McKoy, R (on the application of) v Oxford Brookes University

University regulations governing progression and withdrawal are matters of legal construction for the court. An examination body must operate within the meaning of its published course regulations, even where those regulations confer evaluative discretion in academic matters. A provision stating the limits on retaking practice-based modules may confer an entitlement to retake modules up to those limits, rather than merely define the university’s discretionary maximum. Academic judgment remains generally non-justiciable, but disputes about compliance with contractual or regulatory rules are justiciable. A university cannot retrospectively rely on an uncommunicated assessment that a student is unfit to practise when the stated decision was based on a different construction of the regulations.

The claimant challenged the Appeal Committee’s decision, communicated on 7 August 2006, upholding her withdrawal from the defendant university’s midwifery course. The withdrawal followed her failure of two practice-based modules. The university relied on regulation 14(vii) of its Undergraduate Modular Regulations, which stated that no practice-based module could be taken more than twice and that a student consequently unable to complete an award would be required to withdraw.

The claimant contended that the regulation entitled her to retake up to two practice-based modules. The university argued that the regulation merely imposed an upper limit and that its examination bodies retained a wider discretion to withdraw her, including on fitness-to-practise grounds. The central issues were the proper construction of the regulation, the justiciability of the decision, and whether relief should be granted.

1. The claim succeeded. The decision of the Appeal Committee was unlawful because it was based on an incorrect construction of regulation 14(vii). The court declared the decision unlawful and quashed it. The parties were permitted to reapply if necessary concerning the practical implementation of the judgment, and the defendant was ordered to pay the claimant’s costs, summarily assessed at £16,000 including VAT.
2. On its natural reading, regulation 14(vii) established limits on the number of times practice-based modules could be taken and required withdrawal only when those limits meant that the student could not complete the award. The wording was reinforced by the treatment of an F grade elsewhere in the regulations and by other provisions which expressly gave the university a discretion to require withdrawal. The university’s contrary interpretation was strained and unnatural.
3. Article C1 of the Academic Regulations did not confer an overriding power to disregard the course regulations. Examiners had discretion in making academic judgments and a limited discretion to interpret regulations where difficulties arose, but they were required to operate within the regulations’ proper meaning. The university’s consistent practice and the NMC accreditation framework did not alter that construction.
4. The court accepted the distinction identified in Clark v University of Lincolnshire and Humberside, [2000] 1 WLR 1988. Academic judgments, such as marks or classification, are generally unsuitable for judicial determination, whereas alleged breaches of contractual or regulatory rules are justiciable. The present issue concerned the meaning and legal effect of the regulations, not an academic judgment.
5. The university could not rely on an alleged uncommunicated assessment that the claimant was unfit to practise as a midwife. The impugned decisions had been expressed as applying regulation 14(vii), and any residual fitness-to-practise issues were matters for the Nursing and Midwifery Council.

First-instance judicial review in the Administrative Court. The court declared the Appeal Committee’s decision unlawful, quashed it, and left the parties to address the practical consequences, with permission to reapply if necessary.