Student's battle to get PhD from UWI hits another hurdle

A PhD student whose thesis was rejected by The University of the West Indies in 2014 has lost her legal battle in the Court of Appeal to have a Supreme Court ruling against her overturned.

The court upheld a Supreme Court ruling that the university was not the proper defendant.

The appellant Deborah Chen, submitted her thesis in  May 2011 but it was returned to her for correction.

She re-submitted in June 2013 and  was informed by the university in April 2014 that her work did not meet the requirement for a PhD but could be re-submitted for an award of an MPhil degree.

Following the rejection, Chen she indicated through her lawyers that she wished to exercise her right of appeal. 

But the university told her that she had exhausted her remedies as her appeal had been determined by the Board of Graduate Studies.

She was advised that she had the option of referring the matter to the visitor, an official in the UWI structure who addresses disputes involving staff and students. At the time, Queen Elizabeth was the visitor. 

Chen's lawyers then wrote to the Lord Chancellor of Great Britain in July 2014, requesting that a visitor be appointed from Jamaica.

The matter of a visitor remained unresolved until  August 2017 when the appellant was informed by the Office of the Governor General that the Queen had delegated visitorial function to Justice Paul Harrison, who is now deceased.

The matter was not addressed during Harrison's tenure and in May 2019 Justice Rolston Nelson was appointed visitor of the university after moving away from the Queen. 

The attorneys representing Chen wrote in June 2019 to the governor general informing him that although a new visitor was appointed they had received no communication as to Chen's case and were instructed to commence legal actions within 21 days if that state of affairs continued.

On April 3, 2020, Chen brought a claim in the Supreme Court against The UWI seeking constitutional redress.

She sought declarations that her right to a fair hearing within a reasonable time was breached and claimed she was entitled to damages.

The UWI applied to strike out the claim on the basis that the dispute between the parties involved questions relating to the internal laws of the UWI and duties derived from those laws and were therefore, within the exclusive jurisdiction of the visitor. 

The UWI stated that Justice Harrison was appointed to act as visitor and as a consequence Chen had an alternative remedy of referring the matter to the visitor.

Supreme Court Judge Grace Henry-McKenzie heard the matter and ruled in January 2021 that The UWI was not the visitor nor was the visitor a member of the UWI.

The judge said she agreed with the university that the appropriate party that the matter should proceed against was the visitor because that office perpetrated the delay.

Justice Henry-McKenzie argued that Chen had an alternative remedy in judicial review. She also said constitutional remedy, which was one of last resort, ought not to be used when there was available and adequate alternative remedy.

Chen was represented at the Court of Appeal by Queen's Counsel Georgia Gibson-Henlin and attorney-at-law Stephanie Williams, instructed by Henlin Gibson Henlin.

They argued several grounds of appeal and submitted that the judge erred in her decision that The UWI was not the proper defendant.

Gibson-Henlin argued that the university, as the institution responsible for establishing the office of the visitor and the visitorial mechanism for dispute resolution, must be the proper party to the claim.

She said as such, The UWI  had the responsibility to remedy any shortcomings in the system, which she described as being anachronistic.

Attorneys-at-law Christopher Kellman and Matthew Royal of the law firm Myers Fletcher & Gordon who represented the university, opposed the submissions.

“The circumstances that have given rise to this appeal are indeed unfortunate. A substantial amount of time was spent trying to ascertain who would exercise the powers of the visitor. Regrettably, this was not settled until 2017,” the Court of Appeal ruled this month.

The court pointed out that even if the claim had been amended to seek judicial review The UWI was not the proper party.

"The indisputable fact is that the identity of the visitor was always known. As stated previously, an order of mandamus could have been sought from the outset against Her Majesty the Queen."

The court agreed with the Supreme Court judge that it was the office of the visitor that “perpetrated the delay, despite the fact that the university by its Charter maintained this visitorial jurisdiction.”

"That is entirely correct. There is, therefore, no question of an amended claim proceeding against the UWI. In the circumstances, this ground has no merit,' the Court of Appeal said.

Legal costs were awarded in favour of The UWI. 

- Barbara Gayle

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