Creative challenges – defeating student-contract claims with good records.

Students have been consistently thwarted in their efforts to challenge pure academic decisions.  The OIA and the courts recognise that the appropriate authority to make those decisions is the academic institution itself and consequently, they manifest a clear reluctance to interfere in the exercise of academic judgment.

There are, however, other, more creative, ways of challenging institutions’ decisions. The institution-student relationship is a contractual one and given the multiplicity of documentation setting out the obligations of both parties (e.g. general regulations, programme specifications, assessment regulations, academic regulations for undergraduate, postgraduate and part-time courses), there is wide scope for confusion and hence challenge on the grounds of breach of contact. A case in point is a recent claim in the Court of Appeal by a failed part-time postgraduate student (Chilab v King’s College London [2013] EWCA Civ 147). Rather than disputing his marks per se, the student contended that on a proper construction of the relevant regulations, he had passed the course. The student claimed that the regulations applicable in the year he was examined applied (2000/01), rather than the regulations applicable in the year of enrolment on the course (1999/2000). The student’s claim was dismissed, the Court of Appeal concluding that the 1999/2000 regulations applied.

The case highlights a number of points of legal and practical significance. Firstly, it reinforces the principle that the terms of the contract are those that are referred to at the point at which the contract with the student is formed (usually when the offer of a place is accepted). Institutions cannot thereafter unilaterally change the regulations for that cohort unless the change is advantageous to the student. This resonated with the Court of Appeal’s stance, Mr Justice Richards stating that If Dr Chilab's submissions were correct, it would mean that a student registering at the start of year 1 of a part-time course could find his examinations and methods of assessment altered at the start of the second year. If altered adversely to the student, this would be quite contrary to any reasonable expectation(paragraph 32).

Secondly, breach of contract claims can be commenced within a period of six years from the date of the alleged breach. The student in this case did not commence his claim until close to end of the limitation period and, though KCL successfully defended the claim, significant time and cost were expended in seeking to identify the relevant regulations. Further expense would have been incurred had the student himself not found them in KCL’s archive library. The salutary practical lesson for institutions is that they should keep a structured archive of regulations and other documents that constitute the terms of the contract for a minimum of six years after the cohort has graduated. This will obviate the need to expend ever-scarce resources searching for documents, but will also prevent partial interpretations or misinterpretations of applicable regulations, which could be the difference between successfully defending and losing a case.

Geraldine Swanton
Senior Associate Solicitor
Education Team
For and on behalf of SGH Martineau LLP
DD: 0800 763 1455
F: 0800 763 1001
International DD: +44 870 763 1385
E: geraldine.swanton@sghmartineau.com
W: www.sghmartineau.com

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