Disputes in British Universities

John Cavendish, East London University

Judgment days

Peter Kingston meets John Cavendish, the would-be architect whose life has been wrecked by taking his former college to court - and losing  

Tuesday November 21, 2000.    The Guardian

John Cavendish has something of the air of a character from Dickens. To be more specific, he reminds you of one of those driven, desperate souls in Bleak House who spend their days hanging around the High Court of Chancery waiting for a judgment that never comes.

Grey at 38, he wears the hunted look of someone who has been through a significant ordeal. After eight years, Cavendish has finally had a judgment on his own legal struggle with East London University over an architecture MSc. It wasn't the verdict he wanted and he could fight on to appeal. But he has had enough.

Pursuing the case has wreaked a heavy cost. His house has been repossessed and he says he will have to go bankrupt because he cannot pay the ?80,000 costs. It has killed off any hope he once had of qualifying as an architect.

His preoccupation with the case caused a split with his girlfriend and affected other friendships back in Dublin where he hails from.

"I'm sick of hearing about the case," the actor Paudge Behan, adopted son of Brendan, told him, implying he could find someone else to have a pint with.

It's all a very heavy price to pay and it begs a number of questions. Should Cavendish have had to go all the way to the high court to get an independent adjudication on his complaint? Is this another example of glaring deficiencies in higher education grievance procedures, especially in the former polys, which don't even have that creaky old curio, the Visitor system?

It adds weight to those backing the proposal being considered by the Committee of Vice-Chancellors and Principals: independent panels to be set up with transparent procedures, to which students from the new universities may appeal if they are not satisfied with how their complaints are handled internally.

Cavendish agrees: "You would think there should formally be some sort of simple external arbitration system to deal with student grievances so they didn't have to go to court."

Most people with a gripe against their university would not have pursued it to the lengths Cavendish went. "I do have a tendency to get obsessive," he admits.

He has other tell-tale signs of the dogged long-haul litigant: bulging lever-arch files of documentation, the faint - sometimes not so faint - suspicion that they are fighting a conspiracy, and the total immersion in the case which makes it impossible to give simple answers to questions.

Cavendish also joined the band of "litigants in person", individuals in the grip of long-running legal actions who are going it alone without legal representation, although likely to have sought advice from more than one lawyer along the way.

Cavendish didn't go to university at first. "My school results were lousy," he says. While working in the architecture business as a draughtsman in 1984 he started a part-time Part 1 architecture degree at the then South Bank poly in London. The four-year course stretched to six in his case, because he took one year off and illness wiped out another. He transferred to the East London poly for his final year. He got a BSc in 1990.

He says he was then encouraged to continue his journey towards the career he wanted by doing a new course - an MSc architecture: computing and design - that East London poly was starting up.

Successful completion of the first year would get the MSc, and finishing the second would win a diploma and exemption from the Royal Institute of British Architects Part 2 exams - essential for anyone wanting to practise as an architect.

Cavendish did successfully complete the first year but he and all bar one student on the course failed the second year, he says. His appeal against the failure was turned down in January 1993. The university has maintained that he was a weak student whose work in that second year was well below acceptable; nevertheless they asked him to teach undergraduates in the first MSc year.

He says he then found out the two-year course he had done would not have exempted him from Part 2 of the professional exams anyway, because it had not been recognised by the Architects Registration Council of the United Kingdom (ARCUK).

After rooting around a bit more, he says he established that the MSc course was not included in the European Commission's list of recognised courses leading to the professional architect's qualification which would enable the holder to practise across the EU. Thus, he says, he would not have been able to go back home to work in Dublin.

Cavendish was angry at wasting two valuable years - they had brought him no nearer his dream of becoming an architect and needlessly cost him money. He had borrowed thousands from his bank to tide him through the course and wasted the grant he had managed to get from Ealing borough. The university consistently maintained the course had necessary recognition.

In April 1998, Cavendish got a letter from the Architects Registration Board (ARB), which had superseded ARCUK. It said the MSc/Diploma course had gained recognition in 1994, and that this was retrospective. "That would not have been a lot of use in 1992 if I had passed the course," Cavendish says.

On October 24 this year his case for breach of contract, misrepresentation and negligence began in the high court, and failed. It was struck out, he says, because the formula he had used to calculate damages for loss of earnings over the past eight years was ruled inappropriate for a breach of contract claim.

East London University's registrar, Alan Ingle, says: "Any student who wishes to dispute an assessment decision may appeal in accordance with the University Regulations. Mr Cavendish did submit an appeal in 1993, which was dismissed. He was advised at the time his appeal was dismissed that the responsibility for the investigation of complaints regarding course delivery resided with the Pro-Vice-Chancellor (Academic Affairs). The Pro-Vice-Chancellor investigated the complaint but found it without substance. Later that year the Academic Board approved the Student Complaint Regulations which have been in force since then."

Cavendish says: "It's destroyed my working life. These courses are supposed to improve your careers. It's done the opposite for me."

Higher Education Law updates page

New Material (6) –  updated 8 March 2004
Cavendish v UEL : to be read in conjunction with the New Material items on Remedies and Damages, and on the Rycotewood case…

1. This case illustrates the prolonged and intractable nature of some HEI-student (or ex-student) disputes, and hence also the potential value of early mediation in such disputes: see the 'OxCHEPS Higher Education Mediation Service' as a Page at this web-site ( oxcheps.new.ox.ac.uk). It shows too the legal problems faced by the aggrieved (ex-)student in, firstly, deciding exactly what action to commence (judicial review, or breach of contract, or misrepresentation, or negligence…) and, secondly, just what damage has occurred and hence precisely what damages by way of monetary compensation are being sought.

2. This Cavendish-UEL case attracted the attention of the Guardian Education  (21/11/2000), describing John Cavendish ('the dogged long-haul litigant') as wearing 'the haunted look of someone who has been through a significant ordeal' and the dispute as 'another example of glaring deficiencies in higher education grievance procedures' needing (as Mr Cavendish himself is quoted as woefully commenting) 'some sort of simple external arbitration system to deal with student grievances so they didn't have to go to court'. The new HE Ombuds may, of course, provide just that from 2004 onwards…

3. Key elements of the Judgement have been high-lighted in BOLD and explanatory notes added in [xxx].
Royal Courts of Justice, Strand, London WC2
Tuesday 24th October 2000
- v -
Transcription prepared by: Sorene Court Reporting & Training Services 020 8907 8249 (fax: 020 8907 5820) (Official Tape Transcribers)
The Claimant appeared in person
MR N JONES QC and Mr NEIL MENDOZA (instructed by Cartwright, Cunningham Haselgrove & Co) appeared on behalf of the Defendant
- - - - - - - - - - - - - -
JUDGMENT (As approved)
MR JUSTICE KEENE: I am going to deal in this ruling with an application made by the Defendant to have this claim struck out under the Civil Procedure Rules part 3.4, on the ground that it has no real prospect of success and so falls within the practice direction on that part, paragraph 1.7.

Mr Nigel Jones, QC, on behalf of the Defendant, makes the point that there is recognised as being some overlap between part 3.4 and part 24.2 (a) (i) of the rules, the latter dealing with the possibility of summary judgment either for the claimant or for the defendant. Thus his application is based on the proposition that, as things stand, there is really no proper purpose served in this case going any further and that the Court, in the exercise of its case management powers, should stop the proceedings without a full trial. Alternatively it is sought to exclude part of the Claimant's witness statement where he seeks to raise for the first time allegations of a deliberate conspiracy by staff at the Defendant University to cause him and others to fail a particular course.

It is right to note that just over two years ago Deputy Master Chinn, by a decision dated the 30th July 1998, refused an application to strike out the claim. However, the power provided by part 3.4 is one which the Court may exercise at any time (see the Practice Direction paragraph 4.1) and there have been further pleadings, in particular a Request for Further and Better Particulars of the Claim and a response thereto since that date, as well as voluminous evidence. I can see no bar as a matter of law to the Court entertaining a fresh application on its merits. The Claimant is a former student at the Defendant University. In September 1990 he was awarded a Bachelor of Science Architecture degree by the defendant. That gave him an exemption from the Part 1 examination of the Royal Institute of British Architects, to which I shall refer as the RIBA.

From January 1991 to December 1991 he successfully completed a one year Master of Science course at the University, that being an MSc in Architecture: Computing and Design, sometimes abbreviated as CAD. From January 1992 to December 1992 he took a further one year course described as the Design Unit course. On 15th January 1993 he was informed that he had failed that course and an appeal by him against that decision was unsuccessful. It is the status and consequences of these two one year courses which has given rise to these proceedings.

According to the Claimant, the Defendant's prospectus stated that this two year programme, two years if taken together, would provide exemption from the RIBA's Part 2 examination. He therefore claims that it was an implied term of the contract between him and the Defendant that the course would provide such exemption and also be recognised under the Architects Registration Acts 1931 to 1969 and Directive 85/384/EEC. It is said that in fact the course did not provide such exemption or have such recognised status and so the Defendant is in breach of contract. In addition, the Claim refers to an oral statement said to have been made on behalf of the Defendant by Mr Coates, a Senior Lecturer in the School of Architecture, at the Defendant, in about December 1990, that the Diploma in Architecture was available at the end of the two year course. There is also reference to a written statement by a another member of staff, a Mr Thompson, in a letter dated the 20th December 1991 that the one year course, that is the MSc CAD course, would exempt the Claimant from one year of the two year Diploma in Architecture course which leads to RIBA Part 2 exemption. [Note that academics, as the agents of the HEI can contractually bind the HEI when making such statements, even if they are wrong or have been given no power to speak on behalf of the HEI, unless  the HEI is able to show that it was unreasonable on the part of the person claiming to have relied on the statements to have done so since it should have been obvious to him/her that the HEI employee concerned could not speak on its behalf in this way: see HEL chapter 5 on the law of agency.]  

The Claimant alleges that all these statements were untrue. The Defendant, in the Pleadings, takes issue with that. Its position is that the courses taken by the Claimant would have led to exemption from the RIBA Part 2 examination as well as to the Diploma in Architecture, if the Claimant had passed the second year of the course. It also maintains that these courses were professionally recognised by the appropriate body under the statutes regulating architects and hence under the Directive.

Those statutes, referred to earlier, have now been replaced by the Architects Act 1997, but without significant change for present purposes, save in the identity of the controlling body. They prevented any person from practising or carrying on business using the word "architect" unless registered under the statutes. Breach of those provisions amounted, as it still does, to a criminal offence.

"Registered", as used by those statutes, meant registered with the Architects Registration Council of the United Kingdom (ARC UK), subsequently replaced by the Architects Registration Board. Those bodies recognised the RIBA examinations for the purpose of registration.

The Claim in these proceedings was originally brought not only for breach of contract but also in negligence, the alleged negligence being the Defendant's failure to obtain validation for the course which he took during these two years. However, in his document entitled "definition and reduction of issues to be tried", filed by direction of the Court, the Claimant identifies the issues as being whether there was a breach of contract and then whether he has suffered losses as a result.

His skeleton argument includes reference to both breach of contract and negligence, but all his losses are expressed in his Further and Better Particulars of Claim as consisting of what he would have earned as a qualified architect, had the Defendant's warranty that he would have obtained exception from the RIBA Part 2 examination been fulfilled. That of course is a properly expressed claim for damages for a breach of contract [as 'loss of bargain' or 'expectation damages', as compensation to put him where he would have been (earning a salary as an architect) had all gone well and as to be reasonably expected after successfully completing the course and thereby achieving the professional body recognition…but unfortunately, as discussed in the next paragraph, Mr C. failed the course and hence the issue of whether the course was or was not properly validated becomes irrelevant] . See Doyle v Olby (Ironmongers) Limited (1969) 2 QB 158 at 167). I return to this aspect of the case in due course.

Mr Jones, on behalf of the Defendant, submits that there is no prospect of the Claimant recovering damages in this case for breach of contract, even if his allegations as to such a breach were true. The Claimant seeks to be put into the position he would have been in if the warranties about the courses had been true; that is to say, if the courses had been properly accredited or validated. That is the correct approach to damages in a breach of contract case. But, submits Mr Jones, it is not in dispute that the Claimant failed the second year of the course, the Design Unit year, and so it made no difference to him whether that course was a validated one or not. Even if it had been, he failed it and so can have suffered no recoverable loss [since Mr C. was not anyway able to seek such professional recognition, whether it were available or not].

It is contended that it cannot be argued that the Claimant would have passed the second year course if it had been a validated or accredited one. The prospect of the Claimant obtaining nominal damages for breach of contract would not justify allowing what is estimated to be a five day trial to proceed. That, says the Defendant, would not be a proper use of the court's resources, nor would it be fair to the Defendant. Nor should the Claimant be allowed at this late stage to amend his Claim so as to allege, as he does in his witness statement, a deliberate and dishonest conspiracy by University staff to fail him and others on the course in order to conceal the deficiencies of the course.

Those then are the submissions on behalf of the Defendant. In response, Mr Cavendish, who has appeared in person, agrees that he cannot say that he would have passed the course if it had been a validated or accredited one. He tells me that he believes that the School of Architecture deliberately sought to fail him and others because of the deficiencies in the course and its lack of validation, but he cannot point to anything in the documentation to support his belief.

His answer to the argument put by the Defendant that, whatever the status of the course he had failed, it was that (and I quote his submission) "a pass was not available". He expanded on that by saying that the course was not of the requisite length to achieve recognition and so a pass would not have counted.

I take that combination of answers to mean, not that a person could not have obtained a pass, or indeed a fail on the course, but that, in his own case, it would not have provided him with a pass in a course giving him what he wanted. It is convenient in this ruling to deal first with the suggestion raised in the Claimant's witness statement that there was a dishonest conspiracy to fail him and others on this course so as to conceal its deficiencies. That is a very serious allegation. It is nowhere pleaded and there is not a shred of evidence in the documentation to support it. Whatever the Claimant's personal belief may be, it is an allegation which, if it had been pleaded, would have been bound to fail. He has not sought leave to amend so as to raise this as part of his Claim and I make it clear that, had he done so, I would have refused leave.

It means that his Claim has to be judged in the context of the known fact that Mr Cavendish failed the Design Unit course which he took in 1992. That failure cannot now be challenged in this Court [Mr C. would have had promptly to seek judicial review if he wished to challenge the academic decision as being procedurally unsound; he would have had no chance of getting a Court, whether under JR or in a breach of contract or a tort/negligence action, to second-guess the academic judgement of the Examiners and to re-assess the mark] . There is no prospect, in my judgment, of Mr Cavendish establishing that if the course had been a validated one for professional purposes he would have passed it. Indeed he himself, as I have indicated, does not seek to argue that he would have done.

In those circumstances it is impossible to see what damage he has suffered, [even] were he able to establish the alleged breaches of contract or any of them. As already indicated, where a contractual warranty is broken, the other party is entitled to be put into the position he would have been in had the warranty been performed. That is well-established law. But in the present case the Claimant's position would have been no different had the course been validated, which the University says it was anyway but which Mr Cavendish challenges. Validated or not, this was a course which he failed. The position would have been wholly different if he had passed it [and were then able to prove that it had not been properly validated after all], but he did not.  As a result none of the damages he seeks to recover, for what he would have earned as a professional architect, result from the alleged breaches of contract. They are not therefore recoverable.

Because Mr Cavendish has represented himself I have given consideration to the possibility of his Claim being reformulated as a claim for damages in negligence or for negligent mis-statement, where the measure of damages would seem to be different, namely, such amount as would put him in the position he would have been in, had the allegedly negligent mis-statements not been made [that is, he gets compensation/damages to put him back where he would have been had he not relied on such statements and begun the course: his tuition fees, his living expenses as a student (less what he would anyway have spent to live somewhere or other), loss of earnings while being a student, books and materials bought specially for the course…see the Rycotewood case]. (See Royscot Trust Limited v Rogerson (1999) 2 QB 297).

There are however insuperable difficulties in the way of this. First, it is not pleaded by Mr Cavendish that he would not have entered the course but for those representations. Secondly, he is not claiming any loss or damage caused to him by his entering into the contract with the University to do this course. There was a time when he did seek damages for his cost of living and student expenses incurred over the two year period of the course, but he expressly withdrew that claim. (See answer No 26 in his amended Further and Better Particulars). There are no particularised losses put forward on such a basis.  

However concerned the Court may be to ensure that an unrepresented party is treated justly, it cannot reformulate his Claim so as to claim losses which he has not put forward. Nor can it make allegations about what he would have done when he does not make those himself. Moreover, any reformulation of the Claim so as to make allegations of that kind and so as to particularise losses not so far put forward would inevitably have required an adjournment with its attendant costs, so that those new matters could have been considered.

I am bound to say that, having read the principal documents in this case, there seems to be very scant chance of the Claimant succeeding even if his allegations that the statements on which he relies were untrue. The evidence is overwhelming that, had he passed the second year Design Unit course, he would in fact have obtained a Diploma and exemption from the RIBA Part 2 examination. I say that simply to indicate that I have considered if there is any appropriate way in which the Claimant's claim could be put forward which avoids the fundamental obstacle which he currently faces [that is, trying convincingly to link any losses which he has suffered by not passing the course to any breach by UEL in delivering the course, let alone any losses he would have suffered had he passed the course only to discover that it might not have had the professional recognition UEL claimed it had] .

There is no such way consistent with the overriding objective of the Civil Procedure Rules, part 1 (1). I return therefore to the basis of the Defendant's application. It is clear that there is no prospect of the Claimant recovering damages for breach of contract, those being the only damages which he has claimed. None of his alleged losses flow from any of the alleged breaches. It follows that, even if he could establish a breach or breaches of contract by the Defendant, he could recover no more than nominal damages. This Court is bound to consider whether in the light of the overriding objective there are reasonable grounds for bringing such a claim. I have concluded that there are not. It follows that in those circumstances this Claim will be struck out and the Defendant's application succeeds.
MR JONES: My Lord, in those circumstances there are only two other matters I would like your Lordship to consider. One is the question of costs, which we obviously ask for, and the second is would your Lordship please make an order for the payment out of money which is standing in Court. It was paid in on the 17th March 2000, and that is in the sum of £5,000 plus whatever interest stands to the credit of that account since then.
MR JUSTICE KEENE: Mr Cavendish, do you understand the matters that Mr Jones is raising? First of all, he is seeking an Order for costs against you.
MR CAVENDISH: I have no money.
MR JUSTICE KEENE: That may be. That I am afraid is not an obstacle to the Order being made. It may be an obstacle to it being satisfied and enforced. That is not my concern. The normal principle is that where a party loses, an Order for costs against that party normally follows in favour of the successful party. It is not invariable. If there are any particular matters which you wish to put forward to suggest why that normal course should not be followed here, do so, but that would be the normal position.
MR CAVENDISH: I am not a lawyer. I do not have an answer to that.
MR JUSTICE KEENE: I am bound to say, trying to look at things from your point of view as best I can, which I do because you are not represented, I cannot see any answer either frankly and it seems to me therefore that the Defendant is entitled to an Order for costs. To be assessed?
MR JONES: My Lord, yes.
MR JUSTICE KEENE: It is clearly not a case for summary assessment given the history of this matter.
MR JUSTICE KEENE: Very well. Order therefore that the Claimant do pay the Defendant's costs to be assessed and you do not want to say anything about the question of paying out the amount that the Defendants paid into court? I can tell you it is simply ----
MR CAVENDISH: They paid £5,000 into Court?
MR JUSTICE KEENE: It is a normal procedure that, the matter having been dealt with and there being no Order for damages in your favour, that payment out should be made.
MR CAVENDISH: Does it say in terms of pursuing for satisfaction the Order for costs? I live on £77 Irish a week and I have no money. I have nothing.
MR JUSTICE KEENE: No doubt the Defendant hears what you say and will give that consideration. It is not a matter, I am afraid, for me. Very well, I shall Order the payment out then of the £5,000 that was paid in together with the accumulated interest on that sum.

McGregor (2003, 17th edition) again stresses that damages have long been available (Burton v Pinkerton (1867) L.R. 2 Ex 340 &  Hobbs v LSW RY (1875) L.R. 10 QB 111 where breach of contract causes 'physical inconvenience and discomfort (often in terms of being obliged to live in defective premises) and also where breach of contract causes personal injury with such non-pecuniary losses as 'pain and suffering and loss of amenities' (paras 3. 013-3.018), as opposed to where it causes mere 'mental distress'. Hence for many decades damages were ruled out for such injury to feelings: but, as McGregor notes (paras. 3.019-3.030), the door is steadily opening wider to allow 'exceptions in proper cases to this sound general rule' (as indeed he called for way back in the 1961 12th edition, distinguishing between commercial matters as the subject of the contract and contracts involving 'personal, social and family interests'). McGregor records 'giant strides' in the 1970s and early-1980s, followed by 'a more limiting attitude' in the 1990s, and then 'a tendency for damages for distress to take off again' over the past few years with Ruxley Electronics and  Farley (and also citing Rycotewood  (note 38, para. 3.026) concerning 'the disappointment, displeasure and annoyance experienced in attending what turned out to be a useless educational course'). Moreover, citing  obiter in Gore Wood and Unisys, McGregor predicts 'that the general rule in  Addis may soon be abandoned and that, in addition, one should not adhere too closely to the somewhat limiting test for recovery of damages for mental distress, of whether a principal object of the contract is to provide enjoyment or avoid distress but simply to apply the wider, more principled test of whether recovery for the particular loss is within the contemplation of the contracting parties'. Finally, McGregor turns to 'social discredit' (para. 3.031) arising from breach of contract, and again queries, by analogy, to three recent developments in respect of injury to feelings, whether the Addis  bar to recovery of damages for injury to reputation and loss of prestige will hold for much longer, at least in relation to 'the contract of employment as the likeliest contract to affect reputation in its breach'.

Yet, reverting to  Rycotewood, one may well wonder whether the students would have succeeded in their claim after all if the test had indeed been 'the contemplation of the contracting parties': do students really expect enjoyment from a degree course (as opposed to mental stimulation and challenge) and could the College (or any university or college) really be said to have anticipated paying out damages for disappointment if it breached the student:HEI contract to educate by providing an inadequately taught course (as opposed to expecting to refund tuition fees and other expresses incurred in attending the course, or even also to compensate for loss of earnings while wasting time on the course)?

The key issue, then, is whether, from now on (given  Rycotewood and the tone of the academic analysis to be found in McGregor and in Furmston) HEIs should reasonably contemplate a potential for disappointment and mental distress damages arising in the event of their breaching the contract to educate; and hence just because a particular HEI neglects to do so, or even elects not to do so, does not mean it should not have reasonably had such damages in mind when contracting with the student. This takes us to what McGregor cites as 'the most celebrated case in the field of contract damages' (para. 6.144), Headley v Baxendale (1854) 9 Ex. 341 and, also to  Victoria Laundry v Newman [1949] 2 KB 528 (CA) and to Kaufos v Czarnikow Ltd  [1969] 1 AC 350 (aka The Heron II  – as opposed, of course, to the more relaxed tort test for remoteness set out in The Wagon Mound  [1961] AC 388 which settles for even a remote possibility as qualifying). What 'may reasonably be supposed to have been in the contemplation of both parties, at the time they make the contract, as the probable result of the breach of it' (Alderson B. at 354/355 of Headley)? Are these 'special circumstances' concerning a student expecting enjoyment of the course which he/she needs to communicate to the HEI, or is such enjoyment either deemed 'naturally arising' from the contract to educate or supposed to be within the reasonable contemplation of the HEI as well as the student? Is it 'reasonably foreseeable' (as the older cases had it) to the HEI (actual knowledge) that disappointment and mental distress damages may become due, or should it anyway have been foreseeable as 'a serious possibility' or as 'a real danger' or as being 'not unlikely' (as the more recent cases have it) to the reasonable HEI (imputed knowledge)? In short, it is the remoteness test in contract law: the HEI, if in breach, will be liable to pay damages for those kinds of damage that are not too remote from the contract to educate, and that might now be said to include mental distress (and even if the HEI does not consciously and in advance contemplate the potential for distress damages, it perhaps should now reasonably be assumed to have done so).

(15/1/04)  And now we have Hamilton Jones v David & Snape (a Firm)  Chancery 19/12/03 (Times, 15/1.04). Here £20K mental distress damages have been awarded where a law firm was in breach of contract for failing to act professionally in ensuring the custody of the claimant's children remained with her after a divorce (the firm failed to renew the notification to the Passport Office and the father was able to add the children to his Passport and get them out of the UK). This instance was deemed to be a Watts and Farley  type of exception to Addis . Note that £20K, in respect of two 'lost' children, far exceeds (and rightly so?) the £2500 for a disappointing HE experience (Rycotewood ) or the same figure in Ruxley for the disappointment arising from an insufficiently deep swimming-pool or even the £10K in Farley for the mental distress arising from living in a house plagued by aircraft noise.

(3/3/04) In The Law of Damages (Tettenborn, 2003, Butterworths, pp 84-88) two extra cases are cited in support of Ruxley style disappointment damages being awarded in certain circumstances:  Mitchell v Durham [1998] CLY 1375 (botched double-glazing) and  Rowlands v Collow [1992] 1 NZLR 178 (poorly laid domestic drive).  

John Cavendish v. The University of East London  

Summary of the Claimants case  

*       *      *      *      *      *

Architecture authorities and professional bodies  

In 1931 Parliament passed the Architects Registration Act so that architects in the UK had to be on the Register of Architects to be able to practice and use the title architect. The Act gave control of the admission to the Register to The Architects Registration Council, (ARCUK) a body made up of construction industry professionals and academics nominated to the Council. The RIBA proportion of nominees was based on the size of its membership but it was only one of the nominating bodies to the Council.  

Most schools of architecture in the UK have or claim that their courses are recognised by the Royal Institute of British Architects (RIBA), and they usually state in their prospectus material that their courses have RIBA exemption for each of the 3 parts, the RIBA have exams recognised by ARCUK that are in 3 stages and these correspond to courses at Polytechnics and Universities. The RIBA was set up under a Royal Charter and architect members of that institute can write the initials RIBA after their name.  

Many architects in the UK do not to join the RIBA; they can happily practice architecture as long as they are on the ARCUK register as joining the RIBA is optional for the registered Architect. The registration Act also set up a body called the Board of Architectural Education under Section 5 and this body reported to the ARCUK Council the exams it recommended for admission to the Register under Section 6.  

On the 10 June 1985 the EEC adopted by agreement the Architects Directive (85/384/EEC) for the mutual recognition of architecture certificates throughout Europe so as to set minimum standards in training and education and for the conduct of Architects. Her Majesty the Queen signed Statutory Instruments in 1988 and 1989 to give it effect in the UK and the Directive itself referred to the Architects Registration Council, in Article 11 (i), as the competent body in the UK with responsibility for the Directive, not the RIBA.  

Article 7 of the Directive calls for the publication in the Official Journal of the European Community of all the architecture courses that are compliant with the education and training requirements of Article 3 (course content) and Article 4 (time element,). Article 7 also requires member states to communicate amendments to listed courses.  

The Directive also refers to another body called the Advisory Committee on Education and Training in the field of Architecture, which was set up under council decision 85/385/EEC. Nominees from the education and working profession from each member state meet each year to consider the recognition of courses in architecture throughout the EU. The Directive was given 2 years for implementation and the first list of compliant courses was published in the Official Journal of the European Communities in 1988.  

After ARCUK were given responsibility for the implementation of the Directive in 1985 a dispute erupted with the RIBA, which was covered in the Architectural press at the time, concerning the recognition of the courses and whether the RIBA had validating authority in the UK since all the courses claimed to have RIBA exemption. The RIBA sought the support of the government of the day and by the late 1980s a report by a Professor Warne was produced arguing for the removal of ARCUK and the act of parliament and proposed that the RIBA would control the profession themselves. This suited the RIBA and those in that Tory Government who believed those European Directives constituted foreign socialism being visited in the UK; 'socialism by the back Delors' as Mrs. Thacther called it. However the Registration Act remained unchanged until early 1997 when it was changed by John Major's government in early 1997, when ARCUK became the Architects Registration Board (ARB) as it is now.  

My Part 2 course at PEL  

After I passed my Part 1 B. Sc. degree in September 1990 I began to enquire about Part 2 courses at the Polytechnic of East London (PEL) and elsewhere. I had work that summer with a firm of architects in Dublin where some of the drawing work was on CAD as was increasingly the case with the development of computers.  

My college published the end of year review in September 1990 and included a CAD drawing I had drawn for some of my college work above a paragraph about a new course proposal the school had in mind for later that year which offered the students a route to Part 2 stage by the award of one of 2 M. Sc. degree courses, one on computers and one on the environment, after 1 year followed by the Diploma in architecture at the end of the second year.  

I made enquiries with staff at East London that October and I was offered a provisional place by Mr. Paul Coates, course tutor at PEL, depending on whether the course got the approval of the RIBA I was told, and that they believed it could start the following January and run until December, rather than the normal academic year of September to July. The M. Sc. degree Mr. Coates was proposing was all about computers, CAD and I was told the following year would be a final year of the Diploma course a total of 2 years full-time.  

I found more work in Dublin that November 1990 on a large project that could have kept me going for at least a year but while I was on that job I was written to with a prospectus sent to me and telephoned by Mr. Coates from PEL asking whether I would come on the course. The Architects in that practice were not happy about the content of the prospectus sent to me but I thought that as the college had passed me for the B. Sc. Architecture that I could pass on this new course.  

I joined the M. Sc. degree in January 1991 and at that time I found that the Government had removed grant awards for all Part 2 architecture students so I had try to borrow and Mr. Coates offered me a post as a CAD assistant to teach the other students rather than let me leave the course, as I proposed to do early on in the year because I could not raise the fees of £4800, so my salary was to waive my fees in lieu of some CAD teaching to the undergraduates. Fees for the pre-existing Diploma course were £1775 in 1992. Mr. Coates told me that the staff would take care of my student registration. Later grants were restored by the Government, which helped some way, but one still had to find housing costs.  

The M. Sc. degree course was all about computers, all the lectures and seminars were about computers and software and after six months of lectures the students, numbering about 15, were required to imput a building designed by some celebrated architect into 2 different software packages and write a comparative report about the strength and weaknesses of the two software packages The second six months up until December 1991 was all about writing a program to create an automated CAD modelling routine which would have some architectural merit depending on the students attempts but all of the students efforts provided large amounts of computer research. I found out some years later that Mr. Coates was a software development writer with very large CAD software company called Autodesk who have a major CAD package called AutoCAD.  

At the end of the M. Sc. degree year all but one student passed and we were awarded an M. Sc. parchment.  

There were 6 students from my M. Sc. degree course who commenced the following January 1992 on a one year Diploma course and were joined by 2 other students who had completed the 1 st year of the pre-existing Diploma course and were attempting the M. Sc. degree as a final year and they were also told that they could get the Diploma as well as the M. Sc. degree at the end of the year December 1992.  

This group of 8 was also called the M. Sc. Design Unit but the year had a number of defects to it, which raise serious questions.  

The college could not set the fees that year until November 1992 so none of the students were registered until most of the year was over. Not being registered meant students were without student's cards and could not borrow books from the library and use other student services. No reading list was given to the students for this new one year Diploma course.  

The students were required to do a course in professional practice once a week but aside from this there were no other lectures or seminars or even a slide show for the remainder of the year. There were no field study trips for the year either.  

There was no syllabus or course handbook for my course; it comprised of the students being supervised by 1 tutor who gave about half an hour once a week as a tutorial to the students. It was not a full-time course.  

There was no studio accommodation in the School of Architecture so that the students had to work at home on projects given to them. These projects required the students to demonstrate competence of their M. Sc. degree skills which, in my case meant I was to show CAD skills but the computer room had been filled by the following year intake of M. Sc. degree students so the computers were largely unavailable unless you had one yourself and I did not have one then because I could not afford it on student finances.  

In November 1992 around the time the staff finally asked us to register I was approached by a representative from ARCUK, Mr. Ellis Hellmann, who confronted another member of the M. SC. staff Mr. Mike Thompson and told him in front of me that they did not have ARCUK recognition for my course and without it they were operating illegally.  

At the end of the year I was informed I had failed the course and I tried an appeal but this was rejected because I had not referred to any assessment regulations that had been breached in my complaint. When I asked about assessment regulations there were none for my final year and only the course handbook for the pre-existing Diploma course was available even though it was a significantly different course.  

I was informed when my appeal failed by the then Head of School, Ms Christine Hawley, that there were no course documents for my 1 year Diploma course. This meant that it was not possible for the Polytechnic and external recognition bodies such as ARCUK, RIBA and the Advisory Committee on the education in the field of Architecture in Europe, to be able to know what the course consisted of, as it was not properly detailed.  

Only one student passed in December 1992 in my group. He was an overseas student from Thailand. However I found out later that his name was never forwarded to either ARCUK or the RIBA, there was no pass list issued for my group I December 1992. One other Thai student was passed with pre-existing Diploma course list some 7 months later in July 1993.  

Article 4of the Architects directive requires that students complete 4 years full-time to qualify. Part-time courses are required to last 7 years with supervision in an architect's practice.  

There is a regulation published in the Official Journal of the European Communities with the United Kingdom lists of recognised architecture certificates that states; "Where the first degree is awarded after training lasting four years part time, the subsequent training leading to an architectural qualification must last at least three years, part-time or full-time."    

This rule applied to myself, as I was a part-time, part 1 undergraduate. I was told on entry to the M. Sc. course by Mr. Coates that I could qualify in two years even though I was meant to do 3 years, my student card prepared at the time I was registered in November 1992 stated that I was a final term Diploma in Architecture candidate.  

This meant that my course duration did not meet the time element requirement of Article 4 and a regulation to ensure that time requirement of 3 years post part 1 for part-time students.  

The other students in my so-called final year were former 3-year full-time undergraduates so they were only required to complete 4 years full-time to comply with Article 4. Although ARCUK stipulated 5 years full-time total to part 2 stage.  

However as the second year only provided a half an hour of verbal advice once a week with the professional practice section ending in April 1992 it constituted no more than a part-time course and as such all the students should have been required to be employed in an Architects practice but they were not informed of this and ended up working most of the final year at home.  

There was no Local Education Authority Grant (LEA) for students on part-time course but my LEA was billed by PEL for a full time final year.  

In the process of seeking internal Polytechnic validation for the second year course Mr. Thompson and Mr Coates made a submission to the Dean of Academic standards about my course. In response to this a memorandum from Don Hudson of Academic Registry at Barking to Dr. Lawrence Rule, the Dean of Academic Standards at Barking, dated 27 January 1992, makes some striking comments on the M. Sc. - Diploma course, written at a time when my one year Diploma course had already begun that year from January 1992 until December 1992, which reads;  

"Firstly, a quiz:  

Question:         When is a course not a course?
Answer:           When it is in Architecture.  

Secondly, may I apologise for the delay in responding. Apart from the pressure of work both Jan and I have had some difficulty mapping the proposals with the approved M. Sc. and Diploma schemes.  

The proposal looks reasonable but its relationship to the two schemes still seems to us to be elusive and needs further thought. It is designed in such a way that students must from day one elect to go onto the MSc/Diploma route and embark on part of the Diploma whilst following the MSc. Dual registration is not forbidden but the scheme does not address those who once they have completed the, or any other MSc, decide to do the Diploma. They will want to remedy that presumably by introducing a fourth course giving slightly less advanced standing in terms of work to be done. May I predict that before long you will be asked to allow students who have not satisfactorily completed or who can not go beyond the first year of the Diploma to be granted an M. Sc.  

May I ask if the Diploma Assessment Board has been consulted to ensure that it is prepared to grant a diploma to students the bulk of whose work has been assessed elsewhere and who are only required to complete an unspecified number of Design projects and who have not necessarily successfully completed integral assessed parts of the Diploma i.e. Building Economics, and Planning and Sociology?  

Incidentally, which assessment Board will rule on the professional studies element which is not a feature of the M. Sc. and which will decide on the case studies which are not a part of the Diploma? Is the loss of 8 weeks of the part-time mode but the comparable amount of time spent on the full-time mode acceptable?  

I know that Mike wishes to be flexible but some precision into how this will work could well prevent difficulties in the future.  

Don Hudson"  

After this memo was written Mr. Thompson stated in a follow up memo that ARCUK recognition had taken place on 12 February 1992, the Polytechnic then allowed my course to go ahead even though they had serious doubts about its validity. ARCUK stated to me that their supposed recognition for my course did not happen before 16 th March 1994.  

ARCUK and European architecture course content requirements  

The Polytechnic publications did not include any reference to ARCUK or the Directive. All statements were to the effect that the courses had RIBA Part 1, 2 or 3 stage exemption.  

The description of the pre-existing Diploma course at East London was described in the '1991 Architectural Education in the Commonwealth (CAA) - a third survey of schools', where it states under the heading Architecture Course - Design, "Design teaching is supported by the teaching of technology and contextual studies" which are then further defined under their respective headings;    


The overall aim of the Technology course is to provide the students with the necessary factual data and experimental techniques to pursue their designs to beyond the point of feasibility to detailed implementation. The course develops over the five years [ which includes the three year full-time B. Sc. course] and is divided into the usual way to cover structures, construction, services, environmental control, and computer literacy. Teaching is by means of lectures and seminars supported by individual tutorials.     

            Contextual Studies

The overall aim of the Contextual Studies programme is to provide the student with a theoretical basis for their studio work, together with the necessary skills of analysis and expression for them to use their acquired knowledge and perceptions to advantage in design. The course content includes both architectural history and theory, and addresses aesthetic technological social and economic problems. Teaching is by means   of lectures and seminars supported by individual tutorials."

  ARCUK published an Education Policy - A Summary, in the Architects' Journal, page 33, on 4 November 1992, is based on a document entitled 'The curricular content on an ARCUK education policy: a consultative document, in with the text from Architects Journal, in blue, I have made comparative points to each Article 3 objective, in bold, in respect of my M. Sc. and additional one year Diploma course and the pre-existing Diploma course at PEL.  

The summary states "Arcuk's policy is structured round the 11 objectives of Article 3 of the 1985 EC Architects' Directive, which now forms part of UK law. In each case Arcuk asks which curricular issue applies, and what evidence should be required to demonstrate that the objectives have been met. With the coming of free movement of professionals between EC member states, the profile of the architect's personal competence has become more important than the general approval of an educational programme. This shift is reinforced by the trend towards the individuals having more control over their education. For Parts 1 and 2, the focus of the directive, courses are increasingly based on credits. Beyond Arcuk sees its role extending to Part 3 and to CPD, where individual choice rules.  

The basic principles of Arcuk's education policy are:  


Meeting the objectives Arcuk's policy can be detailed as a set of objectives of the EC Architects' Directive. Each includes questions, curriculum points and evidence, as follows."  

       "Objective 1 - An ability to create architectural designs that satisfy both aesthetic and technical requirements . This is Arcuk's framework for the other 10 objectives."  

       The pre-existing Diploma in Architecture course met this requirement by providing lectures, seminars and tutorials on both the Contextual (Aesthetic) and Technical studies courses. The pre-existing Diploma course met this requirement of Article 3 of the Directive as required for the framework for the other 10 objectives.  

       The M. Sc. Architecture: Computing and Design + the additional year did not include the teaching of Contextual and Technical studies. It consisted of an M. Sc. degree about computers and computer modelling and a further year of design projects conducted at home based on a demonstration of computer modelling skills with the professional practice component. It did not meet the requirement of objective 1 and it therefore, by Arcuk's own standard, did not meet the requirement of the framework for the other 10 objectives.  

       "Objective 2.  An adequate knowledge of the history and theories of architecture and the related arts, technologies and human sciences.  History and theories of technologies and human sciences are thin or missing in schools. They should apply to cultures outside Europe too. History and theory should underline everything but need to be more than an unspoken undercurrent. Evidence of meeting this objective should come from work such as design projects and essays that make it clear the roots of what is being done now."  

       The pre-existing Diploma course met the requirement of this part of Article three of the Directive and Arcuk objective by providing lectures, seminars and tutorials on History and Theory as a part of the Contextual studies course. The M. Sc. degree and the additional year did not include any teaching or course work on History and Theory and did not meet this requirement or Arcuk objective.  

       "Objective 3.  A knowledge of the fine arts as an influence on the quality of architectural design.  Architecture's classification as an art needs to be questioned. This objective raises questions about public policy on the arts. The Objective could be met by joint studies with fine art students art-historical work, practical work and critical studies."  

       The B. Sc. and Diploma course at East London as described in the 1991 CAA, stated in its fourth paragraph "The School enjoys all the resources of the Polytechnic, but has the closet link with the Department of Art and Design with which some teaching is shared." It was not clear from the Polytechnic/University documents whether this shared teaching with the Department of Art and Design occurred at B. Sc. undergraduate or postgraduate Diploma level. In any case the M. Sc. degree and the additional year had no teaching in the fine arts and did not comply with this requirement.

       "Objective 4.  An adequate knowledge of urban design, planning and the skills involved in the planning process. It is difficult to make the planning framework realistic in projects, but necessary to try. Study should include the first and third worlds and be interdisciplinary, with public participation. Evidence would include focused projects and field studies, analysis of planning enquiries and role playing."  

       The B. Sc. under graduate course included urban seminars, essays and an urban studies project. The pre-existing post graduate Diploma course met this requirement by the inclusion of planning lectures under the Contextual Studies lectures, and course work assessed by a planning examination and a planning/economics project. The M. Sc. and the additional year did not have planning lectures or a planning exam and thus did not meet this requirement of the Directive or Arcuk objective.  

       "Objective 5. an understanding of the relationship between people and buildings and between building and their environment, and the need to relate buildings and the spaces between them to human needs and scale . This objective implies external space, but Arcuk includes internal space here, too. Study includes topological and geometrical description and other spatial structuring; as well as people's behaviour in terms of visual perception, ergonomics, health, comfort, safety communication and meaning. Evidence of study would include monitoring of client and community meetings and of live projects and use the findings in design projects - also social audits, spatial analysis and studies of modelling methods."  

       It was not made clear from the Polytechnic documents how this requirement was met in the B. Sc. and Diploma course.   However, the students of the pre-existing Diploma course attended in the School for a full week over two years full-time. The M. Sc. degree year had no course content included to meet this requirement and the students in the additional year only attended for a design project tutorial lasting approximately half an hour once a week for most of the year.  

       "Objective 6. an understanding of the profession of architecture and the role of the architect in society, in particular in preparing briefs that take account of social factors. How society provides itself with buildings throughout the EC, and elsewhere. This requires a historical perspective. Study through analysis and critique of briefs including briefs for competitions, also related legislation, and the social factors involved. Evidence of study includes case studies and brief writing."  

       The historical perspective required for this objective is provided for in the pre-existing Diploma course by the History component of the Contextual studies course. The professional practice course includes an understanding of the profession of architecture including related legislation that the M. Sc. and the final year included. However the students of the pre-existing Diploma course had the advantage of the History studies component in meeting this objective which the students of the M. Sc. and the additional year did not.  

       "Objective 7. an understanding of the methods of investigation and preparation of the brief for a design project , Here the emphasis is on methods for gathering data, including feedback from existing buildings."  

       The students of the pre-existing Diploma course had the advantage of the teaching of Contextual and Technical studies, and full-time tuition in support of their project briefs. The M. Sc. degree had no design briefs at all and the design project briefs of the additional year were dependent on the demonstration of computer skills which was different to the pre-existing course.  

       "Objective 8. An understanding of the structural design, constructional and engineering problems associated with building design . This, together with objective 9, covers the technological base of architecture, on which much time is often spent. However, technical failure is a common source of complaint. It is difficult to achieve a mix of theory and practice in the school. Arcuk's solution is for the foundations to be laid in the school, with skills development in practice through CPD. Practical experience in building skills is useful, as are lab and physical demonstrations and testing. Design project-centred teaching is likely to be more motivating to students. As evidence of study, design projects should show that the lessons have been learned and can be applied by students, as well as the more normal exams, lab work and site visits."  

       The pre-existing Diploma course met this requirement of the Directive and Arcuk objective by it's teaching of Technology as a course subject which included lectures, seminars and tutorials assessed by technology studied as an integrated part of design projects and exams as explained the Diploma course handbook and C.A.A. survey. The M. Sc. degree and the design projects of the additional year did not include lectures, seminars and tutorials on building technology; it did not include technology as an integrated part of design projects and had no lab work, no site visits or technology exams. The design projects of the M. Sc. Design Unit were based on the demonstration of computer modelling skills that are different and failed to meet this requirement of the Directive and Arcuk objective.  

       "Objective 9. an adequate knowledge of physical problems and technologies and of the function of buildings so as to provide them with internal conditions of comfort and protection against the climate . The teaching approach is as above, but here the emphasis is on energy, comfort, health, performance and safety as subject matter, and methodologically on evaluating existing buildings as well as on design projects."  

       The Technology course of the pre-existing Diploma course included lectures entitled Environmental Control and as above the pre-existing Diploma course met this requirement of the Directive and Arcuk Objective. The M. Sc. degree in computing and the final year did not include Technology or the lectures on Environmental control, it did not meet this requirement of the Directive or Arcuk objective.  

       "Objective 10. the necessary design skills to meet building users' requirements within the constraints imposed by cost factors and building regulations . This objective focuses on building economics and regulations in particular, and in their social and historical context, which would require evidence from examinations, reports, case studies and other data."  

       The pre-existing Diploma course met this requirement by the inclusion of Economics lectures as a part of the Contextual studies programme with assessment by applied studies. the Contextual studies course addressed aesthetic, technological, social and economics problems. The pre-existing Diploma course met this requirement and Arcuk Objective. The M. Sc. degree and the additional year did not include Economics or the Contextual studies programme and did not meet this requirement of the Directive or Arcuk Objective.  

       "Objective 11. An adequate knowledge of the industries, organisations, regulations and procedures involved in translating design concepts into buildings and integrating plans into overall planning . This requirement is particularly difficult to meet in the UK, where education is packaged into professional categories, but D&B and the like make this involves studies of history, law, contract, dairies of jobs, experimenting with new roles: as evidenced by case studies, reports, critical studies and exams."  

       The members of the Arcuk working group were Anthony Ballantine (non-architect designer), Chris Cross, Christine Hawley, Roger Stonehouse Tom Wooley (heads of Schools), Roo Humpherson (student), Paul Koralek, Bob McLeod, (chair) and Mary West (Secretary).  

       The pre-existing Diploma course had both the studies of History, and Law and Contract under the Professional Practise course. The M. Sc. and the additional year did have Professional Practice but not History. The pre-existing Diploma course met the entire study programme of the objective but the M. Sc. degree and the additional year did not.  

       The pre-existing Diploma course at PEL substantially met the requirements of the Directive and the ARCUK objectives of their education policy published in November 1992 at a material point in time with regard to the M. Sc. courses. The M. Sc. degree and the additional year substantially failed to meet the requirements of the Directive and the ARCUK objectives. My course could not be validly recognised as a proper course by ARCUK in keeping with the published requirements and their European duties.  

       I submitted a complaint to the European Commission after reading the Directive that the sum of the course content of the M. Sc. Architecture: Computing and Design and the academically defective M. Sc. Design Unit substantially failed to meet the requirements of Articles 3 and 4 of the Directive, the UK regulation requiring me to have undertaken a three year course and the point that the course had not been notified by ARCUK to Europe in accordance with Article 7 substantiated by inclusion with that complaint were the relevant pages from the 1992 M. Sc. PEL prospectus.  

       The response from the Commission in 1997, stated that course the Plaintiff undertook ' did not meet the requirements of the Directive for the award of that Diploma.'  

       Legal redress  

       I took to seeking legal advice with a view to an action against the Polytechnic of East London (later the University of East London ) for Breach of Contract as my course was defective had been unfit to train one to qualify as an Architect. I had three firms of Solicitors. My 1st wrote to the college and the RIBA about the recognition of my course.  

       The RIBA stated that the course had RIBA exemption if it were passed by the student but no membership of the RIBA is possible without ARCUK recognition of the course under the of Architects Registration Act.  

       My 1st Barrister called Alan McCormick spent 3 years writing to the RIBA and later ARCUK asking about the recognition of my courses but he himself could not bring himself to mention the Act of Parliament, ARCUK or the Architects Directive to me in any of his opinions. Another Barrister was put on the case by my 3 rd set of Solicitors called Jason Copell from the Prime Minister, Tony Blair's Chambers, he like Mr. McCormick could not mention the Directive or the UK legislation on Architecture in his opinion and he quashed my legal aid after referring to the RIBA letters stating my course to have RIBA exemption. This left me with no choice but to either give up or go to Court myself as a Litigant in Person, which I did by issuing a Writ in the High Court in London in November 1996. My Statement of claim was that the Polytechnic/University of East London had failed to have proper and adequate United Kingdom and European Union recognition and did not have therefore RIBA exemption for my course.  

       Except for one letter from Mr. G. McLellan, the Assistant Registrar of the ARB, formerly ARCUK, dated 30th September 1997, to PEL's solicitors, there were no documents in the Polytechnic available in the discovery of documents stage directly to or from ARCUK.  

       I wrote a letter to Ms. Mary West, the ARCUK Education Secretary, with a summary of the M. Sc. degree course and the 1 year Diploma course, similar to the my complaint to the Commission, with comparison to the content of the RIBA Part 2 examination, the pre-existing Diploma course, the European Credit Transfer System for Architecture courses set up under the ERASMUS program, and Article 3 of the Directive. The questions asked, in blue, and the responses, in blue and bold, are below with comments of mine;  

       Question 1. As the Polytechnic/University staff represented the year described in year 2 above as also being a final year of the Diploma in Architecture course can you let me know on what particular date did A.R.C.U.K., not the B.A.E., confer professional recognition on, as an amendment to the pre-existing Diploma in Architecture course, the two year study program outlined in years 1 and 2 above and if so on what date?  

       Answer 1. " ARCUK conferred formal recognition of the of the linked Diploma/MSc on 16th March 1994. This recognition was retrospective."  

       Retrospective recognition means that at all material times no such recognition could validly have happened and the Defendants were not in a position to operate as if it had.  

       Question 2. Did A.R.C.U.K. ever confer formal recognition on the title M. Sc. Architecture: R.I.B.A. Part II and if so on what date and for what purpose?  

       Answer 2. "ARCUK did not confer formal recognition on the title MSc Architecture: RIBA Part 2 except as a component of the Diploma programme ."  

       There was no reference in the Diploma course handbook or the Prospectuses supplied by the Defendants, to the title 'MSc Architecture: RIBA Part 2' in any way, or of it being a component of the pre-existing Diploma course, the statement appears to be incorrect.  

       "Question 3. How in your opinion or in the opinion of an A.R.C.U.K . or A.R.B. education expert;     

                 (a) Is the two year study program outlined above compatible, for exemption purposes, with the Part 2 examination of the R.I.B.A.?  

                   (b the pre-existing professionally recognised Diploma in Architecture course at the             Polytechnic/University of east London?  

                   (c) Is the two year study program outlined in years 1 and 2 above compatible with             the       European Credit Transfer System for Architecture courses set up under the    ERASMUS scheme?  

                   (d) Is the two year study program outlined in years 1 and 2 above compatible with            Article 3 of the Directive 85/384/EEC?  

       Answer 3  (first sentence). " As has already been explained the Validation Panel considered the M.Sc. in the context of the third year Diploma program and recommended its acceptance to the Board."    

       No such statement was made to myself or my Solicitors in any of the previous correspondence from ARCUK/ARB that it was 'previously explained that the validation Panel considered the M Sc. in the context of the third year Diploma programme and recommended it's acceptance to the Board', the board in question being the then Board of Architectural Education, ( B.A.E.) not the Architects' Registration Board (A.R.B.). The first part of the sentence is incorrect and the remainder unclear as it does not state that it was recognised by the Council. The statement is implying in effect that I had to undertake a period of study consisting of an M. Sc. year followed by a Diploma year followed by another MSc year of an unspecified course content.  

       Answer 3  (second sentence). " I am afraid I cannot comment on the European Credit Transfer System for Architecture courses set up under the ERASMUS scheme."  

       It was very surprising that the Education and Admissions Manager for the Statutory body for Architects in the United Kingdom could not comment on the European Credit Transfer System for Architecture courses set up under the ERASMUS scheme.  

       Answer 3 (third sentence). " Provided that the M. Sc. was preceded by the awarding of a recognised Part 1 qualification and followed by the awarding of the named and linked Diploma in Architecture the qualification is compatible with the Directive ."  

       The M. Sc. degree was not notified to Europe under the Article 7 and could not be accepted as one of the three years that I had to undertake. The installation of the professionally unrecognised M. Sc. year as a 'part of the Diploma course' or 'linked' to the Diploma course, out of phase with the academic year of the pre-existing Diploma year, effectively prevented me from completing the necessary course work of the pre-existing Diploma course to comply with Article 3 of the Directive. The remainder of the statement 'the qualification is compatible with the Directive' is in complete contradiction with the statement from the Commission, which read 'Your course did not meet the requirements of the Directive for the award of that Diploma' one statement is correct and one is incorrect.  

       Question 4. Did A.R.C.U.K. communicate to the European Commission and the other European member states, in accordance with Article 7 of the Directive 85/384/EEC, a new course title representing the course  outlined in years 1 and 2 above such as M. Sc. Architecture: R.I.B.A. Part II?  

       Answer 4. "The name of the qualification communicated was the "Diploma in Architecture". It was not necessary to communicate any change to this title ." Article 7.1 of the Directive paragraph 1 states " Each Member State shall communicate as soon as possible, simultaneously to the other member states and the Commission, the list of diplomas, certificates and other evidence of formal qualifications which are awarded within its territory and which the criteria laid down in Articles 3 and 4, together with the establishments and authorities awarding them."  

       The M. Sc. degree certificate I passed in December 1991 and the title "M. Sc. Architecture: R.I.B.A. Part II" that I was failed as a final year end of course certificate, were not notified under the 1st paragraph of Article 7.1.  

       Article 7.1. Paragraph 3 of the Directive states " Each Member State shall likewise communicate any amendments made as regards the Diplomas, certificates and other evidence of formal qualifications which are awarded within its territory, in particular those which no longer meet the requirements of Articles 3 and 4."    

       The Commission agreed that my course did not meet the requirements of the Directive for the award of the Diploma. The course did not meet the requirements of Article 3 in terms of the course content and in my case it did not meet the time element and employment requirements of Article 4.  

       It was not a change to the title that needed to be communicated, but that the M. Sc. degree and the additional year for the Diploma constituted an amendment to the Diploma certificate that no longer met the requirements of Articles 3 and 4.  

       The statement means that ARCUK did not comply with their responsibilities in respect of European recognition of their course validation and the my course was never notified so that each member state, the Commission and the Advisory Committee on the Education and training in the field of Architecture could accept it as a proper course.  

       Question 5. Did A.R.C.U.K. communicate to the European Commission and the other European member states, in accordance with Article 7 of the Directive 85/384/EEC, an amendment to the pre-existing Diploma in Architecture course at the Polytechnic/University of East London to the course outlined above, as there is no provision under Article 3 of the Directive for Computer Aided Design in Architecture ?  

       Answer 5. "Please see answer to question number 4 ."  

       The ARB failed to answer question number 5.  

       Question 6. I was a former part-time undergraduate student, according to the regulation with regard to that type of student published in the U.K. list of Architecture courses in the Official Journal of the European communities, how would I be able to pass after only 2 years of study on the course outlined above when that regulation states that 3 years of study are required?  

       Answer 6. "The completion and awarding of the Diploma brings the course in line with EC requirements "  

       The ARB failed to answer the Question. It was not in dispute that the pre-existing Diploma course studied by a part-time student over three years meet the requirements. The problem is that the M. Sc. degree + additional year of the M. Sc. Design Unit or one year Diploma course that did not comply and the statement is incorrect. The Commission stated that my course did not comply is in contradiction to this point. Question 7. As I was required to undertake 3 years, either part-time or full-time to comply with the regulation referred to in Question 6 above, can you suggest what course combination would have been appropriate to meet that regulation.  

       Answer 7. "The combination of the M.Sc. Architecture (Computing and Design) and the Diploma in Architecture programmes would have satisfied the requirements."  

       It was not in dispute that the pre-existing Diploma course studied by a part-time student over three years meets the requirement of the regulation and the Directive, however my course did not meet the requirements of the Directive, therefore the answer also appeared to be incorrect or else it implied that I had to do the M. Sc. degree and then all of a 3 year pre-existing Article 3 compliant Diploma course.  

       Question 8. I have a copy of the A.R.C.U.K. regulations published in May 1989 which has an addendum slip added dated January 1994, were there any other updates to that publication between May 1989 and January 1994?  

       Answer 8. "There were no updates to the ARCUK regulations between May 1989 and January 1994. "  

       I asked for some clarification from the ARB (formerly ARCUK) in a letter, dated 11th May 1998, to confirm that it was my understanding that (a) the M. Sc. Architecture course is merely an add on to the Diploma in Architecture course and (b) the M. Sc. degree does not, in its own right, entitle the holder thereof to any exemption from the whole or any part of the RIBA Part 2 examination.  

       The reply from the ARB, dated 25th June 1998, stated " The MSc in Architecture is a component of the Diploma programme and it is the Diploma that is the recognised qualification."  

       Answer 2 above states that the title 'MSc. Architecture RIBA Part II' which I failed was not a recognised title but only a component of the Diploma course, however the college had kept up a pretence with me that I was in a final year situation and that the title represented that final year assessment.  

       The letter quoted above states that the M. Sc. in Architecture, the degree it is taken to mean, January until December 1991, is a component of the Diploma programme, yet it has no professional recognition elsewhere in its own right because it not listed in the Official Journal of the European Communities as evidence of a formal qualification.  

       The Diploma was only validly available to me on foot of three years of the pre-existing Diploma course as that course complies with the ARCUK education policy detailed below and the Directive. My M. Sc. degree and the additional year did not meet those requirements.    

       The then Head of School, Christine Hawley wrote to Mr. John McGinnety, the Pro-Rector at West Ham, dated 2 June 1993, it was written some 6 months after I had left the Polytechnic/University and after Christine Hawley had received a letter before action written by Speechlys solicitors on my behalf. It is important to note the position of Ms. Hawley on the ARCUK working group on the requirements of courses in keeping with Article 3 of the Architects Directive. The memorandum states "In response to the letter concerning the failure of John Cavendish, I would like to make the following points: John Cavendish was failed on academic grounds. His work was considered by both internal and external examiners to be unarguably below the standard required at Diploma level ."  

       I was failed because the teaching of the course did not meet the requirements of the Architects Directive and the ARCUK objectives. I could not be validly passed also because I was required by regulation to undertake a three year Diploma course and the one year Diploma course in addition to the professionally unrecognised M. Sc. degree was not a three year course, I could not be passed regardless of what work I attempted.  

       The second paragraph states "1. ii) The student had been warned on several occasions in writing that his performance was unsatisfactory and that it was likely to lead to failure. The teaching staff and the School made it quite clear that he was a very weak student ."  

       The letters from Mr. Henderson final year tutor, from the onset of the additional year were to prepare this as a defence to breach of contract and to condition me for the constructed failure which was the option of the staff rather than to tell me the truth about the nature of the course I needed to undertake to be able to validly pass, i.e. a three year course which met the requirements of the Directive and ARCUK objectives.  

       The School published samples of my B. Sc. Architecture undergraduate work in the Polytechnic of East London Annual Review 1990, a document not disclosed in Discovery by the Defendants, and published samples of the Plaintiff's M. Sc. degree work in the 1992 - 3 M. Sc. Prospectus, published in March 1991, an evidential contradiction to the statement that I was a 'very weak student' which is an unjustified and injurious assessment based on an invalid course which has been damaging to my work possibilities.  

       Ms Hawley's point 2 stated "2. I) The decision for the R.I.B.A . to validate the course was made by the Course Changes Committee and endorsed by the Director of Education, Peter Gibbs Kennett. All correspondence concerning the matter has been copied to Gerry Miller. Alan Palmer whom John Cavendish spoke to is the main point of contact within the R.I.B.A. for public enquiry and for clarifying rules and regulations, he is not responsible for validation. I suspect lines of communication within the R.I.B.A. may not be as efficient as they might be."  

       The unilateral R.I.B.A. validation, without ARCUK and E. U. recognition is invalid. The R.I.B.A. are not ARCUK and that the R.I.B.A. are a subordinate body to ARCUK because they were only a nominating body to ARCUK but not all of ARCUK. The then Head of the School of Architecture, who was a member of the ARCUK working group which formed an education policy based on the Directive, made no reference to the ARCUK/RIBA visiting board of October 1992 with regard to external validation for both years of the M. Sc. + 1 additional year for the Diploma or about European standards, on or about the time of the ARCUK working group report. The R.I.B.A. were also prepared by issue of a letter to validate the M. Sc. course as a part of the Diploma course in reverse, retrospectively.  

       Point 2. ii) states "The M. Sc. Design Unit is the second Year of a route (starting with the M. Sc.) that most definitely has R.I.B.A. part II exemption."  

       The R.I.B.A. Part II examination is one that is recognised by ARCUK and throughout Europe under the Directive, the M. Sc. and the additional year were not recognised by ARCUK at all material times, even at the time that the memorandum was written, and never met the requirements of the Directive or ARCUK objectives. It was not equally approved to the R.I.B.A. Part II examination and therefore did not have R.I.B.A. part II exemption. Christine Hawley's statement to the Pro Rector was incorrect.  

       The first paragraph of Christine Hawley's point 3 states " John Cavendish's description of the mechanics and status of the course is confused. An architectural Diploma course lasts 2 years and its structure and content are defined for a 24 month period. The route that John Cavendish took offered an initial 12 months that was substantially different from the conventional Diploma 1st year. (the first year he spent studying for MSc C.A.D.)"  

       The M. Sc. degree was not notified to the Commission and the other member states it has no value in its own right as a professionally recognised certificate. It does not count in European terms as one of the three years I had to undertake. As I was a former part-time undergraduate at the that School of Architecture it is reasonable to assert that Christine Hawley would have been aware that as such I was required to undertake a three year course either part-time or full-time, considering that the memorandum is specifically about myself and that she had access to the student files. Christine Hawley's statement that a Diploma course lasts 2 years is only for full-time students and did not apply to myself and she did not make this known to the Pro-Rector.  

       The second paragraph of point 3 states "The second year in terms of structure and assessment is identical to the 5th year in the Diploma course, the academic emphasis (not standards) are different because the course aims to utilise the specialist skills that students have acquired in  the previous year. This was clearly explained to all those intending to pursue this route ."  

       The second year was not the same in terms of structure, assessment or academic emphasis. The second year of the pre-existing Diploma course includes Contextual and Technical studies as does the first year that includes lectures seminars and tutorials for those subjects over a full-time week of attendance. The second year of the pre-existing Diploma course involved at least one design project with a detailed technical submission (building technology) there was no teaching in of this in my final year and it did not include such a detailed technical submission.  

       The additional year to the M. Sc. degree did not consist of the teaching of Contextual or Technical studies. The design projects were conducted at home and required a demonstration of computer modelling skills. The pre-existing Diploma course substantially met the requirements of the Directive and ARCUK objectives. The M. Sc. and the additional year did not. Christine Hawley's statement that the structure and assessment of the additional year was identical to the second year of the pre-existing Diploma course was incorrect and explanations were not clear but confusing.  

       The third paragraph of point 3 states "The 2nd year cannot simply be labelled a Dip. Arch because in its entirety it differs in academic emphasis, and until a suitable title were found, it was felt perfectly acceptable to simply offer R.I.B.A.  part II. (Professional recognition rests on acquiring part II not a Diploma)."  

       ARCUK stated in one of their responses that they recognised a course in terms of the title of the award. The Defendants had no fixed title for the M. Sc. additional year therefore it could not be recognised by ARCUK given their own method of recognition. The remainder of the sentence claims that recognition rests with acquiring Part II not a Diploma.  

       The list of United Kingdom Architecture certificates published in the Official Journal of The European Communities, shows that the Part II examination of The R.I.B.A. is awarded by the R.I.B.A. and the Diploma in Architecture of University of East London is awarded by the University of East London and that the University of East London do not have a separate certificate such as Part II or R.I.B.A. Part II to award. Professional recognition at the University of East London rests with acquiring the Diploma not RIBA II. This part of Christine Hawley's statement is incorrect.  

       Paragraph 4. i) stated "The M. Sc. Design Unit started 4   months after the normal academic year as it was co-ordinated with the M. Sc. timetable. During this 4 months the academic standards committee and review and validation deliberated as to whether this post M. Sc. year needed separate validation. The school had consistently argued that the structure, content (albeit that there was a difference in academic emphasis) academic standards and method of assessment were identical to the existing Diploma course and it did not require separate validation. "  

       Separate validation was needed because my course constituted an amendment to the Diploma certificate at that college and it needed to be communicated by ARCUK (now the Architects Registration Board - ARB) under Article 7 of the Architects Directive.  

       A memorandum from Haydn John, Registry, dated 17 March 1992, begins the second paragraph "Given the recent validation of the '2nd year' route for the M. Sc. students," indicating that there was internal validation for the second year even though ARCUK and the EU were unaware of the my new course.    

       Paragraph 4 ii) states "the Dean of Academic Standards and the Chair of Academic Standards committee conceded this point but well after the normal academic year (Sept.-July) had started. "  

       The internal validation referred to occurred in March 1992, after the start of the academic year September 1991 - July 1992 had begun.  

       Point 4 iii) states "The School's course handbook must be printed and distributed at the start of the academic year and in September we were not allowed to include an insertion referring to the post M. Sc. design Unit for reasons already described ."  

       The reasons were not already described, the statement was incorrect, the Diploma course handbook I referred to was the September 1992 - July 1993 handbook which had no inclusion of a reference to the one year Diploma course except for a statement in the introduction that read "The School also offers a number of M. Sc. Architecture courses which carry exemption from RIBA Part 2, and a part-time course which prepares students for the RIBA Part 3 Examination, details of which are not included here."  

       The Handbook in question was not the September 1991 - July 1992 pre-existing Diploma handbook published before the supposed M. Sc. Second year internal validation, but for the year after and published some seven months after that misinformed internal validation of March 1992. Without the inclusion of the M. Sc. Design Unit operation and assessment there were no assessment regulations for the final year which makes the internal validation suspect.  

       Point 4 iv) states "The students who entered the design unit and started in January were verbally told that the structure and method of assessment was to be identical to that of the Diploma course and their attention was drawn to the regulations in the course handbook. "  

       The Students were verbally told a number of things, about the final year, but their attention was not drawn to the Diploma course handbook or to the regulations contained it and were not presented with copies of the Diploma course handbook as they were also told by Mr. Henderson the 1 year Diploma course tutor in February 1992 that they were 'not actually on the Diploma course'. The statement is incorrect.  

       Point 4 v) states "John Cavendish's positive assertion that the Schools course regulations 'deny linkage' with this course is overblown, it is simply not mentioned ."  

       The quoted paragraph from the Diploma course handbook "The School also offers a number of M. Sc. Architecture courses which carry exemption from RIBA Part 2, and a part-time course which prepares students for the RIBA Part 3 Examination, details of which are not included here" speaks for itself as recognition by the RIBA is implied but no course documents for the final year existed.  

       Point 5 states "The comments regarding fee level was ultimately the province of Registry but had absolutely no bearing on the outcome of the assessment."  

       The comments were not about fee level but about the fact that the fees had not been set and the staff had not allowed registration to take until ten months of the year were over and the college had not accepted fee payment from my L.E.A. until the course was over and turned down an appeal in January 1993 after the repeat year possibility had started and over three months after the lectures for the Professional Practice had begun in September 1992 preventing a proper repeat of that course.  

       Point 6 states "John Cavendish knew that his failure was the result of academic inadequacy and that there are no grounds to appeal against academic judgement.   It should be made quite clear that the degree of failure was so substantial that a referral was never considered appropriate. One assumes that his pursuit of a regulatory or administrative error will give him grounds to ask for an appeal.   However, unless the administration, method of assessment or teaching could be proven to materially affect the standard of his work, the existing decision will still remain.    

              It will be very straightforward to demonstrate that John Cavendish was taught and assessed in a manner identical to others on the course and that the academic criteria were unequivocally articulated. Gerry Miller has copies of all advisory notes that were sent by his tutor.  

       If you wish to discuss this matter further please do not hesitate to contact me ."  

       The memorandum was written after I had sent a solicitor's letter seeking legal resolution with PEL and I was not thereafter concerned with an appeal. I wanted the restoration of my finances so that I could undertake a course that had lectures on the Design and Construction of buildings, assessment regulations and course documents in compliance with the Directive.  

       Mr. Haydn R. John of Academic Registry, dated 21st July 1995, wrote to Mr. Alan Ingle, who was the 'Clerk to the Governors', the first two paragraphs gave an outline on my M. Sc. degree year and how the Defendants also gave to the plaintiff, in lieu of fees, work giving tuition to undergraduate B.Sc. Architecture (hons.) students, C.A.D. tuition for the small part of their Technology component, computer literacy, during the Spring of 1991, due to grants not being available to any Part 2 students in the U.K., at the onset of the course, January 1991 - March 1991, but the remainder of the third paragraph is of particular importance, which reads;  

       "There is one further point which may be relevant regarding the title of the second year of Mr. Cavendish' course. This was the first year that this route was available and I think that the Department may have referred to it initially as 'Year 2 of the Master's. No such course was validated and the students could not be enrolled on Year 2 of a one-year course, so all students were enrolled on the Diploma course. As you are aware, this route became established until the current structure of the Masters as an 'add-on' to the Diploma commenced. Furthermore, this allowed students who were otherwise eligible to secure an LEA award, as did Mr. Cavendish. Had the route been a continuation of a Master's course, a mandatory award would not have been possible. In any case, I cannot see that the precise title is a major issue, as the students were aware of the Department's efforts to secure a 'year 2 route' to the R.I.B.A. part II, in order for students not to have to undertake a full, two-year Diploma course on top of the Masters. They may have seen it as separate from the Diploma to some extent because they were out of phase in timing, as mentioned above, but no other student in Mr. Cavendish' cohort raised any query about this, as far as I am aware ."  

       The students were not aware of the Department's efforts to secure validation they believed throughout most of the course that it had been validated. The precise title matters because ARCUK and Europe recognise a course in terms of the title of award. The college had no precise title for the M. Sc. + the additional year so it could not be recognised by ARCUK and Europe, or even the RIBA. The supposed ARCUK validation was retrospective from March 1994 back to January 1991 so that at all material times the courses had no ARCUK validation.  

       The M. Sc. + the additional year failed to meet the requirements of the Directive and the ARCUK objectives of it's 1992 Education Policy. At the ARCUK/RIBA/CAA visiting board of October 1992 there were no M. Sc. + additional year, or one year Diploma documents put forward for validation. Mr. John states that the year 2 of the Masters, the additional year or the M. Sc. Design Unit was never validated so students were enrolled as Diploma students that helped with grant applications.  

       *       *      *      *      *      *  

       As my case got closer to the High Court trial stage the ARB applied for a Public Interest Immunity Order to prevent documents between PEL and ARCUK being produced for the Court, their application failed and what transpired was the situation that my course had not been presented in any documented way to the ARCUK Council on the 16 th march 1994 or at any other time. There were 'no course documents available when I was failed for M. SC. Architecture RIBA Part 2. So no ARCUK recognition was possible and no communication ever occurred about my course under Article 7 by ARCUK/ARB.  

       The minutes of the ARCUK council meeting of the 16th March 1994 show that the pre-existing Articles 3 and 4 compliant Diploma course was recognised my course was not detailed but it was not the only unrecognised course in Architecture, 2 other colleges and the Prince of Wales Institute of Architecture were noted at that time as not having ARCUK recognition and this information was available to my trial Judge with my case documents.