HEARING DATES: 22, 23 January 1979
Corporation - Visitor - Jurisdiction - Dispute as to membership of corporation - University - Student alleging unlawful exclusion from university - Right of access claimed on basis of membership of university - Dispute a matter internal to university - Whether dispute within exclusive jurisdiction of visitor - Whether court having jurisdiction in matter.
HEADNOTE:
In 1972 the plaintiff was admitted to the University of Bradford, a university incorporated by royal charter in 1966. He failed his examination at the end of the academic year and was permitted to sit it again in September 1973 when he again failed. The university authorities decided that the plaintiff should be required to withdraw from the university and notified him of that fact. The plaintiff's request to the university authorities to allow him to re-enter to study the course he had failed was refused. He brought an action against the university seeking (i) declarations that the university had arbitrarily, unreasonably and unlawfully refused him re-admission and lawful access to the university and (ii) an injunction and exemplary damages. The judge held ([1978] 3 All ER 841) that the plaintiff's claim fell within the exclusive jurisdiction of the university's visitor and that the courts had no jurisdiction to adjudicate on disputes which were within the visitor's jurisdiction. The plaintiff appealed.
Held
The judge was right in holding that if the constitution of a university provided for the appointment of a visitor and if the matter in dispute was appropriate to be dealt with by the university visitor the courts had no jurisdiction to intrude on the visitor's jurisdiction by deciding on the dispute. Since it was plain that the university's constitution provided for the appointment of a visitor and that the subject-matter of the plaintiff's dispute with the university authorities was within the visitor's jurisdiction the court would not interfere, and accordingly the plaintiff's appeal would be dismissed.
Decision of Sir Robert Megarry V-C [1978] 3 All ER 841 affirmed.
NOTES:
For non-interference by the High Court in matters within the province of the visitor of a university, see 15 Halsbury's Laws (4th Edn) para 284, and for cases on the subject, see 19 Digest (Repl) 655, 320-321.
For the constitution, jurisdiction and functions of the visitor, see 5 Halsbury's Laws (4th Edn) paras 872-886, and for cases on the subject, see 8(1) Digest (Reissue) 452-456, 2018-2089.
CASES REFERRED TO:
R v Senate of the University of Aston, ex parte Roffey [1969] 2 All ER 964,
[1969] 2 QB 538, [1969] 2 WLR 1418, 133 JP 463, DC, Digest (Cont Vol C) 279,
965a.
Thorne v University of London [1966] 2 All ER 338, [1966] 2 QB 237, [1966] 2 WLR
1080, CA, 8(1) Digest (Reissue) 453, 2029.
INTRODUCTION:
Appeal. The plaintiff Khandubhai Vanmalibhai Patel, appealed against the decision of Sir Robert Megarry V-C on 4th May 1978 ([1978] 3 All ER 841, [1978] 1 WLR 1488) dismissing his actions against the defendants, the University of Bradford Senate and Edward George Edwards, the Vice-Chancellor and Principal of the University of Bradford, claiming declarations that his dismissal from the university was void and unlawful, on the ground that the court had no jurisdiction to adjudicate on the matters raised by the plaintiff. The facts are set out in the judgment of Orr LJ.
COUNSEL:
The plaintiff appeared in person.
Hubert Picarda for the defendants.
PANEL: ORR, ORMROD AND GEOFFREY LANE LJJ
JUDGMENT BY ORR LJ:
This is an appeal by the plaintiff, formerly an undergraduate in the University of Bradford and who in this court as in the court below had conducted his own case, against an order made by Sir Robert Megarry V-C on 4th May 1978 ([1978] 3 All ER 841, [1978] 1 WLR 1488) striking out, on the ground that the court had no jurisdiction to adjudicate on them, both an originating summons whereby the plaintiff sought against the senate of the university a number of declarations and also a writ by which he sought two declarations, an unspecified injunction and exemplary damages against a former vice-chancellor and principal of the same university.
The background facts of the case are set out in the judgment under appeal ([1978] 3 All ER 841 at 843-845, [1978] 1 WLR 1488 at 1489-1491) and can be summarised as follows: in 1972 the plaintiff was admitted to the university to read the honours course in computer science for the degree of Bachelor of Technology. He failed his examination at the end of the academic year and was permitted to sit it again in September 1973; and again he failed. A meeting of the Undergraduate School of Studies in Mathematical Sciences recommended that the plaintiff should fail and that he should be required to withdraw from the university. The plaintiff was notified, and a meeting of the Board of Studies in Physical Sciences confirmed the recommendation; and the Senate then approved it. The Student Progress Committee subsequently considered a letter from the plaintiff, but confirmed the decision; and the plaintiff was notified. The plaintiff then applied to the chairman of his undergraduate school of studies to be allowed to re-enter. The chairman did not recommend this to the senate (the only body which can authorise re-entry), but advised the plaintiff to apply through the University Central Council of Admissions. Finally, on 4th February 1974 the chairman wrote to the plaintiff. The letter reads as follows:
'Dear Mr Patel,'Thank you for your letter. I can see that you have admirable persistence. I cannot possibly consider re-admitting you to the School of Mathematical Sciences unless you can demonstrate a significant improvement in your mathematical abilities by some such feat as obtaining some very high grades in mathematics at Alevel. You have taken our course and failed the examinations on two separate occasions in June and September 1973. Also I note a very high absence rate from tutorials. From your two failures, we infer that you lack the necessary qualities to obtain a degree in mathematics. The only subject in which you showed reasonable ability was economics and thus I can only endorse the advice already given to you by the Pro-Vice-Chancellor, Mr McKinlay, that you should abandon any idea of taking a degree in Mathematics (unless of course you can demonstrate significant improvement, as indicated [above]), and try to build on your ability in economics...' and the chairman referred to courses which there were at Bradford University.
Following that letter there was further correspondence between the plaintiff and the university authorities in which they required improved A-level standards before considering him for re-admission.
Of the declarations sought in the plaintiff's originating summons, one related to the unlawfulness of the refusal to re-admit him. The claims set out in the originating summons were for a declaration that the defendants unreasonably, arbitrarily and unlawfully withheld the examination results of the plaintiff; then there were four further declarations sought and then a declaration that on the true construction of the charter, statutes and regulations, the plaintiff was and is entitled to re-admission and that the defendants arbitrarily, unreasonably and unlawfully refused it. Then there were two further declarations sought.
The claim in the wright against the former vice-chancellor was for a declaration that the defendant arbitrarily, unreasonably and unlawfully purported to refuse the plaintiff readmission to the University of Bradford and that he arbitrarily, unreasonably, capriciously and unlawfully purported to refuse the plaintiff lawful access to the University of Bradford, and there were claims for an injunction and exemplary damages.
Counsel for the defendants advanced a preliminary objection both to the originating summons and to the writ on the ground that the court had no jurisdiction to adjudicate on the matters in issue, and the judge directed himself that to make good that objection counsel had to establish three propositions, the first that the university has a visitor, the second that the issues raised by the plaintiff were within the jurisdiction of the visitor and were therefore outside the jurisdiction of the courts, and the third that the plaintiff fell within the jurisdiction of the visitor despite the decision taken in 1973 that he should cease to be an undergraduate member of the university. The judge proceeded to consider each of those issues, referring to the relevant authorities, and came to the conclusion that on the authorities, subject to any appointment that the Crown might make but had not made, the Crown is the visitor and the Lord Chancellor the proper person to exercise on the Crown's behalf the visitatorial powers. I need only add on this part of the case that the authorities to which the judge referred included the decision of the Divisional Court in R v Senate of the University of Aston, ex parte Roffey [1969] 2 All ER 964, [1969] 2 QB 538 in which the issue which Sir Robert Megarry V-C had to decide in the present case did not arise since it was in that case expressly conceded for the University of Aston that it had no visitor.
On the second issue, whether the matters referred to by the plaintiff are of a nature which brings them within the jurisdiction of the visitor and outside the jurisdiction of the courts, Sir Robert Megarry V-C referred to further authorities and in particular Thorne v University of London [1966] 2 All ER 338, [1966] 2 QB 237, where an unsuccessful candidate for a law degree claimed damages against the university for negligently undervaluing his examination papers, and this court refused leave to appeal against an order striking out the writ and statement of claim and dismissing the action, Diplock LJ stating that the court had no jurisdiction to deal with the matter in issue. Finally Sir Robert Megarry V-C on the basis of further authorities held that the visitor's jurisdiction is not restricted to disputes between members of a university but extends to all questions of disputed membership which, in his view, plainly included the question whether the plaintiff was validly dismissed from the university and whether he was validly refused re-admission to it.
Against these conclusions of Sir Robert Megarry V-C the plaintiff now appeals on a number of grounds. He appeals, in his first notice of appeal, on a total of ten grounds, to all of which I do not find it necessary to refer. The first three were that the judge was wrong in directing the trial of a preliminary point of law on assumed facts, that he was wrong in striking out the indorsements on the originating summons under RSC Ord 18, r 19, when the defendant had failed to apply for the said order by summons of motion and that he was wrong in refusing to allow the plaintiff to open the hearing of the trial. In my judgment there is no substance in any of those grounds. The point of jurisdiction having been raised, the judge was plainly right in deciding that it should be determined first, and it was immaterial that there had been no application by summons or motion, and the judge was also right in holding that counsel who was alleging want of jurisdiction should open that part of the hearing.
In the fourth ground of appeal it is complained that the judge failed to direct himself that the action involved the serious investigations of ancient law and question of general importance, but one has only to read the judgment to appreciate that the judge fully understood that that was the position. It is said further that he misdirected himself in adjudging that the university was a charity; in my judgment there is no substance in that ground of appeal. It is further alleged that the judge misdirected himself in fact and law in holding that the plaintiff remained a student and member of the university. I have referred to the conclusions which the judge reached on that matter and need not now return to them. The seventh ground was that the judge failed to direct himself that the university had already determined that appeal did not lie to the visitor and that the visitor had already decided that the matter was not in his jurisdiction; but whatever had happened previously, quite plainly it was the duty of the judge on the submission of no jurisdiction to investigate the matter and determine it.
The eighth ground of appeal is that the judge failed to direct himself as to the fraud, conspiracy, deception and perjury of the officers of the university. That point has no relevance to the aspect of jurisdiction. It is alleged further that the judge failed to direct himself that the purported dismissal and refusal of re-admission by the defendant was arbitrary, unreasonable, void and ultra vires the charter, statutes, regulations and ordinance of the university. In my judgment none of the papers before us suggests in any way that there has been conduct of that kind, but I shall return to that matter in relation to the additional grounds of appeal.
For the reasons I have given I can find no ground in the original grounds of appeal which would justify this court in allowing the appeal.
The additional grounds of appeal are based on s 17 of the Race Relations Act 1976, that being the section dealing with discrimination in education, and states that the judge failed to direct himself to the European Human Rights Convention [Convention for the Protection of Human Rights and Fundamental Freedoms (Rome, 4th November 1950; TS 71 (1953); Cmnd 8969)], ratified by the United Kingdom in 1966, and that the judge failed to observe that the plaintiff had not been treated in conformity with the principles of natural justice and that the defendants had acted arbitrarily, unreasonably, capriciously and unlawfully. In my judgment there is no substance whatever in any of these grounds. I have referred already to the very sympathetic letter written to the plaintiff by the chairman of his undergraduate school of studies, and in my judgment it is clear that he was treated throughout with the utmost consideration. The Race Relations Act 1976 has, in my judgment, nothing to do with this case. It had not been a matter of complaint by the plaintiff before this hearing that he was being discriminated against on grounds of race. Nothing in the European Human Rights Convention has, in my judgment, been in any way contravened in this case, and it is absurd to say that the principles of natural justice had not been observed or that there had been conduct which was arbitrary, unreasonable or capricious.
For all these reasons I would dismiss this appeal.
JUDGMENT BY ORMROD LJ:
I agree. There is only one point in this appeal, and that is whether Sir Robert Megarry V-C was right first in holding that as the authorities stand if the matter in dispute is appropriate to be dealt with by the visitor of the university and the constitution of the university provides for the appointment of visitor, this court will not interfere in any such matter and will hold that it has no jurisdiction to intrude on the visitor's jurisdiction. For the reasons given by Sir Robert Megarry V-C in the court below it is plain that the constitution of this university provides for the appointment of visitor, and it is plain, in my judgment, that the subject-matter of the dispute which the plaintiff wishes to raise is within the jurisdiction of the visitor to the university. Nothing the plaintiff has said in this court goes in any way to show that those conclusions by Sir Robert Megarry V-C in the court below were erroneous.
That being so, this appeal must fail; in my judgment it must be dismissed.
JUDGMENT BY GEOFFREY LANE LJ:
I agree.
DISPOSITION: Appeal dismissed.
SOLICITORS:
Robbins, Olivey & Lake, agents for Wade & Co, Bradford (for the defendants).