EXCLUSIVE: Students who had TCs cancelled among those hit by Kaplan SQE blunder

With all due respect, your analysis is erroneous. As rightly pointed out by Diane, firms would have relied on the fact at the relevant time in support of the exercise of their termination right. In other words, there is no basis of asserting that the trainee contracts have been wrongly terminated by the firms. Kaplan / SRA are on the hook if one is to initiate claims for damages.

I think it would work like this:

1. As others have said, the scope of the contractual right to terminate would need to be examined, but let’s assume for argument that the relevant term relied upon permits termination in the event a candidate failed the SQE.
2. As some others have said, no doubt the trainee would assert that the right to terminate had not arisen because the factual basis for the exercise of that right didn’t exist as we now know. The fact the right to terminate didn’t properly arise can most likely be established.
3. The next question is – what now? So the trainees hypothetical claim is presumably two fold – reinstatement/mandatory order or, damages in lieu with a normal compensation claim in the alternative (possibly but that has some difficulty in itself).
4. As has been alluded to, the difficulty with the reinstatement part isn’t insurmountable in practical terms but it may be that injunctive relief (which is ultimately how any practical non-money remedy is achieved) is not appropriate having regard to the circumstances of the firm, their change of position in reliance on Kaplan etc.
5. I’d be amazed if Kaplan weren’t brought in by either party as a Defendant through some form of contribution claim.
6. Kaplan’s liability would presumably be in negligent misstatement insofar as the firm and trainee are concerned, and also there would probably be scope for a contractual claim between trainee and Kaplan depending on whatever terms are in place.

The key point anyway is that whilst it would no doubt be pleaded and pursued, the order mandating reinstatement of TC does not invariably follow from proving that the right to terminate had not arisen. I suspect in terms that is what Drew is referring to. I don’t think anyone would say it’s impossible or not an argument open to the trainees.

Nice try.