Ogundipe v University Of Durham & Anor

Permission to appeal should be refused where the proposed grounds disclose no real prospect that the appellate court would interfere with the decision below.

For victimisation under section 2(1)(d) of the Race Relations Act 1976, the claimant must show less favourable treatment because of a protected act. A difference in treatment is insufficient where other reasons explain it. A personal circumstance cannot be treated as affecting academic performance unless the claimant identifies that causal connection.

A transcript at public expense is unnecessary where the trial judge’s account can be relied on and no evidence shows that the applicant was unable to continue.

The applicant, a black Nigerian student, claimed that the University of Durham had discriminated against him in connection with examination results, mitigating circumstances and academic appeals. He also alleged victimisation and challenged the fairness of the County Court hearing.

His claim was dismissed with costs by His Honour Judge Walton at Newcastle upon Tyne County Court on 10 May 2002. He applied to the Court of Appeal for permission to appeal, an extension of time, a stay of execution, permission to rely on further evidence, and review of a Deputy Master’s direction. The central issue was whether any ground disclosed a basis on which the Court of Appeal was likely to interfere.

Disposition

Lord Justice Keene, sitting alone, dismissed all the applications. The proposed challenge to the County Court judgment had no real prospect of success.

1. Fair hearing and transcript. The trial judge’s earlier involvement in separate proceedings concerned a different issue and provided no proper basis for alleging bias. The trial had been adjourned after the applicant reported a head injury. He attended when the hearing resumed and accepted that he was fit to proceed. No medical evidence established otherwise. There was therefore no need to provide a transcript at public expense merely to investigate the earlier part of the trial.
2. Victimisation. Section 2(1)(d) of the Race Relations Act 1976 required evidence that the applicant had been treated less favourably because he had done a protected act. The County Court had found that less favourable treatment was not established.
3. Mitigating circumstances. The applicant had not told the University that his father’s illness had affected his academic performance. The course tutor had expressly invited him to identify any medical or other relevant factor. The Board could not be expected to infer the necessary causal connection from the mere occurrence of an illness.
4. Comparators. The County Court had considered the hypothetical treatment of a non-black student and had assessed the relevant actual comparators. Different treatment of other students was explained by other reasons, including the compensation rules. There was no evidence that the University had failed to apply those rules, and the judge had found that the applicant did not qualify for an adjustment.

None of the matters raised provided a basis for appellate interference. Order: applications dismissed.

• Court of Appeal (Civil Division): In [2002] EWCA Civ 1511, Lord Justice Keene dismissed the applications, including the application for permission to appeal.
• Newcastle upon Tyne County Court: His Honour Judge Walton dismissed the applicant’s racial-discrimination claim with costs on 10 May 2002.