St George's, University of London v Rafique-Aldawery

The Court of Appeal allowed the appellants' appeal against Hickinbottom J's orders staying two judicial review claims brought by former medical students pending the Office of the Independent Adjudicator (OIA) complaints process. The court emphasised that judicial review is a remedy of last resort where a suitable alternative remedy exists and that the OIA is such a suitable, informal and effective alternative under the Higher Education Act 2004 and the OIA's Scheme and Rules. The court held that the judge erred by giving detailed, prescriptive guidance about timing and procedure for stays which risked encouraging protective judicial review claims, undermining the statutory complaints scheme and disadvantaging higher education institutions by displacing usual short judicial review time limits. The court endorsed a less rigid approach: stays may be appropriate in some cases but students can preserve their position by notifying the institution of their complaint and reserving the right to apply for judicial review, which the court may take into account when exercising its discretion on time limits.

This is an appeal from Hickinbottom J's decision of 10 February 2017 (Admin Ct) to grant stays in two judicial review claims brought by former medical students challenging termination of their studies by two universities. The first respondent challenged a decision refusing to re-open a fitness to practise decision in light of late medical evidence; the second respondent challenged application of a rule requiring completion of a five-year medical programme within seven years. Each respondent had referred their complaint to the OIA and obtained stays of their judicial review proceedings pending the OIA process. After the OIA rejected both complaints, permission to pursue judicial review was refused at first instance on the papers and on renewal; the universities appealed the stays to the Court of Appeal.

The issues framed were (i) whether Hickinbottom J failed to give sufficient weight to the status of judicial review as a remedy of last resort in circumstances where the OIA is a suitable alternative remedy under the Higher Education Act 2004 and the OIA Scheme and Rules; (ii) whether the judge erred in giving detailed, prescriptive guidance about when and how students should preserve rights to bring judicial review in cases involving the OIA; and (iii) whether such guidance risked encouraging protective protective proceedings and undermining HEIs' time-limit protections.

The court reviewed the statutory framework in the Higher Education Act 2004 (including Schedule 2 and Schedule 3 conditions), the OIA Rules and Guidance, and authorities on the relationship between the courts and the OIA (including R (Siborurema), R (Maxwell) and R (Peng Hu Shi)). The court concluded that the OIA is an appropriate, accessible, and ordinarily effective alternative remedy; that judicial review should remain a remedy of last resort when such alternatives exist; and that the trial judge's detailed prescriptive directions risked rigidity and unintended consequences. The court allowed the appeal, holding that although stays may be appropriate in particular cases they should not be governed by inflexible general rules, and suggested that students uncertain of the right course may put the HEI on notice in writing to preserve their position pending OIA review, a matter a court can take into account when considering time extensions for judicial review.

Appeal allowed. The Court of Appeal held that Hickinbottom J's detailed prescriptive guidance about when stays should be granted was unduly rigid and risked promoting protective judicial review proceedings and undermining the statutory OIA scheme. The OIA is a suitable alternative remedy and judicial review remains a remedy of last resort where an alternative exists. The court allowed the universities' appeal and endorsed a flexible approach whereby students may preserve rights by notifying the HEI and the court may consider that notice when exercising discretion on time limits.

Appeal from Queen's Bench Division, Administrative Court (Hickinbottom J) [2017] EWHC 188 (Admin). Permission to appeal granted by Jackson LJ on 2 January 2018. Appeal heard in the Court of Appeal on 9 October 2018 and allowed by judgment dated 13 November 2018 ([2018] EWCA Civ 2520).