Studying Review and Appeal Routes: R (Zahid) v The University of Manchester [2017] EWHC 188

The procedural intricacies of judicial review of administrative action can create pitfalls for the unwary. Various principles are relevant and sometimes they (seem to) come into conflict with one another. For instance, an applicant should exhaust alternative remedies before applying for judicial review, a principle that is of one with the general move in the common law world towards alternative, non-judicialised, modes of dispute resolution. But an applicant should also comply with strict time limits and may find, to her cost, that unduly delaying a judicial review application will be fatal to her claim. So what happens in a situation where exhausting an alternative remedy would cause an applicant to miss a time limit?

Sometimes, taking the time to exhaust alternative remedies will not run the risk of causing undue delay. If, for instance, an internal administrative appeal or reconsideration ultimately results in an unhappy outcome, an applicant can seek a judicial review of the final decision by the administrative body. Difficulties may sometimes arise in this area, especially where an illegality earlier in the process was not dealt with by the final decision-maker and has tainted the final decision, but delay is not one of them.

However, where an alternative remedy can be sought through an external mechanism, difficulties can arise. The interplay of the exhaustion and delay principles was discussed by Hickinbottom J in R (Zahid) v The University of Manchester [2017] EWHC 188. He began by setting out the general principles and commented:

The early finality of executive and administrative decisions is an important principle, and consequently, as a general principle, prompt resolution of public law claims by the courts is considered to be in the public interest – hence the relatively tight and strict time limit for the issuing of judicial review proceedings. However, the courts have also recognised that that principle may sometimes have to bow in the face of other interests, both public and private. Where there is an available ADR procedure – especially when it is provided by Parliament – the interests of the public body and citizen in having a more attractive procedure and, very importantly, the public interest in resolving claims outside the court system where possible, will be of such weight that the balance of interests will be in favour of giving a proper opportunity for the dispute to be resolved, in whole or in part, by the alternative procedure; even if that may delay the final resolution of the dispute, if recourse to the courts is in the event necessary (at para. 67).

Students who complain about third-level educational institutions have a variety of remedial options, internal and external. There are two principal external public law options: a complaint to the Office of the Independent Adjudicator for Higher Education (OIA), or judicial review. But the time limit for judicial review is (generally) three months, whereas one can make a complaint to the OIA up to twelve months after a final decision. To wait for the OIA process to run its course would cause a claimant to be out of time for judicial review. But commencing a judicial review claim means that one cannot avail of the OIA process.

In the claims before Hickinbottom J, counsel had (as is eminently sensible), commenced judicial review proceedings within three months of the educational institution’s decision and immediately sought a stay pending the outcome of the OIA process. Practical and all as this solution is, Hickinbottom J doubted that it would invariably be appropriate: the respondent and, indeed, the court might not agree to grant a stay, with the result that the OIA process would be proscribed (at para. 72); and, in any event, commencing a judicial review application is expensive (see para. 76). It is worth noting that the third-level educational institution may not invariably be playing procedural games — sometimes, issues of general law will be raised by a student complaint on which the institution might genuinely have an interest in receiving an authoritative judicial statement as to the law, to avoid repeat visits to the OIA (whose decisions, of course, do not have the force of law) (see para. 87).

Hickinbottom J’s conclusion was that, as long as an OIA complaint has been made within three months, a reviewing court should not entertain a complaint relating to delay if, at the termination of the OIA proceedings, a student brings a judicial review claim:

Given the principles in relation to alternative remedies and judicial review being a remedy of last resort, I do not see the need for the routine issue of protective proceedings in cases in which an OIA reference has been made, so long as the student issues any judicial review claim that he or she wishes to pursue within a reasonable period from the OIA’s determination of the complaint. In the ordinary course, the student should be able to issue proceedings within one month of that determination; and it seems to me that the court would need compelling reasons to be persuaded that longer was reasonably required.

I understand that the parties (i.e. the student and the relevant HEI) need some degree of certainty. However, if they agree that any court proceedings can await the outcome of the OIA reference – as they should, and will, in the vast majority of cases – absent extraordinary circumstances, it seems to me that they can have confidence that the court will be driven to exercise its discretion to allow an extension of time to file any proceedings if that reference is not successful in resolving the complaint.

Although under the OIA Scheme Rules, the student has twelve months from the date of the Completion of (Internal) Procedures Letter to make a reference to the OIA (see paragraph 28 above), if he or she wishes to reserve the right to pursue judicial review proceedings, then the decision to refer should be made sooner. In the ordinary course, a three-month period…should, in the circumstances, be sufficient to make the reference; and, so as not to mislead the student into a false sense of security, HEIs should consider indicating…that, although the Rules prescribe a twelve month period, if the student wishes to maintain his or her right to judicially review the relevant HEI decision, then it would be advisable to notify the HEI as soon as possible and make a reference to the OIA within three months, to avoid a contention that any subsequent proceedings are too late. It seems to me that, again, the court would need compelling reasons if it were to be persuaded that more than three months had been reasonably required to make an OIA reference in these circumstances (at paras. 79-81).

In general,”[u]nless an HEI positively indicates that it will take a point on delay, a student is entitled to proceed on the basis that it will not” (at para. 83), and it is only those limited circumstances that commencing an application for judicial review and immediately requesting a stay is likely to be the appropriate course of action for a student (at para. 84).

This seems like a sensible (though intricate) solution to a problem caused by the tension between the exhaustion and timeliness principles.

This content has been updated on March 20, 2017 at 23:10.