Carnell, R (on the application of) v Regents Park College & Anor

Judicial review is a remedy of last resort. Permission should ordinarily be refused where an adequate alternative remedy was available, even if the claimant has subsequently lost that remedy through choosing not to use it. The loss of the alternative remedy will not ordinarily constitute exceptional circumstances.

An alternative complaint scheme may be effective although its recommendations are not directly legally binding, particularly where the institution has undertaken to comply and judicial review remains available for non-compliance. Serious procedural flaws may nevertheless be arguable where a disciplinary appeal tribunal fails to consider material evidence, relevant credibility matters or the whole evidential history.

The claimant, an undergraduate at Regents Park College, sought permission to bring judicial review proceedings concerning disciplinary decisions made by the College Disciplinary Committee and the Conference of Colleges Appeal Tribunal. The tribunal had found that most allegations of harassment were proved.

Mr Justice Collins had initially refused permission, although he considered that the College procedure was arguably flawed. On renewal, the claimant challenged the tribunal’s treatment of witness evidence, credibility and relevant history, as well as aspects of the original procedure. The central issue was whether permission should be granted despite the availability, and subsequent loss, of a complaint route through the Office of the Independent Adjudicator for Higher Education.

1. Permission refused. Although there were arguable grounds concerning the College Committee’s procedure and the tribunal’s treatment of the claimant’s witnesses and the history concerning J, the existence of an adequate alternative remedy required the court to refuse permission.
2. The College Committee’s exclusion of the claimant from significant parts of the hearing and the Principal’s participation were arguably inconsistent with natural justice and potentially Article 6. Those defects were arguably superseded by the tribunal’s later de novo hearing, which was conducted without evidence of bias and with a proper open procedure.
3. The tribunal’s evaluation of credibility was nevertheless arguably open to challenge. It was not normally proper to evaluate evidence in isolation without considering relevant material from other sources, including evidence bearing on side issues, the parties’ relationships and the previous history between the claimant and J. The tribunal’s sparse treatment of the claimant’s witnesses and failure expressly to address that history could justify a full judicial review hearing.
4. The tribunal was entitled to refuse to recall A concerning an email that had been available in the claimant’s inbox. Seeking A’s comments and taking the email into account fell within the tribunal’s procedural discretion. The court proceeded on the basis that the civil standard of proof, applied in the light of Re H, was correct.
5. The Office of the Independent Adjudicator scheme was an effective alternative remedy. The College had expressly undertaken to implement its recommendations, and judicial review would remain available if the institution refused to comply or failed to facilitate a recommended fresh determination. The claimant’s decision not to pursue that route, followed by the scheme’s exclusion of complaints concerning concluded court proceedings, did not create exceptional circumstances.
6. The claimant could not rely on speed as a reason for bypassing the alternative remedy. Judicial review was not likely to be quicker. The claim was therefore not permitted to proceed.

• High Court (Administrative Court): Mr Justice Collins refused permission on the papers on 25 January 2007. On renewal, Black J refused permission because an adequate alternative remedy had been available and the circumstances were not exceptional.