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Jean-Yves Gilg

Editor, Solicitors Journal

Education law update

Education law update


Salima Mawji and Abla O'Callaghan ask when is pursuing a contractual claim an abuse of process in higher education litigation

The issues that arise from bringing a case that can arguably fall under more than one head of claim have recently been explored in the case of John Scarborough v Canterbury Christ Church University (Claim No. 2IR64251). The decision has considerable practical implications given the differences in time limits between the different heads of claim such as in contract and public law. The case concerned a university student, the claimant, who had brought a contractual claim that the university, the respondent, stated was an abuse of process as it should have been pursued as a public law claim and/or as a claim for disability discrimination. The claim was brought against the university as the claimant considered that the university had breached their contractual obligations towards him by failing to support his educational needs.


The claim consisted of 13 sub-paragraphs. Sub-paragraphs (a) – (f) related to matters that concerned the respondent’s treatment of the claimant in relation to his medical condition
and dyslexia. As for sub-paragraphs (g) – (l),
they were in relation to the conduct of the
various investigations and panels which took place and (m) had to do with the reporting of those allegations to the General Social Care Council (GSCC) without due process or justification. The claimant appealed the
District Judge’s decision to strike out sub-paragraphs (g) to (l) of the particulars of claim
and the respondent cross-appealed against the District Judge’s refusal to strike out or to give summary judgment for the defendant in
relation to sub – paragraphs (a) – (f). The respondent did not seek to overturn the District Judge’s ruling in relation to sub- paragraph (m) and the case will still proceed in relation to that aspect of the claim.

The decision reached was that sub paragraphs (a) – (f) should be struck out as they should have been pursued as a disability discrimination claim and the striking out of sub- paragraphs (g) – (l) was upheld as an abuse of process, as the dominant claim was held to be of a public
law nature.

Contractual in nature

The focus of the legal analysis in relation to this decision related to the factors which distinguished a case which is contractual in nature from a public law case. The authoritative case relied upon was that of Clark v The University of Lincolnshire and Humberside [2000] 1 WLR 1988, which concerned litigation in the field of higher education where it was held that it would not be an abuse to pursue a contractual claim in a situation where the public law aspect of the case is not the dominant one, and where the relationship in contract also contains a public law dimension. The emphasis on the dominance of a particular head of claim can also be seen in the case of Saha v Imperial College of Science and Technology and Medicine [2011] EWHC 3286, which was also considered in this case, and where it was decided that as the claim was for damages that relate to personal injury, it cannot be considered to be a public law claim. Saha was also distinguishable from Scarborough as the court in Saha took into consideration the fact that the Office of the Independent Adjudicator for Higher Education (OIA) informed the claimant that they did not deal with personal injury claims, and that it is advisable for a different avenue of redress to be pursued.

Practical implications

In terms of the practical implications of determining the head of claim, a vital consideration is that of the difference in time limit between the heads of claim, particularly given the huge difference in time in civil and public law suits. This distinction was highlighted in Clark, particularly in relation to preventing the unfair exploitation of the longer limitation period in civil litigation. Therefore the decision in relation to which head of claim a case should fall under needs to be undertaken at a very early stage, including during pre-action correspondence, in order to avoid the claim being struck out as an abuse of process. This is particularly pertinent, for if there is an indication that the head of claim pursued by the claimant is not one which necessarily relates to the remedy initially sought, it is likely that it will be argued by the respondent, as has been done in this case, that the case was conceived to be a public law claim in the first phase and that the contractual law claim only came into being at a later stage pursuant to the expiry of the time limit for the public law claim.

Thus, the following factors which were considered by the judge in this case need to be borne in mind at an early stage and will be discussed in more detail below:

  • The manner through which the claim is framed in pre-action correspondence and whether that gives the impression that a particular head of claim and/or remedy is being pursued.
  • Clarity in terms of the remedy that the claimant seeks and an evaluation as to whether damages are a primary or secondary remedy.
  • Consideration of whether the issues would involve matters that would affect the wider public and/or whether they would result in the court ruling on public law issues.
  • The pursuit of other avenues of complaint before commencing litigation.
  • Whether any aspect of the claim falls under a head that is litigated by a specialist tribunal, for instance a disability discrimination aspect of a claim which concerns private law statutory action.

First, the language used in pre-action correspondence was relied on heavily by the respondent in this case in order to demonstrate that the claimant’s case was not initially intended to be pursued as a contractual claim.

Second, in terms of the remedy being sought, it was concluded that this claim was not contractual as the remedy sought was primarily that of the claimant, having his name cleared rather than that of damages, which were considered to be a secondary remedy (as described in Moroney).

Third, considering the public law implications of the claim, the judge held that as the court will be required to rule on issues which it wishes to be adjudicated, this will in turn comprise the judicial scrutiny of a large university’s disciplinary and academic/vocational suitability procedures which will inevitably involve the examination of public law issues. Further, the fact that the claimant did not take the matter to the OIA was held to be relevant in determining whether the claim was an abuse of process; this is particularly in light of the Judge’s conclusion that damages were a secondary issue in this case.

In relation to whether a claim should be brought for disability discrimination and therefore litigated in a specialist tribunal, similar considerations in relation to the language used by the claimant in correspondence were taken into account such as reference to support for the claimant’s disability and the implementation of reasonable adjustments in this regard. The authoritative case law in this regard included the case of Johnson v Unisys [2001] UKHL 13 which concerned the claimant making a common law claim due to the manner within which he was dismissed from his employment. This case was relied upon to illustrate that a “newly developed common law right. . . covering the same ground as the statutory right … would fly in the face of the limits Parliament has already prescribed on matters such as the classes of employees who have the benefit of the
statutory right.”

Applying this line of thought to the relationship between disability discrimination and contract law, it was decided that sub-paragraphs (a) – (f) were an abuse of process pursuant to the principles set out in Johnson or alternatively the principles set out in Clark.

Furthermore, it was held that delay should not be treated as a separate reason for striking out a claim as an abuse of process and in this case it was held that it should be considered in terms of the time limits that relate to bringing a contractual claim. Delay was considered cumulatively alongside the other factors mentioned above in order to determine an abuse of process.

In conclusion, the case of Scarborough is clearly illustrative of the various considerations that
need to be taken into account and made clear at the outset in order to shield against the significant implications of bringing a case under a head of claim that might not necessarily be the
dominant one. SJ

Salima Mawji is a director and Abla O’Callaghan an advocate at Match Solicitors