Fayose-Clarke v Middlesex University

Permission to pursue judicial review may be refused where the proposed claim is substantially out of time and has no reasonable prospect of success. A challenge to the quality of assessed university work is generally a challenge to academic judgment, rather than a procedural issue suitable for judicial review. A course handbook referring to presentation before tutors, employers and peers does not, without more, establish that peers participate in determining the final mark. Their absence therefore did not create a material procedural defect where the written work had independently been assessed as below the required standard.

The applicant sought permission to appeal from Sullivan J’s refusal of permission to apply for judicial review of Middlesex University’s assessment procedures for her proposed Masters Degree in Nutritional Medicine. She challenged the marking of her written work and complained that peers were absent from the presentation component, despite the handbook referring to presentation before tutors, employers and peers.

The Court of Appeal considered both the delay in bringing the proposed claim and whether the alleged defects gave it a reasonable prospect of success. The central issue was whether the complaint disclosed an arguable procedural unlawfulness, rather than disagreement with academic assessment.

1. Disposition. Lord Justice Schiemann refused permission to appeal. There was no order for costs.
2. Academic assessment. The applicant accepted that she could not appeal against the academic judgment of the markers. Two internal examiners had identified substantial deficiencies in the written work, including unsupported generalisations, simplistic data analysis, and an absence of recognisable statistical methodology. An external examiner agreed with their conclusion that the work did not satisfy the criteria for a pass. On that material, there was no reasonable prospect of establishing that the work met the university’s required standard or of obtaining an order for re-examination.
3. Presentation and peers. The handbook allocated 80 per cent of the assessment to submitted work and 20 per cent to formal presentation to tutors, employers and peers. It contained no indication that peers were responsible for marking the written work or had a deciding voice in the final result. Their presence appeared directed to the presentation process, including helping the student feel at ease and enabling other students to learn from it. Their absence did not therefore disclose a procedural defect capable of affecting the result.
4. Delay. The relevant decision was made in March 2000, whereas the application was not lodged until November 2001. The claim was consequently a long way out of time. Although delay might not alone have been decisive, it was particularly important to any proposed factual inquiry into what had occurred in the presentation room, since witnesses’ recollections would deteriorate with time.
5. Administrative errors. The university had sent blank results forms and later apologised and supplied the relevant grades and explanation. Those errors did not show that the academic assessment was unlawful or justify permission to proceed.

• Administrative Court: Sullivan J, on 19 April 2002, refused permission to apply for judicial review of Middlesex University’s assessment procedures.
• Court of Appeal (Civil Division): permission to appeal was refused on 17 September 2002. There was no order for costs.