Herring vs. Templeman and others

It is accepted that this clause is incorporated in the alleged contract, though we doubt it. But we find it impossible now to strike out the statement of claim on this ground. We do not know what (if any) is the authority that appertains to the office of visitor in the case of any endowed college which is subject to the visitation of the ordinary in connection with a dispute such as the present, involving an alleged breach of contract between the governing body and a person who, though a student under tuition and training at the college, is in no position of membership.

We return to the trust deed. It provides that the administering trustees of the charity shall be the governing body constituted according to cl 5: seven are to be representatives of the Church of England appointed as there laid down; six are representative of named educational authorities or institutions; two are the principal and deputy-principal ex officio; and up to eight are to be co-opted, of whom two are to be persons with a special knowledge of a major subject taught at the college and two are to be selected from educational institutions in Kent. Since it was the governing body that resolved on exclusion of the plaintiff, when it appeared from the minutes that one member who was present at the relevant meeting was a personal friend of one of the court and well known to the other two members, these facts were at once made known to the plaintiff's counsel and the plaintiff was afforded the opportunity to prefer that the appeal should be heard by a court differently constituted; but after the plaintiff had discussed the matter with his advisers we were informed that he was well content that we should deal with the appeal.

Clause 12 of the trust deed provides for regular meetings of the governing body at least three times annually, and for special meetings; resolutions of the body are to be by a majority of those present and voting and may be rescinded by subsequent resolution. Clause 17 requires that the college be maintained as a college for the training of teachers, and that it be conducted so as to comply with the Education Acts 1944 to 1967 (as they might be amended) and with any regulations for the training of teachers made thereunder. The governing body appoints and terminates the contracts of service of the staff, including a principal, deputy-principal and academic registrar. Clause 23 provides for constitution of the academic board; the principal is chairman and the deputy-principal is vice chairman; the heads of academic departments (fields of study) are members; there are six other members of the academic staff elected by the latter. The academic registrar is secretary of the board. It is to be observed that the academic board is so constituted as to be best qualified to arrive at a conclusion whether any student's standard of work is sufficiently satisfactory to justify his continued occupation of a place in the school. There is also provided an academic council which normally is to meet once a term; it consists of all full-time members of the academic staff.

Clause 24 deals with suspension and dismissal of students in the following terms:

'The Principal shall have power to recommend the dismissal of a student from the College. Every such recommendation shall require to be confirmed by resolution of the Governing Body after considering such representations in writing or in person as the student may wish to make except that in an emergency the Chairman or in his absence the Vice-Chairman shall have power to act on behalf of the Governing Body and shall report his action to the next meeting of the Governing Body. Every such dismissal, after confirmation by the Governing Body or by the Chairman or Vice-Chairman acting on behalf of the Governing Body, shall at once be reported to the Secretary of State for Education and Science. The Principal, for any reason he may judge adequate, shall have power to suspend any student from his studies in the College and to exclude him from the premises of the College, The Principal shall at once report any such suspension or exclusion to the Chairman or in his absence the Vice-Chairman of the Governing Body.'

It will be observed (a) that it does not provide for dismissal of a student except by the process of a resolution of the governing body confirming a recommendation by the principal; (b) that it embraces all cases of dismissal whether on academic or disciplinary grounds; and (c) that there is no provision for representations by or on behalf of the student except to the governing body.

Clause 27 is prefaced by the general phrase: 'Within the limits prescribed by this Trust Deed and subject to any Regulations made by the Secretary of State for Education and Science', and provides:

'... (ii) the Principal in consultation with a committee elected by, and whose composition shall be determined by, the Academic Board of the College, shall regulate the admission of students to the College. The admission shall be according to the numbers and types of students for which the College is approved by the Secretary of State for Education and Science and no student shall be refused admission to the College on other than reasonable grounds...

(iv) subject to the general responsibility and control of the Governing Body the Academic Board of the College shall (a) prescribe a suitable curriculum for use in the College, which curriculum shall include a systematic study of the principles and practice of education; (b) make arrangements for students to obtain practice in teaching in schools approved for that purpose under proper supervision; (c) make suitable arrangements within the regulations of the Area Training Organisation of which the College is a member for the examination of the students of the College in the courses taken by them; (d) make recommendations to the Principal for the suspension or dismissal of students whose standard of work is unsatisfactory...'

It will thus be seen that in the case of dismissal of a student (who would have been entered in the register of students kept pursuant to cl 26) on academic standard grounds the procedure laid down by the trust deed is, first, a recommendation for dismissal made by the academic board to the principal; second, a recommendation for dismissal made by the principal to the governing body; and third, a resolution of the governing body, after considering representations in writing or in person by or on behalf of the student, confirming the principal's recommendation.

Under cl 31 the governing body, subject to the approval of the Secretary of State, fixes the tuition and boarding fees payable in respect of students of the college: it appears that some are boarders and some are day students.

Clause 39 reads as follows:

'Any question as to the construction of this Trust Deed or as to the validity of any act done or about to be done hereunder shall be determined conclusively by the Secretary of State for Education and Science on application made to him for that purpose by the Governing Body.'

No application has been made thereunder to the Secretary of State and it is common ground that this clause does not serve to support the defendants' application to strike out the statement of claim.

Clause 42 provides for alteration of the provisions of the trust deed with the approval of the Secretary of State.

When it is sought to strike out a statement of claim and dismiss the action as disclosing no reasonable cause of action it is normal to confine the debate to the facts asserted in the statement of claim, assuming them to be true, and to look at no document except the statement of claim and documents referred to therein. In the present case we were, however, introduced without objection by either side to other documents, inferences from which we were invited to draw in favour of one side's contentions or the other's. There are obvious objections to such a course, as tending to lead to what was described from the Bench as 'a half baked trial'. But where as in the present case it is obvious that on each side public money is involved (the plaintiff being legally aided and the charity being directly or indirectly through students' grants state or rate supported), we were not minded to resist the introduction of material to which the parties did not object and which might contribute to a present just solution of the problems.

The documents incorporated by reference in the statement of claim were (a) the trust deed; (b) the minutes of the meeting of the governing body dated 31st January 1972; (c) the report by the academic registrar of the grounds on which the academic board considered that the plaintiff should be dismissed because his standard of work was unsatisfactory for consideration by the governing body at its relevant meeting (appendix A to the minutes thereof); (d) the written representations of the plaintiff to the relevant meeting of the governing body (appendix B to the minutes thereof); (e) a letter dated 6th December 1971 from the principal to the plaintiff; and (f) a letter dated 7th December 1971 from the academic registrar to the plaintiff. At the hearing of the appeal we were additionally introduced to the minutes of the meeting of the academic board dated 24th November 1971 which was said to be the relevant recommendation under cl 27 of the trust deed, and letters dated 13th December 1971 and 5th January 1972 from the principal to the plaintiff.

We turn next to the question whether the procedure leading to dismissal of a student from the course laid down by the trust deed had been followed. Under this head it is submitted that, from the documents, all that appears is that, even assuming (which is challenged) that the resolution of the academic board of 24th November 1971 could be taken to be a recommendation for dismissal by that board to the principal (cl 27), nothing appears to show that the principal made his own recommendation for dismissal to the governing body. We will deal first with the challenge to the asserted resolution of the academic board. The resolution of the academic board on 24th November 1971 was that the plaintiff was to be seen by the external assessor. 'If he fails, to be told to leave and if necessary the appeal procedure detailed in Minute 725 to be put into operation.' This needs a little explanation. The college arranges for students to conduct teaching practices at schools in the area (see trust deed, cl 27 (iv) (b)). The plaintiff at this date was approaching the end of his third and final teaching practice period. Grades are assessed as a result of observation at these practices of the student's performance by assigned members of the college staff, reports from school headmasters thereon, and the views thereon of external examiners or assessors. In the case of a student provisionally graded by the academic board 'failed' or borderline towards the end of his teaching practice, special visits are paid to his remaining teaching practice by the external assessor, a further assessment of his grade is made in consultation with the external examiner and the grade finally determined.

It is, in our judgment, absolutely plain from the documents and course of events that in the plaintiff's case the academic board on 24th November provisionally graded his teaching practice as 'failed' and that this was shortly thereafter confirmed, after visiting his teaching practice, by the external examiner or assessor. The decision of the academic board on 24th November 1971 was that he ought to be dismissed from the course if the external examiner also considered that the grade should be 'failed'. It was pointed out that the plaintiff sought and was refused a plain statement of his final teaching practice grade; the refusal was because this final grade, forming part of the later final examination, is required by London University to be confidential. But it is quite plain from the resolution of 24th November 1971 and subsequent events that it was 'failed'. This was, moreover, in effect, assumed by the plaintiff at the hearing by the governing body: the minutes record him, of course in summary, as saying - 'the final teaching practice assessment as an examination result was not being contested, but [he] should have been warned he was in danger of failing'; that, 'irrespective of teaching practice, he was sure he could pass his other examinations'; and that, 'he should be allowed to take the teaching practice again in the Summer term, or the next academic year'.

There was consequently a resolution of the academic board on 24th November that the plaintiff should, if an event occurred which did occur, leave the course. We cannot see that this is other than an effective resolution recommending his dismissal under cl 27 of the trust deed, or was other than in the circumstances a recommendation to the principal. No particular form is required by the trust deed for such a recommendation, and the substance of the matter was undoubtedly there. The reference to appeal procedure in the minute of 24th November 1971 was made because (we rather think as a result of an arrangement with the students' union, but it matters not) some time previously the academic board had resolved in the following terms:

'(1) that when there was strong evidence on academic grounds that a student's course should be terminated the Academic Board set up a committee to whom the student would be entitled to make representations; such committee to have the power to reach a decision;

(2) that the composition of the committee be Principal, Deputy Principal and Academic Registrar ex officio together with three other members of the Academic Board to be elected by the Academic Board;

(3) that the student have the right to be accompanied by a friend in making representations, and that members of the staff have the right to speak to the evidence presented.'

In fact, in this case such a sub-committee met on 5th January 1972 under the chairmanship of the principal and upheld the view of the academic board that the plaintiff should be dismissed from the course; the plaintiff did not attend that meeting, but no point is taken against him on this, because there is no provision in the trust deed procedures for such a system.

To return to the course of events, on 6th December 1971, obviously after the final teaching practice grading, the principal wrote thus to the plaintiff:

'You will remember that I saw you at the end of the fifth term (the second term of last session) and conveyed the decision of the Academic Board that on grounds of unsatisfactory academic progress, particularly in relation to your work in schools [that is a reference to teaching, we apprehend], you should be advised to leave. You stated in your letter that you did not accept the advice and asked to continue in college. The Academic Board having considered your work, particulary in relation to your work in school this term, has resolved that you cannot continue as a student from the end of this term. This is on the grounds that you have not satisfied the academic and professional requirements. I conveyed the decision to you this morning, 6th December, but you did not give me any opportunity to explain the matter more fully. If, however, you feel you have grounds for appeal the Academic Board has a procedure by which you may do this. The appeal would have to be made immediately because I need to report to your Local Authority that on grounds of unsatisfactory progress the Academic Board has said that you cannot continue as a student next term. In view of your abusive attitude I am not prepared to offer you a further personal interview unless you apologise.'

The letter appended the copy of the appeal sub-committee machinery resolution that we have already read.

Immediately after the meeting of the sub-committee the principal wrote on 5th January 1972 to the plaintiff:

'... The Review Committee considered the issues and in the absence of any submission by you I am now recommending formally to the Chairman of the Board of Governors, on behalf of the Academic Board, that you be dismissed from the college.'

Subsequently, a report was made to the governing body by the academic registrar, who is the secretary of the academic board, as such, for consideration by the governing body when they should come to decide on the matter of the proposed dismissal of the plaintiff from the course at the college. A copy, of course, was sent to the plaintiff. It was in the following terms:

'For the use of the special meeting of the Governing Body on Monday, 31st January, 1972, at 2.15 p.m. to hear an appeal by [the plaintiff] (third year student) against the recommendation of the Academic Board that his course be terminated on academic grounds.

REPORT ON BEHALF OF THE ACADEMIC BOARD TO THE GOVERNING BODY.

1. The Academic Board recommends to the Governing Body that [the plaintiff] should be required to withdraw forthwith from the college on academic grounds.

2. The Academic Board has reached this decision because it is of the opinion that [the plaintiff] has shown himself unfit on teaching practice to be a teacher. This decision is based on the unanimous judgment of all those involved in assessing his final teaching practice (i.e. the External Examiner, the two College tutors and the Head of the School) together with supporting evidence from reports on his first and second practices (i.e. from two Head Teachers, one class teacher and four College tutors).

3. The rules of the University of London Institute of Education are quite clear that confidentiality must be maintained about the actual grade awarded for the final teaching practice (as this is part of the final examination result); and reports from Head Teachers are submitted on the understanding that they also will be confidential. It is nevertheless possible to outline the course of events with regard to [the plaintiff] as follows:-

(a) First Teaching Practice April/May 1970

There were already comments from tutors and teachers in their written reports which caused concern regarding [the plaintiff's] competence and suitability for teaching. The assessment for the first teaching practice is in three broad divisions of "promising" "satisfactory " or "weak". [The plaintiff] was graded as "weak".

(b) Second Teaching Practice February/March 1971

The reports on the second teaching practice from the tutors and Head Teacher gave increased cause for concern. As a result of his practice [the plaintiff] was graded "D/E" on a five point grading system ranging from "A" to "E" in which "E" represents "fail". At its review of second-year students' teaching practice on 17th March, 1971, the Academic Board took such a serious view, not only of [the plaintiff's] actual performance but of his evident attitude to teaching, that it resolved that [the plaintiff] be "advised to leave". This is an official decision which was communicated to [the plaintiff] by the Principal. [The plaintiff] refused the advice and continued with his academic course but from this point on it cannot be said by [the plaintiff] that he was unaware of the seriousness of his situation.

(c) Final Teaching Practice October/December 1971

It is clear from the reports by the External Examiner, the Head Teacher and the two college tutors that [the plaintiff's] performance of the final practice confirmed all the doubts about him and justified the decision taken by the Academic Board after the second practice. The Academic Board meets twice to review final teaching practice grades. At both meetings all members of the academic staff are asked to be present. For the first meeting a grade is submitted for every student by the two college tutors who supervise the teaching practice. The grade for each student is reviewed by the Academic Board and a decision reached either to confirm the grade or for the student to be visited again on teaching practice by the Principal, Deputy Principal or appropriate tutors, and if necessary amendments to the grades are agreed. At this stage all assessments are provisional: the final decision rests with the External Examiners at the meeting that they have with the academic staff a week later. In between these two meetings, the External Examiners visit all students in the "E" and "D/E" categories, in certain other categories, and a further selection of students of their own choosing to test the College's standard of assessment. At the second meeting the External Examiners announce their decisions to the academic staff and invite comment and discussion from the academic staff, particularly where any change in assessment is involved, but the final decision remains with the External Examiners. The official lists are then signed by the Principal and the Internal and External Examiners and forwarded to the Institute Examinations Officer; they cannot be changed in any way without notification to and the approval of the External Examiners. There is thus every possible safeguard from the student's point of view.

4. In the case of [the plaintiff], it was the opinion of the Academic Board at the first of the two meetings that if the External Examiner confirmed the assessment, [the plaintiff's] course ought to be terminated, and the Academic Board passed a resolution to this effect. After visiting [the plaintiff] at his school, the External Examiner at the final meeting fully endorsed the assessment of the Academic Board without hesitation or qualification of any kind. As a result, [the plaintiff] was given by the Principal the decision of the Academic Board to recommend to the Governing Body that his course should be terminated, but he was offered an opportunity to appear before an Academic Board Committee which would review the case if he wished to make representations to it. The Committee met on 5th January, 1972, a date agreed with [the plaintiff] but neither he nor his chosen friend, Mr. D. Goddard, appeared. It was learnt that this was on legal advice from Mr. Grigg-Spall, and that the authority of the Academic Board to set up a review or appeal committee was being challenged.

5. It should be stated that, however the relevant Academic Board minute (minute 725, in which the arrangements for setting up this Committee are recorded) may be interpreted, the Academic Board's intention in making provision for setting up a Committee of its own members was to give a student an opportunity to take his case one stage further before a formal recommendation was made by the Governing Body. This stage was designed to allow the student concerned, in the light of the judgment of the Academic Board about him, to make any further representatios he might wish to make in advance of the formal recommendation by the Academic Board to the Governing Body. These representations were to be made to a Committee of members of the college academic staff who (as members of the Governing Body have commented in the past) are the persons best acquainted with his academic performance and particular circumstances, and with whom the duty lies to carry out the assessment of each student's academic and professional fitness for the teaching profession.

In this respect it is worth noting that although a revised Trust Deed is now nearly complete after several years of revision and amendment, at no point has the Academic Board sought the deletion or even the amendment of Clause 24 of the 1968 Trust Deed which gives a final right of appeal by a student to the Governing Body, and the Academic Board does not question the duty of the Governing Body to act in a supervisory capacity in this respect to check that justice is being done through the Academic Board's procedures. Members of the academic staff have, however, expressed their great concern at what, in the present instance, in publicity and correspondence, appears to be a challenge by student representatives and [the plaintiff's] legal adviser regarding the Academic Board's duty and responsibility to the teaching profession to ensure that only those worthy of that profession should be allowed to enter it.

In the present case [the plaintiff] unhappily seems to be unaware of or unable to understand his deficiencies and to be lacking in that capacity for self-criticism which might have given hope that he would one day be able to equip himself satisfactorily for the teaching profession. Consequently, it is the Academic Board's view that there is no justification for continuing [the plaintiff's] course at the college.'

Prior to the relevant meeting of the governing body the plaintiff submitted to it a statement of his case in writing (appendix B to the governing body's minutes) at some length; at this stage he was being advised by solicitors and, apparently, counsel. Nowhere therein was it suggested that the recommendation for dismissal which the governing body was about to consider could not as a matter of substance be regarded as a recommendation not only of the academic board but also of the principal. Nor was any such suggestion made by or on behalf of the plaintiff at the relevant meeting of the governing body. Now it is perfectly true (a) that in his letter dated 5th January 1972 the principal said: 'I am now recommending formally to the Chairman of the Board of Governors, on behalf of the Academic Board'; (b) that the document submitted by the academic registrar for consideration by the governing body at the relevant meeting refers to the plaintiff's appeal to the governing body 'against the recommendation of the Academic Board' and states 'The Academic Board recommends to the Governing Body...'; and (c) that the minutes of the relevant meeting of the governing body (which will be considered in full later in this judgment) refer to 'a decision either to accept the recommendation of the Academic Board or reject it', and show that the resolution was 'that the recommendation from the Academic Board be accepted'. But, as we have indicated, the question is not one of form but of substance, no particular form being required by the trust deed. To our mind, it is perfectly plain from the course of events that the principal adopted the recommendation of the academic board as his own and so brought the matter before the governing body. He presided over the original meeting on 24th November 1971; he presided over the sub-committee on 5th January set up to reconsider the matter. We have no doubt that this alleged defect in procedure was asserted neither in appendix B nor at the hearing, because common sense applied to the course of events recognised that the principal had approved the recommendation of the academic board, and by passing it on to the governing body had made it his own to them. To hold that the principal's letter dated 5th January 1972 (copy to the chairman of the governing body) was not also his personal recommendation that the plaintiff be dismissed would, in our judgment, be to cast aside every vestige of common sense. In our judgment, there is no prospect at all that the plaintiff would establish at the trial that the governing body in resolving to accept the recommendation from the academic board that the plaintiff be dismissed were not at the same time confirming a recommendation by the principal to that effect.

There remains for consideration the question whether the matters of fact alleged in that behalf by the plaintiff to constitute breaches of contract as being departures from an implied obligation to observe the rules of natural justice are capable of being labelled as such departures.

Before considering the details of this it would be convenient to set out the minutes of the relevant meeting of the governing body, the correctness of which as a summary is not challenged:

'Minutes of the special meeting of the Governing Body held on Monday, 31st January 1972, in Room 35, commencing at 2.20 p.m. Present Dr. Templeman (Chairman), Canon L. G. Appleton, The Rt. Rev. S. W. Betts,, Professor R. J. Brocklehurst, Alderman H. J. Buckworth, Mr. G. E. Hardy, Miss G. Harper, Canon S. H. Hoffman, Lady Prudence Loudon, Mr. H. J. Nancollas, Rev. C. F. Pollard, Mr. N. Polmear, and the Clerk of the Governing Body. Also present Mr. G. Pike (College Solicitor).

535.
Apologies for absence

Apologies for absence were received from Professor P. R. AcKroyd, Miss F. H. Gwilliam, Dr. J. Haynes, Professor A. V. Judges, Miss F. F. Laidler, Brigadier J. H. D. L. McGregor, Rev. Canon J. Robinson. Professor H. F. D. Sparks.

Procedure

The following points were agreed by the Governing Body with regard to procedure for the hearing: (a) that the Governing Body had to act strictly within the terms of the Instrument of Government; (b) that it was the duty of the Governing Body to provide a fair hearing from reasonable people; (c) that it was not the Governing Body's function to act as a legal tribunal; (d) that therefore Mr. Grigg-Spall could attend as a friend, not as a solicitor; (e) that the Governing Body must make a decision either to accept there commendation of the Academic Board or to reject it. It was not the business of the Governing Body to interfere with the Academic Board's assessment of [the plaintiff's] academic and professional competence, but an opportunity must be given to [the plaintiff] to offer reasons why he should be allowed to complete his course.

536. Attendance of friends

[The plaintiff] joined the meeting accompanied by Mr. Grigg-Spall and Mr. D. Goddard, President of the Students' Union. Mr. Grigg-Spall asked that Mr. Goddard be allowed to be present to take minutes of the proceedings. [The plaintiff], Mr. Grigg-Spall and Mr. Goddard were asked to withdraw whilst this request was considered and on their return the Chairman informed the three persons of the Governing Body's view that the provisions of the Instrument of Government had already been extended to allow the presence of one friend and that it was not necessry to have two. [The plaintiff] and Mr. Grigg-Spall were at liberty to take whatever notes they wished. Mr. Goddard then withdrew.

537. Explanation of procedure and representations on procedural matters

The Chairman, in an opening statement to [the plaintiff] and Mr. Grigg-Spall, said: (a) that no member of the Governing Body who was also a member of the Academic Board was present; (b) the Clerk to the Governing Body and the College Solicitor were in attendance; (c) this was the first meeting of the Governing Body to consider this recommendation concerning [the plaintiff] and no prior decision had been taken; (d) the only document before the Governing Body was the report from the Academic Board, which had been circulated to the members and to [the plaintiff] ten days before the date of this meeting. (Appendix A to these minutes). The Chairman explained the points of procedure agreed upon by the Governing Body. The Governing Body knew nothing more of the case than was in this report; (e) it was relevant to point out that the proceedings were not an appeal as such against the Academic Board's assessment of [the plaintiff's] ability, or disciplinary proceedings at which witnesses could be called, but was an exercise of the student's right in accordance with No. 24 of the Articles of Government to make such representations in writing or in person to the Governing Body as he might wish as to why he should be allowed to continue his course of study in the face of a recommendation from the Academic Board that such course be terminated on academic grounds. The Chairman added that a wide licence would be given to [the plaintiff] to say anything he wished and while Mr. Grigg-Spall would be afforded every courtesy to say what he wished, it was the hope of the Governing Body that [the plaintiff] would also speak for himself as to why he should be considered as suitable for continued education at the College, because without such an exercise the Governing Body would be handicapped in making the decision now required of it.

538. Mr. Grigg-Spall opened the proceedings by producing a document (Appendix B to these minutes) which was handed in with sufficient copies for each member of the Governing Body to read. A pause was permitted for the reading of the document by each member and then Mr. Grigg-Spall spoke to it during which he made (inter alia) the following points: (a) he wished to refer the Governing Body to correspondence which had taken place between the Principal or the Academic Registrar and [the plaintiff] or himself. He was informed that such correspondence had not been circulated to the Governing Body but that the College Solicitor and the Clerk had copies with them which could be made available to the Governing Body if Mr. Grigg-Spall wished to refer to any of them; (b) [the plaintiff] had been prejudiced because he had not been told that the Academic Board's decision was a recommendation to the Governing Body - he had believed that it was a final decision; (c) in the correspondence, the Principal had presented a confusing picture of the dismissal procedure; and there were irregularities in that the terms of minute No. 725 of the Academic Board were not in accordance with the provisions of the Trust Deed; (d) that for the reasons given in the document marked Appendix B to these minutes the Governing Body should take into account the rules of natural justice therein more specifically set out.

[The plaintiff] was urged to speak for himself and in response to questions the following points emerged: (a) he [the plaintiff] found it difficult to make a case because the Academic Board had not told him why he was unfit to be a teacher; (b) the final teaching practice assessment as an examination result was not being contested, but [the plaintiff] should have been warned he was in danger of failing and given an opportunity to make representations; (c) the Principal's letter of 6th December, 1971, had referred to an Academic Board decision; there had been no suggestion that it was a recommendation to the Governing Body. The term "recommendation" was introduced later; (d) in view of these irregularities in Academic Board procedure, the recommendation of the Academic Board should not be accepted.

The Chairman intervened to state that the points made by [the plaintiff] and his friend about the alleged serious irregularities were taken. In response to further questions, [the plaintiff] was invited to give reasons, other than on procedural matters, why his course should be continued. [The plaintiff] quoted his course work grades in the first two years to show that most of them were well above failure and indicated an upward trend. One of the "bones of contention" was that he had been "advised to leave" after the second teaching practice, yet on that practice he had been assessed as D/E, not an outright failure, and had been told by a tutor that the main reason was the length of his hair. In answer to questions, [the plaintiff] made the following additional points: (1) irrespective of teaching practice, he was sure he could pass his other examinations; (2) assuming he had accepted the Academic Board's decision, he should be allowed to take the teaching practice again in the Summer term, or the next academic year; (3) if he was allowed to take and pass the written examinations, it would put him in a much better position if he had to seek a career outside teaching; (4) on the second teaching practice, a tutor who was a member of the Academic Board had made adverse criticism, but [the plaintiff] could not remember that he had been given any advice; (5) on the third teaching practice the teachers had said he was doing well and the Head Teacher had said he had improved, though after fifteen weeks' teaching practice he did not consider any of the three students in his school were ready for teaching in September. The External Examiner has said that as far as he was concerned [the plaintiff] had passed; (6) none of his difficulties had been insurmountable. He had enjoyed his last practice; (7) he had not enjoyed his second practice. It was a bad school which was being run down; (8) he did not accept the advice that he was not fit for teaching. He might not be a good teacher but he contested any implication that he would not make a teacher; (9) he realised at the time the seriousness of his situation after receiving the Academic Board's advice to leave after the fifth term, but he had thought he started the final practice with a clean sheet; (10) he agreed that he had received written notes from tutors about his teaching practices.

Mr. Grigg-Spall asked the Governing Body to take into account the following further points: (1) [The plaintiff] had been put in an impossible position. When Mr. Grigg-Spall had represented a student at Sittingbourne College, reasons for failure had been given; (2) it was a general practice in Universities and Colleges for a student in his final year to be given an opportunity to complete the course; a decision that he must leave negated the whole of the previous two and a half years; (3) [the plaintiff] had asked in his letter of 23rd January 1972 for detailed information and Mr. Hetherington refused it in his letter of 26th January 1972; (4) Mr. Grigg-Spall now requested that a copy of the minutes should be made available to him.

[The plaintiff] and Mr. Grigg-Spall were informed that the Governing Body's decision would be communicated in writing, and withdrew from the meeting at 4.05 p.m.

539. Consideration of the representations The queries regarding the Academic Board procedure were first discussed, and extracts from the correspondence were read out and considered. It was pointed out that Academic Board minute 725, which was known to [the plaintiff] and had been quoted by Mr. Grigg-Spall, made it clear that the Academic Board's decision took the form of a recommendation to its own committee, to which [the plaintiff] had been invited to make representations; it provided the opportunity for making representations to the Academic Board before the matter passed out of the Academic Board's hands which [the plaintiff] complained had been denied him. The College Solicitor gave it as his opinion that whatever words were used by the Principal, the opportunity to appeal had been well demonstrated in letters. The Governing Body agreed after consideration of further points that some weight must be attached to the representations regarding procedure, but that this ground alone was not sufficient for refusing to accept the recommendation of the Academic Board in [the plaintiff's] case. The Governing Body then considered the matter from the point of view of dismissing [the plaintiff] in the seventh term of his course and in so doing took into account the poits raised by [the plaintiff] and those put on his behalf. It was generally felt that [the plaintiff] must have realized the seriousness of his position at the end of the fifth term when he had been advised to leave the College by the Academic Board. Thereafter he could not reasonably complain that he was unaware of the risk he ran in continuing with his course. On general grounds the Governing Body felt that in cases like that of [the plaintiff], where there was clear evidence of academic insufficiency by the end of the fifth term, the Academic Board might care to consider recommending the dismissal of such students rather than merely advising them to leave.

RESOLVED UNANIMOUSLY:

1. that the recommendation from the Academic Board be accepted;
   
2. that this decision be communicated in writing to [the plaintiff], the Principal, the Academic Body, and the Student Body.

RESOLVED: that the minutes of the whole meeting (to be marked "private and confidential") be made available to [the plaintiff] and Mr. Grigg-Spall as requested, subject to their confirmation by the Governing Body at its next meeting.

The meeting concluded at 4.41 p.m.'

I will endeavour to summarise the departures from what are known as the requirements of natural justice - which amount to allegations that in point of procedure the plaintiff has not been treated with the degree of fairness appropriate to the circumstances - which are asserted by the statement of claim. In dealing with this aspect of the case, since in every case what are the requirements of natural justice must depend on all the circumstances, we appreciate that the consequences of dismissal are very serious for the plaintiff, who hopes to earn his living in the teaching profession.

The statement of claim asserts that the plaintiff should have been accorded a hearing by the academic board before they recommended his dismisssal. The assertion is based on the allegation that the academic board in deciding on their recommendation did not confine themselves to consideration of the plaintiff's examination marks and teaching practice grades in reaching their decision: had they done so it is accepted for the plaintiff that natural justice did not require such a hearing. The additional matters which it is alleged were taken into consideration and should not have been taken into consideration unless the plaintiff were accorded a hearing before the decision were these:

1. Reported adverse comments concerning the plaintiff's competence and suitability for teaching following his first teaching practice in 1970.
   
2. A previous adverse view of the plaintiff's attitude to teaching which the academic board had formed following his second teaching practice in 1971.
   
3. The fact that the plaintiff had declined to accept the advice of the principal, following his second teaching practice, that he should leave the college.
   
4. Other matters not specified.

That there were such unspecifed other matters taken into consideration was, it was alleged, to be inferred from the facts: (a) that the plaintiff had passed all his written examinations; (b) that his second teaching practice grade had been D/E, E alone being failure; (c) that the principal's letter to the plaintiff dated 6th December 1971 (already read) indicated that the ground on which the academic board decided was that the plaintiff had 'not satisfied the academic and professional requirements'. Here the point sought to be made is on the words 'professional requirements'; (d) that the academic registrar in a letter to the plaintiff dated 7th December 1971 - a letter which was in connection with a date for the meeting of the sub-committee already mentioned - stated that the issue was primarily that of the plaintiff's work in schools (i.e. teaching practice); (e) that the report of the academic registrar to the governing body (already read) gave as grounds for the decision the need to ensure that only those worthy of entering the teaching profession would be allowed to enter it and that the plaintiff was wanting in a capacity for self-criticism.

It is further asserted that there was a departure from the rules of natural justice in connection with the recommendation by the principal to the governing body. This is based on the following allegations:

1. The principal failed previously to accord a hearing to the plaintiff.
   
2. The principal relied on and adopted the recommendation of the academic board without reconsidering it and the matters on which it was based fairly or at all.
   
3. The principal had set as a member of the academic board when it resolved on 24th November, and of the sub-committee which decided not to vary the decision.

Finally, it was asserted that the proceedings of the governing body on 31st January 1972 involved departure from the rules of natural justice on the following grounds.

1. The report from the academic registrar for consideration by the governing body ('the report') reported opinions arrived at by the academic board or accepted by the board from tutors or examiners (without prior notice to the plaintiff) concerning the plaintiff's attitude to and suitability for teaching without reporting any of the evidence on which such opinions had been formed.
   
2. The report commented adversely on the fact that the plaintiff had not accepted those opinions.

3. The plaintiff was given no opportunity to see or hear or challenge any evidence on which those opinions were based, or to learn the specific nature or the detail of the case against him.
   
4. The governing body had before it no evidence against the plaintiff save the contents of the report.
   
5. The governing body treated the report as a binding assessment of the plaintiff's academic and professional competence.
   
6. The governing body failed to call for or put before the plaintiff any of the reports concerning his three teaching practices referred to in the report or to acquaint itself with or inform the plaintiff of his final practice grade.
   
7. The governing body failed to enquire into the conflict between the report and the plaintiff's statement that the external examiner had said to him that so far as he was concerned he had passed.
   
8. The governing body had failed to call before it the authors of reports on the plaintiff referred to in the report or the tutors or examiners whose assessments of the plaintiff were therein metioned, or otherwise to inform itself of the matters on which adverse views of the plaintiff had been based.
   
9. The governing body took into account the fact that the plaintiff had declined to accept advice to leave after his second teaching practice without enquiring into the matters on which the advice was based.
   
10. The governing body refused to allow any witnesses to be called.
    
11. In the circumstances numbered 1 to 10 above the plaintiff was prevented from knowing the true case against him.
    
12. The governing body did not have before it evidence which was sufficient in the circumstances to determine whether or not the plaintiff ought to be dismissed.

The application to strike out this part of the re-amended statement of claim must be approached on the assumption that the contractual relationship pleaded is well founded. On this assumption, the sole question is whether the facts averred in support of the several pleas of denial of natural justice considered in the light of the documents already referred to are capable of amounting to the denials of natural justice alleged. If any of them arguably does so, it would be wrong to strike it out at this juncture. But counsel for the plaintiff properly agreed when opening the appeal that if, looking at all the material placed before us, we were of the clear view that the pleas of a denial of natural justice were unsustainable in whole or in part, such pleas should be struck out. We therefore deal with this issue on that basis.

All those matters being alleged to be breaches of contract, we approach the question whether they are sustainable by first examining what the pleaded contract is which the defendants are alleged to have broken. We do not think it necessary to refer to the many cases on natural justice to which counsel drew our attention. The principles are clear. It is their application to the pleaded facts of this case which is alone relevant.

As already mentioned, the complaints in relation to the actions of both the academic board and the principal both assert that each should have accorded the plaintiff a hearing, especially in the case of the academic board if they were going to take into account matters other than his examination marks and teaching practice grades when reaching their decision. Such contractual obligations on the academic board and on the principal can arise, if at all, only by implication from the contract alleged. There is no express provision for such hearings. By way of contrast, cl 24 of the trust deed expressly requires the governing body (save in an emergency, which is not suggested in this case) not to resolve to confirm a recommendation of the principal for the expulsion of a student 'save after considering such representations in writing or in person as the student may wish to make'. There being this express requirement in the case of the body who alone possessed the power to expel, it is not easy to see on what principles of law an implied obligation of the kind alleged should be imposed on either the academic board or the principal who have the power only to make recommendations, and in the case of the academic board a limited power to make recommendations for expulsion in the case of a student whose standard of work is unsatisfactory.

The duty of the academic board under the alleged contract was in our view to form an unbiassed assessment of his standard of work based on the entirety of his record and potential. This was their function. If they thought it relevant in making that unbiassed assessment to take into account all or any of the matters we have already listed item by item under this head - for example, adverse comments on his competence and suitability for teaching following his first teaching practice in 1970, or a similarly adverse view following his second teaching practice in 1971 - we think they are entirely free to do so. We see no unfairness in the academic board judging those matters on all relevant material available to them from whatever source, and in their so doing without first hearing the plaintiff. It was suggested that by the time the matter reached, first, the principal, and then the governing body, the plaintiff did not know what was said against him because he had not previously received a hearing before the academic board. We think this contention is unfounded. The plaintiff knew perfectly well what was said against him, at least when he saw the principal on 6th December 1971, and, if possible, even more certainly when the report was communicated to him well before the governing body meeting on 31st January 1972. The plaintiff knew that he had failed his final test before the external examiner. (See paragraph 4, as well as everything else in that long and carefully prepared document.) Yet it is said that the plaintiff was entitled to have disclosed to him and to challenge at a hearing before the academic board all the material on which the academic board's assessment was based.

Some reliance was placed in this connection on the decision of the Divisional Court in R v Senate of the University of Aston, ex parte Roffey [1969] 2 All ER 964, [1969] 2 QB 538, and in particular on a passage in the judgment of Donaldson J at p 554. Several observations require to be made about that case. First, everything in the judgments, both of Donaldson J and of Blain J, was obiter, since the Divisional Court unanimously refused the relief sought by way of certiorari. Secondly, Lord Parker CJ expressed considerable doubts about the view of the majority that there had been a breach of the rules of natural justice. Thirdly, the views of Blain J do not go as far as those of Donaldson J (541, 542). Fourthly, the brief report of the arguments of counsel for the university suggests that certain admissions were made which were certainly not made in the present appeal. Fifthly, the majority judgments of Donaldson and Blain JJ (especially the former) have been the subject of trenchant criticism by Professor Wade in an article in the Law Quarterly Review (1969) 85 LQR 468 not least by reason of the fact that it does not appear to have been appreciated that the relationship between the applicants and the university was one of contract. Professor Wade points out, inter alia, that certiorari would - to say the least - be an unusual remedy for breach of contract. Yet no one appears to have examined what the precise contractual relationship between the applicants and the university was.

The examiners in that case had power (p 544) to expel students who failed to satisfy them as an alternative to either of two possible courses of action which the examiners were entitled to take. Donaldson J said (p 554):

'I can understand it being argued on the regulations that regard was to be had primarily and possibly exclusively to the examination results and performances in non-examinable subjects. However, the examiners themselves did not adopt this approach, as I think rightly, and they considered a wide range of extraneous factors, some of which by their very nature, for example personal and family problems, might only have been known to the students themselves. In such circumstances and with so much at stake, common fairness to the students, which is all that natural justice is, and the desire of the examiners to exercise their discretion on the most solid basis, alike demanded that before a final decision was reached the students should be given an opportunity to be heard either orally or in writing, in person or by their representative as might be most appropriate. It was, in my judgment, the examiners' duty and the student's right that such audience be given. It was not given and there was a breach of the rules of natural justice.'

The reason for this view was, apparently, that the examiners took matters (referred to as 'extraneous' matters) other than examination results into account before reaching their decision whether or not to expel the students. It is not necessary in this case to decide whether that passage which we have quoted is correct in point of law. It may on some future occasion require reconsideration. But if right, it must be clearly taken as limited to the case there in question and not as of general application. In the present case the academic board (unlike the examiners in the Aston University case p. 538) had no power to expel. It only had power to recommend expulsion when the student's standard of work was unsatisfactory. The 'extraneous' matters referred to by Donaldson J as having been wrongly taken into account by the examiners without giving the students a hearing were not matters which in the instant case the academic board were entitled to or did take into account. Those matters were, under the hierarchical structure in question in this case, solely for the governing body who were enjoined by their trust deed to grant a hearing or to entertain written representations before taking their final decision.

It follows that the plaintiff can in our view get no assistance from the judgment of Donaldson J in the Aston University case, even if it be correct in relation to the facts of that case, as to which, as we have said, we express no concluded view.

There is not a shred of evidence that the academic board took anything into account which it was not entitled to take into account. The academic board was, in making its assessment with a view to deciding on its recommendation, plainly entitled to take everything relevant into account - marks, grades, opinions, individual internal and external assessments, including an assessment of a want of capacity in the plaintiff for self-criticism with regard to his teaching practice performance, and all other matters of which it was by their nature and constitution by far the most competent judge. We can see no reason for implying into the contract as pleaded a term that the academic board must hear the student before reaching a conclusion which when reached did not finally determine the student's future, for that matter had still to go to the principal and thereafter, if, but only if, he thought fit, to the governing body. We see nothing unfair that there should have been no hearing before the academic board. The academic board was well aware that his second teaching practice grade had been D/E - a marginal escape from the failure which E grade would indicate. It did not require the plaintiff's presence to make the academic board aware that he had not actually failed on that occasion, but merely had almost done so. Nor does the complaint already mentioned about the use of the phrase 'professional requirements' in the principal's letter of 6th December 1971 assist the plaintiff. In the context, this simply meant that in the academic board's opinion the plaintiff would not attain the professional standards required of a teacher. This was legitimately a part of what we have already described as an unbiased assessment of the entirety of his record and potential. The same observations apply to the other matters of which complaint is sought to be made.

Counsel for the plaintiff's argument in relation to the academic board (and, indeed, in relation to the proceedings before the governing body) amounted almost to a contention that the proceedings at both stages had to be conducted as if the parties were litigants before a court or before a legal arbitrator. We emphatically disagree. It follows that we are satisfied that there was no breach of natural justice by the academic board and those allegations in the re-amended statement of claim must be struck out.

We can deal more shortly with the alleged failure of natural justice in that there was no formal hearing before the principal before he passed the academic board's recommendation to the governing body. We can see no possible reason why there should have been. Like the academic board, the principal had no power to expel a student, but only to recommend his expulsion. What he was passing on as his own recommendation was the academic board's recommendation in relation to the plaintiff's unsatisfactory standards of work. He could have declined to pass it on. But he decided to pass it on as something with which he agreed. He must clearly have applied his mind to the question whether he should accept the recommendation; otherwise he would not have passed it on as he did. We see no grounds for implying a term that the recommendation of the academic board should be formally re-opened at a hearing before the principal before he decided whether or not to pass it on as his own. And since we have reached the conclusion that there was no denial of natural justice by the academic board, the allegation that the principal was himself guilty of want of natural justice in passing on a recommendation of the academic board itself arrived at in breach of natural justice fails in limine As to the complaint that the principal had sat as a member of the academic board, cl 23 (i) expressly provides that the membership of the academic board should include the principal as chairman. There can be no foundation for this complaint. The relevant allegations in relation to the principal must therefore also be struck out.

We have already mentioned the allegations in relation to the governing body. The basic argument was that the governing body was in serious error in refusing to re-open the academic board's assessment of the plaintiff's fitness to be a teacher on the grounds stated, in refusing to allow witnesses to be called, examined and cross-examined in this connection and to reveal to the plaintiff all the evidence, opinions and reports on which that assessment had been reached by the academic board. Counsel for the plaintiff sought to reinforce his argument on this branch of the case by contending that, if we took the view (as we do) that there was no entitlement to a hearing before the academic board, it became the more essential that their assessment should be open to the fullest possible challenge in review before the governing body, who, unlike the academic board, had the power to expel, and that it was a complete denial of natural justice that the governing body should accept without challenge the academic board's assessment of the plaintiff's fitness to be a teacher.

We have already pointed out that the hearing before the governing body was neither a law suit nor a legal arbitration. It was a hearing designed to enable the governing body to decide whether, notwithstanding the academic board's and principal's recommendations, there were any reasons why those recommendations should not be accepted. It was neither a rehearing nor a retrial of all those matters which led to the academic board's and principal's recommendations. It is no criticism of the governing body to say that, looking at its composition as contained in cl 5 of the trust deed, it is not, and was not intended to be, a body expert in the same fields as those in which the academic board was expert.

The purpose of the hearing before the governing body is not, as we think, that there should be a detailed review of the reasons for or against the evidence on which the recommendation had been arrived at. The purpose is to give the student a fair chance to show why the recommendations should not be accepted. It is said that without all the evidence, opinions and reports the student could not fairly present his case. But the reasons for the recommendations are set out with fullness and fairness in the report. The plaintiff was told in three closely typed pages why the recommendations were made and what the relevant facts were. He was not told the details of the reports nor (for reasons of confidentiality which in our view both the governing body and the academic board were entitled to respect) his final grading, though as we have already said, it is obvious both that he had failed to satisfy the external examiner and that he knew that he had so failed.

Though no exact analogy can be drawn between a hearing of the kind now in question and proceedings before inspectors appointed under s 164 of the Companies Act 1948, some of the arguments advanced before us on behalf of the plaintiff resembled the arguments unsuccessfully advanced before this court in Re Pergamon Press Ltd [1970] 3 All ER 535, [1971] Ch 388. We refer, in particular, to what Lord Denning MR said at 399, 400:

'The inspectors can obtain information in any way they think best, but before they condemn or criticise a man, they must give him a fair opportunity for correcting what is said against him. They need not quote chapter and verse. An outline of the charge will usually suffice.'

The governing body is master of its own procedure. Its members are not judges in a law court, nor are they legal arbitrators. They are entitled to such flexibility in their procedure as they think the particular case under consideration requires. We have a full and careful minute of their proceedings. No challenge was sought to be made before us as to the factual accuracy of the minute which extends over five closely typed pages. The governing body was right in saying that it was not a legal tribunal. It was right in saying that it had to provide a fair hearing from reasonable people, a minute which shows that it was well aware of its obligations in relation to natural justice. It was right in saying that it had to decide whether to accept or reject the recommendation of the academic board. It was right in saying that the plaintiff must have an opportunity of showing why he should be allowed to complete his course. The sole remaining question is whether it was right in saying that it was not their business to interfere with the academic board's assessment of the plaintiff's academic and professional competence. As we have said, the plaintiff clearly knew what that assessment was: the report sets it out in detail. Was the governing body then bound to act as a court of appeal from that assessment? We do not think so. The governing body recognised that it was not bound by the assessment to expel the plaintiff. On that, the crucial issue, its discretion, was unfettered. We see no reason why it should not decline to re-open or review that assessment. It was not the competent body to make the assessment. The academic board was the competent body. We can see no justification in law for the argument that the plaintiff was entitled as a matter of legal right to a complete rehearing with witnesses and discovery of documents and the reasons for and the evidence leading to that assessment. Nor can we see any reason why it should, in effect, not say: 'This is the assessment. You know what is set out in the academic report signed by the academic registrar because it was sent to you some while ago. Now tell us what the reasons are why you say you should remain in the college and complete your course.' In substance, this is what it did do. Its duty was to be fair. It was fair. There could have been many reasons why the recommendations should not have been accepted - illness, parental or family problems, emotional difficulties and others. Nothing of this kind was advanced at the hearing. We have read and re-read the proceedings recorded in the minutes. We see no reason to think that there was any vestige of unfairness.

In truth, the detailed complaints made against the governing body all rest on the same basic assumption, which in our view is fallacious: that the plaintiff was entitled as of right to a full legal trial on every detailed matter, with discovery, examination and cross-examination of witnesses. Once it is clear that that assumption is unfounded in point of law, the suggested justification for the detailed complaints to which we have referred disappears, for each of them presupposes the plaintiff to be possessed of a right which was not his.

It is perhaps not irrelevant to observe that the hearing before the governing body gave to the plaintiff, if he so wished, the opportunity of having taken into account what in the Aston University case Donaldson J called 'extraneous' factors; that is to say, factors relevant to the issue of expulsion, other than examination and grading results and matters solely relevant to his academic capacity, which 'extraneous' factors the examiners in that case were criticised for taking into account without a hearing. But even in that case (as we read the report) it was not suggested that had a hearing taken place the applicants would have thereby been enabled to re-open their markings and academic assessment.

In our judgment, the allegations of breach of natural justice by the governing body cannot be supported and those allegations, too, must be struck out. In the result, therefore, all the allegations of a failure of natural justice in the re-amended statement of claim should be struck out.

Since the plaintiff has therefore failed on all points, the appeal must be dismissed.

We would add this. It will be appreciated that for the governing body to accept a recommendation such as this must be distasteful to it; but in a proper case the responsibility cannot be shirked if the public interest in competent teaching in schools is to be protected.

DISPOSITION

Appeal dismissed.

SOLICITORS

Asshetons, agents for Girling, Wilson & Harvie, Herne Bay (for the plaintiff);
Lee, Bolton & Lee, Canterbury (for the defendants).