The student group claim is off to court
Jim is an Associate Editor at Wonkhe
Tags
Today we got the news that following a breakdown of talks aimed at finding an alternative resolution to the dispute, the UCL claim (the idea is to start with UCL and then work from there) is to proceed to the High Court.
Their argument is that in law, they are consumers who contracted with UCL on standard terms for the provision of in-person tuition and campus facilities, and who paid substantial tuition fees for those services ranging from £9,250 p.a. for home domiciled undergraduates to £25,000 p.a. or more for UK graduate students and international students – but did not receive the services for which they contracted and paid.
There’s more detail on what they’re arguing from when we covered the case in July.
UCL “denies liability, causation and quantum” in a defence that it submitted in April – but last summer the university also argued that before getting to the merits of the case itself, the claims should be referred to the state-backed Alternative Dispute Resolution (ADR) service (ie the OIA) – and that the claims were “inadequately particularised”.
Last summer a judge resolved not to force the claimants to engage in ADR, but instead to press pause (“make an order for a stay”) to encourage both sides to engage constructively in “some form” of ADR.
That pause was set at 8 months – but there was a break clause on the basis of the judge’s concerns over:
- whether UCL and the OIA have sufficient resources to deal with this volume of complaints
- whether UCL/the OIA are prepared to consider not just the reasonableness or otherwise of moving courses and facilities online (which is not disputed by the Claimants) but also the reasonableness of charging full fees for the delivery of teaching and facilities solely online
- whether the parties will be able to find common ground in agreeing on a method of ADR that would be acceptable to each party
- whether the parties can agree on a process for each of them providing information to enable the individual claims to be determined
Whatever else has gone on, we now know that on those final two points, there’s been a breakdown. Talks between the students and UCL took place during January 2024 but “did not lead to agreement”. UCL says that it proposed that its internal complaints procedure be reopened to allow for students to make a complaint and, if not satisfied, refer UCL’s decision to the OIA before litigating – but that this was rejected by the claimants and UCL agreed to participate in mediation as an alternative.
So with the talks breaking down, the parties have mutually agreed to lift the stay of the Court proceedings. Now they will return to Court for a Case Management Conference and seek directions on how the litigation will be managed and proceed.
Things get interesting from here. The students and ex-students want a Group Litigation Order (GLO), a thing that allows a number of claims which concern common or related issues (of fact or law) to be managed collectively by the courts.
If it’s approved, it would allow for the separate claims of those students who “opt in” to the legal action to be effectively managed together, as if they were one claim. If that gets a yes, there will still need to be a trial to decide whether UCL should compensate the complainant students for changes made to the delivery of their programmes.
If the GLO application is not progressed or is refused by the Court, the case will still involve compensation cases being managed together by a series of test cases but without the formality of the GLO provisions.
David Hamon, the lead claimant and a member of the claimant committee, said:
It is a real shame that agreement was not reached with UCL. After a delay of nine months since the hearing last May and no sign of progress in mediation, we are really keen to have our claims heard by the court. I hope that this matter can now move swiftly forward to trial so that UCL’s students can receive compensation for the education that was lost.
UCL vice-provost Professor Kathleen Armour said:
We and the claimants’ lawyers have mutually agreed to lift the stay of the court proceedings so that the litigation can proceed. Disappointingly, our Alternative Dispute Resolution proposal, where students could use our internal complaints procedure and, if not satisfied, refer UCL’s decision to the Office of the Independent Adjudicator, was flatly rejected by the claimants’ lawyers.
There’s an important legal principle at stake here. UCL argues that all the changes to teaching and learning were implemented in the best interests of staff and students, and to meet unprecedented circumstances beyond its reasonable control – including worldwide lockdowns imposed to manage the pandemic.
In doing so it’s likely to have relied in its “force majeure” clause – which right now says (my bolding):
UCL will not be liable to you for loss and/or damage arising from circumstances or events that are outside UCL’s reasonable control. Such circumstances or events include, without limiting what is intended, strikes and other industrial action (of UCL staff or staff of third parties), over or under demand for courses or modules, lack of or significant reduction in funding from third parties (unless caused by UCL’s wilful default), non-availability of staff (on a long-term or short-term basis, such as staff illness), severe weather, fire, civil disorder, riot, terrorist attack or threat or terrorist attack, pandemic, epidemic, political unrest, government restrictions and concern with regard to the transmission of serious illness.
It’s the legality of those clauses that may end up being a big issue in the case – partly because of guidance at various points during the pandemic suggesting that universities may not be able to straightforwardly rely on those clauses, and partly because of subsequent guidance that they may well also be a problem in relation to industrial action.
It’s probably in everyone’s interests that we get an actual precedent-setting legal view on that long-running saga – especially given that most universities still have them in relation to strikes, despite apparently being told not to by the Competition and Markets Authority. There’s a way to go yet, but it looks like we may yet get one.
It was industrial action in the 1980s which led to the former polytechnics’ use of an early type of force majeure clause in the contractual relationship between the poly and its students, later adopted and expanded by all HEIs. There is no doubt at all in my mind that the current UCL clause – for example – is unfair to the student- consumer. All explained in the 2021 edition of The Law of Higher Education, which was able to include some Covid-19 materials as at April 2021, plus Updates to now on the OxCHEPS website. The students were right to refuse the internal complaints/OIAHE route: this is a breach of contract claim and nothing in the legislation which led to the creation of OIAHE mentions it being able to adjudicate on breaches of contract. Let the court get on with its job without further delay.
Luckily my institution does not have deep pockets, so we have not been targeted with similar litigation. I had the joyous task of managing the OIA relationship during a global pandemic, when they most definitely ruled on various covid-19 complaints alleging breach of contract, and from that I have two broad brush observations:
1.The OIA were generally more sympathetic to students that started a course prior to March 2020.
2.The OIA were generally more sympathetic to students on programmes with a practical element such as
laboratory work that cannot be easily replicated remotely.
Depending on when you started a course, and what course you studied, it may be entirely rationale to avoid the OIA route, and hope that a judge is more sympathetic.