SIDDIQUI V UNIVERSITY OF OXFORD [2016] EWHC 3150 (QB)
FACTS:-
The Claimant was a former history student at Brasenose College, Oxford. He sat his finals in June 2000 and obtained an Upper Second Class Bachelor of Arts Honours degree in history. He claimed against the University for negligent teaching leading to his failing to get a higher 2 :1 of a first-class degree, which he said that he would have otherwise achieved. The Claimant referred specifically to poor teaching of one part of the course, in large part due to unavailability of sufficient teaching staff at the time. He also alleged that the University inadequately handled certain medical information about him, with the consequence that it was not passed on to the right people and acted upon. 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.
JUDGEMENT:-Mr Justice Kerr went over the facts of the case. 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. According to that tutor, 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 Michaelmas term 1999, the Claimant and others took the Indian Special Subject (ISS) as part of their history course. The ISS covered the influence of Ghandi and the civil disobedience campaigns in India and British imperial responses to these challenges during the early 20th century. The course was taught in a weekly documents class and supporting tutorials, supplemented by an eight-week lecture course. In May and June 2000, the Claimant sat his final examinations, including two papers on the ISS course, of which one required him to write about gobbets. A medical certificate called "Form 1" dated 27 June 2000 appeared to show that he sat examination papers on 30 May and 8 June 2000, both in the afternoon. The Form 1 stated that his medical condition would have affected his performance in "all" examinations, "but particularly" the two taken on 30 May and 8 June respectively. At the time, he was suffering from hay fever. The Claimant sat all the examinations including the two ISS papers. 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. Evidence was given by another student, who achieved a First Class degree of complaints that she had made about teaching on the ISS course. The complaints related to the quality of the classes and the tutorials. There was an issue between the parties as to whether what she was complaining about, or parts of it, were non-justiciable matters of academic judgment. Kerr J said that at any trial, that would be an issue for the trial judge. She complained that only one tutor had to teach all 16 of the students. She complained of what she perceived as his disengagement and indifference. She had, she said, even "facilitated an informal India Special Subject discussion group" among the students, as a sort of auto-didactic measure to make up for what she perceived as the shortfall in the quality of the teaching.
The Claimant’s medical condition was considered but his tutor had said that he did not think it had affected the overall classification. He described the result as "very respectable", and offered to help with writing references in future. The teacher who had taught the course in question said that he had had to do everything and his workload was "intolerable" and he had been given inadequate means to teach
On 15 December 2000, the Claimant wrote to the college to say that 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 demanded a breakdown of results. He asked for a re-check which confirmed the result but said he would "probably not take this matter any further”. On 24 October the Claimant emailed his college again. He had been unable to obtain a place at one of the top law schools in the United States of America. He complained again about the standard of the teaching of the ISS course.
In May 2009, 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. He sent his college tutor, a request for a reference. In an email of 13 May 2009, he asked the tutor 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.
In late 2013, the Claimant decided to pursue his complaint again. However the Defendant rejected the claimant's application to reopen the issue of his final grades. His solicitors then wrote a long and detailed letter before claim dated 19 June 2014 and the claim was issued on 26 August 2014. The matter then proceeded towards trial, and dates were fixed for a trial of the preliminary issues of limitation and liability. The present application was brought unusually late, on 8 July 2016, after disclosure and exchange of witness statements. As a result, the trial date was lost and, if the present application did not succeed, fresh trial dates would shortly be fixed.
The application was brought under CPR 3.4(2)(a) on the basis that "it discloses no reasonable grounds for bringing the claim" and CPR 24.2 on the basis that "on the evidence the claimant has no real prospect of succeeding on the claim and there is no other compelling reason the case should be disposed of at trial".
Kerr J said that he had to ask himself whether the 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 becomes whether there was a real prospect, which was more than merely arguable, that at trial the Claimant would succeed in establishing that the claim was not barred by the provisions of the Limitation Act 1980.
Kerr J said that claims for negligent educational provision were notoriously difficult to win, but that had been held not to be a good reason for excluding the existence of duty of care. In private law claims founded on tort or contract (as distinct from public law claims, normally brought by judicial review), the relevant principles were now reasonably well settled. Kerr J went over the different categories.
he first category was a claim which asserted 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 was not justiciable as a matter of law, and was therefore liable to be struck out (Clark v. University of Lincolnshire and Humberside [2000] 1 WLR 1988)
The second category was that of claims which alleged 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 were being taught. Such claims could be actionable in principle. (Phelps v. Hillingdon London Borough Council [2001] 2 AC 619). A Claimant advancing such a test would need expert evidence to satisfy the Bolam v. Friern Barnet Hospital Management Committee [1957] 1 WLR 582 test. Kerr J referred also to the case of Abramova v. Oxford Institute of Legal Practice [2011] EWHC 613 (QB), [2011] ELR 385.
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. In such a case, a court did not need expert evidence to accept the proposition that the required standard of professional skill and care had not been met. Kerr J referred to the case of Winstanley v. University of Leeds [2013] EWHC 4792 (QB).
The nature of the injury need not, as a matter of law be foreseeable but the possibility of injury of some description was surely foreseeable, or at least arguably so.
The Defendant did not dispute the above propositions of law. Their case was that the claim had no real prospect of success on its factual merits, in relation to either of its two limbs.
The first issue was whether the claim founded on allegedly negligent delivery of the ISS course had a real prospect of success on its merits. Kerr J preferred those of the Claimant. The pleaded case plainly included 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. In the light of that evidence, the merits of this part of the claim had a real prospect of success and were properly for the trial judge to determine.
There was an issue as to whether the claim was fatally flawed by the absence of expert evidence to support it. Kerr J said that it should be for the trial judge to say how much, if any, of the claim was unsustainable because it sought to raise challenges to the exercise of academic judgment or challenges to decisions about educational methods unsupported by expert evidence that these were negligent, applying the Bolam test.
The second issue was whether the claim was founded on alleged mishandling of medical information about the Claimant had a real prospect of success on its merits. Again Kerr J said that this aspect of the claim was also properly fit for trial, and had a real prospect of success (even though it did not at this stage appear particularly strong) if the Claimant's evidence was accepted.
The remaining issues related to limitation. The Defendant had submitted that the Claimant had no real prospect of establishing that the "date of knowledge" within section 14 of the Limitation Act 1980 fell less than three years before issue of the claim. Kerr J said that he could not be confident that the Claimant had no real prospect of failing on this test. A trial judge might well decide that the Claimant's perception about the poor teaching 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. It was difficult to apply the "date of knowledge" statutory provisions in the present context. They were no doubt crafted with more conventional forms of personal injury claim in mind. Claims by students against their former universities were notoriously difficult and rarely successful. The Claimant did not have much to go on, beyond his sense of grievance. Although the Claimant was not himself a lawyer, it was perhaps of some relevance that many solicitors, if approached about a potential claim in 2000, 2001 or 2009 with no more than an allegation of poor teaching of one part of a course, would have advised the Claimant not to waste his money. As regards the medical information limb of the claim, the Claimant did not obtain a copy of the medical certificate mentioned above, which is confined to medical evidence about hay fever, until less than three years before the issue of the claim. Kerr J referred to the case of Cave v. Robinson Jarvis & Rolf (a firm) [2003] 1 AC 384 where it was said that a Defendant in a deliberate concealment case must either take active steps to conceal its own breach of duty or must be guilty of deliberate wrongdoing and must conceal or fail to disclose it in circumstances where it is likely to remain undiscovered for some time. However Kerr J said that he found section 32 opaque and difficult to interpret. He accepted the construction of section 32(1) and (2) adopted by the court in Cave. Applying that construction, a deliberate commission of a breach of duty in circumstances in which it was unlikely to be discovered for some time is but one way of relying on the section. The Claimant had a real prospect of success at trial in meeting that burden. The Claimant might be right to say that the University was aware that it was acting wrongfully by providing the ISS course to as many as 16 students without the necessary teaching capacity, due to sabbatical leave, to make that a viable option. He might also be right to say that the University withheld from the Claimant that factual information relevant to his right of action, with the intention that he would not find out about the non-availability of teachers and withheld from him the University's prior knowledge of that, and its decision to
The final issue was whether the Claimant had a real prospect of persuading the court at trial that it would be just and equitable to disapply the primary limitation period and allow the action to proceed, pursuant to section 33(1) and (3) of the Limitation Act 1980
Kerr J noted that the pleaded particulars of injury included a significant exacerbation of the Claimant’s psychiatric condition as a result of the wrongs that he had suffered. The Claimant relied on the report of a psychiatrist, who said that he was suffering from chronic major depressive disorder with depression, pervasive low mood, loss of enjoyment, marked loss of energy, motivation, insomnia, poor concentration and anxiety. Those were matters that would be or could be considered relevant to the exercise of the court's discretion under section 33 of the 1980 Act. There had been cases where long extensions of time had been granted under section 33. It was not unrealistic or fanciful to suppose that this Claimant may persuade a judge at trial to allow this claim to proceed.
Kerr J bore in mind section 33 issues were often decided by way of a preliminary issue rather than adopting a summary process such as in this case rather than at strike out. He was firmly of the view that the issue ought to be determined with the benefit of oral evidence and cross-examination.
107.For those reasons, 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.
Kerr J would therefore decline to strike out the claim.
FACTS:-
The Claimant was a former history student at Brasenose College, Oxford. He sat his finals in June 2000 and obtained an Upper Second Class Bachelor of Arts Honours degree in history. He claimed against the University for negligent teaching leading to his failing to get a higher 2 :1 of a first-class degree, which he said that he would have otherwise achieved. The Claimant referred specifically to poor teaching of one part of the course, in large part due to unavailability of sufficient teaching staff at the time. He also alleged that the University inadequately handled certain medical information about him, with the consequence that it was not passed on to the right people and acted upon. 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.
JUDGEMENT:-Mr Justice Kerr went over the facts of the case. 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. According to that tutor, 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 Michaelmas term 1999, the Claimant and others took the Indian Special Subject (ISS) as part of their history course. The ISS covered the influence of Ghandi and the civil disobedience campaigns in India and British imperial responses to these challenges during the early 20th century. The course was taught in a weekly documents class and supporting tutorials, supplemented by an eight-week lecture course. In May and June 2000, the Claimant sat his final examinations, including two papers on the ISS course, of which one required him to write about gobbets. A medical certificate called "Form 1" dated 27 June 2000 appeared to show that he sat examination papers on 30 May and 8 June 2000, both in the afternoon. The Form 1 stated that his medical condition would have affected his performance in "all" examinations, "but particularly" the two taken on 30 May and 8 June respectively. At the time, he was suffering from hay fever. The Claimant sat all the examinations including the two ISS papers. 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. Evidence was given by another student, who achieved a First Class degree of complaints that she had made about teaching on the ISS course. The complaints related to the quality of the classes and the tutorials. There was an issue between the parties as to whether what she was complaining about, or parts of it, were non-justiciable matters of academic judgment. Kerr J said that at any trial, that would be an issue for the trial judge. She complained that only one tutor had to teach all 16 of the students. She complained of what she perceived as his disengagement and indifference. She had, she said, even "facilitated an informal India Special Subject discussion group" among the students, as a sort of auto-didactic measure to make up for what she perceived as the shortfall in the quality of the teaching.
The Claimant’s medical condition was considered but his tutor had said that he did not think it had affected the overall classification. He described the result as "very respectable", and offered to help with writing references in future. The teacher who had taught the course in question said that he had had to do everything and his workload was "intolerable" and he had been given inadequate means to teach
On 15 December 2000, the Claimant wrote to the college to say that 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 demanded a breakdown of results. He asked for a re-check which confirmed the result but said he would "probably not take this matter any further”. On 24 October the Claimant emailed his college again. He had been unable to obtain a place at one of the top law schools in the United States of America. He complained again about the standard of the teaching of the ISS course.
In May 2009, 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. He sent his college tutor, a request for a reference. In an email of 13 May 2009, he asked the tutor 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.
In late 2013, the Claimant decided to pursue his complaint again. However the Defendant rejected the claimant's application to reopen the issue of his final grades. His solicitors then wrote a long and detailed letter before claim dated 19 June 2014 and the claim was issued on 26 August 2014. The matter then proceeded towards trial, and dates were fixed for a trial of the preliminary issues of limitation and liability. The present application was brought unusually late, on 8 July 2016, after disclosure and exchange of witness statements. As a result, the trial date was lost and, if the present application did not succeed, fresh trial dates would shortly be fixed.
The application was brought under CPR 3.4(2)(a) on the basis that "it discloses no reasonable grounds for bringing the claim" and CPR 24.2 on the basis that "on the evidence the claimant has no real prospect of succeeding on the claim and there is no other compelling reason the case should be disposed of at trial".
Kerr J said that he had to ask himself whether the 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 becomes whether there was a real prospect, which was more than merely arguable, that at trial the Claimant would succeed in establishing that the claim was not barred by the provisions of the Limitation Act 1980.
Kerr J said that claims for negligent educational provision were notoriously difficult to win, but that had been held not to be a good reason for excluding the existence of duty of care. In private law claims founded on tort or contract (as distinct from public law claims, normally brought by judicial review), the relevant principles were now reasonably well settled. Kerr J went over the different categories.
he first category was a claim which asserted 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 was not justiciable as a matter of law, and was therefore liable to be struck out (Clark v. University of Lincolnshire and Humberside [2000] 1 WLR 1988)
The second category was that of claims which alleged 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 were being taught. Such claims could be actionable in principle. (Phelps v. Hillingdon London Borough Council [2001] 2 AC 619). A Claimant advancing such a test would need expert evidence to satisfy the Bolam v. Friern Barnet Hospital Management Committee [1957] 1 WLR 582 test. Kerr J referred also to the case of Abramova v. Oxford Institute of Legal Practice [2011] EWHC 613 (QB), [2011] ELR 385.
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. In such a case, a court did not need expert evidence to accept the proposition that the required standard of professional skill and care had not been met. Kerr J referred to the case of Winstanley v. University of Leeds [2013] EWHC 4792 (QB).
The nature of the injury need not, as a matter of law be foreseeable but the possibility of injury of some description was surely foreseeable, or at least arguably so.
The Defendant did not dispute the above propositions of law. Their case was that the claim had no real prospect of success on its factual merits, in relation to either of its two limbs.
The first issue was whether the claim founded on allegedly negligent delivery of the ISS course had a real prospect of success on its merits. Kerr J preferred those of the Claimant. The pleaded case plainly included 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. In the light of that evidence, the merits of this part of the claim had a real prospect of success and were properly for the trial judge to determine.
There was an issue as to whether the claim was fatally flawed by the absence of expert evidence to support it. Kerr J said that it should be for the trial judge to say how much, if any, of the claim was unsustainable because it sought to raise challenges to the exercise of academic judgment or challenges to decisions about educational methods unsupported by expert evidence that these were negligent, applying the Bolam test.
The second issue was whether the claim was founded on alleged mishandling of medical information about the Claimant had a real prospect of success on its merits. Again Kerr J said that this aspect of the claim was also properly fit for trial, and had a real prospect of success (even though it did not at this stage appear particularly strong) if the Claimant's evidence was accepted.
The remaining issues related to limitation. The Defendant had submitted that the Claimant had no real prospect of establishing that the "date of knowledge" within section 14 of the Limitation Act 1980 fell less than three years before issue of the claim. Kerr J said that he could not be confident that the Claimant had no real prospect of failing on this test. A trial judge might well decide that the Claimant's perception about the poor teaching 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. It was difficult to apply the "date of knowledge" statutory provisions in the present context. They were no doubt crafted with more conventional forms of personal injury claim in mind. Claims by students against their former universities were notoriously difficult and rarely successful. The Claimant did not have much to go on, beyond his sense of grievance. Although the Claimant was not himself a lawyer, it was perhaps of some relevance that many solicitors, if approached about a potential claim in 2000, 2001 or 2009 with no more than an allegation of poor teaching of one part of a course, would have advised the Claimant not to waste his money. As regards the medical information limb of the claim, the Claimant did not obtain a copy of the medical certificate mentioned above, which is confined to medical evidence about hay fever, until less than three years before the issue of the claim. Kerr J referred to the case of Cave v. Robinson Jarvis & Rolf (a firm) [2003] 1 AC 384 where it was said that a Defendant in a deliberate concealment case must either take active steps to conceal its own breach of duty or must be guilty of deliberate wrongdoing and must conceal or fail to disclose it in circumstances where it is likely to remain undiscovered for some time. However Kerr J said that he found section 32 opaque and difficult to interpret. He accepted the construction of section 32(1) and (2) adopted by the court in Cave. Applying that construction, a deliberate commission of a breach of duty in circumstances in which it was unlikely to be discovered for some time is but one way of relying on the section. The Claimant had a real prospect of success at trial in meeting that burden. The Claimant might be right to say that the University was aware that it was acting wrongfully by providing the ISS course to as many as 16 students without the necessary teaching capacity, due to sabbatical leave, to make that a viable option. He might also be right to say that the University withheld from the Claimant that factual information relevant to his right of action, with the intention that he would not find out about the non-availability of teachers and withheld from him the University's prior knowledge of that, and its decision to
The final issue was whether the Claimant had a real prospect of persuading the court at trial that it would be just and equitable to disapply the primary limitation period and allow the action to proceed, pursuant to section 33(1) and (3) of the Limitation Act 1980
Kerr J noted that the pleaded particulars of injury included a significant exacerbation of the Claimant’s psychiatric condition as a result of the wrongs that he had suffered. The Claimant relied on the report of a psychiatrist, who said that he was suffering from chronic major depressive disorder with depression, pervasive low mood, loss of enjoyment, marked loss of energy, motivation, insomnia, poor concentration and anxiety. Those were matters that would be or could be considered relevant to the exercise of the court's discretion under section 33 of the 1980 Act. There had been cases where long extensions of time had been granted under section 33. It was not unrealistic or fanciful to suppose that this Claimant may persuade a judge at trial to allow this claim to proceed.
Kerr J bore in mind section 33 issues were often decided by way of a preliminary issue rather than adopting a summary process such as in this case rather than at strike out. He was firmly of the view that the issue ought to be determined with the benefit of oral evidence and cross-examination.
107.For those reasons, 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.
Kerr J would therefore decline to strike out the claim.