Kwao v University of Keele

Academic judgment is generally unsuitable for review where intervention would require the court to substitute its assessment for that of academic experts. Courts may, however, determine whether a university complied with contractual or procedural rules. A code of practice framed as guidance does not automatically create mandatory conditions, and procedural departure will not invalidate a decision without resulting unfairness. The Office of the Independent Adjudicator may provide an appropriate alternative remedy for complaints about procedural irregularity or unfair practice in university examinations. Judicial review remains a remedy of last resort. Where a claimant has declined an available procedure for addressing extenuating circumstances, a later challenge based on those circumstances will ordinarily fail.

The claimant pursued judicial review of University of Keele’s decision, following examination of his education doctorate thesis, to award him a Masters degree rather than a doctorate. He challenged the decision on grounds of irrationality, alleged breach of contractual duties, procedural irregularity in supervision and examiner appointments, unfairness in the internal appeal process, and failure to consider extenuating circumstances.

The claimant had used the university’s complaints and appeals procedures. The central issues were whether the academic assessment was justiciable, whether the university had failed to comply with its Code of Practice, and whether an alternative remedy was available through the Office of the Independent Adjudicator.

1. Academic assessment. The claim that the decision was irrational required the court to assess the quality of the thesis, the claimant’s academic progress and the examiners’ evaluation. Following the principle stated in Clark v University of Lincolnshire and Humberside [2000] 1 WLR 1988, such academic or pastoral judgments are unsuitable for judicial determination where the court would be substituting its own assessment for that of the university’s experts. The irrationality challenge therefore was not justiciable.
2. Alleged contractual duty. Even if section 13 of the Supply of Goods and Services Act 1982 could support an implied duty on a supervisor to prevent submission of an inadequately prepared thesis, the relevant assessment was made by an independent board of examiners. The examiners were entitled to revise their provisional view after the viva. Their decision did not establish a contractual breach suitable for review.
3. Procedural irregularity. The Code of Practice was guidance in significant respects and did not make every stated requirement mandatory. The provisions concerning supervisor changes and examiner qualifications did not require student approval. In any event, the evidence did not establish unfairness. The complaints procedure also contained adequate safeguards and did not require an oral hearing where no prima facie case had been established.
4. Extenuating circumstances. The claimant had been invited to rely on extenuating circumstances before submission but declined to do so. The applicable arrangements did not provide for retrospective recognition of such circumstances in relation to performance at the viva.
5. Alternative remedy and outcome. The Office of the Independent Adjudicator was an appropriate remedy for complaints about procedural non-compliance and unfairness. R v Regents Park College and the Conference of Colleges Appeal Tribunal ex parte Carnell [2008] EW HC 739 (Admin) confirmed that judicial review is ordinarily a remedy of last resort. Maxwell v the Office of the Independent Adjudicator [2011] EWCA Civ 1236 was distinguishable because it concerned disability discrimination and issues requiring determination of individual rights and facts. Relief would have been refused on the alternative-remedy ground even if the procedural complaints had been made out. The claim was dismissed, with costs payable by the claimant, including £10,000 on account.

First-instance judicial review proceedings. Permission was granted by HHJ Stewart QC on 26 July 2012. No lower court merits decision or appeal is stated in the judgment.