The Gazette 1989

GAZETTE

APRIL 1989

Second Class Honours 65% with a minimum of 55 in each subject. (Grade 1). Grade 2 60% with a minimum of 50 in each subject. Intern and extern examiners are appointed by the Society to conduct the examination. The interns are normally practising Solicitors with a specialised knowledge of their subject and the externs are distinguished aca- demics from the Law Schools of the Universities or of other third level institutes. The main differ- ences between the manner in which the examination is con- ducted and that in which a University examination is con- ducted is that the decision as to whether a student has passed is not made by an examining body consisting of all the intern and extern examiners, but is made by the Committee on the basis of marks awarded by the examiners, the Committee having met them and received a report from each of the chief intern examiners. In deciding who has passed the examination the Committee applies what it terms "compensation rules". And up to and including the 1986 examination the details of these rules were not decided until the meeting held to consider the marks awarded by the examiners. The rules varied from year to year. In 1984 a student who had fallen below 50% in two subjects required an aggregate of 265 marks to pass; in 1985, the same student would have required only 260 marks, and in 1986, before the decision of the President in the case of Gilmer -v- The Society (unreported 31st August, 1987) he would have required 255 marks, and after that decision, 250 marks. Notwithstanding the big increase in the number sitting the examina- tion, the numbers passing have not varied significantly as appears from the following table showing the number who sat the examination and the number who passed in the years from 1981 to 1986 inclusive. Year Number Number Sat Passed 1981 172 134 1982 226 146 1983 312 159 1984 391 155 1985 371 159 1986 325 147

The percentage pass rate went down from approximately 72% in 1981 to 40% in 1984. The Applicant's principal challenge to the examination for entrance to the Law School in 1986 is that the Society imposed a quota of 150 and that the imposition of such a quota was ultra vires. In support of his contention that there was a quota, his Counsel relied on references to a limit of 150 in the Minutes of the Committee, in the syllabus and in the booklet "How to become a Solicitor". He relied also on the evidence of Dr. Anthony Unwin, a senior lecturer in the Statistical Department of Trinity College who has an M.Sc. in statistics from London University and e doctorate in the same discipline from Trinity College. Dr. Unwin said in evidence that there were two possible reasons why the pass rate had gone down from slightly below 80% in 1981 to 40% in 1984: either the quality of the students had changed or the examination standard had changed. Having carefully selected compar- able sub-groups of students and still found declines in pass rates he had to conclude that the standard had changed. As to the quota being ultra vires, Counsel for the Applicant submitted that for it to be permissible, it would have been necessary that it should be expressly spelled out in the Solicitors Act 1954 and he relied on the decision of the Supreme Court in the case of East Donegal Live- stock Mart Limited -v- The Attorney General [1970] I.R. page 317. Counsel for the Respondents submitted that no quota was imposed. He did not deny that the Society had always contemplated that the number which could be accommodated in the Law Society was 150, but he submitted that the examination results were such that the Society had not had to impose a quota. The standard of 50% had been set as far back as 1976 so it would be impossible to conclude that it had been set with a view to keeping the numbers down to 150. The first of the issues that I have to determine is: "Did the Respondents limit to 150 the number of places to be awarded to candidates who sat the final examination - first part in or about the month of November 1986?"

The issue is concerned with the 1986 examination only. What happened in previous years is not relevant except insofar as it may assist in ascertaining the circum- stances of the 1986 examination and it is only in that context that I may refer to previous examinations. The 1986 examination has already been considered by the President in the Gilmer case. The Plaintiff there had been notified that she had been unsuccessful in the examination as she had got less than 50 marks in two subjects and her overall aggregate (initially 251 marks, and on a re-check raised to 254 marks) was less than 255 marks which was the number of marks the Committee had decided that a candidate in her position would require to have in order to pass by compensation. The President held that the pass mark of 50% fixed by the Committee in 1976 should be construed as requiring an average of 50%, and as the Plaintiff had achieved such average she was entitled to a pass. Before his decision the Committee had declared that 135 candidates had passed, 63 having obtained over 50% in each subject, and 72 having passed by compensation. After his decision a further 12 students were declared to have passed by compensation, bringing the total up to 147. The question to be considered is whether the remaining candidates who failed to pass did so because a quota of 150 was imposed by the Committee, or because they had not attained the standard laid down by the Committee; and to decide this it is necessary to examine the standard in question. Counsel for the Respondents submitted that the standard is 50% in each subject. But if that were correct, only those who obtained that number of marks in each sub- ject could pass. However, this is not the case, as was pointed out by the President in the Gilmer case. He said at page 21 of his judgment: "It is, however, clear from Mr. Binchy's Affidavit that candid- ates who have not achieved 50% in each subject but who have achieved 50% overall have been allowed to compensate in circumstances determined from time to time by the Education Committee. The Education Committee, which is a body constituted by

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