2.4.4 Marking the EQE answer papers fairly

The DBA has repeatedly invoked the principle of fair marking. In D 7/05 date: 2006-07-17 (OJ 2007, 378) the DBA deemed that details of the marking of Paper D include sufficient sub-division of the maximum achievable mark and the candidate's overall mark into sub-marks, and an indication of the substantive and legal issues for which those sub-marks were awarded. In producing schedules of marks there had to be a trade-off between their purpose of ensuring uniform marking (Art. 16 REE 1994) and the need also to allow for fair marking of answers which deviated from the scheme but were at least reasonable and competently substantiated. The schedules therefore had to leave some room for manoeuvre and – merely – be sufficiently detailed to constitute details of the marking within the meaning of R. 6(1) IPREE 1994 (cf. R. 4(1) IPREE) allowing candidates to verify, on the basis of the documents published or made accessible, whether the marking of their answers infringed marking principles the respect of which was subject to review by the DBA. See also in this chapter V.C.2.5. and e.g. D 11/07, D 23/08, D 8/12 and D 13/17.

D 6/07 and D 7/07 were among a number of appeal decisions concerning paper C. A large number of candidates had taken as the starting point for their attack on the claims a document which the examination committee did not consider to represent the closest prior art and had been awarded no points in this regard. The Examination Board took the view that, in keeping with long-standing practice, in this situation some credit should be given for properly drafted problem and solution approaches. Given the lateness of the proceedings and the impossibility of re-marking all the papers, it decided, as an exceptional measure, that the fairest option would be to award ten additional points (being the maximum number possible) to all candidates having sat the paper. The DBA held first that the awarding of no points by the examination committee infringed the requirements of R. 4(2) and (3) IPREE 1994: the "fit to practise" criterion required the examiners in marking the individual parts of a candidate's answers not to disregard their merit in the context of the whole answer paper (D 3/00, OJ 2003, 365) and the need to allow for the fair marking of answers which, although deviating from the marking scheme, were nonetheless reasonable and competently substantiated (D 7/05 date: 2006-07-17, OJ 2007, 378). The board further ruled that, under Art. 7(3) REE 1994, it fell to the Examination Board to award the grades "pass", "fail", or "compensable fail" and formally to decide whether the whole examination had been passed or not. Its powers did not extend to the preceding marking of candidates' individual papers on a scale of zero to 100, and therefore the alteration of the marks awarded by the examination committee (in accordance with Art. 8(b) REE 1994 and R. 4(1) IPREE 1994) by the blanket addition of ten marks per paper had been ultra vires. The abstract awarding of marks without regard to the "fit to practise" criterion of R. 4 IPREE 1994 in the individual candidates' examination papers infringed the principle of objectivity as well as Art. 8(b) REE 1994 and R. 4 IPREE 1994. In conclusion, the DBA ordered a new marking of paper C of each appellant in accordance with R. 4 IPREE 1994, with the ten additional points already awarded to be retained by the appellant.

The candidate's different choice of the closest prior art from that of the examination committee was also in issue in D 14/17, D 20/17 and D 25/17. Referring to D 7/05 date: 2006-07-17 (OJ 2007, 378) and D 12/82 (OJ 1983, 233), the DBA again highlighted the examiners' obligation to allow for fair marking, which had its basis in the "fit to practise" criterion of Art. 1(1) REE.

In D 13/17 the DBA stressed that Paper A had a particular structure in that it was based on a single set of facts which meant that a wrong answer to one part was very likely to result in the other parts being wrongly answered too. That had to be taken into account when devising a marking scheme, as did the applicable regulatory requirements. In particular, R. 6(1) IPREE provided that each answer paper was to be marked on a scale from zero to 100; it said nothing about deducting marks. There was much to suggest that the marking had to start from zero, with marks then being awarded for each correct answer or partial answer and added up. Especially given Paper A's structure, a marking scheme that allowed more marks to be deducted overall than were achievable in total was essentially untenable if the requirement for fair marking established in the case law was to be met. A different conclusion could, if at all, be reached only if the possible deductions were not cumulative and instead applied to separate and mutually exclusive wrong or incomplete answers. With regard to the possibility that marks might be lost twice for a single mistake because, owing to Paper A's structure, a wrong answer to one part could have implications for the answer to another part, the board held that such a "double penalty" was not in keeping with the standards for fair marking set in the case law.