HEARING DATES 6-9 April & 13 May 1987
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 registered as a student at a college of the university to read for the degree of Doctor of Philosophy in Zoology and over the next three to four years she prepared a thesis. Shortly before completing her thesis, she learnt the identity of the two professors appointed to examine her and considered that neither was suitable as an examiner in her subject. She was unsuccessful in her examination and also on re-examination by a panel of five members, which included the two professors. She petitioned the visitor. The committee acting for the visitor stated, in giving their opinion, that it was no part of their duty to interfere in matters of scientific or technical judgment; that it would not be proper for the committee to express a view on their own choice of examiners or to criticise the decisions of the university authority on such matters, save in an exceptional case, which was not the present one. They dismissed the prayer of her petition and also that of her subsequent petition for the matter to be reconsidered.
On the applicant seeking judicial review of the committee's decisions: -
Held, dismissing the application, that it was for the visitor, acting judicially, to determine the form in which his exclusive jurisdiction over the domestic affairs of the university should be exercised and the manner he chose to exercise his visitatorial powers was conditioned by the nature of the complaint and was not to be categorised or narrowed either to a supervisory or to an appellate jurisdiction; that the applicant in enrolling as a candidate for a degree accepted that her fitness for that degree would be judged in accordance with the rules and practices of the university; and that the approach of the committee, in stating that it was no part of the visitor's role to form an academic judgment, neither showed an error in law nor restricted the visitatorial powers to a degree when the court should intervene so that the nature of the applicant's complaint could be more fully investigated.
Thomas v. University of Bradford [1987] A.C. 795, H.L.(E.) applied.
INTRODUCTION
APPLICATION for judicial review.
The applicant, Janaki Vijayatunga, became a research student at Bedford College of the University of London and registered as an internal student at the college for the degree of Doctor of Philosophy in Zoology. In July 1979, despite her protests, Professors P. B. Gahan and S. J. Holt of the University of London were appointed to examine her on her thesis for the degree. She was unsuccessful in her examination and, on her application to the vice-chancellor of the university, she was re-examined by a panel of five which included Professors Gahan and Holt. She was again unsuccessful.
The applicant then petitioned the visitor to the university, Her Majesty in Council, to consider the appointment of the two professors and whether she should be granted a Ph.D. A committee of the Lords of the Judicial Committee of the Privy Council acted for the visitor and, having heard the matter, dismissed the prayer of the petition and of a further petition of the petitioner seeking a rehearing by the committee.
Pursuant to leave granted by Forbes J. on 19 January 1985, the applicant applied for judicial review by way of (1) an order of certiorari and/or prohibition against the decision of the committee acting for the Visitor of the University of London; (2) mandamus directing the visitor to grant one of the prayers contained in the applicant's petition seeking the award of her Ph.D. or to direct the visitor to hear further arguments; and (3) a declaration that the decisions of the visitor were ultra vires and void.
The facts are stated in the judgment of Kerr L.J.
COUNSEL
Stephen Sedley Q.C. and Philip Engelman for the applicant.
John Laws and Robert Jay for the visitor.
George Newman Q.C. and Sally Hine for the university.
The main submissions of counsel for the applicant are set out in the judgments at pp. 329C - 331B, 333C-F, 337G - 338F, 340H - 341C, H - 342D. In addition, counsel referred to Rex v. Archbishop of Canterbury(1812) 15 East 117, 139. He cited Brown v. Dean [1910] A.C. 373 and London Street Tramways Co. Ltd. v. London County Council [1898] A.C. 375 to show the significance which the courts placed upon finality. However, that should not be a factor against the applicant here, as the underlying principle justifying the doctrine of finality had little to do with the visitor's jurisdiction. Reg v. Secretary of State for the Environment, Ex parte Hillingdon London Borough Council [1986] 1 W.L.R. 192 was cited as a local government analogy.
The main submissions of counsel for the visitor are set out in the judgments at pp. 332B - 333B, 334E - 335A, 342D-H. In addition, counsel referred to Patel v. University of Bradford Senate [1978] 1 W.L.R. 1488 to support the proposition that the exclusivity of the visitor's jurisdiction must not be cut down by judicial review. The function of the Divisional Court was not to substitute its own view but merely to decide whether the visitor had acted fairly or not. Reg. v. Hillingdon London Borough Council, Ex parte Puhlhofer [1986] A.C. 484 was cited as an example of the recent gloss on the Wednesbury approach ([1948] 1 K.B. 223) to judicial review which was now confined to situations where the decision making body had acted perversely.
Counsel for the university adopted the submissions made by counsel for the visitor. In addition, counsel made some submissions which are set out in the judgment of Simon Brown J. at p. 344E-F.
Cur. adv. vult.
13 May. The following judgments were read.
PANEL: Kerr L.J. and Simon Brown J.
JUDGMENT BY KERR L.J.
This is an application for judicial review by Miss Vijayatunga ("the applicant") pursuant to leave given by Forbes J. on 19 February 1985. The applicant seeks to challenge the dismissal by the Visitor of London University of two petitions which challenged the university's refusal to award her the degree of Doctor of Philosophy in Zoology. It appears that this is the first challenge to the exercise of the so-called visitatorial jurisdiction for just under 200 years, since Rex v. Bishop of Ely (1794) 5 Durn. & E. 475, by what is now the machinery of judicial review.
The university is governed by the University of London Act 1978 and the statutes set out in Schedule 2 to that Act. Section 6 of these provides that "Her Majesty in Council shall be the visitor of the university." By an Order in Council dated 24 November 1981 Her Majesty referred the first petition to a committee of the Privy Council for consideration and report, and it is not in dispute that this delegation also covered the applicant's second petition, which was for a re-hearing of the first petition. The committee consisted of Lord Brightman, Mr. Fred Mulley (subsequently Lord Mulley) and Mr. Mark Carlisle Q.C., M.P. The committee reported to Her Majesty that the prayers in the first petition should be refused, as they were by Order in Council dated 16 March 1983, and dismissed the second petition for a re-hearing on 26 October 1984. Mr. Laws, who is instructed by the Treasury Solicitor on behalf of the visitor, made some brief submissions at our invitation in connection with the identity of the visitor in the present case. I will refer to these in a moment, but for the present it is sufficient to say that I accept his submission that the jurisdiction of this court to hear the present application is not affected by the identity of the visitor. Moreover, in referring to the facts and contentions it will be convenient, albeit strictly inaccurate, to refer to the committee of the Privy Council as though it had itself been acting in the capacity of the visitor; and I hope that I may also be forgiven if I refer to a visitor in general as "he" for convenience.
The history
The applicant held honours degrees in science from the Universities of Reading and Salford. In September 1974 she became a research assistant to Professor R. P. Dales, the Head of the Department of Zoology of the University of London. In October 1975 she registered as an internal student at Bedford College, one of the schools of the university, for the degree of Doctor of Philosophy (Ph.D.) in Zoology, her supervisor being Professor Dales. For this purpose it was necessary for her to submit a thesis under a title approved by her supervisor. Over the next three to four years she prepared one under the title "Lysosomes in the coelomocytes of three species of polychaete annelids with particular reference to Nereis diversicolor." The subject matter, to use lay terms, was a study of cell constituents (lysosomes) in the free cells (coelomocytes) found in the body cavity of three species of ragworm, in particular the species Nereis diversicolor.
It seems that the applicant learned in July 1979, shortly before she completed her thesis, that Professors P. B. Gahan and S. J. Holt of the University of London might be appointed as her examiners. The applicant was unhappy about this choice, because she did not regard either of them as qualified to examine for a Ph.D. in Zoology, as explained hereafter. She said, and, subsequently wrote, that she had mentioned this to Mr. Turnbull, the registrar of Bedford College, and had then been told that Professor Dales had informed Mr. Turnbull that these professors would not he her examiners. Mr. Newman, who appeared on behalf of the university, told us that he had no instructions about this incident. However, when these professors were in fact appointed as her examiners shortly thereafter and she had submitted her thesis to them in August 1979, she wrote to Mr. Turnbull on 5 September 1979 to express her unhappiness about this choice, and mentioned the earlier conversation referred to above, though adding that she did not feel that she could strongly object at that stage.
On 5 November 1979 the applicant attended a viva voce conducted by Professors Gahan and Holt as part of her examination. On 7 November Professor Dales wrote a most unfortunate letter to the applicant. He said that Professor Holt had come to see him with copies of the thesis issued to the examiners "together with a list of page numbers on which the many corrections must be made before they can make their recommendations to the university." Professor Dales went on:
"As I understand the university regulations, these corrections must be made within one calendar month following the viva (5 November), that is, not later than 5 December 1979."
It is convenient to interrupt the history at this point to deal with the implications and consequences of this letter. In their report to Her Majesty, to which I will refer for convenience - albeit again inaccurately - as "the decision," the committee were highly critical of the terms of this letter. Although Mr. Sedley rightly abandoned any reliance upon it in the course of his submissions to this court, in fairness to the applicant this unfortunate aspect should be emphasised, since it probably triggered off her subsequent resentment and suspicions, as reflected in the lengthy history that followed. In that connection it is also unfortunate that the applicant appears to have been on bad terms with Professor Dales, though we do not know the reasons for this.
The committee said in their decision that they had no doubt that this letter from Professor Dales was a source of justifiable grievance on the part of the applicant and that it was misleading and unfair to her as a candidate. The reason was that the references to the regulations, and to the requirement for corrections to be made within one month pursuant to them, could only reasonably be understood as intended to refer to what was then regulation 24.7 (now 25.7). This applied and referred to a thesis submitted by Ph.D. candidates which, apart from the need for minor amendments, was "otherwise adequate" for the grant of this degree. That, undoubtedly, was how the applicant understood the letter, whereas - as pointed out in the committee's decision - its terms were "regrettable" and it "was almost certain to be misunderstood." However, the committee also added that, albeit with regret, they had reached the conclusion that they could not advise intervention by the visitor on the ground that, notwithstanding the terms of this letter and the fact that the applicant made the required corrections in time, she was informed by the academic registrar of the university on 14 December 1979 that she had failed her Ph.D.
In his opening of the application Mr. Sedley relied on this aspect, which had formed a prominent part of the grounds for judicial review. But after the matter had been discussed in the course of his opening and he had reflected upon it overnight, he rightly concluded that the committee's decision, that they could not grant any relief to the applicant beyond expressing their strong regrets, was not open to any criticism, let alone relief by way of judicial review. Mr. Sedley had to accept that the unfortunate terms of the letter could not found an estoppel or any other basis for contending that the applicant thereupon became entitled to the grant of a Ph.D. as of right. He also agreed that he had to accept that, despite the terms of the letter, the applicant had in fact failed to satisfy her examiners. Indeed, the fact that her thesis had been misjudged by her examiners, on the ground that they were unqualified to judge it properly, was the essence of the applicant's complaint throughout. The implications of the unfortunate letter of 7 November 1979 accordingly cease to play any part in these proceedings beyond remaining a cause for regret and no doubt providing some explanation for all that followed.
I then return to the history. When writing to the applicant on 14 December 1979 with the unexpected news that she had failed her Ph.D., the academic registrar informed her that she had been adjudged to have reached the standard required for the award of the degree of M.Phil. and that it would be open to her to apply for this within two months. However, the applicant did not accept this offer. On 20 December 1979 she wrote to the vice-chancellor and applied for a re-examination. This second chance had been available to unsuccessful candidates in the higher degrees for some years unless the vice-chancellor considered their application to be frivolous. The prescribed procedure was for the appointment of a board of examiners consisting of the original examiners and at least two others from outside the University of London. The regulations provided that their decision was final. The additional examiners in the present case included Professor Mitcheson, then chairman of the Board of Studies in Zoology at London University, Professor Lloyd of Keele University who acted as chairman, and Dr. Dean of Brunel University. Apart from pointing out that this board included the original examiners, which Mr. Sedley rightly accepted was a recognised practice and in itself unobjectionable, the applicant has at no time raised any criticism of the qualifications of the additional three examiners. She was re-examined in May 1980. Unfortunately she was again unsuccessful, and in June 1980 she again declined to accept the offer of a degree of M.Phil.
In November 1981 the applicant submitted a petition to the visitor which had been settled by counsel on her behalf. The relief which she requested was to the effect that in all the circumstances she should be awarded a Ph.D. or the opportunity of a further re-examination. For the purposes of the hearing her solicitors asked for discovery from the solicitors acting for the university, and in particular for the disclosure of the examiners' reports. This was refused on the ground that such reports are regarded as confidential, and an application to the committee for an order for their production was also unsuccessful. The applicant's first petition was heard on 25 February 1983. She was represented by counsel, but the petition was dismissed on 16 March 1983 as already mentioned. During the remainder of 1983 the applicant then lodged a complaint with the European Commission of Human Rights in Strasbourg, but this was ruled to be inadmissible in April 1984. On 11 May 1984 she submitted a second petition to the visitor for a re-hearing of her first petition. She represented herself on this application, and it was heard and dismissed on 26 October 1984. She then applied for leave to move for judicial review in January 1985.
After an original refusal by Hodgson J. she obtained leave from Forbes J. in February 1985. However, Thomas v. University of Bradford was then on its way through the courts and clearly of great relevance for present purposes. Accordingly, in November 1986 Russell J. ordered by consent that the present application should be stood out pending the decision of the House of Lords in that case. The appeal in that case was heard by the House of Lords in December 1986 and is now reported: [1987] A.C. 795.
As can be seen from this lengthy history, the applicant clearly feels that she has a considerable grievance. Apart from what has already been said by the committee in relation to the letter from Professor Dales to which I have referred, which may well be the mainspring of all that followed, it should also be mentioned that we have been shown a number of subsequent testimonials from zoologists at other universities expressing the view that her original thesis had been worthy of the grant of a Ph.D. However, while these matters naturally cause us to feel some sympathy with the applicant, it also goes without saying that they cannot affect the principles which fall to be applied to her application for judicial review.
As to this, the nature of the relief requested by the applicant takes various forms, including certiorari, mandamus and declaratory orders. In effect, the applicant claims that the committee's decisions on both petitions should be quashed and that the committee should be ordered either to grant the relief prayed for in the first petition or to re-hear the whole matter.
Thomas v. University of Bradford [1987] A.C. 795
This recent decision of the House of Lords is a landmark and of fundamental importance to the nature and scope of the authority exercised by visitors of foundations such as universities. I must briefly refer to the facts. The plaintiff had been appointed a lecturer in sociology at the University of Bradford. In the result she became an employee of the university under a contract of service and a member of, and holder of office in, the university, which was a charitable foundation and consequently subject to the jurisdiction of a visitor. When the university purported to dismiss her she brought an action in the Chancery Division for a declaration that the decision to dismiss her was ultra vires and void by reason of non-compliance with the disciplinary rules and procedures contained in the university's charter and various statutes, ordinances and regulations incorporated into her contract. She also claimed damages for breach of contract or alternatively arrears of salary. The university originally applied for an order to stay the proceedings under R.S.C., Ord. 18, r. 19 or under the court's inherent jurisdiction on the ground that the plaintiff should first have petitioned the visitor. In the absence of any relevant provision as to the visitor's identity, such as is to be found in the statutes of London University, the visitor was the Crown as founder of the University of Bradford. In such cases the visitatorial powers are exercised on behalf of the Crown by the Lord Chancellor or such other person as he may advise Her Majesty to nominate. The university's application for a stay was refused at First instance, and that decision was affirmed by the Court of Appeal. In the House of Lords the university was given leave to amend by claiming an order to strike out the statement of claim on the ground that the court had no jurisdiction to entertain the action. That was the effect of the decision of their Lordships. This is correctly summarised as follows in the headnote of the report:
"that where the dispute related to the correct interpretation and fair administration of the domestic laws of the university, its statutes and its ordinances, it fell within the jurisdiction of the visitor and not the courts of law notwithstanding that its resolution would affect the plaintiff's contract of employment for she was not relying upon a contractual obligation apart from an obligation of the university to comply with its own domestic laws; that, accordingly, her claim fell within the exclusive jurisdiction of the visitor, subject to the supervisory jurisdiction of the High Court, and therefore the court lacked jurisdiction in the first instance to intervene and the plaintiff's action should be struck out."
The speeches of Lord Griffiths and Lord Ackner, with which the other members agreed, reviewed a long line of authorities dealing with the nature and scope of the jurisdiction of visitors. In that connection Mr. Sedley emphasised and relied upon the exclusivity and breadth of the jurisdiction in support of his main submission that a visitor was obliged to investigate disputes and grievances brought to his attention to the same extent and in the same depth as disputes which are litigated in the courts. I will deal with this later on, together with the consequential submissions founded upon it. But it is convenient at this stage to refer to some of the main passages on which Mr. Sedley relied, before I come to those which deal directly with the issue going to the jurisdiction of this court, exercising the power of judicial review over the decisions of visitors.
On the scope of the visitatorial jurisdiction the earliest of the cited cases was Philips v. Bury (1694) Skin. 447. Mr. Sedley relied in particular on a passage, at p. 483, in which Holt C.J. pointed out that the jurisdiction conferred on visitors is "an appointment of law," and also on the following passage cited by Lord Griffiths in Thomas v. University of Bradford [1987] A.C. 795, 815, where the judgment of Holt C.J. was summarised:
"the office of the visitor by the common law is to judge according to the statutes of the college, to expel and deprive upon just occasions, and to hear appeals of course. And from him, and him only, the party grieved ought to have redress; and in him the founder hath reposed so entire confidence that he will administer justice impartially, that his determinations are final, and examinable in no other court whatsoever: 1 Ld. Raym. 5, 8"
Next, if authority be needed for the proposition that a visitor must act judicially in the exercise of his powers, then this is to be found in the decision of Rex v. Bishop of Ely, 5 Durn. & E. 475. Mr. Sedley also relied on a passage from the argument of Sir Samuel Romilly in Ex parte Kirkby Ravensworth Hospital (1808) 15 Ves.Jun. 305, 311, which Lord Griffiths described as "long accepted as authoritative" at p. 815C. The complete passage reads:
"A visitor is the legislator and the judge: a judge, not for the single purpose of interpreting laws, but also for the application of laws, that are perfectly clear: requiring no interpretation; and, farther, for the interpretations of questions of fact; involving no interpretation of laws. It is within his province, as a judge of fact as well as law, to ascertain the fact..."
The last of the cases prior to Thomas v. University of Bradford [1987] A.C. 795 on which Mr. Sedley relied was Thomson v. University of London (1864) 33 L.J. Ch. 625 from which Lord Griffith, also, at p. 820, cited a passage in the judgment of Kindersley V.-C. at p. 634. This included:
"whatever relates to the internal arrangements and dealings with regard to the government and management of the house, of the domus, of the institution, is properly within the jurisdiction of the visitor, and only under the jurisdiction of the visitor, and this court will not interfere in those matters..."
Then Mr. Sedley relied on the following important passage from the speech of Lord Griffiths itself, at pp. 823-824:
"I can see no reason why the visitor as judge of the laws of the foundation should not have the power to right a wrong done to a member or office holder in the foundation by the misapplication of those laws. The visitor would be a poor sort of judge if he did not possess such powers. Suppose, first, a case in which on appeal the visitor concluded that there had been no 'good cause' for the dismissal of a member of the academic staff and ordered the reinstatement of the member: I cannot entertain a doubt that the visitor would have power to order payment of arrears of salary between the date of dismissal and reinstatement. Suppose, secondly, a case in which the visitor concluded there had been no 'good cause' for the dismissal but relations between the dismissed member and the other members of the academic staff had so deteriorated that it would be inimical to the general health of the university to order reinstatement. Why in these circumstances should the visitor not proceed to right the wrong done to the member by ordering that a monetary recompense should be paid by the university in lieu of reinstatement. No doubt in calculating the sum he would be guided by those principles that the courts have worked out in cases of wrongful dismissal in which the courts refuse to enforce a contract of service wrongfully terminated but give monetary recompense instead, which the law labels as damages. To deny a visitor such a power is to deny him one of the fundamental functions of a judge which is to right a wrong, in so far as money can."
Lord Ackner dealt with the same issue, at p. 827:
"In order to consider the scope of the visitatorial jurisdiction the historic basis and justification for that jurisdiction must first be considered. An eleemosynary corporation is a corporation founded for the purpose of distributing the founder's bounty. The purpose of the visitor's jurisdiction is the supervision of the internal rules of the foundation so that it is governed in accordance with those private laws which the founder has laid down to regulate the objects of his benefaction. Clearly, this supervision cannot be restricted merely to interpreting the statutes. For the supervision to be effective it must involve ensuring that the statutes, properly interpreted, are also being properly applied and observed."
At the end of his speech Lord Ackner said, at p. 828:
"As regards the visitor's jurisdiction to award 'damages' I see no practical problem. The visitor in the course of his supervisory jurisdiction must be entitled, in order to ensure that the domestic law is properly applied, to redress any grievance that has resulted from the misapplication of that domestic law..."
My reason for adding this passage to the other citations is that Mr. Sedley questioned the use of the word "supervisory" in characterising the visitor's jurisdiction, and I will return to this point later on. I then turn to the important passages in Thomas v. University of Bradford which deal with the supervisory jurisdiction exercisable by the courts by way of judicial review over the decisions of visitors. In that context Lord Griffiths said, at p. 825:
"Finally, there is the protection afforded by the supervisory, as opposed to appellate, jurisdiction of the High Court over the visitor. It has long been held that the writs of mandamus and prohibition will go either to compel the visitor to act if he refused to deal with a matter within his jurisdiction or to prohibit him from dealing with a matter that lies without his jurisdiction. On mandamus see Rex. v. Bishop of Ely (1794) 5 Durn. & E. 475 and Rex v. Dunsheath, Ex parte Meredith [1951] 1 K.B. 127, and on prohibition, see Reg. v. Bishop of Chester (1791) 1 W.Bl. 22, and Bishop of Chichester v. Harward and Webber (1787) 1 Durn. & E. 650. Although doubts have been expressed in the past as to the availability of certiorari, I have myself no doubt that in the light of the modern development of administrative law, the High Court would have power, upon an application for judicial review, to quash a decision of the visitor which amounted to an abuse of his powers."
Apart from the authority which this passage carries in any event, it is clear from the following paragraph at the conclusion of Lord Griffiths' speech that it formed part of the ratio of his decision. He continued:
"These considerations lead me to the conclusion that the visitatorial jurisdiction subject to which all our modern universities have been founded is not an ancient anachronism which should now be severely curtailed, if not discarded. If confined to its proper limits, namely, the laws of the foundation and matters deriving therefrom, it provides a practical and expeditious means of resolving disputes which it is in the interests of the universities and their members to preserve."
Finally in this connection, in concluding that the plaintiff's action must be struck out, Lord Ackner said, at p. 828:
"Accordingly, in my judgment, her claim falls within the exclusive jurisdiction of the visitor, subject always to judicial review."
While these passages obviously leave no doubt as regards the jurisdiction of this court to entertain the present proceedings in principle, I should briefly deal with two other matters to which Mr. Laws referred for the sake of completeness, since they relate to our jurisdiction.
The identity of the visitor in this case
Mr. Laws made it clear that in his submission no question of immunity from suit was involved in this case on the ground that the visitor was Her Majesty in Council. There was no question concerning the immunity of Her Majesty in her personal capacity, nor the possible immunity of the Queen in Council in the course of the exercise of legislative or prerogative powers by the sovereign. Mr. Laws submitted that the visitatorial jurisdiction exercised in the present case by virtue of the statutes scheduled to the University of London Act 1978 was analogous to subordinate legislative powers exercisable by Order in Council, which were susceptible to review by the courts on the ground of being ultra vires: see e.g. Reg. v. Her Majesty's Treasury, Ex parte Smedley [1985] Q.B. 657, 667B, per Sir John Donaldson M.R. Mr. Laws also pointed out that in a large number of cases, where the statutes or other provisions governing foundations did not designate any visitor, the visitatorial powers were vested in the Crown, but were nevertheless clearly subject to judicial review.
I accept the effect of all these submissions.
The jurisdiction to issue certiorari
Since Lord Griffiths referred, at p.695F, to past doubts on this question, Mr. Laws also dealt with it briefly. He pointed out that in Picarda, The Law and Practice Relating to Charities (1977), p. 431, it is stated that, while the courts had limited judicial control over visitors' decisions by granting prohibition or a mandamus in certain circumstances:
"a visitor is not subject to certiorari: in this respect a visitor may be compared to an ecclesiastical court against which prohibition may issue but which is not subject to certiorari."
However, the reason given for this statement is that "the system of law administered by the visitor differs from that administered by the courts," clearly a reference to ecclesiastical law. In that connection Mr. Laws drew our attention to Rex v. Chancellor of St. Edmundsbury and Ipswich Diocese, Ex parte White [1948] 1 K.B. 195, where Wrottesley and Evershed L.JJ. stated that certiorari will not issue from the Court of King's Bench to an ecclesiastical court. But the grounds of that decision do not apply to modern visitatorial powers, at any rate in situations like the present. Thus, at p. 204, Wrottesley L.J. referred to the laws administered by ecclesiastical courts as "exotic," and Evershed L.J. said, at p. 220:
"... I am disposed to think that the true ground of the absence of jurisdiction is to be found in the fact that the ecclesiastical courts administered a system of law foreign to and having, in the words of Lord Ellenborough C.J., no 'privity with' the courts of the common law, the civil law which they administered being concerned primarily with rights and duties of spiritual import."
Mr. Laws also pointed out that the modern system of judicial review, introduced by R.S.C., Ord. 53 and now to be found in section 31 of the Supreme Court Act 1981, was designed precisely to obliterate the need for distinguishing between the various alternative forms of prerogative relief and other powers. This was also clearly in the mind of Lord Griffiths in the passage which I have cited. In these circumstances I am equally left in no doubt but that certiorari will lie in this case.
I then turn to the substantive issues, first in general, and secondly on the facts.
The issue as to the visitor's duty
As I have already briefly mentioned, Mr. Sedley sought to derive a submission from the exclusivity and breadth of the visitatorial jurisdiction that it had to be exercised in the same manner as the jurisdiction of the courts in determining disputes between litigants. This may be summarised as follows. Since the visitor is the direct and only judge of all grievances within his jurisdiction, without any appeal from his decisions, it is incumbent upon him to investigate all contested issues to the full, so that his decision can be seen to be his own evaluation of the merits, or his own assessment of the truth of the matters in dispute, depending upon the circumstances. In particular, there was no room for the exercise by the visitor of a merely supervisory jurisdiction by the application, for instance, of the principles stated by Lord Greene M.R. in Associated Provincial Picture Houses Ltd. v. Wednesbury Corporation [1948] 1 K.B. 223. Thus, in the present case 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 Professors Gahan and Holt as 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 qualifications of these examiners on the other.
Mr. Sedley put these submissions in different ways, attractively as always, and I hope that I am doing justice to them even if I do not repeat their various permutations. 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.
The issue as to the scope of judicial review
While supporting the approach to the visitor's discretion as to the mode of exercising his powers which I have indicated above, Mr. Laws nevertheless sought to rely upon the exclusivity of the visitor's jurisdiction for another purpose. He used it as a ground for submitting that the court's powers of judicial review over visitors are more restricted than in relation to other tribunals or authorities. He submitted that the visitor was solely and exclusively responsible for the interpretation and administration of the internal laws of the foundation in relation to which he exercises visitatorial powers. For instance, as Mr. Laws submitted, it was not open to the court to review a visitor's interpretation of a statute or regulation governing the foundation by deciding, if necessary, that the visitor had erred in applying its proper legal meaning to it. In that connection he relied upon a dictum of Brightman J. in Herring v. Templeman [1973] 2 All E.R. 581 (affirmed on different grounds in [1973] 3 All E.R. 569) when he said, at p. 591, that, subject to certain statutory provisions vesting a discretion in the Secretary of State:
"The construction of the regulations of the college and the carrying into effect of those regulations are, in my view, matters which the decided authorities have committed to the exclusive jurisdiction of the visitor."
The present case raises no issue as to the committee's construction of any of the relevant statutes or regulations. It is therefore unnecessary to decide whether Mr. Laws is correct in the width of his submission. My present view, however, is that I can see no reason for concluding that the general principles of the court's powers of judicial review are any different in relation to the acts and decisions of visitors from other cases. What may well be different, however, is the appropriate way, as a matter of the court's discretion, of exercising those powers in relation to visitors and the circumstances in which visitatorial powers fall to be exercised. An approach of self-denial may well be appropriate in such cases, depending on the circumstances. But no question as to the desirable scope of the exercise of the court's powers of intervention arises in the present case, and I therefore say no more about it.
I then turn to the factual issues in so far as they are relevant to this application.
The issues relevant to the first petition
The applicant's main complaint throughout was that Professors Holt and Gahan were not properly qualified to judge her thesis because they were not zoologists. Thus, she said in paragraphs 6 and 7 of her affidavit in support of this application:
"6... The thesis involved the usage of standard histochemical and other methods of analysing the behaviour, role and morphology of 'free cells' of the above mentioned species. The thesis, concerning as it did the structure of animal cells, falls entirely within the discipline of zoology.7 Both Professor Holt and Professor Gahan are essentially histochemists. Professor Holt is Professor at the Courtauld Institute of Biochemistry and is on the Board of Studies in Biochemistry. He was awarded a Doctorate in Chemistry in 1948 and his thesis was entitled: 'Contributions to the Chemistry of Quinololine and Quinoline.' He is a biochemist. Professor P. B. Gahan is a Professor of Botany at Queen Elizabeth College, a college of the University of London. He was awarded a doctorate in 1964 in histochemistry and his thesis was entitled: 'Histochemical Studies in Proliferating Cells with Special Reference to Lipids and Deoxyribonucleic Acid'."
And in her letter of 20 December 1979 to the vice-chancellor of the university she said:
v "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, e.g. by devising a new histochemical staining method."
The fact that the nature of the applicant's complaint was fully understood by the committee is shown by the following passage from their decision:
"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."
I then come to the university's answer to the first petition which dealt with these complaints. It pointed out that Professors Gahan and Holt had been appointed as the applicant's examiners on 13 July 1979 by the chairman of the Higher Degree Sub-Committee of the Board of Studies in Zoology, Professor Bullough. As regards the way in which these examiners came to be chosen and the appropriateness of their choice in the light of their qualifications, the university's answer proceeded:
"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 phagochaete annelids. Although the thesis was 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. It is accordingly submitted that these examiners were appointed in accordance with the statutes and regulations of the university, that their qualifications for appointment were properly considered; that their appointments were made upon reasonable grounds; and that they were appointed in good faith. They were proper and competent examiners to examine the petitioner."
That was the essential material which was before the committee in relation to this issue on the first petition. Their decision in relation to it appears from the following passage which follows immediately upon that which I have quoted above:
"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."
It will be apparent from what I have said earlier that I cannot accept Mr. Sedley's submission that the supervisory approach adopted by the committee in this passage discloses any error of law or other ground for intervention by this court. However, in deference to his sustained arguments I should refer to a number of other related matters.
First, none of the counsel who appeared on this appeal were able to throw any light on what was intended to be referred to by the remark "as has been observed in other cases." If I may respectfully say so, if there were any precedents or guidelines which the committee was following in the approach which it adopted, then it would have been preferable to make this material available to counsel for the applicant at the hearing. However, this is clearly not a point which can by itself provide a basis for challenging this passage and the contrary was not suggested.
Secondly, and mainly, Mr. Sedley submitted that in this passage the members of the committee were misdirecting themselves in law by saying that it was "no part of their duty" to interfere in matters of scientific or technical judgment. Even if, as he maintained, the committee were not bound to satisfy themselves generally about the reasonableness of the appointment of these examiners, or at any rate about the absence of unreasonableness in their choice, Mr. Sedley submitted that this passage showed that the committee felt themselves bound to adopt an Associated Provincial Picture Houses Ltd. v. Wednesbury Corporation[1948] 1 K.B. 223 approach and did not regard a direct investigation into the merits as open to them. But in my view this criticism is untenable.
The second sentence must be read together with the first, and might well have been separated from it by a colon instead of a full stop. Read together, it is clear that the committee were expressing their view as to what they felt to be the appropriate course to adopt; not what they believed they were bound to do as a matter of law.
Thirdly, in criticising the approach adopted in this passage, Mr. Sedley contrasted it with the approach adopted in another case by another committee which had also been concerned with a refusal of a Ph.D. by allegedly unqualified examiners. This arose from a petition presented on behalf of an external candidate in 1969, a Dr. Hansford-Miller. Mr. Sedley pointed out that in that case the report of the committee analysed the nature of the candidate's thesis and the comments of his examiners in their reports, which were evidently before the committee. Mr. Sedley's bold submission was that the committee had either erred in the latter case or in the present case, and that it must follow from the difference in approach that there had been an error of law in one of these cases, i.e., the present. In support of this submission he pointed to the requirements for a Ph.D thesis which included the following under the relevant regulations (nos. 23.1(b) and 23.7):
"It must form a distinct contribution to the knowledge of the subjects and afford evidence of originality, shown either by the discovery of new facts or by the exercise of an independent critical power.The degree will not be conferred upon a candidate unless the examiners certify that a thesis is worthy of publication as a 'Thesis approved for the degree of Doctor of Philosophy in the University of London'."
Having regard to these requirements Mr. Sedley submitted that, in adjudicating upon a petition based on the alleged lack of the necessary qualifications on the part of the examiners, the committee had to satisfy themselves that the selected examiners were in fact competent to apply these standards, or at any rate not incompetent. That task, Mr. Sedley submitted, had indeed been performed by the committee in relation to the Hansford-Miller petition, but not in the present case. Again, I cannot accept this submission for the reasons already stated. Admittedly, the decision in the Hansford-Miller case reveals a different approach from the present case. That may have been, as the university submits, because the circumstances were different, since that was a case of an external candidate in relation to whom more material may have been placed before the committee. Or it may be because the nature of the controversy in that case was such that, basing itself upon the material before it, the committee was able and willing to found its decision more directly upon the actual merits of the dispute. But these must be matters for the visitor's discretion according to the circumstances. Thus, in the present case it would no doubt have been open to the committee, if they had thought fit, to call for the examiners' reports. But, contrary to Mr. Sedley's submission, they were clearly not obliged to do so. Having regard to the nature of this dispute and in the light of the material before them I cannot see the beginning of any error of law or other complaint on which judicial review of their decision could be founded.
The issues relevant to the second petition
This resulted in part from the applicant's dissatisfaction with the outcome of her first petition and in part, or mainly, from errors which she found, or believed to have found, in the facts referred to in the university's answer to her first petition. Since the facts stated in the answer had of course formed part of the material placed before the committee and had indeed been referred to it in their decision to some extent, the applicant evidently felt that she had no choice but to pursue the matter. However, as often happens in the course of litigious activity which may originally have stemmed from some justifiable grievance, the applicant began to lose sight of the wood for the trees at this stage, if she will forgive my saying so. Thus, it seems to me, with all due respect to the obvious strength of her feelings, that she has never given adequate weight to the facts that (i) the appointment of her examiners was made by Professor Bullough, the chairman of the Higher Degree Sub-Committee of the Board of Studies in Zoology; (ii) Professor Gahan was himself a member of this board of studies; and (iii) no criticism has ever been made of the qualifications of the three additional examiners appointed for her re-examination, consisting of Professor Mitcheson, the chairman of the Board of Studies in Zoology, and two outside examiners. Unfortunately, instead of bearing these matters in mind and accepting the decision of the committee in the circumstances, she launched upon a second petition for a re-hearing on three new grounds which can only be described as marginal.
First, she pointed out that the university had been wrong in its answer to the first petition in referring to Dr. Thorndyke as the "senior lecturer in zoology at Bedford College" with whom Professor Dales had discussed the names of Professors Gahan and Holt as possible examiners, and that this description of Dr. Thorndyke had been repeated by the committee in their decision. So far as it went, this criticism was justified. Dr. Thorndyke was in fact merely a lecturer in zoology, not the senior lecturer. The applicant also claimed that he was of no greater seniority and possessed no greater knowledge than she herself. Before the hearing of the second petition the university readily agreed that there had unfortunately been a mistake in referring to Dr. Thorndyke as "senior" lecturer. Obviously, however, this was not a point of any great moment in relation to the reasonableness or otherwise of the appointment by Professor Bullough of Professors Gahan and Holt as her examiners.
Secondly, the applicant unfortunately spent a great deal of time and effort in challenging the reference in the university's answer to Professor Gahan's Ph.D. having been obtained in 1964 "in, according to the university's records, zoology - histochemistry." She contended that the reference to zoology was inaccurate. This unfortunately started what can only be described as a paper chase. The applicant referred to the Catalogue of Doctoral Theses in the university library which included Professor Gahan's work under the heading "Biochemistry" and not under "Zoology." But in answer to this it was pointed out that the catalogue merely contained a librarian's classification, whereas the official minute of the senate of the university dated 29 January 1964 referred to "zoology - histochemistry" as part of the description of this particular thesis. However, undaunted, the applicant thereupon embarked upon a process of analysing the contents of this thesis in order to seek to show that it had no possible connection with zoology. Again, these matters speak for themselves and could hardly have been expected to lay any foundation for a re-hearing.
The third new point was that the applicant complained that the appointment of the examiners had been made by Professor Bullough in person, as chairman of the Higher Degree Sub-Committee of the Board of Studies in Zoology, and not by the sub-committee itself. On behalf of Professor Bullough it was explained that he had made the appointments during the long vacation with the best intentions, in order to avoid delay in the consideration of the applicants' thesis until after the next (combined) meeting of the Board of Studies and of the Higher Degree Sub-Committee which was only due to take place on 29 October 1979. As shown by the minutes of that meeting, Professor Bullough then reported this appointment among many others, all of which were noted by the sub-committee without disapproval. But these matters were brushed aside by the applicant. Her complaint in this regard in her second petition was that the circumstances did not justify what in the practice of the university's organisational hierarchy, as in the case of many committees generally, is referred to as "chairman's action." She said that this was only appropriate in cases of emergencies and not in circumstances such as hers. Again, this is clearly not a point of any weight on the merits. On the appeal before us Mr. Sedley then sought to take this point one stage further when he indicated that there was in fact no provision for "chairman's action" anywhere in the university's statutes, regulations or instructions. Although this quasi-jurisdictional point had not been raised before the committee, he submitted that it had been available in the material before them and that it would in any event be appropriate for consideration by the committee if the whole matter were now remitted to them, as he submitted it should be. On the other hand, so far as concerns the merits of this point, he did not seek to challenge the statement made by Mr. Newman on behalf of the university that "chairman's action" was - as one might expect - a recognised practice at all committee levels in the university's hierarchy. For present purposes, in the context of appointing examiners for Ph.D. candidates, the chain of delegation led from the Senate via the Academic Council and the Board of Studies in Zoology to the Higher Degree Sub-Committee of that board whose chairman at the time had been Professor Bullough. No criticism of his qualifications has ever been advanced, and he clearly acted with the best intentions. All this again speaks for itself.
I am bound to say that in my view no weight is to be attached to any of these points. The committee clearly thought so too. If they had simply expressed a view to the same effect in dismissing the second petition for a re-hearing of the first petition, then the applicant's position on this aspect of her present application would have been entirely unarguable. However, Mr. Sedley still had one further submission. He referred to a short note of the hearing of the second petition made by the Registrar of the Privy Council, Mr. D. H. O. Owen, and a longer note made by someone on behalf of the university which was exhibited to an affidavit before us. These notes showed, as he submitted, that in dealing seriatim with the applicant's points, although this aspect was not mentioned in the committee's formal dismissal of the second petition, Lord Brightman appears to have regarded the committee as bound to apply the decision of the Court of Appeal in Ladd v. Marshall [1954] 1 W.L.R. 1489 to the new points sought to be raised by the applicant. In particular Lord Brightman appears to have insisted upon the application of the rule that fresh evidence could only be received if it could not have been procured with reasonable diligence at the time of the prior hearing.
I agree with that submission to the extent that the notes in question are capable of bearing this interpretation. Thus, according to Mr. Owen's note, Lord Brightman said, after the committee had called upon counsel for the university on one point, that "their jurisdiction was restricted and they could not order a re-hearing except in very limited circumstances." And, according to the note taken on behalf of the university, there was a similar reference to the committee's "jurisdiction" being "very limited indeed" to direct a further hearing. But in my view this criticism rests merely on semantics. Thus, in any earlier passage of the same note, Lord Brightman pointed out to the applicant that the committee were concerned "as to whether there was a case for further hearing." The notes show that Lord Brightman was throughout seeking to explain to the applicant the rules which would be applied by the courts to the new points on which she sought to rely. But it does not follow at all that Lord Brightman had formed the view that the committee was bound to refuse a re-hearing on these grounds as a matter of law, even if they had otherwise wished to have the petition re-heard. All that he was doing was to point out what would be the corresponding situation in court proceedings and to indicate that the committee approached the application for a re-hearing on the same basis, as they were plainly entitled to do. The reality, as it seems to me, is that in the circumstances the application for a re-hearing could never have had any prospect of success, and that in their conduct of it the committee were only concerned to show sympathy for the applicant, who appeared in person. There is no ground for remitting the applicant's petition to the committee, either in law or as a matter of discretion.
In all the circumstances I can find no basis for the grant of any relief by way of judicial review, and I would accordingly dismiss this application.
JUDGMENT BY SIMON BROWN J.
I agree with the judgment of Kerr L.J., and for the reasons which he gives I too would dismiss this application. Only in recognition of the clear general importance of the question which arises upon the nature and scope of the visitor's jurisdiction and in deference to counsel's careful arguments do I add a short judgment of my own.
The rival contentions I understand essentially as follows. Mr. Sedley for the applicant submits that the proper exercise of visitatorial jurisdiction is certainly not limited to a Wednesbury type review. Rather he describes the visitor's role as intimate and interventionist, extending to the resolution of questions of fact as well as to ensuring that the relevant domestic rules have been both substantively and procedurally followed. But Mr. Sedley accepts, indeed asserts, that there can be no single a priori characterisation of the proper approach to the exercise of this jurisdiction. Rather he recognises that this must always depend upon two considerations: first, the particular law, rule or custom which the visitor is being required to enforce; and, second, the character of the breach alleged. There is, he suggests, a wide spectrum (continuum was Mr. Sedley's word) of possible grievances upon which the visitor may be called to adjudicate. The nature of the particular grievance will dictate where in that spectrum the dispute falls and upon that will in turn depend whether the visitor's role is essentially supervisory in nature or whether instead it is to a greater or lesser extent an independent fact-finding and judgment-forming role, akin more to an appellate than a review jurisdiction. Unlike Kerr L.J. I did not understand Mr. Sedley to submit that the exercise of a merely supervisory jurisdiction would necessarily and invariably be wrong; rather that it should not generally be regarded as the correct approach.
Mr. Laws on behalf of the visitor contends for an altogether more restricted visitatorial role. In particular he submits that the visitor's function is essentially to construe and carry into effect the regulations of the foundation; it is not to usurp the role of members of the foundation to whom those internal regulations accord specific executive functions of their own. The visitor is, he points out, in a fundamentally different position to that of the particular university organ charged with the decision on the merits. The analogy, he suggests, is with the review jurisdiction of this court; indeed, he submits the analogy is exact. Just as this court's supervisory role is limited to ensuring that a particular regime (he instanced immigration control) created and entrusted by the legislation to some public law body is being lawfully operated in accordance with Parliament's declared will, so the visitor must ensure that the university regime is being operated according to the will of the founder as the instigator of that particular charitable regime. In the instant case, indeed, the analogy is contended to be yet more precise, since the founder's will is itself now enshrined in statute. Nor, the argument runs, is this an artificial or inappropriate limitation of role to ascribe to the visitor, any more than the limited character of the court's review jurisdiction is itself properly to be regarded as in the nature of a self-denying ordinance. Rather in both cases Parliament has legislated for decisions to be taken by bodies apart from the visitor or the court (as the case may be) and it would be wrong for either of those tribunals to usurp such expressly conferred decision-making functions.
The argument is ostensibly confined to cases where the internal law commits the decision on the merits to an organ of the university. Mr. Laws accepts that other disputes may well fall to be decided by the visitor himself on the merits.
Seductively although this argument was presented, I find great difficulty in accepting it. In the first place it seems to me that the internal laws will generally commit the relevant decision, that is the decision creating the grievance before the visitor, to some specific body within the foundation. Take, for instance, the facts in Thomas v. University of Bradford [1987] A.C. 795. Miss Thomas was removed from office under a "good cause" condition which provided for a person's removal from office in given circumstances (broadly, criminal conviction, incapacity or misconduct) which the university "court or the council (as the case may be) considers to be such as to render the person concerned unfit for the execution of the duties of his office" or "such as to constitute failure or inability of the person concerned to perform the duties of his office or to comply with the conditions of tenure of his office."
On its face, that internal law clearly commits the merits of the decision whether or not good cause exists to specified university organs. Yet Lord Griffiths plainly regarded the visitor as empowered to determine for himself that self-same question on the merits; he expressly envisaged, at p. 823:
"a case in which on appeal the visitor concluded that there has been no good cause for the dismissal of a member of the academic staff ..." (my emphasis.)
Were it indeed otherwise, people like Miss Thomas dismissed by the university would be gravely disadvantaged compared to those in other employment, who, in an action for wrongful dismissal, would clearly be entitled to the court's own independent decision upon the substantive merits of the dispute.
Nor am I persuaded of the exactness of the suggested analogy between the visitor's role and that of this court when exercising its review jurisdiction. Rather it appears to me fallacious. Judicial review is the exercise of the court's inherent power at common law to determine whether action is lawful or not; in a word to uphold the rule of law. There is, of course, no question of this court entertaining an appeal from a decision entrusted by Parliament or the prerogative to another public body: rights of appeal, indeed, are by definition always statutory. But the visitor's jurisdiction is in my judgment sui generis. It is unconstrained by those considerations which operate to confine this court's powers. The statutes of the university provide only for the visitor's identity. Nothing whatever is laid down as to the precise role which he should play in the resolution of whatever domestic disputes may be referred to him. In my judgment the decision in Thomas v. University of Bradford, determining as it does the exclusivity of visitatorial jurisdiction where it arises, underlines also the need for such jurisdiction to assume whatever breadth and character will best enable the visitor to discharge his ultimate function. That function was described by Lord Griffiths, at p. 823, as being the
"judge of the laws of the foundation [who] should... have the power to right a wrong done to a member or office holder in the foundation by the misapplication of those laws."
Lord Ackner, at p. 828, put it that the visitor
"must be entitled, in order to ensure that the domestic law is properly applied, to redress any grievance that has resulted from the misapplication of that domestic law."
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.
DISPOSITION
Application dismissed.
Order for costs in favour of university, not to be enforced without leave of court.
Legal aid taxation of applicant's costs.
SOLICITORS
Solicitors: Wray Smith & Co. for Davis Walker & Co., Chalfont St. Peter;
Treasury Solicitor;
Coward Chance.
Reported by MISS GERALDINE FAINER, Barrister-at-Law