R v Hull University Visitor, ex parte Page

JurisdictionEngland & Wales
JudgeTHE MASTER OF THE ROLLS,LORD JUSTICE STAUGHTON,LORD JUSTICE FARQUHARSON
Judgment Date31 July 1991
Judgment citation (vLex)[1991] EWCA Civ J0731-9
Docket Number91/0829
CourtCourt of Appeal (Civil Division)
Date31 July 1991
Regina
and
The Lord President of the Privy Council
Acting for the Visitor of the University of Hull
Ex Parte Page

[1991] EWCA Civ J0731-9

Before:

The Master of the Rolls

(Lord Donaldson)

Lord Justice Staughton

Lord Justice Farquharson

91/0829

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

DIVISIONAL COURT

Royal Courts of Justice

THE HON. MICHAEL BELOFF Q.C. and MR. H. A. P. PICARDA (instructed by Messrs. Priestman, Green & Co., Kingston upon Hull) appeared for the Appellant (University of Hull).

THE HON. PHILIP HAVERS (instructed by The Treasury Solicitor) appeared for the Appellant (Visitor).

MR. J. P. BURKE Q.C. and MR. B. F. J. LANGSTAFF (instructed by Messrs. Robin Thompson & Co.) appeared for the Respondent (Mr. Page).

THE MASTER OF THE ROLLS
1

In June 1966 Mr. Page was appointed a lecturer in the Department of Philosophy of the University of Hull. Twenty-two years later on 30th June he was given notice that his employment would be terminated on 2nd October 1988. There was no complaint about the way in which Mr. Page did his work. The termination was on grounds of redundancy consequent upon the need of the University to make economies. Whether Mr. Page, rather than some other lecturer, should have been made redundant is not in issue in the present proceedings, but in fairness to Mr. Page it should be recorded that the axe fell upon him because he was the oldest of a particular group.

2

Mr. Page took the view that important issues of academic tenure were at stake and petitioned Her Majesty the Queen, who is the Visitor of the University. The Lord President, on behalf of Her Majesty, considered the petition, sought advice from Lord Jauncey of Tullichettle and, on the basis of that advice, rejected the petition, thereby deciding that Mr. Page's dismissal was within the powers of the University as determined by the University's statutes.

3

Mr. Page then sought and was granted leave to seek judicial review of the Visitor's decision. That gave rise to two quite separate issues, both of considerable public importance, namely:

  • (a) The jurisdictional issue—Is there jurisdiction to quash the Visitor's decision and, if so,

  • (b) The construction issue—Should it be quashed?

4

A Divisional Court of the Queen's Bench Division consisting of Taylor L.J. and Rougier J. answered both questions in the affirmative. The University, supported by the Visitor (who for this purpose was assumed in the interests of constitutional propriety to be the Lord President of the Council rather than Her Majesty) appealed. For my part, in agreement with the Divisional Court, I would answer the first question in the affirmative but, differing from it, would answer the second in the negative.

5

The jurisdictional issue

6

Mr. Michael Beloff Q.C. appeared for the University and Mr. Havers for the Visitor. Subject to one point, they were in agreement in their submissions. I can therefore refer in the main to those of Mr. Beloff, the University being the primary appellant, and in so doing I gladly acknowledge that I rely greatly upon his quite admirable skeleton argument.

7

Mr. Beloff submitted that:

"(i) The Visitor is intended to have exclusive jurisdiction over the internal laws of the foundation including the interpretation of the charter and statutes of the University. This exclusive jurisdiction requires such disputes to be dealt with by the Visitor, not the courts. This necessarily excludes actions in the court in advance of the Visitor's decision (see Thomas v. University of Bradford [1987] 1 A.C. 795) and, by parity of reasoning, review by the courts of any decision on interpretation by the Visitor after it. If the courts were to have jurisdiction to review such decisions, that would run counter to the whole concept of the internal domestic law and the exclusive jurisdiction of the Visitor. The internal domestic law is to be treated as distinct from the law of the land—a species of foreign law.

(ii) There is historical support in other areas for limited review of decisions of specialised bodies applying a distinct corpus of law.

Accordingly:

(a) The Court of Appeal has refused to grant certiorari to quash decision of eccliastical courts, essentially on the basis that such courts administer a system of law different from the ordinary law ( R. v. Chancellor St Edmundsbury and Ipswich Diocese ex parte White [1948] 1 K.B. 195). By contrast, the courts will grant prohibition to prevent the ecclesiastical court exceeding its jurisdiction or acting in breach of natural justice (see, e.g. R. v. North ex parte Oakey [1927] 1 K.B. 491).

(b) The courts have similarly held that questions of purely military law falling within the jurisdiction of the military authorities cannot be called into question in the ordinary civil courts. The courts can only intervene in so far as the actions of military authorities affect the ordinary civil rights of soldiers. (See R. v. Secretary of State for War ex p. Martyn [1949] 1 All E.R. 242; R. v. O/C Depot Battalion, RASC Colchester ex p. Elliott [1949] 1 All E.R. 373; R. v. Army Council ex p. Ravenscroft [1917] 2 K.B. 504; Marks v. Froqley [1898] 1 Q.B. 504; Dawkins v. Lord Paulet [1869] L.R. 5 Q.B. 94.)

(iii) In relation to Visitors, there is authority that prohibition will lie if the Visitor exceeds his jurisdiction as a result of an error in construing the statutes (Bentley v. Bishop of Ely [1729] 1 Barn 192 or if the Visitor acts in breach of natural justice (R. v. Bishop of Ely [1794] 5 TR 475) but not, prior to this case, for a mere error of construction not going to jurisdiction.

(vi) The jurisdiction judicially to review for errors of law is relatively recent…and was prior to the seminal decision in Anisminic v. Foreign Compensation Commission [1969] 2 A.C. 147 confined to errors on the face of the record so that the concept of judicial review on all grounds save errors of law has firm roots in history a fortiori where the errors of law are of a special kind i.e. of interpretation of the University's internal law."

8

The difference between the submissions of Mr. Havers and of Mr. Beloff lay, I think, in Mr. Beloff being prepared tentatively to accept that the courts had jurisdiction to review a Visitatorial decision upon grounds of "irrationality", whereas Mr. Havers declined to make any such concession.

9

There is no serious dispute, but that the Universities of this country have a sufficiently public character to bring decisions by them within the scope of the supervisory jurisdiction of the courts, if that jurisdiction is not excluded upon the other grounds relied upon in this appeal.

10

Subject to a somewhat optimistic submission by Mr. Jeffrey Burke Q.C., appearing for Mr. Page, that the House of Lords' decision in Thomas v. University of Bradford [1987] A.C. 795 obliged us to hold that the courts have jurisdiction to review a decision of the Visitor as to the construction of the University's statutes, it was common ground that there was no binding authority to guide us. For my part I do not regard the fact that there is no trace of the exercise of any such jurisdiction in the older authorities as being either helpful or surprising in the light of modern expansionist developments in this field of the law which have had House of Lords approval or have originated there. I do, however, think that the speeches in Thomas point the way, a way which, in any event, seems to me to be based on long established principle. That principle was enunciated in colourful terms and in a slightly different context by Scrutton L.J. in Czarnikow v. Roth Schmidt & Co. [1922] 2 K.B. 478, 488: "There must be no Alsatia in England where the King's writ does not run". (See also R. v. Panel on Takeovers and Mergers, ex parte Datafin [1987] 1 Q.B. 815, 827–8.)

11

I do not regard the attitude of the courts towards the Church and the Military as constituting any derogation from this principle. Jurisdictionally the "King's writ" should, and in my judgment does, run in respect of any matter which would be justiciable in the courts of law (and equity) if there were no ecclesiastical and military courts. But those courts are not solely concerned with such matters and, in so far as their jurisdiction extends to spiritual matters in the case of the ecclesiastical courts or to purely disciplinary matters in the case of the military courts, I do not consider that the principle requires or enables the courts of law to take jurisdiction. Furthermore, in considering how the courts of law have acted in particular situations as recorded in the reports, it is important not to overlook the discretionary element in their exercise of their supervisory jurisdiction. In particular, the courts will normally, in the exercise of that discretion, decline to intervene if there is a satisfactory alternative avenue of redress by means of an internal or domestic appellate system, as is the case with both the ecclesiastical and the military courts. In many, and perhaps most, of the reported cases the courts will not have been concerned to differentiate between a case in which they considered that they had no jurisdiction and one in which, whilst they may well have had jurisdiction, as a matter of discretion that jurisdiction would never be exercised.

12

Both Mr. Beloff and Mr. Havers, the latter perhaps even more strongly than the former, have submitted that the Founder of an eleemosynary corporation was entitled to create his own private "laws" which would govern relations between it and its members and its members inter se and was further entitled to provide for private disputes resolution machinery. I can go this far with...

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