Moroney v Anglo-European College of Chiropractic

A student may pursue a contractual claim concerning university examination procedures where the complaint concerns a material irregularity rather than the academic judgment of examiners. Bona fide academic assessments, including harsh or very low marks, are non-justiciable. A court may strike out a claim with no realistic prospect of success without resolving serious factual disputes requiring oral evidence. A contractual claim may also amount to an abuse of process where the claimant has delayed unjustifiably, particularly when judicial review would have provided a more suitable and timely remedy.

The appellant had been required to withdraw from a chiropractic degree course after failing four units. He alleged that the respondent college had breached its contractual obligations through errors and irregularities in the assessment and appeal process. His surviving complaints concerned allegedly misleading information given to examiners, a zero mark, missing medical information, inaccurate recording of academic probation, and unequal access to past examination papers.

The Southampton County Court struck out the claim. On appeal, the central issues were whether the complaints were legally justiciable, whether any had a realistic prospect of success, and whether the delay in pursuing them constituted an abuse of process.

1. Appeal dismissed. The claim had no reasonable prospect of success. The court reached that conclusion on grounds differing in part from those relied on by the county court.
2. Following Clark v University of Lincolnshire and Humberside, [2000] 1 WLR 188, a student may claim for breach of contractual examination regulations, but the court cannot review questions of bona fide academic judgment. A mark may be harsh, and even a mark of zero may be challenged in principle only if it was not the product of genuine academic judgment. The mark challenged here followed a reasoned assessment and was therefore non-justiciable.
3. The alleged discrepancy in an earlier mark sheet did not give the claim a realistic prospect of success. The later material and the Final Board’s minutes supported the conclusion that the Board had the correct information and had independently considered the case. An inaccurate reference to academic probation would not have affected the outcome because the claimant’s poor performance had plainly been considered and was supported by his results.
4. The alleged loss of medical information had no material significance. The claimant did not identify a medical condition affecting his performance or any attempt to bring such a condition to the examiners’ attention. Unequal access to past examination papers, even if factually established, would not constitute a material irregularity in the assessment process.
5. In any event, the proceedings were an abuse of process through unjustifiable delay. The principles stated in Clark permitted the court to consider delay where a dispute that might ordinarily have been brought by judicial review was instead pursued by ordinary contractual proceedings. The claimant delayed both in commencing proceedings and in formulating the contractual claim after disclosure.
6. The court therefore upheld the striking-out order and dismissed the appeal.

• High Court (Queen’s Bench Division): Appeal from the order of His Honour Judge Boggis QC, sitting in the Southampton County Court, dismissed. The order striking out the claim was upheld.
• Southampton County Court: The claim was struck out at trial on the basis that the pleaded allegations had no prospect of success.
• Permission to appeal: Permission initially refused on the papers but granted by Owen J on 17 December 2007 after an oral hearing.