Hines v Birkbeck College
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE DILLON,LORD JUSTICE STEPHEN BROWN,LORD JUSTICE NEILL |
| Judgment Date | 04 August 1987 |
| Judgment citation (vLex) | [1987] EWCA Civ J0804-2 |
| Docket Number | 87/0861 |
| Court | Court of Appeal (Civil Division) |
| Date | 04 August 1987 |
and
[1987] EWCA Civ J0804-2
Lord Justice Dillon
Lord Justice Stephen Brown
Lord Justice Neill
87/0861
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM AN ORDER OF MR JUSTICE HOFFMANN
Royal Courts of Justice
THE APPELLANT (PLAINTIFF) appeared in Person.
MR J.L. MUNBY, instructed by Messrs Dawson & Co., appeared for the First Respondent (First Defendant).
MR M.E.W. STUDER, instructed by Messrs Clifford Chance, appeared for the Second Respondent (Second Defendant).
Mr Hines appeals against a decision of Mr Justice Hoffmann given on 8th July 1985 whereby the learned judge struck out Mr Hines' action against Birkbeck College and the University of London. By the action Mr Hines was complaining that the College had acted wrongly, in respects which I shall come to, in purporting to dismiss him from his employment as a Professor of Economics and appointed teacher in the University holding the chair at Birkbeck College, and he had claimed against the University an injunction to restrain the University from divesting Mr Hines of his title of Professor of Economics or his status of appointed teacher in the University.
The ground for striking out the claims was essentially that the matters raised were matters for the jurisdiction of the Visitor of the College and the Visitor of the University. The Visitor of the University under the University Statutes is Her Majesty in Council. The Visitor of the College is Her Majesty exercising her powers through the Lord Chancellor. The University is constituted as a federation of schools, one of which is the College. The College itself is incorporated by royal charter. The University was incorporated by royal charter as long ago as 1836. Its affairs are now regulated by the University of London Act 1978 and the University Statutes.
The history of these proceedings has been considerably complicated by the history of other proceedings in a case of Thomas v. University of Bradford which raised similar issues. Shortly before the present case came before Mr Justice Hoffmann the case of Thomas v. University of Bradford had come before Mr Justice Whitford. There Mr Justice Whitford had refused an application to strike out the action. Mr Justice Hoffmann, having considered Mr Justice Whitford's judgment in Thomas, did not agree with the view of the law Mr Justice Whitford had taken and did strike out Mr Hines' action. Subsequently there was an appeal in the Thomas case by Miss Thomas to this court, and this court in October 1985 dismissed the appeal and upheld the decision of Mr Justice Whitford. Moreover, this court expressed considerable doubts about Mr Justice Hoffmann's decision in the present case. However, there was a further appeal to the House of Lords in the Thomas case, and by its decision of 26th February this year, reported in [1987] 2 W.L.R. 677, the House of Lords reversed the decision of the Court of Appeal in Thomas v. University of Bradford; moreover, in the leading speech of Lord Griffiths in the House of Lords, approval was expressed of the judgment of Mr Justice Hoffmann in the present case. It is because the Thomas litigation was outstanding and then proceeding to the House of Lords that the hearing of Mr Hines' appeal against Mr Justice Hoffmann's order has been delayed.
Mr Hines' appointment was conferred on him by a letter of 26th November 1971 from the University. It says this:
"Dear Sir,
"I write to inform you that you have been appointed to a Chair of Economics tenable at Birkbeck College in the terms of the following Resolution:-
"That Professor Albert Gregorio Hines be appointed to a Chair of Economics tenable at Birkbeck College from 1 January 1972, or as soon thereafter as possible; that he receive the title of 'Professor of Economics' with the status of Appointed Teacher in the University of London and that the appointment be on the conditions prescribed in the Regulations on University Titles…and those set forth in the relevant Senate Minutes and be subject to the Statutes and Regulations of the University and of Birkbeck College."
There is a further one-page statement of conditions of employment attaching to the post of the Chair of Economics tenable at Birkbeck College which sets out that the appointment is to be from 1st January 1972, "or as soon thereafter as possible, and [is to] be subject to the Statutes and Regulations of the University and of Birkbeck College. The Professor will be required to reside not more than 30 miles from the Senate House, but the Governing Body of the College shall have power to waive this regulation in special circumstances." The salary of the professor is specified and is to be provided by the governing body of Birkbeck College. Then there is provision as to duties:
"The Professor will be a member of the Department of Economics at Birkbeck College. The appointment of Heads of Department is at the discretion of the College and the terms of such appointments are notified by the College.
"He will be ex officio a member of the University Faculty of Economics, of the University Board of Studies in Economics and Political Science, and of the Academic Board of Birkbeck College."
The term "Appointed Teacher" in the letter (which is given with capitals) is specially defined in the Statutes of the University as including professors of the University. The regulations of the University which are relevant to this matter are in regulation 6 of the Regulations on University Titles. This provides in 6.1 that "the removal of a teacher from a post of Appointed Teacher"—and that again has capitals—"and the withdrawal of the status or title of professor or reader of the University shall rest with the Senate; provided that the Senate's power of removal shall be without prejudice to any power exercisable by the Governing Body of any Central Activity or School"—and I interject that Birkbeck College is a school for this purpose—"under the terms of which a teacher holds a post on its teaching staff, to terminate his tenure of such post."
Regulation 6.2 provides that "In the case of misconduct or incapacity of a professor or reader whose salary is partly provided by the Central Activity or School to which he is attached, the Senate shall have power to remove him from his post or withdraw from him his status or title."
Regulation 6.3 provides that "In the case of the misconduct or incapacity of a professor or reader whose salary is wholly provided by the Central Activity or School to which he is attached, the Senate shall have power to deprive him of his status or title."
In the present case the salary was wholly provided by Birkbeck College. Though the appointment was made and conveyed to Mr Hines by the letter from the University, it was made by the University with the consent of Birkbeck College and obviously the terms of the appointment were approved by Birkbeck College and were binding on Birkbeck College. They paid the salary for many years.
The relevant statutes of Birkbeck College contain provision in regulation IV, "Powers of Governors", paragraph 2, as follows:
"The Governors shall appoint the Master of the College, the Vice-Master, the Secretary and other officers of the College, 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)"—that means the governing body of the College—"and the servants of the College, upon such terms and conditions as the Governors may think reasonable, 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)."
I have already referred to the relevant University of London regulation on University Titles.
Against that background Mr Hines says that the Visitors of the College and of the University have no jurisdiction in this case. They have no jurisdiction over him, he says, and they have no jurisdiction over the subject-matter of the dispute. So far as personal jurisdiction is concerned, he says that he is not a member of Birkbeck College, and essentially the jurisdiction of the Visitor is over the members of the College who are the corporators. He says, in the light of the decision in the House of Lords, that if there is any wider jurisdiction of the Visitor, that relates to the offices which were held in certain circumstances in past cases, rather than to the individuals who held the offices. So far as the nature of the claim in his dispute with Birkbeck College is concerned, he says that he has a claim either that Birkbeck College acted tortiously quoad him in purporting to terminate his tenure of his academic post with the College, when in truth he says he was employed by the University and not by the Colleger; alternatively, the College acted in breach of contract and in breach of the rules of natural justice in so far as the College was in truth his employer, in that the College purported to act in accordance with its disciplinary procedures but failed to do so correctly and failed to give him the hearing to which he was entitled by the rules of natural justice.
So far as the University is concerned, he accepts that he is a member of the University because it so happens that he is a graduate of London University. Under the Statutes the graduates are the members and corporators of the University, but he says that his status as a...
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