Case No: B2/2008/2869
Neutral Citation Number: [2009] EWCA Civ 1560
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN’S BENCH DIVISION
DIVISIONAL COURT
(MR JUSTICE UNDERHILL)

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: Tuesday, 1st November 2009

Before:

LORD JUSTICE WARD
LORD JUSTICE RICHARDS
and
LORD JUSTICE GOLDRING

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	MORONEY	
Appellant	
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ANGLO-EUROPEAN COLLEGE OF CHIROPRACTICE	

Respondent	
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Mr M Hartman (instructed under the Direct Access scheme) appeared on behalf of the Appellant.

Mr D Broatch (instructed by Lester Aldridge LLP) appeared on behalf of the Respondent.

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Judgment
Lord Justice Ward:

1.	The short issue in this appeal is defined in the order of Elias LJ, when giving permission to appeal against the order of Underhill J dated 7 November 2008, dismissing the appellant’s appeal against the order of HHJ Boggis QC made in the Southampton County Court on 24 April 2007 striking out the appellant’s claim, which was certified as being totally without merit.  The order of Elias LJ reads as follows: 

“Permission to appeal given on one ground only, namely whether the judge erred in law and acted unfairly in dealing with the case as one under part 24, when he was considering a strike out under rule 3.4, without notice to the appellant.”

2.	Although that may be a short point, it is necessary to spend a little time explaining how it arises.  One thing is easy enough to understand, and indeed easy to express sympathy about, and that is the subject of the appellant’s true complaint.  In September 1999, he enrolled as a student of the Anglo-European College of Chiropractice, an associate college of the University of Portsmouth, the respondent to this appeal, to read for a Master of Science degree in order to pursue a cherished career as a chiropractor.  Alas, on 12 July 2001, he was required by the Board of Examiners to withdraw from the course because he had failed more than three of that year’s course units.  He now claims the loss of his earnings during those two wasted years of study.  He seeks the cost of enrolment, and he wants damages for what he has said is the lost opportunity for greater earnings in future years.  So this failure of a deeply-held ambition presents a sorry story, and I repeat he has my sympathy.
3.	Acting in person, Mr Moroney made a claim on 4 September 2003 under the Data Protection Act 1998 for the disclosure of various documents which would have revealed, he thought, how his marks were calculated, and how the internal examiners and final Board of Examiners had conducted themselves.  Over time, the claim changed and expanded through a series of letters which, inexplicably in my view, seemed to have been allowed to stand in lieu of pleadings.  When eventually the case came on for trial before HHJ Boggis on 23 April 2007, there were, as the judge noted: 

“… no fewer than four lever arch files packed with documentation, but with absolutely no clarity as to what the court was being asked to do.”

The judge was undoubtedly justified in saying: 

“Seldom have I come across a case which has got to trial in such an appallingly shambolic state.”

He was not prepared to put up with it.  He directed Mr Michael Hartman, who had been instructed on the appellant’s behalf a short while previously, to prepare the pleading that, in the judge’s view, the case cried out for, namely “a statement of the case so that we all know what he was litigating about.”  Mr Hartman produced it later that afternoon.

4.	Having considered the statement of case overnight, counsel then appearing for the college sought, and was allowed the next morning, to advance an argument, as the judge called it: 

“… that the matter should be struck out, the position being that she [was] contending that when the Statement of Case was analysed it was clear that there was no possibility of the claim succeeding.”

The claim, as presented in that statement of case drafted by Mr Hartman, was based on breach of the contract entered into between the parties in terms of the student handbook and the MSc course document.  His case was in essence, as the judge described it:

“… that there is a breach of contract because he is being denied the opportunity of appealing the Board’s decision because there were in fact material irregularities upon which he could rely.”

5.	Relying on the decision of this court in Clark v University of Lincolnshire and Humberside[2000] 1 WLR 888, the judge held that the material irregularities had to “… exclude academic judgment as being a reason to find jurisdiction for an appeal.”

Having analysed the pleadings, he concluded as follows. At paragraph 26, he said: 
“Against that background, my firm conclusion is that these proceedings are, if I may so, utterly misconceived.  I am being asked to do precisely what the Court of Appeal says the court should not do; I am being asked to go behind academic decisions in order to assist the claimant in seeing whether he has had a cause of complaint, that he should have had an appeal and that he has been denied that appeal.  None of the matters that have been mentioned to me by Mr Hartman, in my judgment, falls within the definition of material irregularity as set out in the rules of the institution 

“27.  … This claimant is saying that by looking at the marks again, by asking other people to consider there should be an uplift here or a benefit there, the figures can be altered in order to clear the 50 per cent hurdle to demonstrate he was not as bad as all that.  That is not the function of the courts.  The courts cannot begin to engage in that sort of activity.

28.  … There is not material before me to sustain a breach of contract argument, and it would be quite wrong to get more money to be spent on this action when it is bound to fail.”

6.	The appellant was given permission to appeal by Owen J.  He also gave leave to amend the statement of claim, because, after certain concessions made by Mr Hartman to him, Owen J took the view that it may be arguable that there were two particular breaches of contract: the first, which has been characterized before us as the point that the examiners were misled as to the number of papers failed; and the second, which has been labelled before us as academic probation.  That Amended Statement of Case is before us, though as I read the papers it has been refined on several occasions, sometimes in the court below, but that may not much matter.

7.	In its Respondent’s Notice the college took another point, namely that the proper remedy was probably to move by way of judicial review, for which there is a strict time limit of three months, and in the circumstances of the long delays that have occurred since that decision was taken against him that long ago, it is an abuse of process not to be allowed to proceed.  In his skeleton argument for the respondent Mr Donald Broatch, who appeared before the judge and appears before us, submitted under the heading “striking out” that, to quote his skeleton argument at page 222: 
“16.  The Court has jurisdiction to strike out any Statement of Case, which discloses no reasonable grounds for bringing or defending the claim, or is otherwise an abuse.

17.  There is an overlap between striking out and summary judgment (CPR Part 24).  The court may treat an application to strike out as if it were an application under Part 24 (see Taylor v Midland Bank Trust Company [2002] WTLR and entry in White Book Vol 1 at CPR 3.4.6).

18.  The pleading presented for the first time at the trial gave rise to the striking out.

19.  On either a striking out, or a summary judgment (see above), the Court may consider the prospects of success.  The Court should strike out, or dispose of, a case in which the prospect of success is fanciful (see per Lord Woolf in Swain v Hillman [2001] 1 All ER 91).  The Court may give summary judgment or strike out at any stage of the proceedings.”

So there the point was being flagged up.  It was a point which did not escape the appellant.  Indeed, when he settled his response to that skeleton argument, Mr Hartman repeated those paragraphs, and it is quite plain therefore that he was aware of the case being presented against him.  I will deal shortly with how the point was ventilated at the hearing.

8.	The judge dealt with the matter in this way.  He noted that, whereas the case as pleaded before HHJ Boggis looked like a straightforward challenge to the academic judgment of the examiners, the case now presented to him seemed to boil down to five specific substantive disputes.  He said at paragraph 19 of his judgment: 

“… Mr. Hartman emphasised before Owen J. and repeats before me that his intention has been to avoid any challenge to questions of academic judgment and to raise only complaints which fell outside the zone prohibited by Clark: the surviving complaints are, he submits, complaints about ‘material irregularities’ (using the language of the Appeal Regulations) in the process leading to the Claimant’s expulsion and are justiciable as breaches of contract.  Owen J. accepted that that was arguably the case, at least as regards two of the main complaints.  As will appear below, I agree with that; and, although the justiciability issue remains relevant to some degree, the focus of the argument before me was less on whether the Claimant’s surviving pleaded complaints related to matters of academic judgment than on their substantive merits.”

So in those circumstances, he considered the alleged breaches on their merits.  Then he said in paragraph 21, the crucial passage for the purpose of this appeal: 

“I accordingly turn to consider whether the five remaining heads of claim have any realistic prospect of success.  That is of course the right test whether the College’s application is viewed as a striking-out application or an application for ‘reverse summary judgment’ under CPR 24.  I remind myself that I ought not to attempt to determine any serious live issue of fact which could only be properly determined by hearing oral evidence.”

9.	Having thus directed himself, he turned to those five substantive issues, and although I remind myself that the appeal is limited, it is necessary that I explain shortly how he dealt with them.  The first was the matter already mentioned, that the examiners had been misled as to the number of papers that the appellant had failed.  This point arose because shortly before the meeting of the interim panel of examiners on 28 June 2001, a printout was produced which showed that he had failed five papers.  Notwithstanding that, the minute of the meeting recorded that he had failed four.  When the matter went on further review to the final Board of Examiners, on which much of the faculty seems to have sat, the printout was correct in recording four failures, and the minute of the meeting likewise recorded that Mr Moroney had failed four papers, and so the decision was taken to require him to withdraw.  The issue for the judge was, as he said in paragraph 24 of his judgment: 

“… to decide whether there is any real prospect that if this issue were considered at a full trial the Court would find that the Final Board reached its decision on a wrong basis.  After careful consideration I do not believe there is.  Realistically, the issue would have to be resolved on the documents: it is very unlikely that any of the examiners would have any independent recollection seven years after the event.  As to the inferences to be drawn from the documents, there should in my view be a presumption that the minutes genuinely reflect the substance of the examiners’ deliberations (including the facts that were before them).” 

So he held: 

“… in the light of the second print-out I see no real prospect of a finding that the Final Board was misled in any way.”

10.	The second issue was the fact that, in a paper on research and clinical practice, Mr Moroney was given the mark of zero.  The judge considered that that may have been harsh, but that did not matter.  Once it is established that the mark was given in the exercise of a bona fide academic judgment, it is incapable of being challenged in this court.

11.	The third complaint was about missing medical information, and there is some question of whether a letter had been lost.  But in the judge’s view, even if that were the case, he was unable to see that the loss had any significance whatever: 
“The Claimant does not say that he was suffering from, still less that he sought to draw to the examiners’ attention, any medical condition which might have affected his performance in year 3; nor when he sought to appeal did he raise any question about his health.”

So that was the end of that point.

12.	The fourth point was academic probation.  Here, the confusion was that in the minute of the meeting of the final Board, the minute records that the appellant had been on academic probation due to poor performance, and that there had been no improvement over the academic year.  That, however, as a matter of fact was quite wrong.  True, it had been considered whether he should be put on academic probation, which, as best as I understand it, is a form of assistance to help him through difficulties he might have been experiencing in coping with the course.  That was not done, and there was a minute of the relevant meeting attended by Dr Thorkeldsen, who I think is head of the faculty or high up in the faculty, and a Mr Mark Warren, who was the appellant’s tutor.  They record that the point was discussed among the team, but it was decided academic probation would not apply in this case, and the student should proceed on his own merit.

13.	So far as the judge is concerned, the question for him was whether that mistake was capable of amounting to a material irregularity, if it be assumed that the examiners were in fact wrongly told he was on academic probation.  The judge said in paragraph 30: 
“The Claimant may not have been actually put on academic probation; but what matters is that his performance was clearly considered sufficiently poor to merit it.  This is indeed confirmed by a further note in the papers … [from which the judge quoted, and his conclusion was] The fact is that it is clear beyond doubt that the general and genuine view of the course team (which cannot as a matter of academic judgment be challenged in these proceedings) was that the Claimant was badly under-performing in year 3, as he already had in year 2.  That view was of course confirmed by his results.  In those circumstances I do not regard it as conceivable that the outcome would have been any different if the Final Board had been told not that he had been on academic probation but that he had been considered for it but in the end left to ‘proceed on his own merit’.  It must be recalled that Dr. Warren and Dr. Thorkeldsen, who were both examiners, had had particular and first-hand experience of his work.”

14.	 The final complaint was that the appellant had not had access to past exam papers, which as I read between the lines, were stolen from the library by a fellow student, but that may be pure cynicism on my part.  The fact is, Mr Moroney did not have access to past exam papers, and he felt that it put him at a disadvantage.  The judge dismissed that, saying that he could not see how that could constitute a material irregularity in the conduct of the assessment.  

15.	Then the judge dealt with the Respondent’s Notice, and said this in dealing with it at paragraph 32: 

“For the foregoing reasons I have reached the conclusion that the claim has no reasonable prospect of success and that Judge Boggis was right to strike it out, although I have reached that conclusion on rather different grounds than his.  But in case I am wrong I should also consider a further point raised by the College by way of cross-appeal.”

He decided that by concluding that the matter could have been brought by judicial review, and that there was “…very substantial and unjustifiable delay even in these proceedings.”

His conclusion, therefore, was that it was not open to him complain that the proceedings constituted an abuse.  Paragraph 36: 

“Taking those matters together, I think Mr Broatch’s submission is correct.  I would accordingly dismiss the appeal even if I believed that there were some realistic prospect of success on at least some of the Claimant’s complaints.”

16.	Before us this morning, Mr Hartman, as I understand his refined argument, appears to me to be submitting that the complaint of unfairness is not based so much on his not appreciating that the judge could -- I emphasise could -- when considering a strike-out under CPR Part 3.4, also apply the overlapping provisions of CPR 24, but that the judge would, in the light of the way the case was argued, proceed down the Part 24 track.  It is, in my view, beyond doubt that the availability of Part 24 was flagged up and was there staring everybody in the eyes.  That was apparent from the way it was dealt with in the respective arguments, as I have already set out.  Moreover, it did not stop there.  It was dealt with specifically by Mr Broatch in his oral submissions to the judge, which are recorded on page 11 of the second day of that hearing, page 119 of the bundle.  I shall not quote it at length, but Mr Broatch wanted to make clear to the judge that there was, indeed, an overlap between the striking-out and summary judgment, and he referred to his skeleton argument.  He said: 

“I propose that it would be a complete waste of time and money and costs unnecessarily to go through were the court to say, ‘Your pleading just about survives, but you are going to fail.  You have not got much prospect but as your pleading survives, you are entitled to go to the next stage’.”

Mr Broatch referred to the case of Taylor & Ors v Midland Bank Trust Company Ltd [1999] EWCA Civ 1917, and he submitted to the judge that:

“…if you were…to consider that the applicant’s prospects of success in recovering anything he can recover in common law, and all he seeks now is damages; if you came to the view that those prospects were fanciful, you should not allow the appeal because, in effect, you can roll up summary judgment and strike out in such a case and that is the effect of the Midland Bank case…”

So again, it was perfectly plain.  

17.	Mr Hartman did not respond directly, though he did say on page 127, in a passage that may have gone further than Mr Broatch even intended, that the judge’s powers included the power to strike-out if it will do justice to the parties because, he submitted: 
“you [the judge] have a very broad discretion as to how you will determine whether it is appropriate to strike it out.”

18.	In my view, therefore, the matter was plainly before Mr Hartman and plainly before the judge.  So faced with that difficulty, Mr Hartman has to fall back on two further arguments.  First, he submits, the judge was wrong to say, as he did in paragraph 21 of his judgment, that “whether the College’s application is viewed as a striking-out application or an application for ‘reverse summary judgment’ under CPR 24”; the right test was whether the claim had any realistic prospect of success.  Secondly, he submits the unfairness lay in the fact that Mr Broatch had not attempted in his oral submissions to establish how and why the claim was in fact to be regarded as fanciful.  It was all left in the air.  There was no factual argument for him, Mr Hartman, to rebut when he came to make his reply.  In other words, the case against him had not been put, and the judge had not invited argument on the very matters upon which he was to found his judgment.

19.	Dealing with the first point, Mr Hartman seems to rely on the case of Independents’ Advantage Insurance Company Ltd v Cook [2004] PNLR 44, which was a case where in fact the application before the court was made both under Part 3.4 to strike out and under Part 24 for summary judgment.  There, Chadwick LJ noted on page 49 that it had not been suggested in that case that the application under CPR 24.2(a) added anything to the application under CPR 3.4(2)(a).  So Chadwick LJ continued: 

“For my part, I have difficulty in understanding why – in a case in which (i) it is accepted (for the purposes of the application) that the claimant will be able to establish all the facts pleaded and (ii) there are no additional facts upon which the defendant/applicant seeks to rely in support of the application – it was thought necessary or appropriate to couple an application under CPR 24(2)(a) with an application under CPR 3.4(2)(a). If the particulars of claim disclose no reasonable grounds for bringing the claim, the court has ample power to strike out the pleading and to enter judgment for the defendant – see CPR 3.4(3) and paragraph 4(2) of the Practice Direction which supplements that rule (3PD.4). No recourse to CPR 24.2(a) is required. But if the pleading does disclose reasonable grounds for bringing the claim, then – on the hypothesis that the claimant will be able to establish the facts pleaded and in the absence of other facts to rebut the claim – it is impossible to hold that the claimant has no real prospect of succeeding. In those circumstances the existence of reasonable grounds for bringing the claim leads, necessarily, to the conclusion that there is a real prospect of success. There is no scope for recourse to CPR 24.2(a). In the present case the relevant test is that posed by CPR 3.4(2)(a): do the particulars of claim disclose reasonable grounds for bringing the claim.”

I respectfully agree.  But that case is far removed from this, because the important aspect of that case is, as his Lordship emphasised several times, there were no additional facts upon which the defendant sought to rely, and it was in the absence of other facts to rebut the claim that the court could look solely at CPR 3.4.  

20.	That is not the case here.  The case here is that the facts as put before the court justify the argument that there was no realistic prospect of success.  Those facts were contained to some extent in a witness statement, but particularly in the clip of documents which were before the judge and which he analysed carefully, both in respect of whether they revealed academic judgments and in connection with the realistic prospect of a claim properly brought as a claim for breach of a contract.  The Independents’ Advantage Insurance case does not in any way stand in conflict with the line of authority, now well established, that the provisions of CPR 3.4 and CPR 24 overlap.  That was first established in point of time by the case of S v Gloucestershire County Council [2000] 3 All ER 346, a case in which Mr Hartman himself appeared.  There May LJ, dealing with the way the case was being presented there, drew attention to Rule 3.4 and 24 of the Rules, pointed out that there were originally no applications for summary judgment that would raise its head in the Court of Appeal.  He said this at page 372: 

“… each of the local authorities before this court have invited us to consider deciding these appeals upon applications for summary judgment, if we are not persuaded that the decisions appealed from should be upheld under r 3.4.  To this end, we have been invited without opposition from the appellants to consider evidence to be derived from the contemporary notes from the local authorities’ respective social services files.”

21.	May LJ referred to Taylor and explained: 

“…this court held that, when dealing with an appeal against a refusal to strike out an action, it was appropriate that the court should also treat the application as if it were an application for summary judgment under r 24.2 of the CPR.  The appellants before this court made no strenuous submission to the effect that the court should not adopt this procedure in these cases, although they did of course submit that the appeals should not be decided against them by this procedure in circumstances where there is no direct evidence from the appellants themselves …”

22.	When May LJ dealt with the evidence, he pointed out -- and Mr Hartman wishes to emphasise this -- that:  “There may be cases where there are gaps in the evidence but where the court concludes, for instance from the passage of time, that there is no real prospect of the gaps being filled” and that: “The court will need to be satisfied that, upon these facts, there is no real prospect of the claim in negligence succeeding and that there is no other reason why the case should be disposed of …”;  in other words, directing attention to the facts of the particular case.  

23.	I turn to Taylor.  In Taylor, the court considered it appropriate to deal with the application on a strike-out as if it were an application for summary judgment.  That was said both by Rattee J and repeated by Buxton LJ.  If there were any doubt about it, all of those doubts have been resolved by Three Rivers DC v The Bank of England [2003] 2 AC page 1, where Lord Hope in paragraph 88 said: 
“It would, I think, be more accurate to say that your Lordships have power to do so [treat the Bank's motion to strike out as an application for summary judgment under rule 24.2] … and that the question is whether your Lordships should exercise that power.”

He, too, went on to emphasise, and again Mr Hartman relies on this, that the court should not conduct a mini-trial on documents without discovery and without oral evidence, if that discovery and that evidence would show that there was a real prospect of success.  The rule is designed to deal with cases not fit for trial at all.

24.	It would be unfair to the respondent not to read Lord Millett’s opinion at paragraph 192: 

“I agree with my noble and learned friend Lord Hope of Craighead that, while cases should in principle be disposed of as expeditiously and cheaply as the circumstances permit, the most important principle of all is that justice should be done. But this does not mean justice to the plaintiff alone. It is not just to a plaintiff to strike out his claim without a trial unless it has no real prospect of success. It is not just to defendants to subject them to a lengthy and expensive trial to defend their integrity when there is no foundation in the evidence for the attack upon it.”

25.	So it seems to me that the rule that there is an overlap between Part 3.4 and Part 24 is firmly established, and it is accurately recorded in the notes in the White Book at paragraph 3.4.6 to which Mr Broatch drew attention in his skeleton argument.  Although the Rules give the court two distinct powers which may be used to achieve summary disposal of the issues which do not need full investigation at the trial, there is this overlap of approach.  In those circumstances, I do not see how the judge can be criticised for dealing with the case either on the 3.4 route or on the Part 24 route, and to have approached the case asking whether there is a realistic prospect of success.

26.	So the second question is, was the case sufficiently put that neither of the grounds upon which the claim depended constituted a case which had a real prospect of success?  Mr Broatch draws our attention to the fact that at the beginning of his submissions he dealt -- maybe summarily -- but nonetheless dealt with the facts in connection with the two outstanding issues.  Did he fail four or five examinations?  We see that at page 94 of the bundle, page 69 of the transcript of the first day.  There, Mr Broatch was dealing with the five rather than four subjects, and making his submission that it was manifestly clear that the full Board had the true position, which is the finding the judge made.  Likewise, he dealt with academic probation on page 96 of the bundle and put his case on the facts there, submitting that two members of the Board who knew him would have been able to identify to the other members of the Board that that was wrong.  Again, a submission accepted by the judge.

27.	I would wish also to emphasise what the judge himself said in paragraph 19 of his judgment: 

“… the focus of the argument before me was less on whether the Claimant’s surviving pleaded complaints related to matters of academic judgment than on their substantive merits.”

It seems to me quite plain that the judge understood the thrust and burden of the argument to be even more directed to substantive merit than to academic judgment, and I find it impossible to go behind that.  If that was the view the judge formed of the argument, and it is borne out by the short extracts I have read in Mr Broatch’s submissions, then sadly it must be the conclusion that Mr Hartman did have a fair opportunity to put the counter-case.  That he failed to take it is regrettable, but I am quite satisfied that the judge cannot be criticised for proceeding to judgment along the lines he gave without giving Mr Hartman a further and specific opportunity to argue against the conclusions which were there for the judge to be the obvious conclusions to reach in the case.

28.	In my judgment, therefore, this complaint of unfairness fails, and with it the appeal fails.  But let me not leave it there.  I would not wish Mr Moroney to labour under an even greater sense of injustice he may presently feel about the disruption or the ruination of his career.  Even if this case had succeeded, even if the appeal had been allowed on this limited ground, that there was a procedural unfairness in these respects, the fact remains, sadly, that the appeal still fails because no permission was given to appeal the judge’s second conclusion, that the proceedings were from beginning to end an abuse and they were an abuse because of the way the case was conducted long before Mr Hartman became involved in it.  Unfortunately, a litigant in person had misunderstood his remedies, had delayed.  For that reason, the judge held it was an abuse.  There was no permission to appeal that conclusion; that conclusion would have brought this claim to an end in any event. 

29.	The upshot is that, in my judgment, the appeal should be dismissed.

Lord Justice Richards:

30.	I agree.

Lord Justice Goldring:

31.	I, too, agree.

Order:  Appeal dismissed.