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Abramova v Oxford Institute of Legal Practice, High Court, 18 March 2011

30 March 2011
The issues

Failure to educate – further education – breach of contract – Supply of Goods and Services Act 1982 Section 13

The facts

The Claimant enrolled at the Oxford Institute of Legal Practice (OXILP) to take the Legal Practice Court in 2004 / 2005 intending to become a solicitor. She failed to pass. She brought a claim for breach of contract in relation to the educational services provided to her by the Defendant. She relied upon Section 13 of the Supply of Goods and Services Act 1982 which provided “in the contract of supply of the service where the supplier is acting in the course of business, there is an implied term that the supplier will carry out the service with reasonable care and skill”.

She pleaded additionally that there was an implied term in the agreement between her and OXILP and that the institute would exercise reasonably care and skill in relation to the giving of guidance to her concerning the taking of written examinations and the giving of feedback to her if and when the Claimant failed the examination.

OXILP did not dispute the first but did not accept that the additional terms were incorporated into the contract.

She alleged in particular that OXILP failed to ensure that the Claimant’s mock written exams in two subjects were marked by a member of staff of the Defendant; that they failed to give her any guidance with regard to examination techniques; that there were no meetings held with her at the end of the first and second terms for review of her progress; and that she receive feedback on her performance on the course only before the final examinations in May 2005; and finally that OXILP were in breach as to the manner in which the Claimant was given feedback. She alleged that she was not warned by teaching staff that she might fail the examinations and that she was not taught proper techniques for passing the written examinations.

The decision

In Clark v University of Lincolnshire and Humberside, Lord Wolfe had noted that Courts were not well placed to engage in questions which went to academic merit and in terms of evaluating academic judgments. He had commented that most claims brought in contract which amounted to a challenge to academic judgment would be struck out.

This case did not engage academic judgment in the sense that Lord Wolfe had discussed. The Claimant suggested the teaching was lacking in reasonable skill and care rather than basing a claim on a disagreement about the outcome. She did not suggest, as did the Claimant in Clark, that OXILP should have awarded her a pass.

There was common ground that there was a contract between the Claimant and OXILP. The Claimant paid a course fee and OXILP agreed to provide the course. Section 13 of the Supply of Goods and Services Act implied a term that the educational services would be provided with reasonable care and skill. The effect of that term was to imply a term that the educational services would be provided without negligence. The law recognised that in circumstances not involving contract, a claim for negligent teaching was, as a matter of legal theory, sustainable – Phelps v Hillingdon Borough Council.

The approach to a claim brought in contract and reliance upon Section 13 of the 1982 Act was, for all practical purposes, the same as for one brought in negligence. The standard was high. The Claimant would generally have to establish a breach of duty of contract which satisfied the Bolam test. The Bolam test did not always apply in all circumstances involving the alleged carelessness of individuals operating in a professional environment. See for example Connor v Surrey County Council. In Connor the Court of Appeal accepted that the Bolam test had not application in respect of the business of responding to complaints by a head teacher to a Local Education Authority. The Claimant alleged that her complaints as to the teaching by OXILP similarly did not call to be judged by reference to the Bolam test.

The Court disagreed. The allegations made by the Claimant required to be assessed by reference to the Bolam test. The claim was a failure to provide “appropriate tuition” and it was far from being a “gross case” in the sense referred to by Laws LJ in Connor.

The Claimant’s evidence was unsatisfactory. She was a witness who was ready to blame anyone but herself for her misfortunes. There were in addition times when the view of the Court of the Claimant was less than frank. There was no suggestion in the evidence that the self-marking of mock examinations was wrong or in any way unreasonable. To make that argument good would have required expert evidence. Nor was the Court persuaded that the teaching and the examination technique was inadequate or still less negligent. Nor was there any deficiency in the evidence in the availability of the quality of assistance following the Claimant’s first or second failing of two of the papers.

As to causation, had, as the Claimant suggested she should have been, there was still no realistic chance of her passing the course in that she did not display the aptitude necessary.

Claim dismissed.

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The content on this page is provided for the purposes of general interest and information. It contains only brief summaries of aspects of the subject matter and does not provide comprehensive statements of the law. It does not constitute legal advice and does not provide a substitute for it.

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