Varma, R (on the application of) v HRH Duke Of Kent

The claimant was on a one-year course for a Master’s Degree (MSc) in Explosive Ordnance Engineering at the Royal Military College of Science based at Cranfield University, the interested party. The University was granted a Royal Charter in December 1969, then being known as the Cranfield Institute of Technology. As from 1 September 1993 its name was changed to Cranfield University. Article 8 of the Charter provides that Her Majesty may appoint a visitor, on Petition of the Court of the University, “who shall hold office for such period and shall have such duties as We Our Heirs and Successors shall see fit and his … discretion on matters within his … jurisdiction shall be final”.

In addition to any powers expressly granted to him, a visitor has authority to hear complaints put before him by members of the body of which he is visitor. The claimant exercised his right of appeal to the defendant having failed to succeed in his internal appeals against the decision that his registration be terminated due to his failure to maintain satisfactory academic progress. His appeal to the defendant was dismissed on 22 April 2003. This claim was lodged on 21 July 2003. Permission was refused on the papers, but granted at an oral hearing. Delay was raised at that hearing, but has not been relied on before me.

It is necessary to give an outline of the history and the essential facts, which are not in dispute to any material extent. It is in particular necessary to see whether any defects in the procedure adopted by the defendant in the appeal to him should, if amenable to judicial review, result in any relief being granted. Mr. Jay Q.C. has submitted that the appeal was bound to fail on the merits and so it would be pointless to require that there be a reconsideration. Thus discretion should, if any defects are established, be exercised to refuse relief.

The claimant began his one year course in September 2000. He needed to sit two blocks of examinations and obtain an average overall mark of 50%. That overall mark would cover both formal examinations and course work in what was described as the ‘taught’ phase. He had to complete 9 compulsory modules (two of those being half modules) and 2 optional. The handbook set out how each module was to be assessed between coursework, assignments and examinations. A mark between 40 and 49% in any individual module would normally be acceptable, but any mark below 40% would normally result in a referral, namely a requirement to resit or resubmit coursework but the marks would be capped at 50%. The maximum number of referrals would be determined by the Examination Board.

In December 2000, the claimant sat his Block 1 exams, consisting of 6 papers. He missed one because he overslept. His results were poor, ranging from 25.5% to 44.2%, giving an average of 38.5%, well below the required pass mark. He was permitted to resit the four in which he had obtained the lowest marks and to sit the one he had missed, in February 2001. His results improved, ranging between 40% and 50%. Following the resits, he received a letter dated 13 March 2001 which informed him that his current average mark was 45.7%, and that for the outstanding 4 modules he needed to average 57.3% to achieve an overall mark of 50% which was required to pass the degree. This meant that he could not afford to be referred in any of the remaining examinations, as that automatically capped the mark at 50%. The letter continued: -

“Therefore, I must warn you that you are in severe danger of failing the course. You may take the remaining modules and the remaining assessments, but you must achieve marks significantly higher than efforts to date.

I note that you have staged payments for the course fees. Currently you have paid 50% of the fees, with the next instalment due at the end of March. We do not intend to invoice for any further payment, unless you are successful in the taught phase, at which time we will ask you to continue payment”.

Unfortunately, his Block 2 results were not good enough. In only one did he exceed 50%. Two were below 40%. In a letter dated 14 May 2001, the claimant was informed of his results and his options. Any referral would be capped at 50% and so even if he were permitted a referral in all those in which he had failed to achieve 50% or more, he could not reach an overall figure of 50%. He could nearly do so since, as was accepted in subsequent correspondence, if he obtained 50% in all, his overall figure would be 49.75%. He was informed that the examiners might well not permit such an extensive referral, but, if they did, the requirement to obtain 50% in all meant he would be embarking on a high risk strategy. He would, in addition, be expected to pay the full fees. In a letter of 17 May 2001, which identified the correct figure of 49.75%, the claimant was informed that, if he chose to undertake the full course again, he would be offered a bursary of £9,500, thus reducing the overall fee from £19,500 to £10,000.

In the result, the Examination Board decided not to permit referral and so the claimant’s registration was terminated. He exercised the two rights of appeal which were open to him under the University’s procedures. Stage 1 involved an investigation by the Dean (or a named Deputy). That investigation could lead to a referral back to the examiners. If that did not happen so that the appeal failed, he could go on to invoke Stage 2, which involved another investigation by a senior office holder appointed by the Vice-Chancellor, who would require that an Appeals Committee be set up or that the appeal be summarily dismissed. The University’s Code of Practice informed the claimant as follows: -

“The grounds for appeal are normally limited to one or more of the following: -

(a)

that at the time of the examination or assessment there existed circumstances adversely affecting the candidate’s performance of which the examiners were not aware when their decision was taken, despite the candidate having taken all reasonable steps to ensure that the circumstances were duly reported;

(b)

that there were procedural irregularities in the conduct of the examination (including administrative error) of such a nature as to cause reasonable doubt as to whether the result might have been different had they not occurred:

(c)

that there is evidence of prejudice as of bias or of inadequate assessment on the part of one or more of the examiners”.

On 18 September 2001, the claimant’s Stage 1 appeal was dismissed. He had sought to rely on procedural irregularities and an inadequate assessment of his work and alleged that there was bias and prejudice. He should, he said, have been permitted the necessary resits. The decision was that to have allowed the initial 4 resits was stretching matters in his favour and there was no good reason to permit resits which would have resulted in him redoing 10 out of the 11 modules. Some errors in the original markings were accepted, but none was sufficient to have affected the correctness of the decision. There had been double marking already, but, for the avoidance of doubt, the four modules about which he raised particular complaints were put to an independent external examiner for review. In all save one in which all candidates had been given what the external examiner regarded as too low marks, so that an increase from 30% to 35% was recommended, the claimant had been marked correctly or slightly generously.

The claimant invoked Stage 2. This appeal was summarily dismissed on 20 December 2001. He decided to appeal to the defendant and commenced the process by a letter of 14 January 2002. On 30 January 2002 the claimant was sent a letter from the defendant’s Private Secretary which read: -

“Thank you for your letter of the 14^th January, appealing to the Duke of Kent as Visitor of Cranfield University. On behalf of His Royal Highness, I have asked for this to be looked into, and hope to give you further news once that has been done”.

It is to be noted that, at the claimant’s request, copies of the relevant documents were forwarded to the Cranfield University Students Association, but the Acting President sent him a letter dated 28 February 2002 informing the claimant that it was considered that he had been treated fairly, properly and generously by the University at every stage of his appeal and declining to support his case.

In accordance with his normal practice, the defendant appointed a Queen’s Counsel (in this case a Circuit Judge) to “act as his Commissary in relation to [the claimant’s] appeal”. The judge (H.H. Judge Serota, Q.C.) gave directions by letter of 14 August 2002 as to the conduct of the appeal. Having received all written material and comments, he held a meeting on 9 January 2003 at which the claimant was able to make further representations. Following this, the judge submitted a written report to the defendant which, having dealt with all the matters raised by the claimant, concluded: -

“In the circumstances I can see no validity in any of the points raised by [the claimant] and I would advise the Visitor that his petition should be dismissed”.

On 22 April 2003 the defendant’s Private Secretary wrote to the claimant in these terms: -

“I have at last received the findings of the adjudicator appointed by the Duke of Kent, as Visitor, and I enclose a copy of these. The Duke of Kent has accepted Judge Serota’s recommendations that your petition of appeal should be dismissed.

I am very sorry to send you such disappointing news, but hope that you will now be able to go on with your career without this hanging over you and I wish you great success in the future”.

Two grounds are relied on by Mr. Jones on behalf of the claimant. First, it is said that the defendant delegated his functions to the judge. There is no express power enabling him to do that and, since he was exercising a function which was at least quasi-judicial if not fully judicial, no such power could be implied. Secondly, and in the alternative, it is said that, if the judge produced a recommendation or was giving advice, fairness or the rules of natural justice required that that advice be disclosed to the claimant to enable him to identify any inaccuracies whether of fact or law before the defendant reached his decision. Reliance is placed on observations in De Smith, Woolf and Jowell ‘Judicial Review of Administrative Action’ at Paragraph 6-105: -

“The maxim [delegatus non potest delegare] is applied with the utmost rigour to the proceedings of the ordinary courts, and in the entire process of adjudication a judge must act personally. Special tribunals and public bodies exercising functions broadly analogous to the judicial are also precluded from delegating their powers of decision unless there is express authority to that effect”.

In Thomas v Bradford University [1987] 1 AC 795 Lord Griffiths describes the visitor as ‘judge of the laws of the foundation’ (p.823G).

It is important to bear in mind that the prohibition against delegation relates to the decision and not necessarily to the process leading to the decision, save in the case of courts. Thus it is necessary to consider whether the defendant’s powers permitted him to do what was done here. It is, incidentally, clear that the hearing before and consideration of the matter by the judge was fair and thorough and (subject to the second ground) no complaint could be made against it. Since Mr. Jay Q.C. on behalf of the University has submitted that, even if there was any unfairness, the result could not, if reconsideration took place, be any different, it will be necessary to consider the errors which have been alleged to exist in the judge’s findings in due course.

In the seventeenth and eighteenth centuries, when the courts considered the correct approach to decisions of visitors which were sought to be challenged, the scope of the visitatorial jurisdiction was small. Only eleemosynary corporations have visitors and then it was only the Oxford and Cambridge Colleges (not the Universities themselves, which are civil corporations) and other largely ecclesiastical foundations which were affected. Furthermore, only members of the corporation in question were subject or could appeal to the visitor. The founding of more universities in the nineteenth century, the extension of membership to undergraduates and the great increase in the last century of universities have led to a much greater importance of the visitatorial powers. Since most universities are granted a Royal Charter, Her Majesty is visitor unless She appoints a particular person. If She does not, her jurisdiction is exercised by the Lord Chancellor whose jurisdiction, as Megarry J observed in Patel v Bradford University Senate [1978] 1 W.L.R. 1488 @ 1500D, ‘must now be of formidable dimensions, for in most of the modern universities the Crown appears to be the visitor’. Megarry J’s judgment in Patel contains a valuable explanation and historical analysis of the visitatorial jurisdiction.

A visitor is not bound to adopt any particular form of procedure. Provided that he acts fairly, he can decide how appeals to him should be pursued. Some of the older cases show that procedures closely resembling those of the ecclesiastical courts were followed. This is hardly surprising since many visitors to the colleges of Oxford and Cambridge were archbishops or bishops and other eleemosynary corporations which had visitors tended to have ecclesiastical connections. In comparatively simple appeals, a summary procedure could be adopted, including reference to commissaries. In Watson v Warden etc of All Souls College in Oxford (1864) 11 L.T. 166, the Archbishop of Canterbury, who was the visitor, sat with two assessors whose advice he accepted. It is clear from the report that the Archbishop relied on his assessors to reach a decision in the form of advice which he adopted. However, he sat on the appeal and heard the evidence and submissions. In Philips v Bury (1694) Holt KB 715; 89 E.R. 624, which is the leading case on the power of what is now the High Court to oversee the acts of visitors, the Bishop of Exeter, who was the visitor of Exeter College, Oxford, was given an express power to appoint a commissary to act for him, but there was then a right of appeal to him personally.

If there is no visitor appointed by the Queen so that She remains the visitor, an appeal will usually be dealt with by the Lord Chancellor acting on Her behalf. But She may appoint anyone to act on Her behalf: see Thomas v University of Bradford (No.2) [1992] 1 All E.R. 964, a decision of Lord Browne-Wilkinson who had been so appointed. In R v Lord President of the Privy Council ex p Page [1993] AC 682, the Lord President was appointed to act on behalf of Her Majesty as visitor of the University of Hull. Mr. Page’s claim was that he had tenure so that a decision of the University giving him three month’s notice to terminate his employment as a lecturer was unlawful. The Lord President sought advice from Lord Jauncey, who advised him that on the true consideration of the statutes of the University, the dismissal was lawful. On that advice, Mr. Page’s petition was dismissed. It was not suggested that that process involved an unlawful delegation.

In Picarda on The Law and Practice Relating to Charities, Third Edition, at p.573 it is said that visitors other than Her Majesty ‘must hear or deal with the appeal personally’. They must certainly make the relevant decision, but there is nothing to prevent them appointing a competent person to advise them. That person may conduct any hearing and obtain all necessary information. Provided that he acts fairly, and the visitor makes the final decision, there is no delegation which could be regarded as unlawful. While so far as I am aware there is no authority which in terms upholds the propriety of the procedure adopted in this case, I see no reason to doubt that it falls within the very wide discretion afforded to a visitor to decide the appropriate procedure in dealing with appeals. Its convenience in the case of a visitor such as the defendant is obvious. I have referred to the appointment of a competent person. Such a person should normally be a lawyer of standing and most of the more modern cases show that a judge or a Queen’s Counsel has been appointed.

Mr. Jones sought to rely on observations of Denning L.J. in Barnard v National Dock Labour Board [1953] 2 Q.B. 18 at 40 that judicial functions could rarely be delegated and then only if there was an express power or a necessary implication that such delegation could occur. Romer L.J. in the same case at p.45 stated that a judicial function was one which from its very nature was incapable of being delegated and gave the example of an arbitrator who could not appoint someone else to act in his place. Barnard’s case involved the purported delegation of disciplinary functions, which were by the relevant Order required to be exercised by the Board, to the port manager. There was a delegation of the whole decision making function, not merely of the obtaining of and the tendering of advice on the material facts. Mr. Jones further sought to persuade me that I should find that there was here a full delegation and that the defendant had never applied his mind to the matter but had simply rubber-stamped Judge Serota’s conclusions. He relied on the judge’s own description of his role as being a commissary and the private Secretary’s letter of 22 April 2003 which referred to ‘the findings of the adjudicator appointed by the Duke of Kent’. In neither case do the descriptions justify the conclusion that what was said to be an advice was not or that the defendant did not himself consider and reach a decision based on the recommendations of the judge. Thus, provided it was carried out fairly, there was nothing wrong in the procedure adopted.

I should add that Mr. Jay submitted that, even if there had been a full delegation, this court could not provide any remedy. He relied on the majority decision of the House of Lords in Page’s case (supra). Lord Browne-Wilkinson, with whose speech Lords Keith and Griffiths agreed, traced the history of the court’s attitude to control of a visitor’s acts from Philips v Bury. There are dicta in a number of old cases whereby judges have refused to make use of certiorari or other prerogative powers to control the acts of visitors. Thus in R v Bishop of Chester (1747) 1 W.B.22 one finds these observations:

“Visitors have an absolute power; the only absolute one I know of in England”. (Wright J).

“This court cannot control visitors” (Denison J).

One, to my mind somewhat unconvincing, reason for this judicial restraint is to be found in the judgment of Lord Kenyon C.J. in R v Bishop of Ely 5 Durn L 475 at 477: -

“But any interference by us to control the judgment of the visitor, would be attended with the most mischievous consequences, since we must then decide on the statutes of the college, of which we are ignorant, and the construction of which has been confided to another forum”.

Following his consideration of the authorities, Lord Browne-Wilkinson concluded

“I have therefore reached the conclusion that judicial review does not lie to impeach the decisions of a visitor within his jurisdiction (in the narrow sense) on questions of either fact or law. Judicial review does lie to the visitor in cases where he has acted outside his jurisdiction (in the narrow sense) or abused his powers or acted in breach of the rule of natural justice”.

By jurisdiction in its narrow sense, Lord Browne-Wilkinson meant power under the statutes or regulatory documents pursuant to which he was appointed to enter into an adjudication of the matter in dispute (see p.702G). Mandamus would lie to require him to act if he had such power and prohibition would be available to prevent him from acting if he did not. Lord Griffiths explained what he meant by abuse of power in these words (at p.693H): -

“I used the phrase “abuse of power” [in Thomas’ case in [1987] AC at p.825] to connote some form of misbehaviour that was wholly incompatible with the judicial role that the judge was expected to perform. I did not intend it to include a mere error of law”.

Mr. Jay went so far as to submit that a visitor could delegate to whomsoever he pleased and for whatsoever motive and no control could be exercised by the court. I disagree. The application of the principles established by the majority in Page’s case was considered by the Court of Appeal in R v Visitors to the Inns of Court ex p. Calder [1993] 2 All E.R. 876. The panel of visitors in that case consisted of three High Court judges, but the court quashed their decision. The ground on which the applicant succeeded was that the visitors had misunderstood their role, regarding it as one of review rather than an appeal. This led Sir Donald Nichols, V-C, to say (at p.906d): -

“I am in no doubt that if visitors conduct, not an appeal … but a review of the disciplinary tribunal’s findings and decision comparable to that undertaken by the court by way of judicial review …, then the visitors’ decision is amenable to judicial review …. In that event, the visitors have seriously misapprehended their function. The appellant has not had the benefit to which she is entitled of the visitors considering whether the charge, to the requisite standard of proof, has been made out to their satisfaction”.

Stuart-Smith L.J. (at p.923b) said that this error meant that the visitors had ‘failed to exercise their full jurisdiction’. And Staughton L.J. agreed that the decision must be quashed on the ground that the visitors had misunderstood the scope of their task (p.928c).

A delegation would mean that the appellant had not had a decision from the visitor to which he was entitled. It seems to me that the visitor would have misunderstood his powers so that there was, just as there was in Calder’s case, a failure to exercise the visitor’s full jurisdiction. It could also be regarded as a lack of fairness or breach of natural justice in that the appellant would have been deprived of his appeal rights. However it is to be analysed, it seems to me to fall within what Page’s case permits to be the subject of judicial review.

Fairness or the rules of natural justice generally require that, before reaching his decision, the decision maker must enable the person affected by his decision (normally an appellant or applicant) to be aware of and to be able to comment on any material which is put before him and upon which he will base his decision. But it is equally well established that this is not absolute and all will depend upon the particular circumstances of the case. As Lord Reid said in Wiseman v Borneman [1969] 3 All E.R. 275 at 277G: -

“Natural justice requires that the procedure before any tribunal which is acting judicially shall be fair in all the circumstances, and I would be sorry to see this fundamental general principle degenerate into a series of hard and fast rules”.

In that case, the procedure laid down by Parliament involved the Commissioners of Inland Revenue, after having received from the tax payer his statutory declarations stating why he should not be liable in respect of some particular transactions to pay or repay money to the Commissioners, producing a counter-statement. This counter-statement was not disclosed to the taxpayer but was taken into account by the tribunal appointed to decide the issue. This was said to be unfair and the court should require disclosure to enable comments to be made. The House of Lords declined to do so. The conclusion of the House was undoubtedly affected by the fact that the procedure related to an interlocutory rather than a final decision in that the tribunal was only concerned to decide whether the Commissioners had sufficient material to set the process in motion. But the majority said that there was no difference in principle between decisions which were final and those which were not so far as observance of the rules of natural justice were concerned.

It is, I think, helpful to note the approach of Lord Wilberforce, who stated that he did not find the question easy to decide. At p.287F he said this: -

“On the taxpayer’s side, there is the natural aversion against allowing a decision to be made on the basis of material he has not seen, and he can meet the objection that to allow him to see the counter-statement and comment on it invites an infinite process of contestation with the argument that in practice this will not result, since it will be exceptional that, after a counter-statement has gone in, the taxpayer can show that there is no prima facie case. On the side of the Commissioners it can be said that the taxpayer already has the essentials of justice in his right to put in a statutory declaration …”

It is apparent that the decision might have been different if a final decision was in issue. It is further worth noting observations of Lord Diplock in Hoffmann-La Roche & Co AG v Secretary of State [1975] A.C. 291 at p.369: -

“Even in judicial proceedings in a court of law once a fair hearing has been given to the rival cases presented by the parties the rules of natural justice do not require the decision maker to disclose what he is minded to decide so that the parties may have a further opportunity of criticising his mental processes before he reaches a final decision”.

The situation here comes somewhere between the two to which I have just referred. But it is important to bear in mind that a visitor’s decision is indeed final and that there is no review of it by a court. Thus if he errs in law or misunderstands a matter of fact, there is no redress. In those circumstances, it seems to me that it is necessary and fairness requires that the parties are given an opportunity to see and to comment on the advice before the final decision is made. But I must emphasise that this is not intended to give an opportunity to reargue matters of law or reopen matters of fact. Otherwise the process would be never ending. Any comments will be limited to issues of law which have not hitherto been argued or clear errors of fact.

I am fortified in this view by a consideration of the ECtHR jurisprudence under Article 6. I do not think Article 6 applies to the circumstances of this case since no civil right of the claimant is at stake. A failure to achieve a degree is too remote: see Hanuman v United Kingdom [2000] E.L.R. 685. The Court in Van Marlce v Netherlands [1986] 8 E.H.R.R. 483 made the same points in relation to a requirement that accountants be registered. The Appeal Board in that case was said to be akin to a school or university examination and so far removed from the exercise of a judicial function as to fall outside Article 6. However, I think that Article 6 can be engaged in an appeal to a visitor: Page’s case is an example since dismissal from employment was in issue there. In Van Orshoven v Belgium (1997) 26 E.H.R.R. 55 the Court went so far as to find a breach of Article 6 where the Avocat Général gave, in accordance with Belgian practice, an independent and strictly objective opinion to the Court of Cassation which was not shown to the parties to enable them to comment on it. It was noted that this could affect the position of the Advocates General in the Court of Justice of the European Communities if ever the European Convention on Human Rights was to apply to it.

I would only add one postscript in relation to Article 6. It seems to me that Page’s case may require reconsideration since it is at least arguable that the visitor is not an independent tribunal since he is directly involved in the university and the absence of any judicial review could constitute a breach. But this is not the case to deal with that question nor have I reached any concluded view on the point.

Although the claimant should have seen the advice before it was put to the defendant to enable him to make his decision, I am entirely satisfied that he could not have made any representation which could have affected the result. The appeal was bound to fail. Judge Serota’s report is comprehensive and deals fully with all the complaints raised by the claimant. It gives good reasons for rejecting them all. Three matters were specifically mentioned by Mr. Jones as errors which could have been corrected if the claimant had seen the report in advance.

The first relates to an increase of 5% in one paper which was given to the claimant when the marking was rechecked. It is said that the 5% was arbitrary and was insufficient. There is no error of fact nor anything new, merely a disagreement with the marking. The report on rechecking shows that the claimant was in fact treated most generously in being given the extra 5% and no more would conceivably have been justified.

Secondly, in one module the claimant asserted that it was a new subject and allowances should have been made because the handbook had said it was to be assessed by examination only but that was changed. Judge Serota said that he was not certain that he had fully understood the nature of the complaint but that it seemed to him to be ill founded. There can be no doubt that all were treated the same and the claimant was not disadvantaged. His performance was poor.

A further complaint related to an assignment which the handbook said would be between 750 to 1000 words. That was doubled, again for all. This complaint borders on the absurd. It is quite impossible to conceive how the claimant could have been prejudiced by it.

None of the matters referred to by Mr. Jones could be regarded as new. All had been raised by the claimant and had been properly dealt with by Judge Serota. It follows that no representations could have been made to identify any errors. There were none. Accordingly, this claim must be dismissed.