Moroney v Anglo-European College of Chiropractic [2008] EWHC 2633 (QB)

[2008] EWHC 2633 (QB)Case No CC/2008/APP/0414
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 7 th November 2008
Before
MR JUSTICE UNDERHILL
Between
PHILLIP MORONEYAppellantANGLO-EUROPEAN COLLEGE OF CHIROPRACTICRespondent
Michael Hartman (instructed by Bailey Wright & Co) for AppellantDonald Broatch (instructed by Lester Aldridge LLP) for RespondentHearing Hearing dates: 9 th and 10 th October 2008
JudgmentThe Hon Mr Justice Underhill :INTRODUCTION
[1]This is an appeal from an order of His Honour Judge Boggis QC, sitting in the Southampton County Court, striking out the Claimant’s case. The claim arises from the requirement by the Defendant (“the College”) that the Claimant withdraw from a degree course in chiropractic on the basis of poor academic performance. The Claimant has in consequence been unable to pursue a career as a chiropractor. It is his case that that requirement was in breach of his contract with the College and he claims damages. Permission to appeal against Judge Boggis’ order was originally refused on the papers but was allowed by Owen J on 17th December 2007 following an oral hearing. In order for the issues to be understood it is necessary that I set out the history of the Claimant’s original complaint and of the subsequent proceedings in a little detail.[2]In September 1999 the Claimant enrolled with the College, which was at all material times an associate college of the University of Portsmouth, on an MSc course in chiropractic. He was excused year 1 of the course because he already had a relevant qualification. He completed year 2, i.e. his first year, although his academic performance does not appear to have been very good and he had to re-sit at least one subject. The assessment for year 3, which involved nine units – four comprising coursework only and five comprising a mixture of coursework and exams - was in May/June 2001. Broadly speaking - though subject to certain refinements to which I will have to refer in due course - the pass mark for each unit was 50%. Under the requirements governing the academic assessment of students on the course, which are contained in section 7 of the “Course Document”, if he failed four or more units he would either be required to re-take the year or to withdraw (the latter option being a somewhat euphemistic way of describing what the Claimant himself more realistically describes as expulsion).[3]The Claimant’s assessment work for year 3 was duly marked, and the marks were considered by a panel of internal examiners on 28th June 2001. According to the minute of the meeting the Claimant was reported as having failed in four units, described in the minute as follows - Human Morphology examination; Physiology examination; Behavioural Sciences coursework; and Research in Clinical Practice coursework. The minute continued:
“It was noted that the candidate’s performance in class was poor throughout the year and that he found presentations and working within a group difficult. The Chairman put forward two options for this candidate iii Repeat Year iv Withdraw from course. Decision of the Board after majority vote (7-2) - Withdraw from course. Recommend withdrawal”
That was framed as a recommendation because the ultimate decision was not that of the internal examiners but of the Final Board, which comprised the same internal examiners plus a small number of external examiners. The Final Board met on 5th July 2001. The minute records the Claimant as having failed the same four units and continues:
“It was reported that this candidate had been on academic probation due to poor performance and that there had been no improvement over the academic year. He had been allowed to conditionally progress into Year 3, but had failed the above subjects. Taking into account the above the Board agreed that the candidate be required to withdraw from the course. Withdrawal”
The Chairman put forward two options for this candidate iii Repeat Year Recommend withdrawal” Withdrawal”

iii Repeat Year

[4]A letter was written to the Claimant the same day (although it was not in fact posted until 12th July) by Dr Kondracki, the Course Leader, notifying him of the decision of the Final Board. On 17th July the Claimant replied, making it clear that he did not accept the decision and asking for “further details in writing as to how I am considered to have not met the college’s required standard of performance”. A reply dated 18th July informed him that Dr Kondracki was on annual leave, but the letter enclosed a copy of the Appeal Regulations “should you wish to pursue an appeal”.[5]The Appeal Regulations, which are set out in the College’s Student Handbook, read as follows “Appeals You are reminded that, in accordance with our current procedures for appeals, the following regulations apply:(1) A student wishing to appeal against the decision of a formally constituted Examination Board is recommended, in the first place, to seek an interview with the Chairman of the Board of the Examiners to clarify his position.(2) If a student wishes to pursue an appeal, the case should be submitted to the Academic Registrar, in writing, within fourteen days of the publication of the results of the examination.(3) The only grounds on which an appeal will be considered are: (i) that the candidate’s performance in assessment or examination was adversely affected by illness or other factors which he or she was unable, or for valid reasons, unwilling, to divulge before the Board of Examiners reached its decisions. The candidate’s request for a review on these grounds must be supported by medical certificates or other documentary evidence which will be acceptable to the Appeals Committee. (ii) that evidence is produced by the candidate or other persons that there has been a material administrative error, or that examinations were not conducted in accordance with the current regulations or that some other material irregularity had occurred.” (i) that the candidate’s performance in assessment or examination was adversely affected by illness or other factors which he or she was unable, or for valid reasons, unwilling, to divulge before the Board of Examiners reached its decisions. The candidate’s request for a review on these grounds must be supported by medical certificates or other documentary evidence which will be acceptable to the Appeals Committee. (ii) that evidence is produced by the candidate or other persons that there has been a material administrative error, or that examinations were not conducted in accordance with the current regulations or that some other material irregularity had occurred.”[6]The Claimant replied the following day. (His letter is headed “without prejudice”, but that is plainly inappropriate.) He said:
“Thank you for your letter dated Wednesday 18th July 2001 and enclosed documents. Referring to Dr Kondracki’s letter of the 5th July it is not possible for me to outline my case for appeal when I do not know how I have “not met the College’s required standard of performance”
. I request that my appeal can be made at a later date in order that I can prepare the case. … I cannot ascertain from the Student Handbook the procedure upon which the Examination Board are requiring me to withdraw from the course and upon what grounds such a decision would be made. My appeal would be under 3 (ii) of the appeal regulations, but without knowing the exact content of the Examination Board decision I cannot submit the necessary evidence at this stage.”[7]On 23rd July 2001 the Academic Registrar, Mrs. Tomlin, wrote to the Claimant as follows:
“Further to your letter dated 19 July addressed to Professor Donleavy I am writing to advise you that the decision of the Examination Board that you are required to withdraw from the course was made on the basis of academic judgement. For your information I attach a copy of your marks profile for Year 3 which was considered by the Board of Examiners during its deliberations. As you will see, you have failed four units, in addition to your General Diagnosis examination. …”
The enclosed “marks profile” showed that the Claimant had been given marks – out of 100 - of 40 for Human Morphology II (being the product of 37 for the coursework and 44 for the exam); 51 for Physiology II (63 for the coursework and 43 for the exam); 48 for Behavioural Sciences (which is coursework only); and 33 for Research in Clinical Practice (which is also only coursework). The mark of 51 for Physiology II may look like a pass; but under the Assessment Regulations it is necessary for the pass mark to be achieved, where there is both a coursework and an exam element, on both elements. That rule is qualified – see reg 7.4.1 – where the overall mark is 50 or more and where the lower mark is at least 46; but that had no application here, since the Claimant had scored only 43 in the exam. The Registrar’s phrase “in addition to your General Diagnosis Examination” requires explanation. The Claimant had not failed in that unit, his overall mark being 51; but the Registrar was referring to the fact that he had scored only 47 on the exam and had thus only registered a pass by virtue of reg. 7.4.1 referred to above.[8]On 15th August 2001 the Claimant wrote a long letter to the Academic Registrar “to outline my appeal”. This was regarded by the College as the submission of a formal appeal, and – quite reasonably in the circumstances – no point was taken on it falling outside the 14-day limit. The Claimant said that he had taken legal advice. He took the initial point that he did not appear to have failed Physiology II. He then proceeded to raise a very large number of particular complaints about the teaching and assessment in the other subjects in which he had failed. I need not summarise those complaints here.[9]On 30th August 2001 the Academic Registrar replied to the Claimant’s appeal letter dated 15th August. She confirmed the units which he had failed and sought to clarify the position about the General Diagnosis paper. She said:
“In addition to the above, you did not achieve 50% in your General Diagnosis examination, however, as the overall unit mark accomplished was at least 50%, the compensation rule applies. Therefore, you failed the year and the Examination Board required that you withdraw from the course.”
That was inaccurately expressed. The “compensation rule” to which she refers is reg. 7.4.2, which reads as follows:
“Compensation When the total UNIT mark is less than 50%, but not normally less than 48%, the Board of Examiners may exceptionally and at its discretion compensate for this result and award a pass provided that it is justified by an appraisal of the student’s overall performance on the course to date, including satisfactory performance in other units assessed in the same year as the unit considered for compensation. In this case the mark recorded for the unit in question will be 50%. Such compensation may not normally apply to more than one assessed unit.”
That was not the relevant rule for the purpose of the Claimant having passed the General Diagnosis unit: the relevant rule was, as I have said, reg. 7.4.1. The Registrar proceeded to set out the specific grounds for an appeal under reg. 6.9 (see para. 5 above) and then said this:
“I have to advise you that you do not have grounds for a valid appeal under these regulations. Your request for review is not supported by medical certification, or other documentary evidence, which would be acceptable to an Appeals Committee.”
That conclusion is not fully explained, but it is reasonably clear - and is in any event confirmed by subsequent correspondence - that the Registrar took the view that the Claimant’s grounds did not identify any factors falling within limb (i) of reg. 6.9 or any error, breach of regulations or material irregularity falling within limb (ii) and that they amounted only to “dissatisfaction with his results and the academic judgement of the Board”. Her reference to limb (i) was in fact unnecessary, since the Claimant had in his initial letter made clear that any appeal would be under limb (ii) and he had not in his subsequent appeal letter identified any factor relevant to limb (i).[10]The Claimant responded by letter dated 5th September 2001. He asked to have the compensation rule clarified and raised a number of other queries. He also maintained that the Academic Registrar had failed to meet his essential points, which he summarised under seven headings. Again, I need not set them out here. He wrote again two days later (saying, again, that he had taken legal advice). He reformulated his claim more specifically in the terminology of reg. 6.9 (ii), identifying a number of what he said were breaches of the regulations or material irregularities.[11]The Academic Registrar replied on 19th September 2001 dealing briefly with the Claimant’s points. Her letter concluded:
“The Examination Board has full authority. It may use its discretion and can require students to withdraw from the course or offer a repeat year. In your case, and using its academic judgement, the Board decided that you be required to withdraw from the course. I have to advise you that you do not have grounds for a valid appeal under these regulations. Your request for review is not supported by medical certification, or other documentary evidence, which would be acceptable to an Appeals Committee as the dissatisfaction with your results and the academic judgment of the Board does not constitute grounds for appeal. This matter is now closed … .”
[12]The Claimant replied on 4th October 2001 continuing to argue the points previously raised. But he included for the first time a request to be given copies of a number of documents, including the minutes of the relevant Examination Board meetings for years 2 and 3. By letter dated 17th October 2001 the Academic Registrar declined to provide those minutes on the ground that they were confidential. The correspondence continued, but no new points of any materiality for present purposes arose. It was entirely clear by the end of October that the College was declining to entertain an appeal or to produce most of the documents sought by the Claimant, including specifically the minutes of the examiners’ meetings.[13]In October 2002 the Claimant submitted to the College a data subject request under the provisions of the Data Protection Act 1998, seeking disclosure of various documents: I have not seen the precise terms of the request. I do not know why it took him over a year to take this step: there is nothing relevant in the evidence, and I was offered no explanation in submissions. He did not get what he wanted, and in due course he complained to the Information Commissioner. Correspondence ensued between the Commissioner and the College, which resulted in the Claimant being sent copies of his original examination scripts in September 2003.[14]The present proceedings were commenced on 4th September 2003 by a Part 8 Claim Form lodged in the Bournemouth County Court, complaining that “comments from internal and external examiners” were being withheld in breach of section 7 of the 1998 Act. The Defence filed by the College in March 2004 attached by way of disclosure a schedule of documents held by it, and copies of the documents in question were supplied to the Claimant then or shortly afterwards. These included the minutes of the meetings of the internal examiners and the Final Board from which I have quoted above, together with some associated documents to which I shall have to refer in due course.[15]Following receipt of the disclosure documents, the Claimant sought to extend the scope of the proceedings in order to claim substantive relief relating to the decision to expel him (though this was bound to raise issues which rendered the Part 8 procedure inappropriate). He did so by a series of letters, drafted by himself, which seem to have been ordered to stand in lieu of pleadings. These, so far as they can be understood, put his case in a number of ways most of which are prima facie misconceived and are in any event not now pursued; but from mid-2006 they included a claim for breach of contract and for damages for the loss of the chance to pursue a career as a chiropractor. I have not been taken through the details of this phase of the litigation; but it was clearly the view of Judge Boggis that it had been very poorly case-managed. On the face of it that view seems fully justified. I was told that there were no fewer than nineteen hearings between September 2003 and the end of 2006, but when in early 2007 a trial was fixed - for 23rd April - there appears still to have been no clear definition of the nature of the Claimant’s case or of the scope of the issues.[16]In early 2007 the Claimant, who had previously been unrepresented, instructed Mr. Michael Hartman of counsel. Appreciating no doubt the undesirability of having no proper pleadings, Mr. Hartman on 28th March 2007 produced what he titled (though strictly inappropriately) a “Draft Re-Re-Amended Statement of Case”. This was put forward on the basis that it was an authoritative re-statement of the claims previously sought to be advanced. The College did not accept that that was the effect of the document, and it objected that it introduced new claims in a way which was impermissible so close to the start of the trial. On 30th March 2007 Judge Marston refused permission to amend.[17]Accordingly, when the case came before Judge Boggis for trial on 23rd April 2007, it was in a state which he described in his judgment as “appallingly shambolic”, with no proper disclosure and with the issues having, as Mr. Hartman told him, to be “gleaned” from the papers. Understandably, he insisted on being provided with a Statement of Case which clearly set out the nature of the case which the College had to meet. Mr. Hartman complied with that request, although he tells me that he had to do so at very short notice and was hampered by the fact that counsel for the College objected to him resurrecting the draft in respect of which Judge Marston had refused permission: he recognises that, as a result, the Statement of Case is less than perfect in its structure and expression, but he asked me to be indulgent having regard to the circumstances in which it had to be produced. The following day counsel for the College applied to strike the case out on the basis that none of the allegations in Mr. Hartman’s Statement of Case had any prospect of success. Judge Boggis acceded to that application, and it is that decision which is the subject of the present appeal.[18]At the permission hearing Mr. Hartman abandoned some parts of the case advanced before Judge Boggis; and, as directed by Owen J., he has lodged an amended Statement of Case. Before me he has further refined his case.

THE NATURE OF THE CLAIM

[19]Following the concessions made by Mr. Hartman before Owen J. and before me, the claims which are still pursued boil down to five specific substantive complaints, which I will consider presently. But it is important to note that those concessions have considerably altered the appearance of the case. Before Judge Boggis a great many complaints were pleaded which looked like straightforward challenges to the academic judgment of the examiners. In Clark v. University of Lincolnshire and Humberside [2000] 1 WLR 188 the Court of Appeal, while holding that in principle a student may advance a claim for breach of contract against his university for breaches of its regulations governing the conduct of examinations, held also that questions of academic judgment are non-justiciable. Judge Boggis believed that that was the answer to the entire claim and that he was “being asked to do precisely what the Court of Appeal says that the Court should not do … [and] … go behind academic decisions”; and at least in his written submissions, Mr. Broatch, who appears before me for the College, submits that the Judge was right to take that view. However, Mr. Hartman emphasised before Owen J. and repeats before me that his intention has been to avoid any challenge to questions of academic judgment and to raise only complaints which fell outside the zone prohibited by Clark: the surviving complaints are, he submits, complaints about “material irregularities” (using the language of the Appeal Regulations) in the process leading to the Claimant’s expulsion and are justiciable as breaches of contract. Owen J. accepted that that was arguably the case, at least as regards two of the main complaints. As will appear below, I agree with that; and, although the justiciability issue remains relevant to some degree, the focus of the argument before me was less on whether the Claimant’s surviving pleaded complaints related to matters of academic judgment than on their substantive merits.[20]There is a further point of general application which I should mention. In so far as the Claimant proves any of the material irregularities of which he complains, those could in principle have been the subject of an appeal under the Appeal Regulations. 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 had exhausted that domestic remedy. But in the present case the Claimant sought to appeal under the Regulations and was refused; and indeed that refusal is itself complained of as a distinct breach. It is true that most of the complaints which are now pursued were not advanced by him at the time – so that the College may have been justified in refusing to entertain an appeal – but the matters in question only became known to him when he received the College’s disclosure in March 2004. In these circumstances I think I must consider the alleged breaches on their merits – though the question of whether the Claimant could or should have complained earlier about the refusal of his appeal is a matter to which I return at paras. 32-36 below.[21]I accordingly turn to consider whether the five remaining heads of claim have any realistic prospect of success. That is of course the right test whether the College’s application is viewed as a striking-out application or an application for “reverse summary judgment” under CPR 24. I remind myself that I ought not to attempt to determine any serious live issue of fact which could only be properly determined by hearing oral evidence. (1). EXAMINERS MISLED AS TO THE NUMBER OF PAPERS FAILED[22]As noted above, the minutes of both examiners’ meetings – that is, the internal examiners and the Final Board - record the Claimant as having failed four units; and the print-out of his marks sent by the Academic Registrar on 23rd July 2001 (see para. 7 above) gave details of those failures. However, among the disclosed documents is a print-out produced at 9.58 a.m. on 28th June 2001 – i.e. on the morning of the internal examiners’ meeting – which appears to show him having failed in a fifth unit, namely Chiropractic Technique II, with a score of 48 (comprising 44 for the coursework and 53 for the exam): by contrast, the print-out subsequently supplied by the Registrar gave him 60 (with 64 for the coursework and 53 for the exam). It has been annotated in manuscript with a “w/d” in the column for “decision of the examiners”, which evidently stands for “withdraw”. The Claimant says that it is – to put it no higher – very probable that this was the document which was before the internal examiners on 28th June; and that if they had been given the true position they might well have recommended that he re-take the year rather than recommending outright expulsion. The minute of the meeting of course refers to only four fails; but Mr. Hartman points out that the minute is a formal document which in the nature of things is likely to have been written up some time later (the disclosed copy was printed in October 2001 and not signed until December 2001), and it may represent a tidied-up version of history. This alleged breach is pleaded at paras. A (a) (i) and B (e) of the Particulars under para. 11 of the Statement of Case (“the Particulars”).[23]The College is unable to explain the existence of the print-out of 28th June, save by saying that errors of this kind do occur from time to time and that there are procedures in place to pick them up. But it says that, whatever the explanation, any error had certainly been rectified by the time of the Final Board meeting, since the correct marks, showing only four fails, appear on a print-out dated 5th July 2001 which has a “F W/draw” in the final column (evidently “fail; withdraw”) and is signed by one of the external examiners. If it is right to infer that the earlier print-out was before the internal examiners, by parity of reasoning it is right to infer that this print-out was before the Final Board; and that is in any event the evidence of the current Registrar in a witness statement dated 30th October 2006.[24]I have to decide whether there is any real prospect that if this issue were considered at a full trial the Court would find that the Final Board reached its decision on a wrong basis. After careful consideration I do not believe there is. Realistically, the issue would have to be resolved on the documents: it is very unlikely that any of the examiners would have any independent recollection seven years after the event. As to the inferences to be drawn from the documents, there should in my view be a presumption that the minutes genuinely reflect the substance of the examiners’ deliberations (including the facts that were before them). That presumption might indeed, on the basis of the earlier print-out, be rebuttable as regards the first meeting. But in the light of the second print-out I see no real prospect of a finding that the Final Board was misled in any way. It is clear from the minutes that the Final Board did not merely rubber-stamp the recommendation of the internal examiners: they show that a substantial discussion took place, in which the decisive points made were different from those recorded on the earlier occasion.[25]I should mention under this head a different point raised by Mr. Hartman. He submits that the College should have considered whether to apply the “compensation” rule under reg. 7.4.2 (see para. 9 above) to the Claimant’s score of 48 for Behavioural Science. He relies on the fact that the Academic Registrar in her letter of 30th August 2001 said that that rule had been applied to his General Diagnosis score; and, although that was in fact the wrong rule, the Registrar’s observation demonstrated that the College had regarded the Claimant as an appropriate candidate for the compensation rule. This submission seems to me misconceived. The fact that the Registrar wrongly identified reg. 7.4.2 rather than reg. 7.4.1 as the applicable rule in explaining why the Claimant had passed General Diagnosis says nothing about whether the Board could or would have applied it to his Behavioural Sciences score. Whether it was appropriate to do so would be a matter of pure academic judgment. It is hardly surprising that it was not considered appropriate, given the Claimant’s history and his other results. (2). ZERO MARK IN RESEARCH IN CLINICAL PRACTICE[26]At para. A (a) (ii) of the Particulars, and again at paras. B (d) and C (ii) (b), the Claimant complains of being given a mark of “0” on one of the components in his coursework on Research in Clinical Practice: the recorded mark of 33 is the product of marks of 0 and 65 on the two papers which he submitted. He says that such a mark is perverse and cannot represent a bona fide exercise of academic judgment. I have been shown the paper and the comments of the tutor marking it. These show quite clearly that the tutor reached a reasoned conclusion that the paper submitted, which was supposed to be the write-up of an experiment using statistical analysis, simply failed “to communicate your findings to others in a form that they can understand”: looking at the paper, it is not necessary to have an understanding of statistical method to see that this was a conclusion which was open to him. I do not therefore think that it is even arguable that the mark was perverse or given in bad faith. It may have been harsh, but that is another matter: once it is established that the mark was given in the exercise of a bona fide academic judgment, it is incapable of being challenged in this Court (and also, under the appeal regulations, by way of internal appeal). I note that a challenge to a mark of zero was held to be non-justiciable on essentially these grounds in Clark (see per Sedley LJ at pp. 1992G - 1993A). (3). MISSING MEDICAL INFORMATION[27]On 1 June 2000 - that is, at the end of year 2 - the Claimant’s doctor wrote a short note for the attention of the College saying:
“This young chiropractic student has just registered with us and is under investigation for elevated blood pressure.”
The Claimant says that he supplied this note to the College; but it does not appear on his personal file as disclosed, and he complains that it must have been lost - see paras. A (d), B (f) and C (i) (f) of the Particulars. Even if this is the case, I am unable to see that the loss has any significance whatever. The Claimant does not say that he was suffering from, still less that he sought to draw to the examiners’ attention, any medical condition which might have affected his performance in year 3; nor when he sought to appeal did he raise any question about his health. I would add that nothing in the note, or in the GP notes which I was also shown, suggests that the Claimant was in fact suffering from any medical condition that might have affected his performance. (4). ACADEMIC PROBATION[28]The minute of the meeting of the Final Board quoted at para. 3 above records that the Claimant “had been on academic probation due to poor performance and that there had been no improvement over the academic year”. However, that is not accurate. A note of the meeting of the “course team” in January 2001 (i.e. about half-way through year 3), disclosed by the College in these proceedings, records two comments about the Claimant. Reporting on the teaching of chiropractic technique Dr. Thorkeldsen reported that he had failed his first viva and his first re-sit from year 2 and expressed a more general concern about him. A further passage in the note reads as follows:
“MW [Mark Warren] had particular concerns for P Moroney (see note attached). It was felt that he did not have the ability to cope with increasing academic demands. MW recommended that this student be placed on academic probation. This point was discussed among the team but it was decided that academic probation would not apply in this case and the student should proceed on his own merit.”
Neither counsel was able to explain to me exactly what is involved in “academic probation”, though the general idea is that students to whom it is offered get some additional help; nor was the “note attached” with my papers. But the important point is that it is clear that the Claimant was not put on academic probation in January, although the question was raised. Mr. Broatch accepted that the examiners’ minute was wrong. The Claimant says that the misinformation given to the Final Board constitutes a material irregularity: see para. B (a) of the Particulars.[29]It is impossible at this distance of time to know whether the inaccuracy was a mistake of the note-taker – i.e. that he or she had misunderstood a reference in discussion to the fact that academic probation had been considered earlier in the year – or a mistake in what the examiners were in fact told. I think the former is the more probable. Dr. Thorkeldsen (to whose encouragement the Claimant paid particular tribute in his correspondence) and Dr. Warren, who was the Claimant’s personal tutor, were both examiners, and it would be surprising if they had misremembered what had been agreed at the meeting in January six months earlier. But for present purposes I will proceed on the basis that the Claimant might be able to establish at a trial that the examiners were indeed mistaken.[30]The question on that basis is whether that (assumed) mistake in what the examiners were told was capable of amounting to a material irregularity such that the College was in breach of contract. I have, again, considered this with particular care because the issue is in principle one of fact; but I have come to the clear conclusion that it was not. The Claimant may not have been actually put on academic probation; but what matters is that his performance was clearly considered sufficiently poor to merit it. This is indeed confirmed by a further note in the papers, dating from 6th June 2001, which reads as follows:
“Philip Moroney – Has failed three attempts on his first viva and two attempts on his second. It was commented that he has had a lot of chances but is not using them effectively. During GD [General Diagnosis] classes he acts as though he has never attended a class. He is also very poor in Morphology and physiology and will presently fail if he continues the way he is going.”
The fact is that it is clear beyond doubt that the general and genuine view of the course team (which cannot as a matter of academic judgment be challenged in these proceedings) was that the Claimant was badly under-performing in year 3, as he already had in year 2. That view was of course confirmed by his results. In those circumstances I do not regard it as conceivable that the outcome would have been any different if the Final Board had been told not that he had been on academic probation but that he had been considered for it but in the end left to “proceed on his own merit”. It must be recalled that Dr. Warren and Dr. Thorkeldsen, who were both examiners, had had particular and first-hand experience of his work. (5). UNEQUAL ACCESS TO PAST EXAM PAPERS[31]Para. C (i) (f) under the Particulars is peculiarly opaque in its expression. It reads as follows:
“Wrongly distorted the academic results adverse to the Claimant which arose from acquiescence by and/or condoning by the Defendant to access by some students to and the use of past exam papers compared with others, including the Claimant, who were not provided with such access either by the Defendant or at all.”
But I was given by Mr. Hartman to understand that this referred to a complaint by the Claimant that some of the past exam papers which were available to students in the College’s library went missing in the course of the year and were not replaced despite requests; and that he was disadvantaged by not having access to them as compared with other students who had consulted them at an earlier stage. Even if this complaint had some foundation – which I am unable to judge – I do not see how it could constitute a material irregularity in the conduct of the assessment. (I would add that, even if it could, it is plainly a matter which would most appropriately be raised by way of appeal and I note that it was not among the matters of which the Claimant sought to complain in his letter of 15th August 2001.)

DELAY/ABUSE

[32]For the foregoing reasons I have reached the conclusion that the claim has no reasonable prospect of success and that Judge Boggis was right to strike it out, although I have reached that conclusion on rather different grounds than his. But in case I am wrong I should also consider a further point raised by the College by way of cross-appeal. In Clark Lord Woolf MR held that, although it was not as such an abuse of process for a student to advance a complaint against his university by way of a claim in contract rather than by way of judicial review, it might nevertheless be an abuse if there were undue delay. He said, at para. 35:
“While to commence proceedings within a limitation period is not in itself an abuse, delay in commencing proceedings is a factor which can be taken into account in deciding whether the proceedings are abusive. If proceedings of a type which would normally be brought by judicial review are instead brought by bringing an ordinary claim, the court in deciding whether the commencement of the proceedings is an abuse of process can take into account whether there has been unjustified delay in initiating the proceedings.”
He also said, at para. 39:
“What is likely to be important when proceedings are not brought by a student against a new university under Order 53, will not be whether the right procedure has been adopted but whether the protection provided by Order 53 has been flouted in circumstances which are inconsistent with the proceedings being able to be conducted justly in accordance with the general principles contained in Part 1. Those principles are now central to determining what is due process. A visitor is not required to entertain a complaint when there has been undue delay and a court in the absence of a visitor should exercise its jurisdiction in a similar way. The courts are far from being the ideal forum in which to resolve the great majority of disputes between a student and his or her university. The courts should be vigilant to ensure their procedures are not misused.”
[33]Mr. Broatch submits that Lord Woolf’s observations clearly apply to the present case. The fact is that if this claim had been permitted to proceed before Judge Boggis the Court would have had to determine issues, more than six years after the events to which they related, which could have been determined within a year if prompt proceedings had been brought for judicial review. If the Claimant had brought immediate proceedings for judicial review it is at least on the cards that if the claim had succeeded he could have re-taken year 3 (albeit after an interval of a year); whereas he is now constrained to accept that that is unrealistic and seeks instead damages for his lost career chances. Compensation of that kind is plainly a secondary remedy only and could not and would not have been the object of judicial review proceedings if they had been brought promptly.[34]Mr. Hartman responds that until March 2004 the Claimant was unaware of two of the main points on which he now relies – those considered under heads (1) and (4) above – because of the withholding of relevant documents. But in my view that is not an adequate answer, for at least two reasons. First, if he had brought judicial review proceedings promptly, based on the College’s refusal of an appeal and on those grounds of which he was already aware, he could in principle have obtained in those proceedings the selfsame disclosure which he eventually obtained in the present proceedings. Secondly, there has been very substantial and unjustifiable delay even in these proceedings. They were, as noted above, not commenced until September 2003, over two years after the Claimant’s expulsion, and were at that stage limited to pursuing his claim under the 1998 Act. When the Claimant received the disclosure on which he now relies under heads (1) and (4), it took him a further two years to formulate the claim on which he now seeks to proceed: it was not until a letter dated 10th March 2006 that he first sought to advance any claim for breach of contract, and the claim was not fully articulated until a further letter dated 20th June 2006.[35]Mr. Hartman submits that it is not open to the College to complain of delay now since it had made no application to dismiss the proceedings earlier. But I do not see that that can be a reason for allowing them to proceed if they constitute an abuse.[36]Taking those matters together, I think Mr. Broatch’s submission is correct. I would accordingly dismiss the appeal even if I believed that there were some realistic prospect of success on at least some of the Claimant’s complaints.

Cited in 3 later judgments