Shi, R (on the application of) v King's College London

An educational institution satisfies its procedural duty by giving notice of disciplinary proceedings in the manner agreed with the student and by affording a reasonable opportunity to attend. It need not ensure that the student actually receives or attends the hearing where non-attendance results from circumstances it could not reasonably foresee.

A committee may proceed in the student's absence where it believes that the evidence and representations necessary for its decision are before it. An appeal provision allowing new evidence for good reason should be applied flexibly and does not import the restrictive Ladd v Marshall test. Judicial review is ordinarily a remedy of last resort where an effective internal appeal or complaint to the Office of the Independent Adjudicator is available.

The claimant, an undergraduate student, was expelled by King's College London after an Examinations Misconduct Committee concluded that she had cheated in an examination. She had not received notices sent to her term-time address and email accounts and did not attend the preliminary inquiry or the disciplinary hearing.

The Principal initially refused to permit an appeal, but the College subsequently offered an appeal hearing and repeated the offer. The claimant declined it and did not complain to the Office of the Independent Adjudicator for Higher Education. The judicial review challenged the fairness of the disciplinary process, the refusal of an appeal and the availability of the alternative statutory scheme.

1. Claim dismissed. The College had complied with its obligation to notify the claimant. Under its regulations, correspondence was to be sent to the last term-time address notified by the student. The College also sent notices and documents to both of her email accounts. The principle in James v Institute of Chartered Accountants (1907) 98 LT 225 supported the conclusion that agreed service was sufficient, even where the proceedings could result in expulsion.
2. The College was required to give notice, afford an opportunity to attend, and consider representations fairly and properly. It was not required to ensure attendance. The claimant's failure to receive the correspondence resulted from the unforeseen absence of her flatmate with the postbox key and her limited access to email while abroad.
3. The proviso permitting proceedings in the student's absence where those conducting the hearing believed that all the evidence and representations were before them conferred a broad judgment on the committee. On the facts, the committee was entitled to regard the allegation as straightforward and proceed without the claimant.
4. The Principal had erred under regulation 3.10.3. The claimant's evidence and her mother's supporting evidence were new evidence which had not been available for good reason, namely that the claimant had been unaware of the proceedings. The provision did not require the restrictive Ladd v Marshall test. The College corrected the error promptly by offering a fair appeal, which was the remedy to which the claimant was entitled under its regulations.
5. The Office of the Independent Adjudicator for Higher Education, established under Part 2 of the Higher Education Act 2004, provided an inexpensive, relatively prompt and comprehensive means of reviewing complaints about disciplinary procedure and outcome. Judicial review is a remedy of last resort and such complaints should ordinarily be pursued through an accepted appeal or the OIA scheme.
6. The claim was therefore dismissed. The claimant was ordered to pay the defendant's costs on the standard basis, subject to detailed assessment if not agreed. Indemnity costs were refused because the proceedings followed an erroneous refusal of an appeal and raised a point not previously decided, without lack of candour or procedural propriety.