Zahid, R (On the Application Of) v The University Of Manchester

An Office of the Independent Adjudicator reference is a statutory alternative dispute resolution procedure, but it is not coextensive with judicial review and does not remove the Administrative Court’s supervisory jurisdiction. Its availability is a discretionary case-management consideration. The court weighs convenience, expedition, cost and effectiveness, and may dismiss, refuse permission or stay proceedings. In higher-education disputes, the court should normally give an OIA reference reasonable time to conclude. Protective judicial review proceedings should usually be stayed at an early stage, absent compelling reasons. A student who first uses the OIA may ordinarily seek an extension of time to issue judicial review proceedings promptly after the outcome.

Three medical students challenged decisions by their universities terminating or confirming the termination of their medical studies. Each had referred the underlying complaint to the Office of the Independent Adjudicator for Higher Education and had issued protective judicial review proceedings, or sought to do so, pending the OIA process.

The University of Manchester consented to a stay. St George’s, University of London and the University of Leicester opposed stays, contending that the OIA procedure was an adequate and effectively exclusive alternative remedy. The central issue was how the court should manage judicial review proceedings where an OIA reference concerns the same subject matter.

Stays granted in all three claims. The court held that the OIA scheme established under the Higher Education Act 2004 is an alternative dispute resolution procedure, but does not exclude the court’s supervisory jurisdiction.

1. The OIA reviews whether a complaint is justified, partly justified or not justified. It may make flexible recommendations, including financial recommendations and recommendations for reconsideration. It does not determine formal legal rights and obligations or conduct the full fact-finding exercise undertaken by a court. The availability of the OIA therefore does not provide a coextensive remedy or bar judicial review.
2. The availability and nature of an alternative remedy affect the court’s discretion, rather than its jurisdiction. The court considers relative convenience, expedition, cost and effectiveness. Depending on the circumstances, it may refuse permission, dismiss the claim or stay proceedings.
3. Where the statutory OIA procedure is available, the court should be slow to engage with the same subject matter until the procedure has been given reasonable time and opportunity to conclude. The public interest in resolving disputes through the OIA may outweigh the interest in immediate court determination. The principles in R (Cowl) v Plymouth City Council ([2001] EWCA Civ 1935) were applicable to OIA references.
4. A student who has issued protective proceedings should ordinarily obtain an early stay, particularly where the HEI consents. A stay will usually be refused only for compelling reasons. The stay should expire one month after the OIA reference concludes, when the student must notify the court whether the claim will continue. A student who first pursues the OIA may ordinarily obtain an extension of time to issue judicial review proceedings if acting promptly after the OIA’s determination.
5. The Manchester claim was stayed by consent, with costs of the stay application in the claim. The Rafique-Aldawery and Sivasubramaniyam claims were also stayed despite opposition by the universities, because the OIA references had real scope to resolve the disputes and the public interest in allowing them to proceed was overwhelming.