Daskaloulis, R (on the application of) v The University of the West of England

Where a public educational decision has been made using criteria which may not have been properly communicated or applied, the Administrative Court may quash the decision and remit the matter for a lawful reconsideration. The court may require an appropriate reassessment or re-sit mechanism, including independent assessment where necessary.

A damages claim cannot be pursued within judicial review without permission and an identifiable cause of action. A claim relying on the European Convention on Human Rights must identify the relevant substantive Convention right; a provision that is merely parasitic on other rights cannot independently support relief.

The claimant challenged the University of the West of England’s decision to direct his withdrawal from the Bar Vocational Course after he was assessed as Not Yet Competent. Permission for judicial review was granted on the limited issue of an alleged change between the 2005/2006 and 2006/2007 assessment criteria, which the claimant might not have known about.

Before the hearing, the University conceded that the withdrawal decision should be revoked and proposed alternative routes involving reassessment of the existing assessment material or a re-sit under the earlier criteria. The claimant also sought monetary compensation for course fees, economic loss and psychological distress. The issues were whether the withdrawal decision should be quashed, what consequential remedy was appropriate, and whether the monetary claim could be entertained.

1. Remedy. The withdrawal or exclusion order was quashed. The matter was remitted with two alternative mechanisms: reassessment of the DVD of the negotiation assessment by independent external examiners, followed by independent moderation, or a re-sit of the module assessed under the correctly applicable 2005/2006 criteria.
2. The order should provide a cut-off date for the claimant to elect between the alternatives. If he failed to elect the re-sit option by that date, the University could proceed with reassessment of the DVD under the 2005/2006 criteria.
3. Damages. The monetary claim advanced at the hearing could not succeed within these proceedings. Permission had not been granted for that claim and no renewed application for permission had been made. Further, there was no accrued private-law cause of action identified on the facts. A contractual claim based on wrongful repudiation might have been available in principle, but none had been pleaded or intimated.
4. The Convention claim was also defective. The Convention provision relied upon was parasitic upon other substantive Convention rights, but the claimant had not identified those rights. Any properly maintainable damages claim could be brought in the appropriate County Court or in the Queen’s Bench Division.
5. Costs. The claimant was entitled to recover his costs up to one week after 22 September 2008, allowing time to consider the University’s alternative proposal. The University was entitled to its costs incurred thereafter. Both parties’ costs were subject to detailed assessment unless agreement was reached.