Clark v University of Lincolnshire and Humberside

A student’s contract with a statutory university without a Visitor is justiciable where the claim concerns compliance with contractual rules. Courts will not, however, determine matters requiring academic or pastoral judgment, such as the mark or degree classification that ought to be awarded.

A contractual claim with a public-law dimension need not be commenced by judicial review. The court must instead decide whether, in all the circumstances, including unjustified delay and the effect of the Civil Procedure Rules, the chosen procedure abuses the court’s process. Reasons given when refusing permission to appeal are not binding precedents, although they may have persuasive value.

The appellant was a student at the respondent statutory university. After losing her examination work, she submitted material which led to an initial finding of plagiarism and a mark of zero. The plagiarism finding was later abandoned, but the zero mark was maintained. She resat her examinations and received a third-class degree.

She brought a contractual claim in the Halifax County Court. The university obtained an order striking it out as non-justiciable. On appeal, the claimant was permitted to amend her case to allege that the Academic Board had not complied with the Governors’ Appeal Committee’s remission and that the resit had been treated as permitting no award above a third-class degree, contrary to the Student Regulations.

The central issues were whether those allegations were suitable for judicial determination and whether using a contractual action, rather than judicial review, was an abuse of process.

Appeal allowed unanimously. Lord Justice Sedley gave the principal judgment. Lord Justice Ward agreed. The Master of the Rolls agreed and added observations on the effect of the Civil Procedure Rules.

1. The relationship between a fee-paying student and this statutory university was contractual. Unlike a university subject to a Visitor, the respondent had no Visitor with exclusive jurisdiction. The court could therefore adjudicate an alleged breach of the university’s contractual rules.

   That jurisdiction did not extend to academic or pastoral judgments. The court could not decide what mark, degree classification or aegrotat award a student ought to receive. The original pleading was therefore rightly struck out because it challenged academic judgment. The amended allegations concerned compliance with a remission decision and the construction and application of Regulation 6.5.4. They were contractual issues capable of adjudication.

2. A public-law dimension and the availability of judicial review did not make a contractual action automatically abusive. The court distinguished the rigid procedural consequences urged from O'Reilly v Mackman [1983] 2 AC 237. The relevant question was whether the claimant had misused the court’s process in all the circumstances.

   The Civil Procedure Rules enabled the court to address procedural unfairness without a categorical bar on contractual proceedings. Delay, the evasion of judicial-review protections, the nature of the relief and the prospect of worthwhile relief could justify a stay or summary disposal. On the amended issues, and after the parties’ agreement to explore resolution, it was not proper to strike out or stay the action for abuse.

3. Brief reasons given by the Court of Appeal when refusing permission to appeal are not binding authority. At most, they have persuasive weight.

The action was restored and stayed, with liberty to apply, in accordance with the parties’ written agreement. No order for costs was made in this court or below.

• Court of Appeal (Civil Division) — Allowed the appeal. The court held that the amended contractual allegations were justiciable, restored the action and stayed it with liberty to apply.
• Halifax County Court — His Honour Judge Walker struck out the contractual claim on the basis that alleged contractual breaches by a university were non-justiciable.