HEARING DATES 18, 19 NOVEMBER 1987
University - Visitor - Jurisdiction - Domestic disputes - Undergraduate sent down for failing examinations - Undergraduate bringing action for breach of contract and natural justice - Whether undergraduate a member of college - Whether visitor a general or special visitor - Whether dispute subject to exclusive jurisdiction of visitor.
HEADNOTE
In 1984 the plaintiff was admitted to a Cambridge college in statu pupillari as a scholar to read for an honours degree in mathematics. The college was a body corporate governed by statutes made under the provisions of the Universities of Oxford and Cambridge Act 1923. In 1986 he failed to gain an honours pass and was informed that his future at the college would be decided at a meeting of the committee of the master and tutors of the college. The committee decided that he ought not to be permitted to return to the college. The plaintiff brought an action as against the college seeking, inter alia, declarations that the decision of the master and tutors was invalid and that he was entitled to return to the college and resume his studies, and alleging that the college was in breach of contract and the rules of natural justice in purporting to send him down. The college applied to strike out the action on the ground that the matters pleaded in the statement of claim fell within the exclusive jurisdiction of the college visitor. The plaintiff contended (i) that the visitor had no jurisdiction over him since he was not a corporator of the college, but only a member in statu pupillari, (ii) that the visitor was not a general visitor but a special visitor and (iii) that, even if he was a general visitor, he could not, on the true construction of the college statutes, properly be seised of the case.
Held
The plaintiff's action would be struck out for the following reasons:
(1) The jurisdiction of a university or college visitor depended not on membership of the foundation but on whether the rights being claimed arose under the domestic law of the university or college. Since the plaintiff's claim was to enforce rights enjoyed under the internal laws of the college he was subject to the exclusive jurisdiction of the visitor irrespective of whether he was a corporator or a member of the college (see page 1012 h j, post); Thomas v University of Bradford [1987] 1 All ER 834 applied; dictum of Megarry V-C in Patel v University of Bradford Senate [1978] 3 All ER at 848 not followed.
(2) In the absence of clear words to the contrary which removed his jurisdiction, it was normally inherent in the visitor that he had all the general powers of visitation and determination of disputes arising under the foundation's statutes. The mere fact that, in certain respects, his powers might be limited in the manner in which they could be exercised did not cut down his status from that of a general visitor to that of a special visitor. On the true construction of the college statutes the visitor had exclusive jurisdiction over the plaintiff since there were no clear words excluding his general visitatorial powers (see page 1013 b to d and page 1014 f g, post).
NOTES
For the nature of visitatorial powers and for a visitor's powers and jurisdiction, see 5 Halsbury's Laws (4th edn) paras 872-873, 877, 879-885, and for cases on the subject, see 8(1) Digest (Reissue) 452-453, 456, 2018-2030, 3078-3089.
For the Universities of Oxford and Cambridge Act 1923, see 15 Halsbury's Statutes (4th edn) 58.
CASES REFERRED TO
Davison, Ex p (1772) cited in 1 Cowp 319, 98 ER 1107, LC.
Herring v Templeman [1973] 2 All ER 581; affd [1973] 3 All ER 569, CA.
Patel v University of Bradford Senate (1/2) [1978] 3 All ER 841, [1978] 1 WLR 1488;
affd [1979] 2 All ER 582, [1979] 1 WLR 1066, CA.
R v Grundon (1775) 1 Cowp 315, 98 ER 1105.
Thomas v University of Bradford [1987] 1 All ER 834, [1987] AC 795, [1987] 2 WLR 677, HL.
Wislang's Application, Re [1984] NI 63, NI HC.
A-G v Talbot (1748) 3 Atk 662, 27 ER 903, LC.
Hines v Birkbeck College (1/4) [1985] 3 All ER 156, [1986] 1 Ch 524; appeal
dismissed [1987] 3 All ER 1040, [1987] Ch 457, CA.
R v Bishop of Ely (1788) 2 Term Rep 290, [1775-1802] All ER Rep 70, 100 ER 157.
R v Bishop of Worcester (1815) 4 M & S 415, 105 ER 887.
St John's College, Cambridge v Todington (1757) 1 Burr 158, 97 ER 245.
Wickman Machine Tool Sales Ltd v L Schuler AG [1973] 2 All ER 39, [1974] AC
235, HL.
INTRODUCTION
Motion
By a writ and statement of claim dated 5 March 1987 the plaintiff, Dominic Richard Giles Oakes, sought as against the defendant, Sidney Sussex College, Cambridge, declarations and damages arising out of breach of contract and breach of the rules of natural justice on 25 June 1986 when the master and tutors of the college decided that Mr Oakes would not be permitted to return into residence. By a notice of motion dated 29 September 1987 the college applied, inter alia, for an order that the action be struck out under RSC Ord 12, r 8 on the ground that the court had no jurisdiction in respect of the subject matter of the claim or alternatively under Ord 18, r 19 on the ground that the action was frivolous or vexatious or an abuse of the process of the court. The facts are set out in the judgment.
COUNSEL
Terence Etherton for the college;
Geraint Jones for Mr Oakes.
Solicitors: A L Bryden & Williams agents for Few & Kester, Cambridge (for the
college); Andrew Grove, Cambridge (for Mr Oakes).
Celia Fox Barrister.
PANEL: SIR NICOLAS BROWNE-WILKINSON V-C
JUDGMENT BY SIR NICOLAS BROWNE-WILKINSON V-C, 19 November 1987
There is before me a motion by the defendant, Sidney Sussex College, Cambridge (the college) seeking to strike out an action brought against them by a former undergraduate member of the college, Mr Oakes. For the purposes of this judgment the facts can be quite shortly stated.
Mr Oakes applied in 1983 to become an undergraduate member of the college for an honours degree course starting in October 1984. He was offered both a place at the college and a scholarship from October 1984. It was made clear in the letter that that scholarship was for two years only and came to an end at the end of the full Easter term in the second academic year. Mr Oakes was asked to, and did, sign a letter when accepting the offer of a place in these terms:
'I undertake that if I am offered and accept a place at Sidney Sussex College, Cambridge I will observe the charters, statutes, ordinances and resolutions of the University of Cambridge and of Sidney Sussex College, and will abide by the rules and regulations made from time to time by the University and by the College for their students. I understand that breach of this undertaking may result in temporary exclusion from residence at, or in permanent deprivation of membership of, the College and the University.'
He signed that on 11 September 1983. He went into residence in October 1984 reading for an honours degree in mathematics.
At the end of his second year he sat for part 1(b) of the mathematics tripos. He failed to obtain an honours pass and was only awarded an allowance towards an ordinary degree, that is to say not an honours degree. Under the statutes of the university no student can now be admitted for the purpose of reading for an ordinary degree. Graduation by ordinary degree is only available to a student if his college allows continued residence. Under the university statutes Mr Oakes was, by reason of his failure to obtain honours in part 1(b) of the tripos, unable to continue to read mathematics for an honours degree at the university at all.
Mr Oakes's scholarship expired on the last day of the full Easter term of his second year, namely 13 June 1986. A meeting of the committee of the master and tutors of the college was convened on 25 June 1986 to consider the future of undergraduates who had failed to obtain an honours pass in their examinations. Mr Oakes was informed that his case would be considered at the meeting on 25 June. Mr Oakes appeared before the meeting on 25 June. The committee determined that his failure in the tripos examination was due to lack of diligence and that he was an unsatisfactory student and ought not to be permitted to return to residence. Mr Oakes was so informed. He made certain representations, and his case was considered again on 4 July by the committee of the master and tutors, but they confirmed their earlier decision.
Mr Oakes, being dissatisfied with the decision, has on two occasions tried to reopen the matter and applied to the visitor of the college to hear his case. On both those occasions the visitor declined to entertain the application, saying that he has no jurisdiction to deal with it.
On 4 March 1987 Mr Oakes issued the writ in this action. By his statement of claim he alleges that the college was in breach of contract and in breach of the rules of natural justice in purporting to send him down. He claims by way of relief a declaration that the decision of the master and tutors was invalid and of no effect; a declaration that he is entitled to return into residence to resume studies in October 1987; damages and further or other relief. In the statement of claim he makes these, amongst other, allegations:
'(2) In about December 1983 the Defendant College agreed to admit the Plaintiff in statu pupillari as a scholar to read for an honours degree in mathematics. By implication the said agreement was governed by the Statutes and by the customs and practice of the College...(7) On a true construction of the Statutes and as a matter of custom and practice by implication in accordance with the rules of natural justice (a) the Plaintiff was entitled to a fair hearing before finally being removed from the College pursuant to Section 4 Chapter X thereof; (b) except as provided by the said Section 4 the Plaintiff was entitled to be heard by the Governing Body before being finally removed from the College.'
It is therefore clear that Mr Oakes's claim essentially stems on rights which he says were enjoyed by him under the statutes of the college.
In bringing this motion the college bases its claim to strike out on two grounds: first that the dispute ventilated in the action is one which falls within the exclusive jurisdiction of the visitor of the college and that accordingly the court has no jurisdiction to hear it; second it is alleged that the claim is frivolous and vexatious and should be struck out on those grounds. I have heard argument only on the first of those grounds, namely the jurisdiction of the visitor, and this judgment deals only with that point.
In order to understand the points that arise it is necessary to refer to a number of parts of the statutes which regulate the college. Those statutes are divided into chapters, each with a cross-heading. Within each chapter are various sections.
In ch 1 the cross-heading is 'The Constitution of the College'. Section 1 of ch 1 provides:
'The foundation of the College of Lady Frances Sidney Sussex shall consist of a Master, at least 25 Fellows (exclusive of honorary fellows) and Scholars.'
It is to be noted that a commoner is not a member of the foundation of the college as such. Only members of the senior common-room or scholars are corporators in the strict sense.
Chapter 2 has a cross-heading 'The Government of the College'. Section 1 provides:
'The government of the college shall be carried out in accordance with the Statutes by: (a) The Visitor; (b) The Master and Fellows; (c) The Governing Body; (d) The Council, if established.'
Section 2 is of critical importance. It provides:
'The Visitor of the College shall be the Viscount De L'Isle of Penshurst in the County of Kent, being the representative of the Sidney family...'
Then there are two provisos which are not relevant for present purposes. Section 3 constitutes a body known as 'The Master and Fellows'. Its exact constitution is not important for present purposes. Section 3(d) provides that the master and fellows have power
'to decide any questions which may arise as to the interpretation or operation of these statutes, in accordance with the provisions of Chapter XXXIX of these Statutes.'
Section 4 constitutes 'The Governing Body', which consists of senior members and four junior members. The statutes confer specific functions on the master and fellows on the one hand and on the governing body on the other.
Chapter 3 carries the cross-heading 'College Meetings'. Though nothing turns on the matter specifically, it appears that a college meeting is a meeting either of the master and fellows or of the governing body or of the council.
Under ch 4 a provision is made for the master. Under ch 4, s 10 the power to elect the master devolves on the visitor if no qualified person has been elected in accordance with the earlier machinery. There is also provision for the removal of the master for misconduct.
Chapters 5, 6 and 7 deal with fellowships and honorary fellowships. Chapter 8 provides that a fellow who is charged with grave misconduct or neglect of duty may be removed by a meeting of the governing body or suspended. Chapter 8, s 2 provides that any fellow so suspended or deprived may, within two months of the decision of the governing body, appeal to the visitor. There is therefore an express right of appeal by the fellow to the visitor.
Chapter 9 deals with studentships, scholarships, exhibitions and other emoluments. Section 6 of that chapter gives power to the governing body to deprive a student of his studentship or suspend him. There is no express right of appeal to the visitor against such a decision.
One of the critical chapters in the present case is ch 10, which is cross-headed 'Members of the College in statu pupillari'. It regulates the admission of a member who is in statu pupillari, the fees he is to pay, the requirements as to his residence and his obligations and duties. The crucial provision is contained in ch 10, s 4, which is the power under which the master and tutors purported to put an end to Mr Oakes's right of residence. It reads as follows:
'The Master and Tutors in consultation shall have power to refuse permission to continue in residence or to return into residence to a member of the College in statu pupillari who (a) in their opinion has proved, by failure in an examination, to be an unsatisfactory student, unless he is a Scholar or Exhibitioner who has not been deprived of his Scholarship or Exhibition despite such failure, or (b) fails to pay his College bills by the dates fixed by the Master and Tutors.'
Sections 5 and 6 provide as follows:
'5. The Governing Body shall have the power to remove temporarily or finally from the College any member of the College in statu pupillari whom they deem to be guilty of grave misconduct or to have proved himself to be an unsatisfactory student.6. Except as provided in Section 4 of this Chapter, no member of the College in statu pupillari shall be temporarily or finally removed from the College without being given the opportunity of being heard in his own defence at a College meeting.'
The first thing to be noted is that the powers under s 4 are exercisable by the master and tutors, a body not otherwise referred to, I think, in the statutes. Their power is strictly limited to a power to rusticate or send down when, in their opinion, the student has proved unsatisfactory by his failure in an examination. That is the limit of the powers of the master and tutors. Their powers do not, even in those circumstances, extend to a scholar or an exhibitioner. It is agreed that in the present case, since Mr Oakes's scholarship had come to an end before the powers under s 4 were exercised, that limitation does not apply.
Apart from the limited powers conferred on the master and tutors under s 4, the powers to remove those in statu pupillari are conferred on the governing body (a different body from the master and tutors) and there is a requirement that the person to be removed has to have an opportunity of being heard in his own defence at a meeting of the governing body. Finally, it should be noted that, in any case of removal, expulsion or rustication of an undergraduate under ch 10, there is no express right of appeal given to anybody.
Chapters 14 to 18 inclusive provide for the establishment of officers, being the dean, the chaplain, the bursars and the stewards. In ch 21 there are provisions for the removal of those officers by the governing body. In relation to the removal of officers, an officer removed has the same rights of appeal to the visitor as are provided under ch 8 in relation to fellows.
Finally I come to the other crucial provision in the statutes, which is in ch 39, which is cross-headed 'The Interpretation and Operation of Statutes and Ordinances'. Section 2 of ch 39 reads as follows:
'Any question which may arise as to the interpretation or operation of these Statutes shall be decided by the Master and Fellows at a College Meeting specially summoned by the Master, who shall give at least six days' notice thereof, provided that the Master or any two Fellows may, within six months, appeal against such decision to the Visitor, whose judgment thereon shall be final.'
Those are the statutory provisions against which the application is made by the college to strike out the claim on the basis that it falls within the exclusive jurisdiction of the visitor.
Shortly stated, the case made by the college is that the dispute between Mr Oakes and the college is a dispute over the exercise of the powers in ch 10 of the statutes; that Mr Oakes as a member, albeit an undergraduate member, of the college is subject to the jurisdiction of the visitor in relation to any such dispute; that, notwithstanding the fact that Mr Oakes's claim is based on contract or breach of the rules of natural justice, the claim being based on the statutes is within the visitor's exclusive jurisdiction and therefore the court has no jurisdiction. For those purposes the college relies primarily on the recent decision of the House of Lords in Thomas v University of Bradford [1987] 1 All ER 834, [1987] AC 795.
Mr Oakes's contention before the court is to this effect. Broadly he accepts that the college is right in saying that there should be a stay provided except for two points. The two points he puts forward are, first, that since he was not a corporator under ch 1 of the statutes, he is not subject to the jurisdiction of the visitor. He says he is a stranger to the jurisdiction and that therefore the visitor has no rights over him in relation to this dispute. The second point as the argument developed split into two parts. First, that the visitor is not a general visitor having general rights of jurisdiction but a special visitor, and second that, even if he is a general visitor, he has no general right to regulate the operation of chap 10 since the specific provisions in the statutes provide that he cannot properly be seised of Mr Oakes's case.
I will deal first with the question: has the visitor jurisdiction over this dispute, being a dispute between Mr Oakes, who is not a corporator of the college, but only a member of the college in statu pupillaris, and the college?
The argument most persuasively put forward by counsel on Mr Oakes's behalf is along these lines. He submits that the visitor only has jurisdiction over persons who are corporators of the charity. Those, as I have indicated, are defined by s 1 of ch 1 in such terms as to exclude commoners. Mr Oakes is therefore not a corporator and not subject to this jurisdiction. That, he submits, is none the less true even though those in Mr Oakes's position, that is to say undergraduates, are specifically dealt with by ch 10 of the statutes and are referred to throughout the statutes as members of the college. I think counsel for Mr Oakes accepts, as he is bound to, that the claim put forward by Mr Oakes in this case necessarily depends on rights conferred on him as a member under ch 10.
In support of those contentions counsel has pointed out, probably rightly, that there is no case in which an undergraduate member of an Oxford or Cambridge College has ever been held to be subject to the jurisdiction of the visitor. He relies strongly on the dictum of Megarry V-C in Patel v Bradford University Senate [1978] 3 All ER 841 at 848, [1978] 1 WLR 1488 at 1495. In that case Mr Patel was a student at the university. Under the statutes of that university students were members of the university as corporators. Megarry V-C held that he was accordingly subject to the jurisdiction of the visitor. However, in the course of his judgment he had to contrast the position of Mr Patel in Bradford University with that of students in the ancient universities of Oxford and Cambridge. Megarry V-C first pointed out that, so far as the membership of universities are concerned, they are not eleemosynary corporations at all and have no visitors. But he then went on to consider the position of students in relation to their colleges and said ([1978] 3 All ER 841 at 848, [1978] 1 WLR 1488 at 1495):
'Second, unlike these two universities themselves, their colleges are in general eleemosynary corporations and have visitors; but in most cases, at all events, the corporators of a college are only the master, fellows and scholars. (I speak, of course, in general terms; there are many variations between the different colleges, and these are not only in the titles of the heads of the colleges.) Of the undergraduates, only the scholars are corporators; neither the exhibitioners nor those who lack this distinction are members of the foundation. Accordingly, if there is a dispute between the college authorities and an undergraduate who is not a scholar, it does not fall within the jurisdiction of the visitor. That this the law appears from Ex parte Davison which is set out in the judgment of Lord Mansfield CJ in R v Grundon (1775) 1 Cowp 315 at 319, 98 ER 1105 at 1107. Davison was a commoner of University College, Oxford; an undergraduate who was not on the foundation and paid for his commons was in those days usually called a commoner. Davison was expelled from the college, and appealed to the Lord Chancellor as visitor. The college contended that his status was that of a mere pupil who had been received into the college, so that he was a stranger to the foundation and not a member of the society. He therefore was not within the visitor's jurisdiction. This argument succeeded before Lord Apsley LC, who decided the case with the advice of De Grey CJ and Adams B. In delivering the judgment of the Court of King's Bench in R v Grundon 1 Cowp 315 at 321, 98 ER 1105 at 1109 Lord Mansfield CJ treated this as being decisive of the case before him. Much more recently the Court of Appeal rejected the contention that a student at a teacher-training college was within the visitatorial jurisdiction when it appeared that, though a student there, he was in no position of membership: see Herring v Templeman [1973] 3 All ER 569 at 571-572.'
That dictum by Megarry V-C plainly supports the contention of counsel for Mr Oakes up to the hilt. The real question is whether it is right in law. The exact status of undergraduates at Oxford and Cambridge colleges was not in issue before Megarry V-C. It is common ground that his remarks were obiter. Nor was it in issue before him that there might be a middle position, namely a student who was not a corporator but might be a member whose membership might be regulated by the terms of the statute. It appears to me that the first task is to see whether the dictum of Megarry V-C is supported by the authority to which he refers.
First, as to Ex parte Davison, which Megarry V-C expressly relied on, it is clear from the report in R v Grundon (1775) 1 Cowp 315, 98 ER 1105 that the statutes of University College, Oxford which were in question in Ex p Davison did not give any rights of membership or any other rights to a student. Therefore in Ex p Davison there was simply no ground on which it could be argued that Mr Davison was subject to the jurisdiction of the visitor. He was a mere boarder. Therefore the question did not arise, which arises here, where the rights being alleged by Mr Oakes arise under the statutes in question and by somebody who, though not a corporator, is described by the statutes as a member.
The next case is R v Grundon itself, with which Megarry V-C did not in terms deal. In that case a Mr Crawford had been a commoner of Queen's College, Cambridge. The college had purported to expel him. After such expulsion he continued to enter the gardens belonging to the college, and members of the college had ejected him from the gardens. He chose to bring a criminal prosecution for assault against those who had removed him. When the case came on for trial in the criminal courts Mr Crawford as prosecutor sought to adduce evidence that his purported expulsion from the college had been invalid in that the correct procedures had not been followed. The trial judge refused to allow such evidence, and the matter came before the Court of King's Bench. The first point they had to determine was whether Mr Crawford, having on the face of it been expelled, could be allowed to go behind that expulsion and claim that his expulsion was invalid. The court held that he could not.
The opinion of the court was delivered by Lord Mansfield CJ. I find it difficult to find out exactly what was the actual ground of decision. Right at the outset of his judgment he said (1 Cowp 315 at 319, 98 ER 1105 at 1107):
'The question upon these facts is, whether, after the proceedings so had against him, he [Mr Crawford] had a right to continue in the college? It has been argued, that he was a mere boarder; and if so, that he had no right to continue after the notice given him to leave the college; and we all think that he appears to be a mere boarder. [Counsel for Mr Crawford] has furnished me with a case which seems to be decisive as to this point ... '
He then referred to Ex p Davison. So in that part of the judgment Lord Mansfield CJ was apparently saying that Mr Crawford as an undergraduate could have no rights under the statutes of the college. On the other hand, having dealt with Ex p Davison at some length, he went on as follows (still talking of Ex p Davison) (1 Cowp 315 at 321-322, 98 ER 1105 at 1109):
'Now the order in that case is expressly founded upon the ground of the appellant being an independent member and a mere stranger. Here the prosecutor is an independent member; and if so, the authority I have just mentioned puts an end to the question: because, as a mere boarder, he had no right to continue in the college after they had given him notice to quit. It may be said that there is a difference between that case and this, because the statutes of University College take no notice at all of independent members or strangers; whereas there are express provisions and regulations in the statutes of Queen's College concerning them. But supposing Mr. Crawford were subject to the rules and orders of the college; in that case it is insisted that the sentence of expulsion is illegal: and at the trial, the statutes of the college were offered in evidence to shew that it should have been signed by the master and a majority of the fellows, whereas it was signed by the master and one fellow only. The answer to it is, that even if the allegation were well founded, the merits, the justice, or the regularity of the expulsion cannot be entered into at the assizes; but the proper mode of impeaching it, is by appeal to the visitor. Mr. Justice Willes was of that opinion at the trial: but reserved the question, whether the statutes were to be admitted in evidence to impeach the sentence, and enter into the validity of it there. And we are all of opinion with Mr. Justice Willes, that they could not. So that even if Mr. Crawford was a member, and subject to the jurisdiction, rules and orders of the college, his mode of redress is by appeal to the visitor, and not to this Court.'
It seems to me that the way in which the court was dealing with the matter there was to say, either on the authority of Ex p Davison, that Mr Crawford had no rights beyond those of a boarder or he had rights under the statutes of University College, in which case the visitor was the correct person to determine it, not the court. It seems to me to provide a strong indication that an undergraduate member who is asserting rights secured to him by the statutes is subject to the jurisdiction of the visitor in relation to the rights which he is seeking to enforce under the statutes.
Thirdly, Megarry V-C in Patel's case relied on Herring v Templeman [1973] 3 All ER 569. In that case Brightman J ([1973] 2 All ER 581) at first instance had held that the plaintiff, as a student of a teacher-training college, was subject to the jurisdiction of the visitor and struck out an action in which the plaintiff was seeking to complain of his treatment. In the course of the hearing before the Court of Appeal it emerged that the plaintiff was not in fact a member of the body which conducted the training college. Therefore the basis of the judgment at first instance was cut away. Even so, the Court of Appeal allowed amendments under which the plaintiff continued to claim that he had rights under the regulatory documents of the charity. The college continued to maintain their position that the matter was subject to the jurisdiction of the visitor.
The terms of the appointment of the visitor were as follows ([1973] 3 All ER 569 at 572):
'The Archbishop of Canterbury for the time being shall be the Visitor of the College, and shall subject to the provisions of this Deed have such authority in relation to the College as appertains to the office of Visitor in the case of any endowed college which is subject to the visitation of the Ordinary.'
It is to be noted that the Court of Appeal did not dispose of the point as to the visitor's jurisdiction on the basis that, not being a corporator, the plaintiff was not subject to such jurisdiction. It decided the point on the ground that there was no evidence before them of what was the jurisdiction of the visitor of an endowed college subject to the visitation of the Ordinary. I cannot treat that case as casting any light on the present problem.
Therefore, giving the dictum of Megarry V-C all the respect which any statement by that very learned judge deserves, I cannot treat it as precluding the matter which is before me. It seems to me that in the case of a student at an Oxford or Cambridge college who is not a corporator in the sense of being part of the foundation of the college the fact that he is not a corporator is not necessarily decisive. It may be that, if he is treated throughout as a member and is seeking to rely on his membership, he is subject to the jurisdiction of the visitor.
The matter being free from binding authority, I feel free to decide it in accordance with the principles so recently and so clearly expounded by the House of Lords in Thomas v University of Bradford [1987] 1 All ER 834, [1987] AC 795. In that case the House of Lords point out that the basis of the jurisdiction of the visitor is that the constitution of the charity in question establishes a domestic law regulating the rights under the charity and appointing the visitor as the only arbiter in the administration of that law. Contrary to some of the earlier authorities, the jurisdiction of a visitor does not depend on membership of the body as such, but on whether the rights being claimed arise under the domestic law. True it is that the vast majority of claims arising under domestic law will be claims put forward by people in virtue of their membership of that body. But the exact nature of their relationship to the body is not decisive. The crucial question is: are they claiming rights under the domestic law? If so, they are subject to the exclusive jurisdiction of the visitor to determine those rights.
The approach of the House of Lords is shown by the speech of Lord Griffiths ([1987] 1 All ER 834 at 843, [1987] AC 795 at 816):
'It is a mistake to consider that the visitor's jurisdiction derives from the status of membership, as Fox LJ said in the course of judgment in the Court of Appeal. That is, with respect, putting the cart before the horse. The jurisdiction derives from the visitor's position as a judge of the internal laws of the foundation, and he has jurisdiction over questions of status because it is on those laws that status depends.'
Lord Griffiths then quoted from Re Wislang's Application [1984] NI 63 at 80-81, where Kelly LJ said, inter alia:
'But what the authorities show, as I read them, is that matters may well be in breach of a contract of employment, yet within visitatorial jurisdiction, if those matters are of an internal domestic character or touch upon the interpretation or execution of private rules and regulations of the university.'
Lord Ackner said ([1987] 1 All ER 834 at 852, [1987] AC 795 at 828):
'The source of the obligation on which Miss Thomas relies for her claim is the domestic laws of the university, its statutes and its ordinances. It is her case that the university has failed either in the proper interpretation of its statutes or in their proper application. Miss Thomas is not relying on a contractual obligation other than an obligation by the university to comply with its own domestic laws. Accordingly, in my judgment, her claim falls within the exclusive jurisdiction of the visitor, subject always to judicial review.'
In my judgment that principle applies with equal force in the present case. It does not matter whether Mr Oakes was a corporator, a member or anything else. His claim is a claim to enforce rights which he enjoys under the internal law of the charity, Sidney Sussex College, Cambridge. The correct operation of that law is within the exclusive jurisdiction of the visitor. Therefore, in putting forward his claim in this action, he is himself subject to the exclusive jurisdiction of the visitor. That determines the first point.
The second point put forward is that the visitor of the college is what is called a special visitor, not a general visitor. Without any attempt at strict accuracy, the visitor is a person appointed by the founder of a charity to supervise the subsequent administration of his bounty. He confers on him, or reserves to himself in the absence of any express appointment, the right to supervise the future administration of the charity. He may, of course, either limit the powers of the visitor or indeed provide that there shall be no visitor and appoint somebody for certain defined purposes who is not a visitor and who has not got general visitatorial powers. A special visitor in this sense is somebody who does not have the general powers, normally inherent in the visitor, of visitation and determination of disputes.
The argument as it was originally put forward was that, by reason of the various limitations on the capacity of the visitor of the college in this case, he was in some sense a special visitor and not seised of all the powers which are inherent in the status of visitor of a charity. That in my judgment is plainly wrong. Viscount De L'Isle and his descendants are appointed 'the visitor'. Having been so appointed, in the absence of clear words cutting down his position from that which is normal, he will have all the powers of a visitor, namely the power to visit and to adjudicate on all disputes arising under the statutes. The mere fact that, in certain respects, his powers are limited in the way they can be exercised, for example by committing to some other body in the first instance the right to determine questions with an appeal to the visitor, does not cut him down from being a general visitor to a special visitor. He remains a general visitor, but bound to exercise his powers of general visitation in accordance with those limitations which are imposed expressly in the statutes.
I have not been referred to any case in which it has been said that somebody who was expressly appointed a visitor as such was anything other than a visitor in the general sense. The existence of the limitation on the method of exercising those powers is not sufficient to lead to the conclusion that, in general, the visitor does not have residual powers.
That being so, any dispute under ch 10 will be within the jurisdiction of the visitor unless there is some provision in the statutes which clearly cuts down or excludes his general powers as visitor. It is at that stage that I find the greatest difficulty with this case. I have already pointed out that there is no express provision for any appeal under either ch 10 or ch 9. Therefore any appeal by Mr Oakes to the visitor would invoke the exercise by the visitor of his inherent powers without express provision. It is an essential part of the jurisdiction of a visitor, subject to modification in a given case, that he will be responsible for the interpretation and operation of the statutes. Chapter 39, s 2 which I have read confers the jurisdiction to determine the interpretation or operation of the statutes on the master and fellows, with a limited right of appeal, but only by the master or any two fellows, from their determination to the visitor. Such right of appeal is limited to the master or any two fellows: on the operation of ch 10, the member in statu pupillari has no right of appeal to the visitor.
Mr Oakes contends, therefore, that his right under the internal law of the college to complain of an abuse of power under ch 10 lies under ch 39, s 2 to the master and fellows. He has no effective recourse to the visitor at all. The master and fellows will determine the matter. If they determine it adversely to Mr Oakes he, Mr Oakes, has no right of appeal.
Counsel for the college accepts that if that argument is correct, the jurisdiction of the visitor having been formulated in such a way that Mr Oakes has no right of recourse to the visitor, the visitor would have no relevant jurisdiction and therefore the court's jurisdiction would not be excluded.
The critical question therefore is whether the provisions of ch 39, s 2, committing to the master and fellows the decision of any question which may arise as to the interpretation or operation of the statute, does or does not comprehend questions arising under ch 10.
I find this a difficult point. The provisions of ch 39, s 2 are clear and unambiguous. They say that any question which may arise as to interpretation and operation shall be decided by the master and fellows. Therefore, if the matter is not to be dealt with under ch 39, one has to reach a high degree of conviction that the generality of those words has to be cut down in order to give effect to the intention of the draftsman.
I have with some hesitation come to the conclusion that it is impossible to give those words their widest literal meaning. The first difficulty I see is this. If it is correct that any dispute under ch 10 has to be dealt with under ch 39, s 2, the draftsman must be taken to have intended a procedure whereby an appeal from the master and tutors should go to a body, namely the master and fellows, the membership of which will be largely the same. The original deciding body and the appellate body would be much the same. That seems to me to be such a wayward intention that I feel unable to attribute it to the draftsman.
Second, the format of the statutes is such that, if one takes, for example, a case under ch 10, s 5, in which the governing body had expelled a member of the college but the right of appeal was then said to go under ch 39, s 2 to the master and fellows, not only would you be having an appeal to much the same body of men but you would also be having an appeal from what appeared to be the wider, more general, body, namely the governing body, to a narrower body of men, namely the master and fellows.
Third, it seems to me that if one gives the words of ch 39 their widest literal meaning, it raises considerable difficulties in dealing with disciplinary charges under chs 8 and 21. On disciplinary charges leading to the suspension or deprivation of fellows, the appeal goes expressly from the decision of the governing body to the visitor. Under ch 8 it is the governing body which determines whether or not there has been, within the meaning of the statutes, grave misconduct, neglect of duty or serious violation. If ch 39 is given its wide literal meaning it commits any question arising as to the interpretation or operation of the statutes to the master and fellows. That is wholly inconsistent with a decision on that point in the context of ch 8 being made by the governing body with an appeal direct to the visitor. A similar position applies on appeals from the removal of officers under ch 21.
I am therefore forced to the position that ch 39, s 2, despite the generality of its language, does not mean that any question arising as to the interpretation or operation is to be decided by the master and fellows. There are exceptions. Once one gets to that point one is left with the question: how does the matter stand under ch 10? Since the visitor is a general visitor, in the absence of clear wording to the contrary removing his jurisdiction, all disputes arising are within his jurisdiction. I can find nothing clear in s 2 of ch 39 which clearly cuts down his jurisdiction to hear disputes under ch 10. Accordingly, in my judgment the visitor has that jurisdiction and it is an exclusive jurisdiction. Accordingly, I hold that this court has no jurisdiction to entertain this claim, and I will strike it out.
I should add that I have taken steps to confirm that, contrary to his earlier view, the visitor will accept and exercise jurisdiction if I hold it to exist, so that Mr Oakes is not without recourse: he has his remedy before the visitor.
DISPOSITION
Order accordingly.