Persaud, R (on the application of) v Cambridge University

Procedural fairness is contextual. A person affected by a public decision will often need sufficient notice of the adverse case and a real opportunity to answer it. In an exceptional academic case, fairness may require notice of disputed factual allegations, disclosure of the identity of an academic assessor so that impartiality and expertise can be raised, and warning of a new adverse issue concerning the viability of the research.

There is no general right to challenge a purely academic judgment. Judicial review may nevertheless intervene where the process used to obtain or act upon that judgment is unfair. A later confirmation cannot cure an earlier decision reached through an unfair process.

The appellant had been removed from the University’s Register of Graduate Students after concerns about attendance and progress during her Ph.D. research. She made representations seeking reinstatement. The Degree Committee then obtained an adverse opinion from an unnamed senior academic, who considered material supplied by the appellant and concluded that there was no viable basis for future research. The Board of Graduate Studies refused reinstatement in January 1999 and later confirmed that position.

Maurice Kay J dismissed the appellant’s judicial-review claim: [2000] Ed. C.R. 635. She appealed. The central issue was whether the University had acted fairly by permitting written representations but withholding the reports and the assessor’s identity when determining reinstatement.

1. Appeal allowed in part. Chadwick LJ, with whom May and Schiemann LJJ agreed, held that the January 1999 refusal to reinstate the appellant was reached through an unfair process. The January decision was quashed, as was the December 1999 confirming decision so far as necessary.

2. Under General Regulations for Admission as a Graduate Student, regulation 10, the Board’s power was discretionary. Even if the Degree Committee satisfied the Board of a regulation 10(e) matter, the Board had to decide collectively whether deprivation of graduate status was appropriate. The Degree Committee had the relevant academic expertise on research potential, but the Board had to be satisfied that its opinion had been formed fairly.

3. Applying the contextual approach to fairness explained in [1994] AC 531, the appellant had to be given a fair opportunity to meet the case against her. If the Board rejected her factual account of attendance, it had to put that to her. If it accepted the account but regarded attendance as inadequate, it had to identify the requirements said not to have been met.

4. The progress issue had to be reconsidered after the appellant alleged that her material had not been considered by her former supervisor. In the special circumstances, fairness required the University to tell her who would assess that work, enabling her to raise concerns about the assessor’s impartiality or expertise. The new conclusion that there was no viable basis for future research also raised an issue of which she had not been warned and on which she should have been heard.

5. The court stressed that this was not a merits challenge to a purely academic judgment. It was a challenge to the procedure by which the University concluded that the approved research had ceased to be viable. The July 1998 removal decision was not directly challenged and remained in force. The court deferred any order of mandamus, because reinstatement might serve no useful purpose while the appellant pursued a different research project.

• Court of Appeal (Civil Division) — Allowed the appeal in part, quashing the January 1999 refusal of reinstatement and, so far as necessary, the December 1999 confirmation: [2001] EWCA Civ 534.
• High Court — Maurice Kay J dismissed the application for judicial review: [2000] Ed. C.R. 635.