2025-01-10 18:09:04
HK was an undergraduate student at the University of Dundee. In 2018, he enrolled there to study for the degree of MBChB, and was due to graduate with that degree in May 2025. In September 2022, he also enrolled to study for the intercalated degree of BMSc in applied orthopaedic technology, with a view to eventually pursuing a career as an orthopaedic surgeon,
The petitioner did not sit the examinations in two modules which formed part of his BMSc course, biomechanics and orthopaedic medicine, either on the original dates in December 2022 or on rearranged days in January 2023.
HK had made a mitigating circumstances application in relation to the December date. It was not clear whether that application was ever determined and, in the words of Lord Braid, the judge who heard a judicial review application, the University “failed to cover itself with glory in the manner in which it dealt with that mitigating circumstances application”.
The University maintained that on 10 January 2023 at 10.41am a member of staff had sent the petitioner an email, informing him of rearranged dates for the exams in the following week. This was the only notification of the new exam dates. The University admitted it had not posted the details of HK’s exams on the online portal. HK denied receiving the email, and did not sit the exams on the rearranged dates.
The petitioner continued to submit coursework until summoned to a meeting with academic staff on 14 February 23. In due course, HK was told that he was excluded from the BMSc course. HK informed the University that he wished to appeal. A key issue was whether HK had received the email that informed him of the rearranged exam dates. HK also complained about the failure to post the examination information on the University’s online portal. The University had regulations that govern appeal procedures, though the judge observed that it was “hard to fit the procedure which the university adopted in relation to the petitioner’s appeal into the framework of the regulations”. The judge also noted that no minutes of the meeting were kept, it was unclear what discussion took place, or what testimony of the sender of the email was given, or taken into account. The University’s email system could no longer show whether the email had been received into the petitioner’s inbox. The appeal committee decided that the evidence about receipt of the email was inconclusive. No mention was made in the appeal committee’s decision of the failure to post the exam information on the online portal.
HK’s appeal was dismissed and HK petitioned for judicial review of the appeal decision. The case of HK [2025] CSOH 1 was heard by Lord Braid in the Outer House of the Court of Session.
With regard to the question of whether the email was received by HK, the judge said:
“It is, of course, difficult to prove a negative, but the petitioner submitted some evidence which ex facie supported his claim that he had not received the email, essentially comprising ex post facto screen shots of his inbox, showing that at a later date, his inbox did not contain an email…dated 10 January. He also produced some correspondence he had had with the university’s IT department in which they had confirmed that they, too, had been unable to find such an email…it is within ordinary day to day knowledge that most emails which are sent to a valid email address are, generally, received (as distinct from being read).
The judge said that, faced with that evidence, it was then for the appeal committee to decide what to make of it. It was entirely a matter for it as to what weight to attach to the evidence submitted by the petitioner in support of his assertion that he had not received the email; and plainly it was entitled to conclude that the evidence was inconclusive
The judge held that the appeal committee’s failure to have regard to the petitioner’s complaint about the university’s admitted failure to post the details of his exams on the online portal was relevant to the core question of whether the petitioner had been properly notified of the exams in January 2023, particularly in light of the committee’s finding that the evidence surrounding the email was inconclusive. The judge said:
“In other words, where there were two potential means – email and online portal – of notifying the petitioner of the exams, and one of those had admittedly not been used, and the evidence about the other was disputed and inconclusive (as opposed to showing, definitively, that the petitioner had received the email), that necessarily ought to have led to an evaluation which the committee ought to have carried out as to whether or not, in all those circumstances, the petitioner could be taken to have been aware of the exams. By failing to consider the online portal point, the committee failed to take a material consideration into account, and in that regard, I consider that it erred. Further, the error was material, in that it cannot be said that the committee would not have reached a different decision had it taken the failure to upload the exams to the portal into account. As such, the petitioner has sustained the necessary degree of prejudice.”
The appeal committee’s decision was held to be unlawful. The appeal committee was ordered to consider anew the petitioner’s appeal against the decision of the University to discontinue his place on the course of studies for the degree of BMSc (Hons); and that to do so as soon as reasonably practicable.