IN THE SUPREME COURT OF JUDICATURE FC 98/6102/4

ON APPEAL FROM THE QUEEN'S BENCH DIVISION (CROWN OFFICE LIST)

(MR JUSTICE FORBES)

Royal Courts of Justice

Strand

London WC2

Friday, 16 October 1998

B e f o r e:

LORD JUSTICE SIMON BROWN

LORD JUSTICE ALDOUS

LORD JUSTICE CLARKE

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IN THE MATTER OF AN APPEAL FOR JUDICIAL REVIEW

REGINA

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THE UNIVERSITY OF PORTSMOUTH

Respondent

ex parte JANET LAKAREBER

Appellant

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(Computer Aided Transcript of the Stenograph Notes of

Smith Bernal Reporting Limited, 180 Fleet Street,

London EC4A 2HD

Tel: 0171 421 4040

Official Shorthand Writers to the Court)

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MRS U SOOD (Instructed by French & Co, 6 Derby Terrace, Nottingham NG7 1ND) appeared on behalf of the Appellant

MISS J TRACY-FOSTER (Instructed by Eversheds, Senator House, 85 Queen Victoria Street, London EC4V 4JL) appeared on behalf of the Respondent

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J U D G M E N T

(As approved by the Court)

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Friday, 16th October 1998

JUDGMENT

LORD JUSTICE SIMON BROWN: This is a renewed application for leave to move for judicial review. It arises as follows: the applicant is a 26-year-old citizen of Uganda who came to this country in 1989 and in December 1997 obtained indefinite leave to remain. In September 1995 she embarked on a three-year degree course in Pharmacy at the University of Portsmouth. Her first year went well; her second year, alas, less well. In July 1997, at the end of her second year studies, she was referred in, ie had to retake, two units or exams, the practicals respectively in Pharmacy Law and Ethics and in Consolidation of Dispensing Practice.

She sat those practicals on 1st and 2nd September 1997 but, according to her examiner Dr Hunt, she failed both of them. To cut a long story short, she then attended a number of meetings, variously with Dr Hunt, with the course leader Mr Hone, with the head of the School of Pharmacy at the university, Dr Smart, and with the Chairman of the Referral Board of Examiners for the Pharmacy Department, Dr Wong. These culminated in a letter from Dr Wong dated 30th September 1997 in these terms:

"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 a final attempt, the course work components of these failed units by attendance in academic year 1997/1998, ie attend all the 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."

The university handbook includes a section, section 9, which deals with the procedure for appeals. It provides (I summarise only very broadly) that if a student wishes to appeal he or she can do so on grounds inter alia of irregularity of procedures on the part of the board of examiners and provides by paragraph 9.2.4:

"When the Academic Registrar receives from the student concerned an appeal which meets the criterion . . . and is soundly based upon the grounds defined . . . she/he shall forthwith interview the student, in the presence of an independent member of Academic Council as assessor, to ascertain the basis of an appeal. A representative of the Students' Union or other friend may assist the student in this process and may accompany her/ him at this and any other subsequent interview.

If the Academic Registrar and the assessor agree that no prima facie case exists, the appeal fails, and the failure will be reported to Academic Council."

That course was followed. On 10th October 1997 the applicant submitted a lengthy written appeal and on 17th October she was duly interviewed for something over an hour by the academic registrar, Mr Rees, and by an independent member of the academic council, Mr Shurmer-Smith. On 22nd October 1997 Mr Rees wrote to her as follows:

"Thank you for attending the interview with Mr Shurmer-Smith and myself on Friday 17 October 1997.

Mr Shurmer-Smith and myself considered your appeal very carefully, including your responses to our questions, and investigated the records of the School of Pharmacy and Biomedical Sciences.

We have decided that no prima facie case exists and your appeal cannot, therefore, be taken any further under the University Regulations.

The decision of the Board of Examiners therefore stands and you must repeat the two units which you failed after referral.

Please make arrangements for this repeat study with the school of Pharmacy and Biomedical Sciences."

The applicant then referred her grievance to Miss Killick, the academic affairs officers for the student union, who took the matter up on her behalf with Dr McVicar, the Academic Pro-Vice-Chancellor of the university. He sent a letter to Miss Killick on 17th November 1989 which is, I think, worth setting out in full:

"I have now been able to look into this case in some detail. Miss Lakareber was on the second year of the BSc (Hons) Pharmacy programme in 1996/97. She was referred in two units: Pharmacy Law and Ethics and Consolidation of Dispensing Practice. She failed the two referral examinations in September 1997. The Board of Examiners for Pharmacy does not allow students to progress to the third year of their programme unless they have completed successfully all the units in the second year. She was therefore required to repeat those two units as a retake student on a part-time basis during 1997/8.

Miss Lakareber was sent her results after referral in the same manner as all the other students in her position and she was asked to contact the School to discuss her next steps. It is normal practice in the School of Pharmacy to interview students individually and to counsel them about their future on the course. Instead, Miss Lakereber presented herself to enrol on the third year of the course and was erroneously allowed to register. However, when this was discovered, she was advised that she could not begin the third year of the course and was interviewed by three academic staff in order to have the situation fully explained to her. In particular, it was explained to her that students are allowed to repeat a unit only once and that therefore any future failure would mean that she must withdraw from the course.

Miss Lakareber next contacted a solicitor who wrote to the School appealing against the Board of Examiners' decision. Appeals by solicitors are not allowed under the University's regulations so Miss Lakareber was contacted and requested to make her appeal in accordance with the regulations. She received extensive and lengthy advice from the staff in our Academic Registry during this process. Miss Lakareber was then interviewed by the Academic Registrar and a Dean of Faculty in accordance with procedures on Friday 17 October 1997. The interview lasted well over an hour and Miss Lakareber had every opportunity to present her case.

The basis for Miss Lakareber's appeal was as follows:

That the approved procedures for the conduct of the assessment were not properly followed.

On examination by the two senior staff involved, there was found to be no basis to substantiate her claim that she had been treated differently to other students in terms of the assessments.

The Board of Examiners was unaware of a significant factor relating to a candidate which might have affected the decision upon her performance.

Miss Lakareber claimed that the Board of Examiners was unaware of the panic attacks from which she had suffered and which caused her to consult a doctor in April 1997. The doctor advised her to consult the University Counsellor, but she did not do this. Miss Lakareber did not bring the doctor's letter to the attention of the Board of Examiners or to the Course Leader before either the summer board or before the resit board in September. It is the responsibility of students to bring these matters to the attention of exam boards.

Miss Lakareber's appeal was therefore turned down. Miss Lakareber has been advised that she should register as a retake student so that she may complete the second year assessments during 1997/98. The fee for a retake student is £330. She needs to register for the second year and to undertake this repeat study and assessments. The University has a duty to protect academic standards not least in those areas where the award of a qualification is also a licence to practice pharmacy with members of the public. There is a clear duty here to ensure that students understand safe practice and pass the necessary examinations set in order to ensure this. I do understand the financial problems faced by the student and the difficulty which she finds herself in. The University does have an advice centre to help students in financial difficulties which, as soon as she has registered, she will be able to use.

The best course of action therefore is for her to continue with her second year studies on the retake basis and to complete the assessments successfully, when she will be able to pass on to the third year."

Further explanatory letters were written to the applicant by Mr Rees, one on 5th December 1997 and another on 18th February 1998. The latter concluded:

"As a gesture of goodwill and as an expression of the University's concern about your future eligibility to study, I am willing to vary your fees so that you will pay no tuition fee this academic year for this study, but you must enrol immediately and by no later than 4:00 pm Friday 27 February 1998 [his emphasis] to take advantage of this offer."

None of this, however, could the applicant bring herself to accept. Instead she went to solicitors, first one firm and then another. Neither of those were, let me at once make plain, her present solicitors. The first solicitors, on 16th December 1997, wrote maintaining that she had not actually failed any exams or course work and asserting that there were breaches of procedure in handling her assessment right up until the appeal stage, and that in the result they had been instructed to lodge an application for judicial review although, as we shall see, no such challenge came for a further four months. The second firm of solicitors, on 16th February 1998, wrote what is to my mind a wholly disgraceful letter making allegations against the examiner, Dr Hunt, of "corruption and misfeasance" which the writer threatened to publish over the Internet.

Not until 8th April 1998 did the applicant lodge her application for judicial review, an application which came before Forbes J on 7th May 1998. The applicant was at that time acting in person, although the judge also heard representations on her behalf from a Dr Adoko, who had been described on her second solicitor's notepaper as a legal consultant. He sought to escape the obvious difficulty of the three month judicial review time limit by contending that it was only in March 1998 that the university finally refused to review or change its original decision. That plainly was a hopeless submission and the judge rightly refused to grant the necessary extension of time. He nevertheless turned to consider the underlying merits of the proposed challenge and concluded that there were none.

Before us today is the applicant's renewed application for leave, her case having at the twelfth hour been substantially recast following the final grant of a full legal aid certificate earlier this week. We are greatly indebted to Mrs Sood for her very considerable efforts, but for the reasons I shall give only very briefly she has to my mind failed to identify any failure on the university's part which could properly justify a legal challenge to what is essentially an academic judgment.

Nor can she successfully overcome the problems of delay in this case. True, it has now become plain that the decision under challenge is not, as the judge supposed, that of 30th September on the part of the referral board for examiners, but is rather that of the appeal body of 22nd October, a letter which the applicant did not even put before the Court below. But that still puts the challenge well out of time, and I am wholly unable to accept that the receipt of a full grant of legal aid can be said retrospectively to excuse that delay.

Mrs Sood has sought to rely principally upon the decision of this Court in R v Stratford-on-Avon District Council and Another ex parte Jackson [1985] 1 WLR 1319 in support of her proposition that delay may be excused by the time taken to obtain a legal aid certificate, but it is important to note the stringent terms in which the court accepted that view. At page 1324 it is said:

"We agree with Forbes J that it is a perfectly legitimate excuse for delay to be able to say that the delay is entirely due to the fact that it takes a certain time for a certificate to be obtained from the legal aid authorities and that, despite all proper endeavours by an applicant, and those advising her, to obtain a legal aid certificate with the utmost urgency, there has been some difficulty about obtaining it through no fault at all of the applicant."

Later in its judgment the court concluded:

". . . that the application for legal aid was approached by the applicant herself with the necessary sense of urgency".

The position here is entirely different. In the first place there is virtually no information in the papers as to what earlier efforts were made by the applicant to obtain legal aid. There are just bland assertions that her first two firms of solicitors were applying on her behalf. Secondly, the applicant knew full well at an early stage about the three month time limit and ultimately, indeed, started these proceedings without the benefit of legal aid. I would accordingly still refuse this application as being inexcusably out of time. I can think of no more obvious sort of case where, if any challenge is to be brought, it should be brought with the greatest celerity. Otherwise, as here, its essential purpose is in any event defeated. The whole of the academic year 1997/1998 has now on any view been lost to this applicant.

But I would say also that I agree too with the judge below that in any event the applicant fails to establish a properly grounded basis for a legal challenge. Only the clearest and most obvious unfairness or departure from the university's own regulations would justify an attempt by judicial review to impugn an academic decision of this character. It is important to recognise that what would have to be attacked here would be not the original marking of the resits or the original decision requiring the applicant to pass two outstanding units before proceeding to the third year of her course, but rather the decision by the appeal body. If, as here, the academic registrar and the independent member of academic council, having considered the student's detailed written appeal and listened to her for over an hour, conclude that there is frankly nothing in her grievance, this court will not readily hold such a decision to be erroneous in point of law. Despite all Mrs Sood's valiant efforts to demonstrate some legal error vitiating the appeal board's decision, I remain wholly unpersuaded that any properly arguable case arises here. I would accordingly refuse this application (a) because it is inexcusably out of time and (b) because it is wholly lacking in substantive merit.

LORD JUSTICE ALDOUS: I agree.

LORD JUSTICE CLARKE: I also agree.

ORDER: Application refused. Legal aid granted to the Applicant.

(Order not part of approved judgment.)