phillip’s decision and requiring him to consider the Claimant’s appeal again. On the construction and application of the MBBS Stage 5 Handbook to the Claimant, there could only be one outcome – he cannot show that his MOSLER mark/grade was contrary to the terms of the MBBS Stage 5 Handbook. That, in itself, would in my judgment lead me to refuse to grant any relief in relation to “issue 2”.[111]Secondly, the Claimant could (but chose not to) pursue the issue of the non-disclosure of Dr Lunn’s memorandum in the internal review procedure challenging the Appeal Adjudicator’s decision. If the Claimant had pursued the point about unfairness in the review procedure before the Academic Registrar, and the Academic Registrar had decided there was a procedural irregularity in the proceedings before the Appeal Adjudicator, then the Appeals Adjudicator could have been required to consider the Claimant’s appeal again (see paragraphs 32 and 34 of the Academic Appeals Procedure). That did not, however, happen here. Despite Mr Speaight’s submissions to the contrary, it is clear to me that the Claimant did not indirectly pursue the unfairness point in the internal review. Instead, fully aware of the fact that he had not been shown Dr Lunn’s second memorandum, he chose to pursue this point exclusively in his complaint to the OIA. I do not accept that he intended to pursue the point in the internal review simply because he knew (or now says he may have realised) that the OIA would pass on to the University the documents which were part of his complaint to the OIA. It has never been said that the Academic Registrar failed to grasp the nature of the Claimant’s case for a review which was based upon the change in wording to the MBBS Stage 5 Handbook made after Dr Phillips’ decision. The Claimant’s failure to pursue this issue through an available and perfectly appropriate avenue of internal review tells against the exercise of discretion in granting any remedy.[112]Thirdly, the Claimant was able fully to explore the ‘rights and wrongs’ of Dr Lunn’s memorandum, and rely upon Mr Carus’ second report before the OIA. Their final decision, the material parts of which I have set out above, fully considers the Claimant’s arguments and the relevant evidence and accepted that the double weighting of the communications mark/grade was properly a matter of academic judgement for the examiners. The OIA concluded that, any ambiguity in the wording of the MBBS Stage 5 Handbook, had not disadvantaged the Claimant.[113]The importance of the OIA in dealing with complaints including those that result in the expulsion of a student is recognised in R (Peng Hu Shi) King’s College London [2008] EWHC 857 (Admin). At [42], Mitting J said:
“42. The statutory scheme, in my judgement, provides an inexpensive, fairly rapid and comprehensive avenue by which challenges to a decision to expel a student for alleged cheating at exams can be fairly resolved.”
[114]Although, of course, this case is not concerned with an allegation of that sort, Mitting J’s view is no less applicable where a challenge is brought to the outcome of an examination and to the internal procedure (if any) within a University followed to challenge that outcome.[115]At [45], Mitting J refused to grant any remedy having stated that:
“45. Judicial review is a remedy of last not first resort. I wish to make it clear, both to this Claimant and to others in a similar position to her, that complaints of this nature should not ordinarily be pursued by judicial review, but should be pursued …by complaint to the Office of the Independent Adjudicator. That is the appropriate procedure for resolving complaints about alleged unfair expulsion from a university.”
[116]I am in no doubt that the underlying point made by Mitting J supports my view (perhaps having even greater force here) that it is relevant to the grant of a discretionary remedy where the OIA has, in fact, dealt with the substance of the Claimant’s case in respect of Dr Lunn’s memorandum and Mr Carus’ report which, he claims, he was denied an opportunity to address before the Appeal Adjudicator.[117]Consequently, despite the failure by the University to provide the Claimant with Dr Lunn’s second memorandum in breach of its Academic Appeals Procedure, for the reasons I have given, it is not appropriate to grant any discretionary remedy in public or private law in respect of that failure.[118]Consequently, the Claimant fails on issue 2.

Issue 3: Did the Appeal Adjudicator Abdicate his Appeal Function?

[119]Mr Speaight also submitted that the Appeal Adjudicator, Dr Phillips had acted unlawfully in uncritically accepting the assurance given by Dr Lunn in his second memorandum that the Claimant had been marked in accordance with the published MBBS Stage 5 Handbook. In the letter from Mrs Dawn Grey of the Student Progress Service dated 1 August 2011, she sets out part of Dr Phillips decision as follows:
“However Dr Lunn has assured me that, taking this different weighting into account, the marks as recorded for Mr Crawford are correct and therefore I cannot support this part of the appeal.”
[120]Mr Speaight submitted that Dr Phillips had failed to carry out the task of making his own decision on the issues raised before him.[121]I do not accept Mr Speaight’s submissions on this point. Dr Phillips’ comment has to be seen in the context of Dr Lunn’s second memorandum and also the totality of Dr Phillips reasons in relation to this aspect of the Claimant’s case on appeal. In his second memorandum, Dr Lunn sets out the basis upon which the Claimant’s MOSLER examination was marked and, in particular, that the Communication element of Station 4 was double weighted. Dr Lunn accepted that if Mr Carus’ assumption:
“regarding the calculation of marks for the MOSLER examination were correct, then his outcome would have been correct.”
[122]However, Dr Lunn pointed out that because of the double weighting for the Communications element, Mr Carus’ assumptions were based on “erroneous assumptions”. Dr Lunn states:
“The calculations presented by Mr Carus have not taken into account the weighting of different criteria or components of the MOSLER examination. Having reviewed Mr Crawford’s grades and calculations again, I am satisfied that his results have been calculated correctly. I am also satisfied that the combination of Mr Crawford’s grades and his final outcome accord to the information on final grades calculations that is presented in the Stage Handbook. I therefore confirm the original decision of the Board of Examiners, that of Fail.”
[123]In his decision, Dr Phillips set out his reason for rejecting the Claimant’s ground of appeal that his marks had not been calculated in accordance with the MBBS Stage 5 Handbook. He said this:
“The final part of the appeal refers to a claimed error in the calculation of Mr Crawford’s clinical and communication skills’ result. I must admit that reading the Stage 5 Handbook left me rather confused and I sought the advice of another panel member, who was also unclear as to how the results were computed. As a result I asked the Chair of the Board of Examiners to clarify whether the calculations performed on Mr Crawford’s behalf by an actuary were correct. Dr Lunn has pointed out that the calculations performed by the actuary weighted the individual components equally, when the reality is that certain components are weighted more than others. This is not clear from the Handbook and I suggest that Dr Lunn might see whether a different form of words might be chosen to make this more transparent.”
[124]Having stated that, Dr Phillips then ended with the sentence with which Mr Speaight takes issues.[125]In his witness statement (pages 151-155 of the main bundle), Dr Phillips explained how he came to his decision to reject this ground of the Claimant’s appeal as follows (at para 12-17): “12. On the basis of the material I had there was a clear difference in the way that the Claimant and Dr Lunn carried out the calculation, i.e. the Claimant counted one element once, while Dr Lunn counted it twice. This fully explained the discrepancy. I had received an explanation from Dr Lunn that explained the reason for the difference in the result. My understanding was that the Claimant did not want to argue that his mark was incorrect in any other way.[13]The student Handbook refers simply to ‘average calculated’. I read this as meaning ‘an average’ is calculated, making the sentence grammatically correct. It is, in my view a matter of academic judgement as to how the average is achieved and I am willing to accept that. As a mathematician I recognise the difference between ‘the simple average’ and ‘an average’. This clearly explained the discrepancy between the average computed by Dr Lunn and that computed by the Claimant, and I was persuaded that it was this double-weighting that led to the recording of a Fail against the appellant.[14]I would have needed to have understood more fully the way that averages are computed to verify Dr Lunn’s calculation. However, I felt that it would be appropriate to take what Dr Lunn said at face value, since the reason for the discrepancy had been fully explained.[15]Whilst I accept that the (then) wording in the Handbook could have been clearer and does not spell out one way or the other how to calculate an average, I regard it as a matter of academic judgment whether or not to apply a higher weighting to an individual component if that is felt to be appropriate in the context of the assessment. The calculation performed by Dr Lunn, in line with that for all candidates, does not contradict what was said in the Handbook.[16]To have had any further confidence in the average as computed by Dr Lunn I would have needed to have gained a more detailed understanding of the calculation that is performed. Rather than do this, I was willing to accept Dr Lunn’s word since it fully explained the discrepancy between the averages computed by Dr Lunn and by the Claimant.”[17]I considered all the elements of the appeal and reached the decision not to uphold any element of the appeal…..”[126]In my judgement, it is clear that Dr Phillips conscientiously considered the apparent discrepancy in the Claimant’s marks for the “Skills” domain of the MOSLER in the light of Dr Lunn’s second memorandum and Mr Carus’ first report. Indeed, it was as a result of Mr Carus’ report that Dr Phillips sought further comment from Dr Lunn which led to the second memorandum. Dr Phillips also clearly considered the terms of the MBBS Stage 5 Handbook and, indeed, he was somewhat critical when he thought that the words could have been expressed “clearer” so as to spell out how the Claimant’s mark was obtained by “averaging”. Dr Phillips could do no more that accept Dr Lunn’s explanation that Mr Carus’ calculation was based on an erroneous assumption as it did not take into account the double-weighting of the Communications element at Station 4 of the MOSLER. It is accepted by the Claimant in this case that whether any mark should be double-weighted is a matter of academic judgement. The appeals procedure did not allow Dr Phillips to entertain challenges to the academic judgement of the examiners. Paragraph 7 of the Academic Appeals Procedure states that:
“Challenges to the academic judgement of the examiners on an assessment outcome or the level of award recommended cannot form the basis of an appeal.”
[127]It is accepted by the Claimant that if the Defendant was correct (or entitled to) double-weight the Communications element of Station 4 of the MOSLER, then the Claimant’s mark and grade for the “Skills” domain derived from the MOSLER was correct. Having concluded that this double weighting was not inconsistent with the wording of the MBBS Stage 5 Handbook, which was after all the substance of the Claimant’s appeal on this ground, I do not see how it was necessary for Dr Phillips to then carry out an arithmetic calculation to see whether, therefore, the claimed grades/marks derived from the MOSLER were in fact correct. He had rejected the substance of the Claimant’s ground and, as I have said, had he carried out that calculation he would inevitably have come to the conclusion (as the Claimant accepts) that the Claimant’s marks/grades for the MOSLER were correct. In my judgment, Dr Phillips reasonably and rationally carried out his function of determining whether the Claimant had made out the substance of his ground relied on in the appeal. Dr Phillips did not unlawfully delegate or abdicate the function assigned to him under the Appeal Procedure.[128]Consequently, the Claimant fails on issue 3.[129]Having failed on issues 1, 2 and 3, the Claimant’s claims for judicial review and in contract are dismissed.

Issue 4: Available ‘Alternative’ Remedy

[130]As a consequence, it is not strictly necessary for me to deal with “issues 4” and “5” raised by the Defendant. However, I heard detailed submissions in respect of “issue 4” and so I will express my views briefly.[131]The Defendant relies upon the existence of the complaints procedure to the OIA as an effective ‘alternative’ remedy so that, even if the Defendant acted unlawfully, the Court should refuse to grant the Claimant any relief. He relied upon two decisions of this Court in R (Carnell) v Regent’s Park College [2008] EWHC 739 (Admin); [2008] ELR 268 and R (Peng Hu Shi) v Kings College London [2008] EWHC 857 (Admin); [2008] ELR 414. He submitted that in Carnell Black J refused to grant permission to bring judicial review proceedings because of the existence of the OIA procedure even where, as in that case, the procedure was no longer available because of the OIA’s rule that a complaint could not be considered once judicial review proceedings were commenced. Mr Cornwell submitted that in Peng Hu Shi, Mitting J had dismissed the Claimant’s application for judicial review where the individual had failed to pursue a claim to the OIA – a fortiori here where the Claimant had done so.[132]In relation to the Claimant’s contract action, Mr Cornwell submitted that no difference in principle should apply where an effective alternative remedy was available and he relied upon Clark v University of Lincolnshire and Humberside [2000] 1 WLR 1988 especially at [29], [30] and [38] dealing with abuse of the Court’s process. Mr Cornwell also relied upon Moroney v Anglo – European College of Chiropractic [2008] EWHC 263 (QB); [2009] ELR 111 at [20] where Underhill J (as he then was) said that: “Other things being equal, I would be inclined to regard it as an abuse of process for a student to bring proceedings in the Courts unless and until he has exhausted that domestic remedy. “[133]Mr Speaight submitted that the Claimant in this case had properly invoked the OIA’s jurisdiction and that procedure was now completed. He submitted that Peng Hu Shi was distinguishable since the Claimant there had not gone to the OIA at all. Carnell was, likewise, distinguishable as the Claimant there had, through his own fault, deprived himself of the alternative remedy by seeking judicial review first. He submitted that it would be a “naked invitation to abandon the rule of law” if, on completion of the OIA’s procedure, the Claimant could not seek judicial review.[134]Mr Speaight relied upon the decision of the Court of Appeal in R (Maxwell) v Office of the Independent Adjudicator [2011] EWCA Civ 1263; [2012] PTSR 884. Mr Speaight submitted that the Court of Appeal had recognised that, following a determination of the OIA on a complaint, it was open to the student who was alleging disability discrimination to bring or continue County Court proceedings on that basis (see Mummery LJ at [34]). Likewise, here, Mr Speaight submitted the Claimant was entitled to pursue this application for judicial review and to bring a concurrent claim in contract.[135]Mr Cornwell submitted that Maxwell was not a case concerned with whether an individual could bring a judicial review claim raising the same issue which could (or which had been) considered by the OIA. Mr Cornwell submitted that Maxwell was a case where the Claimant was judicially reviewing the actual decision of the OIA and the court’s recognition that, where disability discrimination was alleged the individual could subsequently pursue a claim in the Country Court, was distinguishable.[136]The argument that the existence of the OIA operates as a discretionary bar to judicial review (as Mr Cornwell puts it in his skeleton argument) is not without difficulty.[137]There is no doubt that the availability of an effective alternative remedy may lead a Court not to grant permission to bring judicial review proceedings (see, for example, R v SSHD, ex p Swati [1986] 1 WLR 477, per Sir John Donaldson MR at page 485). Judicial review is a remedy of ‘last resort’.[138]In Carnell, Black J refused permission to bring judicial review proceedings on the basis that a complaint to the OIA was an adequate remedy even though the OIA had declined jurisdiction because that Claimant had made a claim for judicial review. At [30], Black J said this:
“30. I have considered the question of the OIA very carefully. The fact that the OIA complaints procedure is no longer available is by virtue of the Claimant choosing not to pursue it initially and then maintaining that course following receipt of the acknowledgement of service of the other parties. He would have been within the Rules of the OIA scheme had he abandoned his judicial review proceedings at that stage and submitted his claim to the OIA with a request for it to be entertained out of time. The circumstances of this case are not, in my judgment exceptional in such a way as to justify the exercise in my discretion to grant permission for judicial review when that original remedy would have been available to the Claimant had he made different choices.”
[139]The permission stage in these proceedings has, of course, long passed. Permission was granted on 24 May 2012 at an oral hearing.[140]I have already considered above the relevance of the OIA procedure to the Claimant’s case under “issue 2”. Although not determinative, it is relevant to the exercise of discretion (together with other matters) whether to grant any remedy for the unfairness of the Academic Appeals Procedure for the reasons I gave above.[141]I have considerable doubt, however, whether the fact that the Claimant had pursued a complaint to the OIA would bar the Claimant from relief if he had made good his argument under “issue 1” on the construction and application of the MBBS Stage 5 Handbook.[142]Maxwell, I accept, was a different kind of case where the individual had an entitlement to make a claim before the County Court for disability discrimination. Perhaps it went no further than recognising that the County Court retained jurisdiction after the OIA decision. So, of course, does this Court in its judicial review jurisdiction.[143]I find it difficult, however, to contemplate that the ‘alternative’ procedure of the OIA (once completed) could be considered, whatever the OIA’s expertise in educational matters, as providing the only remedy on the issue of legality raised by “issue 1” in this case. The argument that judicial review is a remedy of ‘last resort’ which is at the heart of the ‘effective alternative remedy’ point may not, in itself, justify the refusal of relief when, as here, the alternative remedy has been pursued albeit unsuccessful. That has, as I have made clear in relation to “issue 2”, some bearing on how discretion should or should not be exercised in granting a remedy for the unfairness in the procedure followed by the Appeal Adjudicator. But, in that its relevance lies in the substance of the individual’s complaint and how it was dealt with by the OIA rather than simply by a bald reliance on the fact that another ‘alternative’ procedure has been followed. I recognise, however, the broad thrust of Mitting J’s comments in Peng Hu Shi may point in a different direction. Having expressed that view, as it is not necessary to reach a concluded view in this case, I prefer not to.

Issue 5: Delay

[144]In the detailed Grounds of Defence (at para 103), the Defendant relies upon the fact that the Claimant did not issue his claim promptly and within three months of the Appeal Adjudicator’s decision on 1 August 2011.[145]Mr Cornwell did not actively pursue this basis for refusing any relief to the Claimant on the basis that the application was unnecessarily delayed. In fact, the internal appeals process (including the review by the Academic Registrar) was not completed until 2 September 2011. The judicial review claim was issued three months later on 2 December 2011. There is no basis upon which it can be said that the Claimant unnecessarily delayed in bringing these proceedings until three months after the two-stage internal appeals procedure within the University was completed. Consequently, I do not accept there was any unnecessary delay by the Claimant in issuing these proceedings and that, had he otherwise been entitled to a remedy, any relief should be refused on that basis alone.

Decision

[146]The claim is dismissed.

Cited in 3 later judgments