Court of Appeal provides guidance to UK students contemplating judicial review

Universities will welcome the recent guidance provided by the Court of Appeal to students contemplating judicial review or/and a complaint to the Office for Independent Adjudication (OIA).

Background

The Court of Appeal handed down judgment on Tuesday in the related cases of R v St George’s, University of London and R v University of Leicester [13.11.2018] (the Universities).

The Universities had appealed against the basis upon which the lower court had granted stays to the claimants’ judicial review proceedings (JR).

The Judge had given detailed guidance to students as to the timings and procedure to be followed where they were considering taking a complaint further. He sought to address uncertainty as when it was appropriate to pursue JR or a complaint to the OIA and how to proceed once such proceedings had been commenced.

The Universities submitted to the Court of Appeal that the guidance was overly prescriptive and would lead students to inappropriately issue JR, thereby undermining the OIA scheme. The Judge’s guidance also interfered with statutory limitation, effectively placing student claimants in a different position to other JR claimants.

Court of Appeal decision

The Court of Appeal agreed with the Universities: the OIA is a suitable, quick, cost-effective alternative to JR. JR should only be pursued in the last resort.

By the time a student decides to make a formal complaint, he/she should understand the reasons for the university’s decision, so they should be in a position to understand whether the OIA is the correct forum. The OIA’s ambit and powers are public and a potential complainant should be aware of them.

If a student is uncertain whether to pursue JR, they should write to the university to put them on notice of the complaint and intention to pursue JR, so that if the OIA procedure does not provide what they want, they will have protected their position in respect of limitation.

Comment

In overturning the guidance given at first instance, the Court of Appeal has effectively substituted it with its own less prescriptive guidance to students:

1. Make sure you understand your complaint and whether the OIA is the correct forum.
2. If you are still unsure if the OIA is the correct forum, you should pursue the complaint with the OIA anyway, protecting yourself against a limitation defence should you later wish to pursue JR.

Universities and other higher education institutions will benefit from the clarification that students should pursue OIA complaints in the first instance. The benefits of the OIA over JR apply equally to both students and universities: speed and cost. In particular, universities will avoid the substantial legal costs involved in JR, even where those proceedings are stayed pending an OIA outcome and even where permission to pursue JR is refused.