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

The court considered whether protective judicial review proceedings challenging expulsions from medical courses should be stayed to allow parallel references to the Office of the Independent Adjudicator for Higher Education (OIA) to proceed. The judge held that references to the OIA are a form of alternative dispute resolution created by statute (Higher Education Act 2004 and the OIA Scheme Rules) and that the court should ordinarily give the OIA a reasonable opportunity to deal with complaints before entertaining full judicial review proceedings, provided there are no compelling reasons to the contrary.

The decision applied relevant procedural provisions including CPR rule 54.5(1) and the court's inherent case-management powers (CPR rule 3.1). It took account of statutory provisions including the Equality Act 2010 (notably the definition of disability in s6, the prohibition in s15 and student-specific provisions in s91), and recognised the distinct functions of the OIA (inquisitorial, flexible recommendations under rules 6–7 of the OIA Scheme Rules) and the court (adjudication of legal rights and remedies). The judge gave guidance on three common scenarios (no proceedings issued; protective proceedings issued; proceedings issued with no OIA reference) and authorised stays in the three specific claims before the court to allow the OIA references to conclude, on grounds of public interest in ADR, expedition, proportionality and the reasonable availability of the OIA route.

This is a first-instance Administrative Court judgment concerning three consolidated judicial review claims brought by medical students challenging their termination/expulsion from medical courses. Each claimant had simultaneously referred a complaint to the OIA and issued protective judicial review proceedings seeking to preserve the right to litigate if the OIA outcome proved unsatisfactory. The court was asked to determine whether the judicial review claims should be stayed to permit the OIA references to proceed.

Parties and posture:

• The Claimants: Sarah Zahid, Maaz Rafique-Aldawery and Mithilan Sivasubramaniyam, each a medical student expelled or dismissed from their respective courses.
• Defendants: The University of Manchester (consented to a stay), St George’s, University of London (opposed the stay) and The University of Leicester (opposed the stay).
• Interested party: The Office of the Independent Adjudicator for Higher Education (OIA) (did not appear but filed written representations).

Relief sought: The claimants sought judicial review remedies quashing the HEI decisions, mandatory orders (reconsideration or reinstatement), declarations of unlawful discrimination under the Equality Act 2010 and, in one case, damages under the Human Rights Act 1998. Each claimant also applied for a stay of the court proceedings pending the outcome of the OIA reference.

Issues framed:

• The legal relationship and respective functions of the OIA and the courts, and whether a reference to the OIA is an alternative remedy that should bar or suspend judicial review.
• The appropriate exercise of the court’s discretion to grant a stay of judicial review proceedings where an OIA reference has been, or will be, made.
• Practical guidance on when protective proceedings should be issued and how the court will approach time extensions and stays in three classes of cases.

Court’s reasoning (concise):

• The OIA scheme, established under the Higher Education Act 2004 and detailed in the OIA Scheme Rules, is an alternative dispute resolution mechanism intended by Parliament to be accessible, inquisitorial and to make flexible recommendations; it is a public function whose decisions are justiciable but different in nature from a court’s adjudication of legal rights.
• Judicial review remains available; the existence of the OIA does not extinguish the court’s supervisory jurisdiction. However, the court should exercise restraint and give the OIA a reasonable opportunity to resolve complaints where that is likely to assist or resolve the dispute, in line with the public interest in ADR and authorities such as R (Cowl) v Plymouth City Council and R (Maxwell) v OIA.
• The court provided guidance for three scenarios: (A) where no proceedings have been issued, protective proceedings will not be routinely required if the claimant refers to the OIA but should issue proceedings promptly after the OIA decision (the court suggested one month after the OIA outcome as ordinary); (B) where protective proceedings have been issued, the court will generally be sympathetic to an early stay so the OIA reference can proceed (stays should not be open-ended); and (C) where proceedings are issued and no OIA reference is intended, the court will nonetheless consider whether a stay is appropriate, weighing the parties’ reasons and the public interest in ADR.
• Applying these principles, the judge ordered stays in all three cases (each stayed until one month after the OIA reference concludes), explaining the public interest in allowing the OIA to run its course and the risk of unnecessary litigation and wasted costs if protective claims were not stayed.

The judgment also contained practical guidance on communication between students and HEIs about timing of OIA referrals and the risk of time limits under CPR and statute (including the three-month judicial review limit and extensions in discrimination limitation periods where OIA referral occurs).

This is a first instance decision. The court granted the applications for stays in all three protective judicial review claims. The judge reasoned that the OIA is a statutory alternative dispute resolution mechanism whose procedures the court should ordinarily allow to run to conclusion before the court progresses judicial review, unless there are compelling reasons not to do so. For each claim the court ordered a stay to expire one month after the OIA reference concludes, with provision for notification, costs directions and permission to apply.