HEARING DATES 24, 25 February & 27 March 1969
Education - University - Students - Natural justice - Student sent down for failing examination - Whether student to be heard in defence before decision to send down - Certiorari - Mandamus - Delay - Discretion
HEADNOTE
The applicants, P. and R. were undergraduates of the University of Aston reading for the degree of B.Sc. with honours. In June 1967 at the end of the first year of their course both passed examinations in the three major subjects of the course but failed, in the one case, one, and in the other case, two, of the subsidiary subjects. In September 1967 they were re-examined in the subsidiary subjects in what were called referred examinations, but failed again, and badly. The supreme academic authority in the university was the senate, which was empowered, inter alia, to make regulations for the education and discipline of students. By special reg. 4 it was provided that "students who fail in... a referred examination, may at the discretion of the examiners re-sit the whole examination or may be required to withdraw from the course". The examiners met soon after the referred examinations taken by the applicants and, after considering their academic performances and a wide range of personal factors besides, resolved that they be asked to withdraw from the course. The applicants were not given a chance to make representations to this meeting; they were informed of its decision by letters dated 20th September 1967. A number of other bodies in the university reviewed this decision. Ultimately it was confirmed by the senate in November, and the university council in December, 1967. The applicants applied in July 1968 for orders of mandamus and certiorari. No explanation of their delay was advanced. Since R. was no longer actively interested in returning to the university his application was not pressed.
Held
(i) (per DONALDSON and BLAIN, JJ.) on a proper construction of the regulations, the decision whether a student failing a referred examination should re-sit the whole examination or withdraw from the course was in the sole discretion of the examiners and no other body;
(ii) (per BLAIN and DONALDSON, JJ.) the examiners in exercising this discretion were obliged to observe the rules of natural justice (conceded by counsel for the senate).
(iii) (per BLAIN and DONALDSON, JJ.) the rule audi alteram partem does not apply in every case where the rules of natural justice are applicable; but (per LORD PARKER, C.J., BLAIN and DONALDSON, JJ.), since the examiners did not limit themselves to a consideration of academic performance, but also (and quite properly) considered a wide range of personal factors, and since so much was at stake for the applicant, P., common fairness demanded that he be given an opportunity to be heard (not necessarily orally); this was not done, and there was, therefore, a breach of the rules of natural justice;
(iv) despite the breach of the rules of natural justice the prerogative remedies were still discretionary; and because of the applicant's delay in approaching the court his applications would be refused.
QUAERE: whether the examiners could properly have limited themselves to a consideration of his academic performance.
Applications refused.
NOTES
As to rules of natural justice under Crown proceedings, see 11 HALSBURY'S LAWS (3rd Edn.) 64-66, para. 122; as to rules of natural justice with respect to public authorities, see 30 HALSBURY'S LAWS (3rd Edn.) 718, 719, paras. 1368, 1369; and for cases on the subject, see 8 DIGEST (Repl.) 655-657, 30-42.
CASES REFERRED TO
A. (an infant), Re. Hanif v. The Secretary of State for Home Affairs. Re S. (N.)
(an infant), Singh v. The Secretary of State for Home Affairs, [1968] 2 All E.R.
145; sub nom. Re Mohamed Arif (an infant), Re Nirbhai Singh (infant), [1968] Ch.
643; [1968] 2 W.L.R. 1290; Digest (Repl.) Supp.
Durayappah v. Fernando, [1967] 2 All E.R. 152; [1967] 2 A.C. 337; [1967] 3
W.L.R. 289; Digest (Repl.) Supp.
K. (H.) (infant), Re, [1967] 1 All E.R. 226; sub nom. Re H.K. (infant), [1967] 2 Q.B. 617; [1967] 2 W.L.R. 962; Digest (Repl.) Supp.
Ridge v. Baldwin, [1963] 2 All E.R. 66; [1964] A.C. 40; [1963] 2 W.L.R. 935; 127
J.P. 295; 37 Digest (Repl.) 195, 32.
Russell v. Duke of Norfolk, [1949] 1 All E.R. 109; 12 Digest (Repl.) 693, 5321.
Schmidt v. Secretary of State for Home Affairs, [1969] 1 All E.R. 904; [1969] 2
W.L.R. 337.
Sydney (University of), Re, ex p. Forster, [1963] S.R. (N.S.W.) 723; [1964] S.R. (N.S.W.) 1000; Digest (Cont. Vol. B) 238, * 363c.
R. v. University of Cambridge (1715), 1 Stra. 557;
Ceylon University v. Fernando, [1960] 1 All E.R. 631; [1960] 1 W.L.R. 223;
Vidyodaya University of
Ceylon v. Silva, [1964] 3 All E.R. 865; [1965] 1 W.L.R. 77.
INTRODUCTION
Motions for certiorari and mandamus. These were applications by Derek Anthony Roffey and Michael Bruce Pantridge for orders of mandamus directed to the respondents to re-admit the applicants to the University of Aston and, alternatively, for orders of certiorari to bring up and quash a decision made by the senate of the university on 1st November 1967, and confirmed by the council of the university on 8th December 1967, that the applicants were not to continue reading for the degree of B.Sc. The facts are set out in the judgment of DONALDSON, J.
COUNSEL
J. A. Moncaster for the applicants.
Hugh Forbes, Q.C., and Michael Mann for
the senate.
JUDGMENT READ Cur. adv. vult. 27th March 1969
PANEL: Lord Parker, C.J., Blain and Donaldson, JJ.
JUDGMENT BY DONALDSON, J. read at the invitation of LORD PARKER, C.J.
Derek Anthony Roffey and Michael Bruce Pantridge were student members of the University of Aston in Birmingham, reading for the degree of B.Sc. with honours in Behavioural Science. In June 1967, at the end of the first year of the course, both passed the examinations in the three major subjects, consisting respectively of the Elements of Psychology, Elements of Sociology and Elements of Economics. In addition the applicant Pantridge passed in the subsidiary subject of Statistics. Unfortunately he failed to achieve a pass mark in the other subsidiary subject of Social and Economic History. The applicant Roffey failed to pass in either subsidiary subject. In September 1967 both the applicants, together with other students who had experienced similar failures, were re-examined in the subjects in which they had been unsuccessful, but again they failed to achieve pass marks. Thereafter, on or about 20th September 1967 the applicants received letters from their course tutor asking them to withdraw from the Behavioural Science course and, by implication, from student membership of the university. Following protests by the applicants, Mr. Michael Griffin (the president of the guild of students of the university) and the applicant Pantridge's father, this decision was reviewed by the board of examiners, the board of the Faculty of Social Science, and the senate and the council of the university and in the end was affirmed.
The applicants now apply to this court for orders of certiorari to bring up and quash the relevant decision that they be asked to withdraw from the course, and of mandamus requiring the university, by the appropriate body, to determine in accordance with law whether they should be allowed to re-sit the whole of the examinations which they took in June 1967 or whether they should be asked to withdraw from the course. The grounds of these applications are broadly that those responsible for the decision to refuse to allow them to continue with their studies and those who reviewed and affirmed the initial decision failed to observe the requirements of natural justice in that they failed to afford the applicants any, or any adequate, opportunity of being heard. Before expressing any view on the merits of these applications it is necessary to advert to the constitution and organisation of the university and to examine the history of the matter in greater detail.
The University of Aston in Birmingham was incorporated by royal charter in April 1966 in direct succession to the college of advanced technology in that city. The charter reserves a power of appointment of a visitor, but no such appointment has yet been made. The council of the university is the executive governing body concerned with management and administration. The supreme academic authority in the university is the senate, which is charged with responsibility for its teaching and research work and for the regulation and superintendence of the education and discipline of the students. The charter, in addition to providing for the constitution and powers of the council and senate, also provides for the creation of a board of each faculty and for a guild of students, the latter having representatives on the convocation of the university and for an academic advisory committee to advise the council and senate on academic matters. Finally, so far as is material for present purposes, the charter declared the university to be both a teaching and examining body with power:
"[3 (a)] To prescribe in its Ordinances or Regulations the requirements for Matriculation and the conditions under which persons may be admitted to the University or to any particular course of study... (c) to confer... under conditions laid down in its Statutes or Ordinances, Degrees... on... persons who shall have pursued a course of study approved by the University and shall have passed the examinations or other tests prescribed by the University."
Section xxi of the statutes of the university provides that the powers of each faculty board shall include:
"[4] ...the right to discuss any matters relating to the work of the Faculty and any matter referred to it by any other body within the University and to convey its views and to make recommendations thereon."
Section xix of the statutes confers general disciplinary powers on the senate including the right...
"[22] ...to suspend any student from any class or classes, to exclude any student from any part of the University or its precincts, to expel any student from the University, or to take such other action as the Senate thinks proper..."
But these powers are expressly made subject to s. xxviii which provides students with a right of appeal to the senate or to a senate committee against any proposal by the senate to suspend, exclude or expel and entitles the student concerned to be heard in person.
General regulations for the degree of B.Sc. were approved at a meeting of the senate in July 1966, that is to say before the applicants became students for the relevant course. These provided that:
"[6] Candidates who fail to satisfy the examiners in examinations other than final examinations may as the examiners determine either (a) be referred in such subject or subjects in accordance with the appropriate Course Regulations, or (b) resit, on one subsequent occasion only, in the following Academic year, the whole examination with or without further attendance, or (c) be required to withdraw from the Course."
A referred examination is a special additional examination held in September, just before the beginning of the academic year, for those who failed to pass in the particular subject in the regular examinations held in or about June at the end of the previous academic year. A re-sit is not a special examination, but a re-taking in June of all the examinations taken by the student concerned in the previous June, without exemption based on the fact that he may then have passed some of those examinations.
Behavioural Science appears to be concerned with the application of sociology, psychology and economics to the work of management in commerce and industry. Courses in this subject were provided by the college of advanced technology in 1964, 1965 and 1966 and were continued by the new university in 1967. The prospectus for the year 1966-67 was printed in the spring of 1965 because the system of centralised applications for admissions to universities required such documents to be distributed to all schools not later than 14 months before the beginning of the academic year. This showed Introductory Statistics as an examinable subject, but Social and Economic History as non-examinable. The Students' Handbook for 1966-67, which may or may not have been published equally far in advance, gave similar information. Both became inaccurate in the event, since in July 1965 the steering committee for the course of Behavioural Science resolved or recommended that Social and Economic History should become an examinable subject and this took effect in the 1965-66 and subsequent academic years. I have mentioned this matter because it was relied on by the applicants when seeking leave to issue the present proceedings. However it is conceded by counsel for the applicants that they were fully informed of this change when they began their studies.
This change was also reflected, albeit belatedly, in special regulations governing this course of studies which were approved by the senate on 15th March 1967. The delay in securing this approval was apparently attributable to consideration of other matters which are not here material. These special regulations also provided under the general heading of "Examinations and Course Structure" that:
"4 ... (e) Any student who fails to achieve a pass standard in Statistics and/or Social and Economic History may on the recommendation of the examiners be permitted to take referred examinations in these subjects, and may, if successful, be permitted to proceed on the Honours Course.(f) Students who fail in more than one major subject, or who fail in a referred examination, may at the discretion of the examiners, resit the whole examination or may be required to withdraw from the course. Students who are successful in such resit examinations shall normally be eligible to proceed to the Pass Degree only."
The applicant Roffey entered the university as a student in October 1966 and read Behavioural Science from the outset. The applicant Pantridge entered the college of advanced technology in October 1965 and became a student member of the university on its incorporation in April 1966. He initially read Metallurgy, but transferred to the first year of the Behavioural Science course in January 1967. Both were examined in June 1967, mock or practice examinations having been held in February. On the basis of the results a large number of students, including the applicants, were permitted to take referred examinations in September. Ten out of 21 candidates failed the referred examination in Social and Economic History and eight out of 12 failed that in Introductory Statistics. These rates of failure in referred examinations were without precedent, but counsel for the applicants has very fairly and frankly disclaimed any intention of attacking the marking of the papers.
The results caused grave disquiet amongst the academic staff as well as the students, and consultations were held between the examiners in the two subsidiary subjects and two of the course tutors, one of whom was the chairman of the examining boards for the course. Each individual's results were considered in the light of information available on record cards or known to those present. This was not confined to academic matters, but included the fact that one student was labouring under acute personal and family difficulties, that another had an impediment of speech which created personal problems and yet another had crushed two vertebrae in a riding accident and had barely recovered in time for the referred examination. In the end it was decided that six students, including the applicants, be asked to withdraw from the course, and that five students be asked to repeat the first year of the course. These decisions were communicated to the students by the letters dated 20th September 1967 to which I have already referred.
On 25th September 1967 both the applicants had interviews with Mr. Podmore who was their tutor. The applicants' accounts of what occurred and Mr. Podmore's account are irreconcilable and it is quite impossible for this court to resolve that conflict of evidence. Suffice it to say that both the applicants say that Mr. Podmore expressed surprise at the decision to ask them to withdraw from the course and that this surprise was consistent with their allegation that he and others had led the applicants to believe that the examinations in the subsidiary subjects did not matter, that all that was required was that they should pass them sometime and that, at worst, failure might lead to their being allowed only to take a pass degree. Mr. Podmore denied that he ever led the applicants to believe that these examinations did not matter or that failure could not lead to their being asked to withdraw from the course. He also denied expressing any surprise at the decision, although he said that he may have expressed surprise that neither applicant had done better after having had 2 1/2 months in which to prepare for the referred examination. Similar denials were made by other members of the academic staff who were named as sources of an alleged general belief amongst students that the results of the subsidiary examinations were of no importance. Both applicants say that if they had known what was at stake they would have worked harder.
At this stage the applicants and other students who were similarly placed,
enlisted the support of Mr. Griffin, the president of the guild of students at
the university. Mr. Griffin, in writing to the vice-chancellor of the
university on 28th September 1967 made four points.
(a) The prospectus was
misleading and the fact that Social and Economic History was examinable was not
made clear before students began the course. This point, as I have said, is no
longer relied on by the applicants.
(b) Throughout the year, students were
informed by certain members of the teaching staff that failure in a subsidiary
subject "would not necessarily result in their being sent down": provided that
due weight is given to the word "necessarily", this information was in
accordance with the relevant regulations; there is no clear evidence that any
member of the teaching staff went further than this, if as far.
(c) There was no
properly constituted examiners' meeting convened after the September
examinations to discuss individual cases: this may be correct in that the full
board of examiners did not meet before the initial decision was taken but, as
will appear, there was such a meeting at a later stage and the point was not
pursued in argument.
(d) A number of general tutors were not informed of the
results of the referred examinations until after the candidates were themselves
informed: this is true, but it is not clear why this should amount to more than
possible discourtesy to the general tutors concerned; the reason for the
omission was that some of the tutors were not available and it was not
considered desirable to delay publication of the decisions which had been
reached.
The vice-chancellor met Mr. Griffin and, as a result of the discussion with him, arranged for enquiries to be made in the relevant department, namely that of Industrial Administration. On 4th October 1967 the vice-chancellor received a full report from Professor Gibson who was head of the department and Dean of the Faculty of Social Science. Having read this report he suggested that the board of examiners should reconsider all the decisions which had been made following the referred examinations. Two days later, after further consideration of this report, he suggested to Professor Gibson that the board of the Faculty of Social Science might consider whether some of the students who had been asked to withdraw from the Behavioural Science course could be re-admitted to read for a pass, as contrasted with an honours degree. Meanwhile, on 5th October 1967 Professor Gibson on his own initiative had convened a full meeting of the board of examiners for Behavioural Science. At that meeting the points raised by Mr. Griffin were considered. The dean also asked if any of the members wished to raise any other matters affecting the decision of the examiners, but no one wished to do so. The board decided that there had been no departure from the correct procedure and that the policy of not having a full meeting of the board to consider the results of referred examinations would be followed in the future, subject to the modification that "in order that justice might more obviously be seen to be done, General Tutors would in future join the subject tutors and the internal examiners in their deliberations". The board unanimously confirmed the decisions taken as a result of the referred examinations. On 6th October 1967, the board of the Faculty of Social Sciences met and discussed the problem of the referred examination results. The board expressed its complete faith in the competence of the board of examiners and agreed that the vice-chancellor's suggestion that some of the students might be allowed to read for a pass degree instead of being asked to withdraw, should be referred to the board of examiners. The faculty board decided to meet again immediately after a special meeting of the board of examiners to be held on 9th October. When the board of examiners met, they re-examined all the results and confirmed their previous decisions. The board of the faculty met immediately afterwards and confirmed the decisions of the board of examiners.
On 11th October 1967, the matter was reported to the senate which, possibly in ignorance of the full extent of the reconsideration which had already taken place, agreed that the matter should be reconsidered without delay. This was interpreted by the board of the Faculty of Social Sciences as a request for still further consideration and a special meeting was accordingly called for 12th October 1967. The vice-chancellor, who was unable to attend the meeting of the board of the faculty, considers this a misinterpretation, but it is clear that his view was not shared by Professor Gibson, the dean of the faculty, and was probably not shared by a Mr. Wylie who had raised the matter in the senate and was present at the faculty board meeting. This meeting is of some importance to the applicants' case and should therefore be dealt with fully. The dean referred to letters from Mr. Griffin, as president of the guild of students, making specific allegations of statements by members of the staff which, if made, could have misled the students. He reported that the senate had referred the matter back to the board as, to quote the minutes of the board:
"It had been felt by the Senate that a significant case existed for very careful re-examination so as to consider whether uncertainty existed and it was also felt that any benefit of the doubt should go to the students."
After a prolonged discussion it was proposed, again quoting the minutes:
"...that a small group consisting of the Professors in the Faculty should meet the staff and students and report back to the meeting at 4.15 p.m. It was emphasised that the group was not a judicial enquiry but was to try and ascertain whether doubt and uncertainty had existed."
The meeting adjourned at 3.15 p.m. Thereafter the professors met all the students who had failed the referred examinations with the sole exception of the applicant, Pantridge. His absence remains unexplained. According to the applicant Roffey, each of the students
"...told the meeting how our tutors had interpreted the faculty rules to us to the effect that we would not be sent down, but allowed to re-sit our subsidiary subjects at some later stage."
The faculty board reconvened at 4.20 p.m. and according to the minutes:
"Professor Gibson reported that six students and the President of the Guild had been seen as a group and two members of the staff who had been named in the President's letter had been seen, the third being ill and not available. He stated that while the Professors could not accept the allegations that members of staff had made the categorical statements which students allege had been made it was obvious that the students now firmly and honestly believed that they had been misled. It had also become apparent that the two members of staff themselves might not have been absolutely clear about what the Regulations said and therefore would not have made the categorical statements alleged. The Faculty Board therefore resolved that, while not accepting the allegations made by the students, it was satisfied that there might have been some uncertainty in the minds of some of the students about what would happen to them if they failed referred examinations, that this uncertainty could have affected their performances and in such circumstances it was unfair that the students who had failed referred examinations should be treated differently from one another. It was therefore agreed that in accordance with the special Regulations for the Degree of Bachelor of Science the six students who had been asked to withdraw from the course should now be allowed to retake the first year examinations in the following year with or without further attendance."
The minutes then record the dissent of one member from this decision and continue:
"After further considerable discussion it was also agreed that the matter should be referred back to the Board of Examiners to: (a) Consider whether any or all of the 11 students should be admitted into the second year, and (b) Prepare, as a matter of urgency, a paper setting out the academic back-ground and potentialities of the 11 students for future reference..."
It is important to note that the board of examiners was not being asked to reconsider the issue whether the students should be allowed to re-sit the first year examination or be required to withdraw from the course. That issue had been decided in favour of the students so far as the faculty board was concerned. What the board of examiners was being asked to decide was whether any, and if so which, of the students should not be required to re-sit the June examination but should be allowed to pass on forthwith to the second year of the course. The board of examiners met on 16th October 1967 to consider this remit. They resolved to advise the faculty board that:
"... they do not consider that there are general grounds for admitting some students to the second year of the Honours Course without re-taking the first year. They consider that students should re-take the first year examinations with, or without, further attendance and as a result of those examinations should be eligible for reconsideration for admission to the Honours Course as well as the Pass Course. Such students would be expected to keep themselves informed of syllabuses and regulations."
The board also prepared a series of academic profiles which showed, inter alia, that the applicant Pantridge secured one per cent. less marks (17 per cent instead of 18 per cent) in the referred examination in Social and Economic History than he achieved in June and that the applicant Roffey secured 24 per cent in Introductory Statistics in the referred examination as compared with 20 per cent. in June and 17 per cent in Social and Economic History as compared with 16 per cent in June. The pass mark was 40 per cent. The applicant Pantridge's "profile" attributed his failure to what was described by the general tutor as "a heavy programme of Students' Union activities". It ended with the remark that
"There was a vague feeling at the Examiners' Meeting, based on class-work marks, that [the applicant] Pantridge was in fact quite able and he was therefore admitted to the second year of the Honours Course."
This is a reference to the June meeting of the examiners and means no more than that the applicant Pantridge was admitted to the second year of the honours course subject to his passing the referred examination. The board of the faculty met again on 18th October 1967, and, with two dissentients, resolved to recommend that the six students who had been asked to withdraw from the course be permitted to take the first year examinations in June 1968, with or without further attendance, and that the question whether they should, if successful then proceed to the second year of the honours degree or the second year of the pass degree be considered afresh in the light of the results then obtained. The board also recommended that the six students be informed as soon as possible and resolved that their recommendations be forwarded to the senate with a recommendation that the matter be treated as one of great urgency.
Professor Gibson told Mr. Griffin and some of the students concerned in confidence what had been decided by the faculty board, explained that this decision required ratification by the vice-chancellor or the senate, but said that his own view was that such ratification would almost certainly be forthcoming.
A special meeting of the senate was held on 1st November 1967 and was devoted exclusively to the results of the examinations in the Behavioural Science course and subsequent events. The senate considered whether to hear the president of the guild of students but decided not to do so, it having been reported that at a meeting of the senate guild joint committee on the previous day no new information or argument had been produced. Professor Gibson outlined the history of the matter and an extensive discussion ensued. Ultimately the senate agreed:
"(i) that the students on the course had been issued with all appropriate Regulations, and that the Special Regulations had been discussed by the Course Tutor;
(ii) that the examinations in June and September had been properly conducted in accordance with the Regulations;
(iii) that the students concerned had been properly informed about the referred examinations, and that no doubt as to their significance within the Regulations had been established;
(iv) that in considering the results, consideration had been given to general appraisal of Tutor's comments of each student's general capacity and potential, promise and personality;
(v) that while some students might have had erroneous ideas about the significance of the referred examinations, this was not sufficient to show that students had been misled by the University, and therefore no substantial cause existed for overruling the Regulations."
The senate then resolved by 18 votes to four to confirm the original decision of the board of examiners that the five students be permitted to repeat the first year examinations and that the remaining six be asked to withdraw. This decision was communicated to the applicants and the other students affected by letter dated the same day.
In response to a suggestion by the academic advisory committee, members of the senate met on 7th December 1967. Whether it was a meeting of the senate as such is doubtful as no formal record of the meeting was kept. Mr. Griffin says that it was stressed to the students and their advisers that the purpose was to explain the decision arrived at by the senate and not to reconsider it. The vice-chancellor questioned such of the students as attended, but the applicant Pantridge was not amongst them, as he had been advised by the guild of students not to attend. After the meeting, or at all events after the students had left, the members of the senate questioned the members of the staff who were alleged to have made misleading statements to the students and the vice-chancellor satisfied himself that there was no substance in the allegations.
The university council met on 8th December, considered the relevant papers and heard a report from the vice-chancellor that he was satisfied that there was no substance in any of the allegations. It accepted the vice-chancellor's report and, to quote the vice-chancellor, "...resolved to defend the University against any attack and to issue a public statement". This statement recorded that the council had resolved: "to give complete support to the decision of the senate that the decisions of the Board of Examiners should stand". In the context of the vice-chancellor's evidence, it is reasonably clear that the decision of the board of examiners to which reference was made was that of the two examiners and the two course tutors held on or about 19th September 1967. Although the university's attitude had become clearly and immutably defined by the beginning of December 1967, the applicants delayed until July 1968 before they applied to this court for leave to bring these proceedings. As a result they lost all chance, if successful, of being admitted for the academic year 1968-69. No explanation for this delay has been offered by either applicant, but Mr. Griffin said that the whole matter was referred to the National Union of Students on whose advice professional legal assistance was sought, the cost being borne by that union's student legal aid fund. He added that statements had to be taken from the students, some of whom had left the university and that it was necessary to find out which of them wished to take legal action.
The applicant Roffey, obtained a place at the Regent Street Polytechnic in London and is no longer actively interested in returning to the university. I can understand his wishing to be in a position to refuse an offer by the university to allow him to resume the course, but prerogative writs are a discretionary remedy designed to remedy real and substantial injustice rather than to give satisfaction, however legitimate. In the circumstances his claim must fail on grounds of discretion whatever its substantive merit and I need say no more about it.
The applicant Pantridge, had not been so fortunate. Whilst the matter was being debated within the university he was optimistic of the outcome and did not seek a place elsewhere. When he realised that his optimism was misplaced, he applied successfully for admission as a student of London University to read for an external degree in Sociology, but was unsuccessful in obtaining a place at the Birmingham College of Commerce to study for such a degree, the senior tutor telling him bluntly that they had a reputation to keep up and were not prepared to accept drop-outs from the University of Aston. The applicant Pantridge has been forced to abandon academic study and is now working in a stationer's shop training for retail management. He, unlike the applicant Roffey, expresses a real wish and need to return to the university and his application merits serious consideration. Although both the regulations and the letters to the applicant Pantridge speak of a request to withdraw from the course, thus leaving open the theoretical possibility that he might be accepted to read for some other course within the university, it is clear that the reality was that the applicant Pantridge was being sent down. Whatever may be the position elsewhere, students at Aston are members of the university and he was being deprived of his membership. Counsel for the applicants submits that in such circumstances natural justice requires that before the deciding body reaches a decision of such a nature, the applicant Pantridge should be given an opportunity of being heard in his own defence; in other words, the maxim audi alteram partem applies.
Counsel for the senate concedes that the concept of natural justice is applicable, but he says that this is a general concept involving lack of bias, accord with any relevant rules and general fairness and is not to be confused with audi alteram partem which is a special rule applicable in only a limited sphere. The prerequisite for its application is that the person concerned must be faced with some sort of charge. If, but only if, this is the case, the rule requires that the charge be made known to him and that he be given the opportunity to rebut it. In the present case, he submits, no charge was made against the applicant Pantridge. His position was quite simply that of a young man who had twice failed his examinations and failed them badly. Any young man so circumstanced should expect to be sent down and had no right to be heard when the university was engaged in the benevolent exercise of deciding whether it could afford to mitigate the necessary penalty. According to counsel's submission, a student who has failed occupies a position analogous to one holding office at pleasure.
In my judgment it is not right to treat the principle of audi alteram partem as something divorced from the concept of natural justice, although it will certainly not apply in every case in which there is a right to natural justice. Where, however, it does apply, it is an integral part of natural justice and may indeed lie at its heart. LORD UPJOHN delivering the report of the Judicial Committee of the Privy Council in Durayappah v. Fernando [1967] 2 All E.R. 152 p.156; [1967] 2 A.C. 337 p.349 said that outside well-known cases such as dismissal from office, deprivation of property and expulsion from clubs there existed a vast area within which the principle could only be applied on most general considerations. In considering its applicability regard had to be had to the wording of the provisions concerned, in this case the special regulations, and to three matters, namely first, what is the nature of the property, the office held, status enjoyed or services to be performed by the complainant. Second, in what circumstances or on what occasions is the person claiming to be entitled to exercise the measure of control entitled to intervene. Thirdly, when a right to intervene is proved, what sanction in fact is the latter entitled to impose on the other.
The first and third of these matters fall to be considered together in this case. The applicant Pantridge was a student member of the university enjoying the rights and privileges of that status with the chance of achieving graduate status in due time. The sanction which the university was entitled to impose was total deprivation of that status and of the chance of improving it thereafter. Furthermore, the applicant Pantridge found to his cost, an ex-student member of a university may well be in a more disadvantageous position than one who aspires for the first time to student status. There have been more momentous decisions than that made by the examiners in the case of the applicant Pantridge, but there can be no denying its gravity from his point of view.
The second matter falls to be considered with and in the context of the special regulations governing the course. There is much force in the contention of counsel for the senate that examinations are meant to be passed and that those who fail to do so at a university prima facie should expect to be sent down. I am quite prepared to accept it as a background against which the special regulations fall to be construed. They, however, provide a most elaborate code which almost effaces the background. We are concerned with the qualifying year which determines whether the student moves on to study for an honours degree, to study for a pass degree, or has to leave the university. It is only in the latter case that membership of the university - a body with some of the attributes of a club - is in question. If the student passes in all major subjects at honours standard and in subsidiary subjects at pass standard, he moves on to the honours degree course automatically (special reg. 4 (b)). If he achieves pass standards in all subjects, he moves on to a pass degree course (special reg. 4 (c)). If he fails to achieve a pass standard in a major subject, he may be permitted to take a referred examination in that subject at the discretion of the examiners and, if successful, will move on to the pass course (special reg. 4 (d)). If he fails to achieve pass standards in either or both subsidiary subjects and, I assume although it is not so stated, achieves honours standards in the major subjects, he may on the recommendation of the examiners be permitted to take referred examinations in these subjects and, if successful, may be permitted to proceed on the honours course (special reg. 4 (e)). It is not stated to whom the recommendation is to be made and who decides, or why under this regulation the examiners recommend rather than exercise their own discretion. If he fails in more than one major subject (of which there are three and the applicant Pantridge was successful in them all) or fails in a referred examination (which the applicant Pantridge did in the case of one subsidiary subject) he may at the sole discretion of the examiners re-sit the whole examination or may be required to withdraw from the course. In the event of his being successful in the re-sit examination he would normally proceed to the pass degree only (special reg. 4 (f)). The regulations enjoin examiners in deciding whether to allow students to re-take examinations to have regard to their performance in non-examinable subjects (special reg. 4 (g)) and with an escape clause providing that students may not normally (my emphasis) proceed to the second year of the course until they have satisfied the examiners in the examinations as a whole (special reg. 4 (h)). They could quite properly have provided, but did not provide, that the examiners should be under no obligation to afford the students any opportunity to make representations to them, before making a decision. Had the regulations taken this form, no problem would have arisen.
I have dealt with these regulations at length because it seems to me that they largely destroy the prima facie approach of "pass or go down". Their elaboration continues in relation to the honours course, the honours final, the pass degree course and the pass final. Of these, reg. 6.4 (b) which applies to the pass degree course is important, not because it is of direct application, but because it shows a contrasting approach to that indicated by reg. 4 (f) under which the applicant Pantridge was sent down. That regulation provides that
"Any student who fails to satisfy the examiners in not more than two subjects may at the discretion of the examiners be permitted to take a referred examination in these subjects. Students failing to reach pass standard in three or more subjects, or who fail a referred examination, may not normally proceed further on the course."
Here alone is the "pass or go down" approach to be seen. Scarcely a body in the university failed to make a recommendation or a decision in the case of the applicant Pantridge and his fellow students. No doubt their interventions were inspired by the most laudable of motives, although their lack of unanimity was in many ways unfortunate. The fact remains that whilst other bodies might be able in practice to temper the wind to the failed student, the only body invested by the regulations with the power and discretion to decide whether or not the applicant Pantridge should be sent down was "the examiners". For my part I am inclined to think that as the regulations stand this means the full board of examiners but the decision was in fact taken by a smaller body and no objection has been taken on that account. For the purposes of this case, I shall assume that theirs was the discretion and theirs the decision.
I can understand it being argued on the regulations that regard was to be had primarily and possibly exclusively to the examination results and performances in non-examinable subjects. However, the examiners themselves did not adopt this approach, as I think rightly, and they considered a wide range of extraneous factors, some of which by their very nature, for example personal and family problems, might only have been known to the students themselves. In such circumstances and with so much at stake, common fairness to the students, which is all that natural justice is, and the desire of the examiners to exercise their discretion on the most solid basis, alike demanded that before a final decision was reached the students should be given an opportunity to be heard either orally or in writing, in person or by their representative as might be most appropriate. It was, in my judgment, the examiners' duty and the student's right that such audience be given. It was not given and there was a breach of the rules of natural justice.
In the course of the argument it was submitted that students who had failed their examinations were in no better position than those who applied for admission as students, the latter plainly having no right to be heard, but this in my judgment overlooks the accrued status of the students as members of the university. Reference was also made to the immigrant cases such as Re K. (H.) (infant) [1967] 1 All E.R. 226; [1967] 2 Q.B. 617, Re A. (an infant), Re S. (N.) (an infant) [1968] 2 All E.R. 145; [1968] Ch. 643 and Schmidt v. Secretary of State for Home Affairs [1969] 1 All E.R. 904; [1969] 2 W.L.R. 337, but these are not really analogous. The industry of counsel enabled us to be referred to a decision of the courts of New South Wales, Re University of Sydney, ex p. Forster [1963] S.R. (N.S.W.) 723, which bore a striking similarity on its facts, but there the issue was not a right of audience, but an alleged absolute right to remain a member of the university irrespective of examination results. The court denied the existence of any such right, but its existence has not been suggested in the present case.
This by no means concludes the matter in the applicant Pantridge's favour, because it is not in all circumstances that a breach of the requirements of natural justice will give rise to prerogative redress. The remedies are discretionary and a very important factor is the likelihood that the ultimate decision would have been any different, if a right of audience had been extended to the applicant Pantridge. It is in this context that the history of the affair after the initial decision is of relevance, but is difficult to evaluate. In the course of the argument counsel for the applicants was asked whether there was any further information which the applicant Pantridge wished to place before the court, but, after taking instructions, counsel said that there was none.
The fact remains that the examiners who reached the initial, and as I think the only directly relevant, decision, were wholly unaware of the widespread allegations that the students had been misled by members of the staff as to what was at stake when they prepared, or failed to prepare, for the examinations in the subsidiary subjects and for the referred examinations in those subjects. Would the knowledge have made any difference? It may well be thought that the applicant Pantridge achieved only derisory marks (17 per cent in the referred examination), but students with 22 per cent and 25 per cent were permitted to repeat the first year. When one tries to assess the probable outcome on the basis of the attitude of the full board of examiners, the board of the faculty, the academic advisory committee, the senate and the council, all of whom knew of the allegations and either had investigated them or knew the results of such investigations, the problem becomes more difficult still. None of these bodies regarded the allegations as proved, but some clearly took the view that the students honestly believed in their truth. The board of the faculty, acting on the basis of the professor's interview with the students, intended to exercise the discretion which they mistakenly thought that they possessed in favour of the students. The academic advisory committee clearly thought that the principles of good administration required that both students and staff be heard by the senate. In my judgment it is impossible to project subsequent attitudes backwards in point of time and to determine what the examiners would have done if they had heard the students' allegations, before making a decision.
In this situation I regard the time factor as decisive. The prerogative remedies are exceptional in their nature and should not be made available to those who sleep on their rights. The applicant Pantridge's complaint is that he was not allowed to re-sit the whole examination in June 1968 and, if successful, proceed to the pass degree course in the 1968-69 academic year, yet he did not even apply to move this court until July 1968. By such inaction, in my judgment he forfeited whatever claims he might otherwise have had to the court's intervention. I would therefore refuse the relief sought.
JUDGMENT BY BLAIN, J.
The grounds put forward in support of this application are that the decision of the senate of the University of Aston in Birmingham or alternatively the decision of the examiners for referred examinations for which the applicants sat unsuccessfully in September 1967 was a nullity in that it was arrived at in a manner contrary to natural justice. In Russell v. Duke of Norfolk [1949] 1 All E.R. 109, TUCKER L.J., said (p.118):
"There are... no words which are of universal application to every kind of inquiry and every kind of domestic tribunal. The requirements of natural justice must depend on the circumstances of the case, the nature of the inquiry, the rules under which the tribunal is acting, the subject-matter that is being dealt with, and so forth."
Those words were quoted by LORD HODSON in his speech in Ridge v. Baldwin ([1963] 2 All E.R. 66 p.114; [1964] A.C. 40 p.132), the case in which LORD REID reviewed most of the leading cases and delivered the modern classic speech on the subject. LORD REID said (p.71&ff; 65&ff) that one reason why authorities in the past have been difficult to reconcile is the failure to appreciate the difference between various kinds of cases in which it has been sought to apply the principle. He instanced among different categories of case: (i) Cases of dismissal. And these he divided into three classes: (a) dismissal of a servant by a master; (b) dismissal from an office held during pleasure; (c) dismissal from office where there must be something against a man to warrant his dismissal. (ii) Deprivation of membership of a professional or social body. Membership of the Stock Exchange or membership of any members' club are instances, quite apart from the membership of a trade union (where the common law rights may be clouded by special considerations). (iii) Deprivation of property or interference with personal rights by the processes of administrative law.
I do not think that LORD REID'S classification was intended to be exhaustive. Indeed he virtually said as much himself when suggesting (p.71; 65) that the reason for apparently irreconcilable decisions in the past was the failure to appreciate the great variety of contexts in which the concept of natural justice might arise (p.73; 68). In the instant case the facts, the history and what I may loosely call the constitution of the university and its constituent or subordinate bodies have been summarised by DONALDSON, J. In my opinion they indicate that these student applicants fall into the second category named by LORD REID. They were members of the university - that is a status akin to membership of a social body, a club with perhaps something more than mere social status attached to it, in that so long as they remained students they were potential graduates and potential holders of degrees which could prove advantageous in professional or commercial life.
Approaching their application in that way three questions arise:
(i) Is the
concept of natural justice applicable at all? That much is conceded and rightly
so.
(ii) When the senate or the examiners (as the case may be) decided that
these students should be required to withdraw from the course, was that decision
arrived at in accordance with the principles of natural justice? The markings
of the examination papers are not criticised and this comes down to a question
whether the applicants should have had an opportunity, which they did not have,
to justify or explain their failure. In other words was this a case for audi
alteram partem?
(iii) If in making its decision the deciding body did not act
in accordance with the principles of natural justice, should this court
interfere with the decision in the exercise of its discretion to make a
prerogative order or orders?
(a) I share DONALDSON, J.'s view that the right to be heard is often an example of and an integral part of the concept of natural justice and also his view that it is not always a necessary ingredient of that concept. Was it a necessary ingredient here? I do not conceal the fact that I have found that a very difficult question to resolve in my mind.
(b) The first consideration is: what body or what arm of the university took and was empowered to take the effective decision complained of? Article 12 of the university's charter made the senate the supreme academic authority of the university and section xix of the statutes prescribed the senate's powers, including in para. 10 the power to regulate all university examinations and to appoint examiners, and in para. 27 of the power to make regulations in the exercise of the senate's general powers.
(c) The senate approved general regulations on 1st July 1966 and special regulations for the course for the degree of B.Sc., with honours in Behavioural Science on 15th March 1967. General reg. 6 provides:
"Candidates who fail to satisfy the examiners in examinations other than final examinations may as the examiners determine either (a) be referred in such subject or subjects in accordance with the appropriate Course Regulations, or (b) resit, on one subsequent occasion only, in the following Academic year, the whole examination with or without further attendance, or (c) be required to withdraw from the Course."
Special reg. 4, so far as relevant, provides:
"Part I (Qualifying)(a) The following subjects shall be studied, and except where marked [with an asterisk] candidates must present themselves for examination towards the end of the third term of the first year.
Major subjects:
(i) Elements of Psychology
(ii) Elements of Sociology
(iii) Elements of EconomicsSubsidiary subjects:
(iv) Social and Economic History
(v) Statistics...
(e) Any student who fails to achieve a pass standard in Statistics and/or Social and Economic History may on the recommendation of the examiners be permitted to take referred examinations in these subjects, and may, if successful, be permitted to proceed on the Honours Course."
This does not indicate to what body the examiners' recommendation is to go - presumably either the senate or possibly the faculty board, but it is not a question which needs to be resolved in these proceedings since the applicants were in fact permitted to and did take referred examinations and it is their failure in such referred examinations that brings them here.
"4 (f) Students who fail in more than one major subject, or who fail in a referred examination, may at the discretion of the examiners, resit the whole examination or may be required to withdraw from the course. Students who are successful in such resit examinations shall normally be eligible to proceed to the Pass Degree only."
This in my view clearly indicates that the decision whether a student failing such a referred examination should re-sit the whole examination or withdraw from the course is in the sole discretion of the examiners and no higher or other body. If this be right the question is whether the examiners before deciding to require the applicants to withdraw from the course should have afforded them the opportunity to explain or mitigate their failure either orally or in writing. The decision was first taken or communicated to the applicants on 20th September 1967 and I start by considering whether at that date there had been a failure of natural justice. In the light of their somewhat dismal failure (particularly in the case of the applicant Pantridge) plus what this court knows from what have been called the "academic profiles" subsequently prepared, I find it hard to believe that even a personal interview before the decision of the examiners could have contributed to any different decision, but (as LORD REID said in Ridge v. Baldwin, p.80; 79) it is at least doubtful whether that is relevant and I eliminate it from my mind.
It may well be that the examiners would have been entitled to decide purely on the examination results (I have detected nothing in special reg. 4 or elsewhere to inhibit this) but from para. 10 of the affidavit of the course tutor, Mr. Hall, it is clear that on 19th September 1967 the marks and also the students' records throughout the year were considered by the board of examiners (and very properly so, in my view) before the decision to require their withdrawal was taken. In such circumstances, and particularly since in effect the decision was one resulting in the applicants being sent down (albeit not for any disciplinary misdemeanour but for failure to make the grade) in my view common fairness demanded an opportunity for representation to be made by or on behalf of the applicants - I do not go so far as to say necessarily a personal interview. But this is not the end of the question. In Ridge v. Baldwin (p.80; 79) LORD REID said:
"I do not doubt that if an officer or body realises that it has acted hastily and reconsiders the whole matter afresh after affording to the person affected a proper opportunity to present his case then its later decision will be valid."
I find it necessary therefore to consider what happened after 20th September 1967 - a whole series of events enumerated by DONALDSON, J. There were personal interviews with the tutor (on 25th September); representations by the president of the guild of students to the vice-chancellor (on 28th September); a report from the dean of the faculty to the vice-chancellor (on 4th October); a meeting of the board of examiners (on 5th October); a meeting of the faculty board (on 6th October) a meeting of the board of examiners (on 9th October); and a subsequent meeting of the faculty board on the same day; a report to the senate (on 11th October); a further meeting of the faculty board (on 12th October); later on 12th October a meeting between a group of the professors in the faculty and all the students who had failed the referred examinations, except the applicant Pantridge who failed to attend -- at this meeting the students who attended made their explanations to the group of professors who decided to go into the academic backgrounds of the students concerned; a meeting of the board of examiners (on 16th October); production of the "academic profiles" by the board of examiners; another meeting of the faculty board (on 18th October) which recommended that the applicants and others required to withdraw should be permitted to re-sit in June 1968; unofficial notification to the students of this recommendation; a meeting of the senate itself (on 1st November) which "confirmed" (or purported to confirm) the original decision of the examiners and this was communicated to the applicants on that day.
It is clear that at all levels all concerned were at pains to do what they believed to be their proper duty to the students concerned. But the fact remains that the body entrusted with the decision remained the examiners. Among those various meetings, therefore, it is the meetings of the examiners which are important in this court. The minutes of the meeting of the board of examiners on 16th October are illuminating. At this meeting Professor Gibson, the dean, is reported as setting out the background to the meeting and informing those present that the faculty board had "considered fresh information made available to it and had made enquiries amongst students and members of the staff". This is clearly a reference to what had occurred four days earlier when the faculty board had adjourned at 3.15 p.m. and reconvened at 4.20 p.m. - a group of the professors in the faculty having interviewed six students and the president of the guild of students meanwhile (indeed the adjournment had been for this express purpose). In the light of what occurred on 12th and 16th October I find it impossible to say that by 16th October the examiners were not fully possessed of the students' explanations for failure in the referred examinations. But the examiners, doubtless considering that the matter had passed out of their hands, did nothing to alter or affirm their original decision. Had they made a fresh decision it could have been come to, in my opinion, in accordance with the concept of ordinary fairness - of natural justice - whichever way the decision had gone, because they would have had the benefit of the students' representations (albeit obtained through the channel of the interviews and opportunities for interview with the group of professors on 12th October). As it is they, that is, the examiners, did not reconsider their decision of 20th September. So far as the students are concerned they simply received notification dated 1st November 1967 purporting to confirm their non-eligibility. Consequently if this were an application for an absolute right I personally should be in favour of granting relief. But the matter does not end there. This court does not lightly exercise its discretion to grant prerogative orders - not only is real injustice a necessary ingredient before any such application is granted, but it should, in my view, be granted only where diligence is shown by an applicant in real need of the remedy.
In the applicant Roffey's case there is no real need and indeed counsel for the applicants very properly does not press his application. So far as the applicant Pantridge is concerned the position seems to be this: first, he went up to the university (or the college of advanced technology as it was before grant of the royal charter) in October 1965; secondly, he changed from being a student in another course in January 1967. It was in June and September 1967 that he failed his examination and referred examination respectively. Thirdly, on 1st November 1967 he received notification that the original requirement to withdraw from the course dated 20th September 1967 was confirmed. Fourthly, not until 19th July 1968 did he seek from this court leave to move, although his complaint is that he should have been allowed to re-sit the whole examination in June 1968, and fifthly, effectively, therefore, his application could not have resulted in a re-sit until June 1969 four years after entering the university and it probably could not now result in an effective re-sit before June 1970. This court should not be used for the creation of a real life counterpart to Chekhov's perpetual student, and I would refuse to exercise discretion and dismiss the application.
JUDGMENT BY LORD PARKER, C.J.
I have had considerable doubts about this case, but having had an opportunity of reading the two judgments just delivered, I am not prepared to differ from the conclusion that there has been here a breach of the rules of natural justice. In my judgment, however, this conclusion is only justified on the particular facts of this case. I have in mind the precise wording of the special regulations and in particular special reg. 4 (f), and the fact that the examiners, in exercising their discretion, were prepared to take into consideration the personal difficulties and problems of each student. I have, however, no doubt at all that this court, in the exercise of its discretion, should not give the relief claimed.
DISPOSITION
Applications dismissed.
SOLICITORS
Hyman Isaacs, Lewis & Mills (for the applicants);
Sherwood & Co., agents for
Johnson & Co., Birmingham (for the senate).