AB v University of XYZ

An interim mandatory injunction is granted only where it is just and convenient. The court applies the flexible approach in American Cyanamid v Ethicon Ltd (No1), with particular caution where the order would alter the status quo or substantially determine the claim. Relevant considerations include the adequacy of damages, the balance of convenience, delay, the likely consequences for each party, and the degree of assurance that the claimant will establish the asserted right at trial.

University disciplinary procedures are contractual and must be exercised fairly. Legal representation is not a universal requirement in internal disciplinary proceedings. Its necessity depends on the circumstances, including the seriousness and complexity of the allegations and the accused person’s ability to present the case. A student’s arguable entitlement to representation did not justify a mandatory injunction where the order would probably determine the dispute and create greater risks of injustice.

The claimant, a final-year student, was expelled by the defendant university after a disciplinary committee found an allegation of sexual misconduct proved. The alleged conduct occurred during an overseas study placement in a private apartment. The claimant did not attend the disciplinary or mitigation hearings.

He sought an interim mandatory injunction requiring the university to permit him to resume his studies pending determination of his substantive contractual claim. He argued that the university lacked jurisdiction, relied on the wrong regulation and policy, and breached implied contractual duties of fairness and natural justice by restricting legal representation. The central issue was whether the interim order was just and convenient.

1. Application dismissed. The claimant had not shown that a mandatory injunction would be just and convenient.
2. The court made provisional findings only. The relevant contractual regulation was the October 2018 version, because the September 2019 regulation and Sexual Misconduct Policy had no demonstrated retrospective effect. General contractual powers to amend regulations did not ordinarily authorise retrospective alteration of accrued contractual rights.
3. The complaint nevertheless fell within the October 2018 regulation and the Study Abroad Student Protocol. Misconduct could occur on University premises or elsewhere. The claimant’s status as an enrolled student and participant in the study-abroad programme gave the university a legitimate disciplinary interest.
4. The university had proceeded under the wrong regulation, but the resulting procedural irregularity was minor. The procedures under the two versions were materially similar and the irregularity did not amount to a contractual breach.
5. Fairness and natural justice were implied into the disciplinary process. They did not require an intermediate stage for written representations between investigation and disciplinary hearing. The claimant had opportunities to respond during the investigation and at the hearing.
6. Legal representation was not an automatic right. The seriousness of the allegation, the need to explore consent and capacity, and the possibility of questioning the complainant made the claimant’s argument sufficiently arguable. However, R (G) v X School Governors did not establish a universal entitlement, and this case was materially different because cross-examination and complex issues of consent were contemplated.
7. Damages were inadequate for both parties, but the balance favoured refusal. The proposed order was likely to determine the practical dispute, the claimant had delayed pursuing earlier relief, the university would suffer greater disruption if the order were wrongly made, and there was no high degree of assurance that the claimant would establish a right to representation at trial. The mandatory injunction was therefore dismissed. Anonymity was continued and costs were awarded to the university.