Student Contractual Relationship

ANALYSIS

1. Existence of the HEI-Student Contractual Relationship

Clark v University of Lincolnshire and Humberside 2000 View

- Clark, the leading case in this area, provides conclusive authority that there exists between a HEI and its students, a contractual relationship. More precisely, that contract is a contract to educate.

- The Court of Appeal in Clark View attempt to explain the circumstances in which claims for breach of contract are justiciable, that is, the circumstances in which the courts will be prepared to decide claims. Sedley LJ refers to matters of 'academic or pastoral judgement' regarding which the judgement of the courts would be 'jejune and inappropriate'. Such matters are, accordingly, currently non-justiciable in the courts, though quite what exactly these non-justiciable matters are, is unclear. Sedley LJ gives the example of a student disputing the class or mark he is awarded as being non-justiciable; however, there is likely to be uncertainty at the boundaries where the categories of 'justiciable' and 'non-justiciable' meet.

- See also:

Herring v Templeman 1973 View

- For a more information on the issue of justiciability, see the HEL text, Chapter 6, Appendix 1 and also the 'Method of Adjudication' page of this HEL Online Casebook.

It is significant that subsequent to the Clark 2000 [View] litigation, there have been out of court settlements based on alleged breaches of contract by HEIs.

In August 2002 the University of Wolverhampton paid Ј30,000 to a mature student who was dissatisfied with the quality of the Wolverhampton law degree (see Times, 1 August, 2002). The student's complaint included the University's failure to provide specific courses that it had advertised as being available in the course brochure - potentially a clear instance of failure to provide the customer with what he contracted for. Further, there were allegations of the University cramming up to 60 students into seminar rooms designed to seat 15, and of University examinations being heavily disrupted due to the University's alleged poor organisation and general incompetence. Again, these instances (if true) would amount to breach of contract because the prospective student clearly does not fork out on tuition fees, pass up employment opportunities, and undertake massive debt, in order to study under such conditions.

What is particularly significant about this case, which began trial at Walsall County Court but settled before judgement was delivered, is that it confirms that Clark 2000 [View] has firmly established the legal nature of the HEI-student relationship as being contractual. The alternative for the aggrieved student would be to frame the claim in terms of breach of common law duty of care, which, following the Barrett [link to come] and Phelps [View] litigation appears to be open to the student to argue on grounds of 'educational malpractice' or 'academic negligence' (see the 'HEI-Student Tort Law Relationship' page of this Casebook for detailed analysis of this common law duty of care). However, when one considers the particulars of the University of Wolverhampton case it appears likely that the claim was not framed in terms of breach of common law duty. This is because a Barrett [link to come]/Phelps [View] claim would allow a student to point to certain individuals guilty of negligence, and allege the HEI vicariously liable on their behalf. In the Wolverhampton case, the student's complaints were against the University as a whole, and not against certain individuals. Thus, it is likely that the claim was framed contractually, and, accordingly, that Clark [View] provided solid enough authority for the parties to settle the case without court judgement.

Moreover, the facts of this case are illustrative of what type of acts/omissions will constitute breach of the HEI-student contract, and of the nature of this contract, which does not appear to be any different from other consumer contracts: if a party does not do what it promised/what was bargained for, that party will be in breach of the contract and liable to pay damages. And while it is not clear how settlement in this case was calculated by the parties, the substantial figure of Ј30,000 is indicative of the value of these claims and the extent of the liability to which HEIs are now exposed.

2. Formation of the HE-Student Contract

Moran v University College Salford 1994 View

- This case shows how general contractual principles are applied to the HEI -- student contractual relationship. The HEI -- student contractual relationship is analysed by the Court of Appeal in terms of the established contractual doctrines of 'offer and acceptance', 'intention to create legal relations' and 'consideration'. Essentially, these three doctrines together constitute the formula with which it is necessary to comply in order to create a legally binding contract. It is shown how each element of this formula is met when a student goes through the UCAS admissions system and accepts a HEI's offer of a place to study at the institution.

- The HEI -- student contract is formed at the moment a HEI's offer of a place is accepted by the student, though at that point it is to be noted that the contractual obligations of the HEI will extend only to ensuring that the student is able to take up the place that has been accepted (a 'contract to matriculate'). Once the student has enrolled, those obligations will change. It is at this point that the contract can be referred to as a 'contract to educate'. There is debate over whether, in fact, there are two contracts between a HEI and its students, or whether there is a single contract which changes at the stage of enrolment (for discussion of this see the HEL text, 6.4 -- 6.6).

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3. Terms of the HEI-Student Contract

- For information on what are the likely sources of the terms of the HEI -- student contract (such as HEI prospectuses, HEI rules and regulations, etc) see the HEL text, 6.17 -- 6.19.

D'Mello v Loughborough College of Technology 1970 [link to come]

- This case offers some insight into