HEARING DATES: 2, 3, 4, 5, 8 July 1985
Education - University - Visitor's jurisdiction - Dismissal of professor by college - University committee recommending deprivation by university of title and status - Whether subject to jurisdiction of visitor of college and university - Whether dispute within exclusive jurisdiction of visitor
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.
On motions by the university and the college seeking to strike out the plaintiff's claims on the grounds, inter alia, that the High Court lacked jurisdiction to deal with the matters involved: -
Held,
(1) that the jurisdiction of a visitor extended beyond an institution's corporators to all persons who could be described as its members or as being on its foundation; that the membership of the University of London, as defined by the statutes, included all teachers and students, whether corporators or not and that, although the college statutes did not define the expression "members of the college" they clearly contemplated that teachers were members, that the plaintiff, being a professor of the university and a teacher and ex officio member of the college's academic board, was a member both of the university and of the college, and therefore subject to the jurisdiction of the visitor in each case.
Attorney-General v. Magdalen College, Oxford (1847) 10 Beav. 402 and Dean and Chapter of Chester v. Bishop of Chester (1902) 87 L.T. 618, H.L.(E.) applied.
(2) That the exclusive jurisdiction of a visitor extended to all domestic disputes and that a dispute fell within such jurisdiction if it involved members of the corporation and concerned the interpretation or application of its internal rules, customs or procedures; that a dispute was no less domestic because the rules, customs or procedures at issue were alleged to constitute terms of a contract, or because their construction or the questions of fact involved in their application, were equally conveniently justiciable by the court, that since the matters at issue involved a person who was a member both of the college and of the university and the interpretation of their internal rules, they fell within the exclusive jurisdiction of the visitor, and that, accordingly, the court lacked jurisdiction to intervene and the plaintiff's action should be struck out.
Thorne v. University of London [1966] 2 Q.B. 237 and Patel v. University of Bradford Senate[1978] 1 W.L.R. 1488; [1979] 1 W.L.R. 1066, C.A. applied.
Thomas v. University of Bradford [1986] Ch. 381 not followed.
Thomson v. University of London (1864) 33 L.J.Ch. 625 and Casson v. University of Aston in Birmingham [1983] 1 All E.R. 88 considered.
INTRODUCTION:
MOTIONS
By a writ dated 17 May 1985 the plaintiff, Albert Gregorio Hines, sought against the first defendant, Birkbeck College, (1) a declaration that its purported decision to dismiss him forthwith, if within seven days of 30 June 1983 he had not resigned from his appointment to the chair of economics at the college, and its purported dismissal of him, pursuant to that decision, were ultra vires, null and void; (2) payment of salary and emoluments due to him from the date of the purported dismissal until judgment in the action, together with interest thereon pursuant to section 35A of the Supreme Court Act 1981, as amended; (3) damages for breach of contract; and costs. Against the second defendant, the University of London, the plaintiff sought an injunction restraining the university from divesting the plaintiff of his title of Professor of Economics, or his status of appointed teacher in the university.
On 19 June 1985 the University of London issued a notice of motion seeking an order that the plaintiff's claim against it be struck out on the ground that the court had no jurisdiction over it, in respect of the subject matter of the claim, or alternatively, an order pursuant to the inherent jurisdiction of the court and R.S.C., Ord. 18, r.19 that the plaintiff's claim against it be struck out on the ground that it was frivolous, vexatious, and an abuse of the process of the court, and that the costs of the application be paid by the plaintiff.
On 20 June 1985 Birkbeck College issued a notice of motion seeking an order pursuant to R.S.C., Ord. 18, r.19, or alternatively under the inherent jurisdiction of the court, that the plaintiff's claim against the college be struck out on the grounds that it disclosed no reasonable cause of action, was vexatious and was an abuse of the process of the court; alternatively an order that the plaintiff's claim against the college be struck out on the ground that the court had no jurisdiction in respect of the subject matter of the claim, such jurisdiction being vested exclusively in Her Majesty as visitor of the college and an order that the costs of the action (including the costs of the application) be paid by the plaintiff.
The facts are stated in the judgment.
COUNSEL:
John Knox Q.C. and Mark Studer for the University of London: This is an academic dispute which hinges on the two functions of a university teacher, namely research and teaching. The only relief in the action which is sought against the university is an injunction restraining it from divesting the plaintiff of his title of Professor of Economics or his status of appointed teacher in the university; and the interlocutory relief sought is to restrain the university until trial from giving further consideration to these matters.
Where a university has a visitor, whatever relates to the internal arrangements and dealings with regard to the government and management of the university is within the exclusive jurisdiction of the visitor and outside the jurisdiction of the court: Thomson v. University of London (1864) 33 L.J.Ch. 625. The classic example of a matter relating to the internal arrangements of a corporation is the removal or "amotion" of a member of the corporation. The determination of questions of disputed membership of a university has always been a function of the visitor: Patel v. University of Bradford Senate [1978] 1 W.L.R. 1488.
Here the matter in issue is the propriety of the university's proposal to deprive the plaintiff of his status and title, which is narrower than a question of disputed membership. The question whether a person is fit to be retained as a teacher at a university is no different from the question whether a person ought to be elected to a fellowship: Rex v. Dunsheath, Ex parte Meredith [1951] 1 K.B. 127.
The complaint of the plaintiff against the university is a complaint about status rather than contract. If any contract exists between the plaintiff and the university it can consist only in the appointment of the plaintiff to an office pursuant to the university's statutes and regulations. Mere appointment to an office does not constitute a sufficient contract to oust the visitor's jurisdiction: Whiston v. Dean and Chapter of Rochester (1849) 7 Hare 532.
The source of the plaintiff's rights and duties in relation to the university lies in the statutes and regulations which relate to its corporate structure. These statutes and regulations are intended for the domestic government of the university and the court should not interfere with the university's constitutional workings unless it is shown to act without jurisdiction: R. v. Dunsheath, Ex parte Meredith [1951] 1 K.B. 127; and Thorne v. University of London [1966] 2 Q.B. 237.
The clear law in England is that the jurisdictions of the visitor and of the court are mutually exclusive. There may be some doubt as to where to draw the line between the two jurisdictions, but once it is drawn there is no question of any concurrent jurisdiction save in a temporal sense. [Reference was made to an article by Dr. J. W. Bridge entitled "Keeping Peace in the Universities: The Role of the Visitor" (1970) 86 L.Q.R. 531 and also to an article by Dr. Peter M. Smith, "The Exclusive Jurisdiction of the University Visitor" (1981) 97 L.Q.R. 610, and to In re Wislang's Application [1984] 5 N.I.J.B. 1; [1984] C.L.Y. 2462.]
In order to determine the correct jurisdiction it is necessary to identify what the dispute is about. The court is entitled to look at the evidence to establish the essential nature of the claim. There may be cases where "domestic" contracts fall within the visitor's jurisdiction, and therefore the preferable test is not to exclude from the visitor's jurisdiction all cases with a contractual element, but to ask whether the essential character of the dispute relates to matters of internal management of the corporation. [Reference was made Casson v. University of Aston in Birmingham [1983] 1 All E.R. 88.] The prospective removal of the status and title of the plaintiff and the further consideration of these matters are domestic processes of the university falling within the exclusive jurisdiction of her Majesty the queen in Council, as the visitor. There is nothing to suggest that Her Majesty in Council is not competent to deal with any domestic disputes which may arise, and in practice it is not uncommon for such matters to be dealt with informally by way of written submission to the Privy Council. In any event the question is one of jurisdiction and the court is not concerned with the competence of the visitor or the convenience of the university's procedures. On the second part of the university's motion, the plaintiff's claim is vexatious and an abuse of process. The plaintiff did not avail himself of the university's procedures. His claim against the university relies on the university's procedures having been dependent upon those of the college. In fact the separation of the respective procedures of the college and the university is so clear, and the character of the university as a federal institution so well established, that even if one assumes that the college's disciplinary procedures were vitiated, the university was nevertheless entitled to conduct is own investigation.
James Munby, for Birkbeck College: It is correctly conceded by the plaintiff that the college is an eleemosynary corporation and that, notwithstanding the silence of the charter and statutes of the college on the subject, Her Majesty the Queen is the visitor. It makes no difference that no visitor has been appointed: see Tudor on Charities 7th ed., (1984) 312-314, 316; Picarda on The Law and Practice Relating to Charities (1977) 422-424; an article entitled "Keeping Peace in the Universities: The Role of the Visitor" by Dr. J. W. Bridge, 86 L.Q.R. 531, at 532-534; Patel v. University of Bradford Senate [1978] 1 W.L.R. 1488, 1491-1492 and In re Wislang's Application [1984] 5 N.I.J.B. 1.
The submissions on behalf of the university are adopted. The following further points are made. The jurisdictions of (i) the court and (ii) the visitor are fundamentally distinct: they are mutually exclusive. In principle, therefore, although it may be difficult to ascertain there must be a clear line of demarcation - "a water-tight bulkhead." The present application goes to the court's jurisdiction to entertain the action at all. The question is properly and necessarily dealt with by the present procedure: see Rex v. Dunsheath, Ex parte Meredith [1951] 1 K.B. 127; Thorne v. University of London [1966] 2 Q.B. 237, 240, 242; Patel v. University of Bradford Senate [1978] 1 W.L.R. 1488, 1493-1494; and compare In re Wislang's Application [1984] 5 N.I.J.B. 1.
The court reaches its decision by examining the materials which the plaintiff and the defendant have put before it, i.e. the statement of claim and the defence, etc. One has to look (a) at the substance of the plaintiff's complaint, (b) at the form of procedure and the cause of action which he has chosen to adopt, and (c) the factual and legal materials which he uses in support of his case. The critical task is to identify the essential character of the dispute. Here, the substance of the complaint is a wrongful decision as to the plaintiff's performance of his duties within the relevant department as a university teacher, and the plaintiff relies not only upon the college's statutes and charter and the "custom" of the college, but also upon what is said to have been procedurally wrongful and unfair conduct of the college's internal procedures.
The visitor's jurisdiction is limited to "collegiate persons"; this is not limited to corporators properly so called but extends to (i) persons occupying or holding offices and appointments recognised and regulated by the college's charter and/or statutes (see Whiston v. Dean and Chapter of Rochester (1849) 7 Hare 532, 550, 553, 554-555 and 559-561; Attorney-General v. Magdalen College, Oxford (1847) 10 Beav. 402; Reg. v. Dean and Chapter of Chester (1850) 15 Q.B. 513; Dean and Chapter of Chester v. Bishop of Chester (1902) 87 L.T. 618; Herring v. Templeman [1973] 3 All E.R. 569, 571, 572; Dr. Peter M. Smith, 97 L.Q.R. 610 at pp. 625-626) and (ii) persons who, by virtue of the claim they make or the position they seek to maintain "come in and subject themselves to be at least pro hac vice members": see Thomson v. University of London, 33 L.J. Ch. 625, 634, 635 and Thorne v. University of London [1966] 2 Q.B. 237, 242. This all flows from the principle that the visitor's jurisdiction is exercisable in relation to status as defined and determined by the college's charter and statutes: see Rex v. Dunsheath, Ex parte Meredith [1951] 1 K.B. 127, 132, 134; Patel v. University of Bradford Senate [1978] 1 W.L.R. 1488, 1497, and the article by Dr. Peter M. Smith, 97 L.Q.R. 610, at pp. 611-612, 615-616, 618, 638, 639, and 641.
The mere fact that the contracting party is a "collegiate person" does not of itself vest jurisdiction in the visitor; conversely the mere fact that the claim is laid in contract or tort does not oust the jurisdiction of the visitor and vest jurisdiction in the court: see Thorne v. University of London [1966] 2 Q.B. 237 where the claim was a common law cause of action for negligence. The fundamental test is that laid down by Kindersley V-C in Thomson v. University of London, 33 L.J. Ch. 625, 634.
In its application to contractual claims the consequence of applying this test is that (i) the court has jurisdiction over claims founded solely or purely on the common law or statute law, unless the statute provides for adjudication by a tribunal and (ii) the visitor has jurisdiction over claims which, as formulated by the claimant, are in substance claims relating to matters of an internal domestic character or which require to be determined in conformity with the charter, statutes, regulations or customs of the foundation: see the article by Dr. Peter M. Smith, 97 L.Q.R. 610, 638-639, 641-644, 645-646; Casson v. University of Aston in Birmingham [1983] 1 All E.R. 88 and In re Wislang's Application[1984] 5 N.I.J.B. 1.
Stephen Sedley Q.C. and Lincoln Crawford, for the plaintiff: A visitor has no jurisdiction save over persons who are or claim to be corporators in the corporation visited. Any dicta in older cases which appear to cast the net wider are not sustainable in the light of modern authority: see Patel v. University of Bradford Senate [1978] 1 W.L.R. 1488, where Megarry V-C at p. 1495 equated corporators with those "on the foundation." Patel's case was upheld on appeal and the decision that membership was the conclusive test was the ratio decidendi of Herring v. Templeman [1973] 3 All E.R. 569 in the Court of Appeal. That concludes the matter in modern authority.
It is accepted that the plaintiff is a corporator so far as the university is concerned. It is not conceded that he is a corporator of the college. The office to which he was appointed by the university was not an office of the college.
Membership is conclusive of the visitorial jurisdiction: Thomson v. University of London, 33 L.J.Ch. 625. [Reference was made to In re Wislang's Application [1984] 5 N.I.J.B. 1, 18-21, [1984] C.L.Y. 2462; to Dr. J. W. Bridge's article, 86 L.Q.R. 531, 539, and to Dr. Peter M. Smith's article, 97 L.Q.R. 610, 616.]
Whiston v. Dean and Chapter of Rochester, 7 Hare 532 is to be distinguished from the present case. Here Birkbeck College did not appoint the plaintiff or require his occupancy of a chair in the college. In any event that case does not sit with modern authority. The basis of the decision appears to have been that the foundation was required to appoint the schoolmaster in that case to a position which he then occupied: he was therefore held to be "of the foundation."
Attorney-General v. Magdalen College, Oxford, 10 Beav. 402, is not authority for the proposition that an officer of a foundation, though not a corporator, must go to the visitor if any complaint arises to which he is a party. The note of the case at 7 Hare 564 shows that the issue was not between the college and the grammar school, nor a lis inter partes between the town clerk and the school: what Lord Langdale MR remitted to the visitor was the question whether the college was discharging its duty, i.e. an inquisitorial rather than an accusatorial question.
Whiston v. Dean and Chapter of Rochester, 7 Hare 532, wrongly took the Magdalen College case to decide what it did not decide. The proposition was wrongly advanced that the visitorial jurisdiction extends, rationae personae, to officers who are not corporators. It is an edifice built entirely on air.
In Reg. v. Dean and Chapter of Chester, 15 Q.B. 513, the argument of counsel was rationae materiae, not rationae personae. The remission of the case to the visitor was not upon any ground which went to the status of the chorister in that case: the status of the chorister was not made an issue.
The college's submissions rationae personae do not form part of the ratio decidendi of any earlier case. In any event the submission is now blocked by Megarry V-C's formulation in Patel's case [1978] 1 W.L.R. 1488, 1495. To be "of the foundation" and to be a "corporator" mean the same thing and prescribe the limit of the visitor's jurisdiction. In this court the thesis that the jurisdictions of the court and of the visitor are mutually exclusive is accepted, although the plaintiff's position is formally reserved should the matter go further. However, even if the plaintiff is subject to the jurisdiction of the college's visitor, it is still contended that the issues against the college are justiciable by the court.
The nature of the case against the university is a claim in contract. The statement of claim pleads employment by the university, and the university must show that it is unarguable if it is to succeed on the question of abuse. For the purposes of jurisdiction the court must accept the allegation at face value. Upon the predicate that the university is the true employer, the pleading then alleges that the college has purported to terminate an employment relationship to which it is not a party; if the first proposition is right, then the second must follow necessarily. If A is employed by B, he cannot be dismissed by C. If C dismisses him that constitutes the tort of interference with contractual relations.
The plaintiff's appointment to his post and the conferment of his title on him may be historically discrete, but the definition of an "appointed teacher" in the university renders them factually inseparable and coterminous in point of duration. The plaintiff's status is therefore not a matter distinct from his contract but may underpin his contractual rights. As against the university there is no issue as to the plaintiff's right to be heard. The submission is that status may support the contract and not be hived off. [Reference was made to Malloch v. Aberdeen Corporation[1971] 1 W.L.R. 1578.]
If the university proceeds to remove the plaintiff's title of professor it would be acting ultra vires, because it would be considering a motion from a status when the plaintiff's contract was assumed to have been determined but had not been. The university would have been proceeding on a false premise.
A contractual right to retain employment is underpinned when status goes with employment. It is thus justiciable not only as a breach of contract but also as a nullity which may be struck down as such. Indeed it is not necessary to characterise the university as acting ultra vires: it is sufficient to show an interference with contractual rights: see Stevenson v. United Road Transport Union [1977] I.C.R. 893. So far as the college is concerned, the grounds which the college itself advanced were void and its act was ultra vires on the principles of Associated Provincial Picture Houses Ltd. v. Wednesbury Corporation[1948] 1 K.B. 223.
It is admitted that there is philosophical force in the proposition that jurisdiction is not a matter of convenience. But here it would be impossible for the visitor to determine the issue without first also determining the claim against the college, and if the claim against the college is justiciable in court, then the court's jurisdiction will, if the university is right, be taken away and conferred on Her Majesty in Council. The court is thus faced with what looks like concurrent jurisdiction. Either the claim against the college would have to be determined, or the decision of Her Majesty in Council would have to defer to the court. [Reference was made to Casson v. University of Aston in Birmingham [1983] 1 All E.R. 88.]
The plaintiff will have a claim for interlocutory relief because if he succeeds at trial damage will have been done that cannot be made good. This is relief which cannot be afforded by Her Majesty in Council. [Reference was made to In re Wislang's Application [1984] 5 N.I.J.B. 1; [1984] C.L.Y. 2462.]
The character of the dispute is set out in the statement of claim: this is not the same as the origin of the dispute, and it is wrong to say that the origin of a dispute determines its character.
The plaintiff's alternative position is that one must look at the issue. No issue has been joined by the university in pleading, and the only issue raised by the college is as to justiciability. Here the issue is spelled out in the statement of claim. In one form or another procedures have been adopted which ought not to have been adopted. Behind those procedures lies a whole history of academic dispute, none of which has been canvassed. The issue of whether the plaintiff has misconducted himself is not an issue which is before the court.
The court is fully equipped to deal with questions of the construction of statutes, even when they are incorporated into a contract of employment. Here the plaintiff pleads custom and practice as a contractual term. The court should follow Thomas v. University of Bradford [1986] Ch. 381.
If a temporal separation is made, and the dispute with the university is referred to the visitor but the dispute with the college remains with the court, then the court would inevitably have to decide whether it was bound by the visitor's decision. The visitor would have had to construe the procedures adopted by the college, because they were a necessary pre-condition of the university's decision. In relation to the High Court the visitor is an inferior tribunal, and is amenable to supervisory jurisdiction. Mandamus will go to the visitor to exercise his jurisdiction, and the court could not be prevented from adjudicating on an argument that the visitor's view of the law was wrong. The plaintiff relies on the citation of Commonwealth cases Thomas v. University of Bradford [1986] Ch. 381: Bell v. University of Auckland [1969] N.Z.L.R. 1029; Murdoch University v. Bloom and Kyle [1980] W.A.R. 193; Vanek v. Governors of the University of Alberta [1975] W.W.R 429; Ex parte Forster, In re University of Sydney [1963] S.R.(N.S.W.) 723; Ex parte King, In re University of Sydney (1943) 44 S.R.(N.S.W.) 19 and Reg. v. University of Saskatchewan, Ex parte King (1968) 1 D.L.R. (3d) 721.
In Thomson v. University of London, 33 L.J.Ch. 625, Kindersley V-C did not demur to the idea that the court could adjudicate upon a contract if there was one. The issue in the present case is much wider than that in Rex v. Dunsheath, Ex parte Meredith [1951] 1 K.B. 127; in any event that case is support only for the proposition that any matter concerning the order paper for a meeting of the Convocation of London University is a matter for the visitor alone. [Reference was made to Whiston v. Dean and Chapter of Rochester, 7 Hare 532; Patel v. University of Bradford Senate [1978] 1 W.L.R. 1488; [1979] 1 W.L.R. 1066 and to the article by Dr. Peter M. Smith, 97 L.Q.R. 610.]
The rationale for excluding certain issues from the court's jurisdiction is that they are classically non-justiciable. Thus the issues in Thomson v. University of London, 33 L.J.Ch. 625, and Rex v. Dunsheath, Ex parte Meredith [1951] 1 K.B. 127 were not issues on which forensic judgment had any part to play. It is a different question whether the university will be acting unlawfully if it proceeds to consider stripping the plaintiff of his title of Professor.
In re Wislang's Application [1984] 5 N.I.J.B. 1; [1984] C.L.Y. 2462 is inconsistent with Thomas v. University of Bradford [1986] Ch. 381. The decision in the latter case is supported by the reasoning in Norrie v. University of Auckland Senate [1984] 1 N.Z.L.R. 129.
The university has argued that the court will not interfere unless it is shown that the university is acting without jurisdiction: that is arguably pleaded on the statement of claim.
On abuse, it is said that the case against the university cannot succeed; but the real difficulty is in saying, with certainty, who the plaintiff's employer is. On one view the contract of employment may be tripartite. The university's "Regulations of university titles" do not provide for the college to have a power of dismissal. It is accepted that in theory the plaintiff could be employed by the university, but yet be dismissible by the college.
Knox Q.C., in reply: There are two main questions in this case: first the test for separating the jurisdictions of the visitor and of the court; and second, the identification of the relevant issues, in giving effect to the test.
On the first question, the test is domesticity. The plaintiff puts the test on the footing of justiciability, but this cannot be accepted unless it is restricted to aptness of the subject matter. The decision in Thomas v. University of Bradford [1986] Ch. 381 was put on the footing that what was involved was an easy question of construction; but both these footings look to the juristic nature of the tribunal's function and its procedures rather than the question at issue and its relation to the internal organisation of the corporation in question.
The submissions for the college on the mutual exclusivity of the jurisdictions of the visitor and of the court are adopted. The decision in Thomas v. University of Bradford blurs this mutual exclusivity: it also adopts a test which would exclude the jurisdiction of the visitor where there is any employment at all. On the authorities that is too wide. In any event it is to be noticed that Whitford J in that case would have reached a different decision if the case had been one which raised the question of "a good cause" for dismissal. Here the case against the university is one of "good cause."
On the second question, there are perhaps four approaches by which one may conduct the inquiry into identification of the relevant issues: (i) One may look only at the statement of claim, and the documents therein referred to. This approach would result in the issue against the college being the validity of the college's procedures and, as against the university, the validity of those procedures and the university's prospective reliance on them. (ii) One may look at the statement of claim and, in the light of the evidence, at the apparent defences to the claim. This approach is not significantly different from (i), but there would be a wider range of material available to the court. (iii) One may look at the issue within the issue, i.e. the substance of the dispute in respect of which the pleaded issues arise on the basis of the statement of claim and the evidence filed. Here the substance of the question which
the university is to consider is whether or not it would be proper for the plaintiff's status and title to be removed. (iv) One may approach the matter historically, in order to see what gave rise to the dispute in the first place. In selecting the correct approach the court must have regard to three considerations, namely (a) to the mutual exclusivity of the respective jurisdictions of the visitor and of the court, (b) to the fact that the correct test of jurisdiction is domesticity and (c) to the predisposition of the court not to construe the visitor's jurisdiction restrictively: see Patel v. University of Bradford Senate [1978] 1 W.L.R. 1488.
Having regard to these considerations, the arguments favour approach (iii), which looks at the issue within the issue. The historical approach (iv) is too lax, and approaches (i) and (ii) take a narrow procedural course. The question of identifying the relevant issues is not the same as determining whether or not there is an arguable case. [Reference was made to Bell v. University of Auckland [1969] N.Z.L.R. 1029.] An overall decision has to be taken by analysis of the issues.
JUDGMENT BY HOFFMANN J, read 8th July:
In this action Professor Albert Hines, Professor of Economics in the University of London, claims that in July 1983 Birkbeck College unlawfully purported to dismiss him from the post which he held at the college. He also claims that the university would be acting unlawfully if it continued with the procedures which have been set in motion to withdraw his title and status of professor.
There are before the court two motions by the college and the university, respectively, to strike out the claim on the ground that the issues which it raises are within the exclusive jurisdiction of the college or university visitor, as the case may be, or alternatively on the ground that the claims are frivolous and vexatious. If his claim against the university is not struck out, the plaintiff, has in reserve a motion for an interlocutory injunction to restrain the university until trial from giving further consideration to the withdrawal of his title and status.
In my judgment the motions of the college and the university succeed and the claims against both of them must be struck out.
Before describing the claims as pleaded by the plaintiff, I must explain how he came to be a professor of the university but to hold his post at the college. The University of London was incorporated by Royal Charter in 1836. Its affairs are now regulated by the University of London Act 1978 and the university statutes. It is a federation of self-governing schools. One of these is the college, which was incorporated by Royal Charter in 1926. As a school of the university, the affairs of the college are regulated partly by the Act and the university statutes but otherwise by its own charter and college statutes.
Admission as a school of the university involves the concession of certain powers by the school to the university. University statute 112 provides that before any institution is admitted as a school, its governing body must give the senate of the university a written assurance that it will permit the senate to determine, in consultation with the school, what posts in the school shall be held by "Appointed teachers," an expression defined to mean professors or readers of the university. The school must also be willing to permit the conferment of the title of professor or reader of the university to rest with the senate and to allow it power, subject to the university statutes, of appointment to and removal from posts in the college held by appointed teachers. University statute 118(i) gives the senate the power to appoint to a post which is to be held by an appointed teacher but statute 122 provides that if the salary to be attached to the post is provided wholly by the school the appointment requires the consent of the governing body of the school.
According to this procedure a chair of economics was established in the college and in November 1971 the senate, with the consent of the governing body of the college, resolved to appoint the plaintiff to the chair and confer upon him the title of professor of economics with the status of appointed teacher in the University of London. University statute 120 provides:
"The duties, tenure, remuneration and conditions of service, retirement and superannuation which shall apply to any person to be appointed to any post in a school to be held by an appointed teacher... shall be determined or approved by the senate in consultation with the governing body of the school."
Pursuant to this power the senate resolved that the appointment be on the general conditions prescribed in the regulations on university titles, certain further conditions set out in a senate minute dealing with the particular chair and subject to the statutes and regulations of the university and the college.
The general duties of a professor in the University of London are under regulation 4.5.2 on university titles:
"to conduct such classes and give such lectures and other teaching as may be necessary and to assist in the supervision and direction of the work of special and advanced students, and to do all in his power to promote, by research and otherwise, the advancement of his subject."
The minute dealing with the particular chair provided that the incumbent would be a member of the department of economics at Birkbeck College and that the whole of his salary would be provided by the college. He also became ex officio a member of the academic board of Birkbeck College. This latter body is created by college statute V.1 and its principal function is to make representations to the college governors on academic matters. The statute provides that no final decision on an academic matter shall be taken by the governors unless the academic board shall have had an opportunity of expressing an opinion upon it.
The events which led up to the plaintiff's dismissal by the college are described in his statement of claim which for the purposes of these motions I assume to contain a true recital of the facts. In the academic year 1980-81 he was on paid leave, engaged on a research project. In the following year 1981-82, he was at his request given unpaid leave to continue work on his project. At the beginning of the 1982-83 academic year the project was still unfinished and he canvassed with the master of the college and certain of his colleagues in the department of economics the possibility of an extension of his leave. On 1 November 1982 the master wrote refusing him further leave. The head of the department of economics assigned him certain teaching duties but he refused to perform them. On 31 January 1983 the master wrote giving him two weeks within which to take up the assigned teaching duties but he still refused to do so. On 16 February the master initiated certain procedures which led first to his suspension and then dismissal.
University statute 118(ii) provides that the removal of a teacher from a post of appointed teacher shall rest with the senate, but subject to the proviso that the exercise of this power is to be without prejudice to "any power exercisable by the governing body of any school... under the terms on which a teacher holds a post on its teaching staff, to terminate his tenure of such post." The governors of Birkbeck College are its governing body and sole corporators. College statute IV.2, which formed part of the terms on which the plaintiff was appointed to his chair, provided:
"The governors shall appoint... all members of the academic staff (except that professors and readers shall be appointed by the senate of the University of London and under conditions of tenure approved by the senate subject to the concurrence of the governing body) ... and shall have power to remove the same (subject in the case of professors and readers to the provisions concerning their removal contained in the University of London regulations on university titles for the time being)."
These regulations contain nothing to restrict the power of the college to remove a professor. On the contrary, regulations 6.2 and 6.3 show that in the case of misconduct by a professor whose salary is wholly provided by the college, the senate has power to deprive him of his status or title but not to remove him from his post. Such power therefore rests only with the college.
The college statutes say nothing about the circumstances in which the power to remove a professor may be exercised, nor do they prescribe any procedure to be followed when it is invoked. But the governors, no doubt bearing in mind that the status or office of professor may entitle the holder to the observance of procedural requirements based upon principles of natural justice (see Lord Wilberforce in Malloch v. Aberdeen Corporation [1971] 1 W.L.R. 1578, 1594-1596), have framed regulations entitled "Procedure Against Misconduct" for dealing with allegations of serious misconduct against, among others, members of the academic staff. These provide that the master (to whom the governors are entitled under the statutes to delegate powers) shall have a power of suspension, taking effect immediately but without affecting the suspended person's right to emoluments or pension. On 16 February 1983 the master suspended the plaintiff, with immediate effect.
If the master has exercised his power of suspension, he has under the procedure to inform the governors of what he has done and to summon a "consultative group" of certain members of the academic staff and officers of the college for the purpose of considering the case (with provision for the suspended person to be heard) and drawing up a report and recommendations for submission to the governors. The suspended person is entitled to be informed of the contents of the report and recommendations before it is submitted to the governors and to elect, if he so desires, to have his case referred to a tribunal. In that case, a tribunal consisting of "persons independent of previous participation in the case" must be appointed by the governors and the group's report is not sent to the governors but is instead presented as, so to speak, the case for the prosecution before the tribunal. The suspended person has the right to be heard in his defence and to have legal representation. The tribunal then makes a report and recommendations and the governors consider the case on the basis of the report of the tribunal or, if no tribunal was requested, the report of the consultative group.
Again I take the facts from the statement of claim and for present purposes assume them to be true. The consultative group was summoned and met on about five occasions. It included the master and the head of the department of economics, both of whom had been involved in the decision to assign teaching duties to the plaintiff. He was not told in advance of the case which he had to meet or given a copy of the Procedure Against Misconduct. He was invited to attend one meeting where the master orally outlined certain allegations against him, some of which he challenged. At the end of the meeting he was asked in general terms whether he wished to say anything but at that point the master left the room and did not hear his statement. He was not present on the other occasions when the group heard oral evidence or received written memoranda.
The group prepared a report dated 26 April 1983 which concluded that the plaintiff had been guilty of serious misconduct in refusing to carry out teaching duties, contrary to regulation 4.5.2 on university titles which I have quoted above. It recommended that unless he gave a written undertaking that he would perform such duties he should resign. A copy of the report was sent to the plaintiff at his London address together with letters asking whether he wished the case to be referred to a tribunal. He had gone to the United States and the letters did not come to his attention until 16 June. By this time the report had been sent to the governors, who were due to consider it on 30 June. On that date the governors met, considered the report and accepted the group's findings that the plaintiff had been guilty of serious misconduct. They resolved that unless the plaintiff resigned within seven days he should be dismissed. A letter in these terms written to him on 30 June took effect as a dismissal on 7 July 1983.
The result of these actions, if legally effective, was that the plaintiff had been removed from his post in the college but retained the title and status of professor of the university. The removal of this title and status was a matter within the exclusive competence of the senate and subject to its own procedures. These are set out in regulation 6 on university titles. The case must first be considered by a committee consisting of the vice-chancellor and four other senior members of the university in conference with three assessors representing the school. The committee's report must be forwarded to the governing body of the school for comment and the report and comments then communicated to the senate through the academic council.
On 20 July 1983 the master of the college wrote to the principal of the university reporting that the plaintiff had been dismissed, enclosed a copy of the report of the consultative group and invited the senate to take steps to deprive him of his title and status. A committee was then set up pursuant to regulation 6. I do not need to describe in detail the steps taken by the committee to give the plaintiff an opportunity to make representations in his own defence because it is conceded that no complaint can be made about them. On 22 November 1983, the committee met and considered the case, as the plaintiff had been notified they would, on the basis of the uncontradicted allegations in the letter from the master of the college and the report of its consultative group. It prepared a report which recommended that he be deprived of his title. The writ in this action was issued on 17 May 1985, shortly before the committee 's report was due to be considered by the senate. In view of these proceedings, the matter was deferred but, unless the university is restrained by injunction, the senate proposes to proceed with the consideration of the report on 10 July 1985.
I shall consider first the objections on the ground that the matters in issue are within the exclusive jurisdiction of the visitor. This is a subject rich in authority. Many of the earlier cases are discussed by Sir Robert Megarry V-C in Patel v. University of Bradford Senate [1978] 1 W.L.R. 1488, a judgment which was approved by the Court of Appeal [1979] 1 W.L.R. 1066. Authorities since Patel's case include a determination by Lord Hailsham of St. Marylebone L.C. as visitor, in Casson v. University of Aston in Birmingham [1983] 1 All E.R. 88 and recent decisions by Kelly LJ, sitting as a judge of the Queen's Bench Division in Northern Ireland, in In re Wislang's Application [1984] 5 N.I.J.B. 1 and Whitford J in Thomas v. University of Bradford [1986] Ch. 381. Other material to which I was referred included a decision of the New Zealand Court of Appeal in Norrie v. University of Auckland Senate [1984] 1 N.Z.L.R. 129 which contains an interesting discussion of underlying issues of public policy and an article by Dr. P. M. Smith in (1981) 97 L.Q.R. 610 which was commended by Lord Hailsham of St. Marylebone in the Casson case [1983] 1 All E.R. 88. The existence of so much judicial and academic guidance is usually a sign that the law is in an unsatisfactory state.
A visitatorial power is an incident of an eleemosynary corporation, that is to say, a corporation founded for the purpose of distributing the founder's bounty. Educational institutions such as the university and the college are classified as eleemosynary corporations. The visitor of the university named in the statutes is Her Majesty in Council. The charter and statutes of the college do not name a visitor and it follows that since the college was incorporated by Royal Charter the visitor is Her Majesty, exercising her powers through the Lord Chancellor.
The visitor is a domestic forum appointed by the founder for the purpose of regulating the foundation's domestic affairs in accordance with its statutes, including the determination of domestic disputes. As Sir Robert Megarry V-C said in Patel's case [1978] 1 W.L.R. 1488, 1493: "The visitor has a general jurisdiction over all matters in dispute relating to the statutes of the foundation and the internal affairs and membership of the corporation." On the other hand he has no jurisdiction over matters which are not concerned with the enforcement of the internal rules of the foundation, such as disputes with non-members or contracts between the corporation and members which involve the application of the general law. These are within the jurisdiction of the ordinary courts. It is conceded that the jurisdictions 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.
The first question is whether the plaintiff is a person over whom the visitors of the university and the college can have jurisdiction. Mr. Sedley concedes that he is subject to the jurisdiction of the university visitor. By virtue of his office of professor he is a member of the university as defined in the statutes and he also happens to be a graduate of the university. As graduate, but not as professor, he is one of the corporators named in the university's fourth charter which was confirmed by the University of London Act 1978. But the only corporators named in the college charter are the governors. Mr. Sedley argues that the college visitor has no jurisdiction over the plaintiff on the ground that only corporators can be subject to the jurisdiction of the visitor of a corporation.
It is true that in Patel's case [1978] 1 W.L.R. 1488 Sir Robert Megarry V-C equated "members of the foundation" or "those on the foundation" with corporators. But Mr. Patel had been both a member and a corporator of the university and it was therefore not necessary to make any distinction between the two. A similar assumption of equivalence appears to have been made by Stamp L.J. in Herring v. Templeman [1973] 3 All E.R. 569 but the contrary does not appear to have been argued. Earlier authorities show that a person may be subject to the visitor's jurisdiction without being a corporator. Attorney-General v. Magdalen College, Oxford (1847) 10 Beav. 402, a relator information, was an attempt by the town clerk of Oxford to force the college to maintain Magdalen College School in accordance with the provisions of the original college statutes. These required the college to appoint a master and usher for the school and allow them a stipend, rooms and commons out of the corporate revenues. Lord Langdale MR dismissed the information on the ground that the enforcement of the statutes was within the exclusive jurisdiction of the visitor. The decision is therefore not directly in point, but in support of his view that the visitor had jurisdiction over the school, Lord Langdale MR noted, at p. 408, that in 1520 the Bishop of Winchester as visitor had "admonished the schoolmaster, who was detected or exposed at the visitation" and that in 1576 and 1585 the schoolmaster and usher were summoned as persons who ought to be present at a visitation. They seem therefore to have been treated as subject to the visitor's jurisdiction. Neither was a corporator but they were "on the foundation" in the sense that the statutes provided for them to hold their offices in order to discharge educational duties placed upon the college.
Similarly in Whiston v. Dean and Chapter of Rochester (1849) 7 Hare 532 the master of the grammar school established by the statutes of Rochester Cathedral was held to be within the jurisdiction of the visitor of the cathedral and in Reg. v. Dean and Chapter of Chester (1859) 15 Q.B. 513 the same was held to be true of a chorister of Chester cathedral. Neither were corporators but in each case the statutes provided for their offices. Finally in Dean and Chapter of Chester v. Bishop of Chester (1902) 87 L.T. 618 it was assumed by the House of Lords that the schoolmaster of the King's School, Chester, established by the statutes of Chester cathedral, was, under the original statutes, subject to the jurisdiction of the cathedral visitor. The question for decision was whether this had been altered by a scheme made under the Endowed Schools Act 1869. Lord Davey said, at pp. 620, 621:
"The statutes of Henry VIII provide for the maintenance of a grammar school as an integral part of the cathedral foundation, and for two teachers of grammar, of whom one shall be headmaster and other usher, to be maintained out of the cathedral revenues. The grammar masters are not, of course, members of the ecclesiastical corporation, but, together with other persons fulfilling useful functions though of a humble character, they are styled ministers or officers of the church... if the present master [as a result of the scheme] is not a minister or officer of the cathedral the bishop, as visitor, has no jurisdiction over him..."
These authorities seem to me to show that the jurisdiction extends beyond corporators to all persons who can be described as members of the institution or as being on the foundation. In the case of the University of London itself, the charter now in force defines the corporators as certain named persons, the chancellor and all persons on whom the university has conferred or may confer degrees. The membership of the university as defined in the statutes extends also to the members of the court and the senate, the professors, readers and other teachers of the university and the students. In my judgment all members are within the visitatorial jurisdiction.
The college statutes 8 and 9 refer to "Members of the college" but this expression is not defined. But the latter statute clearly contemplates that teachers are members. The plaintiff was not only a teacher at the college, but ex officio a member of its academic board. In my view he was a member of the college within the meaning of the statutes. As a professor holding a post at the college for the purpose of enabling it to carry out its primary purpose as an educational foundation and paid out of the college revenues, he was also on the foundation in the same sense as the masters of the cathedral or college schools. I do not think that it matters that his chair is not specifically mentioned in the college statutes. The college statutes expressly contemplate that the college is to be a school of the university and in my view it is sufficient that the chair was established at the college under provisions in that behalf in the statutes of the university.
It follows that the plaintiff is a person subject to the jurisdiction of both visitors.
The next question is whether they have jurisdiction over the subject matter of the dispute. I shall first consider his case against the college. It can be summarised as follows. First, that the allocation to him of teaching duties by the master and head of the department was contrary to the custom and practice of the college, which required such allocation to be "decided by consensus at a meeting of the teaching staff." Secondly, that the consultative group acted contrary to principles of natural justice by not informing him in advance of the "Procedure Against Misconduct" or the case against him, by including the master and head of department in its membership, by receiving evidence in his absence and by the master absenting himself when the plaintiff spoke in his own defence. Thirdly, that contrary to the "Procedure Against Misconduct" he was not given an effective opportunity to elect for a tribunal. Fourthly, that the governors resolved to dismiss him without referring the matter to the academic board when the college statutes required that no final decision on an academic matter should be taken until the academic board had had the opportunity to express its opinion.
Mr. Munby for the college says that all these matters of complaint relate to the interpretation and application of the college's internal rules and procedures, which are properly a matter for the visitor. In Herring v. Templeman [1973] 2 All E.R. 581, 591, Brightman J said that complaints of defective procedure and lack of a fair hearing were "essentially matters which touch the internal affairs or government of the college and are therefore matters confided by law to the exclusive province of the visitor." The authority of this statement is unaffected by the subsequent appeal. Furthermore, the substance of the dispute is whether the plaintiff should be removed from his post at the college and thereby expelled from its membership. Questions of disputed membership are also for the visitor: Patel v. University of Bradford Senate [1978] 1 W.L.R. 1488.
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.
It is clear that in the early cases on removals from fellowships at Oxford or Cambridge there was no suggestion of any kind of contract. The expelled fellow claimed an office held by virtue of the college statutes and nothing else. The first reference to a contractual claim was in Thomson v. University of London (1864) 33 L.J.Ch. 625 in which it was alleged that the university by its registrar had entered into a contract with the plaintiff by which it was agreed that a certain interpretation would be given to the regulations for the award of a gold medal upon the results of the LL.D. examination. Kindersley V-C said that no such contract had been proved and therefore did not consider whether it would have fallen outside the visitor's jurisdiction. He did, however, say, at p. 634: "when it comes to... 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." Kindersley V-C did not therefore treat the allegation of a cause of action in contract as necessarily ousting the jurisdiction of the visitor. Whether he would have regarded the plaintiff's contract of employment as sufficiently domestic, at any rate so far as it incorporated the internal rules of the domus, is a matter for conjecture.
A century later in Thorne v. University of London [1966] 2 Q.B. 237 another dissatisfied candidate for a law degree complained that his examination papers had been negligently marked. He framed his action as a common law claim in damages for negligence but it was nevertheless struck out on the ground that it related to a domestic dispute within the university. This decision of the Court of Appeal makes it impossible to argue, at least in this court, that the nature of the cause of action determines whether the case falls within the visitor's jurisdiction. The only plausible alternative criterion is that the question is determined by the domesticity of the dispute. In Casson v. University of Aston in Birmingham [1983] 1 All E.R. 88 Lord Hailsham of St. Marylebone LC, on behalf of Her Majesty as visitor, declined jurisdiction to adjudicate on a claim for damages for breach of contract by the university, which it was alleged had agreed to provide a certain course of instruction and then failed to do so. Lord Hailsham LC said, at p. 91, that he regarded 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." The dispute therefore lacked domesticity in that the alleged contract was made with an outsider and did not involve the interpretation or application of any of the internal rules of the university.
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 LJ 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 the 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 (1808) 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 interpretation of questions of fact..."
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.
This conclusion accords with the decision of Kelly LJ in In re Wislang's Application [1984] 5 N.I.J.B . 1 but not with that of Whitford J in Thomas v. University of Bradford [1986] Ch. 381. Counsel agreed that these cases cannot be reconciled and I am in the somewhat embarrassing position of having to choose between them. Thomas v. University of Bradford [1986] Ch. 381 was similar to the present case in that it was a claim by a dismissed university lecturer for a declaration that her dismissal was null and void and for arrears of salary or damages on the ground that various internal rules and procedures governing the dismissal of staff had not been observed. Whitford J said, at p. 395, that "by writing the rules into the contract [of employment] the question at issue has been brought within the jurisdiction of the court..." This treats the allegation of a common law cause of action as determinative and is in my respectful view contrary to Thorne v. University of London [1966] 2 Q.B. 237. I note, however, that counsel for the university in that case, while arguing that the question of the construction and application of the internal rules was within the jurisdiction of the visitor, is recorded as conceding that after the visitor had determined the matter the plaintiff could bring an action for damages in the courts and that the court would not be bound by the visitor's determination. 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. I say nothing about the extent to which, in the modern law, errors in the visitor's determination may be corrected by judicial review. But in the absence of such correction the determination of the visitor will in my view be binding between the same parties in any subsequent court proceedings in which the same questions may be in issue. I also say nothing about proceedings before industrial tribunals to which different considerations may apply.
It follows that the matters in dispute between the plaintiff and the college are within the exclusive jurisdiction of the college visitor and his claim against the college in this court must be struck out. The argument for the jurisdiction of the university visitor over his dispute with the university is even stronger. Although a contract of employment with the university is pleaded, the only relief sought against the university is an injunction to restrain the progress of the university's internal procedures leading to the withdrawal of his title as professor and status as appointed teacher. This dispute is in my judgment wholly domestic and I have no jurisdiction to interfere by injunction: compare Rex v. Dunsheath, Ex parte Meredith [1951] 1 K.B. 127.
These conclusions make it strictly unnecessary for me to rule upon the alternative submissions for the college and university that the claims should be struck out as frivolous and vexatious but I shall deal with them briefly. Mr. Munby conceded that with a certain degree of clarification the case pleaded against the college would, if it was within the court's jurisdiction, disclose a triable issue and I need therefore say nothing more about it. Mr. Knox, on the other hand, submitted that upon the pleadings and the documents put in evidence, there was no arguable case against the university.
It is not alleged that, in applying the procedures laid down by regulation 6 on university titles, the university has failed to observe the requirements of natural justice. Mr. Sedley expressly disclaimed such an allegation. Nor is any issue taken on whether there was material before the committee which could justify its conclusion that the professor had been guilty of misconduct meriting deprivation of his title. The essence of the claim against the university, as pleaded in paragraph 24 of the statement of claim, is that the senate is proposing to remove the plaintiff's title [of professor] "pursuant to" the dismissal proceedings of the college, which are alleged to have been ultra vires, null and void and in breach of contract.
In argument Mr. Sedley amplified this allegation by saying that the university is acting unreasonably in the Associated Provincial Picture Houses Ltd. v. Wednesbury Corporation [1948] 1 K.B. 223 sense by proceeding upon two fundamentally wrong assumptions. The first is that the plaintiff was an employee of the college and had no contractual relationship with the university. In truth, it is alleged, the employer was the university. As a result, the university is proposing to deprive the plaintiff of his title without giving proper consideration to the effect which this will have upon his subsisting contract of employment. Secondly, the university is treating the consultative group's report as a valid determination of misconduct when it is in law null and void.
I cannot see that either misconception, assuming it to exist, is relevant to the validity of the exercise of the power of deprivation by the senate. The question of who is the plaintiff's employer is for this purpose nothing more than an empty debate about labels and of no legal or practical significance. The rights and duties of the parties are perfectly clear. The university appointed the professor with the consent of the college. The college was responsible for the payment of his salary and he owed duties to both the university and the college, while the college had the power to dismiss him. Whether this means, as I think likely, that the college can be characterised as his contractual employer and the university merely a body in which he holds an office, or whether he is an employee of the university assigned to perform duties at the college, does not for this purpose matter. If he was an employee of the university, it is nevertheless clear from the terms of his employment and the university and college statutes and regulations which I have recited that the college and not the university had the power to remove him. The university only has power to deprive him of his title and that is all which it proposes to do. Mr. Sedley emphasised that his title and employment are linked in the sense that his employment is only tenable by a person having the title of professor and the status of appointed teacher. If he has not been validly removed by the college, deprivation of his title and status may therefore have the effect of disqualifying him from a subsisting employment. But there is nothing in. regulation 6 to say that deprivation proceedings can be commenced only after removal from employment and the university have at all times been aware that the plaintiff challenged the validity of his dismissal.
It is also in my judgment irrelevant that the report of the consultative group may have been null and void, that is to say, may not have had legal effect as a prescribed step in the college's procedure against misconduct. The activation of the university's procedure for the deprivation of a title under regulation 6 on university titles does not require any antecedent act or formal delation by the college. It is a wholly separate determination. The use of the report by the consultative group as material for consideration by the committee set up under the regulation is not dependent upon its having been a legally operative instrument for the purposes of the college procedures or in any other way. A letter from the master making the same allegations would have done just as well but such a letter would have been equally "null and void" in the sense of being a document which did not in itself have any legal consequences.
As no other basis is suggested for restraining the university from depriving the plaintiff of his title and status, the claim against the university is in my judgment bound to fail and if the court had jurisdiction to hear it, I would have struck it out as an abuse of the process of the court.
DISPOSITION:
Order accordingly.
SOLICITORS:
Solicitors: Dawson & Co.; Coward Chance; Bindman & Partners
T. C. C. B.