IN THE HIGH COURT OF JUSTICE NO: CO/1415/98

CROWN OFFICE LIST

Royal Courts of Justice

Strand

London WC2

Thursday 7th May 1998

B e f o r e:

MR JUSTICE FORBES

R e g i n a

v

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

EX PARTE LAKAREBER

ComputerAided Transcript of the stenograph notes of

Smith Bernal Reporting Limited,

180 Fleet Street, London EC4A 2HD

Telephone No: 071 421 4040 Fax No: 071 404 1424

(Official Shorthand Writers to the Court)

MISS J LAKAREBER appeared in person

MISS J TRACYFORSTER (instructed by Eversheds, London EC4V 4JL) appeared on behalf of the University of Portsmouth as an interested party

J U D G M E N T

(As approved by the Court)

7th May 1998

MR JUSTICE FORBES: This is an application for leave to move for judicial review in respect of a decision of the University, said to have been made on 10th March 1998, whereby the University refused to review its decision to demote the applicant from studying pharmacy as a student at the University in year three.

The way in which reference is made to the decision in the Form 86A is somewhat misleading. The reality is that the decision which it seeks to impugn is the decision of the University of 15th September 1997, whereby the University decided that the applicant had failed her resits in two units of her second stage examinations and that she must repeat those two units in the academic year 1997 to 1998 as a parttime student. That decision was communicated to the applicant very shortly thereafter. However, for the purposes of this application, I am content to refer to a letter from the University, dated 30th September 1997, written and signed by Dr John Wong, who is the chairman of the Referral Board of Examiners for the BSc (Honours) Pharmacy Degree Course. That letter contained the following information:

"Dear Miss Lakareber

"Re: BSc (Hons) Pharmacy Stage II Examination Results

"Further to our meeting, I hereby certify that you have failed the course work components of The Pharmacy Law and Ethics unit and Consolidation of Dispensing Practice Unit. The decision of the Board of Examiners is that you cannot proceed to Stage III of the course. You are required to resit, as the final attempt, the course work components of these failed units by attendance in academic year 1997/1998 i.e. attend all the practical classes and practical assessments of Pharmacy Law and Ethics in Semester 1 and practical classes and practical assessments of Consolidation of Dispensing Practice in Semester 2. You are not allowed to proceed to Stage III until you have passed these two units."

In the period which followed, efforts were made by Miss Lakareber and others, to whom she had turned for help, including solicitors M U Samuel Egole & Co and another firm of solicitors, Attanayake & Co, to get the University to change its decision. Those efforts met with no success. The decision remained unchanged. Accordingly, the relevant date for the purposes of this application is, as I have indicated, 30th September 1997.

On behalf of the University, Miss TracyForster has submitted that this application has not been made promptly and, in any event, well beyond the three month limit prescribed in order 53 rule 4. I have invited Miss Lakareber to give reasons for the delay and she and Dr Adoko, who spoke briefly on her behalf on the same point, have made the following principle points by way of explanation.

Dr Adoko submitted that the effective date for decision was the apparent final refusal of the University to review or change its original decision, which is the date given in the form 86A, namely March 1998. In addition, Miss Lakareber told me that she had tried to resolve the problems by exhausting all other avenues of appeal and enquiry. She said that she had met with little assistance from the University and had become exhausted and ill as a result. She had returned to London and had had to go to hospital. She claimed that she had only finally been able to issue the application once she had felt well enough to do so and after she had managed to get to grips with the legal difficulties and procedural problems of this type of litigation.

I have listened to the various explanations put forward by and on behalf of Miss Lakareber in this regard, but I am not persuaded that there is any sufficient or good reason so as to justify extending time for the making of this application. I am fortified in that conclusion because during the period after 30th September 1997 and up to the date of the issue of these proceedings on 8th April 1998, Miss Lakareber had been represented by two different firms of solicitors who were in a position to give her appropriate advice about the need to institute proceedings such as these promptly. No explanation is forthcoming from either firm or from Miss Lakareber as to why proceedings were not issued promptly, other than the misconceived point of Dr Adoko that the relevant decision was March 1998.

For those reasons, I am not persuaded that this is a case in which it would be appropriate to extend time for the making of this application and accordingly I refuse to do so.

However, I also propose to make a few short observations about the underlying merits of the application. I have read the papers and considered carefully Miss Lakareber's submissions as to why the decision of the University was one which is unlawful or irrational or otherwise subject to challenge in these proceedings. Miss Lakareber was a student at the University of Portsmouth, reading for an honours degree in BSc Pharmacy. She had progressed as far at the Stage II examinations. In July 1997, it appears that she passed all the relevant units in her second year course except two particular units, namely the course work components of the Pharmacy Law and Ethics unit and the Consolidation Of Dispensing Practice unit. She was referred in each of those two units, as a result of her failure to pass the relevant course work element.

It appears that Miss Lakareber's examination results were sent to her in July 1997. She was, together with another student who was similarly referred, given the opportunity to take the two referred subjects at examinations held for that purpose on 1st and 2nd September 1997. She duly resat the examinations, but unfortunately she failed again. It is important to note that the examinations were carried out under the supervision of an external examiner.

Since Miss Lakareber had failed to pass the two referred subjects, it was necessary for the University to decide how her studies could properly be progressed. She was not entitled to take the final examinations for her degree, unless and until she had passed all the relevant units in her second year course. The decision which was made was that set out in the letter of 30th September 1997, to which I have already referred and from which I have already quoted. In effect the University, as it was fully entitled to, offered her a final opportunity to resit the two units which she had failed, during the course of the current academic year 1997/1998.

It appears that Miss Lakareber arranged to speak to Dr Hunt of the School of Pharmacy, to discuss her failure and the proposals for resitting the units and spoke to him on 16th September 1997. A suitable timetable was proposed to enable her to attend appropriate classes during the course of the current academic year. She had a further meeting with Dr Hunt and her personal tutor, Mr Syms, on 17th September 1997. Despite the explanations which had been given to her, she failed to attend on 24th September 1997 at the beginning of the academic year. Instead, on 26th September, she attended at the offices of the School of Pharmacy seeking enrolment as a third year student. It appears that, in error, a member of staff did provide her with an enrolment form for year III. The applicant paid the enrolment fee and considered herself therefore, by reason of that and the fact that she had passed all but two of the units of her Stage II examinations, to be properly enrolled as a third year student at the University. Thus it is that the Form 86A makes reference to her being demoted from the third year. The truth of the matter appears to be that she never had qualified for the third year and the University had made every effort to encourage and help her to pass the outstanding units in which she had been referred in July.

I have considered the various matters put forward by Miss Lakareber, both in the course of her oral argument and in the papers she submitted in this application. I have come to the firm view that there is no arguable basis upon which the decision making processes of the University can be impugned in this case. As it seems to me, the University has taken every possible step that it could to help and encourage Miss Lakareber to deal with the outstanding matters from Stage II of her course, so as to enable her to go forward and complete her studies for Stage III. It is sad to reflect upon the fact that Miss Lakareber felt it appropriate to make allegations of fraud and conspiracy against Dr Hunt and possibly other members of the University who have had dealings with her education and examinations. I feel it only appropriate to say that nothing which I have seen in the papers or have heard in the course of the arguments presented to me reveal even the slightest basis for any such allegations. As it seems to me, those allegations are wholly without foundation and it would have been better had they not been made at all. For all those reasons therefore this application is refused.

MISS TRACYFORSTER: May I make an application for the University's costs against the applicant? Although not formally named as a respondent in this application, we have attended, costs have been incurred in correspondence and so forth, and we suggest that it was a wholly unmeritorious application. Although I appreciate that the applicant is an applicant in person, to any extent that she may have been encouraged by her former solicitors to make this application she has recourse against them. It was an entirely inappropriate application to make.

MR JUSTICE FORBES: In this case, of course, Miss TracyForster, the reason why you are here is because I directed that you should be given the opportunity to be here. I very much doubt that Miss Lakareber would have initiated that had it not been for me. In all the circumstances I think that this is not an appropriate case for ordering costs against the applicant. I am, however, grateful for your attendance.