Gajree v The Open University

LORD JUSTICE RIX: This is an application for permission to appeal brought by Miss Gina Gajree from the judgment of Collins J given on 25 July 2005. This application has had considerable difficulties in being brought to fruition. On a number of occasions over the past few months a hearing date has been set, adjourned and re-set. Miss Gajree has repeatedly requested adjournments. She has repeatedly been granted them. I have dealt with the matter over the last few months. Initially, the requests for adjournment were put on the ground of Miss Gajree’s mother’s illness and admission to hospital. I accept, and accepted, that Miss Gajree’s mother had been ill and had been admitted to hospital but was never totally satisfied that those real and no doubt distressing difficulties for Miss Gajree were in each case a necessary cause of her being unable to conduct this application if she had wished to do so. In this connection, the opportunity to conduct this application by video link with her home town, I think in Leicester, was more than once offered.

More recently the request for an adjournment was on the basis that Miss Gajree had, albeit belatedly, consulted solicitors. Miss Gajree requested a substantial adjournment to give her the opportunity to attend on her solicitors and receive their advice. Nothing has been forthcoming as a result of that adjournment.

Most recently of all, in respect of this hearing date, which has been in the diary for some considerable time, Miss Gajree has written recently to say that she would not be attending herself. Her letter said something about other appointments. They must be of considerable importance to prevent Miss Gajree attending but no details were gone into in her letter. Miss Gajree also asked if her sister could appear in her place. Originally that was requested on the basis that her sister would accompany her as her Mackenzie friend. I said that I was willing to hear Miss Gajree’s sister. I was expecting Miss Gajree’s sister to attend the hearing at not before 2pm this afternoon. The fixture at not before 2pm was given to Miss Gajree on her express request, apparently made on her own behalf at that time, that a fixture of not before 11.30am, as I recall, should be given as she would have to make her way to London. Hence the appointment of not before 2pm.

Earlier today at somewhere around midday, or not all that long thereafter, a message was received by the Court of Appeal office or the Listing Office, as reported to me, from Miss Gajree’s sister to say that she would be a little delayed. It is now 2.40pm this afternoon and Miss Gajree’s sister has not appeared, nor has Miss Gajree, nor has any word been heard from either of them since earlier today. Attempts have been made to contact Miss Gajree, possibly her sister, on such telephone numbers as the Court of Appeal office possesses but those attempts have drawn no response. I am therefore proceeding to deliver this judgment and to deal with the application now. If, however, Miss Gajree’s sister should appear at court this afternoon, I will of course be prepared to hear her and to revise my judgment as might turn out to be necessary. In the meantime I will proceed.

This application arises out of a degree for which Miss Gajree is studying as an MSC student at the Open University. Apparently, as part of her degree requirements, she was required to submit a piece of coursework in October 2003. On 16 January 2004, she was required to re-submit this coursework and she was instructed that certain revisions would be necessary in that regard. Feedback comments on her original coursework were included in the letter of 16 January 2004. A time limit of 14 April 2004 was given for this re-submission.

Miss Gajree has alleged that for the purposes of this re-submission, she was unable to gain sufficient access to her tutor to enable her to revise her coursework sufficiently. She accepts that she was advised in the January 2004 letter to get in touch with her tutor, but she says that her attempts to contact her tutor of the previous year, a Dr Sue Barker, were unsuccessful and that messages which she left were unreturned. Eventually she contacted the course administrator. It may be that this was not until 7 April 2004 but no doubt she could have done that at any time and she was then informed that her tutor had been changed. She had been sent a letter on 6 March 2004 by her new tutor and had also been sent an e-mail message through an internal course communications system on 7 April 2004 in connection with the change of tutor.

She contends that the letter of 6 March was never received and that she was unaware that the internal electronic communications system had continued to function after the end of her previous course in October 2003. She did contact her new tutor but she complains that her new tutor had not at that time received a copy of her coursework and so was only able to provide generic advice. She did have two telephone conversations with her tutor in the weeks prior to submitting her coursework as she herself accepts, or alleges.

Now the Open University disputes these allegations. The university maintains that her original tutor, Dr Barker, has no record of Miss Gajree having tried to make contact. The new tutor had written to Miss Gajree by letter dated 6 March, had sent an e-mail message via the university’s electronic system on 7 April 2004, both of which Miss Gajree should have received. In any event, Miss Gajree should have contacted the course team. The new tutor had received a copy of Miss Gajree’s coursework by the time that she provided assistance to Miss Gajree and Miss Gajree had a number of discussions with her prior to re-submission of her coursework.

Shortly before the due date of 14 April 2004, Miss Gajree applied for, and was granted, an extension of two weeks to 28 April 2004. The grounds of Miss Gajree’s application were the death of some friends under tragic circumstances. On 28 April 2004, she applied for a further extension of time to 30 April 2004, which was refused. Miss Gajree did re-submit her coursework. There was some uncertainty, if not controversy, over the precise date on which she submitted it, whether it is 28 or 29 April 2004. At any rate the university states that although the coursework was re-submitted late, it was nevertheless exceptionally accepted and marked.

On 24 May 2004, Miss Gajree learned to her dismay that she had failed the relevant module of her course, being awarded 38% against the pass mark of 40%. That mere miss must have been, I can well understand, gravely aggravating and upsetting to Miss Gajree. On 24 June 2004, Miss Gajree wrote a letter of complaint to the university. Apparently the university should have replied to that within ten working days but in fact took until 29 July 2004 to do so.

The university’s reply of that date begins with an apology for the delay and an explanation that the writer of the letter, Mrs J M Bull, head of examinations and assessment, needed to contact a number of people before being in the position to respond. It is from that letter in particular that the university’s point of view is set forth as I have indicated earlier in this judgment.

Miss Gajree’s letter of complaint had consisted of essentially four factors. Firstly, insufficient contact with and support from her tutor. Secondly, that the April deadline for the re-submission of her project was an early one in circumstances where the usual practice was to require re-submission only in October, and that this was because she was a special case treated as such as a matter of racial discrimination. Thirdly, she complained that her request for a further extension to 30 April had been refused and fourthly, she relied upon extenuating circumstances such as the death of her family friends and her mother’s ill-health, amongst other matters.

On 29 October 2004, Miss Gajree wrote a pre-action letter to the university, to which the university replied in short form, stating that a full response would be forthcoming within four weeks but no such response was in fact received until 10 January 2005. In the meantime on 3 December 2004, Miss Gajree had filed her application for judicial review. Her judicial review claim form stated that the date of the decision which she wanted to be judicially reviewed was Mrs Bull’s letter of 29 July 2004. However, in giving details of that decision in the relevant box under section 3 of the form and also in giving details of the remedy being sought in the box under section 6 of the form, Miss Gajree’s essential complaints did not focus on Mrs Bull’s letter of 29 July 2004 but upon other matters. Thus the decision box under section 3 stated:

“I would like to re-submit my project with the assistance of an informed tutor. Also for the project to be marked fairly. As well as to have my extenuating circumstances taken into consideration I would also like to be compensated for the suffering caused by the OU.”

In the box under section 6 her request was:

“To quash the initial decision to submit the project on 28 April 2004 ...”

The application for relief to bring judicial review proceedings was initially rejected on paper by Leveson J and was then rejected on renewal by Collins J, the judgment from which this application is made. Collins J said this:

“This is a renewed application for permission for judicial review. The claimant is enrolled at the Open University to do an MSC. She unfortunately failed to reach the appropriate mark in order to pass on her first year and she sought to have a review and the review indicated that that was to be upheld. She seeks judicial review on the basis that she says she was given bad advice and that the procedure was not properly carried out in her case. Also, she is concerned that a member of staff apparently told her, she says, that she is treated as a special case because she is Asian and given less time than anyone else. That is hotly denied. There is nothing in the documentary evidence which begins to support it.

The reality is, as I indicated in the course of the argument, that the claimant was simply not able to reach the necessary pass mark. She may well have had some concerns or some real complaint that the university did not deal with her attempts to have a review in as expeditious manner as they ought to have done. They wrote a letter in response to a letter written by her on 8 November prompting a reply in relation to a request or consideration of exceptional circumstances within 28 days. That did not come, and indeed no reply was given until February 2005, by which time these proceedings had been commenced, and in fact on that very day had been rejected by Leveson J on the papers.

I am afraid that there is no conceivable basis for saying that there has been any error of law, even though the delay is regrettable and it is a matter which I have no doubt the university should consider and try to ensure does not happen again. But the reality is, as I say, that they have reconsidered the matter and they have found against the claimant. This court is not the right forum for sorting out any differences that there may be so far as the matter is concerned. In those circumstances, this claim must be refused.”

I will interrupt my judgment at this point, because it appears that Miss Gajree and/or her sister has arrived in court.

In her grounds of appeal Miss Gajree states that appeal is sought on the basis that the Open University, as a public institution discharging a public function, is subject to judicial review, and it is said that “the decision” – I interpolate what decision is being referred to is not quite clear – is being challenged on the grounds of “procedural impropriety”:

“I complained to the OU but they failed to respond at all. According to their own rules they should have responded by a set time.”

That appears to be the complaint in relation to a failure to respond substantively to the letter before action of 29 October 2004 to which I have referred above.

I think I said above that there had finally been a reply to that letter in January 2005, which Miss Gajree accepted had been received by her albeit not until 5 February 2005; but in the light of what her sister Tina, as she has invited me to call her, has told me, it would appear that there was never any substantive reply to the pre-judicial claim form protocol letter of 29 October 2004 and that what emerged at the end of the day was a response to the judicial review claim form itself sent directly to the court by the University’s letter of 10 January 2005, a copy of which was finally obtained by Miss Gajree on 5 February. So I say that to correct what may have been an error earlier in this judgment.

I am now in a position to explain that at the time when I was reciting the judgment of Collins J a few paragraphs above Miss Gajree, the applicant, and her sister Tina arrived at last in court explaining and apologising for their lateness. I have heard Tina advocate on behalf of her sister with clarity and eloquence to the following effect. She has told me that her sister has been studying at the Open University for some ten years and before the events with which I am concerned here, had never had any problem with them. There was however a fundamental error in marking the re-submitted course work at only 38%. There was then the letter to the assessments and complaints department, who took one month to respond. I have referred to the relevant correspondence above.

Tina complains that the university’s response, that is their letter of 29 July 2004, was incorrect and untrue. Her criticisms are quite severe. She says “made up”. She points out that in the following sentence:

“You were offered a ‘short submission’ (ie: until 14 April), which contrary to the advice you were given by the Examinations area, is standard practice on a course”

the university, although affirming that such a short submission until April rather than until October was standard practice and denying the complaint that it was exceptional, nevertheless accepted that contrary advice had been given by the examinations area. However what remains true it seems to me is what Collins J said, that there was nothing in the documentation which begins to support the complaint that Miss Gajree was treated as a special case because she was Asian and given less time than anyone else.

If there is any evidence in the documentation at all, in my judgment, of Miss Gajree being treated as an exceptional case, it is the university’s acceptance that even though her re-submitted course work was submitted outside the deadline of 28 April – I know that it is her case that it was submitted within 28 April – but the university says that even though it was submitted outside the 28 April, that course work was exceptionally marked and treated as though it was in time. It was the only evidence before me of Miss Gajree being treated in some exceptional way.

Tina accepted that in as much as the university’s reply of 29 July 2004 was not accepted, that being the end of the matter, Miss Gajree did not pursue her domestic rights within procedures in the university but proceeded to litigation, initially by sending the letter before action of 29 October 2004, before finally filing the claim form in December. That pre-action letter made it quite clear that it was not a further resort to domestic remedies, but was to litigation. It is headed “Re Judicial Review Pre-Action Protocol” and begins:

“1.

I aim to pursue Judicial Review of the Open University’s decision to fail me …”

Tina went on to submit that the university simply kept on putting her sister off. It was not her expression, but the effect of what she was submitting was that the university was simply fobbing off Miss Gajree and delaying matters, and failing to reply or reply adequately. At one point Tina said that there was a point blank refusal to deal with them on the basis that the university lacked the manpower to do so.

Tina submitted that, as a public institution, the university had an obligation to be reasonable and “to talk to us”. There was a catalogue of errors, and at the end of the day the university simply did not want to deal with the matter. Tina then reverted to the question of the 38% marking which she described as “complete garbage”.

On this application, I am only permitted to grant permission if there is a real prospect of success on appeal or some other compelling reason why permission should be granted. I regret to have to tell Miss Gajree and her sister Tina that I am unable to form the conclusion that this application comes within those tests.

I seek to put the matter in the following way. I put this first because apart from the substance of the point in itself it has a knock-on effect in relation to timing. First of all, it is wholly uncertain what decision is being complained about. The original claim form refers both to the letter of 29 July 2004, but also to the initial decision to require re-submission of the course work by 28 April. Tina described both those references as being mistakes but the fact is that if one obtains one particular flavour of what was being complained about in the judicial review claim form itself, it would be either the marking decision which occurred in May 2004, or the decision to require re-submission by April, originally by 14 April and finally by 28 April.

That decision essentially came on 16 January 2004, subject to the two-week extension. In either event, whether one looks to January or to April or to the marking in May, or indeed to the university’s reply in July, the filing of the claim form on 3 December 2004 was well out of time; the time limit of course being that judicial review must be sought as soon as possible and in any event within three months. So that is the first main difficulty for this application. If its merits required the court to consider overlooking that timing difficulty, the matter might be otherwise. I go on to consider the merits of the matter.

Now both in the original claim form as I have indicated, and in other material and submissions put before the court, and today again in Tina’s opening submissions, the gravamen of the complaint goes to the failure to mark Miss Gajree’s re-submitted course work properly. That was the matter with which Tina began this afternoon. It is the matter with which the claim form begins. Whether indeed one looks upon the complaint as being a marking complaint, as I have indicated it properly could be, or whether one looks on the complaint as going to a matter of allowing time for the re-submission of Miss Gajree’s claim form, or whether one considers that the complaint goes, as it does at times, into a complaint as to adequate educational assistance from the old or the new tutor, and so forth, these are all it seems to me essentially complaints about academic matters: marking, course work allowance, educational assistance. As such, it seems to me that they are not a proper basis for judicial review.

The matter goes further than that in fact. As I understand the matter, until 1 January 2005, when the Higher Education Act 2004 came into effect, the Open University was not a public body but fell within the jurisdiction not of judicial review but of a visitor to the university; see Thomas v University of Bradford [1987] AC 795, and Clarke and University of Lincolnshire and Humberside [2000] 1 WLR 1988 at paragraph 11. So at the relevant time of Miss Gajree’s complaints, these matters fell within the jurisdiction of a visitor and not within judicial review.

After 1 January 2005, albeit that comes at a time when Miss Gajree was already seeking judicial review, the jurisdiction of the visitor had been translated, by reason of the 2004 Act, into the authority of the Office of the Independent Adjudicator for higher education, the OIA, as Tina accepts. In any event, whether visitor in 2004 or adjudicator, OIA, in 2005, it is accepted that Miss Gajree had not exhausted her domestic remedies before moving for judicial review.

The next matter to which I draw attention is that if one passes from what I regard as the principal complaint of Miss Gajree of an academic nature concerning her marking, or time she was allowed, or her educational assistance, to the matter of “procedural impropriety”, to which she refers in the grounds in her notice of appeal, the procedural impropriety to which reference is made, as underlined in Tina’s submissions this afternoon, were the delays of the university in replying to Miss Gajree’s correspondence; in particular if I have regard, as formally I am required to have regard, to the grounds of appeal in this appeal to the failure to respond to the pre-action protocol letter of October.

It may be that complaint is also made about the delay of about a month in replying to the complaint letter of June 2004. In either event, although of course a delay or complete failure to reply is unfortunate, and procedures may need tightening, but of course one cannot always reply in complicated matters in the hoped-for period, nevertheless, it seems to me that this procedural impropriety has no material effect upon Miss Gajree’s real complaint. Miss Gajree’s complaint is that she was not given enough time for her course work, she was not given enough assistance for her course work and she was wrongly marked on her course work. It seems to me that if there was subsequently a delay in dealing with her complaints, and essentially her complaint was dealt with, albeit a little late, by the university’s letter at the end of July 2004, it is not a matter for judicial review. The procedural impropriety with which judicial review is concerned is such a propriety which affects the merits of a complaint fit for judicial review, such as essentially amounts to error of law or to such unfairness as amounts to an error of law.

I also have regard to a skeleton argument which was included in my bundle for the purposes of this appeal, which also complains of contractual complaints against the Open University, but it seems to me that those are not relevant to an application to judicial review and they have not been pursued in oral submissions this afternoon.

It seems to me that whichever way one looks at the matter, whether one looks at the matter from the formal point of view of an application for judicial review in time, or whether one looks more broadly at the essential complaints made by Miss Gajree, which as I have said are of an essentially academic nature, not fit for judicial review; or whether one looks at the matter of the right procedure for Miss Gajree to pursue her complaints, which was primarily by way of domestic remedy for the visitor; or even if the university was a public body, which it was not at the relevant time, by way of exhausting domestic remedies first; or whether one looks at the complaint of procedural irregularity, which it seems to me was not material, there is no real prospect of success on appeal or any other compelling reason why permission to appeal should be granted.

Therefore I am required to refuse permission to appeal. I know from the eloquence and passion with which Tina has addressed me on behalf of her sister that that will come as a disappointment to both of them but it is nevertheless the decision that I must make.