Glasgow law graduate who disputed 2:1 classification allowed to proceed with judicial review petition after Inner House appeal

About this case:

• Citation:
  [2025] CSIH 8
• Judgment:
  External link
• Court:
  Court of Session Inner House
• Judge:
  Lord Doherty

Petitioner AB, who studied the LLB Common Law degree programme at the University of Glasgow, said that her complaint would have addressed her grades in two subjects and failure on the part of the university to advise her of adjustments she would have been entitled to. In addition to her two main grounds of challenge, the petitioner also complained that students on the common law programme were discriminated against compared to students on the Scots law programme.

The appeal was heard in the Inner House of the Court of Session by Lord Malcolm, Lord Doherty, and Lord Armstrong. The petitioner and reclaimer appeared as a party litigant while the respondent was represented by D Blair, advocate.

Mischaracterised complaints

After she graduated, the petitioner sought to appeal her degree classification. The university advised her to return her degree parchment in order to appeal, and that she could re-enrol to graduate after the appeal. She did so and lodged an appeal. However, two days after providing the initial advice the university informed the petitioner that in terms of University Regulation 26.3.7 she could not appeal because she had already graduated, and returned her parchment.

A complaint was made to the respondent of maladministration by the university, but after initial assessment she decided that she would not investigate further. The respondent noted that the university accepted that the advice which the petitioner received about returning her parchment and appealing had been misleading. However, the university’s stance was in accordance with the regulations and the erroneous advice did not impact on the petitioner’s decision to graduate. In all other potential grounds of appeal, she determined that the university’s response was reasonable.

In her petition for judicial review, the petitioner argued that respondent erred in law by mischaracterising her course discrimination complaints as exercises of academic judgment which the respondent was not entitled to investigate and failing to investigate whether the university was in breach of its statutory duties under the Equality Act 2010.

Following an oral hearing, the lord ordinary refused permission for the petition to proceed as he did not consider that the arguments advanced disclosed a reasonable basis for challenging the respondent’s decision. He also agreed with the respondent’s decision that parts of her complaint were time-barred per section 10(1) of the Scottish Public Services Ombudsman Act 2002.

The petitioner’s submissions on appeal were founded on her previous grounds of complaint. For the respondent it was submitted that even if the court examined the petition de novo, none of the grounds had a real prospect of success. Further, the petitioner did not have a legitimate expectation of an appeal, having not relied on her detriment on the university’s mistake.

Within their powers

Delivering the opinion of the court, Lord Doherty said of the merits of the petitioner’s case: “We are persuaded that the petitioner has a real prospect of establishing that the respondent mischaracterised parts of her complaint in material respects. Fairly read, her complaint about the European Human Rights Project and about Commercial Law and Advanced Property and Trusts raised an issue of discrimination against common law students.”

He continued: “If she is right about that, then those parts of the complaint are not merely concerned with the exercise of academic judgement. It is within the respondent’s powers to investigate alleged discrimination. We are not dealing with a situation where the respondent recognised that the complaint was of discrimination but declined to investigate it because she considered that the courts were better placed to adjudicate upon it.”

Considering whether the complaint could be made outwith the time bar, Lord Doherty said: “The alleged existence of discrimination would arguably be a special circumstance which justified allowing the complaint to be made outwith the 12-month period. It is arguable that the respondent simply asserts that there are no special circumstances without providing any satisfactory reasoning on the point. Moreover, her ‘fall-back’ position (that if there were special circumstances she would in any case have no jurisdiction because selection for the course involved the exercise of academic judgement) seems doubtful.”

However, he added: “It is not clear to us that the threshold test is met in relation to the remaining parts of the complaint. The prospects of the petitioner establishing that the respondent’s approach to the medical issues/reasonable adjustments part of the complaint is irrational or otherwise vitiated by an error or law appear to us to be fairly poor.”

While he expressed doubt about other aspects of the petitioner’s grievances, Lord Doherty concluded: “It is possible that we have not fully understood precisely how the petitioner maintains that the various aspects of her complaint may be interdependent. In the whole circumstances, we think the appropriate course is simply to grant permission for the petition to proceed.”

The reclaiming motion was therefore allowed, and permission was granted for the petition to proceed.