Crawford, R (on the application of) v The University of Newcastle Upon Tyne

A university must follow its published assessment procedures where they constitute a clear and unambiguous assurance. A handbook which describes grade averaging does not necessarily prescribe how individual components within an examination must be weighted, particularly where weighting is an academic judgment rationally directed to giving assessment stations equal weight. Procedural unfairness arising from non-disclosure of material relied upon by an appeal adjudicator may be established without proof of prejudice, but prejudice is relevant to the discretionary grant of relief. An adjudicator does not abdicate his function merely by accepting an expert examiner’s explanation where he has considered the substance of the appeal.

The claimant, a medical student, failed his final-year examinations after receiving a borderline fail in the Clinical and Communication Skills domain of a MOSLER assessment. He contended that the University had breached public law duties, contract and legitimate expectation by double-weighting a communication mark contrary to the MBBS Stage 5 Handbook.

He also challenged the failure to disclose an examiner’s further memorandum before the internal appeal was decided and alleged that the appeal adjudicator had surrendered his decision-making function. The University accepted the procedural non-disclosure but disputed its materiality. The claimant had also pursued complaints before the Office of the Independent Adjudicator. The issues concerned the legality of the marking method, procedural fairness, abdication of function, alternative remedy and delay.

1. Issues 1, 2 and 3 dismissed. The claimant’s judicial review and contractual claims failed.
2. The University was subject to public law duties and was in a contractual relationship with the claimant. The published handbook could support a legitimate expectation only if it amounted to a clear and unambiguous assurance. The reference to averaging did not state that every component of every MOSLER station had to be equally weighted. The handbook was an overview and did not prescribe the composition of the MOSLER, the criteria assessed at each station or the weighting of individual criteria.
3. Double-weighting communication at Station 4 was a rational academic judgment. It compensated for the absence of an examination component and ensured that the station carried equivalent overall weight to the other stations. The University had therefore applied the handbook and had not breached public law, contract or legitimate expectation.
4. The failure to disclose the examiner’s second memorandum before the internal appeal breached the University’s Academic Appeals Procedure and was procedurally unfair. Fairness generally requires an effective opportunity to make representations on the evidence relied upon and disclosure of the gist of the case. However, proof of prejudice was not required to establish unfairness; prejudice concerned the court’s discretion to grant relief. Here, no relief was appropriate because the marking method was lawful, the claimant could not have achieved a different result, he failed to use the available internal review procedure, and the OIA later considered his substantive arguments and evidence.
5. The appeal adjudicator had not abdicated his function. He considered the handbook, the claimant’s calculations and the examiner’s explanation. Once he rejected the claimant’s construction of the handbook, no further independent arithmetic exercise was necessary, particularly since the appeals procedure excluded challenges to academic judgment.
6. The court expressed doubts about treating the completed OIA procedure as an absolute bar to judicial review of legality, but did not decide the point. The defendant’s delay argument also failed because proceedings were issued within three months of completion of the internal appeal process.

The claim was dismissed.