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De Montfort University: My Student Experience and the Law

Victor Smith recounts his three-year attempt to get a recalcitrant university to comply with its procedures and honour its promises. Court finds DMU handled student complaint "badly" but student effectively penalised in costs.

De Montfort University ("DMU") claimed, in its Student Complaints Procedure ("Complaints Procedure"), to be concerned about the quality of the "student experience".  It declared that:

"De Montfort University recognises the importance of effective complaints management as both a tool and a source of information for service improvement.  The university welcomes feedback from all our students and recognises the right of students or alumni to raise issues of concern about the services provided by the university which may affect the quality of their student experience."  

It could not be plainer; DMU professed not only to operate an effective complaints procedure, but to positively welcome feedback about the "student experience".  That, in my "experience", cannot be further from the truth.  The right to complain is meaningless if complaints, when made, are not considered.  Moreover, unconsidered complaints cannot give rise to service improvement.

I was a law student studying for DMU's Master's Degree in Food Law ("LLM") and this article considers a number of points of law as well as condemning, in as composed way as possible, the behaviour of DMU; its lack of concern for its procedures, promises to students and for service improvement and education.  Whereas I ultimately achieved an overall distinction, that was due to my own efforts and was despite of DMU's conduct.  My success in obtaining the top grade, in no way reduces my concern for the dismissive way in which I was treated or for other students who may have lost out as a result of DMU's failings or who may do so in the future.  

The Initial Conflict

My involvement with DMU began in June 2016 when I paid £8,000 in advance for a distance learning course.  That LLM course started in September 2016 and was to run until December 2018.  The first module of my course was on "Food Law in the UK and EU".  It was a "prerequisite module" because a pass mark (not less than 50%) had to be achieved before I could proceed to the rest of the course.  The threshold for a "merit" was a mark of 60% and at least 70% was required for a "distinction".  I achieved a mark of 80% and so I progressed in a strong position.

In 2017 I embarked simultaneously on my next two modules each of which consisted of two assignments.  My conflict with DMU began when I received the Assessor's marks for the second assignment ("my Assignment") in respect of the module on Food Consumer Protection Law.  My Assignment involved advising whether, in certain scenarios, a food retailer was in breach of the Consumer Rights Act 2015 ("CRA") and whether it had committed offences under the Food Safety Act 1990 ("FSA").

The Assessor gave me a mark of 68%, which put me below the distinction level and well below the mark I had achieved for the prerequisite module.  The Assessor set out the "ways in which your answer could be improved".  He began by saying: "You seem to run out of words in parts …" and ended by referring me to the side comments he had made on my script.  There were 22 such comments only two which praised what I had said.  The other 20 comments drew attention to what he was effectively saying were omissions in my answer.  Upon my first reading of the comments, I was appalled with myself for seemingly making so many errors.  However, upon closer examination, I found that many of the negative comments were factually inaccurate; it was not I who was in error, but the Assessor.  Although being marked down as a result of the Assessor's errors did not ultimately prevent me securing an overall distinction, I was not to know at that stage that I would not need some extra marks in order to boost my average should I not perform so well in subsequent assignments.  Consumer protection law should have been my strongest subject and I was aggrieved that the Assessor downgraded my work as a result of his own mistakes.  I was also concerned about my fellow students who may have received similar comments without realising that they were unjustified.  In my case, my mark for the first assignment was high enough to still give me a distinction for the module, but the loss of a few percentage points in the case of other students may have made a more significant difference; perhaps even the difference between passing and failing.  I decided to lodge an academic appeal and looked at DMU's Regulations to ensure that I followed the requisite procedure to the letter.

The Academic Appeals Procedure

The right of students to appeal was set out in Chapter 8 of DMU's General Regulations & Procedures Affecting Students ("Appeals Procedure").

The Appeals Procedure included:

"1.1     A student has the right to appeal for reconsideration of a decision by an assessment board ...

1.1.1    Concerning an assessment outcome in a module ...

1.1.2    Concerning the determination of progression or non-progression, or determination of an intermediate or final award, or a decision not to make an award ...

1.3       The grounds on which a student can appeal for reconsideration of a decision are limited to one or more of the grounds set out below: 

1.3.1    During the examination or assessment ...

1.3.2    During the marking and decision-making process

There are alleged errors in the process of marking and/or consequent decision making.  The outcome of the assessment differs so markedly from the candidate's reasonable expectations as to raise reasonable doubt as to whether the process has been properly conducted.

In considering whether the circumstances put forward by the student fulfil this ground for appeal the Student Appeals & Conduct Officer ["SACO"] will expect the student to provide evidence that their expectations of the outcome of the assessment were based on, for example:

·       Their performance in a module which was a prerequisite for the module in question.

·       Their performance in all other components of the module in question. ...

These are examples of acceptable circumstances in relation to this ground for appeal but they do not represent an exhaustive definition of such circumstances. ...

1.4       Students should note that simply questioning the academic judgement of their assessors does not constitute grounds for an academic appeal; in such cases the [SACO] reserves the right to dismiss the appeal as being without substance (see paragraph 2.3). ...

2.1       Any student wishing to appeal for reconsideration of the decision of an Assessment Board ... shall give notice of the appeal in writing using the standard ['Appeal Form'] ...

2.2       The Appeal Form, together with all the necessary documentation, should reach the [SACO] within 21 days of the published date for issuing results from the assessment board concerned ...

2.3       The [SACO] is empowered to dismiss an appeal at this stage if it should appear in his/her absolute opinion that the grounds of appeal are so lacking in substance that further consideration would not be justified.

If necessary, the [SACO] shall seek an initial response to the appeal from the student's Faculty.  The [SACO's] decision in such cases shall be final and not subject to review by any other University body. 

A student whose appeal has been dismissed by the [SACO] at this stage may not seek reconsideration of this decision through the University's Student Complaints Procedure."

My Academic Appeal

Even before I could appeal, I had to overcome difficulties presented by the imprecise wording of the Appeals Procedure and defects in the Appeal Form the use of which was prescribed by para.2.1.

My first task was to ensure that my appeal was submitted within the time limit set out in para.2.2.  I therefore emailed the Academic Support Office, headed by the SACO, for the "published date".  The SACO's Office did not know and referred me to the Programme Administrator who effectively confirmed that there was no "published date" as described in the Appeals Procedure.  It transpired that, although there was a date for the meeting of the assessment board to ratify the Assessor's marks, those marks, as ratified, would be confirmed the following week.  It appeared therefore that, in reality, the deadline for appeals was not "within 21 days of the published date for issuing results from the assessment board" but 21 days from the actual issuing of the results from the assessment board.

The Appeal Form required the student to "state the decision giving rise to the appeal".  This involved ticking either box A: "Assessment board decision of fail in module(s) or part(s) of a programme" or box B: "Assessment board decision making a particular award or class of award or a decision not to make an award".  Neither option A nor option B, both of which derived from para.1.1.2 of the Appeals Procedure, was applicable in my case.  Had I not referred back to the Appeals Procedure, I might well have concluded that I had no right of appeal unless I had failed in my Assignment (i.e., achieved a mark of less than 50%) or waited until the end of the course when I could appeal only if dissatisfied with the class of award.

In completing the Appeal Form, I stated that I did not rely on either options A or B but on the basis for appeal provided for by para.1.1.1 of the Appeals Procedure; an assessment board decision "concerning an assessment outcome in a module".  I naively thought, at that time, that upon receiving my appeal, the SACO would acknowledge the deficiency in the Appeal Form and perhaps even thank me for drawing it to her attention.  I now have to wonder whether the omission in the Appeal Form is deliberate and whether DMU intends to discourage students from exercising their legitimate right to appeal when it may not impact on the student's ultimate award but merely serves to expose marking errors.

The next problem I had to grapple with was the ambiguity in para.1.3.2 of the Appeals Procedure.  The first two sentences thereof gave a right to appeal when:

"There are alleged errors in the process of marking and/or consequent decision making. 

The outcome of the assessment differs so markedly from the candidate's reasonable expectations as to raise reasonable doubt as to whether the process has been properly conducted."

What is not at all clear is whether the above two sentences set out alternative grounds for appeal or whether they are two elements of the same ground.  In other words, are the two sentences to be read as though linked by the notional word "and" or by the word "or"?  Do they both have to be alleged or just one or the other?

The Appeal Form, which had already shown itself to be unreliable, somewhat surprisingly linked the two sentences with neither "and" nor "or" but with the word "because".  It read:

"I allege there have been errors in the marking or in the consequential decisions of the assessment board, because the outcome of the assessment differs markedly from what I had expected.  (Examples: performance in the module you are disputing compared to performance in a similar preceding module or performance in other modules on the same course)."

In the text of my document in support of my appeal, I said:

"My grounds for appeal are, in accordance with paragraph 1.3.2, that: 'There are alleged errors in the process of marking and/or consequent decision making.'   If (which paragraph 1.3.2, does not make clear) I also need to allege that the outcome differs markedly from my reasonable expectation, I allege that I could reasonably expect that the examiner would not misapply the law or, alternatively, that the outcome (68%) differs markedly from the 80% awarded for 'a module which was a prerequisite for the module in question'."

Again, I innocently thought that drawing the SACO's attention to the equivocal wording of the Appeals Procedure (and its disparity with the wording of the Appeal Form) would result in its future clarification.

I submitted my academic appeal on 10th May 2018.  On 24th May 2018 the Assistant SACO wrote to inform me that she (not the SACO) had decided to dismiss my appeal "as there are no grounds on which to take it further".  She based her decision on para.1.4 of the Appeals Procedure asserting that I was "simply questioning the academic judgement of [my assessors]".  I received a contemporaneous letter from the SACO informing me that the decision of DMU to dismiss my appeal was final and that there were no grounds to take it further, but that I could complain to the Office of the Independent Adjudicator ("OIA").

I had, and still have, no doubt that many of my challenges to the comments made by the Assessor were in essence questioning matters of fact or law rather than his academic judgement and hence that I was not "simply" questioning his academic judgement.

Academic judgment

It is quite reasonable that an academic appeal should not be based solely on a challenge to academic judgment.  Where two people hold a different opinion on a matter it does not necessarily mean that either of those opinions is wrong.  If, however, an opinion or judgment is predicated on a factual error then it becomes a judgment which no one, least of all an assessor, is entitled to arrive at.  If it were the case that fact-based errors could be excused, or dismissed as merely academic judgment it would render the right to appeal meaningless. 

DMU's Assessment and Feedback Policy stated that "Assessment should be: Transparent … Equitable … Valid … Reliable: such that the judgements derived from assessment are accurate, verifiable and criterion-referenced … Consistent: such that assessment judgements are agreed and moderated … Just: so that there are effective mechanisms that … can resolve appeals against assessment decisions."

The hypothetical purported equation "2 + 2 = 5" is factually erroneous and it does not become true because it is stated as the academic judgment of a professor of mathematics, however esteemed he or she might be.  When, in 1992, the then USA Vice President Dan Quayle famously purported to correct a child's classroom spelling by adding an "e" to the end of "potato", he was making a factual error (even in American English).  Had the Vice President been the child's assessor, it would not have turned his factual error into an academic judgment.  It is no different if the factual error is contained within a more complex equation or statement such that it is not immediately obvious to those without a knowledge of the subject matter.

The alleged errors

As the errors of fact made by the Assessor were in the marking of an assignment for a law degree, worst amongst them were those which misstated the law.  The effect of those erroneous comments was not only that they led to my mark being downgraded but they provided miseducation.  Although there may be scope for lawyers to interpret legal provisions or authorities in a different way from one another, the provisions and authorities referred to in the comments numbered 1) to 7) below leave no room for academic judgement; the comments provide erroneous factual statements as to the law, albeit with varying degrees of import.

1) Erroneous assertion as to the elements of offences under section 15(1)(b) Food Safety Act 1990 ("FSA")

The scenario I was responding to here concerned food which was labelled as "cream", but which contained an additive.  "Rebecca" purchased a carton of the "cream" from a supermarket, which had itself purchased the cream warranted as being additive free.

Before answering the question of whether the supermarket had committed offences under the FSA, I set out the relevant case law and sections 14(1) and 15(1) FSA in full.

S.14(1) provides:

"Any person who sells to the purchaser's prejudice any food which is not of the nature or substance or quality demanded by the purchaser shall be guilty of an offence."

S.15(1) provides:

"Any person who gives with any food sold by him, or displays with any food offered or exposed by him for sale or in his possession for the purpose of sale, a label, whether or not attached to or printed on the wrapper or container, which-

(a) falsely describes the food; or

(b) is likely to mislead as to the nature or substance or quality of the food,

shall be guilty of an offence."

My answer included:

"S.14(1)

Having regard to [Williams v Friend [1912] 2 KB 471], the local authority ('P') is likely to have a prima facie case against [the supermarket as it] sold Rebecca 'cream', doubtless labelled as such, which contained additional matter affecting its 'substance' and/or 'quality' as silently 'demanded' by Rebecca [Smedleys Ltd v Breed [1974] AC 839].  It was to Rebecca's prejudice because she was adversely affected by the additive.  If the additive replaced more than a de minimis amount of genuine cream then Rebecca was also prejudiced by that dilution in substance or quality [Goldup v John Manson Ltd [1981] 3 All ER 257].

S.15(1)(b)

The label 'cream' (even if not false under s.15(1)(a)) was likely to mislead the 'ordinary man', including Rebecca, to believe it was free of additives affecting its substance or quality.  As [the supermarket] was unaware of the additive, it cannot have drawn its presence to Rebecca's attention prior to her purchase." 

The Assessor's comment added the following words to my final sentence set out above:

"Which may then have resulted in a sale which was not to Rebecca's prejudice."

Far from improving my answer, however, those words diminished it; they effectively asserted, quite wrongly, that both the need for there to be a sale and for the purchaser to be prejudiced are elements of an offence under s.15(1)(b).  Each of those assertions was a blatant error and not a matter of academic judgment.

It can be seen that, in the case of s.14(1), for there to be an offence there must be a sale of food to the prejudice of the purchaser.  Consequently, in that part of my answer which dealt with s.14(1), I took both the sale of the cream to Rebecca and her prejudice into account. 

It can be seen from s.15(1), however, that an offence can be committed thereunder regardless of whether a sale takes place and regardless of whether any prospective purchaser is prejudiced.  Had I included the words proffered by the Assessor in his comment, it would have indicated that I had confused s.15(1) FSA with s.14(1) FSA which is exactly what the Assessor has done.  Incontrovertible error by an academic cannot be regarded as academic judgement.

2) Erroneous statement as to what was decided in Riley v Webb (1987) 151 JP 372

In another part of my answer, in relation to the cream sold to Rebecca, I considered whether the supermarket would have a defence under s.21 FSA were it to be prosecuted under the FSA.  I noted that the supermarket relied upon its supplier's warranty that the cream was "additive free".  To that the Assessor commented:

"Which cannot be relied upon – see Riley v Webb (1987) 151 JP 372."

The Assessor's effective assertion that Riley v Webb (1987) 151 JP 372 was an authority for the proposition that a supplier's warranty cannot be relied upon as a defence to a prosecution under the FSA is factually wrong. 

Riley v Webb concerned the supply of pencils containing a substance in excess of that permitted by Regulations made under the Consumer Protection Act 1961 ("CPA").  In seeking to prove the due diligence defence in s.3(2B) CPA the defendants sought to rely on a condition in the contract with their own supplier which provided that all goods supplied would conform with all requirements imposed by any statute or statutory regulation.  It was held that such a "general blanket condition" could not be relied upon to establish the defence.  Both of the judgments in that case, however, said that an assurance relating to the specific regulations concerned would have sufficed.  Macpherson J also said that the defendants could have been saved from the trouble they were in by obtaining "a very simple assurance from the manufacturers".  The defendants could, he said, "have asked for a specific assurance about these particular goods." 

It follows that, far from being an authority that a warranty cannot be relied upon, Riley v Webb is actually an authority for the proposition that a simple, but specific, warranty can be relied upon.  The warranty relied upon by the supermarket in the "cream" scenario specifically provided that "all dairy products" supplied to the supermarket were "additive free".

It is not possible to construe Riley v Webb in the way that the Assessor has done and his comment was therefore an error of fact and not judgement.

Even if, which is manifestly not the case, Riley v Webb had held that a warranty (however specific) could not be relied upon, it would have been for the purposes of the CPA.  Subsections (2) to (4) of s.21 FSA are couched in quite different terms from the standard due diligence defence which appeared in s.3(2B) CPA and which appears in s.21(1) FSA.  As Butterworths Law of Food and Drugs puts it, at paragraph [127]: "The provisions of sub-ss.(3) and (4) of [s.21 FSA] are entirely new and have been provided to give some protection to retailers in the absence of a specific defence of warranty [formerly in s.102 Food Safety Act 1984]."

3) Erroneous statement of legal provision in the Food Information to Consumers Regulation No 1169/2011 ("FICR")

The scenario concerned a cottage pie purchased by Robert in a supermarket cafeteria.  He found the pie to be "very greasy and not at all to his taste".  Subsequent analysis of the minced meat used in the pie found it to contain 34% fat.  

I wrote:

"S 9 Consumer Rights Act 2015

'Price' and the trader's public statement about the characteristics of the food are factors to consider in determining 'satisfactory' quality.  The phrases 'cheap and cheerful' and 'economy lunchtime meal' emphasise that the pie [in this scenario] is likely to contain cheap and hence low quality ingredients.  Although 'cheap' does not always equate to poor quality, here, the trader sold other mince meals at a much higher price.  It is unlikely that Robert could prove the quality of the meat, in the circumstances, was so poor as to take the pie below the standard that a reasonable person would consider satisfactory."

The Assessor commented:

"The food information to consumers Regulation (EU) 1169/2011 states that minced beef must be no more than 20% fat.  While the UK has a derogation could it not be argued that 34% is simply so far in excess of this standard that a reasonable person would not regard it to be of satisfactory quality?"

The Assessor's comment is factually wrong.

First and foremost, FICR does not provide that "minced beef must be no more than 20% fat".  Art.17(5) and Part B of Annex VII to FICR provide that for the designation "minced pure beef" to be used as the name of the food, its fat content ("checked on the basis of a daily average") should be no more than 20%.  FICR does not therefore provide a "standard" for minced beef in general, but only when the name of the food is labelled as "pure beef".  The minced meat in the pie purchased by Robert was not sold as "minced pure beef", it was an ingredient within food named and sold as a "cottage pie".

Secondly, it was not stated in the facts of the scenario that the "minced meat" found in the cottage pie was "minced beef" or indeed any type of beef.  Whereas the minced meat used in a cottage pie may potentially be beef, the Oxford dictionary definition of "cottage pie" is simply "a dish of minced meat topped with browned mashed potato".  The meat could come from a variety of animals.  Even a small amount of pork used in the minced meat ingredient would have been enough to take the mince out of the designation "minced pure beef" and placed it into FICR's designation of "minced meat containing pigmeat" which allows a fat content ("checked on the basis of a daily average") of no more than 30%.  The difference between an "average" of 30% fat, and 34% cannot therefore be assumed to have been "far in excess" of FICR's standard which, in any event does not apply to non-prepacked food.

Thirdly, s.9(2) CRA limits the things which a reasonable person would take into account when determining whether goods are of satisfactory quality to "any description of the goods", "the price (if relevant)" and "all the other relevant circumstances".  The FICR's standard for food designated as "minced pure beef" is not a "relevant" circumstance given that it has no application to the fat content of food sold as a "cottage pie" in a cafeteria.  Moreover, the reasonable person is unlikely to know of, or take account of, the FICR's standards for food designated as "minced meat".

4) Erroneous statement as to what was decided in Pinnock Brothers v Lewis and Peat Limited

In my answer I said:

"There is no evidence that the fat content was so high as to render the food unfit for the purpose of eating or contrary to its description as a 'cottage pie'."

The Assessor commented:

"Greasiness is a quality and cases where qualitative defects mean goods cease to fit their description are rare.  Pinnock v Lewis and Peat [1923] 1 KB 690 concerning the supply of cattle feed is one such case."

Referring to Pinnock Brothers v Lewis and Peat [1923] 1 KB 690 would not have improved my answer because the Assessor is factually wrong when he says that it was a case where qualitative defects meant the goods ceased to fit their description.

The complainant in Pinnock Brothers v Lewis and Peat succeeded entirely on the basis that the goods, bags of "copra cake", did not comply with their description because they were mixed with such a large proportion of castor beans that they "were totally different from what was contracted for".  The word "quality" does not even appear in the findings of fact made by the judge (Roche J) or in his judgment at all.  It is a fact that there was no decision from which it can be construed that "qualitative defects mean goods cease to fit their description" as asserted by the Assessor.  There was no scope whatsoever for academic judgment to that effect and the Assessor's assertion that Pinnock Brothers v Lewis and Peat is an authority for that proposition is patently wrong.  Indeed, if anything, the case decided the opposite.  The decision of Roche J was quite specific: "I hold that the cause of complaint - namely, the presence of the castor beans, is not a matter which can properly be described as condition.  It is failure of the goods to comply with the description; it is a delivery of goods other than those contracted to be delivered."  Roche J also decided that "a difference of substance cannot be said to constitute a 'defect'."  There was no complaint about the condition (or quality) of the copra cake content of the goods supplied; the complaint was that, being mixed with castor beans, the goods were not "copra cake".

5) Erroneously stated application of misnamed Wolkind v Pura Foods Ltd

The scenario here was that in a serving of peaches, which had been sold by a supermarket as "Spanish", Philip found "a sticker bearing the words 'Produced in France, packed in Spain' that must have been attached to the peach".

In considering whether the supermarket may have committed an offence under s.15(1)(a) FSA, I wrote that the supermarket:

"… could potentially argue that the sticker found by Philip would have been conspicuously displayed (even if perhaps through transparent cellophane) as part of the label at the time of purchase and that it qualified the description 'Spanish' such that it ceased to be false."  

The Assessor's comment on the above was:

"Accompanying descriptions may counter the effect of an otherwise misleading label – Wolking [sic] v Purs [sic] Foods (1987) 151 JP 492."

Although the Assessor appears to have agreed with what I said, he was saying that my answer could be improved by including his sentence and the reference to "Wolking v Purs Foods" as an authority.

The Assessor was factually wrong for two reasons.

Firstly, he misnamed both parties to the case he cited.  Whereas my criticism in this respect may seem petty, I have no doubt that had I misnamed a case in an assignment, particularly one undertaken with ready access to the correct details, I would have been penalised for so doing.  It is a fact that the name of the case reported at "(1987) 151 JP 492" is"Wolkind v Pura Foods Ltd" or, more fully, Wolkind and Northcott v Pura Foods Ltd (1987) 151 JP 492.

Secondly, and more importantly, the Assessor stated in his comment that "Wolking v Purs Foods" was a case which considered whether a description on a label was "misleading" whereas it is a fact that my answer related to s.15(1)(a) FSA under which the question was, not whether the label was misleading but, whether the label "falsely" described the food. 

The reality is that Wolkind v Pura Foods Ltd is an authority for the proposition that not only can an otherwise "misleading" description be qualified by an accurate description but so too can an otherwise "false" description be qualified by an accurate description.  To that extent it is fair to say that I could have referred to Wolkind v Pura Foods Ltd in support of my proposition.  But my answer would have been marred by using the Assessor's proffered wording as it would have indicated both that I did not know the correct name of the authority and that I did not appreciate that s.15(1)(a) FSA only concerned matters which were "false" in their description of food and were not merely misleading. 

6) Erroneous application of that which might be misleading to that which must be proved to be false

I stated that the word "Koala", in the name "Koala Shiraz wine" on a bottle of Italian wine did not falsely describe the wine as Australian.  The Assessor commented:

"Does the association of the wine with an animal emblematic of Australia not provide the strong impression that it too is Australian?"

I had previously stated, notably without comment from the Assessor, that: "Whereas a 'Koala' is an Australian marsupial, that word does not describe the wine as Australian."  

The Assessor's comment was factually wrong when applied to my statement concerning falsity because, even if he is right (in his academic judgement) that the word "Koala" on a wine label creates a "strong impression" that the wine is Australian, that at most would make the label misleading and not false.  Section 15(1) FSA expressly distinguishes between (a) "falsely" described labels and (b) labels which are likely to "mislead" as to their nature, substance or quality.

It is a fact that s.15(1) FSA being a criminal provision means that any alleged falsity would have to be proved beyond reasonable doubt.  It is a fact that the offence relates to the "label" as a whole and not to any individual words thereon.  Moreover, it is a fact that there was absolutely no suggestion in the scenario that the label in question did not correctly declare that the wine was the product of Italy.  Indeed, it could not have been known that the wine was Italian unless that fact had been declared on the label.

The only way in which the words "Koala Shiraz wine" could be said to "falsely" describe the food in question would be if they were read in the sense that the Shiraz wine was a food for Koala's in the same way that "cat food" is read as meaning a food for cats.  However, it is the "label", not individual words thereon taken alone, which must falsely describe the food.

Even if my answer had been concerned with that which is misleading under s.15(1)(b), rather than to that which is false under s.15(1)(a) FSA, the Assessor's comment would still have been wrong.  For there to be such an offence under s.15(1)(b) it would have to be proved beyond reasonable doubt that the presence of the word "Koala" in the name of the product rendered the entire label "likely to mislead as to the nature or substance or quality of the food".    There was no suggestion in the facts of the scenario that if the wine had originated from Australia rather than Italy it would have had a different nature or substance or quality.  Earlier on in my answer I said, in relation to an advertisement for the wine: "The innuendo in the advert that the wine originated in Australia is not an indication as to its quality".  The Assessor did not challenge that.  The only way in which the word "Koala" could mislead as to the nature or substance or quality of the wine would be if it was capable of causing a reasonable person to think that the wine was either made for or from Koalas.  The question of whether "Koala" was misleading as to the nature or substance or quality of the wine would, in any event, have had to have been considered in the context that it was being used as a product name and not as a descriptive name giving information about the food.  

My assertion that the Assessor was wrong was made because he was factually wrong in the context of my answer rather than because I did not agree with his opinion that the word "Koala" gave "a strong impression" that the wine is Australian.  Nonetheless, it is well known that the product name "Penguin", as applied to a biscuit, does not suggest that it originates from or near the Antarctic.  The even more origin-specific word "Brussels", in the food name "Brussels sprouts" does not suggest that they are only grown in Brussels.  In Anderson v Britcher (1914) 78 JP 65, Darling J said: "[T]he case is hardly to be distinguished from that of a Brussels carpet, which nobody supposes to be necessarily a carpet made in Brussels, or the case of a Cambridge sausage, which I suppose nobody for a moment believes to come necessarily from Cambridge".

7) Erroneous statement as to what was decided in Coppen v Moore

I wrote, in relation to the peaches referred to previously:

 "S.15(1)(a)

The presumed label 'Spanish' is, applying [Bischop v Toler (1895) 59 JP 807], a false description as the peaches originated from France and were merely packed in Spain."

The Assessor commented:

"In Coppen v Moore [1898] 2 QB306 the term 'Scotch' applied to American ham was held to be a false description."

The Assessor was factually wrong.

Firstly, the report at [1898] 2 QB 306 referenced by the Assessor is specifically for Coppen v Moore (No 2) [1898] 2 QB 306 in which the question of whether "Scotch" was a false description was not in issue.  What was "held", in that case, was that the defendant was vicariously liable for the act of his salesperson. 

Secondly, the more appropriate citation would have been for Coppen v Moore (No 1) [1898] 2 QB 300.  Even there, however, whether "Scotch" was a false description was not in dispute and so it was not necessary for the court to make a finding thereon.  In that case, the defendant's salesperson had pointed to some ham which he said was "Scotch ham".  Before paying for the ham, the purchaser asked for the word "Scotch" to be written on the invoice.  The purchaser then disclosed that he was an inspector and the salesperson admitted that the ham was in fact "American".  The falsity was never in question.  What was "held" was that the initial description "Scotch ham" was not a trade description, within the meaning of the Merchandise Marks Act 1887, because it was merely an oral description.  It was also held, however, that there was nonetheless an offence because writing the word "Scotch" on the invoice was "a sufficient trade description to satisfy the statute".

Thirdly, the Assessor was factually wrong in saying that my answer could have been improved by referring to Coppen v Moore.  That is because I had already referred in my answer to the more relevant authority of Bischop v Toler (1895) 59 JP 807, a case in which "Le Dansk, French factory" was "held" to falsely describe a Le Dansk made margarine which had been compounded with English milk and Danish butter.  In other words, in the case I had cited the decision of the court was indeed a finding of falsity whereas falsity was not an issue in the case referred to by the Assessor.

As an aside, it should be noted that neither Coppen v Moore nor Bischop v Toler are entirely compelling authorities when applied to s.15(1)(a) FSA.  That is because both of those cases were decided under the Merchandise Marks Act 1887, s.2(1) of which expressly provided that "… 'trade description' means any description, statement, or other indication, direct or indirect … (b) as to the place or country in which any goods were made or produced".  There is no equivalent provision in the FSA and so it cannot be certain that a food label, which makes a false statement as to the place of origin of the food, would be held to constitute a label which "falsely describes the food" (as distinct from where it was made or produced) within the meaning of the FSA.

Other errors

In addition to comments which were directly or indirectly wrong in law, the Assessor made comments which were erroneous because they did not take account of my full answers on the points in question.  Even if some of those comments may have been academic judgement, I still considered them to have been wrongly made.  It is worth repeating that, so long as at least one of the comments I was challenging in my appeal was not academic judgement, my criticism of further comments could not mean I was "simply" questioning academic judgement. 

8) Premature comment

One page of my answer ended with:

"The innuendo in the advert that the wine originated in Australia is not an indication as to its quality, but the references to 'silky smooth' and 'top notch' are."

The Assessor commented:

"The claim was actually 'silky smooth, just like top notch Barossa'.  Is 'silky smooth' little more than trade puffery?  Does 'just like' imply similar, but different?"

The implication of the questions raised by the Assessor in his comment are that I had not sufficiently considered the impact of the words "silky smooth" and "top notch" and that I failed to appreciate that "just like" might imply "similar but different".

The reality is that the Assessor made his comment without considering my full answer on the point.  Immediately after the sentence which was the subject of his comment, I wrote (at the top of my next page):

"In wine-speak 'silky wines feel polished in your mouth' and smooth wines 'feel soft on your palate' (https://www.thewinecellarinsider.com/wine-topics/wine-educational-questions/abc-of-wine-glossary-of-wine-terms/).  It is a contradiction for something that is 'polished' or 'smooth' to be 'sharp' [as the wine actually was] and selling the latter in place of the former cannot provide 'satisfactory quality'.  Similarly, comparing the wine to a 'top notch' wine is to misstate its actual poor quality." 

The Assessor was wrong not to have considered my full answer and neither of the two questions posed by the Assessor are academically sound. 

Firstly, he asks: "Is 'silky smooth' little more than trade puffery?"  This is an oxymoron.  Anything more than trade puffery, even if only by a "little", ceases to be trade puffery.  I explained why the words "silky smooth" were meaningful in relation to wine terminology and so had effectively set out why it was not "trade puffery".

Secondly, the Assessor asked, in relation to the words "just like", which he highlighted: "Does 'just like' imply similar, but different?"  The answer is so obviously "no" that there can be no reason why my answer should have considered such a point.  "Just like" is an ordinary English term and what it means, and hence implies, is a matter of fact.  The word "just", when used in this context, means "exactly" (https://dictionary.cambridge.org/dictionary/english/just).  The word "like", in this context, means "similar to" (https://dictionary.cambridge.org/dictionary/english/like).  Therefore "just like" means "exactly similar to" i.e., "the same".  "Just like" (or "the same") cannot mean or imply "similar but different".  Such an interpretation completely ignores the effect of the word "just".  Furthermore, something which is similar to something else will always be "different" from that something else otherwise it would be the same and not merely similar.  

9) Incomplete appraisal

I wrote:

"The well-known lion quality stamp (or equivalent) is a 'guarantee that all hens are vaccinated against Salmonella' (https://www.egginfo.co.uk/british-lion-eggs).  It was reasonable for Rebecca to rely on [the supermarket] to sell only stamped eggs.  If the eggs were stamped, it was reasonable for Rebecca to rely thereon."

The Assessor commented, in relation to the final sentence of the above:

"A fair point, but is the converse also true?"

Whereas this may appear to be an academic comment, it is factually wrong in its implication that my answer would have been improved by answering the question which it poses.  That is because I had already dealt with the "converse" in my middle sentence. 

The converse of my point that "if the eggs were stamped, it was reasonable for Rebecca to rely thereon" is that "if the eggs were not stamped it was not reasonable for Rebecca to have relied thereon".  In my previous sentence, I said: "It was reasonable for Rebecca to rely on [the supermarket] to sell only stamped eggs" i.e., if it turned out that the eggs were not stamped, Rebecca could still rely on the reasonable assumption that they should have been stamped and hence that they were Salmonella free.

10) Inappropriate comment

The scenario said that Rebecca contracted salmonella after eating eggs which she purchased from a supermarket.

In considering a potential offence under s.14(1) FSA, I wrote:

"Safe eggs are possible through the vaccination of hens against salmonella which would consequently have 'no business to be there' even though the eggs may have come straight from the hen (Hall v Owen-Jones [1967] 1 WLR 1362).  If [the prosecutor] can prove the eggs were infected then, given Rebecca's illness, it can also prove that she was prejudiced by their substance or quality unless [the supermarket] can successfully assert that she demanded infected eggs."

The Assessor commented:

"In what circumstances might Rebecca do so?"

Although, the Assessor's comment may amount to academic judgement, it was inappropriate, given that I was obviously saying that, in order to counter the evidence that Rebecca was prejudiced, the supermarket would have the impossible task of showing that Rebecca had deliberately purchased infected eggs.  Whereas there are rare circumstances in which a person might do so, for example to cause harm to someone or to conduct scientific experiments, the context of the scenario was that Rebecca had purchased the eggs for the purpose of eating them herself.

11) Incomplete appraisal

The scenario was that Rebecca became unwell after eating cream which she purchased from a supermarket.

I wrote:

"As it is a fact that 'the cream [made] Rebecca feel unwell', she must have a good basis to prove causation."

The Assessor commented:

"What might a good basis look like?

I described this in the first part of my sentence.  A good basis to prove causation is by establishing that the alleged damage (the illness) resulted from the alleged cause (the cream).  As the causation in this case was presented in the scenario as a fact, it follows that there must be evidence to prove it.

12) Asking for what is already there

I wrote, in relation to the cream sold to Rebecca which contained an additive:

"Rebecca's case is stronger if the cream was labelled 'additive free' or the additive significantly diluted it so rendering it not even the commercial equivalent of cream (Arcos Limited v EA Ronaasen and Son [1933] AC 470)."

The Assessor commented:

"Yes, we are not told much about packaging and presentation, but this may be very relevant, what if packs claimed the contents were '100% natural dairy cream'."

The implication of the Assessor's comment is that my answer could have been improved by considering the position had the cream been labelled "100% natural dairy cream", but that is just another way of saying that the cream is "additive free" which I had expressly dealt with (100% cream = 0% additives). 

13) Asking for what is not required

S.15(4) FSA provides:

"… the fact that [the] label … contained an accurate statement of the composition of the food shall not preclude the court from finding that the offence was committed."

I wrote:

"Notably, for an 'accurate statement' not to preclude a finding that the offence was committed it has to relate to the 'composition of the food'.  It follows that an arguable effect of s.15(4) is that an accurate statement relating, not to composition, but to place of origin, does preclude an offence based on a falsely described place of origin."

The Assessor commented:

The converse is not always true, what authority can you cite in support of this proposition?

It is a fact that not all propositions have a precedent.  Every authority has to begin with a proposition that is novel.  Whereas the Assessor's comment may have been an academic judgement, it was wrong for him to expect me to have given an authority for my proposition when I expressly said that it was no more than an "arguable" interpretation of the statutory provision.

Trivial comments

In my supporting appeal document, as well as referring to those of the Assessor's comments which I considered to be wrong, I mentioned his nine other comments for the sake of completeness.  Two of those other comments praised my answers and, in relation to the other seven, I explained why I considered them to be of a minor or trivial nature.

The Office of the Independent Adjudicator

My complaint to the OIA, made in September 2018 did not succeed.  However, although the OIA said it was satisfied that I was seeking to challenge the academic judgment of the Assessor, it came to that conclusion without considering "the significance of the points raised" in my academic appeal.  Not only did the OIA make its decision without considering that evidence, it did so without considering the relevant question.  The OIA failed to consider the distinction I had drawn between "academic judgement" and fact and it did not consider whether I was "simply" questioning academic judgment.  

The OIA's stated reason for not commenting on the significance of the points I had raised was that "in our view, the decision as to whether the marker's comments were correct is one which only a suitably qualified academic can make."  The OIA, however, was not being asked to consider whether the Assessor's comments were correct, but only whether they amounted to (allegedly erroneous) statements of fact rather than being simply academic judgment.  It is significant that rule 5.2 of the OIA Scheme Rules provides: "We cannot review a complaint about the academic judgment of a higher education provider."  The OIA, however, had already decided "that you are complaining to us about errors during the assessment process, and the University's decision that your appeal was a challenge to academic judgement … your complaint appears to be Eligible for review under our Rules." 

My Student Complaint

Having failed in my complaint to the OIA, I revisited the assertion which the SACO had made that DMU's decision to dismiss my academic appeal was "final".  I noted that the second paragraph of para.2.3 of the Appeals Procedure only said that the decision of the SACO to dismiss an appeal was "final" in cases where she had sought "an initial response to the appeal from the student's Faculty".  Although the Assistant SACO had obtained certain information from my faculty, she did not seek a response to the appeal.  In any event, it was only if a response to the appeal was sought by the SACO herself, not by the Assistant SACO, that the decision of the SACO, not that of the Assistant SACO, was final.

I therefore decided to invoke the Complaints Procedure.  I noted that the final paragraph of para.2.3 of the Appeals Procedure did not allow the Complaints Procedure to be used to "seek reconsideration" of the SACO's decision to dismiss an appeal but, in my case, it was the Assistant SACO and not the SACO who had made the decision.  I also noted that the only exclusion from the extremely wide scope of the Complaint's Procedure, given by that procedure itself, was that it did not allow its use for "appeals against Assessment Board decisions".  My student complaint was not seeking to appeal against an Assessment Board decision, but to challenge the decision of the Assistant SACO.

In addition to complaining about the Assistant SACO's decision, I made nine other complaints none of which sought a reconsideration of my appeal and only three of which even mentioned either the Assistant SACO or SACO.  

The nine self-standing complaints independent of my appeal were:

1)          DMU failed to follow the guidance it gave in its Programme Handbook on "Answering Questions in Law", namely that students should only answer the question set.

The circumstances of this complaint arose prior to the submission of my Assignment. 

Half of my Assignment related to offences under the FSA.  The submission date for my Assignment was 4th December 2017.  On 13th November 2017, the Assessor provided some notes which included:

"Offences under the Food Safety Act 1990

The main offences are selling food not complying with food safety requirements contrary to regulation 19 of the Food Safety and Hygiene (England) Regulations 2013 ['the Regulations']; selling food not of the nature or substance or quality demanded; and falsely describing or presenting food, contrary to sections 14 and 15 respectively of the Food Safety Act 1990."

On 16th November, I wrote to the Assessor pointing out that contraventions of the Regulations were not offences under the FSA, but under the Regulations themselves and were therefore outside the scope of my Assignment questions.  The Assessor responded the next day.  He said:

"You are correct in your analysis, but it was not my intention to suggest that the 2013 Regulations created an offence under the FSA.  I can see how this impression may have been created given the question refers only to the FSA and my note refers to other possibilities, but that is all it was intended to do. … It is always open to you to cast the net a little wider than a literal reading of the question and selling food not complying with food safety requirements is perhaps the most obvious next possibility."

Although, I was now reassured that I did not have to extend my answers to cover the Regulations, I was concerned that other students might be misled by the Assessor's notes which, whatever his intention, clearly put contraventions of the Regulations at the top of his list of offences under the FSA.  I emailed the Assessor again and he replied that "I will, for clarification and avoidance of doubt, circulate a note to explain the position."  However, it was not until seven days before the deadline for my Assignment to be submitted that the Assessor emailed the other students.  He told them that:

"[Offences under regulation 19 of the Regulations] are clearly not offences under the [FSA] and you are not required to consider them in your answer.  It is, however, always open to you to cast the net a little wider than a literal reading of the question should you choose to do so and selling food not complying with food safety requirements is perhaps the most obvious next possibility."

I remained concerned that the Assessor was still inviting students to extend their answers beyond what was, as he now accepted, the reach of the question.  This flew in the face of the normal principle that students should only answer the question set and that they will receive no marks for anything beyond that. 

In including this as part of my student complaint, I pointed out that DMU's own Programme Handbook stated:

"First, as a general principle, answer the question set, not the one you think the tutor ought to have set.  The key legal values are precision and analysis, and thus if you answer a question not set by the tutor you must expect to lose marks if you indulge in irrelevant detail.  No credit can be given for including material that is not strictly germane to the issue under discussion – no matter how erudite your answer may be!"

Adhering to the above guidance was even more important where, as in this case, there was a word limit on the answer so that embarking on tangents would mean less scope to answer the question actually set.  Given that they were irrelevant to my Assignment question, I made no reference to the Regulations in my answer but, by the time the other students received the Assessor's email they might have already done so.

This part of my student complaint was exclusive to that complaint and was not even mentioned in my academic appeal.

2)          The Programme Handbook required that students should "state the relevant" law in relation to each issue in their assignments, but it did not indicate the degree of detail necessary.

As already noted, when the Assessor came to mark my Assignment he stated, under the heading "ways in which your answer could be improved", that: "You seem to run out of words in parts …"  He went on to say

"Quoting substantial sections from the Consumer Rights Act 2015 in particular used a large part of the word allocation which might have been put to better use.  Ordinarily, a simple reference to the relevant provisions would be sufficient unless particular words or phrases need to be put in context for the purposes of argument or explanation."

The Assessor's retrospective advice that it is permissible to make simple references to the relevant provisions would have been useful if it had been given in advance.  However, DMU's Programme Handbook states that in answering problems it is always necessary to "state the relevant law", not just to refer to it, and I had sought to apply what I had learned from a comment made by the Assessor himself on a previous assignment.  There I had said: "The CRA affords rights to a 'consumer' who is 'supplied' with goods by a 'trader'.  Those goods must be; of 'satisfactory quality' including fit for traditional purpose (s.9); …"  Against my words "fit for traditional purpose", the Assessor had commented: "You paraphrase I realise, but s.9(3)(a) refers to 'fitness for all the purposes for which goods of that kind are usually supplied' in the plural."  It follows that, although I was merely paraphrasing and although s.6(c) of the Interpretation Act 1978 provides that, in the absence of a contrary intention, "words in the singular include the plural and words in the plural include the singular", the Assessor asserted that it was necessary to use the exact language of the provision, literally to the letter.  Whatever the appropriate guidance should be, as part of my student complaint, I called for greater clarity in the Programme Handbook as to what the requirement to "state the relevant law" means in practice.

This complaint about the paucity of guidance in the Programme Handbook did not form any part of my academic appeal where I was not seeking to make an excuse for allegedly "running out of words", but explained that my answers were in fact complete without the erroneous and/or unnecessary additions suggested by the Assessor's comments.

Notably, had I also dealt with the Regulations in my answers, which the Assessor had wrongly advised give rise to offences under the FSA, there would have been even less words available to answer the question actually set.

I noted in my student complaint, as an aside, that in other notes circulated by the Assessor he had paraphrased s.10 of the Trade Marks Act 1994 as though it still included its former subsection (3)(b) which had been repealed in 2004 by reg.7(2)(b) of the Trade Marks (Proof of Use etc) Regulations 2004.  The Assessor had therefore himself not only wasted words in setting out the law, but had inaccurately stated and taught the law.

3)          The Appeals Procedure did not enable a student to challenge the marking of an assignment informally with the assessor.

I pointed out in my student complaint that the need for students to launch an academic appeal could be reduced or avoided if the Appeals Procedure made provision for an aggrieved student to challenge apparent errors in the marking of an assignment directly, in the first instance, with the assessor concerned. 

4)          The Appeals Procedure required that an appeal be lodged "within 21 days" of a certain "published date".  However, no such date was published.

As already stated, para.2.2 of the Appeals Procedure provided that appeals had to be made "within 21 days of the published date for issuing results from the assessment board concerned" whereas there was no published date for this.  I suggested that para.2.2 be amended to read "21 days from the issuing of the results of the assessment board", without any need for reference to the "published date".  Students would then know that time ran from when they received their ratified marks.

5)          The prescribed Appeal Form was deficient as it did not give all the options for appeal provided for by the Appeals Procedure.

As previously mentioned, the Appeal Form required a student who wished to appeal to select either option "A" or "B" as "the decision giving rise to the appeal".  There was no option, as provided for by para.1.1.1 of the Appeals Procedure, to appeal a decision of the assessment board "concerning an assessment outcome in a module".  I expressed my concern that this omission could cause some students to believe that they had no legitimate basis to appeal when in fact they did.

6)          Paragraph 1.3.2 of the Appeals Procedure was ambiguous as it did not say whether its first two sentences represented alternative grounds of appeal or two limbs of the same ground, both of which must be established.

It will be recalled that the Appeal Form links the two sentences together as a single ground using the word "because" which does not appear in the Appeals Procedure itself.  My student complaint called for an amendment to be made to the procedure in the interests of clarity for the benefit of both students and DMU.

7)          The Appeals Procedure provided that the SACO had the "right", rather than the obligation, to dismiss an academic appeal in certain circumstances.

I suggested that, as the SACO had a power, rather than a duty, to dismiss an appeal (i.e., it was discretionary), there ought to be some guidance as to when the SACO should exercise her discretion.

8)          My academic appeal was purportedly dismissed by an Assistant SACO when the right to do so was reserved to the SACO.

Although this was a basis for saying that the decision to dismiss my academic appeal should be reviewed, it was a complaint in its own right as DMU had not followed its procedure.

9)          The subsequent version of the Appeals Procedure conferred the power to dismiss an appeal on not just the SACO but also on the Deputy SACO, Assistant SACO and Deputy Assistant SACO. 

It appeared from this that the important decision to summarily dismiss an academic appeal could now be made by those even less qualified than before.

The Student Complaints Procedure

Stage 1 of the Complaints Procedure provided for complaints to be made to the "local manager".  It stated that:

"Students should expect a response from the local manager within 21 days.  However, some cases may take longer to resolve if they involve multiple issues or detailed investigations need to be undertaken, in which case the local manager will ensure students are kept informed about the progress of their complaint."

Under Stage 1:

"The local manager has a responsibility to acknowledge receipt of the complaint, investigate all issues raised and try to resolve all the issues raised to the satisfaction of all parties.  Usually students will receive a written response to their complaint however on occasion a face to face meeting may be deemed more appropriate; students can request a written confirmation of any decisions taken at such a meeting."

Stage 2:

"When an issue concerning service failure or an issue that has affected the quality of a student's experience has not been resolved at local level to the satisfaction of the individual or group concerned, they may make a formal complaint to the Student Appeals and Conduct Officer."

Stage3:

"Appeal to the University Complaints Committee … is the final stage of the university's internal process.  Complainants may appeal to the Committee if they believe a satisfactory outcome has not been reached at Stage 2, or they wish for that outcome to be reviewed."

I made my Stage 1 complaint to the "local manager" as required by the procedure and he responded, on 24th September 2018, by saying: "Just to let you know I have received it and will look into this as soon as possible for you."  That was the last communication I ever received from the local manager on my student complaint and no one else kept me informed of the progress of my complaint.  Not only did DMU fail to comply with its procedure, the local manager failed to honour his personal promise to investigate.

An early resolution of my complaint was important to me as the Assessor had been designated as the supervisor for, and marker of, my dissertation upon which I was then working.  As I was challenging the Assessor's competence, I did not consider that I could turn to him for any supervisory advice or support and so DMU's failure to deal with my complaint effectively left me without a supervisor and, more importantly, the prospect of the Assessor marking my dissertation.  DMU had not even told me whether the Assessor was aware of my academic appeal or student complaint.  As I had been led to believe that my student complaint was being investigated, I decided that it was better for me to concentrate on my dissertation rather than to distract myself from that task and to potentially aggravate matters by complaining about the delay.

I submitted my dissertation on 3rd January 2019.  

On 28th February 2019, I received an email entitled "A message from the Interim Vice-Chancellor" addressed to all DMU's students.  That email included the following:

"I'd like to commit us as a university to always strive to offer the best student experience, teaching and research possible.  My goal is simple, to work with everyone at DMU to positively impact your time at university and enable you to flourish in your future careers. … There are various ways that you can get in touch.  … You can … send an email to askus@dmu.ac.uk which will be shared with me and my team for a response.  I look forward to hearing your views and ideas in the future."

On 10th April 2019, I received an email from DMU's "Faculty Postgraduate Marketing and Recruitment Assistant".  She said that I had been "personally recommended by an academic as somebody to reach out to" in providing a "student success story" for DMU's promotional material.  She said that I should not hesitate to contact her if I had any questions. 

On 4th May 2019, I responded to the Marketing Assistant pointing out that, in the circumstances of my unresolved grievances, her email was quite inappropriate and insensitive.  I warned her that the only promotional input I had was negative and that, as someone concerned with DMU's reputation, she might want to see that some action was taken on my student complaint before I had to resort to a formal letter before action.

On 26th May 2019, not having heard anything further from the Marketing Assistant, I wrote to askus@dmu.ac.uk for the personal attention of the Vice Chancellor pursuant to his email in which he had committed DMU to offering "the best student experience" and calling for "views and ideas".  I pointed out that DMU was in breach of contract and that it had demonstrated a lack of concern for both education and student welfare by failing to follow its procedures and not even being prepared to consider the possibility that the standards of its academic staff might on occasion be deficient.  I suggested that for the future it would be helpful if the Appeals Procedure were amended to enable disgruntled students, in the first instance, to put their concerns about the inaccuracy of factual comments in relation to the marking of assignments directly to the assessor concerned.

On 6th June 2019, I received a response from DMU's "Associate Director of Communications".  He informed me that:

"We take customer service very seriously at DMU, and have passed [your email] to the appropriate colleagues and will provide a more considered response in due course … it's important for us to investigate and consider your questions very carefully."

On 23rd July 2019, I received a letter from the SACO.  She apologised for the lack of response from the local manager to my student complaint, but provided no explanation.  She did not say what had become of the local manager's investigation.  The Associate Director of Communications had promised an investigation by "the appropriate colleagues".  All I got, however, was the response from the SACO who was anything but "appropriate" given that it was she who had told me that the decision of the Assistant SACO was final.  Furthermore, if I was not satisfied with the outcome of Stage 1 of my complaint, which had still not been investigated, my recourse was to move to Stage 2 by complaining to the SACO.  By intervening before Stage 1 had concluded (or even effectively started), the SACO had denied me a Stage 1 investigation at local level by the "local manager", the opportunity to move to a meaningful Stage 2 and the opportunity to move to Stage 3. 

The nearest thing to a response to my Stage 1 complaint put forward by the SACO was:

"The final sentence of paragraph 2.3 [of the Appeals Procedure is] clear and unambiguous: the university's position is that it is not open to you to seek reconsideration of the university's decision set out in the letter to you of 24th May 2018 via the University's Student Complaints Procedure."

Even if the SACO had been right in saying that I could not use the Complaints Procedure to seek a reconsideration of the Assistant SACO's dismissal of my academic appeal, she gave no reason for DMU's failure to progress the other nine elements of my student complaint.  Moreover, ten months had then elapsed since the local manager had promised to investigate under the Complaints Procedure which stated that its aims were to "lead to prompt resolution", "service improvement" and "successful resolution".  No attempt had been made to resolve any aspect of my complaint to my satisfaction as required by the procedure.  It was particularly disappointing that the SACO was not interested in remedying the incontrovertible ambiguities and deficiencies in the Appeal Form and Appeals Procedure which were in her province. 

DMU's failure to deal with my student complaint belied the Vice Chancellor's commitment to "always strive to offer the best student experience … possible" and the Associate Director of Communications' assertion that "we take customer service very seriously at DMU" and it gave the lie to the opening words of the Complaints Procedure in which DMU claimed to recognise the importance of service improvement. 

On 10th August 2019, I sent DMU a letter before action.  I pointed out that I had not been afforded the investigation or "considered response" promised by the Associate Director of Communications.  I added nine further complaints to my student complaint.  Those additions were:

10)       It was inappropriate for DMU to advise me that I had "been personally recommended by an academic as somebody to reach out to" to obtain a student success story for DMU's promotional material.

At that time, I had been waiting for seven months for the outcome of my student complaint and when I pointed that out, I got no response.  Whereas the SACO belatedly apologised for that lack of response I was still given no explanation as to why the Marketing Assistant had contacted me or any acknowledgement that such contact was inappropriate.

11)       DMU had breached the Complaints Procedure, after promising to look into my student complaint, by failing to keep me informed about its progress within 21 days or at all.

12)       DMU had breached the Complaints Procedure by failing to take any action on my student complaint for eight months with no meaningful action for at least ten months, after which time it appeared to have been unilaterally and unfairly terminated.

13)       Notwithstanding DMU's promise to investigate what had become of my student complaint (and, by implication, to pursue it) and to provide a "[very carefully] considered response", the response from the SACO provided no explanation for the then ten-month delay and failed to say what, if anything, had been done during the course of that time.

14)       The SACO's response stated DMU's position to be that it was not open for me to use the Complaints Procedure to seek reconsideration of its decision to summarily dismiss my academic appeal.  The SACO's response did not deal with my non-appeal related complaints.

15)       The response from the SACO was from the very person who had originally informed me that the decision to dismiss my appeal was final.  It was contrary to natural justice and DMU's stated policy of fairness for the SACO to determine a challenge to her own decision.

16)       In making her response, the SACO had not addressed my arguments for saying that the Assistant SACO's decision was not final.

17)       Seven of the original complaints related to matters within the ambit of the SACO's Student Support Office and so it was contrary to natural justice for her to have acted in her own cause by determining my student complaint.

18)       In his message of 28th February 2019, the Interim Vice Chancellor had said that he looked forward to receiving student's "views and ideas".  I received no response to the idea I put forward to him to try and avoid the need for recourse to academic appeals.

DMU was only prepared to consider two very narrow complaints which it had reformulated from my own.  They were:

"a)     the fact that you were not given any response to your letter of 21st September 2018 (apart from an acknowledgement of receipt of it on 24th September 2018) until 6th June 2019 and then 23rd July 2019.

b)      the fact that an email was sent to you on 10th April 2019 which you consider to be inappropriate in the circumstances."

DMU gave no explanation as to why it considered that the majority of my complaints fell outside the ambit of the Complaints Procedure or why the two matters which it was prepared to consider were eligible or why they had not already been investigated.

The County Court

I commenced a county court action against DMU, in March 2020, alleging breach of contract.  DMU sought to have my case struck out, inter alia, as an abuse of process but it withdrew that application in October 2020.  My claim came on for trial in March 2021.  In addition to denying that it had breached either the Appeals Procedure or the Complaints Procedure, DMU pursued just one of its several arguments from its aborted strike-out application.  DMU maintained, in reliance on Clark v University of Lincolnshire and Humberside [2000] 1 WLR 1988 CA, that my claim was not justiciable because, as Lord Woolf MR said at paragraph 29 thereof: "The court … will not involve itself with issues that involve making academic judgments."  I was not, however, asking the court to make an academic judgment, but merely to consider whether, in my academic appeal, I was simply questioning the academic judgment of the Assessor.  Asking the court to distinguish between academic judgment and factual accuracy was not to be confused or conflated with asking the court to make an academic judgment.  Notably, in Clark, the claim against the University was allowed to proceed.  As Sedley LJ said at paragraph 13 thereof: "While capable, like most contractual disputes, of domestic resolution, they are allegations of breaches of contractual rules on which … the courts are well able to adjudicate."  In his judgment, in my case, the District Judge made no reference to Clark or to the justiciability of my claim.  However, given that he proceeded to give judgment on the merits of my claim, it follows that he must have considered that he was able to do so and hence that he accepted my submissions that my claim was justiciable.

It is notable that one of the bases on which DMU had originally sought to argue that my claim should be struck out was because, so it asserted, my claim should have been commenced by way of judicial review, the three months' time limit for which had expired.  DMU cited Clark as its authority for that proposition and yet the headnote to the report of that case clearly states that "a claim against a public body for breach of contract should not be struck out merely because an application for judicial review might have been more appropriate".  DMU's citing of an authority which does not actually support its proposition was reminiscent of some of the comments made by the Assessor which had prompted my original grievance.

Whereas the District Judge decided some points in my favour, he was overall against me and he dismissed my claim.

I have absolutely no doubt that the District Judge was wrong.  His judgment in my view was deeply flawed and open to appeal.

I decided not to appeal as it was then getting on for four years since I had received the Assessor's troublesome comments.  This case was now having a deleterious effect on my health and taking up far too much of my life.  The financial costs were escalating and, whilst I remained convinced of the merits of my case, there could be no guarantee of a swift resolution by pursuing it further through the court system.  Although I had sought damages capped at £3,000, my claim was never motivated by a desire for monetary or personal gain.  In spite of DMU's failings I had obtained my degree with distinction and it was clear that, whatever I did, DMU was determined to maintain its dishonourable stance.  All that an appeal could have achieved was extended anxiety for me and more costs for both myself and public funds.

The flawed judgment

An appeal would have been subject to obtaining leave and would have been to the Circuit Judge and so I would still have been in the jurisdiction of the county court.  It would, of course, not have been sufficient for me to assert that the District Judge was wrong or that I did not like or agree with his decision.  I believe, however, that I could have proved that the decision of the District Judge was demonstrably wrong and perverse. 

A key and repeated failing of the District Judge was in not applying or having regard to s.69 CRA which provides that: "If a term in a consumer contract … could have different meanings, the meaning that is most favourable to the consumer is to prevail". 

My potential grounds of appeal were:

Ground 1

The District Judge applied the wrong test in finding that my "criticisms [of the Assessor's comments] as a whole … [were] seeking to challenge what is academic judgment". 

It will be recalled that para.1.4 of the Appeals Procedure only prohibits appeals which "simply" question academic judgment.  Therefore, if just one of my challenges to the Assessor's comments was not questioning academic judgment, my appeal could not have been "simply" doing so.  Accordingly, it was necessary to determine whether any of my challenges were questioning fact-based comments rather than academic judgment.  One such challenge, predicated on an error of fact, was enough even if the vast majority of the comments were indeed simply academic judgment.

The implication of the District Judge's use of the qualification "as a whole" is that he did find that at least some of my challenges, however few, went to fact and not to academic judgment.  That being so, he was bound to find that I was not "simply" questioning academic judgment.

The District Judge wrongly stated in his judgment that I disagreed with all 22 of the Assessor's comments.  It means that, even if the District Judge had been justified in looking at the comments "as a whole", in doing so he took account of comments where I had not alleged that the Assessor had made factual errors or even that the Assessor was in error at all.  It means that he even weighed against me the two comments of the Assessor which praised my work and which I had stated to be "positive".

Whereas the District Judge said that marking "inevitably involves looking at a piece of work in the round" what I was challenging, in accordance with the Appeals Procedure, was the accuracy of the fact-based alleged errors made in specific comments.  To whatever extent some of the Assessors' comments were academic judgment, it did not detract from the validity of those of my challenges which alleged factual errors.

It would be absurd if a student was able to appeal when an assessor makes just one comment, which is a fact-based error, but cannot do so if that comment is swamped by other comments which are academic judgment. 

By virtue of s.69 CRA the District Judge was required to have applied the meaning of simply questioning academic judgment most favourable to myself.

Ground 2

The District Judge erred in finding that "the permitted grounds of appeal relate to the academic judgment of the assessors – plural" and that "it is the collective view taken by both the first and the second assessor that is at issue."

Before dismissing my appeal, the Assistant SACO had established that my Assignment had been "moderated" by an internal moderator who had commented: "I agree 68%.  The work was just short of a distinction mark.  The student included a number of rather long quotes, which wasted quite a bit of word space.  A little more by way of application and critical reasoning would have crossed the bar".  As this was a moderation rather than a second marking it seems likely that the moderator based his or her appraisal on the comments of the Assessor rather than on an independent marking.  In any event, the moderator said nothing about whether he or she agreed with the side comments of the Assessor or whether they were academic judgment.

Crucially, my academic appeal related to the alleged errors made by the Assessor and not those of any other person.  My appeal had nothing to do with comments made by an anonymous moderator which had not even been disclosed to me prior to my academic appeal and hence which I was not in a position to challenge.  DMU's Assessment and Feedback Policy required that assessment should be "transparent such that all parts of the assessment process are explicit and readily accessible".

The District Judge was entirely wrong to say that "it is the collective view taken by both the first and the second assessor that is at issue."  The Appeals Procedure does not provide for there to be a "second assessor".  The grounds of appeal refer to "alleged errors in the process of marking and/or consequent decision making"; there was no requirement for a student to allege errors in every aspect of the process of marking and/or decision making and by everyone who may happen to have been involved in the process.

Contrary to the assertion of the District Judge, the permitted grounds for appeal do not refer to the "assessor" at all, in either the singular or the plural.  The only reference to "assessors" in the Appeals Procedure is in para.1.4 which begins: "Students should note that simply questioning the academic judgment of their assessors does not constitute grounds for an academic appeal …"  It is crystal clear that this reference to "assessors" relates, not to the grounds of appeal which are permitted, but to grounds which are not permitted.  It cannot be deduced from this that the grounds which are permitted require a student to demonstrate that each and every person who might have assessed his script made errors which were not academic judgment.

Moreover, by virtue of s 69 CRA, the District Judge was obliged to apply the meaning of the contractual terms most favourable to myself.  If, as he decided, the word "assessors" can only be construed in the plural, it was supportive of my case.  I cannot be said to have been "simply questioning the academic judgment of [my] assessors", in the plural, when I was alleging errors made only by the Assessor - singular.  Moreover, the meaning of "assessor(s)" most favourable to myself as the consumer was one which excluded a "moderator" from that term.  Notably, DMU's Assessment and Feedback Policy clearly distinguished between "assessment judgements" and the moderation thereof.

Ground 3

The District Judge erred in failing to adjudicate upon my second ground of academic appeal, namely "that the outcome (68%) differs markedly from the 80% awarded for a module which was a prerequisite for the module in question".

It will be recalled that I appealed further to the grounds set out in para.1.3.2 of the Appeals Procedure the first two sentences of which state: "There are alleged errors in the process of marking and/or consequent decision-making.  The outcome of the assessment differs so markedly from the candidate's reasonable expectations as to raise reasonable doubt as to whether the process has been properly conducted."  As it was not clear whether the two sentences were two limbs of a single ground or alternative grounds, I relied on both.

In paraphrasing the grounds in her witness statement, the Assistant SACO linked the first two sentences of para.1.3.2 with the word "or".  In cross examination, however, she initially said that they should be read as though linked by "and" but then, after further thought, settled on the word "because".  That last interpretation, however odd, is supported by the wording of the unified ground as set out in DMU's pre-printed Appeal Form.  In referencing this part of the Appeal Form in his judgment, the District Judge erroneously set out the first two sentences of para.1.3.2 as they appear ambiguously in the Appeals Procedure and not in the paraphrased form in which they actually appear in the Appeal Form which states:

"I allege there have been errors in the marking or in the consequent decisions of the assessment board, because [emphasis added] the outcome of the assessment differs markedly from what I had expected. (Examples: performance in the module you are disputing compared to performance in a similar preceding module or performance in other modules on the same course)."

The effect of the subordinating conjunction "because" is to make the allegation of "errors" in the first sentence of para.1.3.2 only provable by establishing what follows in the second sentence, namely that: "The outcome of the assessment differs so markedly from the candidate's reasonable expectations as to raise reasonable doubt as to whether the process has been properly conducted."  This demonstrates that the grounds are based on the student's expectations and hence depend on the subjective view of the student (so long as it is a reasonable one).

It was clear from the Assistant SACO's letter dismissing my appeal that she did so on the sole basis that there were no grounds to take it further because, by reference to para.1.4, "simply questioning the academic judgement of their assessors does not constitute grounds for an academic appeal".  It was clear from the Assistant SACO's evidence that her dismissal decision specifically related to my argument with the Assessor's comments. 

On the "because" interpretation, however, the alleged errors are to be proved because of the marked difference in outcomes not because of the Assessor's comments.  It follows that the Assistant SACO did not dismiss my appeal on the basis of my second ground of appeal; my assertion that there was a marked difference between 80% and 68%.  My appeal should therefore have gone forward to be considered on its merits on the basis of at least that second ground.

Not only did DMU not dismiss or even purport to dismiss my second ground of academic appeal but, on DMU's own "because" interpretation of the grounds, it was not open for it to do so.  If alleging a marked difference from an expected outcome necessarily involves the questioning of academic judgment it would mean that the grounds could never be used.  The contract could not meaningfully enable a student to prove alleged errors, based on performance in a prerequisite module, whilst simultaneously disqualifying such ground on the basis that it questions academic judgment.  The contract would be saying "you may appeal on these grounds but, if you do, your appeal will be dismissed because it does not constitute grounds".

The only contractual basis on which the SACO could have dismissed my second ground of appeal would have been under para.2.3; that it appeared to the SACO (not the Assistant SACO) that my grounds of appeal were "so lacking in substance that further consideration would not be justified".

The Assistant SACO accepted in cross-examination that the basic "pass" mark for a master's degree was 50% and that to obtain a "merit" required at least 60% whereas to obtain a "distinction" required a minimum mark of 70%.   It follows that the different grades are each separated by 10 percentage points.  Contextually, a difference of 10% cannot therefore be regarded as other than a marked difference.  My prerequisite mark of 80% differed from the 68% mark I was challenging by 12 percentage points.  The judgment of the District Judge should have at least considered, bearing in mind that he was obliged to apply the meaning of the contractual terms most favourable to myself, whether it was open to the SACO (still less the Assistant SACO) to conclude that my grounds of appeal, based on my prerequisite mark and my expectations were "so lacking in substance" as to justify dismissal without the appeal proceeding to the next stages.  The ill-considered summary dismissal meant that my appeal was never heard in my presence and dealt with, to borrow from the judgment of Sedley LJ in Clark, by those "equipped to consider [it] in breadth and in depth".

Another way of looking at it is that, even if all the Assessor's comments were no more than academic judgment, my appeal (taken as a whole) was not "simply" questioning academic judgment because it also relied on the prescribed ground which was based on my expectations and my prerequisite mark.

Ground 4

The District Judge erred in finding that my student complaint was correctly dismissed because, in his words, I was "trying to revive [my] academic appeal through the back door".

Firstly, in so far as my student complaint included an attempt to have the decision to dismiss my academic appeal reviewed, that was manifestly not a "back door" attempt.  There was nothing in either the Appeals Procedure or the Complaints Procedure to prohibit a challenge to the decision of the Assistant SACO.

The Appeals Procedure made express provision for what might be described as a prohibition on a "back door" challenge in the final paragraph of para.2.3 where it states that: "A student whose appeal has been dismissed by the [SACO] at this stage may not seek reconsideration of this decision through the University's Student Complaints Procedure".  The District Judge, however, expressly found that I was right in my contention that "the Academic Appeals Procedure required the decision to [dismiss an appeal] be made by the SACO and not the Assistant SACO".  It follows that, as the decision to dismiss my appeal was not made by the SACO, the final paragraph of para.2.3 was inapplicable (as was the middle paragraph).  I was not therefore debarred from seeking a reconsideration of the Assistant SACO's decision through the Complaints Procedure.  The only restriction on the extremely wide scope of the Complaints Procedure itself is that it does not permit "appeals against Assessment Board decisions".  To the limited extent that my student complaint could be construed as an appeal, it was against the decision of the Assistant SACO and not an appeal against the decision of the Assessment Board.  It was therefore perverse for the District Judge to characterise it as a "back door appeal" especially having regard to the s 69 CRA requirement for him to apply the meaning of the contract most favourable to myself.

Secondly, none of my itemised 18 complaints sought a reconsideration of the decision to dismiss the academic appeal; they were not an appeal, yet alone a "back door" appeal.

In his Judgment, the District Judge said he considered that it was "unnecessary to go through [the complaint] in full detail".  However, going through my student complaint, even cursorily, shows that none of my 18 complaints was an appeal against an Assessment Board decision or a complaint which sought a reconsideration of the Assistant SACO's decision to dismiss, still less (as she had not made the decision) a reconsideration of the SACO's decision to dismiss

The SACO, who gave DMU's evidence on this matter in her witness statement, did not in any event, argue that all the 18 complaints even "related" to the academic appeal.  Her evidence was that complaints 1 and 2 "relate to the handbook" and, in her oral evidence, she was not able to identify any provision in the Complaints Procedure which took complaints relating to the handbook outside of the scope of the Complaints Procedure.  She did not assert that complaint 18 related to the academic appeal or to the handbook or that it was otherwise outside the ambit of the procedure.

Ground 5

The District Judge, erred in finding that I suffered no loss as a result "of the breaches he can establish" because, in his view, my "complaint was not one that would have been upheld even if it had been responded to in a proper and timely fashion".

It was not a matter for the District Judge to decide what the outcome of my complaint would or should have been had it been dealt with in accordance with the Complaints Procedure.  Furthermore, as set out in relation to Ground 4 above, his view was not supported by the evidence.

The District Judge regarded my complaint as having been "dismissed" by the SACO in her letter of 23rd July 2019.  But there was no contractual provision enabling the SACO to dismiss a student's Stage 1 Complaint; it was the duty of the local manager "to try to resolve all the issues raised to the satisfaction of all parties". 

The breaches of the Complaints Procedure related to every aspect thereof.  Such total non-compliance could not be properly characterised as "minor technical breaches" as the District Judge described them in his judgment.  Such a characterisation was at odds with his finding that "the complaint was handled badly" by DMU.

The District Judge found, in my favour, that: "He is right that [DMU] did not answer his complaint in a timely fashion and in accordance with the complaint procedure".  As a result of those breaches, I lost:

a)   my right to have my complaint dealt with timeously,

b)  my right to have an investigation by the local manager,

c)   my right to have an attempt made by the local manager to resolve all the issues to my satisfaction,

d)  my right to have the local manager's response in writing,

e)   my right to invoke Stage 2 (which was made impossible by the SACO's inappropriate intervention at Stage 1),

f)   my right to an appeal at Stage 3, and

g)  considerable time (which as a solicitor I could have spent lucratively) in trying to get DMU to honour its contractual obligations.

The District Judge also erred in finding that the breaches were "small in the grand scheme of things" because I ultimately achieved an overall distinction.  The contract, however, was not for the sale of goods; the supply of a degree with distinction.  The contract was for services.  Those services included the provision of the course, the Appeals Procedure and the Complaints Procedure.

Ground 6

The District Judge erred in effectively finding that "the right to a price reduction" under the CRA can be fulfilled by not reducing the price at all.

Section 54(3) CRA provides that: "If the service does not conform to the contract, the consumer's rights (and the provisions about them and when they are available) are … (b) the right to a price reduction".

The statutory remedy of the right to a price reduction for a failure to conform to the contract is additional to the common law remedies of "claiming damages" and "seeking specific performance" for breach of contract (s.54(7)(a) and (c)).  

Whereas it was a matter for the District Judge to determine the "appropriate amount" of the price reduction (s.56(1)), each non-conformity with the contract which he found should have resulted in a price reduction which was meaningful.  Self-evidently a nil price reduction is not a "price reduction" at all.

The eventual favourable outcome of the course was irrelevant to whether or not there should have been a price reduction for non-compliance with the contractual terms in DMU's procedures.  Indeed, at the time I invoked the procedures it was not known that I would ultimately achieve an overall distinction. 

The Complaints Procedure is a valuable part of DMU's contract with its students.  It recognises "the importance of effective complaints management" it "welcomes feedback from all our students" it "recognises the right … to raise issues of concern about the services provided by the university which may affect the quality of their student experience."  In short, it was an integral and important part of the contract for services and the right to complain thereunder must represent a tangible and significant part of the payment I made under the contract. 

As DMU failed to conform to any aspect of its Complaints Procedure, I did not receive, even on the findings of the District Judge, all the services for which I had paid DMU the overall sum of £8,000.  I should, therefore have been entitled to an appropriate price reduction which reflected the fact that, notwithstanding its promises to investigate, DMU initially failed and subsequently refused to provide any of the services set out in its Complaints Procedure.

It should be observed that the right to a price reduction, unlike a claim for damages for breach of contract, does not require proof of loss.  The fact that loss, in the sense of it having a financial value, does not have to be proved is supported by the Explanatory Notes to the CRA which include the following paragraphs:

   "266.  A 'reduction in price of an appropriate amount' will normally mean that the price is reduced by the difference in value between the service the consumer paid for and the value of the service as provided.  In practice, this will mean that the reduction in price from the full amount takes into account the benefit which the consumer has derived from the service.  Depending on the circumstances, the reduction in price could mean a full refund.  This could be, for example, where the consumer has derived no benefit from the service and the consumer would have to employ another trader to repeat the service 'from scratch' to complete the work.

  267.  In relation to services, however, there may be some cases [where the] consumer is able to ask for a reduction in price even where it may be argued that the value of the service as provided has not been reduced by the breach of the consumer's rights.  This could occur, for example, where the trader has not complied with information they gave about themselves.  For example, if the trader tells the consumer that they will pay their workers the living wage and this is important to the consumer and a reason why they decided to go with this particular trader, arguably this does not affect the value of the service but the consumer would still have the right to request a reduction of an 'appropriate amount' to account for the breach."

It can be seen from the above that the value of any part of the overall service is subjective to the consumer.  Not only did I attach value to the service which the Complaints Procedure purported to provide, but DMU also claimed to do so.  It described it as "important" in the Procedure itself and the local manager promised to look into my complaints as soon as possible.  The Vice Chancellor committed DMU "to always strive to offer the best student experience … possible" and DMU's Associate Director Communications said: "We take customer service very seriously at DMU … it's important for us to investigate and consider your questions very carefully."

 The fact that the Complaints Procedure must have a value becomes clear when one considers whether a properly informed student was likely to pay the same amount for a course protected by the right to complain and a course which denied the student such a right.

By making no price reduction at all and dismissing my case in its entirety, the District Judge effectively punished me, by way of substantial costs, for what he found to be the "bad" behaviour of DMU.

Costs

Although the District Judge dismissed my claim, he nonetheless found a number of points, in my favour.  Firstly, he had implicitly rejected what DMU had called its first, paramount and overarching defence; that my claim was not justiciable because, so it asserted, I was asking the court to make an academic judgment. 

Secondly, the District Judge found that I was right in saying that the Assistant SACO was not empowered to dismiss my academic appeal.  I had repeatedly raised this point with DMU, but it chose to ignore me.  It emerged from DMU's own evidence that, prior to my academic appeal, DMU had taken steps to amend the Appeals Procedure so as to empower, along with the SACO, the Assistant SACO and their respective Deputies.  That proposal, however, was not approved by DMU's Academic Board until June 2018 to come into force in the next academic year.  It means that, in May 2018 at the time the Assistant SACO purported to dismiss my appeal, DMU knew full well not only that an amendment to the procedure was required to enable that to happen, but also that no such amended had been approved yet alone implemented.

Thirdly, the District Judge found that my student complaint was not answered in a timely fashion and in accordance with the Complaints Procedure and that it was "handled badly" by DMU.

It might be thought that a university that has been found to have handled a student's complaint "badly" would show some contrition and immediately seek to make amends by undertaking to deal with the complaint properly.  But that would be to confuse DMU with a university that cared about doing the right thing by its students.

DMU's immediate response to the judgment of the District Judge was to inform me that the expense involved in defending my claim was a cost to the "public purse" and that it intended to recover its legal costs in respect of my entire claim in the sum of £48,981.80.  It was not until it was pointed out to DMU that its costs were grossly disproportionate to my claim for £3,000, and that it had lost a number of its arguments and had not attempted to settle the matter prior to the proceedings being commenced, that it eventually agreed to accept £9,000 in settlement of its costs.  That means that not only has DMU's bad behaviour cost me £9,000, but it has also cost "the public purse" £40,000.  Had I not conducted the case myself, I might well have lost at least an additional £50,000 on my own legal costs.  As it is, I was so distressed by the proceedings, and what I regard as the unjust outcome, that I decided to instruct solicitors to relieve me of some of the pressure in dealing with the aftermath.  That did not turn out to be a wise move as, having relinquished the immediate control of my case, it did not proceed as rapidly as I would have liked.  Although I still undertook the bulk of the work it still cost me a further £4,740 in legal fees.  I also "lost" the £968 I had paid in court fees.  Proving DMU's bad behaviour (if not breach of contract) therefore cost me in excess of £14,700.  Far worse, however, has been the considerable loss of my time (over a period of three years) and the countless hours of sleep lost to anxiety and trying to fathom how a public body university can care so little for the standards of its educational provision and for student welfare that it will not even consider the content of my student experience, which it professed to welcome, and when it specifically asked me for my "student success story".

Lessons learnt

I have learnt that challenging the educational ability of a DMU assessor or the integrity of a DMU procedure results in the closing of ranks such that the entire institution, including the Vice Chancellor turns a blind eye to its potential failings.  Prior to commencing my court action, I had copied my letter before action directly to the Interim Vice Chancellor, but he chose not to respond.  I gave the other tutor on my course the opportunity to intervene, but she chose not to respond.  I invited the Students Union to make representations before I proceeded, but it chose not to respond.

Is there any hope that DMU has learnt anything or that it will reflect on how "bad" it has been and make improvements for the benefit of future students?  The signs are not promising.

Whereas there is a new Vice Chancellor at DMU this year (2021), she did not intervene in my case.  That is equally depressing whether it was because she believes it is acceptable for DMU to handle complaints badly or because she was not apprised of my case.  Meanwhile, the Interim Vice Chancellor has reverted to being the Deputy Vice Chancellor and so the regime which held sway at the time of my student complaint is likely to continue.

DMU has amended its Complaints Procedure, but only to reduce the rights of its students.  The exemption from its scope, which was hitherto restricted to "appeals against Assessment Board decisions", now applies more widely to "academic appeals or other matters that relate to Assessment Board decisions".  Notably, the SACO had argued in her evidence that my student complaint fell outside the scope of the Complaints Procedure because, in her view, it "related" to my appeal, thus trying to retroactively apply the new version of the Complaints Procedure.

DMU amended its Appeals Procedure, following my student complaint, not to resolve ambiguities or to provide clarification or to ensure that its students are treated more fairly, but to make it easier for appeals to be dismissed administratively without due consideration.  Under para.2.3 of the Appeals Procedure, as it stood at the time of my appeal, a decision of the SACO was only final if the SACO had first sought an initial response to the appeal from the student's Faculty.  That was a reasonable provision as it meant that a decision that a student was simply questioning an academic judgment would only be final if it was informed by the view of academics familiar with the subject matter.  DMU, however, has removed this safety net for students.  As from the 2019-2020 version of the Appeals Procedure it ceased to be only in "such cases" where an initial response has been obtained from the student's Faculty that a decision to dismiss an appeal made by the SACO (or now the SACO or her Deputy) is final. 

Even in its closing submissions at the trial of my claim, DMU sought to further restrict the scope of the Appeals Procedure.  It will be recalled that para.1.1.1 of the procedure gives a student the right to appeal a decision "concerning an assessment outcome in a module".  That right, as we have seen, is omitted from the Appeal Form and DMU is not prepared to even consider my complaint that this has the potential to deny students their right to appeal.  In its closing submissions, DMU made the bizarre assertion that my appeal "was always doomed to failure, since he was effectively appealing against the decision to award him a distinction in respect of a module."  Quite apart from the fact that that was not the basis on which my appeal was dismissed, para.1.1.1 clearly gave students the right to appeal against the outcome of an assessment within a module.  My appeal was against the outcome of an individual assessment and not the module of which it was a part.

A key part of my case was that the reference in the Appeals Procedure to questioning academic judgment was prefaced by the word "simply".  DMU's tactic throughout was to completely ignore both that fact and my arguments thereon.  That tactic was successful as both the OIA and the District Judge joined DMU in failing to address or even acknowledge that point.  There is therefore every reason to suppose that DMU will continue to interpret its procedures based on its apparent desire to suppress criticism rather than on what the procedures actually say. 

It was telling that in DMU's evidence it equated "questioning the academic judgment of the assessor" with "arguing with the assessor's comments" thus not only discounting the import of the word "simply" but assuming that any challenge to what an academic says is automatically the questioning of academic judgment.  On that basis DMU's assessors are inviolable and the right to appeal is meaningless. 

In my letter before action, I forewarned DMU that

"If DMU will not even consider its potential failings, then I believe my duty, now as an alumnus, is to publish as much of the detail of this matter as is necessary to warn prospective DMU students of DMU's attitude towards compliance with its procedures and policies and of its preference to suppress appeals and complaints rather than to consider them.  I will do that at the conclusion of my court action, if not before." 

Unlike DMU, I keep my promises.

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