Judicial Review
Judicial Review challenges to the OIA
The OIA has been the subject of several Judicial Review claims. So far, we have successfully defended them all. The leading case is Siborurema in which the Court of Appeal decided that Decisions of the OIA are subject to Judicial Review, but the scope of any Review will be limited and it is unlikely that many claims will get through the permission “filter” stage. The court will be “very slow” to interfere with the exercise of judgment leading to a Decision that a complaint is Not Justified. The Court of Appeal also decided that the OIA has a broad discretion to determine the nature and extent of its own reviews.
The Siborurema case has been followed by judges in subsequent judicial review applications, notably in Arratoon, in which the judge gave a useful summary of the principles identified by the Court of Appeal in Siborurema. He emphasised the considerable degree of discretion afforded to the OIA, and the degree of deference which should be shown to the expertise of the OIA. Once again the Court declined to interfere with the OIA's Decision, and endorsed its approach.
During 2009, permission was granted to two students to bring Judicial Review claims against the OIA. On the first, judgment was delivered on the 12 May 2010, the second was due to take place in May 2010 but has been postponed until later in the year.
In the first case, His Honour Judge Langan QC has granted permission to a Mr Budd on one ground of challenge only. The question at issue is whether the OIA's Decision was undermined because we did not call for a copy of the exam script.
In his judgment, Mr Ockelton said:
“The OIA does its task properly if it continues its investigation until it is confident that it has all the material it needs in order to make a decision on the individual complaint, and then makes its decision. The exercise of a discretion in this context is simply the continuous consideration of whether any more information is needed in order to make a decision on the particular complaint.”
Mr Budd also made a late application to amend the grounds to include an allegation “that the OIA is being operated in a way that is unlawful and ultra vires its strict statutory powers and duties in relation to independence”.
On this point Mr Ockelton said:
“the allegation or implication that the OIA is not independent is not made out...There is simply no evidence that the Independent Adjudicator is not independent, nor that the Board, however constituted, attempts to influence the Independent Adjudicator.”
In the second case, the claimant seeks to challenge the approach taken by the OIA in complaints raising the issue of disability discrimination. Granting permission to the Claimant, His Honour Judge Hickinbottom said: "The hurdle for the Claimant at this stage is not high. Whilst I see the force in the Defendant's Summary Grounds, I consider this claim is arguable and it concerns the important relationship between a complaint to the Defendant and court proceedings in relation to circumstances in which there has been (or may have been) disability discrimination by the relevant HEI. The crucial issues it raises are: Does the OIA have the 'jurisdiction' to make findings of discrimination: and, if so, ought it to have done so in the circumstances of this case?" We believe that this case will provide useful further guidance to the OIA as we grapple with this difficult subject.
