This article was co-authored by Abla O'Callaghan.
Mr John Scarborough v Canterbury Christ Church University – Case No: 2IR64251
The case of Mr John Scarborough v Canterbury Christ Church University (Scarborough) which was recently decided carries potentially significant implications in terms of bringing a case that may fall under separate heads of action.This article discusses this decision and its practical effect on future litigation.
Scarborough concerns a University student who terminated his studies due to the behaviour of members of the University staff whom he claimed breached their contractual obligations to him in Year 2 by failing to support his educational needs. Therefore the student brought a contractual claim against the University for damages. The breaches are set out in eight sub-paragraphs, (a) – (l).
Grounds (a) – (f) relate to the Respondent’s treatment of the Claimant in relation to matters connected to his medical condition and dyslexia. Sub-paragraphs (g) – (l) are about the conduct of the investigations and panels which occurred and (m) relates to the reporting of those allegations to General Social Care Council (GSCC) without due process or justification.
The appeal by the Claimant was against the decision of the District Judge to strike out sub-paragraphs (g) – (l) of the Particulars of Claim and the cross appeal by the Respondent was against his refusal to strike out the remainder of sub paragraphs (a) – (f). The University’s position was that the student’s claim was an abuse of process as it should have been brought by way of judicial review (sub-paragraphs (g) – (l)) and/or through the disability discrimination legislation (sub-paragraphs (a) – (f)). The Judge upheld the striking out of sub – paragraphs (g) – (l) as an abuse of process as the dominant claim was in public law and decided to strike out paragraphs (a) – (f) as they related to disability discrimination. The Respondents did not seek to overturn sub-paragraph (m) and it was accepted that the case would proceed to trial at least on this basis.
The case of Clark v The University of Lincolnshire and Humberside  1 WLR 1988 was authoritative in that it decided that it is not necessarily an abuse to elect to sue in contract where the public law element is not dominant and where the contractual relationship happens to contain a public law dimension.
Saha v Imperial College of Science and Technology and Medicine  EWHC 3286 which involved the Claimant asserting a private law right against a public body was distinguished from this case in that the claim was for personal injury damages and therefore not primarily a public law claim.
The Scarborough judgment illustrated that heavy reliance is placed on the initial and continuing language used in pre-action correspondence. Further, the determining factor was that the Judge concluded that the objective of the Claimant “was to take steps to have his name cleared on the grounds that the process by which doubts had been raised about his fitness to practise as a social worker or to take part in a degree course was procedurally flawed and unfair.” In coming to this decision, a monetary remedy was considered to be secondary to that of having his name cleared and this was considered to be most appropriately dealt with under judicial review.
It was held that as the claim would have necessarily involved judicial scrutiny of the Respondent’s disciplinary and academic and/or vocational suitability procedures and this would consist of issues that would affect the wider public and would lead to the court ruling on public law issues.
It was also highlighted that the matter of delay is not to be treated as a separate or alternative reason for striking out claims and that it is necessary in this context to consider it in relation to bringing a contractual claim and not a judicial review one. Also, failure by the Appellant to utilise the alternative remedy of taking the matter to the Office of the Independent Adjudicator was considered relevant in deciding whether an abuse of process had occurred.
Moreover, in terms of evaluating whether certain matters were indicative of a disability discrimination claim, the references to wording such as “reasonable adjustments” to support the Claimant, the duty to carry out assessments to support his need, and references to unfair treatment were held to be indicative of the nature of this aspect of the claim being more appropriately brought under the Disability Discrimination Act and the fact that duties will be tied into arguments based on duties under the DDA added to that decision. The case of Johnson v Unisys Ltd  UKHL 13 was followed in that matters that were meant to be decided by specialist tribunals should not be decided by the ordinary courts of law.
This decision will affect cases which lie in between the two extremes, i.e. ones that are not purely contractual or public law in nature and careful consideration will have to be given to the dominant aspect of the claim and consequently the preparation of pre action correspondence and deciding on the remedy being sought.
Thus the practical implications of this decision include the following:
- It would be prudent to bring a claim efficiently and quickly as if it is decided that the head of claim is not the applicable one, the Claimant will still have the opportunity to pursue another head of claim within the limitation period, this is especially if the claim consists of a public law element or another head with a shorter limitation period such as Disability Discrimination claims.
- If a claim has a disability discrimination element, this will have to be brought separately as specialist tribunals are the intended forums for bringing such claims.
- Care must be taken when couching the claim in pre action correspondence; the nature of claim and the remedy sought must be clear from the outset.
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