HEARING DATES 1, 2, 3, 4, 8 December 1986 & 26 February 1987
Education - University - Visitor's jurisdiction - Dismissal of lecturer - Claim for declaration that dismissal ultra vires - Alleged failure by university to follow procedures laid down in university statutes and regulations - Application for stay of proceedings pending consideration by visitor - Whether dispute within exclusive jurisdiction of visitor - Subsequent application to strike out proceedings
HEADNOTE
In 1973 the plaintiff was appointed a lecturer in sociology at the University of Bradford and thus became an employee of the university under a contract of service, the holder of office in and membership of the university, which by Royal Charter was a corporation within a visitor's jurisdiction, and a corporator. The university purported to dismiss the plaintiff in 1983 and she brought an action claiming, inter alia, a declaration that the university's decision to dismiss her was ultra vires, null and void by reason of non-compliance with the disciplinary rules and procedures contained in the university's charter, statutes, ordinances and regulations, and incorporated in the contract; she also claimed damages for breach of contract or alternatively arrears of salary. The university applied for an order to stay the proceedings under R.S.C., Ord. 18, r. 19, or the court's inherent jurisdiction, on the ground that the proceedings concerned purely domestic matters within the visitor's exclusive jurisdiction and for the stay to continue until the plaintiff should have petitioned the visitor and the visitor should have adjudicated upon those matters. The judge refused the application. On appeal, the Court of Appeal dismissed the appeal.
On the university's appeal to the House of Lords, leave having been granted to the university to amend the relief sought to that of an order to strike out the statement of claim on the ground that the court had no jurisdiction to entertain the action:-
Held
- allowing the appeal - 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
Patel v. University of Bradford Senate[1978] 1 W.L.R. 1488; In re Wislang's Application [1984] N.I. 63 and Hines v. Birkbeck College [1986] Ch. 524 approved.
Casson v. University of Aston in Birmingham [1983] 1 All E.R. 88 considered.
Per curiam. 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 its misapplication. This redress may involve ordering the payment of arrears of salary where the visitor decides that the employment has not been determined, or compensation where the complainant has accepted the wrongful repudiation of his contract of employment.
Decision of the Court of Appeal [1986] Ch. 381; [1986] 2 W.L.R. 111; [1986] 1 All E.R. 217 reversed.
INTRODUCTION
Appeal from the Court of Appeal.
This was an appeal by the defendant, the University of Bradford, from the judgment dated 30 October 1985 of the Court of Appeal (Fox and Lloyd L.JJ. and Sir George Waller) dismissing an appeal by the university from the judgment and order dated 5 February 1985 of Whitford J. refusing an application by the university for stay of the action brought by the plaintiff, Brenda Thomas, pending reference of various matters to the visitor of the university.
The facts are stated in the opinion of Lord Griffiths.
COUNSEL
Leolin Price Q.C. and Hubert Picarda for the appellant, University of Bradford.
The question concerning the jurisdiction of a university visitor is one of very great interest to universities throughout the Commonwealth. The respondent, Miss Thomas, became with effect from 1 October 1973 (i) a member of the academic staff and lecturer in sociology at the university (ii) an employee of the university under a contract of service and (iii) the holder of an office in and a member of the university within the meaning of the charter and statutes. The decision to dismiss Miss Thomas was taken by the council of the university on 10 February 1983. There is no evidence or pleading as to the precise nature of the dispute but, as mentioned in the judgment of Fox L.J. in the Court of Appeal, it related to the questions with whom and under whose direction Miss Thomas was to work. There is no evidence or pleading that the case of Miss Thomas was or is that her conduct did not justify removal under statute 30. Her case was and is simply that the correct procedure was not followed.
In September 1984 Miss Thomas commenced proceedings in the Chancery Division and subsequently the university applied for an order under R.S.C., Ord. 18, r. 19, or under the inherent jurisdiction of the court, that all further proceedings in the action might be stayed on the ground that the matters pleaded in paragraphs 1-10 of the statement of claim were matters which fall within the exclusive jurisdiction of the university visitor and that such a stay of the proceedings should extend until the plaintiff should have petitioned the visitor in relation to the matter set forth in those paragraphs and the visitor should have adjudicated thereon. The university would now seek an order that the statement of claim be struck out on the ground that the court has no jurisdiction to entertain the action. In relation to matters of procedure Miss Thomas is bound by the internal regulations of the university which provide as a last resort an appeal to the visitor. This is an exclusive jurisdiction in which the courts have no part. In Hines v. Birbeck College [1986] Ch. 524 Hoffmann J. declined to follow the decision of Whitford J. in the present case.
Exclusive jurisdiction of the visitor.
Where there is a dispute which affects membership of the university and the complaint of the member is one which makes the allegation that the university has not faithfully and properly followed its prescribed procedures, that is a matter to be determined under the procedures laid down under the university statutes. The jurisdiction of the visitor is recognised as exclusive, that is, the courts do not assert jurisdiction where a matter comes within the jurisdiction of the visitor. The university concedes that there may be issues arising out of the contract of employment of a member of the university which do not involve an interpretation or the application of the charter, statutes ordinances or regulations of the university. Such matters would not come within the exclusive jurisdiction of the visitor, for example, a claim by a university lecturer for back payment of salary. For the justification of the present existence of the visitatorial jurisdiction the judgment of Sir Robert Megarry V.-C. in Patel v. University of Bradford Senate [1978] 1 W.L.R. 1488, 1499 et seq., is adopted.
It is established by authorities going back over many centuries that in all eleemosynary foundations, of which a university is an example, there is a functionary called the visitor whose duty is to supervise the government and regulation of the foundation and to see that the private laws given by the founder to his foundation for its good government are observed. In this supervisory capacity he possesses a jurisdiction to hear and determine disputes which may arise within the foundation, and to enforce and interpret the private laws of the founder as enshrined in the statutes, ordinances and regulations of the foundation. The classic statement of principle is that of Holt C.J. in Philips v. Bury (1694) Skin. 447, 485, whose dissenting judgment was upheld by the House of Lords. Reliance is also placed on the well known statement of Sir Samuel Romilly in his argument in Ex parte Kirkby Ravensworth Hospital (1808) 15 Ves. 305, 311, that "A visitor is ... 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." Where it can be shown in a particular case that there has been an excess of jurisdiction by the visitor judicial review will lie. This was accepted by Holt C.J. in Philips v. Bury, Skin 447. But subject to this exception, where the visitor has jurisdiction it is an exclusive jurisdiction and the courts will not hear appeals on the merits. Thus Lord Mansfield C.J. observed in St. John's College Cambridge v. Todington (1757) 1 Burr. 158, 200, that "it is now settled and established, (since the case of Philips v. Bury in Dom.Proc.) 'that the jurisdiction of the visitor is summary and without appeal from it'." See also Rex v. Bishop of Chester (1747) 1 Wm.Bl. 22, 26, per Wright J. A good example of the application of the principle is Reg. v. Dean and Chapter of Chester(1850) 15 Q.B. 513, 520.
A landmark in the development of this branch of the law is Whiston v. Dean and Chapter of Rochester (1849) 7 Hare 532. For a description of this case and a summary of the litigation instituted by the plaintiff: see Smith, "The Exclusive Jurisdiction of the University Visitor" (1981) 97 L.Q.R. 610, 625-626.
The Court of Appeal fell into error in holding that a contractual claim for damages must inevitably fall outside the visitor's jurisdiction, even where it is between a corporator and his or her university. No previous English or Northern Ireland decision has gone that far. Indeed, the dictum of Kindersley V.-C. in Thomson v. University of London (1864) 33 L.J. Ch. 625, 634, suggests the contrary, namely, that contracts between corporator and university involving exclusively internal or domestic matters were within the exclusive jurisdiction of the visitor. Their Lordships were referred to a series of articles about the Court of Appeal decision in this case, namely (1986) 136 N.L.J. 567-570; 665-666 (Dr. Peter Smith).
Rex v. Dunsheath, Ex parte Meredith [1951] 1 K.B. 127, 131, 132, 134 and Thorne v. University of London [1966] 2 Q.B. 237, 242, are recent cases where the courts have refused to intervene in matters within the province of the visitor. The position in the modern law in well summed up by Sir Robert Megarry V.-C. in Patel v. University of Bradford Senate [1978] 1 W.L.R. 1488, 1493E: "On the authorities it seems to be clear that the visitor has a sole and exclusive jurisdiction, and that the courts have no jurisdiction over matters within the visitor's jurisdiction." The judgment of Brightman J. in Herring v. Templeman [1973] 2 All E.R. 581, affirmed by the Court of Appeal on different grounds [1973] 3 All E.R. 569, is authority for the proposition that an allegation of breach of natural justice in any university proceedings below the level of the visitor is a matter for the internal procedure of the university. It is only if there is a breach of natural justice in proceedings before the visitor himself that the complainant can apply to the High Court for judicial review.
Membership of the University.
Miss Thomas by becoming a member of the academic staff of the university subjected herself to the statutes, ordinances and regulations of the university. Her position is to be contrasted with that of, for example, secretaries, typists, porters and gardeners employed by the university. Reliance is placed on the dictum of Kelly L.J. in In re Wislang's Application [1984] N.I. 63, 81, "... the authorities show ... that matters may well be in breach of a contract of employment, yet within visitatorial jurisdiction, if those matters are of an internal domestic character or touch upon the interpretation or execution of private rules and regulations of the university." In the present case, membership and employment at the university are co-terminous and therefore the termination of the contract of employment ipso facto involves termination of membership of the university and therefore questions arising therefrom come peculiarly within the statutes, ordinances and regulations of the university.
A major example of matters which do not go up through the visitatorial procedure are any rights as between the corporation and persons who are non-corporators. The university concedes that the visitatorial jurisdiction does not oust the statutes of the realm. Further, it is not disputed that such matters as health and safety regulations applicable to laboratories and the kitchens of colleges of a university fall outside the purview of the visitor. But on the central issue in this appeal Hoffmann J., applying established law, in Hines v. Birkbeck College [1986] Ch. 524, came to the opposite conclusion to that of Whitford J. in the present case.
As to Casson v. University of Aston in Birmingham [1983] 1 All E.R. 88, where Lord Hailsham of St. Marylebone L.C. gave a decision in his capacity as visitor of the university, the present type of argument does not appear to have been put before him as it was in Hines case [1986] Ch. 524, and in the present case before Whitford J. The exclusivity of the courts' jurisdiction in relation to matters of contract to which the Lord Chancellor adverted is not of assistance here, and in any event, in the circumstances it was obiter.
It is emphasised that the judgment of Whitford J. [1986] Ch. 381, is contrary to a long line of established authority. Error in it arises from dividing matters of contract from membership of the university. But it is under her contract that Miss Thomas voluntarily became a member of the university and therefore became subject to its statutes, ordinances and regulations and therefore matters of dispute arising out of the contract come under the procedures laid down by the statutes which in the last resort give recourse to the visitor.
Commonwealth authority.
Bell v. University of Auckland [1969] N.Z.L.R. 1029 recognises (a) the exclusivity of the jurisdiction of the visitor where it is a matter relating to the domestic law of the university, and (b) that there can be a claim for damages if it covers that part of an agreement which does not cover the domestic law of the university.
Vanek v. Governors of the University of Alberta [1975] 5 W.W.R. 429 supports the proposition that the enforcement of the regulations or statutes of the university are within the exclusive jurisdiction of its visitor. The question then arises: Has there been fairness within the procedure laid down by the domestic law? This in the first place is for the visitor to determine and not the courts. It is only if the visitor himself has acted unfairly that his actions are subject to judicial review.
In Murdoch University v. Bloom and Kyle [1980] W.A.R. 193, the Supreme Court of Western Australia held that the visitor has jurisdiction over all matters relating to the internal affairs of the corporation but the judgment of Wallace J. is to be preferred in that he held that both claims in the plaintiff's petition were within the jurisdiction of the visitor in that case.
As to Norrie v. Auckland University Senate [1984] 1 N.Z.L.R. 1029, it is distinguishable. The New Zealand Court of Appeal based its decision on the construction of New Zealand Statutes and held that the courts and the visitor had concurrent jurisdiction.
Availability to the visitor of the power to award compensation for damages. The wide power given to visitors in relation to domestic disputes within the domus includes the power to award compensation to a wronged corporator as part of the "power of judging and giving relief upon complaints and appeals": St. John's College Cambridge v. Toddington, 1 Burr. 158, 202. Re-instatement would inevitably carry arrears of pay and the plenary powers enjoyed by a visitor over domestic matters would enable him to award further compensation as well as costs. On that footing it would be appropriate for the House to direct that the action of Miss Thomas should be wholly struck out. In Thorne v. University of London [1966] 2 Q.B. 237, there was a claim for damages. It was dismissed on the ground that it was wholly misconceived. But the court did not suggest that the visitor could not in an appropriate case award compensation. Likewise, in Patel v. University of Bradford Senate [1978] 1 W.L.R. 1488, the writ contained a claim for exemplary damages. That was not an obstacle to striking out the whole of the claim. Again, in Herring v. Templeman [1973] 2 All E.R. 581 the fact that there was a claim for damages proved not to be a bar to striking out the whole of the statement of claim. In Murdoch University v. Bloom and Kyle [1980] W.A.R. 193, 198, Burt C.J. held that he saw no reason why if the visitor had jurisdiction over a complaint he would not also have power to award damages where appropriate. The opinions to the contrary in Casson v. University of Aston in Birmingham [1983] 1 All E.R. 88, and in In re Wislang's Application [1984] N.I. 63 and in Dr. Smith's article, 97 L.Q.R. 610, 642, are wrong on this point.
Picarda, following.
The Crown is visitor of many universities. All modern universities, being created by Royal Charter, are Royal foundations, and the Crown is deemed to be the visitor thereof unless the Crown has appointed a special visitor. Where the visitor is the Sovereign in person and no special appointment has been made the Sovereign's visitatorial powers are exercised by the Lord Chancellor: see Dr. J. W. Bridges' article, "Keeping Peace in the Universities: the role of the visitor" (1970) 86 L.Q.R. 531, 534, 535. If a dispute arises in these instances an alternative to the dispute being heard by the Lord Chancellor is that it should be heard by commissioners appointed for the purpose under the Great Seal: see Shelford, Law of Mortmain (1836); Eden v. Foster (1725) 2 P.Wms. 325 and Tudor on Charities, 7th ed. (1984), 323.
Michael Beloff Q.C. and Brian Langstaff for the plaintiff, Miss Thomas.
The general submission is that the enforcement of any rights arising out of the contract of service between an employee of the university where that employee is a member of the university are matters for the ordinary courts of law and not for the jurisdiction of the visitor. The issue raised in this appeal is not as to the existence or exclusivity of the visitatorial jurisdiction but as to its extent. As Hoffmann J. observed in Hines v. Birkbeck College [1986] Ch. 524, 542, 543, the law on the ambit of visitors' jurisdiction is in an unsatisfactory state and as Woodhouse P. observed in Norrie v. Auckland University Senate [1984] 1 N.Z.L.R. 129, 134, the law is in a state of uncertainty on the matter. Therefore, any suggestions that there is an unbroken line of authority which would dispose of this appeal in the university's favour is unfounded. The present type of case has only very recently been ventilated in the courts: see Dr. Peter Smith's article, "Visitation of the Universities: a Ghost from the Past - 1" (1986) 136 New Law Journal 484-486.
Once one is in the realm of contract the jurisdiction of the visitor is pro tanto diminished. The advance of contract has pro tanto diminished the jurisdiction of the visitor in matters of status. It would be an anomalous situation if a person, simply because he was a member of a university, was denied access to the courts although other employees of the university were not denied that right. This anomaly is highlighted if the present issue is to be founded on the decision in Philips v. Bury, Skin. 447, decided some 290 years ago, where the question of contract was never raised.
Reliance is placed on the following propositions:
(1) The statement of claim establishes that there is a claim for monetary redress.
(2) The courts are very familiar with the proper construction of a contract and the procedural safeguards arising thereunder and with determining whether those safeguards have been breached.
(3) There is no suggestion in the present case that the plaintiff actually and specifically agreed to the visitor determining any matters of dispute arising out of her contract. It is notable that no such point is pleaded in the defence and there is no positive assertion that the visitor should have jurisdiction over these matters.
(4) On this branch of the argument attention is drawn to Bridge, L.Q.R. 531, 540-541. Reliance is placed on the article of Dr. Peter Smith: "The Exclusive Jurisdiction of the University Visitor" (1981) 97 L.Q.R. 610, 614-615, 635, and in particular, the passage at pp. 642-643, where he states his conclusion that the visitor can have no jurisdiction over a contractual relationship which is governed by the general laws of the realm. Rex v. Bland (1740) 7 Mod. 355, 356, is authority for the proposition that the visitor has no jurisdiction where any laws of the Kingdom are involved.
Where the dispute between a member and the university relates to questions of contract the matter cannot properly be called purely domestic or in the realm of the internal arrangements and dealings with regard to the government and management of the university. The plaintiff's claim relates to her contract of employment which imposes upon her personal obligations and gives her personal rights which arise exclusively out of the terms of such contract. Her claim is based upon the general law of contract and upon rights created by the application of such general law to the particular agreement into which she and the defendant university entered. The Court of Appeal was right in holding that her status of membership of the university was incidental to the contract of employment and not vice versa: see per Lloyd L.J. [1986] Ch. 381, 412G - 413A.
(5) In Philips v. Bury, Holt K.B. 715, 723-724, Holt C.J. gave two reasons for the existence of the visitatorial jurisdiction. He drew a distinction between those bodies founded for public advantage and those founded for private advantage. Moreover, the Chief Justice derived the visitor's exclusive rights from the proprietary rights that the founder of the corporation enjoyed. These two reasons give no sound rationale in modern times. In particular, it would be extraordinary nowadays to contend that the university was founded for private advantage. Holt C.J.'s explanation does not suffice at the present time to give a university visitor jurisdiction over contractual matters. Of course there are certain matters which simply are not justiciable by the courts, for example, the award of university degrees or medals. This is analogous to the situation stated by Atkin L.J. in Balfour v. Balfour [1919] 2 K.B. 571, 578, that there are certain domestic matters which do not result in enforceable legal relationships between the parties. The position is not that there is another jurisdiction which has exclusive jurisdiction over the matters in question but that the matters themselves are not justiciable by the courts. As to Holt C.J.'s concluding remarks (i.e. "I cannot sever the charity from the yoke") in Philips v. Bury, Holt K.B. 715, 729, these again have no bearing on matters of contract for the Chief Justice in that passage was directing his observations to persons who, as recipients of charity, must accept the visitor's authority.
As to Rex v. Bishop of Ely (1794) 5 Durn. & E. 475, the basis of that decision was that the court was ignorant of private statutes. This shows an aspect of the rationale of the exclusive jurisdiction of the visitor which has long since disappeared. As to the reliance placed on the statement of Sir Samuel Romilly in Ex parte Kirkby Ravensworth Hospital, 15 Ves. 305, 311, it is to be remembered that it was only a statement made in the course of argument by Sir Samuel as counsel in that case. Further, it does not answer the question as to the extent of the visitor's jurisdiction: see per Lloyd L.J. [1986] Ch. 381, 413H. As to Reg. v. Bishop of Chester, 1 W.Bl. 22; Reg. v. Dean and Chapter of Chester, 15 Q.B. 513 and Whiston v. Dean and Chapter of Rochester, 7 Hare 532, the observations of Sir George Waller [1986] Ch. 381, 422E are adopted; the courts in those cases treated them as relating to matters of status.
Thomson v. University of London, 33 L.J.Ch. 625 is an important case for it is the start of the modern line of cases. The dividing line between the exclusive jurisdiction of a visitor and the jurisdiction of the courts is that propounded by Kindersley V.-C., at p. 634 where it is plain that the Vice-Chancellor was assigning to the court certain contracts between the university and members of the university in addition to contracts between the university and non-corporators, but that he was assigning to the visitor contracts relating to the mere management of the domus.
The modern cases. In Reg. v. Dunsheath, Ex parte Meredith [1951] 1 K.B. 127, the issue was whether a mandamus would go in respect of a refusal by the Chairman of convocation to call an extraordinary meeting on the ground that the motion relating thereto as drafted was out of order. The Divisional Court held that the matter was essentially for the visitor because it was a domestic matter. The observations of Lord Goddard C.J., at p. 132, are obiter. There is nothing in that passage that indicates that Lord Goddard was considering allegations of breaches of contractual rights. Again, in Thorne v. University of London [1966] 2 Q.B. 237, it was held that the matter was essentially for the visitor because it was a domestic question, namely, a claim arising out of the marking of examination papers.
As to Herring v. Templeman [1973] 2 All E.R. 581, in the Court of Appeal [1973] 3 All E.R. 569, the question at issue was treated as one of contract. Patel v. University of Bradford Senate [1978] 1 W.L.R. 1488 has to be viewed in relation to the circumstances that it related to examination results. It is not disputed that such matters are not justiciable by the courts: see per Whitford J. [1986] Ch. 381, 387F-G.
In re Wislang's Application [1984] N.I. 63 was a proceeding by way of judicial review. Kelly L.J. inverts the test propounded by Kindersley V.-C. in Thomson v. University of London, 33 L.J.Ch. 625. It is emphasised that it is only if matters relate solely to the mere management of the affairs of the university that the issue is properly within the visitatorial jurisdiction. Accordingly, In re Wislang's Application [1984] N.I. 63 should not be followed. The respondent relies upon and adopts as part of the present argument the decision of Lord Hailsham of St. Marylebone L.C. on behalf of the visitor in Casson v. University of Aston in Birmingham [1983] 1 All E.R. 88, 91, paras. 11, 12, and 14, where the Lord Chancellor accepts the proposition in an article by Dr. Peter Smith in 97 L.Q.R. 610 that the visitor can have no jurisdiction in any matter governed by the common law, for example, the law of contract. As regards Hines v. Birkbeck College [1986] Ch. 524, it was wrongly decided.
The Commonwealth cases.
In Vanek v. Governors of the University of Alberta [1975] 5 W.W.R. 429, 434, 442, there are two passages in the judgment which suggest that if the contractual aspect of the case had been before the court different considerations would have applied. As to Murdoch University v. Bloom and Kyle [1980] W.A.R. 193, it is conceded that the claim there was founded on a contract of service and was not related to the university statutes or regulations. However, that factor, although relevant to the majority judgment, was not decisive of it. In Norrie v. University of Auckland Senate [1984] 1 N.Z.L.R. 129, 135 , lines 30 to 50, Woodhouse P. was clearly impressed by policy considerations but his observations on the nature of modern universities is pertinent to the present case. As to the judgment of Cooke J., at p. 140, the weight of English authorities does not support it.
To summarise the state of jurisprudence up to the present time on the issue on this appeal: (i) the case law before the end of the 19th century established a principle that where in any dispute between a corporator and a corporation a question arose concerning the general law of the land the visitor alone was concerned with it. (ii) Those cases were concerned only with questions of status and not of contract. (iii) The first case cited to the House which included a question of contract was the Thomson case, 33 L.J.Ch. 625, where the Vice-Chancellor identified two types of contract cases. In so far as the Vice-Chancellor there contemplated that there was any claim in contract within the visitor's jurisdiction he was wrong. Alternatively, service contracts are exclusively within the court's jurisdiction. (iv) Since that time there has been one case in which it has been stated that all claims in contract are for the courts: Casson v. University of Aston in Birmingham [1983] 1 All E.R. 88.
To hold that the visitor's jurisdiction extends to contractual claims would be inconsistent with the basic principle of the common law that in the absence of statutory provision or the express agreement of the parties claims in contract are for the courts: see Lee v. Showmen's Guild of Great Britain [1952] 2 Q.B. 329, 341 per Denning L.J. This statement of the law is still valid, subject to the exception that the Arbitration Act 1979 allows parties to agree to go to arbitration instead of seeking recourse in the courts.
To assign contractual disputes between corporator and corporation to the visitor but disputes between a non-corporator and a corporation to the courts would be to create an anomaly. It raises the question: Why should a typist in the typing pool in the administrative offices of the university have recourse to the courts whilst a university lecturer is denied that right? Further, the courts have procedural powers which are not open to the visitor under his jurisdiction for example, the power to order discovery.
As to the inferences to be drawn from the status of a member of a university: status cannot derogate from contractual rights, rather it gives additional rights. The common law recognises that where a person has a given status he enjoys the benefit of the rules of natural justice: status can be protected by way of the process of judicial review.
On the issue of damages, there is no authority in favour of the proposition that a visitor can award damages. None of the reported cases through the centuries give an instance of an award of damages by a visitor. Casson v. University of Aston in Birmingham [1983] 1 All E.R. 88, In re Wislang's Application [1984] N.I. 63 and Hines v. Birkbeck College [1986] Ch. 524 all contain express statements that a university visitor cannot award damages. In particular, reliance is placed on the statement of Lord Hailsham of St. Marylebone L.C. in the Casson case [1983] 1 All E.R. 88, 91: "After considerable research, I have been unable to find any precedent in the long history of visitatorial powers in which a visitor has made such an order [for damages] and in my view he has no such power." Thorne v. University of London [1966] 2 Q.B. 237, and Herring v. Templeman [1973] 2 All E.R. 581, do not support the appellants' contention. All they decided was that the claims in question came within the visitor's jurisdiction and leave the claimant to what redress the visitor can award. As to the observations of Burt C.J. in Murdoch University v. Bloom and Kyle [1980] W.A.R. 193, 198, there is nothing in the authorities to support the Chief Justice's assertion in that passage that a visitor can award damages. The present appellant's contention to the contrary is no more than an assertion.
On the powers of a university visitor generally, the visitor cannot compel the university to comply with his decision. He can punish for non-compliance but he cannot compel the university to carry out the terms of his award: see Smith (1986) New Law Journal, pp. 666-667. It appears to be accepted that there are certain claims in contract between a corporator and a corporation that are only justiciable by the courts, for example, whether the corporator's salary has in fact been paid, or any question arising from the original letters of appointment on the amount of salary that was to be paid. But difficulties could arise in the case of anticipatory breach of an agreement to employ which would only be justiciable by the courts, for at that stage the claimant would not be a member of the university. Further, there could be a conflict between the decision of an industrial tribunal and the decision of the visitor. On the judicial review of universities see the reference in the Norrie case [1984] 1 N.Z.L.R. 129, 133, to the article by J. L. Caldwell, "Judicial Review of Universities - The Visitor and the Visited" (1982) Canterbury L.R. 307.
In conclusion, it cannot be suggested that the present argument, in effect, abolishes the role of the university visitor. There are many internal matters relating to the construction of the statutes and ordinances which are within the visitor's province: see the article by Dr. J. W. Bridge, 86 L.Q.R. 531, 535. Further, there are various grievances which might legitimately go to the visitor; for example, if it was discovered that a university was operating a quota system in relation to university entrance or that it was proposed to alter the pass mark for obtaining a degree.
Price Q.C. in reply.
It would be quite wrong to assume from the language used in Philips v. Bury, Skin. 447, that Holt C.J. did not recognise that the courts did have some control, not on the merits of a particular claim but by way of prerogative writ.
As to the contention that the early cases are based on status and that the concept of a contractual relationship is modern: see Holdsworth's History of English Law, vol. 2, 4th ed., (1936) p. 461, which shows that the legislation of the late 14th century recognised that the relationship between master and servant was based not on status but on contract.
Although the founder of the corporation in question may be the creator of the visitor, the visitor's powers arise from the common law. It is part of public law that there are private corporations of an eleemosynary character. In conclusion, by taking employment as a member of the academic staff of the university, by becoming a member of the university, Miss Thomas became subject to all the statutes and ordinances of the university. It follows that if any dispute arises relating to the constitution of the university, such a dispute is to be governed by the private procedure laid down by that constitution - in the last resort there being recourse to the visitor. It is only if the visitor acts contrary to the rules of natural justice that Miss Thomas has access to the courts by way of judicial review. [Reference was also made to Gunton v. Richmond-upon-Thames London Borough Council [1981] Ch. 448; Reg. v. British Broadcasting Corporation, Ex parte Lavelle [1983] 1 W.L.R. 23 and Halsbury's Laws of England 4th ed., vol. 5 (1974), p. 514, para. 884.]
Their Lordships took time for consideration.
26 February 1987
PANEL: Lord Bridge of Harwich, Lord Brandon of Oakbrook, Lord Griffiths, Lord Mackay of Clashfern and Lord Ackner
JUDGMENT BY LORD BRIDGE OF HARWICH
My Lords, for the reasons given in the speeches of my noble and learned friends, Lord Griffiths and Lord Ackner, with both of which I agree, I would allow this appeal.
JUDGMENT BY LORD BRANDON OF OAKBROOK
My Lords, I have had the advantage of reading in draft the speeches prepared by my noble and learned friends, Lord Griffiths and Lord Ackner. I agree with them, and for the reasons which they give I would allow the appeal.
JUDGMENT BY LORD GRIFFITHS
My Lords, in March 1973 Miss Thomas accepted the offer of an appointment as lecturer in sociology at Bradford University. She took up her appointment in October 1973. After a probationary period, she became a permanent member of the academic staff. In February 1983 the university dismissed her. Miss Thomas disputes the validity of the dismissal and the issue before your Lordships is whether that dispute falls within the jurisdiction of the High Court or that of the university visitor.
It is common ground that as from 1 October 1973, Miss Thomas became (i) a member of the academic staff of the university, (ii) an employee of the university under a contract of service, (iii) the holder of office in and a member of the university within the meaning of the charter and statutes. It is also common ground that the contract of service included the following terms, namely, (a) that the employment of Miss Thomas and her status as a member of the university were coterminous; (b) that Miss Thomas would be subject to the burden and entitled to the benefit of the disciplinary rules and procedures established and set out in the charter, statutes, ordinances and regulations such as related to permanent members of the academic staff; (c) that Miss Thomas should not be dismissed from her employment without the due fulfilment of all the procedures governing removal from office.
A member of the permanent academic staff of the university, such as Miss Thomas, has security of tenure until retirement age unless removed from office by the council of the university for "good cause": see statute 30(2) and ordinance 12.0(4)(a). "Good cause" is defined by statute 30(4) in the following terms:
"'Good cause' when used in reference to removal from office membership or place means: (A) Conviction of any offence which the 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. (B) Any physical or mental incapacity which the 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. (C) Conduct which the court or the council (as the case may be) considers to be 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."
The charter, statutes, ordinances and regulations of the university provide an elaborate code of procedures that are to be followed before the council arrive at a decision to remove a member of the academic staff from office and thus terminate their employment by the university. The object of the procedure is to ensure that any complaint is carefully investigated and that the member of staff has a full and fair opportunity to answer the complaint.
Miss Thomas alleges that the university failed to follow the correct procedure in the investigation of the complaint against her and that accordingly the decision of the council to dismiss her was ultra vires, null and void. She alleges that the university should have investigated the complaint against her through the procedure provided under ordinance 13 and regulation 23. The university admit that they did not so proceed but say that they followed the correct procedure which is that prescribed by statute 30. It is unnecessary to consider this dispute in any further detail as it is not for your Lordships to adjudicate upon it. I would observe, however, that as at present advised, I do not agree with the view expressed by Whitford J. and Sir George Waller that it presents no difficulty of construction. I think it may be a matter of considerable difficulty to determine which was the appropriate procedure in the present case.
Against this background Miss Thomas determined to challenge her dismissal, and chose to do so by issuing a writ in the Chancery Division of the High Court on 18 September 1984, some 18 months after the date of her dismissal. By her statement of claim of the same date, she claimed a declaration that the decision taken by the council to dismiss her was ultra vires, null and void; a declaration that the dismissal from her employment was ultra vires, null and void and damages or alternatively arrears of salary from 12 February 1983 until judgment together with interest on damages and loss of salary. The grounds of her claim were confined to allegations that in breach of the terms of her contract of service the university had failed to follow the procedures prescribed by ordinance 13 and regulation 23 and further that irregularities in the procedure in fact adopted amounted to breaches of natural justice. The statement of claim did not raise the issue as to whether or not there was "good cause" for dismissing Miss Thomas, and your Lordships remain in ignorance of the underlying reasons for Miss Thomas's dismissal.
The university took the view that this dispute, which is confined to the proper interpretation and execution of their internal disciplinary procedures as provided in their charter, statutes, ordinance and regulations, fell within the exclusive jurisdiction of the university visitor and not with the courts of law. Accordingly, by notice of motion dated 12 November 1984, the university applied for an order to stay the proceedings until Miss Thomas should have petitioned the visitor of the university and he had adjudicated upon the issues raised in her statement of claim.
It is now conceded by the university that this was not the appropriate form of relief that they should have sought and that it may to some extent have misled Whitford J. in his approach to the case. The university's submission to Whitford J. included a concession that after the visitor had determined the questions concerning the construction and application of the internal rules, Miss Thomas could then bring an action for damages in the courts and the court would not be bound by the visitor's determination. As Hoffmann J. said in Hines v. Birkbeck College [1986] Ch. 524, 543:
"In those circumstances it is not surprising that Whitford J. thought that the plaintiff might as well start her action in the courts in the first place. No such concession was made before me and in my judgment it was wrong."
The university should have taken out a summons to strike out the statement of claim on the ground that the court had no jurisdiction in respect of the subject matter of the claim, as was done in Hines v. Birkbeck College. Your Lordships, at the request of the university and without objection by Miss Thomas, allowed an amendment to the relief sought by the university and the appeal has been argued on the basis that the relief sought is an order to strike out the statement of claim.
Whitford J. [1986] Ch. 381, 394-395, dismissed the application of the university and said in the final paragraph of his judgment:
"I have referred to the suggestion that in the first instance the matter ought to go before the visitor for consideration of questions arising under paragraphs 1 to 10 and then come back to the court. I cannot imagine a procedure more inconvenient or more likely to involve a wholly unnecessary waste of time and money than this. This is an allegation of a simple breach of contract. By writing the rules into the contract the question at issue has been brought within the jurisdiction of the court, and the application for a stay pending a reference to the visitor must, in my judgment, accordingly fail."
The Court of Appeal [1986] Ch. 381 dismissed the appeal of the university. Although the reasons they gave for their decision were different each member of the court held that the dispute fell within the jurisdiction of the courts and not the visitor. The underlying reason common to each judgment was that as the issue in the case concerned a breach of a contract the courts retained jurisdiction to adjudicate upon it. There is, however, a marked difference of approach to the solution of the problem.
Fox L.J. accepted that the visitor's jurisdiction was exclusive but, as I understand his judgment, would confine it to such matters as the court chose to concede to the visitor in which he included the admission and amotion (the removal from office) of members, the resolution of academic standards of a university teacher or student, and other matters that in practical terms he considered unsuitable to the jurisdiction of the courts and in which he included the marking of examination papers; the awarding of prizes and the choice of fellows. It is obvious that disputes raising such issues can be formulated as breaches of contract or torts and Fox L.J. acknowledged that this could not be the criterion upon which such claims should be judged to fall within or without the visitor's jurisdiction. However, he considered that the present case, which alleged a contractual failure to follow the university's internal procedures, should be adjudicated upon by the court as a part of the general law of contract. Fox L.J.'s view is summed up in the following passage from his judgment, at p. 407:
"[The visitor's] jurisdiction derives from the status of membership, and where the issue, as in a case of breach of contract, does not derive from status, it seems to me that he has no jurisdiction except that which the court may concede to him."
Lloyd L.J. adopted the approach of the Court of Appeal in New Zealand in Norrie v. University of Auckland Senate [1984] 1 N.Z.L.R. 129, and held that the jurisdiction of the courts and the visitor were no longer mutually exclusive and that the jurisdiction of the visitor was now subordinate to that of the courts. Applying that approach, he held that the issue in this case did not have the "necessary domesticity" to be left to the jurisdiction of the visitor, and that as the claim was one for wrongful dismissal it remained within the jurisdiction of the courts.
Sir George Waller, although accepting the exclusivity of the jurisdiction, emphasised what he described as the truly domestic situations in which in modern cases the visitor had been held to have exclusive jurisdiction. He distinguished two cases in which the dismissal of, in one case, a schoolmaster and the other, a chorister, were held to fall within the jurisdiction of the visitor on the grounds that they were dealt with simply as a matter of status and no question of contract arose: see Whiston v. Dean and Chapter of Rochester (1849) 7 Hare 532 and Reg. v. Dean and Chapter of Chester (1850) 15 Q.B. 513. He summarised his reasons in the final paragraph of his judgment [1986] Ch. 381, 422:
"In this case there is a clear allegation of breach of contract. It is true that the breach of contract which is alleged is a failure to comply with the provisions of the statutes of the university, but in my judgment the provisions are clear, and whether there was a breach or not is a simple question of fact. It is not something peculiar to the visitor. To say that this case has to be retained in the visitatorial jurisdiction is to deprive the plaintiff of her rights at law. In my opinion, therefore, this is something which can properly be dealt with by the ordinary courts of law. It is not necessary to refer the interpretation of rules to the visitor."
I have already expressed my dissent from the view that no question of the interpretation of the statutes arises and I am not clear what would have been the view of Sir George Waller if he had considered that the present dispute depended, at least in part, upon the interpretation of the university statutes and ordinances.
Clause 29 of the Charter of the University provides for the appointment of a visitor by the Crown on the petition of the Court of the University. No petition has been received and no visitor appointed under this power. However it is common ground that in the absence of such an appointment the Crown as founder of the university is the visitor of the university and that the visitatorial powers will be exercised by the Lord Chancellor (or such other person as he may advise Her Majesty to nominate), on behalf of the Crown: see Attorney-General v. Dedham School (1857) 23 Beav. 350 and the judgment of Sir Robert Megarry V.-C. in Patel v. University of Bradford Senate [1978] 1 W.L.R. 1488.
It has been conceded by Miss Thomas that the jurisdiction of the visitor is an exclusive jurisdiction, and the argument before your Lordships has been principally devoted to exploring the limits of the jurisdiction. However, as Lloyd L.J. has questioned the exclusivity of the jurisdiction, it is right to consider whether the concession was properly made.
My Lords, in my opinion the exclusivity of the jurisdiction of the visitor is in English law beyond doubt and established by an unbroken line of authority spanning the last three centuries from Philips v. Bury(1694) Skin. 447 to Hines v. Birkbeck College [1986] Ch. 524. This aspect of the jurisdiction has been examined and expounded with clarity and learning in articles by Dr. J. W. Bridge, "Keeping Peace in the Universities: the Role of the Visitor" (1970) 86 L.Q.R. 531, and Dr. Peter Smith, "The Exclusive Jurisdiction of the University Visitor" (1981) 97 L.Q.R. 610; "Visitation of the Universities: A Ghost from the Past" (1986) 136 New Law Journal 484, 519, 567, and with their assistance, for which I am indebted, I select judicial statements which have over the years reiterated the principle that the courts of law will not trespass upon matters that lie within the jurisdiction of the visitor. To start with in Philips v. Bury, Skin. 447, Holt C.J. said, at p. 485, in his dissenting judgment, subsequently upheld by the House of Lords, speaking of the jurisdiction of the visitor:
"It is not ... material, whether he hath a court or no; all the matter is, whether he hath a jurisdiction; if he hath jurisdiction, and conusance of the matter and the person, and he gives a sentence in the matter, his sentence must have some effect to make a vacancy, be it never so wrong; but there is no appeal, if the founder hath not thought fit to direct an appeal; that an appeal lieth in the Common Law Courts of the Kingdom, is certainly not so: ..."
In the next century it is sufficient to cite two cases, one in the Chancery Court and one in the King's Bench in which the court declined jurisdiction on the ground that the dispute fell within the jurisdiction of the visitor. In Attorney-General v. Talbot (1747) 3 Atk. 662; 1 Ves. Sen. 78 an unsuccessful candidate for a fellowship applied to the Chancery Court for a declaration that within the terms of the fellowship he should have been preferred to the fellow elected. Lord Hardwicke L.C. refused to entertain the application on the grounds that such a dispute fell within the jurisdiction of the visitor. In St. John's College, Cambridge v. Todington (1757) 1 Burr. 158 the unsuccessful candidate on this occasion appealed to the visitor and it was the college authorities that tried to prevent him doing so by seeking a prohibition in the King's Bench. They failed because the court held that the dispute fell within the jurisdiction of the visitor. In the course of his judgment Lord Mansfield C.J. said, at p. 200:
"The visitorial power, if properly exercised, without expence or delay is useful and convenient to colleges. However, (be that as it may,) we must take it, as it is now established by law: and it is now settled and established, (since the case of Philips v. Bury in Dom.Proc.) 'that the jurisdiction of the visitor is summary and without appeal from it.'"
In Reg. v. Dean and Chapter of Chester, 15 Q.B. 513 a chorister who had been removed from his office by the dean and chapter of the cathedral applied for mandamus to restore him to his office. The application was refused the court holding that mandamus did not lie, as the remedy for the wrongful amotion complained of was by application to the visitor who had sufficient and exclusive jurisdiction. Lord Campbell C.J. said, at pp. 520-521:
"Lastly it was contended before us that, although Mr. Humphreys might have appealed to the visitor, he was not bound to do so, and that he may still call for the interference of this court: but this notion of a concurrent jurisdiction is expressly contradicted by the language of Lord Hale in [Appelford's Case (1672) 1 Mod. 82] and by the whole current of decisions on the subject."
In Reg. v. Hertford College, Oxford (1878) 3 Q.B.D. 693, one, Tillyard, complained that the college had refused to examine him for a lay fellowship and wrongly elected another person to the fellowship after examination. He obtained a mandamus in the Queen's Bench Division directed to the principal, fellows and scholars of Hertford College, Oxford, commanding them to examine Tillyard as a candidate for a vacant fellowship in the college and to proceed to the election of a fellow pursuant to the statutes of the college. The Court of Appeal reversed the judgment of the Queen's Bench Division and set aside their order. The Court of Appeal held that there was in fact no refusal to examine Tillyard but even if there had been such a refusal the remedy was not by way of mandamus but by appeal to the visitor. Lord Coleridge C.J. said, at p. 706:
"For these reasons, then, upon the facts of this particular case, we think there is no ground for issuing the mandamus. The prosecutor was not refused examination, he did not place himself in a condition to claim more of the college than the college had offered; if he had and if they had improperly refused him his wrong would be one corrigible by the visitor and not by the courts of law; ..."
In Thomson v. University of London (1864) 33 L.J. Ch. 625, 634, a case to which I shall have to return later, Kindersley V.-C. spoke of the case falling within "the exclusive cognizance, of the visitor."
In the course of his review of the modern authorities in Patel v. University of Bradford Senate [1978] 1 W.L.R. 1488, Sir Robert Megarry V.-C. said, at pp. 1493-1494:
"In Rex v. Dunsheath, Ex parte Meredith [1951] 1 K.B. 127, a King's Bench Divisional Court refused to grant an order of mandamus directing the Chairman of Convocation of London University to summon an extraordinary meeting of convocation in accordance with one of the university statutes, on the ground that the proper remedy was to apply to the visitor. 'The court,' said Lord Goddard C.J. at p. 132, 'will not interfere in the matter within the province of the visitor; ...' Perhaps the strongest authority is Thorne v. University of London [1966] 2 Q.B. 237. There, an unsuccessful candidate for the London Ll.B. sued the University of London for damages for negligently misjudging his examination papers, and for an order of mandamus requiring the university to award him the grade that his papers justified. The Court of Appeal refused leave to appeal from a decision which had struck out the writ and statement of claim and dismissed the action. In the words of Diplock L.J. at p. 242: 'actions of this kind relating to domestic disputes between members of the University of London (as is the case with other universities) are matters which are to be dealt with by the visitor, and the court has no jurisdiction to deal with them.' This case makes it plain that the question is not merely one of refusing discretionary remedies or requiring alternative forms of relief to be pursued first, but is truly a matter of jurisdiction. Two interlocutory observations by Diplock L.J. on p. 240 emphasise that the visitor has the sole and exclusive jurisdiction, and that at common law the court has no jurisdiction to deal with the internal affairs or government of the university, because these have been confided by the law to the exclusive province of the visitor."
The Vice-Chancellor expressed his conclusion in the following words, at p. 1493E
"On the authorities it seems to be clear that the visitor has a sole and exclusive jurisdiction, and that the courts have no jurisdiction over matters within the visitor's jurisdiction"
This statement of the law has since been accepted by Kelly L.J. in In re Wislang's Application[1984] N.I. 63 and by Hoffmann J. in Hines v. Birkbeck College [1986] Ch. 524.
In Herring v. Templeman [1973] 2 All E.R. 581 a student teacher who had been requested to withdraw from a teacher training college on academic grounds commenced an action against the governors for a declaration that the resolution of the governing body dismissing him was ultra vires null and void; he alleged breach of the internal regulations of the college and a breach of natural justice. The case is of interest because the plaintiff conceded that his matters of complaint fell within the jurisdiction of the visitor but submitted that in so far as the allegations were of a breach of natural justice the court retained a concurrent jurisdiction. Brightman J. rejected this submission and struck out the statement of claim. He said, at p. 591:
"In the action with which I am concerned, the plaintiff's case is that he did not have a hearing before the academic board, that he did not have a fair hearing before the governing body and that the procedure of his dismissal was defective. In my judgment, these are essentially matters which touch the internal affairs or government of the college and are therefore matters confined by law to the exclusive province of the visitor."
It should be noted that during the hearing of this case in the Court of Appeal it emerged for the first time that the plaintiff was not a member of the college which had been the basis of his case at first instance. The Court of Appeal allowed the plaintiff to amend his statement of claim and affirmed the judgment of Brightman J. on other grounds which are not material to the present appeal: see Herring v. Templeman [1973] 3 All E.R. 569.
In New Zealand, the Court of Appeal has taken a different view of the visitor 's jurisdiction as it applies to their universities. In Norrie v. University of Auckland Senate [1984] 1 N.Z.L.R. 129, Woodhouse P. and Cooke J. whilst acknowledging that the English authorities showed that in England the visitor had an exclusive jurisdiction, nevertheless held that in New Zealand it should be considered as subordinate to the courts. In that case the courts in fact refused judicial review to a medical student who had been refused enrolment in the Faculty of Medicine after failing his final examination in the previous year. The court held that such an issue should be dealt with by the visitor. There may be much to be said for this approach in which the scope of the visitor 's jurisdiction will be developed in New Zealand on a case by case basis although uncertainty as to the extent of the jurisdiction will reign until a sufficient body of precedent has built up to indicate what issues the court will consider should be left to the visitor. However, this is not the way in which our law has developed and in my view it is not open to your Lordships to follow Lloyd L.J. and adopt the New Zealand solution. I agree with Hoffmann J. when he said in Hines v. Birkbeck College [1986] Ch. 524, 539:
"It is conceded that the jurisdiction of the visitor and the courts are mutually exclusive. The courts in New Zealand have felt able to take a different view (see Norrie's case [1984] 1 N.Z.L.R. 129) but in this country this matter is concluded by a line of decisions commencing with that of the House of Lords in Philips v. Bury(1694) Skin. 447."
I turn now to consider the scope of the visitatorial jurisdiction. The jurisdiction stems from the power recognised by the common law in the founder of an eleemosynary corporation to provide the laws under which the object of his charity was to be governed and to be sole judge of the interpretation and application of those laws either by himself or by such person as he should appoint as a visitor. In Philips v. Bury, Skin. 447, Holt C.J. described it thus, 1 Ld.Raym. 5, 8:
"the office of 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 so reposed entire confidence that he will administer justice impartially, that his determinations are final, and examinable in no other court whatsoever."
In Ex parte Kirkby Ravensworth Hospital (1808) 15 Ves. 305, 311, Sir Samuel Romilly said in a passage in his argument which has long been accepted as authoritative:
"A visitor is ... 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."
As the jurisdiction stems from the power to provide and administer the domestic law of the foundation, it can as a general rule be said only to apply to those who are members of the foundation because only they are subject to those domestic laws. Nevertheless the jurisdiction has always been held to apply both to admission to and removal from office in the foundation and many of the old cases concern the election or amotion of fellows at Oxford and Cambridge colleges. I am not sure whether these cases concerning fellowships touched directly upon the principal means of livelihood of those concerned although I suspect they did. There are however other cases in which the visitatorial jurisdiction undoubtedly governed the question of employment in the sense of earning a living which one would suppose loomed larger for those affected, than the status involved in the employment. Thus in Attorney-General v. Magdalen College, Oxford (1847) 10 Beav. 402, the appointment of a master and usher to the college school were held to fall within the jurisdiction of the visitor even though they were not corporators and in Whiston v. Dean and Chapter of Rochester, 7 Hare 532, the dismissal of the headmaster from the cathedral grammar school was also held to fall within the exclusive jurisdiction of the visitor. In Rex v. Dunsheath, Ex parte Meredith [1951] 1 K.B. 127, 132, Lord Goddard C.J. said:
"Any question that arises of a domestic nature is essentially one for a domestic forum, and this is supported by all the authorities concerning visitatorial powers and duties. The question has generally arisen with regard to the election of fellowships; but I see no difference in principle between the question whether a particular person ought to be elected to a fellowship and the question whether a particular person is a fit and proper person to be appointed or retained as a teacher at a university or school."
The explanation for the visitor's jurisdiction extending in cases of admission and removal from office (amotion) to those who are not corporators lies in the basis of his jurisdiction, namely, as the judge of the internal or domestic laws of the foundation. It is because those laws invariably provide for the conditions governing admission to and removal from membership of the foundation and sometimes of offices on the foundation short of membership that jurisdiction in such matters lies with the visitor.
It is a mistake to consider that the visitor's jurisdiction derives from the status of membership, as Fox L.J. said in the course of judgment in the Court of Appeal. That is, with respect, putting the cart before the horse. The jurisdiction derives from the visitor's position as a judge of the internal laws of the foundation, and he has jurisdiction over questions of status because it is upon those laws that status depends.
A similar issue to that which arises in this appeal was considered by Kelly L.J. in In re Wislang's Application [1984] N.I. 63. The facts are sufficiently set out in the headnote:
"In 1981 the applicant was appointed by the Senate of the Queen's University of Belfast to a lectureship (medical) in anatomy, subject to a period of probation until 30 September 1983. His conditions of appointment provided for an annual assessment of his 'teaching, research and scholarly ability' by an ad hoc group consisting of his head of department and senior colleagues. The ad hoc group made, in September 1982, an adverse assessment of the applicant's progress and, in February 1983, reported that it was unable to recommend to the Board of Curators that he be confirmed in post. The Board of Curators invited the applicant to attend for interview but he failed to do so. In his absence the board decided that it could not recommend to the senate that he be confirmed in post and informed him of their decision. In April 1983 the applicant exercised his right of appeal to a committee appointed by the Senate. The appeal committee, after considering the oral and written submissions of the applicant, dismissed the appeal and so reported to the Senate which in May 1983 resolved to terminate the applicant's employment with effect from 27 May 1983, informing him that his salary up to the end of the academic year (30 September 1983) would be paid to him in a lump sum.The applicant appealed to the visitor and in July 1983 a board of visitors was appointed, taking up office on 1 October 1983. In November the board informed the applicant that it proposed to consider the appeal on the documents submitted to it. The applicant sought an oral hearing and also legal representation but in January 1984 this was refused. The applicant then sought, and, on appeal, was granted leave to apply for judicial review. It was contended for the university that the matters in dispute were within the exclusive jurisdiction of the board of visitors. The applicant contended that the board had no jurisdiction because (a) the board had not been in existence at the time of the appeal and had subsequently delayed unduly, (b) that the board, containing a member of the Convocation of the university and a former secretary of the university, was improperly constituted and had acted unfairly by refusing an oral hearing and legal representation; (c) the issues in dispute involved questions of contract and the legality of the proceedings of several bodies of the university, and (d) the board could not grant effective remedies."
Kelly L.J. in an impressive judgment containing a comprehensive review of the authorities held that the matters in dispute were exclusively within the visitatorial jurisdiction. Dealing with the argument that the issues in dispute involved questions of contract and were thus outside the jurisdiction of the visitor, he said, at pp. 80-81:
"That the matters in dispute were internal matters lying within the visitatorial jurisdiction was of course strongly challenged by Dr. Wislang. They were not, he said, because they included the question of the validity of the decision to dismiss him, the authority of the Vice-Chancellor and the Secretary of the University, the legality and regularity of the proceedings before the Board of Curators and the Appeal Committee and the Senate. All these were matters he submitted outside the jurisdiction of the board of visitors, because they were, or many of them were in breach of his contract of employment.But what the authorities show, as I read them, is that matters may well be in breach of a contract of employment, yet within visitatorial jurisdiction, if those matters are of an internal domestic character or touch upon the interpretation or execution of private rules and regulations of the university. Of course the applicant has the right under his contract to have the criteria relating to the assessment of his fitness as a lecturer observed and the special procedures of the university bodies who determine this and as a result terminate his employment, regularly and fairly followed. But this right while a right under a contract of employment seems to me to relate to the regular and fair execution of procedures in accordance with the internal rules and regulations at the university. If the matters in dispute under his contract of employment related to purely common law or statutory rights and not to private or special rights of the university, then of course visitatorial jurisdiction could not determine them and Dr. Wislang's remedies would be in the ordinary courts or the appropriate statutory tribunals. This must follow from the nature of visitatorial jurisdiction itself as analysed and explained by the case-law, as well as the relationship between the university and a lecturer and who by his contract of employment becomes a member of the university and submits himself to its internal rules on matters touching his standing and progress at the university.
Undoubtedly a contract of employment may contain terms some of which are concerned with private or special rights given as a member of the university and other terms express or implied which give purely contractual or statutory rights. In these circumstances the visitatorial and the common law or industrial jurisdictions co-exist. The common law or statutory rights are enforceable in the courts or the appropriate statutory tribunals, but the visitatorial jurisdiction is not ousted."
In Hines v. Birkbeck College [1986] Ch. 524, Hoffmann J. in an equally impressive judgment considered the same issue. Again, I take the facts from the headnote:
"In 1971 the Senate of the University of London, with the consent of the governing body of Birkbeck College, appointed the plaintiff to a chair of economics at the college and conferred upon him the title of 'Professor,' with the status of 'appointed teacher.' His salary was paid by the college, which had the power to dismiss him. The university senate had power to deprive him of his title and status. He was ex officio a member of the academic board of the college. His duties included conducting such classes, and giving such lectures and other teaching as might be necessary, and also research work. In the academic year 1980/81 he was given paid leave by the college in order to engage upon a research project. In 1981/82 he was given unpaid leave so that he could continue work on his project. At the beginning of the academic year 1982/83 he sought a further extension of his leave in order to complete his project, but that was refused and certain teaching duties were assigned to him, which, however, he refused to perform. On 16 February 1983, the master of the college initiated procedures which led first to suspension and finally, on 7 July 1983, to dismissal for alleged serious misconduct. On 29 July 1983 the master of the college wrote to the principal of the university reporting that the plaintiff had been dismissed, enclosing a copy of the report of the consultative group, composed of members of the academic staff and officers of the college, which had found the plaintiff guilty of gross misconduct, and inviting the senate of the university to take steps to deprive him of his title and his status as an appointed teacher. A report of the university committee, which was set up to consider the matter, recommended that the plaintiff be deprived of his title. On 17 May 1985 the plaintiff, shortly before the committee's report was to be considered by the senate of the university, issued a writ claiming, as against the college, that its purported decision to dismiss him forthwith if he did not resign within seven days, and its purported dismissal of him pursuant thereto, were ultra vires, null and void, and an injunction to restrain the university from depriving him of his title of professor and status as an appointed teacher.
The university and the college moved to strike out the plaintiff's claims on the grounds, inter alia, that the High Court lacked jurisdiction to deal with the matters involved. The argument for the plaintiff was the same as that which was accepted by the Court of Appeal in the present case and is summarised at p. 541:
"Mr. Sedley says with equal truth that he does not seek to enforce the customs, procedures or statutes of the college as such. He relies upon them only to the extent that they may be taken to have been incorporated as terms of the plaintiff's contract of employment. If that contract was, in accordance with his primary submission, made with the university, he says that the college by excluding the plaintiff and depriving him of his salary has committed the tort of wrongful interference with contract. If the contract was with the college then it has been broken. In either case he founds his claim upon the general law of contract or tort, neither of which are within the jurisdiction of the visitor."
Dealing with the argument Hoffmann J. said, at pp. 542-543:
"Mr. Sedley has argued that the test of whether the dispute is domestic should be whether it is conveniently justiciable in the courts. The marking of examination papers, as in Thomson's case, 33 L.J. Ch. 625 and Thorne's case [1966] 2 Q.B. 237 or as in Patel's case [1978] 1 W.L.R. 1066, the question of whether Mr. Patel was sufficiently qualified to enter for a degree in mathematics were obviously matters in which the courts declined jurisdiction with relief. But the courts have no difficulty in deciding whether principles of natural justice have been observed or rules of procedure incorporated into contracts of employment correctly applied. If one were seeking to devise a new system from scratch, it might well be thought fair to allow the courts full concurrent jurisdiction in all claims based on causes of action at common law or in equity, subject to a discretionary power to stay proceedings on the ground that some or all of the matters in issue are more suitable for adjudication by the university's internal tribunals. Something along these lines seems to have been canvassed by the New Zealand Court of Appeal in the Norrie case [1984] 1 N.Z.L.R. 129. This might avoid anomalies such as occurred in the Casson case [1983] 1 All E.R. 88 in which the petitioner's claim in the county court was struck out because the matter was said to be one for the visitor and the visitor declined jurisdiction because the claim was one for the courts. It would also avoid problems in obtaining interlocutory relief, about which there are obvious administrative difficulties when the visitor is the Privy Council. It is, however, far too late for this court to adopt such a scheme. For one thing, it is settled law that the jurisdictions are mutually exclusive. The authorities also make it clear that, irrespective of whether courts would be as well or better qualified to deal with the particular case, a dispute has the necessary domesticity if it involves members of the corporation and the interpretation or application of its internal rules, customs or procedures. Further, as Sir Samuel Romilly said in argument in Ex parte Kirkby Ravensworth Hospital, 15 Ves. 305, 311, (a passage quoted in Dr. Smith's article, 97 L.Q.R. 610, 614): 'A visitor is ... 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, further, for the interpretations of questions of fact ...'"
In both these cases it was held that the dispute lay within the visitatorial jurisdiction and, in my view, both these cases were rightly decided.
The Court of Appeal, laying emphasis upon the "domestic" nature of the visitatorial jurisdiction, did not follow these decisions. Lloyd L.J. relied particularly upon a quotation from the judgment of Kindersley V.-C. in Thomson v. University of London, 33 L.J. Ch. 625. The facts of that case were far different from the present; it concerned a dispute over the award of a gold medal in the examination for the LL.D. degree which, not surprisingly, was held to fall within the visitatorial jurisdiction. However, it appears to be the first of the cases in which the question of contract was argued. In the course of his judgment the Vice-Chancellor said, at p. 634:
"the line of demarcation between that class of questions which comes under the jurisdiction of the visitor on the one hand, and that class of cases which comes under the jurisdiction of this court, as a court of equity, on the other, is this, - 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; but when it comes to a question of right of property, or rights as between the university and a third person dehors the university, or with regard, it may be, to any breach of trust committed by the corporation, that is, the university, and so on, or any contracts by the corporation, not being matters relating to the mere management and arrangement and details of their domus then, indeed, this court will interfere."
Lloyd L.J. [1986] Ch. 381, 410F, in commenting upon this passage said: "I am tempted to say that the present case does not relate to the 'mere management and arrangement and details' of the University of Bradford, and leave it at that." The Vice-Chancellor's judgment is clearly extempore and I would hesitate to place too much reliance upon any particular phraseology used in the course of this discursive judgment. What is however of importance is that the Vice-Chancellor did not treat the allegation of a cause of action in contract as necessarily ousting the jurisdiction of the visitor.
This then leads me to consider what is meant by the reference in the cases to the "domesticity" of the visitatorial jurisdiction. The word is clearly not used with the width of its everyday meaning. Nothing could be more domestic in its everyday sense than the arrangements in the kitchens or for the cleaning of the premises, but no one suggests that the domestic staff of a university fall within the visitatorial jurisdiction. I am satisfied that in referring to the domestic jurisdiction the judges are using a shortened form of reference to those matters which are governed by the internal laws of the foundation. This will include not only the interpretation and enforcement of the laws themselves but those internal powers and discretions that derive from the internal laws such as the discretion necessarily bestowed upon those in authority in the exercise of their disciplinary functions over members of the foundation. It is only if "domesticity" is understood in this sense that any principle emerges that can be of general application to determine whether or not a given matter falls within the visitatorial jurisdiction. What is not permissible is to regard "domesticity" as an elastic term giving the courts freedom to choose which disputes it will entertain and which it will send to the visitor. This approach necessarily involves the concept of a concurrent jurisdiction, and as I have endeavoured to show this is not the way in which our law has developed.
I would adopt the following passage from Dr. Smith's latest article "Visitation of the Universities: A Ghost from the Past - III" (1986) 136 New Law Journal 567-568:
"Once it is recognised that the supervision of the statutes, ordinances, regulations etc. of the foundation is the basis of the visitatorial jurisdiction, then it becomes a relatively simple matter to define the scope of the visitor's powers, for any matter concerning the application or the interpretation of those internal laws is within his jurisdiction, but questions concerning rights and duties derived otherwise than from such internal laws are beyond his authority. Thus a matter or dispute is 'domestic' so as to be within the visitatorial jurisdiction if it involves questions relating to the internal laws of the foundation of which he is visitor or rights and duties derived from such internal laws. Conversely, an issue which turns on the enforcement of or adjudication on terms entered into between an individual and his employer, notwithstanding that they may also be in the relationship of member and corporation, and which involves no enforcement of or adjudication concerning the domestic laws of the foundation, is ultra vires the visitor's authority and is cognizable in a court of law or equity (see 97 L.Q.R. 644). ..."
In the present case, the entire dispute is centred upon the statute ordinances and regulations of the university. Were they correctly applied and were they fairly administered? Such a dispute in my view falls within the jurisdiction of the visitor and not the courts of law, notwithstanding that its resolution will affect Miss Thomas's contract of employment.
It has, however, been urged upon your Lordships that such an approach rooted as it is in mediaeval law has no place in a modern society and will by denying university teachers access to the courts in cases affecting contracts of employment place them at a grave disadvantage to all others who can turn to the courts to resolve such disputes, and particularly in comparison to the majority of their colleagues in the teaching profession. If such shackles ever existed as prevented a court entertaining a claim for breach of a contract of employment, the time has come to strike them off, and to restore so important a matter to the jurisdiction of the courts.
The appeal of such an argument is readily understood. All are jealous of their own territory and in the ordinary course of events nothing falls more naturally within the territory of the courts than disputes between master and servant. It being a well recognised function of the common law to resolve such disputes they must, it is said, fall outside the visitatorial jurisdiction. In support of this argument the appellant relied upon the decision of Lord Hailsham of St. Marylebone L.C., sitting as visitor in Casson v. University of Aston in Birmingham [1983] 1 All E.R. 88. The facts were that the two petitioners had been accepted by the university to read a course in "human communication." The university subsequently found that they were unable to provide the course and offered an alternative course in "human psychology" which was accepted by the petitioners and they were admitted to the university to read that course. They then sued the university in the county court for damages for breach of contract in respect of the course in "human communication." The registrar and the judge declined jurisdiction holding that the dispute fell within the jurisdiction of the visitor. They then petitioned the visitor, but the Lord Chancellor acting as the visitor, also declined jurisdiction. The Lord Chancellor relied upon the first of the articles by Dr. Smith. He said, at pp. 90-91:
"It is, perhaps, unfortunate that none of the parties to this dispute have referred to the exhaustive and up-to-date article by Dr. Peter M. Smith 'The Exclusive Jurisdiction of the University Visitor' (1981) 97 L.Q.R. 610. If they had, I believe much trouble would have been avoided."
In giving his principal reason for declining jurisdiction, the Lord Chancellor said, at p. 91:
"I agree, however, with Dr. Smith that a visitor can have no jurisdiction in any matter governed by the common law, e.g. contract (see 97 L.Q.R. 610, 615). I regard each of the petitions as claims for damages for breach of a contract entered into before the petitioners became members of the university and for nothing else".
As the contract relied upon was one between the university and third parties who were not members of the university at the time it was entered into, I accept this case as correctly decided. However, the head-note puts the decision on a far wider basis and reads:
"Held - The petitions would be dismissed for the following reasons - (1) A visitor of a foundation had no jurisdiction in any matter governed by the common law, and, once a relationship with the foundation had been established which was governed by the general laws of the realm over which the visitor could have no jurisdiction, the visitor was wholly excluded from considering any question concerning that relationship. Since the relationship of contract was governed by the general laws of the realm, the visitor had no jurisdiction over contracts entered into with the foundation, and the fact that the other contracting party was also a member of the foundation did not have the effect of excluding the jurisdiction of the courts and putting the matter exclusively within the visitor's authority."
If, which I doubt, the Lord Chancellor did intend to put the decision upon so broad a base as excluding any relationship which, apart from visitatorial jurisdiction, would otherwise be governed by the common law, I must respectfully disagree with him. I have already pointed outthat almost any dispute between a member and the university can be framed in either contract or tort, which relationships are apart from the visitatorial jurisdiction governed by the common law. To adopt this approach would entirely emasculate the visitatorial jurisdiction leaving it with virtually no content. Dr. Smith in his recent articles in the "New Law Journal," to which I have already referred, has made it plain that he was not to be understood as suggesting in his article in the "Law Quarterly Review" any such sweeping approach to the visitatorial jurisdiction. It may be apposite at this point to say a word about trusts as they are referred to in the passage cited by the Lord Chancellor from Dr. Smith's article as being analogous to contracts. The reason why the courts have maintained their jurisdiction over trusts, whether or not they benefit members of the foundation, is that the terms of the trust are to be derived from the construction of the trust instrument and not by any application of the laws of the foundation. Thus the construction of a trust must be a matter for the courts and not the visitor, nor is there any reason why the supervision of the trust should not remain with the courts. The cases on trusts well illustrate the principle that only those matters governed by the laws of the foundation are within visitatorial jurisdiction: see Green v. Rutherforth (1750) 1 Ves.Sen. 462, and Ex parte Berkhamsted Free School (1813) 2 Ves. & Bea. 134, and Attorney-General v. Magdalen College, Oxford, 10 Beav. 402. Other cases are to be found discussed by Dr. Smith in 97 L.Q.R. 610, 634-637.
Miss Thomas relied also upon the view expressed by the Lord Chancellor that a university visitor has no power to award damages. He said [1983] 1 All E.R. 88, 91:
"After considerable research, I have been unable to find any precedent in the long history of visitatorial powers in which a visitor has made such an order and in my view he has no such power."
This view is to be contrasted with that expressed by Burt C.J. in Murdoch University v. Bloom and Kyle [1980] W.A.R. 193, 198, in which he said on the assumption that a breach of contract fell within visitatorial jurisdiction:
"If it were then I can see no reason why an action for damages if brought upon the breach of such a contract would not equally be a matter within the exclusive jurisdiction of the visitor. ..."
I prefer the view expressed by Burt C.J. 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.
My Lords, I cannot accept that the continuation of the visitatorial jurisdiction with the scope and powers I have discussed will leave the academic staff of universities at a significant or at any disadvantage to their colleagues working in other fields of education. In the first place the action for wrongful dismissal has largely been superseded by the far wider protection afforded to employees by the Employment Protection (Consolidation) Act 1978. All these rights are available to all university academic staff because Parliament can of course invade the jurisdiction of the visitor if it chooses to do so. If in the course of such proceedings any question arises concerning the interpretation or application of the internal laws of the university, it will have to be resolved for the purpose of the case by the tribunal hearing the application. Such power must be implicit in the remedies provided by the Act, and to this extent, Parliament has given rights that enter and supersede the jurisdiction of the visitor. I cannot accept the suggestion that if in the course of a tribunal hearing a question arises concerning the interpretation of university statutes etc., the case should be adjourned pending a decision by the visitor. This would be altogether too unwieldly a procedure and cannot have been the intention of Parliament.
Secondly, if what is really sought is reinstatement, it is more likely to be achieved by appeal to the visitor than to the courts. As a general rule the courts will not enforce a contract of service and the delay that inevitably results between the dismissal and the date upon which the case comes before the court makes reinstatement all the less likely, for by the time the case is heard the plaintiff's post will have already been filled. The appeal to the visitor is, however, a speedy and informal procedure and reinstatement can be considered without the constraints imposed by the passage of time.
It is true that the decision of the visitor is final and the parties are thus deprived of challenging a decision in the Court of Appeal and perhaps the House of Lords. But is this a disadvantage or an advantage? I rather think it is an advantage. Today the visitors of universities either are or include independent persons of the highest judicial eminence. Would not most people consider it better to accept the decision of such a person rather than face the risk of the matter dragging on through the years until the appellate process has finally ground to a halt. There is also the advantage of cheapness, lack of formality and flexibility in the visitorial appeal procedure which is not bound by the intimidating and formalised procedures of the courts of law.
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.
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.
For these reasons, my Lords, I would allow this appeal.
JUDGMENT BY LORD MACKAY OF CLASHFERN
My Lords, I have had the advantage of reading in draft the speeches prepared by my noble and learned friends, Lord Griffiths and Lord Ackner. I agree with them, and for the reasons which they give I would allow the appeal.
JUDGMENT BY LORD ACKNER
My Lords, the proposition that the visitor's jurisdiction may be an unwelcome survivor from the past, like a ghost, in Lord Atkin's famous phrase in United Australia Ltd. v. Barclays Bank Ltd.[1941] A.C. 1, 29 "standing in the path of justice clanking his medieval chains" was firmly, and in my judgment correctly, rejected by Lloyd L.J. in his judgment in the Court of Appeal [1986] Ch. 381, 412B dismissing Bradford University's appeal. He accepted that the visitor still had a valuable function to perform in a modern university. Indeed, he said, at p. 415:
"Within its proper limits the jurisdiction of the visitor is wholly beneficial. So much so that, if a visitor did not exist, it might have been necessary to invent him."
Sir Robert Megarry V.-C. in Patel v. University of Bradford Senate[1978] 1 W.L.R. 1488, 1499-1500 posed and answered the following question: "Why, it may be said, should most university students be precluded from access to the courts in many matters of dispute with the university authorities?" He said:
"I think that there is much that can be said in answer. I shall take three examples. First, there is no question of the students being denied access to a tribunal that can resolve the dispute: the only question is whether that tribunal is to be the visitor or the courts. For students who seek to have a university decision set aside or reversed the advice in most cases should be 'Go to the visitor, not to the courts.' Second, there is much to be said in favour of the visitor as against the courts as an appropriate tribunal for disputes of the type which fall within the visitatorial jurisdiction. In place of the formality, publicity and expense of proceedings in court, with pleadings, affidavits and all the apparatus of litigation (including possible appeals to the Court of Appeal and, perhaps, to the House of Lords), there is an appropriate domestic tribunal which can determine the matter informally, privately, cheaply and speedily, and give a decision which, apart from any impropriety or excess of jurisdiction, is final and will not be disturbed by the courts. This aspect of the matter has been the subject of repeated high judicial approval: see Attorney-General v. Talbot (1748) 3 Atk. 662, 674, 676, per Lord Hardwicke L.C.; St. John's College, Cambridge v. Todington 1 Burr. 153, 199, 200 per Lord Mansfield C.J.; Ex parte Wrangham 2 Ves. 609, 619, per Lord Loughborough L.C.; Thomson v. University of London 33 L.J.Ch. 625, 635, per Kindersley V.-C; and Rex v. Dunsheath, Ex parte Meredith [1951] 1 K.B. 127, 132, per Lord Goddard C.J. Third, the extent of visitatorial jurisdiction in university life has greatly expanded in recent years. When Oxford and Cambridge were the only universities in England, a relatively small portion of the university population was within the visitatorial jurisdiction, and then only in relation to the colleges; and for those universities that remains true today. But with the founding of the 19th century universities came the general extension of the visitatorial jurisdiction to all the undergraduate members, instead of only the scholars. The same applies to the 20th century universities, as appears from a valuable article by Dr. J. W. Bridge at (1970) 86 L.Q.R. 531, to which Mr. Picarda referred me (I am indebted to this article as well as to the lucid restatement of the law governing visitors which is set out in a book which Mr. Picarda studiously refrained from citing, Picarda's The Law and Practice Relating to Charities (1977), pp. 422-433.) The general picture of only a small part of the small undergraduate population of the universities being within the visitatorial jurisdiction has changed into a picture of the great majority of the far larger undergraduate population of the universities being within it. The visitatorial jurisdiction exercisable by the Lord Chancellor on behalf of the Crown must now be of formidable dimensions; for in most of the modern universities the Crown appears to be the visitor."
It is common ground that where the visitatorial jurisdiction exists it is an exclusive jurisdiction. The review of the authorities by my noble and learned friend Lord Griffiths clearly establishes this principle. Accordingly, the essential issue for decision by your Lordships is the scope of that jurisdiction. Miss Thomas's submission is encapsulated in the final sentence of the judgment of Whitford J. [1986] Ch. 381, 395 where he said: "By writing the rules into the contract the question at issue has been brought within the jurisdiction of the court ..."
In the Court of Appeal, Fox L.J. stated the matter equally shortly, in these terms at p. 408:
"But, as at present advised, I think that (subject to judicial review) the visitor must decide who is or is not to be a member of the house. Remedies for breaches of contract are for the courts."
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.
The clearest modern statement of the scope of the jurisdiction is to be found in the Irish case, In re Wislang's Application [1984] N.I. 63, 81 by Kelly L.J.: see ante, pp. 688E-689B. This statement is consistent with the view expressed by Hoffmann J. in Hines v. Birkbeck College [1986] Ch. 524 where he said, at p. 543:
"In my judgment the dispute is no less domestic because the rules, customs or procedures in issue are alleged to constitute terms of a contract or because their construction or the questions of fact involved in their application are equally conveniently justiciable in a court."
The view expressed by Hoffmann J. is also equally consistent with that expressed by Brightman J. in Herring v. Templeman [1973] 2 All E.R. 581, 591:
"In the action with which I am concerned, the plaintiff's case is that he did not have a hearing before the academic board, that he did not have a fair hearing before the governing body and that the procedure of his dismissal was defective. In my judgment, these are essentially matters which touch the internal affairs of government of the college and are therefore matters confined by law to the exclusive province of the visitor. The dismissal of a student teacher for failing, in the opinion of those charged with the task of forming an opinion, to match up to the standard required of a teacher is the inevitable duty of an educational establishment which holds examinations and passes out students whom it considers fit to be teachers. The training of a student teacher and the assessment of his competence is the main and indeed the only object of a teacher-training college. The construction of the regulations of the college and the carrying into effect of those regulations in relation to persons who subject themselves to those regulations are, in my view, matters which the decided authorities have committed to the exclusive jurisdiction of the visitor."
The source of the obligation upon which Miss Thomas relies for her claim is the domestic laws of the university, its statutes and its ordinances. It is her case that the university has failed either in the proper interpretation of its statutes or in their proper application. Miss Thomas is not relying upon a contractual obligation other than an obligation by the university to comply with its own domestic laws. Accordingly, in my judgment, her claim falls within the exclusive jurisdiction of the visitor, subject always to judicial review.
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. Such redress may involve ordering the payment of arrears of salary in the case in which the visitor decides that the employment has not been determined, or compensation where the complainant has accepted the wrongful repudiation of his contract of employment. It has not been submitted to your Lordships that where such an order is made, there would be any realistic risk of the university failing to comply with the order.
Accordingly, I would allow the appeal.
DISPOSITION
Appeal allowed. Cause to be remitted to Chancery Division with direction that the action be struck out.
No order for costs in the House of Lords.
SOLICITORS
Robbins Olivey & Blake Lapthorn, agents for Sampson Wade, Bradford (for the
university);
Kenneth Shaw & Co, agents for Goldsmith Williams, Birkenhead (for
Miss Thomas).