Court of Appeal Overturns Zahid Guidance

Around 18 months ago, we reported that the High Court had approved a procedure to be followed by students who wished to complain to the OIA whilst preserving the right to pursue Judicial Review proceedings directly against their university at a later date.

In R (on the application of Zahid) v University of Manchester [2017] EWHC 188 (Admin), Mr Justice Hickinbottom gave detailed guidance to be followed in three types of case, namely: i) OIA proceedings have been issued, no judicial review proceedings have been issued but the student wishes to reserve the right to bring such proceedings; ii) OIA and protective judicial review proceedings have been issued; iii) Judicial review proceedings have been issued but the student does not wish to refer the complaint to the OIA.

There seemed to be a general sense that the above procedure was very helpful, not least as it gave students a good idea as to what they needed to do and where they stood when it came to preserving the right to apply for Judicial Review. However, a number of universities took exception to the guidance, effectively arguing it would encourage lots of Judicial Reviews.

In a decision published today, the Court of Appeal has allowed the universities’ appeal and overturned the guidance. In St George’s University of London v R (on the application of Mazz Rafique-Aldawery) [2018] EWCA Civ 2520, Lord Justice Irwin stated as follows:

‘My concern is that such guidance provides a general rule which students would or could feel obliged to follow in respect of what, in reality, would be only a limited number of cases. Such detailed guidance could result in a rigidity of approach, meaning that a student would feel compelled to contemplate judicial review proceedings, which could involve consulting lawyers, when available to the student would be a relatively informal and swift means of practical resolution which the student could embark upon without the need for and cost of lawyers.

As for what (if anything) should replace the guidance, he had the following to say:

‘In the event that a student is uncertain as to the course to be taken, it would be open to the student to write to the HEI stating that they do not, at that time, wish to institute proceedings for judicial review but putting the HEI on notice of the detail of the complaint and indicating that it may be necessary to apply for judicial review in the event that the OIA procedure does not provide a suitable remedy. If in those circumstances the HEI later sought to take a time bar point in any subsequent judicial review proceedings the student’s letter could be filed in the proceedings. The fact that the HEI were on notice of the detail of the complaint from the outset would be a significant factor of which the court could take account in exercising its discretion to extend time. This course would likely serve to protect the legal position of the student without recourse to separate legal proceedings when the complaint to the OIA is made. It would address the concerns raised by the appellants summarised at paragraph 17 above and those of the interested party.’  

There is disagreement about where this leaves students. Some lawyers in the sector have pointed out that there isn’t a lot of difference between the approach recommended by the High Court (writing to the University and asking them to agree not to take a point on time) and that described by the Court of Appeal (putting the University on notice).

And yet, it seems there is now a lot more uncertainty, for whereas the suggestion in the High Court’s decision was that, by following its guidance, a student would all but certainly preserve the right to bring a Judicial Review at a later date, the Court of Appeal’s judgement gives rise to much more doubt, stating as it does that the fact a university has been put on notice will be merely ‘a significant factor.’

Also of note (and of potential concern) was what the Court of Appeal had to say about the effectiveness of the OIA as a remedy. Whilst acknowledging that the OIA ‘does not provide rulings upon legal rights and obligations’ the Court went on to state, ‘however, the OIA does scrutinise the behaviour of the HEI to a standard which would reflect that contained in judicial review proceedings.

Will the above statement now be relied upon by universities in an attempt to keep cases out of court and force students down the OIA route? If so, this will be of concern to those who have dealt with the OIA in the past and found its level of scrutiny to have fallen quite well below that usually exercised by a court.

The decision is very far-reaching for, as a colleague of mine points out, the High Court decision has been relied on in many different contexts, not just in university cases.

Below is a link to our earlier post.

Robin Jacobs

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