Saiadi, R (on the application of) v BPP Law School & Anor

An application for permission to appeal must identify an arguable error of law in the lower court’s decision. It cannot be used to reargue the merits of an underlying educational assessment decision.

Where assessment rules give a college judgment as to whether there was good reason for a late concession application, the court should be slow to interfere. A long-standing personal or legal difficulty may justify deferring an assessment, but does not necessarily justify disregarding it after the prescribed time. An adjournment may properly be refused where the relevant material is before the court and the applicant has had a full opportunity to present the case.

The applicant was a student on the Bar Vocational Course at BPP Law School. After failing two assessments, she made late concession applications, relying principally on continuing property litigation, harassment and stress. The Assessment Board rejected the applications and the internal appeal. An independent reviewer also rejected the challenge under the assessment regulations.

The applicant later sought judicial review. Mitting J refused permission on the papers, including on the ground of delay. On renewal, Sullivan J refused permission, an extension of time and an adjournment. The applicant sought permission to appeal to the Court of Appeal. The central issues were whether the application was out of time, whether the merits were arguable, and whether the refusal of an adjournment involved an error of principle.

1. Permission to appeal refused. The application was dismissed. The applicant had to show that Sullivan J’s decision was wrong in law, but the decisions concerning time and the adjournment were within his discretion.
2. The judicial review application was made long after the relevant decisions by the school and the independent reviewer. It was therefore substantially outside the applicable three-month period. The characterisation of the defendants’ conduct as a continuing breach did not alter the fact that judicial review was directed at two decisions made on particular dates.
3. The underlying dispute was narrow. The concession applications had been made outside the ten-working-day period. Whether there was good reason for the delay was primarily a matter for the college’s judgment, and a court exercising judicial review would be reluctant to interfere absent a proper public law error. The applicant’s continuing legal difficulties and stress might have supported an application to defer an assessment, but did not require the college to accept a late concession application. The medical material was also not supplied to the school when the applications were made.
4. The independent reviewer’s power was confined by the assessment regulations to cases involving failure to follow the prescribed procedure, manifestly unfair procedure, or a manifestly unreasonable appeal decision. The reviewer had reasonably concluded that none of those grounds was established.
5. There was no arguable basis for challenging the substantive decisions. The refusal of an adjournment was also a proper exercise of discretion because the relevant matters were before Sullivan J and the applicant had addressed him fully. No useful purpose would have been served by postponing the hearing.

A copy of the judgment was directed to be provided to the applicant at public expense.

• Court of Appeal (Civil Division): On 30 November 2004, the application for permission to appeal was dismissed: [2004] EWCA Civ 1759.
• High Court, Administrative Court: Sullivan J refused permission to apply for judicial review, an extension of time and an adjournment.
• High Court: Mitting J had previously refused permission on the papers, including because the claim was out of time.