From students in a learning community to an adversarial relationship between customers and providers: litigation is in the air

Karen Stephenson, University Secretary at Birmingham City University, discusses the litigation by aggrieved students currently working its way through the courts.

There are few examples which illustrate the changed environment and the changed relationship between students and their universities more starkly than the litigation currently working its way through the courts. Students, once collegiate members of a learning community, have become aggrieved customers that have a tarnished view of universities.

Over a period which exceeded three years, students in UK Higher Education institutions (HEIs) have endured strike action (from 2018) and the Covid-19 lockdowns, shutdowns, to doing their work online in the same bedroom in the parental home they thought they had left to begin enjoying the freedoms of adult life at university. Tuition and accommodation fees were still paid. It is from this scenario that the Student Group Claim has grown. Lawyers have argued that in exchange for tuition fees, universities were contractually bound to provide in-person tuition, facilities and services to students. However between 2018-2022 there was a “material difference between what students paid for and what they actually received”.

Letters prior to claim have been sent to 18 HEI’s seeking damages on behalf of both current and former students. The universities in receipt of letters to date can be found here.

The lawyers representing students have claimed that universities thrived financially during the Covid-19 period and the 18 universities which have been challenged earned a surplus of more than a billion pounds during the 2021 financial year. In addition they collectively held more than £16.3 billion in net assets. They have increased student numbers and have jointly received more than £54 million in government furlough payments. Meanwhile students, most of whom borrow money to pay for the privilege of attending these universities have been disadvantaged.

The position of universities has been articulated by UUK. “The Covid-19 pandemic threw two years of unprecedented challenge at the higher education sector and our students, and we are proud of how universities adopted and managed in adverse circumstances”. Further “During some periods of lockdown, universities were not permitted to offer teaching and learning as usual and instead universities adjusted quickly and creatively to ensure students could learn and graduate”.

Litigation by groups which have a common interest exists in the UK in the form of “Group Litigation Orders” (GLO)[1]. In the UK there is no ‘right’ to take action under a GLO. A court must grant permission to the Applicants to litigate in this way. The Civil Procedure Rule (CPR) 19.11 states that the court may make a GLO if there are, or there are likely to be, a number of claims which will give rise to GLO issues.

If a ‘GLO’ application is successful under CPR Point 23, the court can manage all current and subsequent claims covered by the order in a coordinated way. The Civil Procedure Rule 19.11 directs the GLOs to establish a group register of relevant claims. The GLO issues will be defined and the individual claims which are to be managed as a group identified, in conjunction with the court which will manage the coordinated claims.[2] All judgements, orders and directives made by the court are binding on all claims within the GLO unless specified otherwise.[3]

Once a GLO is authorised, claimants within the group have an opportunity to identify other potential members of the group and invite them to join the GLO. A larger number of claimants has the advantage of splitting the costs, increasing the availability of similar and supporting evidence as well as spreading the risk of litigation more widely. To date approximately 20,000 past and current students from England and Wales have joined these groups. Additional claimants are usually identified by publicising the existence of the GLO and the situation. This publicity is required to meet the solicitors’ code of conduct which prohibits the solicitation of clients.

The High Court is scheduled to decide whether to issue a GLO for the first Student Claims Group which is against University College London on 2nd February 2023. To date 3,500 former and current UCL students have joined this Student Claims Group. If this precedent is established one might reasonably expect similar orders to be made for student groups who wish to litigate against other universities

The transition from ‘students’ to ‘customers’ has been discussed for a number of years. The expectations of students and a changed attitude towards ‘their’ universities is becoming increasingly apparent. If the GLO is granted in February, individual students may achieve in the region of £5,000 compensation each while international students could obtain more than double this amount. If this happens the pain for universities will be both financial and reputational. In this context the words of the David Bowie song Changes may not sit well with senior University management but with average student debt upon leaving university in England at around £45,000 they may ‘chime’ with students:

“And these children that you spit on
As they try to change their worlds
Are immune to your consultations
They’re quite aware of what they’re going through
Ch-ch-ch-ch-Changes (turn and face the strange)
Don’t tell them to grow up and out of it
Ch-ch-ch-ch-Changes ((turn and face the strange)
Where’s your shame?
You’ve left us up to our necks in it”

David Bowie (1971) Changes

[1] Civil Procedure Rule 19.11 (1)

[2] Civil Procedure Rule 19.11 (2)

[3] Civil Procedure Rule 19.12