The Gazette 1989

APRIL 1989

GAZETTE

they would be competing for 150 places. The only inference that can be drawn from this is that if more than 150 were to succeed in obtaining a pass, it is only the first 150 who would be admitted to the Law School. In view of this, even though the quota was not imposed in 1986, because the numbers of those who passed did not exceed the limit, it seems to me that the next issue is still relevant: whether it is ultra vires the powers of the Respondents to limit to 150 the number of places available in its Law School. In my opinion the answer to this is reasonably clear. It is to be found in Regulation 18(2) of the 1975 Regulations which provides that "an apprentice who has passed or has been exempted from the Final Examination - First Part shall be entitled to admission to the Law School". As long as that regulation is in existence, the Society cannot in my opinion impose any limit on numbers. The regulation says plainly that any apprentice who passes the examination shall be entitled to admission. That is the position irrespective of the numbers who pass. So whether it is 150, 200 or 250, they are all entitled to entrance to the Law School. The plain terms of the regulation prevent the Society from imposing any limit on the number. Once an apprentice has passed the examination, he cannot be refused entrance. Were it not for Regulation 18 (2) the position might be different. It would depend on how Section 40 (1)(b), which gives the Society power to hold examinations, should be construed; whether it should be construed as giving the Society the power to hold a competitive examination. Counsel for the Applicant submitted that it could not. As the question does not arise at present, I do not propose to express any opinion on it. The third issue to be decided is whether "it is lawful for the Respondents to require as a standard to be attained in the final examination - first part held in November 1986 a pass mark of 50% in each of the five subjects, Law of Contract, Law of Tort, Law of Real Property, Constitutional Law and Company Law, and in the case of a candidate failing to

a statutory instrument made pursuant to the provisions of the Solicitors Act 1954 would have no jurisdiction to allow a pass by compensation if the standard as laid down meant that a can- didate must obtain 50% in each subject". In every year a substantial number of students who have not obtained 50% in all five subjects pass by compensation. Counsel for the Applicant submitted, and it seems to me correctly, that the rules governing compensation are part of the standard. If a student comes within the rules, he passes. In other words, if he obtains the standard required by the compen- sation rules, he passes. The compensation rules formu- lated by the Committee in 1986 were held by the President to be ultra vires in requiring an aggregate of 255 marks for a pass where a student had dropped below 50% in two subjects. He held that the aggregate in such a case should be 250 marks and not 255. This modification of the compensation rules, and accordingly of the standard, permitted a further 12 students to pass. But the application of the compensation rules was then exhausted. No other students could bring themselves within them, that is to say, could show that they had achieved the standard implicit in the com- pensation rules. In view of this it seems to me that the students who failed to obtain a pass in 1986 did so not by reason of any quota imposed by the Committee but because they had not attained the required standard, being the minimum standard laid down by the compensation rules. It was the failure to attain that standard rather than the imposition of a quota which resulted in the number gaining entrance to the Law School being limited to 147. It follows that the Society did not impose a limit of 150 in 1986, the reason being that it was not necessary to do so. But if it had been necessary, it seems to me that they would have had to impose one since Blackhall Place cannot accommodate more than 150 students in any year. Furthermore the Society had clearly decided upon a limit of 150 and had indicated to the students in its literature that in the examination

achieve that standard in not more than two subjects, an aggregate pass mark of 250 in these five subjects?" It was not submitted on behalf of the Applicant that there was no power to lay down a standard. It was submitted that the standard was unreasonable and accordingly unlawful. It was pointed out that one student with a mark of 41 in a subject, and another with a mark of 43, had both passed, and it was argued that if they were considered to have reached the appropriate standard, the Applicant, who had dropped below 50 in one subject only, and whose mark in that subject was 46, should be considered to have reached the standard also. If not, it was submitted that the standard was unreasonable. The test to be applied is in my opinion that enunciated by Diplock L. J. in Mixnam's Properties Limited -v- Chertsey Urban District Council [1964] 1 QB 214 at 237, which test was cited and adopted by Henchy J. in his Judgment in Cassidy -v- The Minister for Industry and Commerce [1978] I.R. 297 at page 311: "Thus, the kind of unreasonable- ness which invalidates a by-law (or, I would add, any other form of subordinate legislation) is not the antonym of 'reasonableness' in the sense of which that ex- pression is used in the common law, but such manifest arbitrari- ness, injustice or partiality that a court would say: 'Parliament never intended to give authority to make such rules; they are unreasonable and ultra vires" Could it be said that the Com- mittee, in laying down this standard, was guilty of manifest arbitrariness, injustice or partiality? In my opinion it could not. There was no arbitrariness or partiality about it because it was a fixed standard which applied equally to all the candidates taking the examination. Nor could it be said to be unjust. An absolute standard of 50% in each subject would have been very rigid. To permit a can- didate to pass who had fallen below 50% in not more than two subjects was a reasonable modi- fication to introduce and in order to ensure a certain overall standard there had to be some minimum aggregate specified. And for this

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