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	England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Chilab v King's College London [2013] EWCA Civ 147 (28 February 2013) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2013/147.html Cite as: [2013] EWCA Civ 147

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IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE CENTRAL LONDON COUNTY COURT
HIS HONOUR JUDGE BRIAN KNIGHT QC
7CF06067

		Rolls Building Fetter Lane London WC2A 2LL
		28th February 2013

Mr Justice David Richards :

Introduction

1. In 1999 Dr Salah Chilab commenced a two-year part-time course for an MSc in nuclear medicine at King's College London (KCL). Following his written and oral examinations in 2001, the examiners determined that he had failed but would be permitted an exemption for coursework on re-entry. Dr Chilab requested a review of this decision in accordance with KCL's internal procedures but, following a review, the Board of Examiners confirmed their earlier decision. Dr Chilab appealed and his appeal was in part upheld but not so as to entitle him without more to the award of an MSc. He was required to re-take a general oral examination and to re-submit a dissertation to be followed by an oral examination on it. Dr Chilab appealed to the Visitor of KCL but his appeal was dismissed in October 2002. In August 2006, Dr Chilab commenced proceedings in the Cardiff County Court, which were subsequently transferred to the Central London County Court. He claimed that he had been entitled to the award of an MSc in 2001 or alternatively that he had been deprived of the chance of qualifying for an MSc. He claimed damages for breach of contract or for breach of a duty of care on the part of KCL to give proper effect to the regulations governing the award of an MSc in nuclear medicine.
2. Following an 8-day trial as to liability in September and November 2010, HHJ Brian Knight QC in a reserved judgment dismissed the claim. This appeal is brought with the permission of Patten LJ given on a renewed oral application, Sir Richard Buxton having refused permission on the papers.
3. I should make it clear that Dr Chilab does not challenge the academic judgment of the examiners. His claim is based on an alleged failure to identify, interpret and apply correctly the relevant regulations.

The uncontroversial facts

4. Dr Chilab was born in Iraq in July 1955. He attended Baghdad Medical College and in December 1981 obtained a medical degree. He subsequently took a course in radiology and worked in the radiology department of a hospital in Iraq. In 1995 he and his wife came to the UK and sought asylum, obtaining full British nationality in 2004. Both he and his wife worked at Ealing Hospital and, after a course in radiology at Hammersmith Hospital, he was accepted as an honorary specialist registrar at the Royal Free Hospital, Hampstead.
5. In order to obtain a paid position in radiology, Dr Chilab was advised to obtain a Masters degree in nuclear medicine, which is a medical imaging speciality. He enrolled for the MSc course in nuclear medicine at KCL, as a part-time student for two years commencing in the 1999/2000 academic year. Assessment for the MSc course comprised five elements: two written examinations, coursework, a dissertation which was subject to an oral examination and a general oral examination. Dr Chilab sat the two written examinations in June 2001, handed in his coursework in August 2001 and took a general oral examination in September 2001. The examiners awarded the following marks to Dr Chilab:

Written examination 1: 49%

Written examination 2 : 52%

Coursework : 65%

Dissertation : 47%

General Oral examination:42%

6. Dr Chilab was notified that he had failed the degree. He pointed out that the marks on the first written examination had been incorrectly calculated and the mark was corrected to 51%. Dr Chilab also claimed that he had not been given an oral examination on his dissertation. This was accepted by KCL. As earlier mentioned, Dr Chilab was offered the opportunity of re-submitting his dissertation and being orally examined on it, which would be treated as a first attempt and not as a re-take, and he was offered a second opportunity to take his general oral examination. Dr Chilab chose not to re-submit his dissertation, nor did he re-take the general oral examination. Dr Chilab's position was that the marks which he had gained in 2001 entitled him to the award of an MSc.

The issues

7. An order was made for the trial of four issues as preliminary issues:

(a) Which of the regulations apply?

(b) Whether there has been any breach of such regulation.

(c) Whether the defendant is in breach of contract and/or any tortious duty of care to the claimant.

(d) Whether the claimant had suffered the loss of a chance to gain his MSc as result of being deprived of the opportunity to take his project oral examination and, if so, the percentage of such loss.

These were in substance all the issues going to liability.

8. Having determined the regulations which applied, the judge held that there had been no breach of those regulations by KCL in their refusal to award an MSc to Dr Chilab. There was therefore no breach of contract or negligence on the part of KCL and the fourth issue did not arise. The judge accordingly dismissed the claim.

Which of the regulations apply?

9. It might reasonably be expected that this would present no difficulty, except perhaps as a matter of interpretation of admitted regulations or perhaps a choice between alternative regulations, itself turning on the proper interpretation of the regulations. In fact, until at any rate a late stage in the trial, there was a great deal of factual confusion about this and a considerable volume of documentary and oral evidence was put before the judge.
10. The problem stemmed from the disorganised state of KCL's records, exacerbated by the significant delay on Dr Chilab's part in bringing his proceedings.
11. Various documents were put forward as possible candidates for the applicable regulations, none of them in a form which made it clear that they were, properly construed, the relevant regulations. All were, or appeared to be, extracts or summaries. None of them was clearly a relevant regulation. During much of the trial, this in turn led to confusion among counsel, the judge and, critically, the witnesses as to the status and significance of each document. It did not help that the witnesses were trying to recall, as best they could, the process for adopting regulations in 1999 and 2000 and how, if at all, these various documents fitted into it. On one thing, however, all the witnesses called by KCL were clear. Candidates were required to pass each element of the examinations and assessment and there is no suggestion that any candidate awarded an MSc in nuclear medicine in 2001 did not do so.
12. The discovery in November 2010 by Dr Chilab at KCL's archive library of the printed Regulations for Programme of Study for the academic year 1999/2000, when read with the equivalent printed regulations for the following academic year, greatly simplified things.
13. The examination and assessment of candidates for degrees are governed by a hierarchy of regulations. The overarching regulations are the General Academic Regulations which for the academic year 1999/2000 included the following provisions. Regulation 4.3 included:

"The conditions governing admission to or withdrawal from an examination and eligibility for an award are given in the General Regulations for Examinations and individual programme regulations."

Regulation 9 is headed "Approved Programmes of Study" and regulation 9.2 provided:

"A programme of study and its associated courses and regulations must be approved by the relevant Schools Committee and by the Academic Board before the programme may be offered. The Regulations for the programme of study must specify, which, if any, courses or combinations of courses which must be passed before a candidate is eligible for the award and which must be attempted in order to complete the programme of study."

Regulation 9.4.1 provided that the regulations for each programme of study should specify the duration of the programme in full-time and, where applicable, part-time mode.

14. There were further Academic Regulations for first degrees and postgraduate degrees. The latter, entitled "Academic Regulations for Postgraduate Students proceeding to the Degrees of MA, MMus, MRes, MSc" (the Postgraduate Academic Regulations), start with the following rubric:

"These regulations are to be read in conjunction with individual programme Regulations, the General Regulations for Examinations, the Regulations for the Conduct of Examinations and the General Academic Regulations".

Regulation 2.1 provided for full-time and part-time courses. Regulation 2.2 provided:

"The minimum length of the period of study and assessment methods shall be defined in the individual programme regulations".

Regulation 2.4 provided that "Schemes of examinations shall be prescribed in the individual programme Regulations". Regulations 5.5 provided:

"A candidate shall be examined in accordance with the provisions of the individual programme Regulations."

Regulation 5.9 provided:

"A candidate who fails an examination or element of assessment at the first attempt may, at the discretion of the School Board of Examiners, be reassessed on one occasion".

15. The General Regulations for Examinations made pursuant to the General Academic Regulations provided in regulation 3.1 that "To be admitted to a degree or other award a student must ….... (b) have successfully completed all parts of the examination prescribed for the award". Regulation 7.2 provided that "Assessment methods will be determined by the department(s) responsible for teaching the programme of study…..". Regulation 13 contained the procedures for reconsideration of decisions by the Board of Examiners and for appeals, which Dr Chilab invoked in 2001/2002.
16. The Postgraduate Academic Regulations also contained the following rubric:

"Note that a core marking scheme for College-based Masters degrees has been approved and will be effective in the Academic Year 2000/2001, this can be found in Appendix 5 to the Academic Regulations. Marking schemes for individual Masters degree programmes will be expected to be consistent with the provisions of the core-scheme with effect from this date. Marking schemes and regulations for individual Masters degree programmes are published by Schools as an appendix to these regulations".

This note and Appendix 5 to which I will return play a significant part in the case for Dr Chilab. At this stage the last sentence should be noted, which is not connected with the core-marking scheme approved for 2000/2001. Marking schemes and regulations for individual Masters degree programmes were published as an appendix to the regulations in a separate book, entitled "Regulations for Programmes of Study" (the Programme Regulations).

17. The Programme Regulations 1999/2000 contained on pages 27-28 specific regulations for the MSc in nuclear medicine, dealing with entry requirements, curriculum, duration of programme of study, examination, dates of examination, and method of assessment. The duration is stated to be one year for a full-term programme of study and two years for a part-time programme.
18. Paragraph 6, headed "Method of Assessment", provided:

"6.1 The pass mark for the written examinations, oral examinations and dissertation will be 50%. Continuous assessment will be awarded either a pass or a fail grade.

6.2 A student who fails any element of the assessment will be permitted one further attempt. Reassessment in the written and oral examinations will take place at the next scheduled opportunity. Resubmission dates of course work will be at the Examiners' discretion.

6.3 To be eligible for the award of the MSc, a candidate must have achieved an overall pass in each module."

Paragraph 6.4 and 6.5 prescribed higher weighted overall marks for the award of Merit and Distinction.

19. Given the structure of the various regulations and the provisions of regulation 9.2 of the General Academic Regulations and regulations 2.2, 2.5 and 5.5 of the Postgraduate Academic Regulations 1999/2000, as well as the notes at the start of the latter regulations, it might be thought that there was no room for doubt that the Programme Regulations 1999/2000 or their equivalent for 2000/2001 applied to Dr Chilab.
20. However, Dr Chilab's primary case, both in the court below and in this court, is that neither of these Programme Regulations applied to determine the results which were required for an award of an MSc in nuclear medicine at the conclusion of a part-time course in 2001. Instead, he submits that the marking scheme governing his MSc programme is shown on a single photo-copied page which he was given in November 2001 by an unnamed employee in the post-graduate department of the registry at Guy's Hospital, who told him that it represented the relevant marking scheme.
21. It is clear from the face of this document, known in the case as PIF(C), that it is a single page from a larger document. A full version of the document, though completed differently, was also in evidence and known as PIF(D). It is a five-page document headed "CAMS Information Sheet – New Programme of Study (PIF)". It is a standard form document which could be used for any degree programme and provided in summary form all or most of the salient information about the programme concerned. Both PIF(C) and PIF(D) had been completed with reference to an MSc in nuclear medicine. PIF(D) is signed and dated 26 April 2000, while PIF(C) bears no date. Box 16, which appears in both documents, is headed "Assessment Method" and states:

"(Please indicate which method will be used. If a range of options is involved, please give approximate figures. In the Tick column please tick if a pass in a particular category of assessment is mandatory in order to pass the programme as a whole)."

The box sets out a table with a number of columns relating to each of the assessment methods (unseen written examinations, oral examinations, dissertations and so on). Two of the columns are particularly relevant. One is headed "Tick if a pass is mandatory" and the other is headed "% contribution to final grade". Leaving aside an obvious error, the % contributions are the same in both documents. The critical difference is that in PIF(C) there are no ticks in the mandatory pass column whereas in PIF(D) there is a handwritten tick against each applicable assessment.

22. On the basis that PIF(C) represented the applicable marking scheme, Dr Chilab submits that he was entitled to the award of an MSc in 2001 because (i) his overall marks was over 50% and (ii) he was not required to pass any particular examination or other assessment method.
23. The judge found that PIF(C) was not the applicable marking scheme but that the Programme Regulations 1999/2000 governed the position.
24. In my judgment, not only was the judge fully justified in rejecting PIF(C) as the applicable marking scheme, he was clearly right on the evidence to do so. For the reasons already given, once the Programme Regulations printed as an Annex to the Postgraduate Academic Regulations are seen it is clear that neither PIF(C) nor PIF(D) were the applicable regulations, although it may well be that a completed PIF was used as the basis on which individual programme regulations were drafted. It is an internal form, not part of the regulations.
25. Dr Chilab is not in my judgment assisted by the confusion in the evidence given by KCL's witnesses or the change in KCL's own case on this. The confusion stemmed from the failure to produce the printed programme regulations, until Dr Chilab himself found them. An array of possible candidates for the applicable programme regulations were put to the witnesses and were again set out in the skeleton argument of counsel for Dr Chilab on this appeal. A closer look at them shows that, apart from the two PIF forms, they are all extracts from the programme regulations for 1999/2000 or 2000/2001, presented in two cases identically and otherwise in different formats. There is no solid basis for thinking that PIF(C) was or was ever intended to be the applicable regulation or even that it reflected the marking scheme. The absence of ticks was explained by one of KCL's witnesses: they could not be inserted electronically and therefore had to be inserted manually, as they were on PIF(D).
26. On the basis that PIF(C) is rejected, Dr Chilab puts two alternative cases. First, the applicable regulations were the programme regulations for 2000/2001, being those in force for the year in which he was examined. Secondly, there were no applicable programme regulations, so that the core-marking scheme in Appendix 5 to the Postgraduate Academic Regulations 1999/2000 applied.
27. On the first of these alternative cases, the fundamental submission for Dr Chilab is that the marking scheme for examinations taken in a particular academic year is governed by the programme regulations for that year. The relevant programme regulations for nuclear medicine for the two years in question were identical, save that the regulations for 2000/2001 refer to and incorporate the core marking scheme.
28. Dr Chilab relies on the fact that the programme regulations are published annually and apply to a particular academic year. He relies also on provisions in the various regulations. Regulation 5 of the Postgraduate Academic Regulations was headed "Examination" and regulation 5.2 provided:

"A candidate will be bound by the Regulations in force when s/he enrols"

I have already referred to regulation 5.5 which provided that a candidate should be examined in accordance with the provisions of the individual programme Regulations.

29. The General Regulations for Examinations provided in regulation 1.1 that a student "shall be entitled to be examined in accordance with such regulations as are current when the student enrols" and in regulation 2.1 that "Annual enrolment for a programme of study and its constituent courses include registration for the relevant examinations".
30. Other regulations provide for enrolment. Regulations 4.1 and 4.3 of the General Academic Regulations provided:

"4.1 Students registered to follow programmes of study or undertake research at the College are required to enrol annually according to the procedures laid down by the College.

4.3 Annual enrolment for a programme of study and its constituent course includes the registration for the relevant examinations".

Appendix 1 to the Academic Regulations contained definitions and explanations of terms used. Paragraph 8, headed "Registration and enrolment", provided:

"8.1 When a student has been admitted to a programme of study offered by the College or has applied successfully to undertake research at the College the student must register with the College for the programme of study or the research. The student registers by completing and signing an enrolment form. Registration is renewable annually, usually at the beginning of the Academic Year or on the anniversary of the commencement of the research, until the student has successfully completed the programme of study or research and any other prescribed conditions and is eligible for the conferral of the award in question.

8.2 Annual renewal of registration is undertaken by completing and signing an enrolment form and the process is known as (annual) enrolment. Special considerations may apply in cases where students are required to undertake study elsewhere, and these will be given in individual programme regulations".

31. Combining these provisions, it was submitted that as enrolment was annual, it was the regulations in force at the time of the enrolment for the academic year in which a student would be examined which governed the assessment and marking scheme.
32. In my judgment this analysis is not correct. The Programme Regulations for the MSc in nuclear medicine provided that it could be taken on a full-time (one year) or a part-time (two years) basis. Whether taken full-time or part-time, it was the same course leading to one set of qualifying examinations and other modes of assessments. If Dr Chilab's submissions were correct, it would mean that a student registering at the start of year 1 of a part-time course could find his examinations and methods of assessment altered at the start of the second year. If altered adversely to the student, this would be quite contrary to any reasonable expectation. Whether altered adversely or favourably, it would produce inconsistency between those who registered for the course on a part-time basis and those who registered on a full-time basis.
33. In my judgment, therefore, the Programme Regulations for 2000/2001 did not apply to part-time students starting the course in the 1999/2000 academic year. The Programme Regulations, by referring to the full and part-time programmes of study, were intended to apply fully to all those who started the course in the same year. It was indeed, as I understand it, common ground in the court below that it was the regulations in force when Dr Chilab first enrolled which were the applicable regulations.
34. The second alternative case for Dr Chilab, relying on regulation 5.2 of the Postgraduate Academic Regulations, depends on showing that there were no programme regulations for the MSc in nuclear medicine in force when he enrolled in 1999. In these circumstances, Dr Chilab submits, the only applicable marking scheme applicable to him was the core marking scheme set out in Appendix 5 which was stated to be effective for the academic year 2000/2001. I remain unclear as to what marking scheme would in these circumstances apply to the full-time students who took their examinations in the 1999/2000 academic year.
35. It might reasonably be supposed that if in fact Programme Regulations for a course had not been finally approved when a student enrolled, their enrolment would be on the basis that Programme Regulations for that year, once approved, would apply. It is not in issue that all the other applicable regulations were in force by the time students enrolled in 1999.
36. Two questions arise. First, when did Dr Chilab enrol in 1999? Secondly, what regulations were then in force?
37. Paragraph 8.1 and 8.2 of Appendix 1 to the Academic Regulations, which I have earlier quoted, stated that registration was effected by "completing and signing an enrolment form" and that "Annual renewal of registration is undertaken by completing and signing an enrolment form".
38. Dr Chilab's enrolment form for the 1999/2000 academic year, which is in evidence, was signed by him on 30 November 1999. On this basis, the Judge found that Dr Chilab did not enrol until that date.
39. Dr Chilab challenges this finding. First, he relies on KCL's admission in its defence that he enrolled in September 1999 and statements to that effect in some of KCL's earlier witness statements. However, later witness statements asserted that enrolment occurred in November 1999 and, in my judgment, the Judge was bound to find as he did in the light of Dr Chilab's enrolment form, unless enrolment was not to carry the meaning set out in Appendix 1 to the Academic Regulations.
40. Dr Chilab submits, secondly, that indeed the meaning of enrolment in Appendix 1 does not apply and enrolment in regulation 5.2 of the Postgraduate Academic Regulations is to be read as meaning the date when KCL became bound to accept the candidate on the relevant course, which at the latest would be the date of commencement of the course, being in this case 4 October 1999. In my judgment, the Judge was right to reject this submission. It is hard to see why "enrol" in regulation 5.2 did not carry the defined meaning. Dr Chilab cannot rely on a strict compliance with regulation 5.2 without himself being bound on the same basis.
41. As to the regulations in force, Dr Chilab's case on the evidence in the court below and repeated in this court, was that the Programme Regulations had not been approved before his enrolment. The Judge went through the evidence in some detail in paragraphs 24-44 of his judgment. His task was made difficult by reason of the absence until a late stage of the published Programme Regulations and because, not surprisingly in view of the passage of time, the contemporaneous documents, particularly attachments to letters and emails, were far from complete. On the evidence before him, the Judge found that the "structure" of the regulations was approved by 13 September 1999, that the relevant Programme Regulations were circulated in draft on 21 September 1999 and that some amendments were made to the draft regulations in the course of October 1999, following which they constituted the Programme Regulations and appeared in that form in the printed Annex of Programme Regulations.
42. Counsel for Dr Chilab on this appeal seeks to challenge these findings by rearguing the case by reference to detailed points in the evidence. In my judgment, the Judge's findings were clearly open to him on the evidence and none of the detailed submissions made on behalf of Dr Chilab undermines the findings.
43. It is submitted for Dr Chilab that an analysis of the contemporary documents establishes that the Programme Regulations were not approved until 1 November 1999. In terms of the final wording of the Regulations, that is correct but it cannot assist Dr Chilab since his enrolment was not until 30 November 1999. It is further submitted on behalf of Dr Chilab that there is no evidence that the published Programme Regulations were approved by any committee or person with authority to do so. Equally, however, there is no evidence that they were not so approved and it would be surprising if they had been published without proper approval. In the absence of any evidence to suggest that they were not approved, the court must proceed on the basis that they were duly adopted.
44. It follows that the Judge was right to find that the applicable Programme Regulations were those contained in the printed edition of the Programme Regulations for 1999/2000.

Whether there has been any breach of the applicable regulations by KCL?

45. The Judge reviewed the process whereby Dr Chilab's challenge and appeals were dealt with by KCL and concluded that the decision to require Dr Chilab to retake the general oral examination was consistent with paragraph 6.1 and 6.2 of the Programme Regulations. KCL's position before the Judge and on this appeal is that the Programme Regulations required a candidate to pass each of the examinations and other methods of assessment and, as Dr Chilab had, as he accepts, failed the general oral examination, he was not entitled to the award of an MSc.
46. Dr Chilab challenges the construction put on the Programme Regulations by KCL and accepted by the Judge. He submits that paragraphs 6.1 and 6.2 do not impose a requirement to pass each element of the assessment. He contrasts paragraph 6.3 which is clearly mandatory:

"To be eligible for the award of the MSc, a candidate must have achieved an overall pass in each module".

If paragraph 6.1 and 6.2 had similarly been intended to impose a requirement for a pass in each element of the examination, it would have used similar language.

47. Dr Chilab relies also on the core marking scheme contained in Appendix 5 to the Academic Regulations 1999/2000 which do not require a pass in each element of the examination. He further relies on the fact that paragraph 6.1 and 6.2 of the Programme Regulations for the 2000/2001 were in the same terms as those for the previous year but in the light of the express incorporation of the core marking scheme cannot be read as requiring a pass in each element of the examination. He submits that paragraph 6.1 and 6.2 in the Programme Regulations 1999/2000 should therefore be read in the same way.
48. I am unable to accept these submissions.
49. First, the terms of paragraphs 6.1 and 6.2 show that a pass in each element of the examination is required. Paragraph 6.1 provides for a "pass mark" of 50% in each written examination, oral examination and dissertation. Paragraph 6.2 provides that a student "who fails any element of the assessment" will be permitted one further attempt. Neither of these provisions makes any sense if a student is not required to pass each element of the assessment.
50. The suggested contrast with the language of paragraph 6.3 is not in my view persuasive. It is simply a difference in drafting. In the light of the terms of paragraphs 6.1 and 6.2, it was unnecessary to preface them by saying that to be eligible for the award of an MSc, a candidate must pass each element of the assessment. Paragraph 6.3 is an additional requirement. The elements of the examination and the modules are quite different. Each of the written examinations covered two modules and the general oral examination would or might cover all modules.
51. The core marking scheme in Appendix 5 was stated to apply with effect from the start of the 2000/2001 academic year. It did not therefore apply to the full-time students on the MSc course in 1999/2000. On the basis of consistent treatment of students, whether full or part-time, enrolled on the same course in the same year, I have difficulty in seeing how it would apply to the part-time students, although they would be taking their examinations in 2000/2001.
52. Assuming, however, that it did apply to the part-time students, it does not in my judgment affect the proper interpretation of the Programme Regulations. The provisions in Appendix 5 that "no mark of 39% or less in any element except where that element contributes less than 25% to the overall total" and for "marks of 50% or better in at least 75% of the elements which make up the degree programme" conflict with paragraphs 6.1 and 6.2 of the Programme Regulations. This of itself suggests either that Appendix 5 was not intended to apply or that Appendix 5 laid down minimum, but not maximum, standards, leaving the college free to impose higher standards for particular courses. This is consistent with the note at the start of the Postgraduate Academic Regulations that "marking schemes for individual Masters degree programmes will be expected to be consistent with the provisions of the core scheme".
53. The position would be no better for Dr Chilab if, contrary to his case at trial and contrary to the view which I take, the Programme Regulations 2000/2001 applied. The wording of paragraphs 6.1 and 6.2 of those regulations is identical to the equivalent paragraphs in the Programme Regulations for 1999/2000. The core marking scheme for 2000/2001 contains, as stated in regulation 5.2 of the Postgraduate Academic Regulations for that year, "minimum provisions".

Conclusion on the main appeal

54. For the reasons given above, I am satisfied that the judge was right to hold that Dr Chilab was required to pass each element of the assessment in order to qualify for the award of an MSc. Having failed the general oral examination, he did not therefore qualify. It follows that Dr Chilab's appeal against the judge's decision on issues 1, 2 and 3 must be dismissed and that issue 4 does not arise. If Dr Chilab had succeeded in establishing that he was not required to pass each element, it by no means follows that his claim would have succeeded but it is unnecessary to consider the issues which would then arise.

Appeals against other orders

55. Dr Chilab also appealed against two other orders. One appeal was against the order of the trial judge permitting KCL to amend its defence to plead reliance on the Programme Regulations 1999/2000, but Dr Chilab abandoned that appeal at the hearing before this court.
56. The other appeal was against an order for costs made by HHJ Bailey on 17 March 2009 when dismissing the applications made by both parties under CPR 24. He ordered the costs of both applications should be costs in the case.
57. The basis of this appeal is that new evidence has become available which undermines the judge's decision on costs. The new evidence is said to be the disclosure of certain documents, in particular some emails dated 30 April 2002, and the change in KCL's case as to the applicable regulations. It is suggested that disclosure of these matters at the time of the hearing would have shown that KCL's application was misconceived. It is further submitted that the change in the basis of KCL's case means that it has succeeded on a basis which is fundamentally different from that advanced at the hearing of the application for summary judgment. Dr Chilab boldly submits that a new order should be substituted by which his costs of the applications should be paid by KCL in any event.
58. In one sense it might be considered that the judge's order on costs was generous to both parties. As both applications had failed, a usual order might well have been that neither side should in any event have their costs. It cannot, however, be said that the judge's order was in any way outside the ambit of his discretion and it is an order which perhaps reflects the confused state of the evidence. If the new evidence on which this present appeal is based had been before HHJ Bailey, far from showing that KCL's application was misconceived, it would, in my judgment, have considerably strengthened it. I see no proper basis for interfering with the order made by the judge. As I understand it, Dr Chilab has not been given permission to appeal, out of time, against this order and I would accordingly refuse permission to appeal.

Lord Justice Hughes:

59. I agree.

Lord Justice Ward:

60. I also agree.