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

Date01 January 2015
AuthorSteve Hedley
Students as Litigants: a Public Law or a
Private Law Issue?
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
01[05] Hedley.indd 1 04/06/2015 14:14

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