Gajree v The Open University

Judicial review is not a means of challenging the academic merits of university decisions on marking, submission deadlines or educational support. At the relevant time, disputes concerning the Open University fell within the visitor’s jurisdiction, and domestic remedies had not been exhausted. A claim must be brought promptly and, in any event, within three months. Delay in responding to complaints is not, by itself, a material procedural impropriety. It must affect the merits of a complaint otherwise suitable for judicial review, such as an error of law or unfairness amounting to an error of law. Permission to appeal requires a real prospect of success or another compelling reason.

Gina Gajree was studying for an MSc at the Open University. After receiving 38% for a resubmitted piece of coursework, she complained about the marking, the time allowed for resubmission, the assistance provided by tutors, alleged discrimination and delays in responding to her correspondence.

She issued judicial review proceedings seeking relief concerning the coursework and the university’s handling of her complaints. Leveson J rejected permission on paper, and Collins J rejected the renewed application on 25 July 2005. The Court of Appeal considered whether there was an arguable public-law challenge, whether the claim was brought in time, whether the proper route was through the university’s domestic procedures, and whether the alleged delays amounted to procedural impropriety.

1. Permission and timing. Lord Justice Rix refused permission to appeal. The applicable threshold required a real prospect of success on appeal or another compelling reason. The claim form did not identify the challenged decision clearly. Depending on its proper interpretation, the claim concerned decisions made in January, April, May or July 2004. In each event, the claim filed on 3 December 2004 was outside the requirement that judicial review be sought as soon as possible and, in any event, within three months.
2. Academic decisions. The complaints principally concerned marking, the time allowed for resubmission and educational assistance. Those were academic matters and were not a proper basis for judicial review.
3. Visitor and adjudicator jurisdiction. At the relevant time, the Open University was not a public body for these purposes. Its disputes fell within the jurisdiction of a university visitor rather than judicial review: Thomas v University of Bradford [1987] AC 795 and Clarke and University of Lincolnshire and Humberside [2000] 1 WLR 1988. From 1 January 2005, the Higher Education Act 2004 translated the visitor’s jurisdiction into the authority of the Office of the Independent Adjudicator for higher education. The claimant had not exhausted the applicable domestic remedy.
4. Procedural delay. The university’s delay in replying to correspondence was unfortunate, but it had no material effect on the underlying complaint. Procedural impropriety for judicial review must affect the merits of a complaint suitable for judicial review, such as an error of law or unfairness amounting to an error of law. The complaint here remained academic, and it had ultimately been addressed.
5. The application for permission to appeal was refused.

• Court of Appeal (Civil Division): refused permission to appeal from Collins J’s decision.
• Queen’s Bench Division: Collins J rejected the renewed application for permission for judicial review on 25 July 2005, following Leveson J’s rejection of the application on paper.