HEARING DATE 26 NOVEMBER 1982
University - Visitor - Modern university - Jurisdiction of visitor - Contract - Petitioner applying for and offered place to study particular course - Petitioner accepting offer - University unable to mount course and offering petitioner place in alternative course - Petitioner accepting new offer and admitted to university to study alternative course - Petitioner seeking damages for breach of contract - Petitioner alleging university withdrew original offer in breach of contract - Whether visitor having jurisdiction to hear petition alleging breach of contract by university - Whether visitor having jurisdiction to hear petition from stranger to university - Whether petition misconceived.
Corporation - Visitor - Jurisdiction - Damages - Moneys wrongfully withheld from member of foundation or had and received to his use or impressed with trust in his favour - Whether visitor having jurisdiction to order payment of money to member.
HEADNOTE:
The two petitioners applied for admission to a university for the purpose of taking a course in human communication which was listed in the university's undergraduate prospectus for the year 1981-82. Both applications were accepted, the acceptance taking the form of an offer of a place for the purpose of studying the course of human communication which in each case was accepted by the petitioners. In the event the university was unable to mount the course, but it offered the petitioners a place in the university to take a choice of alternative courses. The petitioners accepted that offer and were admitted to the university to study a course of human psychology. In October 1981 the petitioners brought actions against the university in the county court for damages for breach of contract arising out of the university's late and wrongful retraction of its offer to the petitioners to study human communication. The registrar struck out the proceedings and his decision was upheld by the judge, who declined jurisdiction on the ground that the matter was properly within the exclusive jurisdiction of the visitor of the university. In May 1982 the petitioners petitioned the university's visitor, seeking similar relief to that claimed in the county court. Although one petitioner had terminated her course in March 1982, it was accepted that both petitioners remained members of the university.
Held The petitions would be dismissed for the following reasons:
(1) A visitor of a foundation had no jurisdiction in any matter governed by the common law, and, once a relationship with the foundation had been established which was governed by the general laws of the realm over which the visitor could have no jurisdiction, the visitor was wholly excluded from considering any question concerning that relationship. Since the relationship of contract was governed by the general laws of the realm, the visitor had no jurisdiction over contracts entered into with the foundation, and the fact that the other contracting party was also a member of the foundation did not have the effect of excluding the jurisdiction of the courts and putting the matter exclusively within the visitor's authority (see p 91 c to f and p 92 c, post).
(2) Assuming that prior to the petitioners' admission to the university there was a contractual relationship between the petitioners and the university, any late and wrongful retraction by the university of its offer to the petitioners to study human communication took place prior to their admission to the university (and therefore while they were strangers to it) and sounded in contract or in nothing. Accordingly, since a visitor had no jurisdiction over contracts made between a corporation or a member of a corporation of which he was the visitor and a stranger who was outside the corporation, the petitions were fundamentally misconceived and the visitor had no jurisdiction to hera them (see p 91 d f to h and p 92 c, post).
(3) In any event the acceptance by the petitioners of membership of the university on terms different from those of the alleged contract and the action of the parties in acting on that acceptance effectively substituted the new obligations for the old and put an end to any rights of either party under the old contracts either by novation, variation or estoppel (see p 91 d h j and p 92 c, post).
Per Lord Hailsham LC. It may be that a visitor has the power to order the payment of money wrongfully withheld from a member of a foundation or had and received to his use or, less probably, impressed with a trust in his favour. But to order what is in effect a payment in respect of damages is in effect to create a new type of compensation sounding neither in contract nor in tort, and in the absence of any special provision in the charter or statutes of the foundation would be wholly outside the functions or powers of the visitor (see p 91 j to p 92 b, post).
NOTES
For visitors of modern universities, see 15 Halsbury's Laws (4th edn) para 284, and for cases on the subject, see 19 Digest (Reissue) 570-571, 4256-4265.
For the nature of visitatorial power and a visitor's powers and jurisdiction, see 5 Halsbury's Laws (4th edn) paras 872, 879-884, and for cases on the subject, see 8(1) Digest (Reissue) 452-453, 456, 2020-2030, 2078-2089.
INTRODUCTION
Petitions. Clare Casson and Amanda Elaine O'Brien, by separate petitions dated 18 May 1982 and addressed to the visitor of the University of Aston in Birmingham, sought as against the university the following relief: (1) a hearing at which the petitioners could present to the visitor their grievance against the university; (2) compensation for the university's alleged late and wrongful retraction of its offers to the petitioners to study the course of human communication listed in the undergraduate prospectus issued by the university for the year 1981-82; and (3) costs. In the absence of the appointment of a visitor of the university pursuant to the power reserved to Her Majesty by cl 28 of the university's royal charter dated 22 April 1966, the visitatorial power in relation to the university was and remained vested in Her Majesty, and accordingly by permission and command of Her Majesty the Lord Chancellor of Great Britain undertook the burden of determining the petitions in exercise of Her Majesty's visitatorial powers. The facts essential to the determination of the dispute appearing sufficiently from the petitions, from the university's answers thereto dated 30 June 1982, from the petitioners' replies dated 13 October 1982 and from certain other available documents, and not being significantly or relevantly in dispute, the Lord Chancellor did not direct an oral hearing or take oral evidence. The facts are set out in the determination.
JUDGMENT READ 26 November.
PANEL: LORD HAILSHAM OF ST MARYLEBONE LC ON BEHALF OF THE VISITOR
JUDGMENT BY LORD HAILSHAM OF ST MARYLEBONE LC.
1. The University of Aston in Birmingham (hereinafter referred to as 'the university') was incorporated by royal charter dated 22 April 1966, scheduling the statutes of the university as the second schedule to the said charter.
2. By cl 28 of the said charter Her Majesty reserved to herself, her heirs and successors the right to appoint a visitor of the university in circumstances more particularly defined in the said clause. No such appointment has in fact been made and in consequence the visitatorial power in relation to the university is and remains vested in Her Majesty.
3. In accordance with normal constitutional usage, and for the purposes of the present dispute, by permission and command of Her Majesty, I, the Right Honourable Quintin McGarel, Lord Hailsham of St Marylebone, Lord Chancellor of Great Britain, have undertaken the burden of determining the above-named petitions in exercise of Her Majesty's visitatorial powers.
4. The two above-named petitions are each dated 18 May 1982. The university delivered separate answers to the said petitions, each dated 30 June 1982. The two petitioners delivered replies to the said petitions each dated 13 October 1982. In addition to these documents, and their respective annexures, for the purposes of the present determination, I have taken into account a letter dated 3 June 1982 written to the Lord Chancellor's Department on behalf of the said petitioners by Messrs Robin Thompson & Partners, the solicitors to the petitioners, and the purported copy of the judgment more particularly referred to in para 8 of this determination.
5. Since the facts essential to the determination of this dispute appear suffciently from the above documents, and do not appear to be significantly or relevantly in dispute, I do not find it necessary to direct an oral hearing or to take oral evidence.
6. Both petitions arise out of similar facts. The undergraduate prospectus issued by the University for the year 1981-82 listed a course entitled Human Communication, and both petitioners applied for admission to the university for the purpose of taking this course. Both applications were accepted by the university, in the case of the petitioner O'Brien unconditionally, in the case of the petitioner Casson on conditions which, in the event, were fulfilled. The acceptance took the form of an offer of a place for the purpose of studying the course on Human Communication which in each case was accepted by the petitioners.
7. In the events which happened the university found itself unable to mount the course (described by the university as 'the B.Sc. Behavioural Science Course on which you have been offered a place'), but in each case offered the petitioners a place in the university to take a choice of alternative courses. In each case the petitioner concerned accepted this offer and was in fact admitted to the university to study a course referred to as Human Psychology. The documents show that the petitioner O'Brien remains an undergraduate member of the university (presumably studying this course), and is therefore, both now and at the time of the petition, a member of the university. Although the petition of the petitioner Casson describes herself as 'an undergraduate member of the University', para 6 of her reply shows that she terminated her course on 19 March 1982 with the result that 'it will take me one extra year to graduate'. Since the university does not contend to the contrary I assume, however, that she remains a member of the university for the purposes of her petition.
8. In October 1981 both petitioners appeared to have sued the university in the Birmingham County Court for damages for breach of contract arising out of the above matters. In the event it appears that the proceedings were struck out by the registrar, and that on appeal on 16 February 1982 his Honour Judge Toyn upheld the decision of the registrar, but gave leave to appeal to the Court of Appeal. This does not appear to have been pursued. I have not available to me a complete record of the proceedings in the Birmingham County Court, but I have read what purports to be a copy of the judgment declining jurisdiction, on the ground that the matters arising are properly within the exclusive jurisdiction of the visitor. The essence of the judgment as recorded is confirmed by the letter of 3 June 1982 above referred to from the petitioners' solicitors. Having read it with interest and care I do not feel bound to say more than that, in so far as it is inconsistent with what follows, I respectfully disagree with it. I do not regard myself as bound by the decision.
9. It is, perhaps, unfortunate that none of the parties to this dispute have referred to the exhaustive and up-to-date article by Dr Peter M Smith 'The Exclusive Jurisdiction of the University Visitor' (1981) 97 LQR 610. If they had, I believe much trouble would have been avoided.
10. The two petitions are each founded on an alleged contract between the respective petitioners before they became members of the university to provide instruction in accordance with the terms of the original prospectus. The existence of this contract is denied by the university.
11. Apart from a request for a 'hearing at which I can present to the Visitor my grievance against the University' the only prayer for substantive relief in the petitions is a prayer for 'compensation from the University for its late and wrongful retraction of their offer to me to study human communication', and a prayer for costs. I agree, however, with Dr Smith that a visitor can have no jurisdiction in any matter governed by the common law, eg contract (see 97 LQR 610 at 615). I regard each of the petitions as claims for damages for breach of a contract entered into before the petitioners became members of the university and for nothing else. For the purposes of argument I assume (without deciding since the matter is contentious) that, had the university refused to accept the petitioners as members of the university, it might have been possible for the visitor to direct the admission of the petitioners, but, as they were in fact admitted, albeit by agreement with the petitioners for a different course, and both parties presumably acted on the faith of this agreement, I do not find anything within the jurisdiction of the visitor disclosed by the petition. I also agree with Dr Smith when he writes (at 642), though in a slightly different context:
'... once a relationship has been established which is governed by the general laws of the realm over which the visitor can have no jurisdiction, the visitor is wholly excluded from considering any question concerning that relationship. There does not seem to be any good reason why this reasoning should not be equally applicable to the relationship of contract which is likewise governed by the general laws of the realm. The visitor can have no jurisdiction over such contracts, and by analogy with the trust situation, it would appear that the fact that a contracting party is also a member of the corporation will not have the effect of excluding the jurisdiction of the courts and putting the matter exclusively within the visitor's authority.'
12. Assuming in favour of the petitioners (but without deciding) that prior to their admission to the university there was a contractual relationship between the petitioners and the university, any 'late and wrongful retraction' (on which the only claim for substantive relief is based) took place prior to the admission of the petitioners to the university and either sounds in contract or in nothing. I refer also to the proposition in Dr Smith's article (with which I also agree) that '... the visitor has no jurisdiction over contracts made between the body, or member of the body of which he is visitor, and a stranger who is outside the foundation' (cf 97 LQR 610 at 637 and passim). The matters complained of in both petitions, if they give rise to complaints at all, occurred at a moment of time when the petitioners were wholly 'outside the foundation of the University', and therefore strangers to it.
13. Even if I were wrong about this I would hold that the acceptance by the petitioners of membership of the university on terms different from those of the alleged contract, and the action of both parties in acting on that acceptance (in the case of the petitioner Casson at least until March 1982 and in the case of the petitioner O'Brien apparently up to the present), effectively substituted the new obligations for the old and put an end to any rights of either party under the old contract either by novation, variation or estoppel.
14. I must add this. As I have said, the only substantive prayer for relief in this case is a monetary claim for compensation in the nature of damages. After considerable research, I have been unable to find any precedent in the long history of visitatorial powers in which a visitor has made such an order and in my view he has no such power. It may be, though I do not so decide, that a visitor has the power to order the payment of moneys wrongfully withheld from a member of a foundation or had and received to his use or, less probably, impressed with a trust in his favour. But to order what is in effect a payment in respect of damages is in effect to create a new type of compensation sounding neither in contract nor in tort. This could only be done by statute and in my view in the absence of any special provision in the charter or statutes of the foundation is wholly outside the functions or powers of a visitor.
15. The only order capable of being made by the visitor would be to order the university to mount a special course of the original specification for the benefit of the petitioners. This is not asked for and would in any event be out of the question, owing to the time which has elapsed and the events which have supervened. In any event I would have regarded the mounting of such a course as a matter within the unfettered discretion of the university authorities assuming them to be acting within their powers and in good faith (see the proposition and authorities in 5 Halsbury's Laws (4th edn) para 882). In the event I determine and decide that both these petitions are fundamentally misconceived and therefore stand to be dismissed.
DISPOSITION
Petitions dismissed.
SOLICITORS:
Robin Thompson & Partners, Birmingham (for the petitioners);
Johnson & Co,
Birmingham (for the university).