HEARING DATES 27, 28 February & 9 March 1989
Education - University - Visitor's jurisdiction - Failure to be awarded degree - Complaint that examiners unqualified in student's subject - Petition to visitor - Jurisdiction of visitor in considering matters of academic judgment
HEADNOTE
The applicant, having registered as a student at a college of the university to read for the degree of Ph.D. in Zoology, prepared a thesis during the following four years. Shortly before its completion two professors of the university, on the nomination of her supervisor, were appointed to examine her. Before and after their appointment the applicant complained that their speciality in histochemistry rendered them unsuitable to assess properly the contribution made by her thesis to the field of comparative zoology. When she was unsuccessful in both the examination and a subsequent re-examination of her thesis she petitioned the visitor on the ground, inter alia, that the two professors' appointment should be set aside, alternatively that they were not proper or competent to examine her. The committee acting for the visitor, in giving their opinion, stated that they were not under a duty to interfere in matters of scientific or technical judgment, that it was not proper for them to express a view on their own choice of examiners nor to criticise the university's decision unless it was plainly wrong. They accordingly dismissed the petition. The applicant applied for judicial review on the ground, inter alia, that given the apparent mismatch between the examiners' and her own specialisations, the selection of examiners was not a matter purely within the exercise of an academic judgment and that the committee should have made fuller investigations to satisfy themselves that the appointments were reasonable. The Divisional Court dismissed the application.
Held, dismissing the appeal, that the visitor, in the exercise of a proper judgment, had untrammelled power to investigate and determine the domestic affairs of the foundation to which he was appointed in a manner and to a degree which he considered appropriate in the circumstances of the particular case, and that it was not appropriate to characterise his jurisdiction as being appellate or supervisory; that since the committee knew that the examiners were appointed on the nomination of the applicant's supervisor who appreciated the field of her research, and since the committee were entitled to assume that the university's prescribed procedures for such appointments had been followed, there was no misdirection in their concluding that the choice of examiners involved the exercise of an expert judgment which was not clearly wrong and into which they should not therefore intrude; and that, accordingly, there was no ground for the court to intervene by way of judicial review.
Decision of the Divisional Court [1988] Q.B. 322; [1988] 2 W.L.R. 106; [1987] 3 All E.R. 204 affirmed.
INTRODUCTION
APPEAL from the Divisional Court of the Queen's Bench Division.
In 1975 the applicant, Janaki Vijayatunga, registered as an internal student of the University of London at Bedford College for the degree of Doctor of Philosophy in Zoology under the supervision of Professor R. P. Dales. In July 1979 Professors P. B. Gahan and S. J. Holt of the University of London were appointed to examine her on her thesis for the degree. On 5 November 1979 the applicant was orally examined by Professors Gahan and Holt, and on 14 December 1979 she was told that she had been unsuccessful in her examination. On her application to the vice-chancellor of the university she was re-examined in May 1980 by a panel of five, including Professors Gahan and Holt. She was again unsuccessful.
In November 1981 the applicant petitioned the visitor to the university, Her Majesty the Queen in Council, to consider the appointment of the two professors as examiners and whether she should be granted the degree of Ph.D. She contended that the appointment was wrong and should be set aside alternatively that the examiners were not proper or competent since they were not zoologists specialising in the field to which her thesis related. On 16 March 1983 a committee of the Judicial Committee of the Privy Council acting for the visitor, having heard the matter, dismissed the petition.
Pursuant to leave granted by Forbes J. on 19 January 1985, the applicant applied for judicial review seeking, inter alia, (1) an order of certiorari and/or prohibition against the committee's decision; (2) an order of mandamus directing the visitor to grant the prayer contained in the petition by declaring that the applicant had reached the standard required for the award of a Ph.D., and by ordering that such degree be conferred on her, alternatively by declaring that the applicant's fitness for the award of such a degree had not been properly assessed, and by ordering that she be re-examined justly; and (3) a declaration that the decisions of the visitor were ultra vires and void. On 13 May 1987 the Divisional Court (Kerr L.J. and Simon Brown J.) [1988] Q.B. 322 dismissed the application.
By a notice of appeal dated 8 June 1987 the applicant appealed on the grounds, inter alia, that (1) the Divisional Court erred in holding that the visitor was not obliged to investigate the reasonableness of the appointment of the examiners or their competence, the visitor should have considered whether the examiners were persons whom it was reasonable for the university to have appointed, such consideration requiring some analysis of the qualifications and experience of the examiners; (2) the Divisional Court erred in holding that the visitor's jurisdiction in relation to the appointment and competence of examiners could differ from case to case, (a) as held by Kerr L.J., at the discretion of the visitor, or (b) as held by Simon Brown J. as a matter of law, but not so as to require any greater investigation in the applicant's case than that accorded by the committee; (3) the Divisional Court erred in failing to hold that the appointment of inappropriate examiners was not merely a matter of academic judgment but a substantive irregularity and ultra vires.
The facts are stated in the judgment of Bingham L.J.
COUNSEL
Stephen Sedley Q.C. and Philip Engelman for the applicant:
The visitor's jurisdiction, though exclusive, is created by law and is subject to judicial review both for excess of jurisdiction and for failure to exercise jurisdiction. In the present circumstances the visitor is the sole source of justice between the student and the university. As sole judge of law and fact it was the duty of the Privy Council, in right of the visitor, to investigate all matters justiciable by them. Where a complaint is made the visitor's duty is to make such inquiry as the circumstances require. A failure either to embark on an appropriate inquiry or to conduct such an inquiry on a legally correct basis is in public law an error going to jurisdiction and as such is reviewable by the courts. The Privy Council could not properly perform the visitor's legal function here without satisfying themselves that it was not unreasonable to appoint a professor of Biochemistry and a professor of Botany to adjudicate upon the quality and originality of a thesis in Zoology. In particular they could not perform the visitatorial function by deferring to the university which is the body in respect of which it was their duty to adjudicate. That duty in law was, giving all proper weight where appropriate to the exercise of specialist academic judgment, to form their own view of whether the choice was a reasonable way of discharging the university's duties as an examiner.
Although it is accepted that purely scientific matters would not fall within the scope of the visitor's duty to inquire, the Privy Council were under a duty to investigate the merits of the present area of complaint.
The selection of examiners is not solely an exercise of pure academic judgment, and in particular where there is an apparent mismatch between the speciality of the thesis and those of the examiner there was an obvious issue for investigation. Had the Privy Council not abdicated from their investigative role, an answer might have been provided to explain the apparent anomaly. They were not obliged only to inquire if satisfied, as in judicial review proceedings, that the appointments were plainly wrong. "Plainly" implies a "first blush" approach. They were required to investigate where the applicant, as here, could show a prima facie case.
The scope of the visitor's jurisdiction as judge of fact and law is considered in Philips v. Bury (1694) Skin. 447, Ex parte Kirkby Ravensworth Hospital (1808) 15 Ves.Jun. 305, Thomson v. University of London (1864) 33 L.J. Ch. 625 and recently in Thomas v. University of Bradford [1987] A.C. 795. Those cases were considered by the Divisional Court and set out as the relevant statement on this aspect of the law in the judgment of Kerr L.J.
The Divisional Court, however, concluded that the Privy Council were not required by law to investigate the principal issue once it has been identified, but the two judges reached their conclusion by different routes. Kerr L.J. reasoned directly from the domestic and academic character of the particular issue of the appointment of examiners to the restriction of the visitor's duties to a limited form of judicial review. However, that approach begs the central question put to the visitor: was the selection and appointment of the particular examiners "within the rules and academic practices of the university", and if so, were such practices proper? Simon Brown J.'s judgment was a seminal statement of the modern law governing the powers and duties of university visitors. But he wrongly concluded that the appropriate depth of inquiry of any issue is a matter for the visitor's discretion. That cannot be right: see for example dicta of Lord Griffiths in Thomas v. Bradford University [1987] A.C. 795, 815. Once the issue is identified the depth of investigation necessary for the visitor to do justice will be ascertained and enforceable by the supervising court. It is not logical to conclude as Simon Brown J. does that the visitor is bound only to "investigate the basic facts to whatever depth he feels appropriate." As sole source of justice the visitor is bound to investigate every issue within his jurisdiction to whatever depth the issue and the evidence require. It is not said that the visitor must investigate every complaint, but his duty is triggered where a legitimate question or prima facie case is perceived to arise. The fact that judgment as to the appropriate depth rests initially with the visitor does not make him any the less amenable to the supervisory jurisdiction of the court if he misjudges the depth appropriate to the particular question.
In the present context there is an important distinction between the due selection of examiners and the judgment of the examiners once duly selected. The degree of scrutiny open to the visitor is not the same in each case. The Privy Council never addressed themselves here to the area of real dispute and accordingly failed to appreciate its true nature. They concerned themselves with the method only of appointment and confirmed the mechanics. It was for the Privy Council, however, to ensure that the right experts were selected. The judgment of the examiners is always inviolable, unless, unlike the present case, mala fides is alleged, but in appropriate circumstances the visitor may be required to become involved in factual matters of academic concern.
The appointment of inappropriately qualified examiners goes to the root of the university's legal and academic duties and of its contractual and academic relationship with the student. That is entirely within the visitor's purview, and cannot be designated a matter of academic judgment. The evident mismatch here between the examiners' specialisations and the applicant's thesis raised a legitimate question as to their suitability which it was incumbent on the visitor to investigate. In failing to embark on the merits of the petition the Privy Council failed in one of their fundamental duties as visitor.
John Laws and Robert Jay for the visitor:
In the hearing before the Divisional Court a parallel was drawn between the jurisdiction of the visitor over the foundation and that of the High Court with regard to matters of public law. That parallel was only partially accepted by the Divisional Court and in the absence of a respondent's notice, the visitor rests on the judgment below. Whether or not the visitor's functions and jurisdiction were sui generis, the comparison remains valid. Just as the High Court is the judge of public law so the visitor is the judge of the internal law of the foundation: see Holt C.J. in Philips v. Bury(1694) Skin. 447 cited by Lord Griffiths in Thomas v. University of Bradford [1987] A.C. 795, 815.
The jurisdiction and function of the visitor depends on the internal law of the foundation which in the present case is expressed in the University of London Act 1978, see in particular the Schedule to the Act which also contains detailed provisions relating to organisations of the university and confers on the academic authorities the power to make decisions relating to academic matters including the appointment of examiners. The complaint here concerns the execution of those responsibilities under the provisions of the Schedule to the Act and it is asserted that it was the visitor's duty not just a matter of their discretion to examine the facts as to whether the appointments were reasonable.
It appears that the visitor is therefore on a knife edge between adopting a supervisory or a first instance merits approach. The question is how far must the visitor intrude into the function of the Academic Council of the Senate. Obviously appropriate examiners must be appointed, and if there is a challenge the visitor should inquire where there is a plain or prima facie reason to do so.
But where the situation is not obvious, where the disciplines are overlapping and the examiners have been nominated by the student's own supervisor, the visitor would have to enter into strictly academic matters. To strike down a decision of the university on a scientific or technical matter the visitor must find a deeper error, fit to be judged by non-scientists, adopting an approach similar to Wednesbury: see Associated Provincial Picture Houses Ltd. v. Wednesbury Corporation [1948] 1 K.B. 223. If the visitor otherwise conducts a more intimate approach, he usurps the university's role allocated to it by the University statutes.
The visitor did not focus on the wrong point. The Privy Council's handling of the applicant's petition shows that they well appreciated the area of complaint by treating it as a matter of academic judgment.
There may be differences of approach between the judgments in the Divisional Court. Kerr L.J. considered that the way the visitor exercised his powers was a matter for his discretion, policed by the courts in the usual way. Simon Brown J. considered that the visitor's approach was not akin to the courts' supervisory role on judicial review or to its appellate role, but that the visitor must exercise reasonably his untrammelled ability to inquire. However their conclusion was that the visitor both recognised the full width of their visitatorial jurisdiction and approached its exercise properly.
There may be other cases where there should be intimate factual judgment, when the visitor's approach will clearly be very different from that applied on judicial review. But in the present case the role is supervisory since the functions under review are entirely within the university's academic duty. Any other approach would be an unwarranted intrusion into the university's authority. The visitor must in truth adopt an "all depends" approach.
George Newman Q.C. and Michael Lazarus for the university:
The issue before the Privy Council was not that the university did not understand the subject matter of the thesis, but that it had mistakenly appointed examiners whose appropriateness related to a thesis concerned with a question of methodology. They were experts in the field of methodology used by the student but, it was said, not in the substantive subject matter of the thesis. According to the applicant one was just a zoologist, and the other had an expertise in part of the content of her work, namely the methodology. She complained that for that reason insufficient weight might have been given to its originality, which is the touchstone for a Ph.D. Accordingly her complaint amounts to an assertion that the university seeing the nature of her thesis should have given more weight to the fact that histo-chemistry is only a method, and should not therefore have appointed a histo-chemist as one of the examiners.
That being the nature of the complaint, it is not surprising that the Privy Council were able to categorise it as relating to matters of academic and scientific judgment. They were perfectly entitled in those circumstances to deal with the matter in the exercise of the visitatorial jurisdiction as they did. They embarked on an inquiry, correctly declined to assess the issues of scientific judgment and equally were not in error in ceasing to continue the investigation at the stage they did.
The visitor rightly adopted a supervisory role, analogous to the jurisdiction exercised by the Divisional Court under Wednesbury principles: see Associated Provincial Picture Houses Ltd. v. Wednesbury Corporation [1948] 1 K.B. 223. The Privy Council's conclusion was in effect that the appointment of the examiners was not Wednesbury unreasonable. The visitor has a broad discretion as to the nature of the inquiry undertaken, which follows from the width of the field in which he is called on to adjudicate, and from the absence of any express limitation on his powers: see statute 6 of the Statutes of the University of London.
The court's role is limited to determining whether the visitor has acted Wednesbury reasonably in all the circumstances. The visitor cannot be said to have acted unreasonably when he adopts a basis for the review of an academic decision taken by academics in their discretion which is similar to that adopted by the courts. Nor can it be unreasonable where the visitor has taken the view that the academic staff of the university are prima facie the persons best suited to appointing examiners, and has reserved the right to intervene if the decision of the academic staff is obviously wrong.
The visitor should be permitted by the court to exercise a broad discretion, and the court should not intervene with that exercise save in exceptional circumstances in order to achieve finality, to avoid frequent recourse to the courts, thus losing the advantages of speed, cheapness and informality: see Attorney-General v. Talbot (1747) 3 Atk. 662, and Rex v. Dunsheath, Ex parte Meredith [1951] 1 K.B. 127 and because the applicant student has consented to be examined by examiners appointed by the university.
Sedley Q.C. in reply:
The visitor's jurisdiction is sui generis and accordingly it is damaging to attempt to define its ambit. He is not always in the Wednesbury "box". Such a constraint should not be put on a jurisdiction which is as broad or as narrow as the question demands. Here the visitor should have investigated the reason for the evident mismatch between the thesis and the examiners' specialities. An explanation was called for and was never given. The Privy Council consigned the question to the small inner area of scientific and technical judgment but said that it was not a plain case. That was not a proper conclusion for them to have reached in the exercise of visitatorial powers. With regard to the misapprehension of the thesis it is clear from the materials both before the Privy Council and in the proceedings that that was the case.
In Council of Civil Service Unions v. Minister for the Civil Service [1985] A.C. 374, 410A-411A Lord Diplock discussed the breadth and flexibility of the court's approach in judicial review, in which the subject matter of the challenge can be wide-ranging. The supervisory jurisdiction with which he was there concerned is distinguishable from that exercised by the visitor, but the coverage of matters falling within the domain of the visitor is certainly as extensive. The subject matter of the present complaint, raising as it does questions of the suitability of particular examiners to adjudicate on the originality of the applicant's thesis is well within the province of the visitor, and the Privy Council accordingly failed in the exercise of their jurisdiction.
Cur. adv. vult.
9 March. The following judgments were handed down
PANEL: Lord Donaldson of Lymington M.R., Bingham and Mann L.JJ.
JUDGMENT BY BINGHAM L.J.
On 13 May 1987 a Queen's Bench Divisional Court (Kerr L.J. and Simon Brown J.) dismissed an application by Miss Vijayatunga for judicial review of two decisions of a committee of the Privy Council acting for Her Majesty in Council as visitor of the University of London. I shall call this "the committee." Miss Vijayatunga now appeals against the order of the Divisional Court, whose judgments are reported at [1988] Q.B. 322. But in this court the argument has somewhat narrowed and it is now only one decision of the committee, that made on 16 March 1983, which Miss Vijayatunga seeks to challenge.
Strictly, the committee did not make a decision but expressed an opinion for the guidance of Her Majesty in Council, but for ease of reference it has been found convenient to treat the committee as if they were themselves the visitor. I shall continue to do so. It has been accepted that the identity of the visitor does not preclude an order of judicial review if an order is otherwise appropriate.
The facts have been clearly and comprehensively stated by Kerr L.J. [1988] Q.B. 322, 325D-328D. This relieves me of the need to give more than the barest summary necessary to raise the legal issue argued before us.
In October 1975 Miss Vijayatunga, whom I shall call "the applicant," registered as a student of Bedford College to read for a Doctorate of Philosophy in Zoology. She was at that time a research assistant to Professor Dales, Head of the Department of Zoology at Bedford College and a Professor in the University, who became her supervisor. Under his supervision she prepared a thesis entitled "Lysosomes in the coelomocytes of three species of polychaete annelids with particular reference to Nereis diversicolor." In lay terms, the subject matter was a study of cell constituents in the free cells found in the body cavity of three species of ragworm, in particular the species Nereis diversicolor. The subject was one which Professor Dales approved.
In July 1979 the applicant's thesis was nearing completion. The secretary to the Board of Studies in Zoology asked Professor Dales to put forward nominees for appointment as examiners. Having spoken to a lecturer in Zoology at the applicant's college he put forward the names of Professor Gahan and Professor Holt. Professor Bullough, the chairman of the Higher Degrees sub-committee of the Board of Studies in Zoology, accepted the nomination and made the appointments, later accepted by the sub-committee. Both before the appointments were made and just after the applicant expressed the clear opinion that neither of these professors was qualified to examine in the specialised field covered by her thesis.
On 5 November 1979 the applicant was orally examined by Professors Gahan and Holt. After an unhappy incident fully discussed by the committee and Kerr L.J. but not now material, the applicant was told on 14 December 1979 that she had been unsuccessful in her examination for the degree of Ph.D. She did not, for understandable reasons, accept the offer of a lesser degree but instead applied to be re-examined. She was re-examined in May 1980 by a board composed of three new examiners in addition to the original two, but was again unsuccessful.
In November 1981 the applicant petitioned Her Majesty in Council as visitor of the university under the statutes scheduled to the University of London Act 1978. It is this petition, heard on 25 February and dismissed on 16 March 1983, with which alone this appeal is now concerned. The applicant did, however, thereafter seek redress by complaint, held inadmissible, to the European Commission of Human Rights, and by further petition, also unsuccessful, to the committee. In her application for judicial review the applicant seeks, in effect, a declaration that the committee's decision of 16 March 1983 was reached on an incorrect basis in law.
In her petition to the committee what is now the applicant's crucial complaint was put thus:
"3. Your petitioner contends that the appointment of the said examiners was wrong and ought to be set aside alternatively that the said examiners were not proper or competent examiners by reason of the following:... (b) The said examiners were not zoologists specialising in the field to which the said thesis related, Professor P. B. Gahan was a Professor of Botany and had been awarded a Doctorate in Histochemistry; Professor S. J. Holt was a Professor at the Courtauld Institute of Biochemistry and had been awarded a Doctorate in Chemistry."
The nub of the applicant's grievance was elaborated in a letter to the vice-chancellor of the university to which she made reference in her petition:
"It follows that I did not have any zoologist as my examiner, despite the fact that I had presented my thesis to the Board of Studies in Zoology. With a botanist (Histochemist), Professor P. B. Gahan, and a chemist (Histochemist), Professor S. J. Holt, I had two histochemists to assess a piece of work which contributed to the field of zoology (comparatively zoology). The major part of my work consisted of morphological studies on the coelomocytes. 2. As a result of this bias towards histochemistry, the examiners tended to concentrate on that aspect of my work, to the detriment of the other, more important contributions I have made. And yet I only applied standard histochemical methods, to further elucidate the morphological findings. I have not made any contributions to the field of histochemistry, e.g., by devising a new histochemical staining method. Most of my contributions to the field of zoology may not have been appreciated. In support of this statement I would like to cite one of the questions which Professor P. B. Gahan asked me at the viva examination regarding my comparing the coelomocytes to vertebrate leucocytes instead of (say) to liver cells. He went on to add that this had proved to be my greatest pitfall. In reply to this I reiterated what I have already stated in my thesis (please see pp... of my thesis), namely that coelomocytes are 'free' cells and not attached cells and hence may be compared to leucocytes. Further this comparison is perfectly valid and that I was not the first to remark on this analogy. Numerous scientists have compared coelomocytes to insect haemocytes and in turn to vertebrate leucocytes. (Please see Encl...) A zoologist would have recognised the validity of such a comparison and would have considered it one more plus point in my favour, as I have conclusively shown such a similarity to exist."
The university in its answer said:
"In answer to paragraph 3 of the petition the university denies that the appointment of Professors Gahan and Holt as examiners was wrong and ought to be set aside, and it denies that they were not proper or competent examiners... (b) (i) Professors Gahan and Holt were put forward as possible examiners of the petitioner to the secretary of the Board of Studies in Zoology following the secretary's request for nominations made to Professor Dales as the petitioner's supervisor. Professor Dales put forward their names after discussion with Dr. Thorndyke, the Senior Lecturer in Zoology at Bedford College. Their qualifications were:Professor Gahan. Professor of Botany at Queen Elizabeth College. He obtained his Ph.D in 1964 in, according to the university's records, Zoology-Histochemistry. He is (and was) a member of the Board of Studies in Zoology. Histochemistry is a subdiscipline of the three main biological subjects of anatomy, botany and zoology.
Professor Holt. Professor of Experimental Biochemistry at the Courtauld Institute of Biochemistry. He obtained his Ph.D. in 1948 in Organic Chemistry. He holds a degree of D.Sc. in Cytochemistry.
The further grounds on which it was considered that they were suitable to examine the petitioner were as follows. The thesis was a cytochemical and ultrastructural study of the phagocytes in several species of polychaete annelids. Although entirely within the purview of the Board of Studies in Zoology, the appropriate examiners were those with particular knowledge of cell structure, cytochemical techniques, electron microscopy and identification of lysosomal enzyme activity by histochemical means, using both light microscopy and electron microscopy. The two examiners appointed fulfilled completely these requirements. Professor Holt had worked for many years on the histochemistry of lysosomal enzymes, and especially on ultrastructural and cytochemical studies employing electron microscope methods for enzyme localization and the application of these methods to problems in cell biology. Professor Gahan was and is one of the leading cell biologists in the university and has worked particularly with lysosomes and cytochemistry of lysosomal enzymes."
The applicant did not serve any reply to the university's answer and no oral evidence was called before the committee. The essential materials for its decision were those I have identified. It should, however, be mentioned that Dr. Thorndyke was a lecturer at Bedford College and the university were wrong to describe him as a senior lecturer.
The paragraphs in the committee's decision on which, for purposes of this appeal, our attention has been concentrated, are these:
"The committee will deal first with the petitioner's complaint that Professors Gahan and Holt were not zoologists specialising in the field of zoology to which the petitioner's thesis related. She submitted that both examiners were primarily histochemists and therefore would tend to concentrate on the histochemistry aspect of her work, to the detriment of the important contributions which she was seeking to make to the field of comparative zoology.The petitioner says that she only applied histochemical methods in order to elucidate her morphological findings, and did not seek to make any contributions to the field of histochemistry. Thus her thesis was misjudged. While appreciating the nature of the petitioner's complaint, the committee desire to emphasise, as has been observed in other cases, that it is no part of their duty to interfere in matters of scientific or technical judgment.
It would not be proper for the committee to express a view of their own as to the choice of examiners, or to criticise the decision on such matters of the university authorities, save in a case, which is far from the instant case, where it is apparent from the facts that the examiners appointed by the university were plainly not qualified to perform their task. The committee are of the opinion that the petitioner is not entitled to any relief by reason of this complaint."
Any summary of the excellent argument addressed by Mr. Sedley for the applicant will do it injustice but I must try. It was to this effect. In a case such as the present the visitor is the sole source of justice between a member and the university. Where complaint is made the visitor must make such investigation as is in the circumstances appropriate. If, in the absence of bad faith or obvious mistake, a complaint concerns a pure exercise of academic judgment, such as assessment of a candidate's academic performance, the visitor will not substitute his judgment for that of the academic authorities. But the selection of suitably qualified examiners does not involve a pure exercise of academic judgment, and the evident mismatch in this case between the examiners' fields of specialisation and the subject of the applicant's thesis raised an obvious question for inquiry. Had the inquiry been properly and fully made the question might have been adequately answered and the apparent anomaly explained, but the committee failed to inquire and so abdicated their role as visitor, deferring to the body whose conduct it was their duty to investigate. In so acting the committee misdirected themselves and their decision is, on familiar principles, amenable to judicial review.
The Divisional Court had the benefit of the speeches made by Lord Griffiths and Lord Ackner in Thomas v. University of Bradford [1987] A.C. 795, and as a result the broad principles governing exercise of visitatorial jurisdiction were not in issue before the Divisional Court or before us. But I think Mr. Sedley was right to detect some difference, at least of emphasis, in the interpretation and application of these principles by the two judges in the Divisional Court.
Kerr L.J. referred to Mr. Sedley's submission that it was incumbent upon the committee to investigate the applicant's complaints and the university's answer in sufficient depth to satisfy the committee personally that the appointment of examiners was reasonable, or at any rate not unreasonable, given the subject matter and nature of the applicant's thesis on the one hand and the examiners' qualifications on the other, and, [1988] Q.B. 322, 333-334, he continued:
"But I regret that I cannot for one moment accept any such mandatory prescription governing the mode of the exercise of visitatorial powers. These fall to be exercised in an almost infinite variety of situations, and the mode of their exercise must necessarily be left to the discretion of the visitor, provided of course that he acts judicially. Thus, far from concluding that the exercise of a merely supervisory jurisdiction is wrong in all cases, as Mr. Sedley appears to submit, it seems to me that in some cases it may well be the only proper exercise of visitatorial powers. In many situations, for example, it might be an abuse of power, and a justifiable source of grievance on the part of the foundation, if the visitor entered upon matters which, by the statutes of the foundation, were expressly left in the discretion of specialised designated officers or members.Thus, Mr. Sedley himself accepted that the question whether or not the thesis and viva voce examination of the applicant satisfied the standard required for a Ph.D. was solely a matter for her examiners. He accepted this, because that was clearly the effect of the relevant statutes and regulations. However, as explained below, these equally prescribe the procedures for the appointment of the examiners themselves. They lay down no requirements as to their qualifications. The effect of the regulations is to leave these in the discretion of those members of the academic staff in whom the power and duty to appoint the examiners is vested, obviously having regard to the knowledge and experience which is to be expected from holders of their posts in the academic hierarchy.
Accordingly, if the visitor declines to interfere with their decisions on matters which depend upon academic or scientific or other technical judgment, then it seems to me quite impossible to say that he has committed any error of law, unless the decisions in question are so plainly irrational or fraught with bias or some other obvious irregularity that they clearly cannot stand. Prima facie, by enrolling as a candidate for a Ph.D. at a particular university, the candidate accepts that his or her fitness for that degree will be judged by examiners appointed in accordance with the rules and academic practices of the chosen university.
The powers of review possessed by the visitor of the university do not form part of the structure of academic judgment on which the candidate's enrolment is based. It is merely an instance of last resort in exceptional circumstances, and not - as Mr. Sedley's submissions implied - an integral part of something in the nature of an appellate structure.
For these reasons I cannot for one moment accept that the committee in the present case was bound to investigate the applicant's grievances to the extent of satisfying itself directly that the appointment of these particular examiners was not unreasonable in the circumstances, let alone that they were suitable to be appointed."
Thus Kerr L.J., while acknowledging that the visitor's role would depend on the circumstances in which his jurisdiction was invoked, regarded his role as supervisory where powers or duties were under the statutes of the university conferred or imposed upon designated officers.
It was primarily because the examiners here were appointed in accordance with the rules and academic practices of University of London that Kerr L.J. approved the decision of the committee.
Simon Brown J. also delivered a judgment, to which Mr. Sedley paid a tribute in which I fully join. The judge summarised the competing submissions of Mr. Sedley for the applicant and Mr. Laws for the committee, giving reasons for preferring the former. He then said, in a passage which, despite its length, merits quotation, at pp. 344-345:
"I conclude therefore that the visitor enjoys untrammelled jurisdiction to investigate and correct wrongs done in the administration of the internal law of the foundation to which he is appointed: a general power to right wrongs and redress grievances. And if that on occasion requires the visitor to act akin rather to an appeal court than to a review court, so be it. Indeed there may well be occasions when he could not properly act other than as an essentially appellate tribunal.The difference between visitatorial and this court's supervisory jurisdiction may be illustrated thus. It will often be inappropriate for this court in the exercise of its review jurisdiction to investigate the facts underlying the legal dispute before it. Equally, this court must from time to time leave undisturbed a decision on the merits which it believes to be wrong because it recognises that there is properly room for two views upon the point. But in my judgment there are no such limitations upon the visitor's jurisdiction: he may, indeed should, investigate the basic facts to whatever depth he feels appropriate and he may interfere with any decision which he concludes to be wrong, even though he feels unable to categorise it as Wednesbury unreasonable.
Generally speaking, therefore, I prefer the approach urged upon us by Mr. Sedley. But it nevertheless remains important to recognise that many decisions giving rise to dispute will be subject to considerations which quite properly inhibit the visitor from embarking upon any independent fact-finding role. I agree with Kerr L.J. that this is as plainly true of the appointment of examiners as of the decision of such examiners upon the standard attained by a candidate. But in both cases this seems to me less because the university statutes expressly entrust those decisions to the discretion of particular members of the university than that these members are peculiarly fitted by their eminence, experience and expertise to arrive at proper decisions. This, indeed, was the essential burden of Mr. Newman's submissions on behalf of the university. And it must be remembered that even courts exercising an unlimited appellate jurisdiction on occasions recognise that the tribunal appealed from may have an expertise which particularly qualifies it to decide a given question and will accordingly decline to intervene, save only if satisfied that such tribunal was clearly wrong: see for instance the Court of Appeal decision in Commission for Racial Equality v. Associated Newspapers Group Ltd. [1978] 1 W.L.R. 905.
My final conclusion, therefore, is that the visitor's role cannot properly be characterised either as supervisory or appellate. It has no exact analogy with that of the ordinary courts. It cannot usefully be defined beyond saying that the visitor has untrammelled power to investigate and right wrongs arising from the application of the domestic laws of a charitable foundation; untrammelled, that is, save only and always that the visitor must recognise the full width of his jurisdiction and yet approach its exercise in any given case reasonably (in the public law sense). I wholly share Kerr L.J.'s conclusions upon the instant application that, in regard to each petition, the committee did indeed both recognise the full width of their visitatorial jurisdiction and approach its exercise entirely properly."
Of this passage Mr. Sedley made only one criticism: the visitor should, he said, investigate to whatever depth is appropriate, not to whatever depth he feels appropriate: see p. 344D. Plainly this is what the judge meant. The tenor of the judgment is that the visitor should investigate the basic facts to the extent that in the exercise of a proper judgment he concludes to be appropriate. The ground upon which Simon Brown J. declined to interfere with the committee's decision was, if I understand him aright, that the appointment of examiners to assess the applicant's thesis involved an exercise of expert judgment not shown to be clearly wrong.
Leaving their application to the instant case on one side for the moment, I wholly agree with the general principles which Simon Brown J. laid down. The correct approach can, I think, be illustrated by a hypothetical case involving facts remote from the present. I suppose a college whose statutes empowered it to terminate a student's membership, inter alia, if (1) he or she failed after receiving 28 days' written notice to do so to pay any sum owed to the college, or (2) was guilty of persistent insobriety such as, in the opinion of the college, to render him or her unfit to remain a member, or (3) failed in the opinion of the college to attain the academic standard required of students of the college. I also suppose an appeal to the visitor by students whose membership had been determined under (1), (2) and (3) respectively.
In case (1) the visitor's role, although characterised, one hopes, by the cheapness, lack of formality and procedural flexibility applauded by Lord Griffiths in Thomas v. University of Bradford [1987] A.C. 795, 824, would be essentially that of a first instance judge: that is, he would hear and determine any disputed issue whether the debt was owed, whether notice was given, whether there was a failure to pay and whether any defence of estoppel or a promise of extra time was made out. He would be the judge of the facts and the law.
In case (2) his role would be a little different. Here, he would, I think, satisfy himself (if it were in issue) that there was reliable evidence of persistent insobriety not of a trivial kind. He would further wish to be satisfied, if there were any reason to doubt, that the college's decision was taken in good faith and not for any extraneous reason. If satisfied on those points he would not, even if it were different, substitute his own opinion on fitness for that of the college. That is because his responsibility is to see that the college acts lawfully in accordance with the statutes, not to act as an independent arbiter of matters entrusted by the statutes to the judgment of the college and on which its judgment is likely to be better, because better informed and more experienced, than his.
In case (3), the visitor would, again, satisfy himself (if it were in doubt) that there was reliable evidence of poor academic performance and that the college's decision had not been tainted by bad faith or extraneous motivation. If so satisfied, he would go no further, for the same reasons as in (2). He could not legitimately override the college's bona fide assessment, based on reliable evidence, of the student's academic performance. Both judges in the Divisional Court would, I hope, agree with this analysis.
I return to the applicant's case, reminding myself that whatever the committee's correct approach in ruling on her petition there is no doubt about the role of this court, which is to confine itself to correction of demonstrated errors of law. We could not properly interfere with any exercise of discretion or judgment by the committee unless of opinion that it was wrong in law.
Despite Mr. Sedley's compelling argument, I am not, for my part, of that opinion. My reasons are these.
(1) The committee were entitled, if not bound, to conclude that the university's prescribed procedures for appointing examiners had been followed. This was not therefore a case of manifest procedural impropriety. Following the right procedures does not of course prevent mistakes being made, but it does reduce the chances of error because decisions are made by those thought to be competent to make them.
(2) The committee knew that the examiners appointed had been suggested by Professor Dales, a very senior zoologist who had approved the subject of the applicant's thesis and acted as her supervisor throughout. The committee saw a document suggesting that Professor Dales had done no more than glance at the finished thesis. That may no doubt be so, but there was nothing before the committee to rebut the inference one would ordinarily draw, that during nearly four years of supervision the Professor had become fully aware of what the applicant was working on.
It is hard to see how anyone could have been better placed than the Professor to suggest appropriate examiners. This remains true even if, as is said, relations between him and the applicant were not entirely happy, since no imputation has been made against his competence, integrity or good faith.
(3) The committee took the view, with which I agree, that the choice of examiner may well, and in this case did, involve an exercise of expert judgment. An appropriate examiner could not be appointed unless the appointor had some understanding (a) of the specialist field to which the thesis related and (b) of the scientific knowledge and experience of those who might be asked to assess it. No one without that understanding could reliably have made an appointment in the present case. Unless there was some reason to think that this expert judgment was improperly exercised here, the committee were in my judgment entitled to treat this as an area into which they should not intrude.
(4) The committee did not, I infer, regard the appointment of two professors neither of whom was, at any rate primarily, a zoologist as in itself so anomalous or surprising or obviously inappropriate as to suggest that the appointor's expert judgment had been improperly exercised. I do not think they were wrong to take that view. However convenient it may sometimes be for teachers, text book writers and educational administrators to treat fields of study as discrete and well-defined, if somewhat arbitrary, areas, like the mid-western states of the American Union, scholars and scientists are not in their pursuit of knowledge in the real world to be confined within such artificial frontiers. The same problem may engage the attention of the mathematician, the physicist and the astronomer; or, in a more familiar field, the lawyer, the philosopher and the political theorist. Labels are not decisive, or even perhaps very significant.
The material before the committee did not, it is true, suggest that the examiners' own research duplicated that of the applicant. Had it done so she might in any event have been refused her degree for want of originality. But I think the material did suggest that the examiners were expert in fields closely related to the applicant's field of research. To throw doubt on their qualifications it would in my view have been incumbent on the applicant to show an arguable case that their specialised fields were so far removed from her own as to disable them from fairly and expertly assessing her work, even if this involved some work by them.
The committee did not consider such a case to have been raised, and I agree. It may not be wholly without significance (a) that neither of the examiners asked to be excused the exacting task of examining, as I would expect any responsible scientist to do if he felt insufficiently expert to make a fair and reliable assessment; and (b) that although only one of the three additional examiners appointed for the applicant's re-examination was, as I understand, a zoologist, she has not at any time questioned the fitness of any one of the three.
Material has been placed before the court which shows the high esteem in which the applicant's scientific work has been held by disinterested assessors in the past, and her recent work has, we are told, attracted financial support from a most prestigious quarter. This is impressive testimony to the applicant's qualities as a scientist, and makes one regret that the events of 1979-80 turned out as they did. We, however, have only the limited task defined above. Like the Divisional Court I am not persuaded that the committee made a decision which was wrong in law, and I would accordingly dismiss the appeal.
JUDGMENT BY MANN L.J.
The court has a supervisory but not an appellate jurisdiction in regard to the visitor of the University of London. The issue in this case was as to whether the examiners appointed by the university to examine the applicant's thesis were competent so to do. The choice of examiners was initiated by the applicant's own supervisor after a discussion with the lecturer in Zoology at the applicant's college. It is deposed on behalf of the university in the following terms:
"The thesis was a cytochemical and ultrastructural study of the phagocytes in several species of polychaete annelids. Although entirely within the purview of the Board of Studies in Zoology, the appropriate examiners were those with particular knowledge of cell structure, cytochemical techniques, electron microscopy and identification of lysosomal enzyme activity by histochemical means, using both light microscopy and electron microscopy. The two examiners appointed fulfilled completely these requirements. Professor Holt had worked for many years on the histochemistry of lysosomal enzymes, and especially on ultrastructural and cytochemical studies employing electron microscope methods for enzyme localization and the application of these methods to problems in cell biology. Professor Gahan was and is one of the leading cell biologists in the university and has worked particularly with lysosomes and cytochemistry of lysosomal enzymes."
This seems to me wholly a matter of academic judgment in which this court should not interfere.
JUDGMENT BY LORD DONALDSON OF LYMINGTON M.R.
I agree with both judgments.
DISPOSITION
Appeal dismissed with costs against legal aid fund.
Applicant to pay costs limited to £20 per month for 12 months from 1 May 1989.
Leave to appeal refused.
SOLICITORS
Solicitors: Davis Walker & Co., Chalfont St. Peter;
Treasury Solicitor;
Clifford Chance.
D. E. C. P.