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

Factual and Procedural Background

The Plaintiff was enrolled in a one-year Master's Degree (MSc) course in Explosive Ordnance Engineering at The University, which holds a Royal Charter granting a Visitor with final discretionary powers over matters within his jurisdiction. The Defendant was appointed as the Visitor of The University for a five-year term commencing April 2000. The Plaintiff's registration was terminated due to failure to maintain satisfactory academic progress after poor examination results and unsuccessful internal appeals. Following dismissal of his internal appeals, the Plaintiff appealed to the Defendant as Visitor, whose appeal dismissal on 22 April 2003 led to this judicial review claim lodged on 21 July 2003. Initial permission was refused on the papers but later granted at an oral hearing.

The Plaintiff’s academic progress included sitting two blocks of examinations with required minimum averages. After poor results in Block 1 and resits, the Plaintiff was warned about the risk of failing. Block 2 results were insufficient to pass, and the Examination Board decided not to permit further referrals, leading to termination of registration.

The Plaintiff pursued two stages of internal appeal within The University, both dismissed. Subsequently, he appealed to the Defendant as Visitor. The Defendant appointed a Queen’s Counsel (a Circuit Judge) as his Commissary to investigate and report. After a hearing and thorough review, the Commissary advised dismissal of the Plaintiff’s appeal, which the Defendant accepted.

The Plaintiff challenged the procedure adopted by the Defendant, alleging unlawful delegation of the Visitor’s functions and breach of natural justice for non-disclosure of the Commissary’s report before the final decision. The court heard submissions on these grounds and the related costs issues.

Legal Issues Presented

1. Whether the Defendant, as Visitor exercising quasi-judicial functions, unlawfully delegated his decision-making power to the appointed Commissary without express authority.
2. Whether fairness or the rules of natural justice required the Defendant to disclose the Commissary’s report to the Plaintiff before making the final decision, allowing the Plaintiff to comment on any inaccuracies.
3. Whether any procedural defects in the appeal process warranted relief despite the substantive appeal being bound to fail on its merits.

Arguments of the Parties

Appellant's Arguments

• The Defendant lacked express or implied authority to delegate his quasi-judicial functions to the Commissary, constituting unlawful delegation.
• Fairness and natural justice required disclosure of the Commissary’s report to the Plaintiff before the Defendant’s final decision, to enable correction of factual or legal errors.
• The procedural defects in the appeal process justified relief despite the substantive appeal’s likely failure.

Defendant's Arguments

• The Visitor’s powers include broad discretion to determine the procedure for appeals, including appointing a competent person to advise or conduct hearings, without unlawfully delegating the final decision.
• Even if there was a procedural breach regarding disclosure, the appeal was bound to fail on the merits, so no relief should be granted.
• The established principles and precedents support the Visitor’s procedural approach and limit judicial review of visitatorial decisions.

Table of Precedents Cited

Court's Reasoning and Analysis

The court began by acknowledging the quasi-judicial nature of the Visitor's role and the broad discretion afforded to the Visitor in determining procedural matters, including appointing a competent legal adviser to investigate and report on appeals. The court found no express or implied prohibition against the Defendant appointing the Commissary to conduct the appeal process, provided the Defendant personally made the final decision.

The court rejected the argument that the Defendant had unlawfully delegated his decision, noting that the Defendant considered the Commissary’s report before reaching his own conclusion. The use of terms such as "commissary" and references to the Commissary’s findings did not amount to a complete delegation of decision-making power.

Regarding natural justice, the court held that fairness generally requires disclosure of material advice or recommendations that form the basis of a final decision, allowing the affected party an opportunity to comment. However, this right is not absolute and does not extend to rearguing settled matters of law or fact. The court emphasized that the Plaintiff should have been given the chance to see the Commissary’s report before the Defendant’s decision to identify any clear errors or new legal points.

The court found that although there was a procedural breach in non-disclosure, the Plaintiff’s appeal was bound to fail on the merits, as the Commissary’s report comprehensively addressed all complaints and gave sound reasons for dismissal. The identified alleged errors were either disagreements over marking or issues already considered, none amounting to new material warranting reconsideration.

The court reviewed historical and modern authorities on the scope and limits of visitatorial jurisdiction, confirming that judicial review is limited but available in cases of jurisdictional error, abuse of power, or breach of natural justice. The Visitor’s powers and discretion in procedural matters remain broad, but not unlimited.

On the issue of costs, the court acknowledged the complex and archaic nature of the law in this area and noted the claim was ultimately unsuccessful. Nonetheless, the court ordered the Plaintiff to pay 75% of The University’s costs, subject to legal aid protections, reflecting the partial success on procedural points but ultimate failure on substantive grounds.

Holding and Implications

The claim for judicial review is dismissed.

The court held that the Defendant did not unlawfully delegate his decision-making powers as Visitor by appointing a Commissary to investigate and report on the Plaintiff’s appeal. Although the Plaintiff was entitled to see and comment on the Commissary’s report before the Defendant’s final decision, the failure to disclose did not affect the outcome as the appeal was bound to fail on its merits. The decision clarifies procedural expectations concerning visitatorial appeals, particularly regarding delegation and disclosure obligations, but does not establish new substantive precedent beyond reaffirming existing principles.

The Plaintiff was ordered to pay a substantial portion of The University’s costs, subject to legal aid restrictions, reflecting the partial procedural victories but ultimate substantive defeat. The case underscores the limited scope for judicial review of visitatorial decisions and the broad procedural discretion enjoyed by Visitors in university governance.