Higher education claims: Court gives general guidance on JR and OIA complaints

February 13th, 2017 by Jonathan Auburn

In three linked cases the Administrative Court has just given important general guidance on the relationship between judicial review proceedings and references to the Office of the Independent Adjudicator for Higher Education. The three linked cases were R (Zahid) v University of Manchester, R (Rafique-Aldawery) v St George’s, University of London, and R (Sivasubramaniyam) v University of Leicester [2017] EWHC 188 (Admin). The cases were decided together by judgment of Mr Justice Hickinbottom delivered on 10 February 2017.

In all three cases the students had been expelled from medical school and were unhappy with the outcome of their universities’ internal complaints process. They had taken their complaints to the OIA. However, rightly concerned to protect their positions having regard to the tight time limitation for judicial review claims, they had also filed claims for judicial review. They asked the Administrative Court to stay these proceedings pending the outcome of the OIA process. The OIA is barred from considering matters currently active before the courts. Therefore, without a stay, the OIA process could not proceed.

Mr Justice Hickinbottom laid down guidance as to how parties should proceed in cases potentially giving rise to both judicial review proceedings and OIA complaints. In doing so he drew heavily on R (Cowl) v Plymouth City Council [2001] EWCA Civ 1935 , which was subsequently approved in the Practice Statement (Administrative Court: Listing and Urgent cases) [2002] 1 WLR 810. Of particular importance was Lord Woolf’s ruling in that case that complainants are not necessarily entitled to proceed with a judicial review application whenever the alternative complaints procedure available to them does not cover precisely the same ground as that offered by judicial review. That is, just because an alternative procedure might not provide for determinations of legal rights and obligations, or provide the same possible remedies, it does not necessarily mean that judicial review proceedings are appropriate. Instead, Lord Woolf held that courts should not permit, except for good reason, proceedings for judicial review to proceed if a significant part of the issues between the parties could be resolved outside the litigation process.

On this basis, Mr Justice Hickinbottom concluded that where an alternative dispute resolution procedure was available, “the court should be slow to become engaged with issues arising out of the same subject matter, unless and until that procedure has been given reasonable time and opportunity to run to a conclusion; and, when either a claimant or a defendant (or both) wish to progress court proceedings before then, they must provide the court with good reasons for doing so”.

Turning then to the case at hand, the judge recognised the claimants’ desire to protect their access to judicial review, and their concern in relation to the effect of the tight time frame for the bringing of such claims. In response to this difficulty, he issued general guidance, stating that in future cases protective proceedings should not be lodged with the Court in the first instance (although there may be certain cases where that would be appropriate). Instead, the complainant will be able to protect his or her position adequately by ensuring the following:

(i) That they refer their case to the OIA and notify the university of this within three months of the final decision made by the university.
(ii) If they are unhappy with the OIA decision, they issue judicial review proceedings within one month of that decision.

Following this course will mean that, even if the limitation period for judicial review has passed (which is likely given the duration of OIA proceedings), the claimant will be in a good position to seek relief from the court. The courts will normally exercise their discretion to extend time for the issue of judicial review proceedings, where this is to allow alternative remedies to be explored.

Ideally, when the OIA process has started, an agreement should be reached between the complainant and the institution that no delay point will be taken if the complainant seeks judicial review after the completion of the OIA procedure. Nevertheless, even without such an agreement, a student is entitled to proceed on the basis that the university will not take a point on delay. Only if the university positively indicates that it will raise the issue of delay, will the filing of protective proceedings and an application for a stay be appropriate.

While the court issued stays in the cases before it, in recognition that the position was not clear at the time the applications were made, there is now clear guidance for parties to such education disputes. Generally speaking, protective proceedings should not be issued. The High Court has made clear that cost orders may be made in future, if time and money is wasted through a failure to comply with the guidelines laid down.

Jonathan Auburn

Tom Cross appeared for the First Respondent, the University of Manchester

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