OfS must pay full legal costs to Sussex

So we know from the annual report that the Office for Students had set aside £660,000 to cover the legal costs faced by the University of Sussex in its successful judicial review, and noted with interest that this sum was considerably larger than the original freedom of speech fine that sparked the whole process.

What we didn’t know, until last week, was whether the High Court would actually award costs – in full or otherwise. And it turns out that – based on a hearing held on 23 October – that OfS do have to pay the whole thing.

As is usually the case with these things we are not told the precise dimensions of the bill. However much we would all love to know the precise costs to the public stemming from OfS’ flawed regulatory processes, that’s not something we can say – though it seems fair to suggest that the costs are not unadjacent to the amount that OfS had set aside.

Did OfS get a discount?

OfS, of course, worked hard to secure value for money for the public and suggested to Justice Leiven that it should have a ten percent discount on the amount awarded.

The argument was that OfS was successful on ground two (the visitorial jurisdiction thing that could have undermined the entire regulatory approach of OfS), and some minor grounds (5B on an “anti-competitive” approach, 5E on the “chilling effect”, and 6A on failure to disclose evidence).

It’s the visitorial issue that most hay was made with: because the court said that the university’s argument was “illogical and probably unworkable” and because Sussex accepted that some invasion of visitorial jurisdiction was implicit in the wording of the Higher Education and Research Act. If you remember the judgement and the arguments, you’ll recall that the University Visitor is, for most older universities, the mechanism by which staff complaints should be dealt with when internal routes have failed. The argument was that it is technically the Visitor that should be interpreting the university statutes and regulations, not the regulator.

You’d think that OfS would be glad to have this issue sorted out and backed by a judicial interpretation of statute that could be relied on in future. Justice Leiven, too, agreed that this was an “important” issue to discuss and resolve: she did “not think there was anything unreasonable about them raising the issue, or in the way they conducted the argument.”

So for this reason – and because the university won the case overall – there was no reduction of costs.

What about the Free Speech Union?

I’d be surprised if you recalled that the FSU “intervened” in this case – it filed evidence and made an argument that needed to be considered as part of the judgement, relating to the way OfS interpreted the phrase “freedom of speech within the law.” The university argued that because they spent time and money dealing with the issues raised by the FSU then costs should be awarded there too – rather crisply noting that it had been suggested in court that the intervener’s submissions were not of “significant assistance to the court” and did not “change or add anything.”

Justice Lieven did not agree with the university position. She said that because the case was of “considerable wider interest to the higher education sector” and that the FSU submission “raised issues of very broad concern” the intervention was reasonable even though, in the end, the court did not agree with the submissions made.

So FSU does not have to pay costs to the university. This may be a relief to the beleaguered organisation as it deals with “internal allegations of racism and sexually inappropriate remarks” reported widely in the press.

In conclusion

Sasha Roseneil, vice chancellor of the University of Sussex, said:

This High Court decision that the Office for Students must pay the university’s legal costs brings a further measure of resolution to a deeply regrettable and unnecessary episode. The OfS’s original decision, which was resoundingly quashed by the High Court in April, has consumed an extraordinary amount of time and resource, both for the University and the regulator. More importantly, it has caused lasting and unjustified damage to the university’s reputation.

While we welcome the Court’s decision on costs, this is not an occasion for celebration. Our hope is that the OfS continues to reflect carefully on the many lessons of this case, and never again so fundamentally misunderstands both the law and its own powers, and never again prosecutes an investigation in the way it acted against Sussex: in the words of the judge, with ‘bias’, ‘predetermination’ and ‘a closed mind’. Universities need fair, proportionate and effective regulation, and I look forward to working constructively with the new leadership as they seek to change the culture and practices of the OfS.

At the time of publication there has been no comment from OfS, which is already engaged in a “lessons learned” exercise relating to the findings of this judicial review.