In three linked cases, the students had been excluded from medical school and were dissatisfied with the outcomes of their universities' internal complaints process. They had made complaints to the Office of the Independent Adjudicator for Higher Education (OIA), and also filed claims for judicial review in order to protect their respective positions (judicial review proceedings must be issued within three months).
The students then requested that the Court stay the judicial review proceedings pending the outcome of the OIA process, since the OIA is unable to consider matters which are currently active before the courts. Without a stay in place the OIA process could not proceed.
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”.
He recognised the need to protect access to judicial review and the tight time frame for bringing such claims and so issued some general guidance, which provides that in the future protective proceedings should not be issued in the first instance.
A student will be able to protect their position by ensuring:
that they refer their case to the OIA and notify the university of this within three months of the university's final decision
if they are dissatisfied with the OIA decision, by issuing judicial review proceedings within one month of the decision
This will mean that in the likely event that the ordinary limitation period for issuing judicial review proceedings has passed by the time the OIA's decision has been made, the student will be able to seek relief from the court, and the court will normally exercise its discretion to extend the time period for issuing proceedings where this is to allow alternative remedies to be explored.
Ideally, when the OIA process has started, an agreement will be reached between the university and student that no delay point will be taken if judicial review proceedings are subsequently issued. However, even with no such agreement in place, a student will be entitled to proceed on the basis that the university will not pursue this point. It is only if the university expressly indicates that it will raise the issue of delay, that the issue of protective proceedings and an application for a stay will be appropriate.
For more information please contact Tracey Eldridge-Himners on 020 7665 0802.