University Discipline And Natural Justice

AuthorS. A. Smith
Publication Date01 Jul 1960
DOIhttp://doi.org/10.1111/j.1468-2230.1960.tb00618.x
428
THE
MODERN
LAW
REVIEW
VOL.
23
commented in a recent report" on the drop in receipts from this
source which was attributed to this uncertainty about the law. Had
the House of Lords affirmed the decision of the Court of Appeal
and retrospective legislation had not been passed,
it
is estimated
that over
22,000,000
of back-duty would have been irrecoverable.
The judgment of the House of Lords followed by the new legisla-
tion, which applies the new provisions to all unsettled claims and
is thus retrospective
in
operation, has removed this possibility.
But those persons against whom these claims are outstanding may
not be altogether satisfied with
a
feature of the British doctrine of
precedent which was illustrated in this case. In the two lower
courts Mr. Hinchy appeared in person; in the House of Lords he
neither appeared
nor
was he represented and no argument was heard
by their lordships other than that put forward by those representing
the Crown.
No
counsel was invited to address the court as
amicus
curiae.
Yet by this judgment, which reversed a unanimous Court
of Appeal, the cases
04
a large number
of
other people, involving
substantial
sums
of money, were automatically decided against
them without any argument on their behalf. Most lawyers who
study the reasoning of the House of Lords will agree with
it;
one
wonders whether justice seems
to
have been done to those persons
whose claims were thus determined in their absence without argu-
ment for their side.
G.
S.
,A.
W.
UNIVERSITY DISCIPLINE
AND
NATURAL
JUSTICE
IN
modern times the English courts have shown a marked reluctance
to intervene in disputes arising out of the internal affairs of
universities. They may justify their refusal to intervene by charac-
terising an exercise of disciplinary authority
as
non-judicial,'
or
by
denying that the person aggrieved has any legal
or
equitable right
on which to found a justiciable claim,*
or
by pointing to the juris-
diction of the visitor as an effective alternative remedy to
mandamus
3;
but
at
bottom there lies the view that judicial regula-
tion of this area of activity would be contrary to public p01icy.~
So
rare are legal actions against university authorities by disap-
pointed examinees and suspended students that the judgment of
the Judicial Committee
of
the Privy Council in
Ceylon University
v.
Fernando
The university statute provided that where the Vice-Chancellor
was satisfied that a candidate
for
an examination had obtained prior
has aroused widespread interest.
4
See
Report
of
Comptroller and Auditor-General
for
gear
ending March 31, 1959.
1
Ex
p.
Death
(1852)
18
Q.B.
647.
2
Cf.
Thomson
v.
London Unioersity
(1864)
33
L.J.Ch. 625.
3
See
R.
v.
Dunsheath, ez
p.
Meredith
[1951]
1
K.B.
127, and authorities there
cited.
4
See,
e.g.,
Thomson's
case
(supra)
at
p.
635,
Meredith'a
caae
(supra)
at
p.
132.
5
[1960]
1
W.L.R.
223; also reported [1960]
1
All
E.R.
631.

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