Students as Litigants: a Public Law or a Private Law Issue?

• Date: 01 January 2015
• Author: Steve Hedley

1

Students as Litigants: a Public Law or a

Private Law Issue?

STEVE HEDLEY

Introduction

Are third-level students entitled to treat their relationship with their college

as contractual, or are their entitlements a matter of public law? A plausible

case could be made for either interpretation, though most litigation around

this issue is in fact fought on public law ground rather than private law.

The notion that the university-student relationship is becoming more

contract-like, and that in time universities will have to acknowledge that

they are dealing with “customers” rather than students, has considerable

political traction; but as a matter of law there is little evidence for it, nor

reason to suppose that a private law analysis will become more appropriate

in the foreseeable future.

In litigation between a student and a Cambridge college, before the

English High Court in 1896, WillsJ remarked that it was “obvious that the

relation between an undergraduate and his college was not a contractual

one”.1 Yet a century and a quarter later, the matter is far from obvious.

Plaintiff students have sometimes relied on contract, sometimes on public

law, though in both scenarios (in Ireland at any rate) with conspicuous lack

of success. As will appear, the public law analysis has to date dominated the

cases, though it is not clear whether this will continue. This article reviews

Irish litigation to date, and considers possible future developments.

A Market in Third-level Education? Politics and Rhetoric

It requires no very elaborate search to nd complaints about the

contractualisation of universities, the increasing prevalence of business

methods and management, the encouragement of student consumerism,

and the supposedly deleterious effects of all of these.2 This article is not

about the trajectory and likely fate of the Irish third-level system, but a few

remarks are in order, to set the scene.

1 Green v Master and Fellows of St Peter’s College Cambridge, Times 10 February 1896.

Many thanks to Dr Eoin O’Dell for assistance in researching this case

2 See especially M. Gallagher, Academic Armageddon: An Irish Requiem for Higher

Education (Dublin: Liffey Press, 2012), especially ch.3; B. Walsh (ed.), Degrees of

Nonsense: the Demise of the University in Ireland (Dublin: Glasnevin Publishing,

2012), especially ch.6

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