Patel vs. Bradford Uni. (1/2) 1978 (original) (raw)
CHANCERY DIVISION [1985 H. No. 2468]
Patel vs. University of Bradford Senate and another (1 of 2)
[1978] 3 All ER 841, [1978] 1 WLR 1488
HEARING DATES: 25, 26, 27 APRIL & 4 MAY 1978
Education - University - Visitor - Modern university - Charter establishing university providing for appointment of visitor by Crown - No appointment made - Whether university having a visitor - Whether visitatorial powers exercisable by Lord Chancellor on behalf of Crown in absence of appointment. Corporation - Visitor - Jurisdiction - Dispute as to membership of corporation - University - Student alleging unlawfule 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 the fact. The plaintiff requested the university authorities to permit him to re-enter but his request was refused. He brought an action against the university in which he sought (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 university contended that the exclusive jurisdiction to hear the matter was in the visitor of the university and not in the courts. Although the charter establishing the university reserved to the Crown the right to appoint a visitor, no appointment had been made, and the question arose whether the university had a visitor.
Held
(i) Subject to any appointment that the Crown was pleased to make, the Crown was the visitor to the university, and the Lord Chancellor was the proper person to exercise the visitatorial powers on behalf of the Crown.
(ii) The jurisdiction of the visitor to a corporation, including a modern university, was sole and exclusive and extended as much to whether any person lawfully had or ought to have become a member of it as to whether a member had or had not lawfully been amoved, there being in each case a dispute as to membership which was a matter internal to the corporation. The courts had no jurisdiction over matters within the visitor's jurisdiction, but would, in appropriate cases, exercise control over the visitor by issuing prohibition or mandamus. Since the only basis on which the plaintiff had claimed a right of access to the university was as a member of the university, it followed that the claim fell within the jurisdiction of the visitor; and since the plaintiff's claims to an injunction and exemplary damages were ancillary to the claim to the right of access, it followed that the claims were of a nature which fell within the exclusive jurisdiction of the visitor, and so the action would be dismissed.
R v Hertford College (1878) 3 QBD 693 followed.
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:
Attorney-General v Dedham School (1857) 23 Beav 350, 26 LJ Ch 497, 29 LTOS 45, 21 JP 308, 3 Jur NS 325, 53 ER 138, 8(1) Digest (Reissue) 393, 1256.
Attorney-General v Earl of Clarendon (1810) 17 Ves Jun 491, 34 ER 190, 8(1) Digest (Reissue) 389, 1200.
Attorney-General v Talbot (1748) 3 Ark 662, 1 Ves Sen 78, 26 ER 1181, LC, 8(1) Digest (Reissue) 454, 2043.
Buller, Ex parte (1855) 3 WR 447, 25 LTOS 102, 1 Jur NS 709, 3 CLR 1158, 8(1) Digest (Reissue) 454, 2038.
Davison, Ex parte (1772) cited in 1 Cowp 319, 98 ER 1107, LC, 8(1) Digest (Reissue) 456, 2086.
Herring v Templeman [1973] 2 All ER 581, 137 JP 514, 71 LGR 295; affd [1973] 3 All ER 569, CA, 8(1) Digest (Reissue) 453, 2030.
Kirkby Ravensworth Hospital, Ex parte (1808) 15 Ves Jun 305, 33 ER 770, LC, 8(1) Digest (Reissue) 456, 2076.
Parkinson's Case (1689) Carth 92, Comb 143, Holt KB 143, 3 Mod Rep 265, 1 Show 74, 90 ER 658, 8(1) Digest (Reissue) 452, 2035.
Patel v University of Bradford Senate (13th March 1978) unreported
Philips v Bury (1694) Skin 447, [1558-1774] All ER Rep 53, Carth 180, 319, Comb 265, 314, Holt KB 715, 4 Mod Rep 106, 1 Ld Raym 5, 1 Show 360, Show Parl Cas 35, 2 Term Rep 346, 90 ER 198, HL, 8(1) Digest (Reissue) 453, 2032.
Queen's College, Cambridge Case (1821) Jac 1, 37 ER 750, LC, 8(1) Digest (Reissue) 433, 1744.
R v All Souls College, Oxford (1681) T Jo 174, Skin 12, 84 ER 1203, sub nom R v Alsop 2 Show 170, 8(1) Digest (Reissue) 454, 2039.
R v Dunsheath, ex parte Meredith [1950] 2 All ER 741, [1951] 1 KB 127, DC, 8(1) Digest (Reissue) 452, 2021.
R v Grundon (1775) 1 Cowp 315, 98 ER 1105, 21 Digest (Repl) 316, 741.
R v Hertford College (1878) 3 QBD 693, 47 LJQB 649, 39 LT 18, 42 JP 772, CA, 8(1) Digest (Reissue) 454, 2041.
R v Senate of the University of Aston, ex parte Roffey [1969] 2 All ER 694, [1969] 2 QB 538, [1969] 2 WLR 1418, 133 JP 463, DC, Digest (Cont Vol C) 279, 965a.
R v St Catherine's Hall, Cambridge (1791) 4 Term Rep 233, 100 ER 991, 8(1) Digest (Reissue) 454, 2040.
R v St John's College, Oxford (1694) 4 Mod Rep 260, 368, Comb 238, Holt KB 437, 87 ER 448, 90 ER 441, 8(1) Digest (Reissue) 456, 2085.
R v University of Cambridge (1723) 1 Stra 557, Fortes Rep 202, 2 Ld Raym 1334, 8 Mod Rep 148, 93 ER 698, 8(1) Digest (Reissue) 454, 2046.
St John's College, Cambridge v Todington (1757) 1 Burr 158, 1 Keny 441, 97 ER 245, sub nom R v Bishop of Ely 1 Wm Bl 71, 8(1) Digest (Reissue) 452, 2018.
Thomson v University of London (1864) 33 LJ Ch 625, 10 LT 403, 10 Jur NS 669, 8(1) Digest (Reissue) 453, 2028.
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.
Whiston v Dean and Chapter of Rochester (1849) 7 Hare 532, 18 LJ Ch 473, 12 Jur 694, 68 ER 220, 19 Digest (Repl) 642, 268.
Widdrington's Case, Dr (1661) T Raym 31, 1 Lev 23, 1 Keb 458, 83 ER 17, 38, sub nom Witherington v Christ College, Cambridge 1 Sid 71, 8(1) Digest (Reissue) 454, 2036.
Wrangham, Ex parte (1795) 2 Ves Jun 609, 30 ER 803, LC, 8(1) Digest (Reissue) 456, 2081.
CASES CITED:
Catherine Hall, Re, ex parte Inge (1831) 2 Russ & M 590, 39 ER 519, LC.
Prohurst's Case (1691) Carth 168, 90 ER 702.
R v Dean and Chapter of Rochester (1851) 17 QB 1, 117 ER 1181.
Robert's Case, Dr (1666) 2 Keb 102, 84 ER 65.
INTRODUCTION:
Adjourned summons and motion. By an originating summons dated 23rd September 1977 the plaintiff, Khandubhai Vanmalibhai Patel, brought an action against the University of Bradford Senate claiming, inter alia, declarations that his purported dismissal from the university was arbitrary, unreasonable, void, ultra vires the charter, statutes and regulations of the university and unlawful, and that the university had arbitrarily, unreasonably and unlawfully refused the plaintiff re-admission. By a writ dated 23rd March 1978 the plaintiff brought an action against Edward George Edwards, the Vice-Chancellor and Principal of the University of Bradford, claiming (i) declarations that he had arbitrarily, unreasonably and unlawfully purported to refuse the plaintiff re-admission to the university and that he had arbitrarily, unreasonably, capriciously and unlawfully refused the plaintiff lawful access to the university and (ii) an injunction and exemplary damages. By notice of motion dated 10th April 1978 the Vice-Chancellor and Principal moved that the indorsement of the writ be struck out under RSC Ord 18, r 19 and the inherent jurisdiction of the court as disclosing no reasonable cause of action and as being frivolous, vexatious and an abuse of the process of the court. The facts are set out in the judgment.
COUNSEL:
The plaintiff appeared in person.
Hubert Picarda for the defendants.
Cur adv vult. 4th May 1978.
JUDGMENT BY MEGARRY V-C:
This case concerns the jurisdiction of the Crown as the visitor to a modern university. There are two matters before me, each with the same plaintiff and, in substance though not in form, the same defendant. The first is an originating summons issued last year in which the plaintiff sues the University of Bradford Senate for a series of declarations. On this, counsel for the defendant has taken a preliminary objection on the score of jurisdiction. The second matter is a writ issued this year in which the plaintiff seeks two declarations, an unspecified injunction and exemplary damages against a former vice-chancellor and principal of the university. In this, counsel, who appears for this defendant also, has moved that the indorsement of the writ be struck out under RSC Ord 18, r 19, and the inherent jurisdiction as disclosing no reasonable cause of action, and as being frivolous, vexatious and an abuse of the process of the court. In each case the plaintiff appears in person. Let me say at the outset that he conducted his case with much tenacity and fluency. He evidently had made a detailed study of many authorities, though it was not always easy to keep him to what was in issue at this stage. He seems, indeed, to have had considerable previous experience, both in this Division and in the Queen's Bench Division and Court of Appeal, in relation to his complaints. The one real point before me now is counsel's contention that the exclusive jurisdiction to hear each of the cases is in the visitor of the university and not in the courts, and so the present proceedings ought not to be permitted to proceed further.
The basic facts are not in dispute. 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 Marthematical 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 ('UCCA'). Finally, on 4th February 1974 the chairman wrote to the plaintiff. The letter runs 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 A-level. 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. There are courses at Bradford University which may be more suitable for you than those in the Mathematics School. Have you considered Industrial Technology, Human Purposes and Communication, or Social Sciences? I sympathize with you over your many personal misfortunes, and I hope that you are successful in your attempt to gain an education which fits both your abilities and your requirements.'
Since then, there has been further correspondence with the university authorities in which they required improved A-levels from the plaintiff before considering him for readmission.
The declarations sought by the plaintiff in his originating summons are a mixed bag. One relates to the withholding of examination results: the complaint seems to be that the university does not publish the names of unsuccessful candidates or supply their marks. Two complaints relate to the appointment of individuals to the Student Progress Committee, two relate to the unlawfulness of the plaintiff's dismissal from the university, and one relates to the unlawfulness of the refusal to re-admit the plaintiff. I think that I had better read the claims as set out in the originating summons. What the plaintiff claims is:
1. A declaration that the defendant unreasonably, arbitrarily and unlawfully withheld the examination results of the plaintiff.
2. A declaration that the appointment of Professor D L Smare to the Student Progress Committee was invalid, void and unlawfull [sic].
3. A declaration that the appointment of Mr B Campbell by the defendant to the Student Progress Committee was invalid, void and unlawfull [_sic_].
4. A declaration that, on the true construction of the Charter, Statutes and Regulations, the defendant arbitrarily, unreasonably and unlawfully purported to dismiss the plaintiff on the grounds of matriculation, from the University.
5. A declaration that, on the true construction of the Charter, Statutes and Regulations, the plaintiff was and is entitled to readmission, and that the defendant arbitrarily, unreasonably and unlawfully refused the plaintiff readmission.
6. A declaration that, the purported dismissal of the plaintiff from the University by the defendant, was arbitrary, unreasonable, void, ultra vires the Charter, Statutes and Egulations, and unlawful [sic].'
Then there is a prayer for further or other relief.
As for the writ, the indorsement is as follows:
The Plaintiff's Claim is for:
1. A declaration that the Defendant arbitrarily, unreasonably and unlawfully purported to refuse the Plaintiff re-admission to the University of Bradford.
2. A declaration that the Defendant arbitrarily, unreasonably, capriciously and unlawfully purported to refuse the Plaintiff lawful access to the University of Bradford.
3. Injunction.
4. Exemplary damages.
5. Further or other relief.
In order to sustain his contention, counsel had to establish three propositions. First, that the university has a visitor. Second, that the issues raised by the plaintiff were within the jurisdiction of the visitor and were therefore outside the jurisdiction of the courts. Third, that the plaintiff fell within the jurisdiction of the visitor despite the events of 1973. I shall take those points in turn.
First, then, there is the question of whether the university has a visitor. The university was incorporated by royal charter on 18th October 1966. Clause 29 of the charter reserves to the Crown the right to appoint a visitor by Order in Council on the petition of the court of the university. It has not been suggested that any such appointment has been made for the University of Bradford, and so the question is whether the university has a visitor. I think the answer is clearly that the Crown is the visitor. A university created by royal charter is a royal foundation, and the long-established rule is that the corporation has a visitor consisting of the founder and his heirs unless other provision is made. That does not apply to the Universities of Oxford and Cambridge which, being civil and not eleemosynary corporations, have no visitor: but it applies to the colleges of these universities, and also to all the more modern universities which have been founded by royal charter and are eleemosynary corporations. As Lord Romilly MR said in Attorney-General v Dedham School (1857) 23 Beav 350 at 356, 53 ER 138 at 140:
'Wherever the Crown founds a charity, this Court treats the Crown as the permanent authority and visitor of the charity, unless where the Crown has thought fit to appoint a spcial visitor; and in these cases, it is necessary to apply to the Lord Chancellor, by petition, in his visitatorial character, to exercise jurisdiction on behalf of the Crown as visitor.'
These last words reflect authorities such as Attorney-General v Earl of Clarendon (1810) 17 Ves Jun 491 at 498, 34 ER 190 at 193. These show that where the Crown is the visitor, the visitatorial functions are exercised by the Lord Chancellor on behalf of the Crown, acting in a capacity distinct from his judicial capacity. The Supreme Court of Judicature (Consolidation) Act 1925, s 19(5), prevents any such jurisdiction from vesting in the High Court. The rule that the Crown is the visitor when a power to appoint a visitor reserved in the charter has not been exercised may not have been present to the minds of the court in R v Senate of the University of Aston, ex parte Roffey [1969] 2 All ER 964, [1969] 2 QB 538, a case concerning examination regulations and results. Early in the leading judgment Donaldson J at 966, 543 referred to the power and the fact that no appointment had been made, but thereafter any question of the visitor's jurisdiction seems to have dropped out of sight. Indeed, the report gives no indication of any argument that jurisdiction was in the visitor and not in the court, nor of any reference to the authorities which bear on the point. It may have been assumed that in the absence of any appointment there was no visitor. At the conclusion of the judgment here reported, counsel for the defendants informed the court that he had been informed by counsel for the applicants in the Aston case that counsel for the university in that case had conceded in argument that the university had no visitor.
In the present case, I may say, there was some correspondence between the plaintiff and the Lord Chancellor's department last year in which an officer of that department expressed views which accord generally with what I have said. I would only comment on one statement, namely, that any decision given in exercise of the visitatorial jurisdiction 'would not be reported in the law reports'. That may well be an accurate statement of the practice today; but fortunately for the development of case law it is historically far from being universally true. In days gone by the law reporters seem to have considered decisions of the Lord Chancellor in his visitatorial capacity as being eminently reportable: see, for instance, Ex parte Davision [(25th July 1772) unreported], as stated by Lord Mansfield CJ in R v Grundon (1775) 1 Cowp 315 at 319, 98 ER 1105 at 1107; Ex parte Wrangham (1795) 2 Ves Jun 609, 30 ER 803; The Case of Queen's College, Cambridge (1821) Jac 1 at 47, 37 ER 750 at 767, where the report even sets out the order made by Lord Eldon LC acting as visitor in right of His Majesty. There are many other instances in the books. What the status of such decisions is in the hierarchy of precedent I shall not stay to consider.
On the first point in this case I need say no more than that I have no doubt that, subject to any appointment that the Crown may be pleased to make, the Crown is the visitor to the University of Bradford, and that the Lord Chancellor is the proper person to exercise the visitatorial powers on behalf of the Crown.
The second point is whether the issues raised by the plaintiff are of a nature which brings them within the jurisdiction of the visitor and outside the jurisdiction of the court. I do not propose to attempt to examine the jurisdiction of a visitor in any detail. I need say nothing about the inquisitorial functions exercisable on general visitations which the visitor may from time to time conduct; for such visitations are at least obsolescent. Instead, I shall confine myself to the visitor's jurisdiction to hear complaints and appeals. This is a function which may be exercised at any time, and not only at the times fixed for general visitations: see Philips v Bury (1694) Skin 447 at 448, [1558-1774] All ER Rep 53 at 55 per Holt CJ in a dissenting judgment which subsequently prevailed in the House of Lords. Subject to any restrictions imposed by the founder, the visitor has a general jurisdiction over all natters of dispute relating to the statutes of the foundation, and the internal affairs and membership of the corporation. As was said by Kindersley V-C in Thomson v University of London (1864) 33 LJ Ch 625 at 634, '...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...' In particular, the visitor exercises a special jurisdiction to decide private disputes within the corporation according to the special statutes and code of law governing the corporation. In determining the extent of the visitor's jurisdiction, it may be a matter of considerable importance to determine whether or not those concerned in the dispute are truly members of the corporation. I shall in due course turn to that point.
Before I examine whether the matters in dispute before me are matters of the type which fall within the visitor's jurisdiction, I think that I should consider whether that jurisdiction is exclusive. 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. In consequence, any proceedings in the courts which seek the determination of those matters will be struck out for want of jurisdiction. The visitor is not free from all control by the courts. Thus prohibition will lie to restrain him from exceeding his jurisdiction, and so will mandamus if he refuses to exercise it. But the courts will not adjudicate in matters which lie within his jurisdiction. In Thomson v University of London 33 LJ Ch 625 there was a dispute between two Doctors of Laws of the University of London as to the award of a gold medal for obtaining the highest number of marks in the examination. Kindersley V-Cheld that the Court of Chancery had no jurisdiction to entertain the suit, since it was solely witin the jurisdiction of the visitor. He said that it appeared to him that it was 'hardly possible to suggest any case which is more clearly within the cognizance, and the exclusive cognizance, of the Visitor' (1864) 33 LJ Ch 625 at 634. In R v Dunsheath, ex parte Meredith [1950] 2 All ER 741, [1951] 1 KB 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 CJ [1950] 2 All ER 741 at 743, [1951] 1 KB 127 at 132, 'will not interfere in a matter within the province of the visitor.'
Perhaps the strongest authority is Thorne v University of London [1966] 2 All ER 338, [1966] 2 QB 237. There, an unsuccessful candidate for the London LLB 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 LJ [1966] 2 All ER 338 at 339, [1966] 2 QB 237 at 242:
'... actions of this kind relating to domestic disputes between members of London University (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 LJ [1966] 2 QB 237 at 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.
I shall mention only one other authority on the point. It illustrates the extent to which the courts have carried their recognition of the exclusive nature of the visitor's jurisdiction. In Whiston v Dean and Chapter of Rochester (1849) 7 Hare 532, 68 ER 200 one question was whether the Court of Chancery would grant an interlocutory injunction to restrain the removal of the plaintiff from office pending determination of the dispute by the visitor. No special case for intervention had been made out, and Wigram V-C held that not even an interim injunction would be granted. I forbear from debating the case.
I can now turn to the nature of the matters in dispute and consider whether they fall within the exclusive jurisdiction of the visitor. I begin with the originating summons. The first declaration sought by the plaintiff relates to the alleged withholding of examination results. That is plainly a matter for the visitor. The second and third declarations relate to appointments to university committees; and these are also clearly matters for the visitor. The fourth and sixth declarations relate to the allegedly wrongful dismissal of the plaintiff from the university; and these, too, are plainly within the visitor's province. Finally, there is the fifth declaration, to the effect that the plaintiff is entitled to be admitted to the university and has unlawfully been refused admission. That, as relating to membership of the university, is as plainly a matter for the visitor as the allegations of wrongful dismissal; but it raises a point that I shall consider under the third main head.
I turn to the writ. The first claim is to a declaration that the plaintiff was unlawfully refused re-admission to the university. That is in substance the same point as was raised by the fifth declaration sought by the originating summons, and the same comments apply to it. The second claim is that the plaintiff has been unlawfully refused access to the university. The only basis on which a right of access appears to be claimed is as a member of the university; and again this is a matter for the visitor. The claims to an unspecified injunction and to exemplary damages are ancillary to the claims I have mentioned, and so is 'further or other relief'. The claim for damages inThorne v University of London [1966] 2 All ER 338, [1966] 2 QB 237, I observe, presented no obstacle to the striking out of the claim. Accordingly, in my judgment, the whole of what is claimed by the originating summons and the writ is of a nature which falls within the exclusive jurisdiction of the visitor.
That brings me to the third main head. The jurisdiction of the visitor is confined to questions arising between members of the foundation, and does not apply to disputes between those on the foundation and those outside it, or, to put it in different language, between corporators and non-corporators. A dispute between fellows of a college is one thing, a dispute between a fellow and a stranger is another. Two questions at once suggest themselves on the facts of this case. First, if a member has been expelled from the corporation (a term that for brevity may be used to nclude amotion, deprivation or any of the other forms whereby a member is trust out of the body), does he thereby cease to be within the jurisdiction of the visitor even for the purpose of challenging his expulsion? Second, if having been expelled he then applies for re-admission and is rejected, does the visitor's jurisdiction extend to the rejection, even if the application is made on the footing that the applicant had validly been expelled? In such a case it could be said with much force that an unsuccessful attempt by an admitted outsider to become a member does not look much like a dispute between members.
In considering the expulsion cases it is necessary to bear in mind the status of the universities and colleges of Oxford and Cambridge: for most of the cases concern them. First, the two universities themselves are, as I have mentioned, civil and not eleemosynary corporations, and so have no visitors. If there is a dispute between the university and a member of the university, no question of visitatorial jurisdiction arises, since there is no visitor. It was for this reason that in the famous dispute between Dr Bentley and the University of Cambridge the Common Bench was able to intervene: see R v University of Cambridge (1723) 1 Stra 557 at 564, 566, 93 ER 698 at 702, 703. Second, unlike these two universities themselves, their colleges are in general eleemosynary corporations and have visitors; but in most cases, at all events, the corporators of a college are only the master, fellows and scholars. (I speak, of course, in general terms: there are many variations between the different colleges, and these are not only in the titles of the heads of the colleges.) Of the undergraduates, only the scholars are corporators: neither the exhibitioners nor those who lack this distinction are members of the foundation. Accordingly, if there is a dispute between the college authorities and an undergraduate who is not a scholar, it does not fall within the jurisdiction of the visitor.
That this is the law appears from Ex parte Davison, which is set out in the judgment of Lord Mansfield CJ in R v Grundon (1775) 1 Cowp 315 at 319, 98 ER 1105 at 1107. Davison was a commoner of University College, Oxford: an undergraduate who was not on the foundation and paid for his commons was in those days usually called a commoner. Davison was expelled from the college, and appealed to the Lord Chancellor as visitor. The college contended that his status was that of a mere pupil who had been received into the college, so that he was a stranger to the foundation and not a member of the society. He therefore was not within the visitor's jurisdiction. This argument succeeded before Lord Apsley LC, who decided the case with the advice of De Grey CJ and Adams B. In delivering the judgment of the Court of King's Bench in R v Grundon 1 Cowp 315 at 321, 98 ER 1105 at 1109 Lord Mansfield CJ treated this as being decisive of the case before him. Much more recently the Court of Appeal rejected the contention that a student at a teacher-training college was within the visitatorial jurisdiction when it appeared that, though a student there, he was in no position of membership: see Herring v Templeman [1973] 3 All ER 569 at 571.
I therefore leave on one side those cases in which the person aggrieved is not a corporator, and turn to the authorities on corporators. These plainly establish that the jurisdiction of the visitor extends to corporators who have been expelled but challenge their expulsion. This has been held in many cases concerning the fellows or masters of Oxford and Cambridge colleges who have been expelled but have been refused relief by the courts on the ground that their temedy is to appeal to the visitor: see Dr Widdrington's Case (1661) 1 Lev 23, T Raym 31, 83 ER 278, 17 (with its unhappy sequel (1663) T Raym 68, 83 ER 38); Parkinson's Case (1689) Carth 92, 90 ER 658; Philips v Bury (1694) Skin 447, [1558-1774] All ER Rep 53; Ex parte Buller (1855) 3 WR 447, 25 LTOS 102. However, the jurisdiction has not stopped there. As I have indicated, plainly an application for a fellowship or scholarship could be said to be in a different position from a fellow or scholar who has been expelled or deprived; for the applicant has never been a corporator and is merely seeking to become one, whereas the ejected fellow or scholar was once a corporator and may de jure still be one if he can establish that his removal was invalid. It is therefore not surprising that at one time the courts held that unsuccessful applicants had no appeal to the visitor: see R v St John's College, Oxford (1694) 4 Mod Rep 368, 87 ER 448. In a motion in that case, Holt CJ [Comb 238, 90 ER 441] said: 'The visitor hath no power before a person be made a number'.
Some years earlier, however, a different view had been taken (see R v All Souls College, Oxford (1681) T Jo 174; 84 ER 1203), and it was this different view that was to prevail. In addition to the All Souls case (at 175-176; 1203-1204), where the point was plainly taken and rejected, there was St John's College, Cambridge v Todington (1757) 1 Burr 158, 97 ER 245, R v St Catherine's Hall, Cambridge (1791) 4 Term Rep 233, 100 ER 991 and Ex parte Wrangham (1795) 2 Ves Jun 609, 30 ER 803. Short of the House of Lords, the matter was put beyond argument by the decision of the Court of Appeal in R v Hertford College (1878) 3 QBD 693. There, an unsuccessful applicant for a fellowship failed in his attempt to invoke the aid of the courts, and was told that his remedy was to apply to the visitor. Lord Coleridge CJ delivered the judgment of the court, consisting of himself and Baggallay, Bramwell and Brett LJJ. In addition to discussing th eauthorities, he observed n14 that at on time of his life he had been 'familiar with appeals to the visitors of colleges by rejected candidates to reverse the results of elections'; and while he was a fellow of his college the Bishop of Exeter, who was the visitor, had ordered the college to admit to a fellowship a candidate whom the college had rejected on grounds which the visitor deemed insufficient. The court held (3 QBD 693 at 702-703) that the cases shows that 'the authority of the visitor is as complete over admissions to fellowships as over amotion from or deprivation of them'. The judgment refers again to cases of amotion from fellownships, and says at 703 that although it was true that in cases of that sort the applicant had been a member of the college.
'... in the case before us, and in like cases, he desires to become one. But in neither class of case is he a member at the time of application, and we are unable to see that the distinction in fact makes any difference in principle.'
While this plainly lays down that in this respect both amotions and applications are governed by the same principle, it does not make it explicit what that principle is: and counsel was unable to refer me to any clear statement of that principle.
What I think must be the true principle can be expressed very simply. It is that one of the functions of the visitor is to decide all questions of disputed membership. Each corporation has its own peculiar system of laws, and these will provide how membership of the corporation is obtained as well as how it is lost. The interpretation of the statutes of the corporation has long been established as being part of the visitor's functions. Indeed, so much is it of the essence of the visitatorial jurisdiction that for the founder to confer on a man the power to interpret and determine doubts on the statutes may suffice to constitute him the visitor: see, eg, Ex parte Kirkby Ravensworth Hospital (1808) 15 Ves Jun 305, 33 ER 770 at 773. The resolution of disputes among members is another undoubted part of those functions. Viewed in that setting, it is as much the function of a visitor to determine what persons lawfully have or ought to have become members of the corporation as it is to determine whether a member has or has not lawfully been amoved. In each case there is disputed membership, and a matter which is internal to the corporation. It is only if too much emphasis is placed on the function of the visitor being to resolve disputes among members that the difference between a non-member seeking to become a member and a member seeking to invalidate an amotion may appear, misleadingly, to have any significance quoad the visitor's jurisdiction. The rule that the visitor has no jurisdiction over non-members has not been allowed to exclude jurisdiction where it is membership itself that is in dispute, for to do so would beg the question.
I must add a caveat. I am far from saying that every dispute between a university and an expelled member or non-member is ouside the jurisdiction of the courts. I am speaking only of disputes where the issue is whether or not the person concerned is entitled to be reinstated or admitted. For instance, the question may arise whether an expelled member of a university is entitled to go on to part of the university premises. He may seek an injunction to restrain the university from excluding him, or the university may seek an injunction to restrain him from entering the premises. In either case I think that the court would have jurisdiction to determine the application, even if it was in dispute whether or not the student had been lawfully expelled. The court would determine the application on the footing of the student's status at the time, namely, that of an expelled student. By going to the visitor the student may be able to have that status changed; but until he has done this, I think that the court will treat him as being what he is, and will not usurp the functions of the visitor by determining whether instead he is or should become what he says he ought to be.
This is not a matter that was debated before me, and I say what I say with due diffidence. But I think that it has some support from the decision of Walton J on 13th March 1978 (unreported). In that, he dismissed a motion by the plaintiff which claimed an injunction to restrain the university from excluding him from the university premises. The ground of the decision was that whatever might be the result of the plaintiff's challenge to the validity of his explusion in the proceedings by way of originating summons, he was at the moment not a member of the university. The same must apply even if it is held that the validity of the expulsion must be decided not by the court under the originating summons but by the visitor instead.
With that, I turn to the status of students under the constitution of the University of Bradford. Clause 1 of the royal charter establishes the corporation and defines the corporators:
'The members for the time being of the Court, the Council, the Senate, the Academic Advisory Committee (while that Committee exists), the members of the academic staff of the University, the Graduates of the University, the Graduate and Undergraduate students of the University, the Chancellor, the Pro-Chancellors, the Vice-Chancellor and Principal, the Treasurer, the Pro-Vice-Chancellors and all others who shall pursuant to this Our Charter and the Statutes of the University for the time being be members of the University are hereby constituted and henceforth for ever shall be one body politic and corporate with perpetual succession and a Common Seal by the name and style of "The University of Bradford" (hereinafter called "the University".)'
Undergraduate students of the university are thus explicitly made corporators of the university.
The statutes of the university, which derive their authority from cl 19 of the royal charter, are set out in Sch 2 to the royal charter. By statute 1, in the statutes the word 'Students' means 'persons who are for the time being recognised by the Senate as following such a course or courses of study provided or approved by the University as the Senate shall think fit'. Statute 2 provides, by para 1, that 'The following persons shall be members of the University': and then, at the end of a list of various categories, come the words 'The Students of the University'. In addition to the statutes, I may say, there are also ordinances and regulations, which are authorised by cll 20 and 21 of the royal charter respectively.
Now the plaintiff relied strongly on the definition of 'Students' in statute 1. He was plainly not at present 'following' any course of studies in the university. Accordingly, he said, he was not one of the 'Students of the university' who by virtue of statute 2 were 'members of the University' and so were corporators by virtue of the reference to 'members of the University' in cl 1 of the royal charter. Furthermore, by similar reasoning, he was not one of the 'Undergraduate Students of the University' who by cl 1 of the royal charter were ec nomine made corporators. Therefore, being plainly no member of the university and no corporator, he stood outside the visitatorial jurisdiction.
The plaintiff further contended that he had ceased to be a member of the university by reason of his failure to reregister at the university after his first year ended; and without objection by counsel for the defendants he produced a 'University of Bradford Registration Certificate' showing that he had been registered as a full-time student of the university reading for the B Tech degree in computer science 'for the Session 1972/73'. However, although given the opportunity provided by an overnight adjournment for the purpose, he was unable to refer me to anything in the royal charter, statutes, ordinances or regulations whichprovided that membership of the university should depend on re-registration. I sought counsel's help on this, and during the overnight adjournment he caused enquiries of the university authorities to be made. On instructions, he told me that there was nothing to make undergraduate membership of the university dependent on annual registration. What was required was registration for particular courses of study; but that was a very different matter.
The cogency of the plaintiff's argument on this point plainly rests on a foundation of the visitor's jurisdiction being confined to those who are admittedly members of the university. If that foundation were sound in law, there would be some force in the contention, though there would also be problems, not least in relation to the relief which the plaintiff is seeking in the proceedings. However, for the reasons that I have given, I do not think that the visitor's jurisdiction is confined in this way. It is not restricted to disputes between members but extends to all questions of disputed membership; and that plainly includes the question whether the plaintiff was validly dismissed from the univesity and whether he was validly refused re-admission to it. As for access to the university premises, the plaintiff is at present not a member of the university, and so long as that state of affairs exists, he has no right of access to the premises, as Walton J has already decided. Questions whether examination results were unlawfully withheld and whether certain appointments to the Student Progress Committee were unlawful plainly fall within the visitatorial jurisdiction over internal matters and the proper construction of the university legislation; and I cannot see that the plaintiff has any legitimate interest in them save as a student member of the university within that jurisdiction. Nothing that happened in 1973 has taken away the jurisdiction of the visitor over the matters of which the plaintiff complains.
What I have said suffices for the decision of this case. But before I part with it I think that I should refer to a wider consideration. It is, I suppose, possible to criticise the visitatorial jurisdiction in university life as being a survival from past ages that ought to be abolished or reformed, and in the meantime at least construed restrictively by the courts. 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?
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, 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 at 674, 676, 26 ER 1181 at 1187, 1188 per Lord Hardwicke LC; St John's College, Cambridge v Todington (1757) 1 Burr 158 at 199-200, 97 ER 245 at 269 per Lord Mansfield CJ; Ex parte Wrangham (1795) 2 Ves Jun 609 at 635 per Lord Loughborough LC., Thomson v University of London (1864) 33 LJ Ch 625 at 635 per Kindersley V-C., R v Dunsheath, ex parte Meredith [1950] 2 All ER 741 at 743, [1951] 1 KB 127 at 132 per Lord Goddard CJ.
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 small 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 (1970) 86 LQR 531, to which counsel 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 counsel studiously refrained from citing, Picarda's 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 true that there are recent instances where the visitatorial jurisdiction seems to have been forgotten or overlooked. It may indeed be that in R v Senate of the University of Aston, ex parte Roffey [1969] 2 All ER 964, [1969] 2 QB 538 the short answer to the applicants (if anyone had taken the point) would have been that the court lacked jurisdiction, and that their complaints that they had been the victims of defective procedure and the lack of a fair hearing 'are 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': see Herring v Templeman [1973] 2 All ER 581 at 591 per Brightman J, a point not affected by the appeal [1973] 3 All ER 569. Nobody could suggest there was any need for the courts to intervene in the cause of natural justice in a case in which the Lord Chancellor appears to have had exclusive jurisdiction and had ample powers to rectify any failure of natural justice. In any case, no oversight such as there may have been in the University of Aston case [1969] 2 All ER 964, [1969] 2 QB 538 can alter the law.
The general picture is thus of a visitatorial jurisdiction which has much to commend it, and in recent years has greatly expanded. In those circumstances, I do not think that it should be regarded as something that should be construed restrictively, or as being an anachronism which at most is to be barely tolerated. Instead, I would regard it as being a valuable institution for contemporary society, and one which ought to be supported and maintained.
In the present case it seems clear to me that, for the reasons I have given, the court has no jurisdiction over the matters raised either by the originating summons or by the writ, for the exclusive jurisdiction is in the Crown as visitor, and is exercisable by the Lord Chancellor. It follows that the preliminary objection to the originating summons succeeds, and so does the summons for an order striking out the indorsement of the wrt and dismissing the action. Accordingly, I dismiss the originating summons, strike out the indorsement of the writ, and dismiss the action.
DISPOSITION:
Order accordingly.
SOLICITORS:
Robbins, Olivery & Lake, agents for Sampson, Wade & Co, Bradford (for the defendants).
Now go to subsequent judgment Patel vs. University of Bradford Senate (2/2) [1979] 2 All ER 582, 1 WLR 1066
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