Jemchi v Visitor, Brunel University

Where a visitor provisionally decides in a student’s favour but then considers further evidence and may reverse that decision, fairness may require the visitor to offer an oral hearing. This is particularly so where the evidence is finely balanced and presentation or argument may materially affect the result. The visitor’s duty is to provide justice of a standard no less than that required by a court, although an oral hearing is not required in every case. Judicial review cannot challenge the intrinsic rationality of a visitor’s decision where Page precludes such a challenge. Convention rights and the Human Rights Act 1998 could not retrospectively support the proposed challenge to a pre-2 October 2000 decision.

The applicant was failed on Brunel University’s PGCE course after being said to have failed a repeat teaching practice. He appealed to the university visitor, who provisionally decided in his favour but invited further evidence from the university. After reconsidering the evidence, the visitor concluded that the applicant had failed.

Newman J refused permission to apply for judicial review, and Buxton LJ refused permission to appeal on the papers. The applicant renewed his application before the Court of Appeal. The central issues were whether fairness required an oral hearing before the visitor reversed his provisional decision, and whether Convention rights or the Human Rights Act 1998 could support a challenge to the pre-Act decision.

1. Permission and procedural route. The application for permission to appeal was granted in part under CPR 52.15(3), with permission to apply for judicial review instead. The proposed challenge was confined principally to whether, at common law, the applicant was entitled to an oral hearing.

2. Fairness. Although the applicant had contractual rights to fair and proper assessment, enforcement lay exclusively through the visitor. The visitor therefore owed a duty to afford justice of a standard no less than that required by a court. That did not mean that every case required an oral hearing. It did mean that an oral hearing had to be offered where the evidence was finely balanced and presentation or argument might make a critical difference. The circumstances disclosed a tenable argument that this threshold was met when the visitor considered departing from his provisional decision after receiving further evidence.

3. Limits of review. Page precluded, unless reconsidered in the light of the Convention, a challenge to the intrinsic rationality of the visitor’s decision. The applicant therefore had no realistic prospect of succeeding on the proposed argument that the evidence left the visitor no room to find against him.

4. Convention and retrospectivity. The Convention did not operate retrospectively. The legal continuity of judicial review proceedings did not create an independent retroactive right of review. Section 22(4) of the Human Rights Act 1998 could not, on its terms, cover proceedings brought by the applicant in reliance on a pre-October 2000 public-authority decision. The section 6 arguments were also closed by the majority decision in Lambert.

5. Further issue. The respondent remained entitled, if appropriate, to object that the application was out of time. The case was to proceed as an application for judicial review.

• Court of Appeal (Civil Division): [2001] EWCA Civ 1208. On a renewed application, permission to appeal was granted in part, with permission to apply for judicial review under CPR 52.15(3).
• High Court: Newman J refused permission to apply for judicial review.
• Court of Appeal (Civil Division): Buxton LJ refused permission to appeal on the papers before the renewed application.