In a recent judicial review we acted in, the court ordered the OIA to consider a complaint from a university's former student who had applied for re-admission to a course she'd left some years earlier and was refused. In this very fact specific case, some might say that the judge ordered the OIA to consider a complaint about a university's rejection of an application for a place, but that would be to misunderstand the judge's clear ruling.
The OIA’s scheme rules expressly exclude complaints that concern admissions. The Administrative Court determined that the student’s complaint about her readmission to the same University and the same course that she previously studied at that particular University, should be considered by the OIA because of the student's particular circumstances.
The interesting element of the case came after the judge had finished pronouncing judgment and asked the parties for submissions on costs. As is common in challenges to OIA decisions, the University was the Interested Party in the judicial review proceedings. The usual rule in judicial review claims is that the Interested Party will neither be awarded its costs, nor have a costs order made against it. However, costs are always at the discretion of the Court.
In this case, the judge ordered the loser (the OIA) to pay the winner (the student/applicant) costs of bringing the claim. The OIA then sought a contribution to the student’s costs from the University. This was done without any earlier indication that the application was to be made and despite the University’s conduct in the proceedings not being criticised by the OIA or by the Court.
There is precedent for an order requiring a university to contribute to the costs to be paid to the student when the OIA lost a judicial review. The 2016 case of R (Gopikrishna) v The OIA and others determined that the winning student was entitled to two-thirds of her costs and that the OIA and the University (which was the Interested Party) should contribute to the payment of those costs in equal shares. The Court reached this conclusion as it stated that the University had “played a very active role” in the proceedings and it had “ignored its own procedural rules and had caused confusion and misunderstandings which persisted throughout the litigation, and it had taken some unmeritorious points”.
In our recent case, the Judge did not order the University to make a contribution to the student’s costs for several reasons including the lack of criticism of the university's conduct of the case.
The seeking by the OIA of a contribution towards its liability for the cost of a successful challenge by a student is likely to cause universities to consider whether they wish to participate in judicial review challenges by students to the OIA's decision, and if they do participate, the manner in which they do so.
Mills & Reeve acted for the University, with Helen Tringham leading the matter.
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