Aggrieved student wins right to challenge degree grade in full trial

9 December 2016 by Rosalind English

Siddiqui v University of Oxford [2016] EWHC 3150 (5 December 2016) – read judgment

This case raises the interesting question of whether a disappointed graduate may call upon the courts to redress a grievance concerning the grade he was given for his degree; not just what his ground of claim should be, but whether this is the kind of grievance which should be navigated through the courts at all. There are some matters which are arguably non-justiciable matters of academic judgment.

The facts of the case may be summarised briefly. The claimant is a former history student at Brasenose College, Oxford. The defendants are, or the defendant is, collectively, the Chancellor, Masters and Scholars of the University of Oxford. The defendant is referred to throughout as the University.

The claimant sat his final examinations in June 2000 and obtained an Upper Second Class Bachelor of Arts Honours degree in history. His claim against the University was for damages for negligent teaching leading, he alleges, to him failing to get a higher 2:1 or a first class degree which, he said, he would otherwise have achieved.

The University applied to strike out the claim and/or for summary judgment on the ground that it was hopelessly bad on the merits and also plainly time barred.

Background facts

The claimant joined the College in October 1997 as an undergraduate student. He showed signs of distress in February 1999, which were noted by his tutor, Dr Martin Ingram of the College. According to Dr Ingram, this did not lead to any suggestion that he should seek any special treatment on medical grounds when it came to examinations, which were then some time away.

In most undergraduate teaching these days, much of the requisite reading matter is reduced to excised and copied passages, or “gobbets”, from the volumes relevant to the topic, in this case the influence of Ghandi and the civil disobedience campaigns in India and British imperial responses to these challenges during the early 20^th century. One of the claimant’s fellow students, Sasha Blackmore, complained that the teaching around the “gobbets” for the course India, 1916-1934: Indigenous Politics and Imperial Control had been under par. This student did however proceed to a First Class Degree, and her complaint only came to the knowledge of the claimant some years later.

The claimant suffered from hay fever at the time of the examinations, which take place at the peak of pollen-borne allergens in the early summer. This is an annual curse, affecting many candidates, of the timing of examinations. The doctor’s certificate noted his various symptoms. In due course, the claimant was awarded an Upper Second Class BA Honours degree or, in more colloquial language, he a got a 2:1. His marks in individual examination papers ranged quite widely. In the two ISS papers, his marks were towards the bottom of that range, and in one he scored his lowest mark of all. The claimant’s college tutor noted hat the medical evidence was considered but he did not think it had affected the overall classification.

It subsequently turned out that his marks were lifted from a 2:2 to a 2:1 due to the medical evidence regarding his hay fever.

Ms Blackmore’s complaints were taken seriously by the University. It was acknowledged that the course on Indian Indigenous Politics under British rule was understaffed and that too many students per tutorial had made the workload of the tutor involved “intolerable” (his words). The matters raised by Ms Blackmore came before the board of the Teaching Committee of the Faculty on 17 October 2000. The complaint was noted; the committee noted that some of the issues raised related to “college and tutorial teaching”, while the issues relating to “the role of gobbets within the syllabus” would be considered “during the review of the Special Subjects scheduled for 2001/2”.

In the meantime, the claimant wrote to his tutor wrote to Dr Ingram. He was disappointed with his 2:1. He also explained that he was looking for jobs in the world of law and accountancy where employers often demand a breakdown of results. He sought a “clerical recheck” in time for a deadline he understood was shortly to expire. He said he would “probably not take this matter any further after the clerical recheck”.

Some years later, the claimant was applying to take a “tax LLM” course at King’s College, London, with the objective of becoming a barrister specialising in tax law. Once again, he was in email correspondence with Dr Ingram asking for a reference. In an email of 13 May 2009, he asked Dr Ingram to include in it a statement to the effect that his degree classification had not represented “a fair outcome of my abilities”, as the claimant had, he said, had “family related problems and ill health at the time of my finals” which had caused him to underachieve.

Issues before the Court

The claim was finally brought in 2014, and the University applied to have it struck out. The questions before Kerr J were whetherthe claim had a real prospect of success which was more than merely arguable, in respect of each of the two “limbs” of the claim. The first limb could broadly be described as inadequate or insufficient teaching; the second could broadly be described as the mishandling of medical information about the claimant. As to limitation, the question became whether there is a real prospect, which is more than merely arguable, that at trial the claimant would succeed in establishing that the claim is not barred by the provisions of the Limitation Act 1980.

Claims for negligent educational provision can take various forms. The judge described them as “notoriously difficult to win”, but that has been held not to be a good reason for excluding the existence of duty of care.

1. The first category is a claim which asserts a breach of a duty owed in tort or contract arising in the exercise by the defendant’s professional teaching staff of academic judgment. An example would be a decision to award a particular grade to a student sitting an examination. Such a claim is not justiciable as a matter of law, and is therefore liable to be struck out (see e.g. Clark v. University of Lincolnshire and Humberside [2000] 1 WLR 1988
2. The second category is that of claims which allege the use of negligent teaching methods, in the devising of courses or the means of acquainting students with the educational content of the courses that are being taught. Such claims can be actionable in principle; see the appeals heard together in Phelps v. Hillingdon London Borough Council [2001] 2 AC 619, per Lord Slynn at 653F-654B. However, because the claimant’s attack is on the competence of the defendant’s performance in the exercise of skill and care in a profession, the merits of the claim must be assessed by reference to the Bolam test. This test is derived from the medical context and asks whether  “the defendants, in acting in the way they did, were acting in accordance with a practice of competent respected professional opinion”; that is to say, “in accordance with a practice accepted as proper by a responsible body of … men skilled in that particular art.”
3. The third category of claim could be described as one founded on simple operational negligence in the making of educational provision. Again, hypothetical examples would include administrative error leading to a student sitting the wrong examination paper, containing questions about which the student had received no tuition; or where classes are cancelled due to non-availability of teaching staff; or a case where a teacher was habitually drunk or asleep during classes.

The Court’s Decision

Kerr J concluded that the merits of part of Mr Siddiqui’s  claim had a real prospect of success and were properly for the trial judge to determine. It was not inappropriate, as the defendant argued, to rely on Ms Blackmore’s evidence even though she was not a witness in the case; her letter of complaint was admissible as evidence of the dissatisfaction of the author, whether or not it was admissible as evidence of the correctness of what she alleged. The University’s documentary response to the complaint was plainly admissible as evidence of negligence.

The pleaded case plainly includes the propositions that the University did not provide adequate teaching; that it was aware it lacked sufficient teaching staff to teach the course properly; and that it did not do enough, or indeed anything, to make good the deficiency

 Some of the matters pursued in this claim might need expert evidence addressing the Bolam test. But that was not the gravamen of the claim; it focussed on the insufficiency of teaching capacity and the alleged failure to remedy that.

As such, the claim looks to me more like one of alleged mis-delivery or under-delivery of course teaching, rather than an attack on a conscious choice of teaching style.

Expert evidence was not essential to the claim. Even in a claim where what is criticised is a style of teaching, a claimant may not need expert evidence if the defendants’ witnesses of fact, who are also experts, chastise themselves, or each other, or the defendant, on some of the very issues raised in the claim. That was  a matter not for the judge hearing a strike out application but for the trial judge.

As for the part of the claim where Mr Siddiqui alleged that no or inadequate steps were taken to address his medical condition, the judge felt that he would fail under this head for want of any breach of duty. The medical certificate relating to hay fever showed that the tutor in question was able to deal appropriately with medical conditions. But he did not think it right to determine summarily the issue of breach of duty in relation to this part of the claim. It passed the test of having a real prospect of success, even though it did not at this stage “appear particularly strong”.

As for the argument on limitation, the defendant pointed to the fact that the claimant had the requisite knowledge of how he had been taught on the ISS course by 2000, and that the claim was only taken fourteen years later. Kerr J found that a trial judge might well decide that the claimant’s perception about the poor teaching of the gobbets paper was not enough to make it reasonable for him to begin investigating whether to pursue a claim against the University; that it was not enough to amount to a firm subjective belief that his condition was capable of being attributed to that poor teaching, such as to warrant seeking legal advice on the issue. Therefore he did not fall foul of the limitation rules, and that his state of knowledge may well have only crystallised less than three years before taking the claim.

in so far as the gravamen of the claim is the University’s failure to act on its knowledge of the unavailability of teaching staff, the claimant may not have known about that unavailability, and about the University’s advance knowledge of that unavailability, when he sat his finals and was awarded his degree.

The Limitation Act issues should, in other words, be left to a trial judge to determine.

I am satisfied that the University has a case to answer that is fit for trial in relation to both limbs of the claim for damages; and that the claimant has a real prospect of succeeding in persuading the court to entertain his claim, either on the basis that it is not out of time, or by persuading the court that it is just and equitable to allow the action to proceed, exercising the power under section 33(1) of the 1980 Act to disapply the primary three year limitation period.

The judge therefore refused the defendant’s application for summary judgment and directed that the case be set for trial as soon as possible.