University fails in bid to get Free Speech Union to pay costs of intervention in regulatory dispute with Office for Students

In The University of Sussex, R (On the Application Of) v The Office for Students (Costs) [2026] EWHC 2708 (Admin), Mrs Justice Lieven agreed that there were “exceptional circumstances” within the meaning of s.87 (7) of the Criminal Justice and Courts Act 2015, which should lead the Court not to make a costs order against the intervenor.

She said: “This case was of considerable wider interest to the higher education sector both in terms of the scope of the OfS's powers to regulate, and the meaning of freedom of speech, and raised issues of very broad concern. It was important that the Court could hear a range of submissions so that it could fully and properly consider both the specific arguments, but also the broad context. That wider public interest would itself be justification on the facts of this case for the FSU's submissions to fall within s.87(7).”

The judgment concerned the costs order to be made following the judgment in The University of Sussex, R (On the Application Of) v The Office for Students [2026] EWHC 984 (Admin) (29 April 2026).

There were two issues:

a) Whether the Office for Students (OfS) should pay the entirety of the University's costs or whether a 10% reduction should be applied to reflect those parts of the case upon which the OfS was successful;

b) Whether the Intervener (the Free Speech Union) should pay the University's costs occasioned by the intervention.

In her ruling Mrs Justice Lieven had concluded that the OfS erred in law when it made a decision that the University of Sussex was in breach of two registration conditions.

The regulator had fined the university £585,000 over the breaches.

The university was successful on the large majority of the case and succeeded in having the entirety of the decision quashed in respect of both breaches found.

However, the OfS was successful on Ground Two, (the extent of the Visitor's jurisdiction), as well as on three other more minor grounds.

Mrs Justice Lieven observed: “The OfS accepts that costs will follow the event and submits only that it would be appropriate to make a 10% reduction in the University's costs when the costs have been assessed.”

The OfS raised the following five reasons why the Court should make a reduction (primarily by reference to the Visitors issue):

The ground was not a reasonable one to take given the Court's finding that the university's analysis was "illogical and probably unworkable".
The university changed its position during the course of oral argument, by accepting that "some invasion of the Visitors' jurisdiction can be implied into HERA" (J165 and J182).
The university is wrong to suggest that the Court found that the OfS's characterisation of its jurisdiction being concurrent with that of the King was incorrect. The judgment in fact does not make such a finding.
The answer to the issue was plain from the text of the statute, but the university placed considerable reliance on historical materials, which involved considerable work by the OfS. Given the importance of the point to the OfS's regulatory duties, the OfS had to expend considerable resources on the issues.
The OfS also succeeded on three other grounds.

The university submitted that the Visitors issue was an important, novel and arguable point that needed to be considered by the Court and upon which permission had been granted.

It also pointed to the parts of the judgment where the Court noted the surprising fact that there appeared to have been little consideration of the impact on the Visitorial jurisdiction by the creation of the OfS.

Mrs Justice Lieven concluded: “I agree with the University that the Visitors issue was an important one, in the context of a fairly new statutory scheme, and a complex regulatory framework, with no directly applicable previous authority. The Ground was arguable and the University had been granted permission upon it. As was said in the judgment there was an uncomfortable interface between the role of the Visitor and the role of the OfS, which did not appear to have been fully considered through the Bill's progress. Although I found against the University on the issue, I do not think there was anything unreasonable about them raising the issue, or in the way they conducted the argument.

“There were oddities and changes of position in both parties' cases. Given the overall success of the University in its case, and the arguable nature of the issue, I do not consider it would be correct to reduce the University's costs.”

The second issue was whether the FSU should pay the university the costs occasioned by the intervention.

The power to make a costs order against an Intervener is contained in Section 87 of the Criminal Justice and Courts Act 2015, which provides;

"(1) This section applies where—

(a) a person is granted permission to file evidence or make representations in judicial review proceedings, and

(b) at that time, the person is not a relevant party to the proceedings.

(2) That person is referred to in this section as an "intervener" . […]

(5) On an application to the High Court or the Court of Appeal by a relevant party to the proceedings, if the court is satisfied that a condition described in subsection (6) is met in a stage of the proceedings that the court deals with, the court must order the intervener to pay any costs specified in the application that the court considers have been incurred by the relevant party as a result of the intervener's involvement in that stage of the proceedings.

(6) Those conditions are that—

(a) the intervener has acted, in substance, as the sole or principal applicant, defendant, appellant or respondent;

(b) the intervener's evidence and representations, taken as a whole, have not been of significant assistance to the court;

(c) a significant part of the intervener's evidence and representations relates to matters that it is not necessary for the court to consider in order to resolve the issues that are the subject of the stage in the proceedings;

(d) the intervener has behaved unreasonably.

(7) Subsection (5) does not require the court to make an order if it considers that there are exceptional circumstances that make it inappropriate to do so."

The university submitted that the conditions in s.87(6)(b), (c) and (d) were all met.

Considering the university’s submissions, Mrs Justice Lieven said: “I do not consider that the tests in s.87((b) or (c) are met. The question of what is meant by ‘freedom of speech within the law’ was of considerable importance not merely to some of the Grounds, but also to the entire context of the case.

“Although by the time of the hearing the two principal parties were largely agreed, it was important and of ‘significant assistance’ to the Court to have the FSU's submissions on the breadth of the issue and the arguments that could arise under Article 10 ECHR. As is often the case with Interveners, the submissions did not in the end go to the heart of the Court's conclusions, but they were still of considerable assistance in understanding the broader context and the potential ramifications of arguments that were being made by the principal parties.

“This was particularly so in a case such as this, where the outcome was inevitably going to be scrutinised across the higher education sector, given the relative lack of previous caselaw, and the importance of the issues to the sector.”

Meanwhile, the High Court considered that the same position arose under s.87(6)(c).

The second issue raised was the scope of consideration of Convention rights in determining whether an institution had taken reasonably practicable steps to secure lawful speech.

The FSU submitted that this was not a "significant part" of the submissions, and therefore did not fall within s.87(6)(c).

Mrs Justice Lieven said: “In respect of the test in s.87(6)(b) the Court rejected the FSU's submission at J221, but, again, I agree with the FSU that the fact that the argument was rejected, does not mean that the submissions on the point were not of significant assistance.

“Further, the wording of s.87(6)(b) that the submissions ‘taken as a whole’ have not been of significant assistance, in my view points towards not disaggregating the issues unless there is a very clear demarcation between the different parts of the Intervener's submissions or evidence, which would justify a topic-based approach to costs. That was not the case here, where the two issues were closely interrelated.

“In respect of s.87(6)(d) I do not consider that the FSU acted unreasonably in its submissions. The case was of widespread interest and significance across the higher education sector. The FSU's approach was at all stages proportionate and focused. The Court did not agree with those submissions, but there was nothing unreasonable in the FSU's behaviour.”

Declining to make a costs order against the FSU, Mrs Justice Lieven concluded: “I agree with the FSU that there are exceptional circumstances within the meaning of s.87(7), which should lead the Court not to make a costs order against the FSU.

“This case was of considerable wider interest to the higher education sector both in terms of the scope of the OfS's powers to regulate, and the meaning of freedom of speech, and raised issues of very broad concern. It was important that the Court could hear a range of submissions so that it could fully and properly consider both the specific arguments, but also the broad context. That wider public interest would itself be justification on the facts of this case for the FSU's submissions to fall within s.87(7).”

Tom Cross KC and Zoe Gannon of 11KBW acted for the intervener, the Free Speech Union.

Lottie Winson