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	England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Clarke, R (on the application of) v Cardiff University [2009] EWHC 2148 (Admin) (19 August 2009) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2009/2148.html Cite as: [2009] EWHC 2148 (Admin)

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IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
CARDIFF DISTRICT REGISTRY
ADMINISTRATIVE COURT

		Royal Courts of Justice Strand, London, WC2A 2LL
		19 August 2009

Mr Justice Wyn Williams:

1. The Defendant is a provider of the Bar Vocational Course (BVC) under franchise from the Bar Council. Students who undertake the BVC undergo a series of assessments and examinations. At the conclusion of the course those who pass are graded as "Competent", "Very Competent" and "Outstanding". Students who do not meet the criteria for being judged Competent, at least, fail the course.
2. The Claimant was a student registered by the Defendant for the academic year 2004/2005. She began the course on 6 September 2004. At the conclusion of the course she was adjudged to have failed in two topics – Negotiation and Advanced Criminal Law. In consequence she did not meet the criteria for the Competent Grade. Since that time (June/July 2005) the Claimant has been involved in an acrimonious dispute with the Defendant.
3. As will become apparent, I consider that there are two issues which I have to determine. In order to understand the evolution of those issues, however, I consider it necessary to set out the relevant facts in some detail and in chronological order. I say now, too, that a full recital of the relevant facts is likely to assist me in resolving such applications as may be made in relation to costs.

The Relevant Facts as they unfolded

4. In November 2004 The Claimant was present when one of the course tutors, Dr. Robin Wheeler, allegedly displayed racial prejudice towards a Jewish student. As I understand it, the Jewish student lodged a complaint against Mr Wheeler and an investigation ensued.
5. Some weeks thereafter the Defendant issued a booklet in which it described the option choices which were available to students. One such choice was Advanced Criminal Law; in 2004/2005 this option was taught by Miss Helen Edwards and Dr Wheeler. The Claimant chose Advanced Criminal Law as one of her option subjects.
6. Negotiation is and was in 2004/2005 a compulsory subject. In practice assessments in this topic the Claimant had done well. In her first witness statement she says that she had received marks between 70% and 85%.
7. On 22 March 2005 the students were assessed in Opinion Writing, another compulsory subject. Shortly after the assessment had concluded members of staff of the Defendant became concerned that some or all of the students had obtained information about the content of the assessment in advance of it taking place. Mr Andrew Jerram, then the Course Leader, and two members of staff, Miss Hannah Walsh and Ms Helen Edwards discussed the issue. They concluded that all students should be asked to produce the textbooks that they had been permitted to take into the Opinion Writing assessment. The purpose of making such a request was that it would reveal any annotation of the textbooks which, in turn, might reveal if a student had advanced knowledge of the topic of the assessment.
8. As I understand it, Mr. Jerram and his colleagues decided that members of staff of the Defendant would contact all students with a request that they bring the relevant textbooks into the University on 24 March 2005. That date was chosen since all the students were due to be assessed in Negotiation on that date.
9. During the course of 23 March 2005 members of staff of the Defendant took steps to contact all students. They wrote letters to them; they also tried to contact them by telephone.
10. The Claimant did not receive a letter from the Defendant before she set off for her Negotiation assessment on 24 March 2005. That is hardly surprising; the Claimant lived in Swansea and she needed to leave home early in the morning. As I understand it, it is common ground that a telephone message was left on the Claimant's mobile phone on 23 March. Unfortunately she had not picked it up. The upshot was that when the Claimant left for University on the morning of 24 March she did not take with her the relevant textbooks.
11. The Claimant asserts that shortly before her Negotiation assessment began Mr Jerram and Ms Walsh questioned her about why she did not have the relevant textbooks with her; they also told her that she would have to go home to collect home the books and then return to University. The Claimant asserts that this was an upsetting episode.
12. On 14 May 2005 the Claimant submitted a form to the Defendant which is entitled "Extenuating Circumstances Application Form" in respect of the Negotiation assessment. The purpose of submitting the form, as its title suggests, is to invite the Defendant to accept that extenuating circumstances existed at the time that the assessment was undertaken. In the event that the Defendant concludes that such circumstances did exist it can take a number of courses of action in relation to the assessment in question. The Claimant submitted her application beyond the period allowed by the relevant Regulations. Nonetheless, as will become apparent, the Defendant considered it.
13. The Application Form is divided into a number of sections. Section 1 requires the student to give a brief description of the extenuating circumstances relied upon and how these affected the performance in the assessment in question. In this section the Claimant wrote: -

"I was subjected to considerable stress a few minutes prior to the Negotiation Summative examination.

I had prepared very well for this examination and I feel that this undue stress could have affected me to my detriment. Please see attached sheet for further details."

The attached sheet set out the following:-

"On entering the 'holding room' just prior to the examination I was aware, as a consequences of conversation with other students that there were rumours of malpractice and books and manuals were being checked for evidence of cheating.

I was called into the examination room with my opponent for the purpose of the examination. I was then immediately asked to leave the room by the two tutors who wanted to speak to me outside. I left the room with them.

The tutors asked me if I had brought my books and manuals so that they could be checked. I replied that I had not as the first time I had heard of the allegations was briefly in the 'holding room' moments before. I was asked if I have received a call from the Course Administrator in the afternoon prior and I said that I had not – that I was at home all day (revising) and I had not received any such call. I was asked if I had my mobile telephone with me to which I replied affirmatively and produced it from my bag. I selected 'missed calls' and was told by one of the tutors that a call, from the Course Administrator, if recorded would be logged as 'no number'. Sure enough a call was logged at 15.05 with 121 at 15.15 (voicemail recorded message). I pressed '121' to activate the call and heard the Course Administrator requesting production of the books and manuals, to be checked at the examination. It was not until I stopped off on my way home to call another student to remind her of the need to bring her books so that she did not have make extra journeys, that my voicemail was activated and I heard the recorded message.

The tutors told me that I would need to return back to Swansea to collect my books and return back to Cardiff again so that they could be checked. I asked if I could come back the following day but this request was declined. I was, I admit, very cross at the prospects of three further journeys back and forward to Swansea and Cardiff of 11/2 hours each. I did not understand the gravity and seriousness of the situation and was upset and disturbed.

I was then directed back into the examination room for the purpose of the examination but I was very upset and said so. I realised that I needed to compose myself so I asked if I could go to the bathroom and this was agreed. I returned to the examination but remained upset and disturbed. The examination was conducted."

14. From about April 2005 onwards the Defendant was actively investigating the complaint made against Dr Wheeler by the Jewish student. On 18 May 2005 the Claimant provided a statement to the Professor who was investigating the complaint; the statement was supportive of the complaint.
15. The Claimant undertook her Advanced Criminal Law assessment on 7 June 2005.
16. On 16 June 2005 a member of staff of the Defendant informed the Claimant that she had failed her Negotiation assessment. On 21 June Mr. Jerram provided feedback upon the assessment. On 24 June the Claimant made another application to the Defendant in respect of her Negotiation assessment. On this occasion she made what is called an "Adversely Affected Assessment Circumstances" application. In it she referred to her application for extenuating circumstances but she also complained that her assessment had been "incorrectly and inaccurately marked".
17. The process of marking this assessment is set out in the witness statement of Mr Jerram. The Claimant's assessment was first marked by Ms Hannah Walsh. She assessed the appropriate mark as being 50%. The assessment was "moderated" (i.e. marked again) by Mr Jerram. He marked the assessment at 47%. The Claimant's assessment was then subject to further marking by an external examiner, Mr Paul Randolph. He reduced the Claimant's mark to 46%.
18. Despite her applications in respect of the Negotiation assessment the Claimant took the assessment again on 30 June 2005. It is common ground that subsequently the Claimant's percentage mark was assessed as 62% for this assessment. However, because the assessment was treated as a second attempt the actual percentage mark awarded was 50%.
19. On 30 June 2005 a Committee convened by the Defendant (the Extenuating Circumstances Committee) considered the Claimant's applications in respect of the Negotiation assessment. In summary, they rejected them. I deal with this decision in detail later in this judgment
20. The Defendant informed the Claimant of her results, overall, on 4 July 2005. As I understand it that was when she was first told that she had failed Advanced Criminal Law. The Claimant immediately or at least very soon suspected that Dr. Wheeler had treated her unfairly on account of her support for the complaint made against him.
21. I should make it clear at this stage that there is no evidence to support the Claimant's suspicions. It is correct, as a matter of fact, that Dr. Wheeler was one of the persons who marked the Claimant's assessment. However, Dr. Wheeler has made a witness statement in which he says that he did not know that the Claimant had made a statement supporting the complaint until after he had completed his marking of the Claimant's assessment. There is no basis upon which I can properly reject Dr. Wheeler's evidence on this point and there is simply no basis upon which I can conclude that Dr. Wheeler treated the Claimant unfairly when he marked her assessment.
22. On 11 July 2005 the Claimant had feedback from Dr. Wheeler. There is a factual dispute about what was said which it is impossible for me to resolve and, in any event, the factual dispute has been overtaken by events.
23. The Claimant did not re-sit the Advanced Criminal Law assessment. Rather, she has, to this day, disputed the validity of the mark which she was awarded.
24. The Claimant's Advanced Criminal Law assessment was first marked by Dr Wheeler. He awarded the Claimant 47%. It is worth observing that Dr Wheeler marked each of the students who had chosen Advanced Criminal Law except for one. The Claimant's assessment was moderated by a second Internal Examiner. That was Ms Hannah Walsh. She assessed the appropriate mark as being 40%. The Claimant's assessment was then sent to the External Examiner – in this instance Mr Charles Cook, a barrister in private practice in Cardiff and an experienced practitioner in Criminal Law. It appears that he may have gained the impression that the Claimant's mark was 47% as opposed to 40% but, whatever the true position, he was also of the view that the Claimant's mark did not reach the required standard for her to be graded as Competent in this subject. The Defendant's Examining Board confirmed her mark for Advanced Criminal Law prior to the Claimant being informed of her result.
25. In the aftermath of receiving her results the Claimant lodged a number of complaints and appeals relating to a number of topics. It is unnecessary for those to be set out in this judgment save for those relating to Negotiation and Advanced Criminal Law.
26. On 18 July 2005 the Claimant submitted to the Defendant an application for verification of her results. She sought verification that her assessed marks were free of arithmetical error or other errors of fact; that the examiners were aware of exceptional personal circumstances reported prior to the meeting of the Examining Board; that the examiners were aware of defects or irregularities in the conduct of the examinations which might have affected her performance. In relation to the accuracy of the marks the Claimant queried both Negotiation and Advanced Criminal Law; she did not mention Negotiation or Advanced Criminal Law in relation to exceptional extenuating circumstances; in relation to defects and irregularities she mentioned the events immediately preceding the Negotiation assessment. In particular, she stated that she had been "subjected to unreasonable stress, breach of privacy and pressure seconds before being assessed for the Negotiation assessment by the Course Leader, Mr. Andrew Jerram and by Mrs. Hannah Walsh, who was about to assess me."
27. Under the Defendant's procedures when a verification request is received the Chair of the Examining Board is contacted and he/she is asked to provide a written response. The Chair of the Examining Board was Mr. Jerram and he provided a written response on 3 August 2005. In relation to the complaint of irregularities preceding the Negotiation assessment, Mr. Jerram provided a robust response the essential thrust of which was that the matter had been considered at the Extenuating Circumstances Committee. He laid particular stress upon the view expressed at that Committee by the External Examiner. Following receipt of Mr. Jerram's response, the Pro-Vice Chancellor referred all the Claimant's complaints to a re-convened Examination Board to review the case.
28. The appeal was considered at a re-convened Examining Board on 27 September 2005. Minutes of the meeting are included in the Trial Bundles. The minutes record the persons present and they also record that Mr. Jerram and Ms Walsh declared an interest and did not participate in the decisions relating to the Claimant although the minutes record that "where members have declared a professional interest...they would remain in the room, but solely so that they could provide any factual information requested by the remaining members."
29. The Board resolved that the Claimant's mark for Advanced Criminal Law as confirmed by the Examining Board in July 2005 was accurate. It also resolved that the evidence submitted did not justify the conclusion that the Claimant's performance in Negotiation had been adversely affected by the circumstances upon which she relied.
30. A summary of what transpired in the months that followed can be gleaned from the chronology which both the Claimant and Defendant have prepared for these proceedings.

Chronology of these proceedings

31. The Claimant issued her Claim Form in these proceedings on 4 July 2006. In her Claim Form the Claimant seeks a declaration that the basis upon which the Defendant marked her Advanced Criminal Law assessment was unlawful; she seeks quashing orders in respect of the decisions made by the Extenuating Circumstances Board on 30 June 2005 and the re-convened Examination Board of 27 September 2005 and she seeks mandatory orders requiring the Defendant to credit the Claimant for errors of marking in respect of the Advanced Criminal Law assessment and re-consider the Claimant's extenuating circumstances application in relation to the Negotiation assessment.
32. An oral permission hearing took place in this case. The grant of permission was vigorously opposed by Mr. Clive Lewis QC on behalf of the Defendant. Nonetheless Charles J granted permission. As will become apparent, however, events have occurred which have changed the nature of the case presented to Charles J to a very significant degree in relation to the Claimant's complaints about the marking of the Advanced Criminal Law assessment and decisions taken by the Defendant in relation to that topic. It is to this issue and the events which surrounded it that I now turn.
33. On 24 October 2006 a hearing took place in these proceedings before Goldring J (as he then was). The Claimant was represented by Mr Patrick Green and the Defendant was represented by Mr Clive Lewis QC. The formal order made by Goldring J was that the hearing of the claim for judicial review should be adjourned on the conditions set out in the Schedule attached to his order with both parties having liberty to apply in relation to the carrying into effect of such conditions. The terms set out in the Schedule were, of course, what was important; it is necessary to set out the terms in full.

"1. An examiner nominated by the Bar Council be asked by Cardiff University to assess the 2004-2005 performances of Alice Sarah Clarke and two other students in Advanced Criminal Law as part of the Bar Vocational Course (the two other students being one graded as not competent, the other being graded as competent, each being the first alphabetical by surname with that grade in Advanced Criminal Law) against the background of marks achieved by other students, so as to aim to ensure the reasonable consistency of achievement between like candidates.

2. The examiner nominated in paragraph 1 to be experienced in assessing Advanced Criminal Law for the Bar Vocational Course and to have no substantial connection with Cardiff University or Cardiff Law School.

3. The examiner to be provided with, if available, the following and no other material:

(1) the brief given to students for the assessments;

(2) three blank marking grid;

(3) the video tape of the assessment of Ms Clarke and the other two students;

(4) the video tape assessments for 2004/2005 of all other students who took Advanced Criminal Law and the complete marking grids for those candidates;

(5) such other material as the Examiner may request.

4. The Defendant to provide the above material as soon as reasonably practicable, having regard to point 4 below, after being informed of the name of the proposed examiner (or upon any later request).

5. The external examiner to be invited to report on what grade Ms Clarke and the other two students' performance should be awarded within 14 days of receipt of the material referred to above.

6. A reconvened board of examiners to meet as soon as reasonably practical after receipt of the report of the examiner and, if possible, before 22 November 2006 to consider the report.

7. The reconvened Board of Examiners to communicate its decision to the Claimant as soon as reasonably practicable and, if possible, within three hours of the end of its meeting, by fax or by email (the Claimant to supply such details in writing by 4.00pm on 26 October 2006)."

34. As is apparent from the terms of the Schedule the parties then envisaged that a process of re-marking the Claimant's Advanced Criminal Law assessment would be undertaken and would be completed within the course of 2006.
35. There then followed a protracted period of time during which, in summary, the Claimant was objecting to the appointment of the chosen examiner. Accordingly, further assistance was sought from the Court. On 9 April 2008 Collins J made an order which had the effect of appointing Ms Sutton to carry out the marking exercise as laid down in the Schedule to the Order of Goldring J. He also directed "that until that exercise is completed and the result has been communicated to the claimant and the defendant neither Eversheds nor any servant or agent of the defendants shall or shall seek to make any contact with Ms Sutton."
36. An application was made by the Claimant before Forbes J. On 10 April 2008 the Defendant's Solicitors wrote to the Claimant pointing out that Collins J had made the order to which I have referred and making the proposal that in the event that Ms Sutton had any questions that those questions should be put in writing and the response agreed between the Claimant and the Defendant's Solicitors before being forwarded to her by Professor Jonathan Osmand who was to be the person chosen to communicate with Ms Sutton on behalf of the Defendant.
37. By this stage, as Collins J recorded in his Order of 9 April 2008, the Claimant had no faith in the bona fides of the Defendant or, for that matter, its solicitors. Accordingly, in the weeks that followed there were further difficulties over how communication was to take place between Ms Sutton and the Defendant. Those issues were considered, as I understand it, in a further Order by Collins J dated 9 May 2008.
38. By letter dated 23 June 2008 Professor Osmand wrote to Ms Sutton in the following terms:-

"You have been asked to act as an independent examiner, nominated by the Bar Council, to assess the performance of candidates 0330, 0335 and 0446 who took the Advanced Criminal Law course as part of the Bar Vocational Course for 2004/2005 and to determine the grade that you consider would be appropriate for those candidates' performance.

I enclose the following material:

1. the brief given to students for the assessment;

2. three blank marking grids;

3. the video tape of the assessment of those candidates.

I also enclose the video tape assessments for 2004/2005 of the other students, with grades including, not competent, competent, very competent and outstanding together with the completed marking grids for those candidates.

I would be grateful if you could provide your report, indicating the grade you consider would be appropriate for the candidates within 14 days if possible. Should you require any other material, I will be happy to provide it if possible but I would ask that you put your request in writing although this can be by way of e-mail if you prefer. My e-mail address for this purpose is [email protected]"

The Claimant's number was 0446.

39. On 15 July 2008 Ms Sutton sent an email to Professor Osmand which was in the following terms:-

"I have just this afternoon received the file and video tape performances that you sent quite a while ago.

I will prepare a full report but I thought that you would be keen to know that I have awarded the candidates the following marks:

0446: 71%

…….

I am a little unclear whether or not there is any further information that you wish me to include.

I confirm that I read the assessment material in advance and could not see any procedural irregularity with the assessment (from an outsider's perspective). I also watched a sample of the other performances and believe that my marks are consistent with results given.

Please could you let me know what level of detail you would like in my report, and if there is anything which you specifically wish for me to comment upon?"

40. Professor Osmand sent an email to Ms Sutton on 16 July 2008. He informed her that he had passed her marks and questions to the "appropriate authorities" and he was waiting for guidance on what more she might be expected to provide.
41. There must have been a further communication by email after that date from the Professor since on 22 July 2008 Ms Sutton sent an email to Professor Osmand. In this email she wrote:-

"Unfortunately I won't be able to refer back to the videos until I go home this evening as we only have DVD playback facilities on campus. However I have looked back at my notes and have the following:

Alice Clarke: 71%

……….

I hope that helps.

Am I allowed to know the issues with the candidates as I am curious whether my marks tally with your own markers?"

42. On 24 July 2008 Professor Osmand sent a query to Ms Sutton asking whether she had checked her assessments against the videos. He also said:-

"I am advised by the Solicitors that you should not at this stage be given any information about the issues or about the marking here. The important thing is that your marks are accurately allocated to the individual candidates and they have been arrived at entirely independently."

43. Ms Sutton's reply indicated that she had viewed the tapes again; that she was satisfied that she had marked Alice Clarke at 71% and she confirmed that she was unaware of the issues/marks awarded by Cardiff University and that she had marked the assessments independently.
44. Between 25 July 2008 and 4 September 2008 there was further email correspondence between Ms Sutton and Professor Osmand. I do not propose to set it out in detail but it is quite clear that the Defendant was questioning the mark of 71% which Ms Sutton had awarded to the Claimant's assessment. In particular, quite a detailed exchange took place about whether advice which the Claimant had given during the course of her assessment about whether the previous convictions of the Defendant would be admitted in evidence should have resulted in her failing the assessment. The upshot was an email of 4 September 2008 from Ms Sutton to Professor Osmond in the following terms:-

"I have had an in-depth look at the law-relating previous convictions as it stood at the time of undertaking the assessments in 2005. At that time there had only very recently been a case setting out how Court should deal with previous convictions when raised by the Prosecution to show that the Defendant had a propensity to commit certain kinds of offences. The matter of previous convictions for sexual offences was also clarified in this case.

While the candidates' advice is ultimately wrong on the point about all previous convictions being admissible I think it would be wrong to penalise her now as it is difficult to say what she had been informed about the law relating to previous convictions at the time – as this was all new in 2004/2005.

In those circumstances I would not fail her on the "red-light rule" but on reflection I would bring her mark down to 65% instead of 71%.

I hope that makes my position clear."

45. The reference in the email to the "red-light rule" is a reference to an error of such magnitude that this of itself would cause a candidate to fail an assessment.
46. The Claimant was completely unaware of the email exchanges between Professor Osmand and Ms Sutton. Indeed, as I understand it, during the whole of the period between July 2008 and early September 2008 she was unaware that Ms Sutton had marked her assessment at 71% in the first instance and then reduced it to 65%. That state of affairs existed notwithstanding the fact that during the same period the Claimant was writing to the Defendant's Solicitors. She wrote enquiring what was happening on 17 July 2008 and 1 August 2008 and received responses which did not begin to explain to her what was actually happening between the Defendant and Ms Sutton.
47. It does not seem to me that what transpired between the Defendant and Ms Sutton was consistent with the Order of Collins J dated 9 April 2008. As I have said, Collins J made a direction that until Ms Sutton's exercise was completed and the result communicated to the Claimant and the Defendant neither the Defendant's Solicitors nor any servant or agent of the Defendant should seek to make contact with Ms Sutton. Even if it could be argued that the contact with Ms Sutton occurred after she had communicated her mark to the Defendant on 15 July 2008 it was, in my judgment, against the spirit of his Order and certainly against the spirit of the letter dated 10 April 2008 sent by the Defendant's Solicitors to the Claimant. In my judgment this episode does not reflect well on the Defendant or its solicitors.
48. On 16 September 2008 an Examining Board considered the assessment undertaken by Ms Sutton. The minutes of the Board are before me. On this occasion Mr. Jerram and Ms Walsh (and two other members of the Board) not only declared an interest but withdrew from the meeting when the Claimant's case was considered. Three options were considered: -

i) to accept the original mark of 40% received by the Examining Board in 2005;

ii) to accept the second mark of 65% received by the Board in 2008 from Ms Sutton;

iii) to conclude that the Board could not make a judgment as between the two.

Three members of the Board voted to accept the original mark; one member of the Board voted to accept the mark of Ms Sutton and three members of the Board indicated that they could not make a judgment as between the two marks. The members then resolved that since there was no consensus to accept the mark awarded by Ms Sutton they would make no change to the decisions previously made.

49. By letter of the same date the Course Leader, Ms Jetsun Lebasci, informed the Claimant of that decision. Her letter concluded by telling her that she had failed to successfully complete the BVC and that there was no change to her academic status.
50. On 8 October 2008 the parties appeared before Ouseley J. The Learned Judge made a number of directions including directions which permitted the Claimant to amend her grounds of claim and the Defendant to respond. On 5 November 2008 the Claimant filed and served amended documents in which she sought to challenge the decision taken by the Examination Board on 16 September 2008. On 4 December 2008 the Defendant filed and served amended grounds of resistance in which it denied that the Claimant was entitled to any relief relating to the decision taken on 16 September 2008.
51. Notwithstanding the stance taken in these proceedings in the amended grounds of resistance, the Defendant had, in fact, already taken steps to have the Claimant's Advanced Criminal Law assessment marked yet again. In a witness statement dated 25 June 2009 Dr Christopher Turner, the Director of Registry, Governance and Students and the Secretary of the Defendant, describes how he agreed with Professor Gillian Douglas, the Head of the Defendant's Law School that the Claimant's performance in Advanced Criminal Law should be considered by another external examiner for the purpose of "moderating" the mark which had been awarded by Ms Sutton. They also agreed that whatever the result, the moderated mark would be placed in front of the Awards and Progress Committee of the Defendant who would be empowered to make a decision on whether the Examining Board's decision was to be upheld or overruled (see paragraph 5 of Dr Turner's Witness Statement).
52. The Defendant appointed Mr Andrew Shanahan to moderate Ms Sutton's mark. Mr Shanahan is an external examiner appointed by the Defendant and the Bar Standards Authority and he is an experienced Criminal Law solicitor. Indeed, he had attended the meeting of the Examination Board on 16 September 2008 in the capacity of external examiner (see paragraph 11 of Professor Douglas' second witness statement dated 9 December 2008).
53. On or about 12 December 2008 Mr Shanahan completed his moderation of Ms Sutton's mark. He produced a report to the Defendant and assessed the appropriate mark as 51%. In his report he said:-

"I respectfully disagree with Ruth Sutton's mark which is simply too generous and also with the moderated mark of 40% from the original marking (although I note the first mark was 47%)."

54. Following receipt of Mr Shanahan's report Dr Turner presented the mark to the Awards and Progress Committee of the Defendant for a determination upon whether the Examining Board's decision of 16 September 2008 should be overruled. He did so by virtue of Part 5.2 of the University Regulations which reads:-

"Where, consequent upon an appeal against the decision of an Examining Board, the University Awards and Progress Committee concludes that the decision taken by a Re-Convened Examining Board was unreasonable or cannot be sustained by the facts of the case, it shall have authority to override the decision."

55. The Claimant's case was presented to the Awards and Progress Committee on 20 January 2009. The Committee resolved that the decision of the Examining Board was to be overruled on the basis of the newly moderated mark of Mr Shanahan. The Claimant was notified of the decision of the Awards and Progress Committee by letter dated 26 January 2009. She was told of Mr Shanahan's moderation and that he had awarded an overall mark of 51% for the Advanced Criminal Law assessment. The letter continued:-

"The Awards and Progress Committee has considered the outcome of this moderation process and resolved as follows:

(i) That a mark of 51% (PM: Pass Module) be recorded for the Advanced Criminal Law assessment undertaken in 2005: the previous mark of 40% (FR: Fail Re-sit) is deleted from your record;

(ii) That your overall result for the Postgraduate Diploma in Bar Vocational studies be amended to Competent: the award is dated September 2005.

This result replaces the decision of the September 2008 BVC Examining Board and the revised record of learning and achievement for academic session 2004/2005 is attached for your information. The University Certificate will be issued to you by Registry in due course."

The attached record of learning and achievement showed that the Claimant had passed all the subjects comprising her course and that she had been awarded a Postgraduate Diploma with a classification of Competent.

56. On the same day or shortly thereafter, the Defendant's solicitors invited the Claimant to withdraw her claim for judicial review.
57. The Claimant has accepted the decision of the Awards and Progress Committee. I say that for two reasons. First, she has not sought to impugn the decision of that Committee in these proceedings. Further, she has been called to the Bar. That would not have been possible but for the decision taken by the Awards and Progress Committee.

Issues for My Determination

58. As I understand it the Claimant now seeks a declaration that the decision of the re-convened Examination Board on 16 September 2008 was unlawful. She does not seek a quashing order in respect of that decision; she cannot since it no longer subsists. The decision of the Examination Board on 16 September 2008 was overruled by the decisions of the Awards and Progress Committee taken on 20 January 2009. The Claimant seeks no other substantive relief in relation to her complaint relating to her Advanced Criminal Law assessment.
59. The Claimant also seeks a quashing order in respect of the decision taken by the Extenuating Circumstances Committee on 30 June 2005. If the Court grants a quashing order in respect of that decision the Claimant also seeks an Order requiring the Defendant to reconsider her application for extenuating circumstances.
60. Mr Clive Lewis QC on behalf of the Defendant submits that the Claimant has now been awarded a Competent grade in the BVC. He further submits that nothing done in these proceedings can change the award of Competent. Consequently, submits Mr Lewis, the proceedings are entirely academic. No remedy should be afforded in those circumstances and I should make no finding about the lawfulness or otherwise of the decision of 16 September 2008.
61. In making the submission that the proceedings are entirely academic Mr Lewis QC relies upon a witness statement made by Ms Lebasci on 26 June 2009. In that statement Ms Lebasci says that a student is graded as Competent if he achieves a percentage mark between 50% and 69%; a student is graded as Very Competent if the percentage mark is 70% to 84% and the student is graded as Outstanding if the percentage mark is 85% or higher.
62. Ms Lebasci also exhibits to her witness statement a number of hypothetical assumptions to demonstrate how the Claimant's overall result would be affected, if at all, if her results for Negotiation and Advanced Criminal Law were changed. In summary, even assuming that the Claimant is awarded the highest possible marks for each, namely, 62% in Negotiation and 65% for Advanced Criminal Law her overall grade would remain as Competent. As I understand it her actual result as it stands is a Competent grade with an overall mark of 61% whereas the grade upon the assumptions most favourable to the Claimant would remain as Competent but with an overall mark of 63%. This evidence is unchallenged and, in reality, unchallengeable.
63. I accept the submission of Mr Lewis QC that it is not appropriate to consider whether or not the decision of the re-convened Examining Board made on 16 September 2008 was unlawful. There are two principal reasons for that conclusion. First, as I have said, the decision no longer subsists. It was overruled by the decision of the Award and Progress Committee on 20 January 2009. Secondly, and in any event, even if the decision was unlawful relief would be inappropriate since it would have no effect upon the grade which has been awarded to the Claimant and which she does not challenge.
64. I turn to deal with the claim that the decision of the Extenuating Circumstances Committee of 30 June 2005 should be quashed.
65. I do not accept that this decision has no continuing effect. I accept that the decision has and can have no bearing on the Claimant's overall grade. As I understand it, however, as things stand the Claimant would have to disclose, if asked, that she failed Negotiation first time around and was required to re-take that assessment. If, however, her application for extenuating circumstances was successful, if re-considered, it is at least possible that the Defendant would treat her re-taken assessment as her first attempt. In these circumstances it seems to me to be appropriate to consider the Claimant's substantive challenge to this decision.
66. There are two aspects to the Claimant's complaint. First, Mr Jerram and Ms Walsh were the persons who caused her to be upset immediately before taking the Negotiation assessment. The Claimant does not assert that they did so deliberately; she does assert, however, that it was their conduct which had the effect of causing her to be upset. Yet Mr Jerram and Ms Walsh were members of the Extenuating Circumstances Committee which considered and refused the Claimant's application. The Claimant submits that this was a clear breach of the Defendant's duty to act fairly towards her. Second, Mr Patrick Green, on behalf of the Claimant, submits that they each gave demonstrably unreliable accounts to the Committee of what had occurred immediately before the Negotiation assessment.
67. In his witness statement dated 15 September 2006 Mr Jerram says that he chaired the Extenuating Circumstances Committee on 30 June 2005. It is clear that he participated, fully, in the decision which was reached. His account of the decision-making process is contained in paragraphs 32 to 35 of his witness statement. It is clear from his account that the facts surrounding the events preceding the Negotiation assessment were discussed by the Committee in detail. The Committee had before it the Claimant's account in her application (see paragraph 13 above). It is clear that Mr Jerram gave his account of what had occurred to the Committee. In paragraph 35 of his witness statement Mr Jerram says that he no longer recalls whether the Claimant's application for extenuating circumstances was rejected because the application did not merit extenuating circumstances or whether the Claimant's account was not believed. He also points that the Committee considered that there was tension between the Claimant's extenuating circumstances application (made on 14 May 2005) and her adverse circumstances application (made on 24 June 2005 after she had been notified that she had failed Negotiation).
68. In her witness statement, Ms Walsh says that Mr Jerram and she gave a factual account of the events that occurred prior to the Negotiation assessment. Ms Walsh also describes in her witness statement what she recollects of what had occurred immediately prior to the assessment taking place. It seems to me to be clear that her view was that the Claimant had not been upset prior to the Negotiation assessment. It seems clear that she communicated that view to the Committee.
69. Both Mr Jerram and Ms Walsh say that considerable weight was given to the view of the External Examiner who was present and participating in the decision-making process. That was Mr. Charles Cook.
70. In his witness statement dated 14 September 2006 Mr Cook says that Mr Jerram presented a summary of facts alleged by the student. The Committee members then considered the complaints and debated between themselves as to whether the facts were sufficient to amount to extenuating circumstances.
71. Mr Cook accepts that some of the facts presented to the Committee were facts which must have been provided by Andrew Jerram and Hannah Walsh. Mr Cook says that his view was that the facts alleged by the Claimant did not amount to extenuating circumstances. He also recalled that the view was expressed that the extenuating circumstances application was inconsistent with her application in relation to adverse circumstances.
72. It is common ground that minutes of this meeting were produced. Both Mr Cook and Ms Walsh say that the minutes constitute a summary. That of course is not surprising.
73. I accept Mr Lewis' point that I must guard against requiring too much formality of the Defendant in making an assessment about whether or not it acted fairly towards the Claimant in reaching the decision that it did upon her application for extenuating circumstances. Even making allowances for that point, however, it does not seem to me that it was fair for Mr Jerram and Ms Walsh to participate fully in the decision-making process when they were also providing information to the decision-makers which, inevitably, had the effect of casting doubt upon the Claimant's credibility. I have no doubt that the views of Mr Jerram and Ms Walsh were capable of being very influential in this particular decision. In those circumstances it does not seem to me to have been fair that they should have participated in reaching the actual decision. In reaching that view I have also paid due regard to the evidence of Ms Jill Bedford, the Superintendent of Examinations of the Defendant. Her account of the decision-making process is at paragraph 12 of her witness statement dated 18 September 2006. She says that Mr Cook was influential in guiding the Committee in relation to its decision upon the Claimant's application. She also says that she does not consider that Mr Jerram either pre-judged the decision or led the discussion upon the issues raised by the Claimant's application.
74. Notwithstanding the views expressed by Ms Bedford I repeat that I regard it as unfair that Mr Jerram and Ms Walsh participated in this decision-making process. Reduced to its essentials, they were providing a version of the relevant facts which were at odds with the Claimant's assertions. Her credibility was clearly under consideration, not just because she had submitted two applications which were seen as mutually inconsistent. Her credibility was in issue by virtue of the primary facts as presented by Mr Jerram and Ms Walsh. On the basis of Mr Jerram's witness statement there is at least a prospect that the Claimant's application in relation to extenuating circumstances was rejected because she was not believed. I do not regard the decision of Collins J in R v Liverpool John Moores University ex parte Hayes [1998] ELR 261 as compelling a contrary conclusion. That was a much different case on the facts. There is no suggestion in that case that persons with first hand knowledge of facts which are disputed gave their version of the facts to the decision-making body and then participated fully in the decision-making process.
75. That is not necessarily the end of the story. As I have said the Claimant appealed against the decision of the Extenuating Circumstances Committee and the decision of the Extenuating Circumstances Committee was upheld. Yet it seems to me that the Claimant was not treated fairly at the hearing of the Re-Convened Examination Board on 27 September 2005. Mr. Jerram and Ms Walsh were present throughout and it is to be inferred, reasonably in my judgment, that they repeated their version of the facts. I say that since their presence throughout the hearing was justified on the basis that they could provide information about the facts. If they had been providing information to persons otherwise unconnected with the first decision that may have been justifiable. In fact they were not. The Re-Convened Examination Board contained at least two persons (three if Ms Bedford is included) apart from Mr Jerram and Ms Walsh who had sat on the Extenuating Circumstances Committee. One of those persons was Mr. Charles Cook who was said to be very influential in relation to the decision of the Extenuating Circumstances Committee.
76. It also seems clear to me from the Minutes of meeting of the Re-Convened Board that it concluded that the Claimant had not been unduly upset by the "behaviour" of Mr. Jerram and Ms Walsh. That was also the view of the Extenuating Circumstances Committee. Neither at the Extenuating Circumstances Committee nor at the Re-Convened Examination Board did the members receive any views from the Claimant about the facts as told to the Committee/Board by Mr. Jerram and Ms Walsh. It does seem to me to be capable of being viewed as unfair that an oral explanation of the relevant facts was given (which was adverse to the Claimant) but she was given no opportunity for specific comment either in writing or orally. However, I do not need to reach a concluded view upon that issue given the views expressed above.
77. I have reached the conclusion that the decision of the Extenuating Circumstances Committee of 30 June 2005 to refuse the Claimant's application for extenuating circumstances relating to her Negotiation assessment should be quashed. Unless any representation is made to the contrary, I propose also to quash the decision of the Re-Convened Examination Board of 27 September 2005 insofar as it relates to the Claimant's application for extenuating circumstances.