Petition by HK for Judicial Review (Court of Session)

Factual and Procedural Background

The Petitioner, an undergraduate student at The University, enrolled in 2018 for a medical degree and in 2022 for an intercalated BMSc degree in applied orthopaedic technology. While the Petitioner passed his medical exams, he failed to sit examinations in two BMSc modules in December 2022 and January 2023, resulting in grades of AB-Absent and insufficient credits to qualify for the BMSc degree. The BMSc Board of Examiners decided on 25 September 2023 not to award the degree, declining to condone the credit insufficiency. After an unsuccessful appeal to an Appeals Panel appointed by the Dean of the School of Medicine, the Petitioner appealed to the Undergraduate Appeals Committee of the Senatus of The University, which refused the appeal on 30 May 2024. The Petitioner seeks judicial review of that refusal, alleging procedural unfairness and failure to properly consider evidence.

Subsequent to the Board's decision, the Petitioner made two mitigating circumstances applications related to personal bereavement and illness, with partial acceptance but no postponement granted for exams. There was a dispute over whether the Petitioner received an email dated 10 January 2023 from a course administrator notifying him of rescheduled exams. The Petitioner denied receipt, supported by evidence from The University’s IT department and email inbox screenshots, while The University asserted the email was sent and received. The Petitioner also complained that the exams were not listed on his personalised online timetable, which The University admitted.

The Petitioner’s appeals process was complicated by unclear application of The University’s Undergraduate Appeals Procedure Regulations, including confusion over the role of the Dean and the Appeals Committee. The Petitioner’s appeal to the Appeals Panel was refused, and the subsequent appeal to the Undergraduate Appeals Committee was also rejected. The Petitioner challenges the latter decision in this judicial review.

Legal Issues Presented

1. Whether the Undergraduate Appeals Committee failed to consider all relevant grounds and evidence, including the failure to upload exam dates to the online portal.
2. Whether the Appeals Committee failed to properly, fully, and fairly consider the Petitioner’s appeal, contrary to natural justice and The University’s procedures.
3. Whether the Appeals Committee erred in not adjourning the appeal to obtain further evidence and to allow the Petitioner to respond to new information.
4. Whether there was apparent bias on the part of the Appeals Committee, particularly its convener, arising from prior involvement with the Petitioner’s case.

Arguments of the Parties

Petitioner's Arguments

• The Appeals Committee improperly exercised discretion by failing to consider the failure to upload exam dates on the online portal, a relevant consideration.
• The Committee failed to properly consider evidence supporting the Petitioner’s claim that he did not receive the email notifying him of the January 2023 exams.
• The Committee unreasonably declined to seek further evidence or to allow the Petitioner to comment on the limitations of the IT evidence regarding email receipt.
• The failure to adjourn the appeal hearing was an unreasonable exercise of discretion, resulting in procedural unfairness.
• There was a real possibility of bias given that the Committee’s convener had previously expressed views adverse to the Petitioner and had written a letter to the Petitioner’s MSP.

University's Arguments

• The Committee’s decision was supported by evidence and was a proper exercise of discretion under the applicable test from Wordie Property Co Ltd.
• The Petitioner was afforded a fair and real opportunity to present his case and no material procedural unfairness occurred.
• The failure to upload the exams to the online portal was explained by the bespoke nature of the exams and did not amount to procedural irregularity.
• The apparent bias argument was not properly pleaded, was raised late, and lacked merit; no actual bias was alleged.
• The Committee was entitled to rely on the IT evidence and to decide the Petitioner’s evidence was inconclusive without adjourning.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Wordie Property Co Ltd v Secretary of State for Scotland 1984 SLT 345	Standard for judicial review: failure to consider relevant considerations, no proper factual basis, or procedural unfairness.	Used as the foundational test for assessing whether the Appeals Committee’s decision was lawful and reasonable.
Shaffar-Roggeveen, Petitioner 2023 SLT 782	Failure to afford opportunity to comment on new evidence can amount to unfairness.	Referenced by Petitioner to argue procedural unfairness; distinguished by Court as facts differed.
The Mayor of London v Secretary of State for Housing, Communities and Local Government and Others [2020] EWHC 1176 (Admin)	Material prejudice must be established for procedural error to amount to breach of natural justice.	Applied to assess whether Petitioner suffered material prejudice from procedural irregularities.
Porter v Magill [2002] 2 AC 357	Test for apparent bias: whether a fair-minded observer would conclude there was a real possibility of bias.	Considered in relation to alleged bias of the Appeals Committee convener; ultimately rejected on procedural grounds.
Poor Sisters of Nazareth v Scottish Ministers 2015 CSOH 87	Principles on apparent bias and disqualification of decision-makers.	Referenced in submissions on apparent bias; court did not ultimately decide on merits due to procedural bar.
Helow v Advocate General for Scotland [2008] SC(HL) 1	Standards for impartiality and bias in judicial and quasi-judicial proceedings.	Referenced in submissions on apparent bias; no substantive ruling made.
Millar v Dickson 2002 SC (PC) 30	Impartiality and reasonable apprehension of bias in judicial proceedings.	Referenced in submissions on apparent bias; no substantive ruling made.
SM, Petitioner [2023] CSOH 52	Fairness requires a real and effective opportunity to participate and influence proceedings.	Applied to determine whether Petitioner had a fair opportunity to present his case before the Appeals Committee.
R (on the application of the Law Society) v Lord Chancellor [2018] EWHC 2094 (Admin)	Admissibility of expert evidence in judicial review proceedings.	Considered in relation to expert IT report; court declined to admit evidence not before decision-maker.

Court's Reasoning and Analysis

The court began with the principles governing judicial review of administrative decisions, particularly the test from Wordie Property Co Ltd, which permits intervention where a decision-maker fails to consider relevant factors, bases a decision on no proper factual foundation, or acts with procedural unfairness.

The core issue was whether the Appeals Committee properly considered the Petitioner’s appeal that he had not been notified of the January 2023 exams, focusing on two notification methods: an email of 10 January 2023 and the online portal timetable. The Committee found the evidence on email receipt inconclusive but was certain the email had been sent. However, the Committee failed to address the Petitioner’s uncontested assertion that the exams were not uploaded to the online portal. This omission was a failure to consider a relevant material consideration and was therefore an error of law.

Regarding procedural fairness, the court found that the Committee was empowered but not obliged to obtain further evidence or adjourn the hearing. The Petitioner had the opportunity to present his case and declined to attend the hearing. The Committee's decision not to adjourn to obtain expert evidence or to allow further submissions was not unreasonable or unfair. The expert IT report commissioned by the Petitioner was not before the Committee and could not be admitted at judicial review.

The court also addressed the late-raised argument of apparent bias against the Committee’s convener, who had previously written a letter adverse to the Petitioner. The court held the argument was not pleaded, no permission had been granted to raise it, and it was procedurally barred. Hence, the court declined to consider its merits.

Ultimately, the court found the Committee’s failure to consider the online portal issue to be a material error requiring intervention. The other grounds of challenge, including procedural fairness and bias, were rejected.

Holding and Implications

The court held that the petitioner's challenge on the ground that the Appeals Committee failed to consider a relevant material consideration succeeded. The decision of the Undergraduate Appeals Committee dated 30 May 2024 was declared unlawful and was reduced (quashed).

The court ordered that the Appeals Committee reconvene to reconsider the Petitioner’s appeal afresh, taking into account all relevant evidence, including the failure to upload the exams to the online portal. The reconvening should occur as soon as reasonably practicable.

No order was made regarding the composition of the reconvened Committee. The court reserved all questions of expenses. No new legal precedent was established beyond the application of existing judicial review principles to the facts.