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You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Nash, R (on the application of) v Chelsea College Of Art & Design [2001] EWHC Admin 538 (11th July, 2001) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2001/538.html Cite as: [2001] EWHC Admin 538

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Queen on the application of: NASH and CHELSEA COLLEGE OF ART AND DESIGN [2001] EWHC Admin 538 (11th July, 2001)

Case No: CO/3569/2001

Neutral Citation Number: [2001] EWHC Admin 538

IN THE HIGH COURT OF JUSTICE

QUEENS BENCH DIVISION

ADMINISTRATIVE COURT

Royal Courts of Justice

Strand, London, WC2A 2LL

Wednesday 11^th July 2001

MR JUSTICE STANLEY BURNTON:

Introduction

1. I have to say that I regard this as a most unfortunate case. The Claimant, Aletta Nash, is a final year student at the Chelsea College of Article. She enrolled in September 1996 in a three-year course leading to the degree of BA (Hons) in Fine Art. These proceedings relate to her Stage II assessment, i.e., her second year grades. The original assessment was made by the Defendant's Assessment Panel in May 1998, over 3 years ago, and considered by the Board of Examiners in July 1998. Ms Nash complains, in essence, that the marks she was awarded did not take into proper account certain extenuating circumstances that should have been taken into account in assessing her work. Certain of those extenuating circumstances were undisputed, including the deaths of her mother and grandmother. One matter was highly controversial: her allegation of sexual harassment on the part of a tutor. Ultimately, that allegation was investigated by the College and rejected. In the meantime it created embarrassment and difficulties for the College in considering her extenuating circumstances. Even after its rejection, the allegation might be relevant as indicating the state of mind of the Claimant at the times in question and its effect on the quality of her artistic work.

2. As she was entitled to do, Ms Nash implemented the appeal procedures contained in the College's Regulations. She was dissatisfied with the procedure followed by and the decision made by the Academic Committee of the College, which had reviewed and confirmed the second assessment of her grades by the Board of Examiners. She challenged the decision of the Academic Committee in judicial review proceedings. On 10 May 2000, Elias J quashed the decision of the Academic Committee of July 1999 on the ground that the chairman of the Committee had wrongfully made a decision as to the material that went before the Committee when the decision was properly that of the Committee as whole; that as a result Ms Nash had been unable properly to present her case to the Committee; and that the Committee should have informed her of the material that was to go before it. His decision is reported at [2000] Ed C R 571, and I refer to it for the previous history of this matter, and the constitution of the College.

3. As a result of the decision of Elias J, the Academic Committee of the College again considered Miss Nash's case on 20 and 26 June 2000. It rejected her complaint that the Board of Examiner's decision had been vitiated by material irregularity.

4. In these proceedings Miss Nash contends that the Academic Committee's second decision in this matter should be quashed on procedural grounds and also, and more importantly, because of the reasons, or lack of them, given for its decision. The facts relating to its reasons are unusual, and I shall refer to them below. For the present, however, I do wish to express my regret that the proceedings relating to this matter have been carrying on for 3 years, have involved considerable amounts of academic time and that of Miss Nash, a very significant amount of correspondence that would not be out of place in a piece of complex litigation, and considerable legal fees, all in relation to a dispute that can have only a marginal effect on Miss Nash's final degree and on her future career. Much, if not most, of this could have been avoided if the College had taken and followed competent and sensible legal advice as to its procedures.

The proceedings of the Academic Committee and subsequent correspondence

5. The proceedings before the Academic Committee took about a day and a half. Miss Nash presented her case as to her extenuating circumstances and the reasons why they had not properly been considered by the Board of Examiners. The bundle of documents put before the Academic Committee, "anonymised" to avoid identifying the tutor who was the subject of Miss Nash's allegation of sexual harassment, ran to nearly 300 pages. Miss Nash was informed of the Committee's decision by letter dated 30 June 2000 from the College Administrator, who was the clerk to the Academic Committee.

6. One might have hoped that, having been the subject of one successful judicial review application, the College would have been careful to give no further cause for complaint as to its procedure or decision. Regrettably, that hope was not fulfilled. The letter of 30 June 2000 set out certain inconsistencies in the records of the meeting of the Board of Examiners of 19 April 1999. It did not mention or refer to the substantive matters placed before the Academic Committee by Ms Nash. It concluded:

"... we had understood that you were seeking to obtain clarification or expansion from the Appeal Committee of its reasons. We did not understand your suggestion as an opportunity for the Committee to give further consideration to the appeal, still less for Mr Cina, who was not a member of the Committee, to write making what amounts to no more than submissions on the merits of the proceedings for Judicial Review. Indeed, Mr Cina, as someone with prior involvement, was expressly excluded from the membership of the Appeal Committee.
It also appears from the style and content of the letter that it was drafted upon legal advice. Please confirm the provenance of this letter.
We note that Mr Cina states that he has consulted at length with both the acting Chair and the Clerk to the Committee. The letter does not make clear the result of that consultation or the source of particular assertions. The Clerk of the Committee was not a member of the Committee and is not able to speak for its members. We would suggest that neither the acting Chair nor the Clerk can say what was in the minds of the members of the Committee.
In any event, any further "evidence" by way of statements following the Committee's decision would clearly amount to ex post facto reasoning. We would object to the admissibility of such statements on the grounds that it falls outside the narrow exceptions permitted by the Court (see e.g. R v Westminster City Council, ex p Ermakov [1996] 2 All ER 302 at 315g-315h recently approved by Gage J. and in R v Southwark L.B.C ex p Glen International, 31 October 2000)."

18. The College's solicitors replied by letter dated 8 December 2000:

"We note what you say in relation to the letter of 3 October 2000. It was sent to Ms Nash because it was a fuller statement of the reasons given in the original decision of the Appeal Committee, and therefore it seemed entirely appropriate to send direct to Ms Nash. However, we shall in future communicate with you on this matter since you so request.
We fear that you have misunderstood the meaning and purpose of Mr Cina's letter. First it was signed by Mr Cina because for speed and ease of communication, the Appeal Committee's reasons were sent to Ms Nash through him. He was effectively acting as administrative assistant to the Appeal Secretary for this purpose. We stress (and Mr Cina and other will lodge evidence with the Court to this effect if our explanation continues to trouble you) that Mr Cina played no part in the re-consideration of the decision.
Second, the letter does not seek to make submissions on the merits of the proposed judicial review application. It gives a fuller account of the original reasons. If the Appeal Committee approached the matter in a rather more formal way than normal it can hardly be blamed given the way your client has responded to the exercise of reviewing her Stage 2 results. It would also be somewhat surprising if it was a ground of complaint that the College had taken legal advice during the recent re-hearing and upon receipt of your client's proposed judicial review application.
Third, the clerk to the Appeal Committee, for the avoidance of doubt, was neither a participant in the review decision nor its interpreter."

The letter also took issue with Ms Nash's solicitors' reliance on ex parte Ermakov, another matter that I shall have to address below.

19. On 1 February 2001, Clive Nicholls, the Dean of the School of Design at the College, and who had been the chairman of the Academic Committee that had reconsidered Ms Nash's appeal, signed a witness statement in support of the College's position. He stated:

"On 20 and 26 June 2000, I was Chairman of the College's Academic Committee which reconsidered the appeal made by Ms Nash. At the conclusion of the appeal Committee's deliberations, once its decision had been made, I assisted Ms Louise Ratcliffe, the clerk to the College Academic Committee, with the drafting of the letter of 30 June 2000 to Ms Nash. I approved its terms.
In late September 2000, I was notified by Colin Cina that the Academic Committee's decision should be set out in further detail. I met Mr Cina to ensure that the second statement of reasons for the Academic Committee's decision were correct and full. I discussed with Mr Cina the terms of the letter.
Purely as a matter of administrative convenience, Mr Cina took charge of the production of the actual letter to be put in the post after our discussion. I was shown the final version and I approved it before it was sent out to Ms Nash on 3 October 2000.
I have seen the exchange of correspondence of 18 October 2000, 9 November 2000 and 8 December 2000. It is correct to say that the letter to Ms Nash of 3 October 2000 represented the terms of the Academic Committee's decision accurately and fully. The contents of the letter to Teacher Stern Selby of 8 December 2000 are correct."

The issues

20. The principal issues that have been argued before me concern the status of Mr Cina's letter of 3 October 2000 and of Mr Nicholls' witness statement, and the correct approach of the Court to the letter and to Mr Nicholls' evidence. Mr Jones, for Ms Nash, also raises questions as to the contents of the letter, but I regard them as less important than the question of principle raised by him. In essence, he submits that:

(i) The Academic Committee was obliged to give reasons for its decision.

(ii) It purported to do so in its letter of 30 June 2000. The reasons given in that letter were insufficient and inappropriate and justify the quashing of the Academic Committee's decision.

(iii) The letter dated 3 October 2000 should not be regarded as providing the reasons for the Academic Committee's decision. Its author, Mr Cina, was not a member of the Committee; its contents had not been discussed with all of the members of the Committee or approved by them; and having come into existence substantially after the letter of 30 June, and being inconsistent with it, and having been produced with the assistance of the College's lawyers, it should be regarded as ex post facto reasoning and rejected by the Court.

(iv) Mr Nicholls' witness statement did not take matters further. It did not evidence that he had discussed the letter with the other members of the Committee or that he had been authorised by them to give the Committee's reasons, or that he had consulted the record of the deliberations of the Academic Committee.

(v) As chairman, Mr Nicholls had no authority to give the reasons for the Committee's decision on behalf of the whole Committee.

21. Mr Warren's submissions, unsurprisingly, were the opposite of Mr Jones's.

Should the letter of 3 October 2000 be accepted as giving reasons for the decision of the Academic Committee?

22. I do not think that I have to decide whether the Academic Committee was under a duty to give reasons for its decision. Reasons were given, either in the letter of 30 June or in that of 3 October 2000 or both. If the reasons given in the later letter were defective, even though they may not have been shared by all of the Committee, the fact that the chairman gave incorrect or inadequate reasons would, in my judgment, justify the quashing of the Committee's decision. The wording of the regulations of the College do not indicate that reasons are to be given in the comparable case of a first appeal against the decision of a Board of Examiners, unless the appeal has been successful, in which case the reasons have to be "re-iterated" by the Appeals Sub-Committee, presumably so that the Board of Examiners know where they went wrong or are aware of the matters that should be taken into account on the reassessment but were not taken into account on the original assessment. Against this, the subject matter of a second appeal, namely an allegation of material irregularity, is sufficiently serious to indicate an obligation to give reasons, and the general formality of the procedures laid down by the regulations, would indicate that there should be an obligation to give reasons.

23. The real question in this case is whether the Court should accept the reasons that have been given in the letter of 3 October 2000 and referred to by Mr Nicholls in his witness statement as the reasons of the Committee for its decision, and thereby satisfying any obligation to give reasons, and if not what remedy should be granted by the Court.

24. It is convenient first to deal with the authority of the chairman of the Academic Committee. The College Regulations do not specify his functions or authority, and I have not been referred to any authority dealing expressly with the implied powers of a chairman of such a committee, other than the decision of Elias J in the first judicial review proceedings between the present parties.

25. In the absence of express or implied provision conferring additional authority on a chairman, his function is to ensure the proper conduct of the meeting of a committee. As Elias J held, he has no authority to decide what evidence is to go before the committee, or what issues it is to decide. Those are matters for the committee as a whole. The chairman of a committee will often communicate the decision of the committee, and sign the letter or other document giving its reasons. When he does so, it is normally assumed, in the absence of any contrary contention, that he acts with the express or tacit authority of the committee as a whole. However, that assumption does not apply indefinitely. In particular, once the reasons of the committee have been communicated, it should not be assumed that further reasons given by the chairman are the reasons of the committee as a whole. Whether the reasons put forward late by a chairman of a committee are those of the committee as a whole is a question of evidence, not of his authority.

26. I turn to the question whether the Court should accept Mr Nicholls' evidence. I must first refer to at least some of the authorities that counsel helpfully referred me to.

27. In R v Legal Aid Area No. 8 Appeal Committee ex p Angel (1990) 3 Admin LR 189, Simon Brown J held that a failure by a tribunal to give reasons for its decision, or the giving of inadequate reasons, does not of itself justify the quashing of the decision; and that the remedy of the claimant is an order remitting the matter to the tribunal with a direction to state reasons fully and accurately. The tribunal in question in that case was under an express statutory duty to give written notice of its decision and the reasons for it to the appellant. It had given inadequate reasons, no more than a virtually meaningless generalisation. The applicants before Simon Brown J contended that the decision of the tribunal was therefore liable to be quashed. Simon Brown J rejected this submission. He said, at 205:

"Naturally the Courts will look circumspectly at additional reasons; these clearly cannot carry quite the same authority as reasons properly given as part of the actual decision, and of course, anything suggestive of ex post facto reasoning, let alone anything in the way of inconsistency with previous reasons, would be particularly scrutinized. Certain bodies, moreover, will clearly be held to the reasons expressed with their decision - for instance, the Secretary of State on planning appeals and tribunals of the kind in question in Alexander Machinery and ex parte Khan. Furthermore, whenever as here a public body files evidence, it is desirable that each member should approve the supplementary reasoning disclosed in the individual deponent's affidavit as the actual basis for the decision earlier taken. But given these sorts of qualification, there seems to me much to be said in favour of allowing affidavits to supplement reasons, and little against either in the way of legal or practical objection. Of course, the supplementary reasons go only to the question whether the decision reached was erroneous in point of law; they cannot repair the breach of duty involved in having provided inadequate reasons in the first place ..."

28. Not surprisingly, Mr Jones relies on the first part of this passage, and Mr Warren the second. In the event, Simon Brown J quashed the tribunal's decisions on the ground that the affidavit evidence filed showed that it had acted under an error of law. Simon Brown J's statement that inadequate reasons are not of themselves a ground for quashing a decision of an administrative tribunal cannot, I think, stand with the decision of the Court of Appeal in R v Mayor, Commonality and Citizens of the City of London, ex p Matson (1996) Admin LR 49, to which I refer below. In any event, in practice a failure to give reasons by a tribunal obliged to give them is liable to lead the Court to infer that the tribunal did not lawfully deal with the issues before it.

29. R v Westminster City Council, ex p Ermakov [1996] 2 All ER 302 concerned a decision by a local housing authority that the applicant was homeless. Section 64(4) of the Housing Act 1985 applied to that decision. It provided:

"If a local housing authority notify the applicant ... (c) that they are satisfied that he became homeless ... intentionally ... they shall at the same time notify him of their reasons."

The local authority had given reasons for its decision in the letter that communicated its decision to the applicant. Subsequently:

"... they put forward entirely new reasons, completely at odds with those given in the letter. Moreover, they put forward those new reasons five or six months after the decision letter had been sent and, of course, only after judicial review proceedings had been launched."

See at page 309e. Hutchison LJ, with whom the other members of the Court agreed, at page 325g summarised his conclusions as follows:

"(1) It is unrealistic to seek to draw any significant distinction, in the context of s 64, between the decision and the communication of the decision with reasons, or to treat the giving of reasons as purely procedural. In reaching this conclusion I am influenced by the fact that the section in terms requires reasons to be given at the same time as the decision is communicated; by Schiemann J's observations in Ex p Shield; and by the many cases in which such decisions have been quashed for inadequacy of reasons.
(2) The court can and, in appropriate cases, should admit evidence to elucidate or, exceptionally, correct or add to the reasons; but should, consistently with Steyn LJ's observations in Ex p Graham, be very cautious about doing so. I have in mind cases where, for example, an error has been made in transcription or expression, or a word or words inadvertently omitted, or where the language used may be in some way lacking in clarity. These examples are not intended to be exhaustive, but rather to reflect my view that the function of such evidence should generally be elucidation not fundamental alteration, confirmation not contradiction. Certainly there seems to me to be no warrant for receiving and relying on as validating the decision evidence--as in this case--which indicates that the real reasons were wholly different from the stated reasons. It is not in my view permissible to say, merely because the applicant does not feel able to challenge the bona fides of the decision-maker's explanation as to the real reasons, that the applicant is therefore not prejudiced and the evidence as to the real reasons can be relied upon. This is because, first, I do not accept that it is necessarily the case that in that situation he is not prejudiced; and, secondly, because, in this class of case, I do not consider that it is necessary for the applicant to show prejudice before he can obtain relief. Section 64 requires a decision and at the same time reasons; and if no reasons (which is the reality of a case such as the present) or wholly deficient reasons are given, he is prima facie entitled to have the decision quashed as unlawful.
(3) There are, I consider, good policy reasons why this should be so. The cases emphasise that the purpose of reasons is to inform the parties why they have won or lost and enable them to assess whether they have any ground for challenging an adverse decision. To permit wholesale amendment or reversal of the stated reasons is inimical to this purpose. Moreover, not only does it encourage a sloppy approach by the decision-maker, but it gives rise to potential practical difficulties. In the present case it was not, but in many cases it might be, suggested that the alleged true reasons were in fact second thoughts designed to remedy an otherwise fatal error exposed by the judicial review proceedings. That would lead to applications to cross-examine and possibly for further discovery, both of which are, while permissible in judicial review proceedings, generally regarded as inappropriate. Hearings would be made longer and more expensive.

(4) While it is true, as Schiemann J recognised in Ex p Shield, that judicial review is a discretionary remedy and that relief may be refused in cases where, even though the ground of challenge is made good, it is clear that on reconsideration the decision would be the same, I agree with Rose J's comments in Ex p Carpenter that, in cases where the reasons stated in the decision letter have been shown to be manifestly flawed, it should only be in very exceptional cases that relief should be refused on the strength of reasons adduced in evidence after the commencement of proceedings. Accordingly, efforts to secure a discretionary refusal of relief by introducing evidence of true reasons significantly different from the stated reasons are unlikely to succeed.
(5) Nothing I have said is intended to call in question the propriety of the kind of exchanges, sometimes leading to further exposition of the authority's reasons or even to an agreement on their part to reconsider the application, which frequently follow the initial notification of rejection. These are in no way to be discouraged, occurring, as they do, before, not after, the commencement of proceedings. They will often make proceedings unnecessary. They are in my judgment very different from what happened in this case.
I also wish to emphasise that all that I have said is with reference only to the provisions of s 64 of the 1985 Act.
(6) The judge did not in my view approach the decision, which in the exercise of his judgment he had to make, with the principles that I consider the authorities establish in mind. Whereas he should have adopted an approach consistent with that indicated in the judgment of Steyn LJ in Ex p Graham, what he did was to treat the application as one which he could not even consider rejecting. This is apparent from the passage in his judgment which I have already cited. I have little doubt that had the judge approached the matter with the correct principles in mind he would have concluded that this was not a case in which the respondents should be permitted to substitute wholly different reasons and, in reliance on those reasons, seek to justify their decision.
(7) On the first ground I consider that this appeal should succeed, the judge's decision should be set aside, the decision of the authority quashed, and the case remitted for reconsideration on the simple ground that, as the affidavit evidence of the respondents concedes, the only reasons given for the decision are defective, in that they are not the true reasons and are not relied on."

30. In R v Mayor, Commonality and Citizens of the City of London, ex p Matson (1996) Admin LR 49, the Court of Appeal quashed a decision by reason of a failure to give reasons. In that case the duty to give reasons was implied.

31. In R v the Secretary of State for the Home Department ex p Lillycrop, the Times, 13 December 1996, the Divisional Court followed Ermakov, but accepted affidavit evidence of a civil servant that expanded upon and explained the reasoning process of the Parole Board. In that case the duty to give reasons was implied. However, in R v Doncaster MBC, ex p Nortrop (1996) 28 HLR 862, Brooke J quashed a decision of a housing benefit review board, which was under a statutory duty to give "reasons for (its) decision and ... its findings on questions of fact material thereto". He referred to an affidavit filed by the chairman of the review board, but summarised the authorities on the acceptance of such evidence where there is a statutory duty to give reasons as "(making) it plain that except in the most exceptional cases the courts should not look at evidence of this kind".

32. In Northamptonshire County Council ex p D [1998] ED CR 14, Laws J considered a decision of a statutory appeal committee hearing an appeal against the exclusion of a boy from school. The committee was under a statutory duty to give reasons for its decision. As in Angel, inadequate reasons had been given for the decision, as in that case no more than an uninformative generalisation. Subsequently, the chairman of the committee made an affidavit explaining the reasons for the decision. Laws J said, at 24A:

"There are some classes of a case in which the adequacy of the reasons is itself made a condition of the legality of the decision. In such instances, later evidence giving a proper explanation of the reasons by definition cannot cure the legal defect which would arise if the original reasons were inadequate. But this is not such a case, and Mr Clayton does not contend the contrary. It seems to me with respect that the passage from Hutchison L.J.'s judgment which I have cited, and also Latham J.'s reasoning, give a resounding and salutary warning against a particular danger that may arise where originally faulty reasons are sought to be cured by later evidence. It consists in the risk that the later material, albeit put forward in perfect good faith, in truth officers an ex post facto justification for the decision which in substance travels beyond, and may differ from, the actual reasons entertained by the decision-maker at the time. It is, I think, important to notice that the learned Lord Justice was dealing with a case (as "the real reasons were wholly different from the stated reasons". I would emphasize also his deprecation (in para.3) of the "wholesale amendment or reversal of the .....reasons". I accept, however, that even where the court is confident that the later evidence represents the actual reasons given at the time, it will not automatically receive the later material. Whether it will do so will be a matter for the court's discretion case by case. Broadly speaking, the court will have in mind the great importance to be attached to the giving of legally sufficient reasons at the time they are supposed to be given. As Hutchison L.J. said (para.3) "...The purpose of reasons is to inform the parties why they have won or lost and enable them to assess whether they have any grounds for challenging an adverse decision." At the same time, in a case where the court is entirely satisfied, despite an original defect in the reasons given, that the public body in question has arrived at a perfectly proper decision amply justified (so far as any public law tests are concerned) by reasons by which it was entitled to entertain and which it did entertain at the time, it may be slow to strike down the decision on the basis only that the later explanation should have been given when the decision was communicated. I recognise that Hutchison L.J. (in the opening sentences in para.2) draws a distinction between elucidation on the one hand and correction or addition on the other. But I think with respect it is clear that he was concerned with the class of case where the later material exhibits a significant or indeed fundamental shift of ground from the reasons given at the time."

Laws J accepted the affidavit and on the basis of the facts to which it deposed upheld the committee's decision.

33. There are substantial differences between the present case and Ermakov. In Ermakov, there was a statutory duty to give reasons at the same time as notifying the applicant of the decision. The statutory duty led Hutchison LJ to identify the notification of the decision with the reasons given for it: hence the restriction of his conclusions to the provisions of s 64 of the 1985 Act. In the present case, there is no such express duty, and if there is a duty to give reasons it does not follow that they must be given with the notification of the decision of the Academic Committee. Secondly, there is the issue whether the reasons contained in the letter of 3 October 2000 were elucidatory or inconsistent with the letter of 30 June 2000, an issue that I address below. Thirdly, the letter of 3 October 2000 clearly came to be written as a result of the sensible exchanges between the parties' solicitors to which I have referred above. The fact that it came to be sent a few days after the filing of the claim form seems to be coincidental. In this connection, I refer to paragraph (5) of the conclusions of Hutchison LJ above.

34. In my judgment, the following propositions appear from the above authorities:

(i) Where there is a statutory duty to give reasons as part of the notification of the decision, so that (as Law J put it in Northamptonshire County Council ex p D) "the adequacy of the reasons is itself made a condition of the legality of the decision", only in exceptional circumstances if at all will the Court accept subsequent evidence of the reasons.

(ii) In other cases, the Court will be cautious about accepting late reasons. The relevant considerations include the following, which to a significant degree overlap:

(a) Whether the new reasons are consistent with the original reasons.

(b) Whether it is clear that the new reasons are indeed the original reasons of the whole committee.

(c) Whether there is a real risk that the later reasons have been composed subsequently in order to support the tribunal's decision, or are a retrospective justification of the original decision. This consideration is really an aspect of (b).

(d) The delay before the later reasons were put forward.

(e) The circumstances in which the later reasons were put forward. In particular, reasons put forward after the commencement of proceedings must be treated especially carefully. Conversely, reasons put forward during correspondence in which the parties are seeking to elucidate the decision should be approached more tolerantly.

35. To these I add two further considerations. The first is based on general principles of administrative law. The degree of scrutiny and caution to be applied by the Court to subsequent reasons should depend on the subject matter of the administrative decision in question. Where important human rights are concerned, as in asylum cases, anxious scrutiny is required; where the subject matter is less important, the Court may be less demanding, and readier to accept subsequent reasons.

36. Secondly, the Court should bear in mind the qualifications and experience of the persons involved. It is one thing to require comprehensiveness and clarity from lawyers and those who regularly sit on administrative tribunals; it is another to require those qualities of occasional non-lawyer tribunal chairmen and members

37. With those considerations in mind, I turn to consider the 2 letters in question in this case and the witness statement of Mr Nicholls. I have concluded, but not without considerable hesitation, that I should accept the letter of 30 October 2000 as containing the reasons of the Committee for rejecting Ms Nash's appeal. My reasons are as follows:

(i) The letter of 30 June 2000 did not address the substantive issues considered by the Committee. Since these matters had been considered by the Committee over a day and a half, it was obvious that the reasons for the Committee's decision on these issues had not been given.

(ii) Accordingly, this is not in substance, and despite the wording of the letter of 30 June 2000, a case of contradiction between the original reasons given for the substantive issues considered by the Committee and the reasons given subsequently.

(iii) The parties through their solicitors had envisaged at least "clarification or expansion" of the Committee's reasons. To that extent, this case falls within the exception referred to in paragraph (5) of Hutchison LJ's judgment in Ermakov.

(iv) This is not a case in which the terms of the relevant rule or regulation expressly require a decision to be communicated together with the reasons for it. Even if there is an implied obligation to give reasons, I see no reason why they cannot be lawfully given subsequently to the communication of the decision.

(v) While the College had the advantage of seeing Ms Nash's draft claim form before the letter of 3 October 2000 was sent, the essential omission from the letter of 30 June 2000 was already obvious.

(vi) The fact that the letter was sent subsequently to the institution of proceedings was coincidental. The letter was written in an attempt to avoid proceedings; and I infer that but for Ms Nash's solicitors' concerns as to the effect of Part 54.5 they would not have instituted proceedings until after the letter was received.

(vii) The delay before the sending of the letter of 3 October 2000 was not such as to cast doubt as to the recollection of Mr Nicholls.

(viii) Neither Mr Cina's nor Mr Nicholls' good faith has been challenged.

(ix) There was really a very limited scope for the reasons of the Academic Committee on the main issue raised by Ms Nash, i.e., her complaint as to the material before the Board of Examiners concerning her extenuating circumstances, which must have occupied most of the hearing before the Committee, other than the possibility that the Committee had decided not to deal with it at all. That possibility, in the light of the judgment of Elias J, would have involved bad faith on the part of the Committee or something close to it. It is improbable that it occurred.

(x) I agree with Mr Jones that it was undesirable that the letter of 3 October 2000 was signed by Mr Cina, who was disqualified from sitting on the Academic Committee and did not do so, and that he played a part in its drafting. It should have been drafted and signed by Mr Nicholls, preferably after it had been approved by the members of the Committee. However, ultimately this point goes to the question whether the Court can and should accept the witness statement of Mr Nicholls. Mr Cina stated in the letter that he had consulted at length with both Mr Nicholls and the clerk to the Committee before writing the letter, and there is no reason to disbelieve that statement.

(xi) While it is desirable that all the members of a Committee subscribe to reasons given subsequently, it is not essential if the Court is satisfied that the reasons put forward do represent those of the Committee. In arriving at the conclusion that I am so satisfied, and in exercising my discretion to allow in Mr Nicholls' evidence, I have taken into account the fact that in terms of the seriousness of its subject matter, this case is at the lower end of the spectrum: that the Academic Committee and the Board of Examiners were concerned with matters that could have had only a marginal effect on Ms Nash's degree and at most a marginal effect, if any, on her career.

38. In my judgment, this case is at the extreme end of the spectrum of cases in which the Court should accept late reasons on the evidence of only the Chairman of the body in question. Nonetheless, for the above reasons, I consider it appropriate to do so.

Were the reasons contained in the letter of 3 October 2000 sufficient and lawful?

39. According to the letter of 3 October 2000, the Academic Committee decided that the information before the Board of Examiners was sufficient for it to form "a full and fair impression of the effect of the alleged events which in its judgment might have had a bearing on your Stage 2 work". On the face of it, this was a decision that the Committee was entitled to come to. It was for the Committee to compare the material before the Board of Examiners and that which Ms Nash contended should have been before them, and to decide whether or not the Board of Examiners was able to form a "full and fair impression" on what it had as against the total material available: i.e., whether the irregularity in the failure of the Board to consider Ms Nash's material was material to its decision. The Academic Committee was similarly entitled to determine Ms Nash's complaints that the documents put before the Board of Examiners did not give a full and fair account of the relevant facts. The letter of 3 October 2000 states that they concluded that the documents before the Board did give a full and fair impression.

40. However, Mr Jones submits that the conclusion of the Academic Committee was perverse, since it ignored the ruling of Elias J in the first judicial review proceedings. He cites the passage in Elias J's judgment at 582B-D. I disagree. Before Elias J it was conceded that the refusal of the Academic Committee to look at documents which Ms Nash wished to rely on was a material irregularity: see at 581D-E. The decision of Elias J was that the decision of the Chair of the Academic Committee to exclude material on which the Claimant wished to rely was beyond the powers of the Chair; and that the Claimant should have been informed what material was before the Committee.

41. Any unjustified refusal of a tribunal to accept evidence on which a party wishes and is entitled to rely is an irregularity. However, if the appellate tribunal considers that its acceptance would have made no difference to the decision of the lower tribunal, the irregularity is not a material irregularity. It was within the competence of the Academic Committee to consider and to decide whether the irregularity was material or not. In general a tribunal should be slow to accept that additional evidence would have made no difference: a principle Elias J referred to at page 584B. However, the decision is that of the Academic Committee, and unless it can be shown to be perverse by reference to the material before it, it should not be held to be so. The subject matter of the decision of the Academic Committee is very much one in respect of which the Court should give due weight to the expertise and experience of the Academic Committee. In this connection it is pertinent to note that if Mr Jones's submission were correct, as a result of the decision of Elias J the Academic Committee had no option but to set aside the decision of the Board of Examiners and to remit Ms Nash's appeal to them. Elias J was not asked to order the Academic Committee to do this; and following his judgment, Ms Nash's solicitors did not contend to the College that that was the effect of his decision.

42. The letter of 3 October 2000 was also attacked as giving insufficient reasons for the decision of the Academic Committee. In the present context, elaborate or detailed reasons are not required. A brief summary is sufficient, enough for the appellant to understand why the decision was made. The letter of 3 October 2000 was sufficient.

43. Ms Nash's second complaint in relation to the decision of the Academic Committee is that it did not require the College to disclose to her the report of Mr Andrew Yates, the Dean of Art, who investigated her allegation of sexual harassment for the purposes of the College's disciplinary proceedings. The College claimed that it was irrelevant to her appeal to the Academic Committee. It seems to me that the report, which was obviously sensitive and confidential, could be of only marginal relevance to the issue before the Academic Committee. The decision of the Academic Committee not to cause it to be produced cannot be faulted. The Academic Committee, and the Board of Examiners, were concerned with Ms Nash's state of mind during her second year and its effect on the quality of her work, not the investigation into her allegation. In any event, Mr Jones was unable to identify the source of any obligation on the part of the College to disclose such documents to Ms Nash, other than the obligation to act fairly. It is not alleged that the report was before the Academic Committee, and the letter of 3 October 2000 states that it was not. The duty to act fairly does not generally involve a duty of disclosure. There was no unfairness on the part of the College in not disclosing Mr Yates' report, and certainly no unfairness in the conduct of the Academic Committee in this regard.

44. Ms Nash's complaint in relation to the non-production of the record of the assessment of 17 February 1999 was rightly not pursued having regard to the information as to its contents given in the letter of 3 October 2000.

45. Ms Nash complained of the participation of Professor Judith Chaney in the proceedings of the Academic Committee. Having regard to the matters set out in the letter of 3 October 2000, that complaint is not well-founded. There were no grounds for disqualifying her either at common law or under regulation 7.1 of the College's regulations.

46. In her letter of 13 May 1999, Ms Nash contended that the Board of Examiners should have interfered with the decision of the Assessment Panel because she had been given only one day's notice of "precedents" for the conduct of the Panel's proceedings involving confidential matters that had been referred to in Mr Cina's letter to her of 16 February 1999, and that the Panel should have adjourned its meeting to enable her to consider these precedents. In fact the so-called precedents were not previous decisions as such, but simply a perhaps pretentious way of referring to the manner in which the Panel had previously dealt with such matters. There was in fact no justification for any adjournment: the matter could and should have been dealt with by Ms Nash when the Panel met. I have to say that Ms Nash's reaction to the so-called precedents indicates a suspicion of the College. Be that as it may, although this matter was not addressed in the letter of 3 October 2000, there was nothing in the point, particularly since it concerned the proceedings of the Assessment Panel rather than the Board of Examiners, and the omission of any reference to it does not lead me to consider that the letter failed to comply with the requirements for reasons as explained by the House of Lords in Bolton Metropolitan DC v Secretary of State for the Environment (1995) 71 P & CR 309, i.e., that they should deal with the main issues in dispute.

47. In her letter of 12 June 1999, Ms Nash had alleged that the Chair of the Board of Examiners should not have been involved in the reconsideration of the Board's decision, because he had been involved in the Board's original decision. The College contends that he had to stay in office. The fact that he had been involved in the original decision did not disqualify him from remaining in office for the purpose of the reconsideration. There was no material irregularity in this respect. In addition, this was not one of the main issues in dispute, and its omission from the letter of 3 October 2000, having regard to the large number of issues raised by Ms Nash, does not affect the validity of the Academic Committee's decision. In any event, I should not exercise my discretion to grant relief in respect of this point, like that of the adjournment of the meeting of the Board of Examiners, since it would be both disproportionate and pointless to do so,

48. In the result, this challenge to the decision of the Academic Committee fails. As will be apparent from paragraph [4] above, this is a conclusion that I am not unhappy to reach. Assessment of the grades to which a student is entitled, particularly in a pre-final year, and particularly in a subject as qualitatively judgmental as art, may properly be the subject of relatively informal academic procedures, without the litigation-like substantially documented and highly adversarial steps seen in this case. Recourse to judicial review should be unnecessary. It is significant that academia is one of the few areas of activity of public authorities that may be excluded from judicial review, by the provision of a visitorial jurisdiction. Like Elias J, I should readily have interfered with the decision of the Academic Committee if I had been satisfied that it was marred by real unfairness, or if I had thought that it did not properly consider the real issues before it, if it had failed correctly to apply the regulations of the College, or if there was any justification for an attack on the good faith of the academic staff in question. Those requirements have not been met.