St George's, University of London v Rafique-Aldawery, R (On the Application Of), Court of Appeal - Civil Division, November 13, 2018, [2018] EWCA Civ 2520

Resolution Date:November 13, 2018
Issuing Organization:Civil Division
Actores:St George's, University of London v Rafique-Aldawery, R (On the Application Of)

Neutral Citation Number: [2018] EWCA Civ 2520

Case No: C1/2017/0574 & 0575




[2017] EWHC 188 (Admin)

Royal Courts of Justice

Strand, London, WC2A 2LL

Date: 13/11/2018






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Aileen McColgan (instructed by Gateley Plc) for the First and Second Appellants

Laura Farris (instructed by EJ Winter & Son LLP) for the Interested Party

The First and Second Respondent did not appear and were not represented

Hearing date: 9 October 2018

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Lady Justice Nicola Davies DBE:

1. The first and second appellants appeal the decision of Hickinbottom J (as he then was) of 10 February 2017 to issue stays in respect of the first and second respondents' applications for judicial review against the appellants. Permission was granted on 2 January 2018 by Jackson LJ. The appeal is not opposed by the first and second respondents who have taken no active role in the appellate proceedings. The interested party, the Office of the Independent Adjudicator (``OIA''), has responded to the appeal in writing and in oral representations at the hearing. It does not oppose the appeal, its concern is that the court should not extinguish a legal right held by a student.

2. The appellants are providers of higher education. The first and second respondents are former medical students who had been undertaking courses of study at the respective appellant universities, each of which was terminated either by reason of fitness to practise issues (first respondent) or repeated examination failure (second respondent). Each respondent challenged the decision. The first respondent sought to rely on late medical evidence provided to the first defendant following termination of his registration. The second respondent sought to challenge the second appellant's application of a rule that students must complete a five-year medical degree within seven years.

3. Each respondent issued judicial review proceedings against the respective appellants and obtained orders staying their applications pending the conclusion of their complaints to the OIA. Following the decision under challenge, the OIA rejected both complaints, the applications for permission to bring proceedings for judicial review proceeded, permission was refused on the papers by Judge Allen on 9 and 4 August 2017 in the case of the first and second respondent respectively. The respondents renewed their applications for permission which were dismissed by Leigh-Ann Mulcahy QC sitting as a Deputy High Court Judge on 21 September 2017.

4. It is the appellants' case that in granting the stay sought by the respondents Hickinbottom J erred in law in failing to take into account, alternatively give due weight to, the status of judicial review as a remedy of last resort. Further, the judge gave detailed guidance to be followed in three types of cases, namely:

i) OIA proceedings have been issued, no judicial review proceedings have been issued but the student wishes to reserve the right to bring such proceedings;

ii) OIA and protective judicial review proceedings have been issued;

iii) Judicial review proceedings have been issued but the student does not wish to refer the complaint to the OIA.

The respondents take issue with this guidance which is said to be rigid and too prescriptive. In granting permission Jackson LJ observed that if the appeal did not succeed the Civil Procedure Rule Committee should ``consider whether to amend CPR Part 54 in order to address the problem highlighted by'' the cases.

5. Prior to 2004 aggrieved students could bring their complaints against their Higher Education Institutions (``HEIs'') either as a visitor in the case of HEIs established by Charter or in the civil courts in the case of post-1992 HEIs. Where an HEI had a visitor, the visitor's jurisdiction was final and exclusive. Students were not entitled to choose to seek redress in the ordinary courts instead of before the visitor. Decisions of the visitor were challengeable only by way of judicial review and then only very narrowly.

6. The Higher Education Act 2004 (``the 2004 Act'') established a system for review of student complaints, providing that the Secretary of State may designate a body corporate as the designated operator for England and the Welsh Assembly may designate a body corporate as the designated operator for Wales. Pursuant to section 13 of the 2004 Act the OIA, a company limited by guarantee and a registered charity, is designated to be the operator of this scheme. Section 14 provides that the designated operator must comply with the duties set out in Schedule 3. Paragraph 2 of Schedule 3 obliges the OIA to provide a scheme (``the Scheme'') for the review of ``qualifying complaints'' which include a complaint by a student or former student about an act or omission of a university, other than to the extent that...

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