THE HIGH COURT
DUBLIN
 [2004] IEHC 220
(JUDICIAL REVIEW)

Record No. 791JR/2003

BETWEEN:
JUSTINE QUINN
Applicant

-and-

THE HONOURABLE SOCIETY OF KING'S INNS
Respondent

APPROVED JUDGMENT OF MR. JUSTICE T.C. SMYTH 
DELIVERED TUESDAY, 15TH JUNE 2004

MR. JUSTICE T.C. SMYTH DELIVERED HIS JUDGMENT, AS FOLLOWS, ON TUESDAY, 15TH JUNE 2004

MR. JUSTICE SMYTH:	On 3rd November 2003, O'Sullivan J granted the Applicant leave to apply for judicial review to claim the following reliefs:

1.	An order of Certiorari quashing the decision of the Respondent to refuse the application of the Applicant to be admitted as a candidate for the Degree of Barrister at Law at the Honourable Society of the King's Inns, notified to the Applicant on or about 8th October 2003.

2.	A Declaration by way of an application for judicial review that the Applicant, the Respondent being the only body competent to confer the Degree of Barrister at Law within the jurisdiction, is entitled to have her examination scripts independently reviewed before an appeal body composed of independent and appropriately qualified individual(s).

3.	A Declaration by way of an application for judicial review that the decision of the Respondent was ultra vires by reason of unreasonableness having regard to the evidence to be adduced by the Applicant 

4.	A Declaration by way of an application for judicial review that the procedure for assessing admissibility applied by the Respondent fails to vindicate the constitutional right of the Applicant to earn a livelihood and to prepare for and follow a chosen career pursuant to Article 40.3.1 of the Constitution.

5.	Damages.

6.	Costs.

The grounds permitted to be advanced were eleven in number and were set out in the statement grounding the application.

THE FACTS:

I am satisfied and find the following facts are established by the evidence:

The Applicant was and is a law graduate of Dublin University. She achieved a Degree, rated as 2.1, with an average standard of 67%, which is an Honours Degree (in the year 2003). The course she followed at the university was a four-year course, in the third year of which (2001-2002) she studied Company Law and achieved a grade of 69%. Almost to the day, a year later, in response to her application to the Respondent to sit the entrance examination of the Respondent, she was furnished with information which included: 

A.	An extract from the Education Rules of the Respondent relevant to the entrance examination, which (inter alia) provided:

"9 Marks and Standards

(a)	To be awarded a pass in the entrance examination a candidate must achieve marks of at least 40% in each subject. A candidate who fails more than one subject shall not be permitted to pass the examination. A candidate who fails one subject shall be permitted to pass the examination if he achieves a pass mark when the marks of all subjects are averaged out, provided that the failure in that subject does not fall below a minimum of 10% lower than the pass mark.

(b)	Candidates who take the entrance examination shall pass all subjects in one sitting subject to the above provisions concerning

(c)	compensation. No exemptions in any subject shall be allowed. Candidates are not allowed to transfer results from one year into a subsequent year."

B.	Examination Regulation and Procedures 2003 
This two-page document consists of nineteen numbered paragraphs of which number eighteen provides as follows:

"(18) Please note that the rules make no provision for appeals in respect of the entrance examination."

The Applicant avers that she studied diligently for the entrance examination during the summer of 2003. On 1st September 2003, the Applicant presented herself at the venue for the entrance examination and signed a form whereby she stated that she had read, understood and would abide by the entrance examination rules, regulations and procedures of King's Inns, which had been sent to her some two months earlier on 2nd July 2003 having before the latter date paid her examination fee.

On 3rd September 2003, the Applicant sat an examination in Company Law, which was one of the five subjects that comprised the entrance examination. The Internal Examiner for this subject was Professor Ellis, who is neither a member of King's Inns nor part of its staff: he is Professor of Corporate, Commercial and Economic Law at the University of Limerick. The External Examiner was Mr. Lyndon  McCann, SC, who was and is not on the staff of the Council or any Committee or Board of King's Inns, but who's Degree as a Barrister at Law was acquired at King's Inns, but whose patent of precedence was conferred by the Government of the day in 2003. 

The ultimate results of the examination were that 129 students sat the examination, 127 completed all five subjects, 113 passed (including compensation), and 16 students failed the examination.
 
The Examination Board, having received the corrected scripts and marks from all the Examiners, met with the Examiners on 3rd October 2003 to review or consider the results. At that meeting, which Marcella Higgins, Director of Education in King's Inns, attended, she avers that the Examination Board considered the marks of those candidates who had failed subjects. Further, she avers at paragraph (8) of her affidavit sworn herein on 21st November 2003 as follows: 

"Having regard to the disparity between the mark awarded to the Applicant in Company Law (25%) and the marks awarded to her in other subjects, particular regard was had to the Applicant's paper at this meeting and the Examiner and External Examiner were each asked to give further consideration to the Applicant's paper. The Examiner and External Examiner were both satisfied that the mark awarded to the Applicant was the appropriate mark and that there was no basis for increasing same."

 
By letter dated 7th October 2003, the Applicant was advised of the results of the entrance examination. The Applicant's average mark in four subjects was in the order of 68%, but by reason of having only received 25% in Company Law the Applicant failed the examination. The Applicant was shocked and distressed at the result and put in train a series of enquiries and requests throughout the month of October 2003.

By e-mail letter of Friday, 10th October, the Applicant (inter alia) requested the Examination Board to review her paper once again to ascertain its value. A response of the same date, in similar manner, informed the Applicant that the concerns of her letter would be considered by the Board at a specially convened meeting on Thursday, 16th October, and that she could inspect her examination script at any time in the office of the Director of Education. On Monday, 13th October, the Applicant sought permission to have a "suitably qualified person" with her when inspecting her examination script and enquired if the Board would request a "Company Law Examiner other than those already involved" to view her script.

The Applicant's correspondence was before the specially convened meeting, as were reports on her scripts which had been submitted by Professor Ellis    and Mr. Lyndon McCann, SC. By letter of 17th October, the Director of Education wrote to the Applicant in the following terms: 

"Dear Ms. Quinn,
Your letter of 10th October 2003 and e-mail of 13th October 2003 were considered by the Examination Board at its meeting yesterday.

The Board wish to confirm that there is no administration or totting error regarding your script and that the sample of your handwriting matches the handwriting on the examination script. Four questions were answered in the one answer book.

The Board wish to inform you that your script was reviewed by the Examiner and External Examiner and the mark of 25% was confirmed. You may view your script in the Director's office. Copies of scripts are not made available to candidates and you are not allowed to have another person with you to view your script.

I will see you in my office at 11.OOam on Monday, 20th October, as arranged earlier today with you.
Yours sincerely, 
Marcella Higgins 
Director of Education"

It is clear from the text of a letter sent by fax on the same date, to wit, Friday, 17th October 2003, written by solicitors instructed by the Applicant that she had conveyed some (perhaps all) of the contents of the letter she had received from Ms. Higgins or handed it (or a copy) over immediately to the solicitors. The solicitors on this date had a copy of the rules referable to the entrance examination and make a number of criticisms of them and in particular that there is no appeal procedure provided for in them. That letter was replied to on  Monday, 20th October, on which date the Applicant called as arranged to inspect her examination script and was given a copy of the reports of Professor Ellis and Mr. Lyndon McCann, SC. Neither of these facts were acknowledged in what may be regarded as the letter preliminary to the bringing of proceedings, viz a letter of 30th October 2003 from the Applicant's solicitors in the following terms: 

"Dear Madame,
I refer to your letter dated 17th October 2003, to which we have not yet received a response, despite the urgency of the situation.
In the absence of any meaningful or any response from you, we have been left with no alternative but to instruct counsel to draft proceedings against the King's Inns. We are instructed that serious discrepancies have been noted in the manner in which Company Law papers have been marked as compared with other subjects. In this regard, we put you on notice of an intention to seek Discovery of any recheck of examination scripts conducted in respect of Company Law in the context of anticipated proceedings, should our client be compelled to pursue this matter in the courts.
Counsel has advised that we write indicating that unless a decision is communicated to us by 11.00am on Monday morning, November 3rd next, agreeing to the appointment of an independent assessor to review the papers and hear submissions on behalf of our client in accordance with fair procedures, we shall proceed forthwith to apply to the High Court in this matter and we shall rely on the contents of this and previous correspondence for the purpose of fixing you with the costs of such an application. We have instructions to nominate appropriately qualified individuals per agreement with the King's Inns for the purpose of such an independent review.
We await hearing from you before 11.OOam on Monday morning next.
Yours faithfully, 
MacGuill & Company"

The reply, though lengthy, is a very important response because of certain matters raised in the grounds of opposition. By letter dated 3rd November 2003, addressed to Messrs MacGuill & Company, both at Seatown, Dundalk, County Louth, and 34 Charles Street West, Dublin 7, the Dublin office of that firm of solicitors which is within five minutes walk from the High Court in the Four Courts. The letter of 3rd November 2003 reads as follows:

"Re: Your Client Justine Quinn
Dear Sirs,
I have been directed by the Examination Board (the 'Board') which was established under Rule 14 of the Education Rules of the Honourable Society of King's Inns (the 'Society') to respond to your letter dated 30th October 2003, and to respond further to previous correspondence, including your letter of 17th October 2003. The Board is extremely surprised at the tone and content of your letter of 30th October 2003. You assert that you have not received a response to your letter of 17th October 2003, and you suggest that there has been an absence of a meaningful or any response' from the Board. On that basis, you state that you have been left with 'no alternative but to Instruct counsel to draft proceedings against the Honourable Society of Kings Inns'. These statements are incorrect and seriously misleading. Your letter fails to acknowledge that your client was afforded the opportunity of inspecting her Company Law script, an opportunity of which she availed on 20th October 2003. I informed you of this in my letter to your firm of 20th October 2003. I enclose another copy of that letter, which was not acknowledged by your firm. In addition, when she attended to inspect her script, your client was provided with a copy of a six-page report on your client's Company Law script by the External Examiner, Lyndon McCann, SC, and a report by the Examiner, Professor Henry Ellis, Professor of Corporate, Commercial and Economic Law and Head of the School of Law at the University of Limerick. In case your client has not provided you with copies of these reports, I am enclosing another copy of them with this letter. I trust you will agree that in light of those reports, and, in particular, the detailed report of Mr. McCann, 5C, there is no basis for your client's complaints about a result in Company Law and about the manner in which her paper was marked. I would be grateful for your confirmation in that regard, as it is possible that when you wrote your letter of 30th October 2003 you were unaware of the contents of those reports. 
Before responding further to your letter of 30th October 2003, the Board has asked me to respond to certain matters raised by you in your earlier letter of 17th October 2003. It might be helpful also if I were to explain briefly the function of the Board. The Board's function includes appointing Examiners and External Examiners for the entrance examination, reviewing the results of the entrance examination and publishing the results in the Examiners Reports relating to the entrance examination. There is no provision in the Education Rules for an appeal to any other body from the exercise by the Board of any of its functions.
At its meeting with the Examiners and External Examiners on 3rd October 2003, the Board considered the marks of those candidates who had failed subjects. Having regard to the disparity between the mark awarded to your client in Company Law and the marks awarded to her in other subjects, particular regard was had to your client's paper. The Examiner, Professor Ellis, and the External Examiner, Mr. McCann, SC, were asked to give further consideration to your client's script. They did so and both were satisfied that the mark awarded to her was the appropriate mark and that there was no basis for increasing that mark.
Following correspondence with your client, a copy, all of which I enclose with this letter, I informed your client in e-mails dated 10th and 14th October 2003 that her correspondence would be put before the Board at a meeting on 16th October 2003. This was a specially convened meeting of the Board. At that meeting, the Board considered your client's correspondence and noted the reports which had been received from Professor Ellis and Mr. McCann, SC. The Board noted that in light of those reports, the mark of 25% awarded to the Applicant was confirmed. The Board decided that the Applicant could review her script in my office, but that a copy could not be made available to her. I understand that this accords with the practice adopted in the universities. Having spoken to your client, I confirmed by letter dated 17th October 2003 that she could inspect her script in my office at 11.OOam on 20th October 2003. I enclose a copy of that letter also. 
In your firm's letter of the same date, you made reference to the meeting of the Board on 16th October 2003. However, it should be noted that the Board has no function with regard to the marking of scripts. This is entirely a matter for the Examiner and the External Examiner. The Board did not 'review' your client's script. Her script was reviewed by the Examiner, Professor Ellis, and the External Examiner, Mr. McCann, SC, and that review was the subject of their reports.
Contrary to the assertion contained in your letter of 17th October 2003, your client was afforded the opportunity of making representations to the Board, which were received by the Board and considered by it at its meeting of 16th October 2003. Moreover, contrary to the inference contained in that letter, your client was given the opportunity of inspecting her script, a fact nowhere acknowledged in your letter of 17th October 2003, or indeed in your most recent letter of 30th October 2003. There is no basis on which your client has an entitlement to make representations to any independent body charged with conducting an appeal in this case. The Education Rules do not provide for an appeal and it is not understood what 'independent body' you are referring to.
The Board is quite satisfied that the entrance examination, in general, and the Company Law examination, in particular, were carried out in a competent and professional manner. The Board does not accept that your client was treated unfairly in any respect. Nor does the Board accept that your client has any entitlement to be provided with a copy of her script to make submissions to any 'independent body'. Having considered the reports of the Examiner, Professor Ellis, and the External Examiner,Mr. McCann, SC, the Board was satisfied, and is satisfied, that the mark awarded to your client is reliable.
I now turn to your letter of 30th October 2003. That letter was considered by the Board at another special meeting held on 31st October 2003. The Board is satisfied that there is no basis for your assertion that 'serious discrepancies have been noted in the manner in which Company Law papers have been marked as compared with other subjects'. Nor does the Board believe that your client can assert any lawful entitlement to obtain 'discovery of any recheck of examination papers conducted in respect of Company Law in the context of anticipated proceedings', and any such proceedings and application will be strenuously resisted by the Board and by the Society. Your client has already been provided with a copy of the reports in relation to her paper, which comprehensively explain the basis on which she was awarded the mark of 25% 
In light of the foregoing, you may take it that the Board does not agree to the appointment of any independent assessor to review either the Applicant's script in Company Law or indeed any other 'papers' or to afford your client with any further opportunity to make submissions in relation to her paper. Fair procedures have been applied. Your client has made representations to the Board, her position has been considered at a number of meetings of the Board and I have spoken with and met your client on a number of occasions. You may also take it that if your client chooses to issue the proceedings referred to in your letter of 30th October 2003, those proceedings will be strenuously defended.
We assume that should your client decide to issue proceedings all of the correspondence and relevant documents will be exhibited by her in any affidavit which she might swear, including, of course, this letter and the reports of Mr. McCann and Professor Ellis.
Finally, in case your client is unaware, your client is entitled to re-sit the entrance examination in 2004 in the subjects of Company Law, Criminal Law, Irish Constitutional Law, Law of Evidence and Law of Torts as provided for in Rule 6 of the Education Rules. If your client passes that examination, the Degree course which she will enter will be a one-year full-time course. Accordingly, your client will be a position to qualify as a barrister in 2005, which is the same year as those who passed the entrance examination in 2003 and who have now commenced on the two-year part-time course.
We await hearing from you. Yours faithfully, Marcella Higgins

Director of Education"

APPLICATION FOR LEAVE

(i)	I am satisfied and find as a fact that notwithstanding the fact that the Applicant had in fact inspected her script on 20th October 2003, there is no averment in the grounding affidavit sworn two weeks later to this effect. Notwithstanding the explanation given to my enquiry as to this omission, that the papers had been taken to the Central Office to obtain a date for the hearing before 3rd November 2003, I am satisfied and find as a fact that the Applicant is mistaken in this regard as the affidavit was only sworn on 3rd November 2003, and the impressed stamp of the Stamp Office records the time of stamping as 11.17am on 3rd November 2003. The Order of O'Sullivan J and the other relevant documentation having been served on the Respondent, a Statement of Opposition and grounding affidavit were filed on 24th November 2003. These raised a preliminary issues as to the non-disclosure to the court on the ex parte application to O'Sullivan J, of to wit, the fact that: 
(ii)	the Applicant had in fact inspected her examination script on 20th October 2003; and
(ii)     the letter of 3rd November 2003 from the Respondents.

An affidavit of Mr. James MacGuill, sworn on 30th November 2003, was filed on 1st December 2003, on behalf of the Applicant for the purpose of responding to the allegation of non-disclosure. The response dealing with the inspection on 20th October 2003 can, I think, be fairly characterised as tendentious -- it is averred in paragraph (3) that:

"The Applicant has never sought to hide the fact that she inspected her script."

and again:

"There was never any attempt to hide this fact. If not expressly stated, it was certainly implied that the Applicant availed of this opportunity as she clearly had entered into an arrangement with Ms. Higgins to do so and she sets out the evidence of this arrangement in her grounding affidavit."

In paragraph (5) of the affidavit, referring to junior counsel's recollection of events, it is averred as follows: 

"She confirms that there was no attempt to hide any material fact from the court in this regard and she indicates that in moving the application she may even have referred to the fact that the Applicant had been permitted to view the script herself	...

These are very unsatisfactory responses to a question that permitted of a Yes or No answer. The explanation tendered concerning the letter of 3rd  November 2003, not being available to the court; I am satisfied and find as a fact that it was not received on or before 11.00am on that morning, nor at 11.30am. When it was averred by Mr. MacGuill, the averments are made as being "of 34, Charles Street West, Dublin 7". 

"I confirm that by the time the fax was received in this office ..."

"... all solicitors were in court and that the agent attending on behalf of this office was not aware, nor was counsel, that any letter 
had been received as it had not been received before they departed for court for a list which was due to commence at 11.30am.

8. It is true that the application was made during the afternoon of 3rd November 2003, due to the number of applications in the ex parte judicial review list that day, but counsel and the agent attending on behalf of this office did not become aware that a letter had been received until after the application had been made and counsel was only furnished with a copy of the letter the following day."

I am satisfied and find as a fact on the documents that a faxed transmission of the letter of 3rd November 2003, and the documents to which it refers,    was sent between 12.11 and 12.23, and that there is a receipt of fax recorded as at 12.59 (which is the time Mr. MacGuill avers is the time of receipt in the Dundalk office of his firm). I am satisfied that when Ms. Higgins avers that the fax was sent in the morning 3rd November 2003, she is correct in the sense of it being sent in the morning sitting of the courts, but would be incorrect if referring to Greenwich mean time. There is nothing in the papers to assist me in knowing whether the letter was faxed to the Charles Street West office before 2.00pm on that day or what efforts were made in or from Dundalk to contact the member of staff in Dublin dealing with the case for the court in Dublin. 

While the nature of the application, ie, leave to apply for judicial review, would not have been altered by the availability to the court of the letter, a judge might well have insisted on the application being made on notice in the light of such a letter, which given the averments in paragraph (3) in the affidavit of Marcella Higgins herein, the outcome of the application for leave might well have been quite different.

 In my opinion, there was sufficient time available (in today's world of instant communications) to convey to the solicitor attending counsel in court (a) the existence of the letter, and (b) to furnish a  copy thereof. Again, I find this aspect of the 'leave stage' unsatisfactory. However, notwithstanding my misgivings as to the extent of the observance of good faith with the court, I am not disposed to making a decision adverse to the Applicant on this account, given the much more substantive nature of the application involved. 

DISCOVERY:

The Applicant sought voluntary Discovery before a Statement of Opposition was due by court order, notwithstanding that issue had not been joined under the procedure of Order 84 of the Rules of the Superior Courts. A formal order for Discovery was sought and ordered by Peart J on 1st December 2003, and the Respondent complied with this order by affidavit of 8th December 2003.

On the matter coming on for hearing, the Applicant sought to hand into court and rely on certain discovered documents on the basis that having been discovered they were admissible in evidence. The frailty of proceeding on such a basis in the light of the decision of O'Keeffe -v- An Bord Pleanala [1993] 1 IR 39; [1992] ILRM 237, having been pointed out to the Applicant, the matter was not pursued.

DISCHARGE OF SOLICITOR:

In early January 2003, the Applicant discharged her   solicitors and so notified the Respondent's solicitors. This was not a case of an application of a solicitor 'to come off record'. Having discharged her solicitors, the Respondent sought further information and voluntary third-party Discovery, and further Discovery to that obtained and delivered before the discharge of the Solicitor. 

WITNESSES:

In a manner unexplained to the court, the Applicant apparently obtained a Praecipe for subpoenas served a subpoena ad testificandum on Professor Ellis and Mr. Lyndon McCann, SC, neither of whom swore any affidavit 1n these proceedings, and on Ms. Marcella Higgins who had sworn an affidavit in the proceedings but whose averments (save as referred to by Mr. MacGuill on peripheral matters not dealing with the substantive issues) were uncontested. 

On the matter of the judicial review proceedings coming on for hearing, this matter was raised as a preliminary issue for ruling. Having considered the submissions of the parties overnight on 10th June 2004, a ruling was made in the light of Orders 84 and 40 of the Rules of the Superior Courts, noting as stated that no motion for leave to cross-examine supported by an affidavit had been brought before the court and therefore no court order had been made in this regard. I determined that having regard to the   terms of the rules and that two witnesses had not made or filed any affidavit on which they could be cross-examined, and that there was no disputed facts on the affidavits (as opposed to disputed interpretation on undisputed facts) in Marcella Higgins' affidavit, that leave should not be given to cross-examine the witnesses summoned and that they be discharged from further obligation to attend in court. In this regard I was mindful of the terms of relief (3) set out in the Order of 23rd October 2003 which left open the possibility and entitlement to the Applicant to adduce further evidence. In the absence of any further affidavit(s) by or on behalf of the Applicant and as no issues to the completeness of the Discovery arose and no motion grounded on affidavit or oral submissions adducing reasons why the Respondents deponent should be cross-examined, the Ruling of 10th June was made. No dissent to such ruling or intimation to appeal having been indicated, the application for judicial review proceeded to a hearing on that basis. 

THE LEGAL SUBMISSIONS:

The Applicant made her legal submissions to the Court under four broad headings, addressed to the merits of the Application.

(A) Legitimate expectation

(B) Fair procedures

(C) Ultra vires, unreasonableness;

(a) Generally
(b) "Having regard to the evidence to be adduced by the Applicant"
(c) Abuse of discretionary power, failure to exercise a discretion, or improper purpose
(d) Failure to protect the Applicant's right to earn a living pursuant to Article 40.3.1 of the Constitution.

The Respondent's case (excluding the preliminary objection based on non disclosure, earlier determined in this judgment) is that the matter is not amenable to judicial review, but without prejudice to that objection, that on the merits of the case the Applicant is not entitled to the relief claimed.

From the foregoing there are two issues to be determined by the Court in the light of the findings of fact earlier made in this judgment:

(1) Is the decision of the Respondent amenable to judicial review?

(2) If the answer to (1) is in the affirmative, are the grounds advanced referable to the reliefs in respect of which leave was granted sustained by the facts as found.

The question of amenability being one of legal principle should logically first be considered.

(1) Is the decision of the Respondent amenable to judicial review? 

This issue, having been raised by the Respondent, they submitted that the decision was not amenable to judicial review on basis that the Applicant's rights derived from contract, and that the matter is one essentially of private law. They point to the payment of the fee, the written acknowledgment and acceptance of rules, regulations and procedures, and having had same and the provisions for Rule 14 for some two months prior to signing of the acceptance form, that before the sitting of the examination the Applicant knew full well the rules, regulations and procedures which would govern the Entrance Examination. 

The Applicant's response was that a student entering an examine hall on the first day of a series of five consecutive examines would be far too preoccupied to consider at length anything they were compelled to sign. In my judgment this contention is not sustainable. If the documents sent on 2nd July 2003 had only been thrust in front of the applicant for    the first time on the morning of the examination without a fair opportunity to read and consider them, that might give rise to a sense of grievance, but not where there was a period of some two months to reed an digest material. Equally so it would be illogical to have intended applicants sign such a form of acceptance unless and until they actually presented themselves on the first day of the examination, were assigned an examination number and were actually going to sit the examination. 

The decision of Keane J., as he then was, in Rajah -v- The Royal College of Surgeons [1994], 1.IR 384, was relied upon by the Respondents as authority for the non-amenability contended for in the instant case. Keane J. held that a decision by the Respondent to refuse re-admission to the applicant student was not amenable to judicial review. He noted at pages 393/4 that the jurisdiction of the relevant college committees did not derive from public law, but instead derived solely from the contract which came into being when the applicant became a student in the college, and her agreement to be bound by the regulations of the college, including its procedures. Keane J. determined that since the jurisdiction of the College of Surgeons was derived from the contract which came into being when the applicant became a student of the college, and her agreement, express or implied, to be bound by the  regulations, the court had no jurisdiction to grant relief by way of judicial review. Considering what was the appropriate test for determining whether judicial review was appropriate in the case of the nature of Rajah's Keane J. applied that of Barr J. in Murphy -v- The Turf Club [1989] I.R. 171 at 173, which states: 

"Certiorari or prohibition will not issue to a body which derives its jurisdiction from contract, or to a voluntary association or domestic tribunal which derives its jurisdiction solely from or with the consent of its members -- see R -v- National Joint Council for the rat o Dental Technicians, ex parte Neale [1953] 1 QB 704 and The State (Colquhoun) –v- D'Arcy [1936] 641."

The approach adopted by Keane J. was expressly approved Finlay C.J. in Beirne -v- The Commissioner of An Garda Síochána [1993] ILRM 1 at page 2. Keane J. in Rajah proceeded to distinguish it as one, "where it had been held that the functions of the Commissioner in admitting persons as trainees of An Garda Síochána were,

"Matters of particular and immediate and public concern, directly relevant to the public question of the ordering of society and the regulation of discipline within society.

Keane J. then went on the state as follows:

"No such considerations arise in the present case. The Applicant is in the same position as a student in any other third level institution. The fact that the college, like others, derives its existence in law from a Charter or Act of Parliament is not a sufficient ground for bringing matters relating to the conduct and academic standing of its students within the ambit of judicial review."

The fact that there was an appeal procedure in Rajah is not determinative of its being distinguishable from the instant case, for the appeal process in Rajah was part of the contract between the partes in the same way as the absence of such an appeal process is part of the contract in the instant case.

It was submitted that the approach in this jurisdiction echoed that in the Northern Ireland Court of Appeal in Re Malone's Application [19881 N.I. 67, where in a claim of sexual harassment, a clerical employee of Queens University, who was not a member of the University, and who did not hold office which because of its public standing or character would have attracted administrative law remedies, was not within the scope of judicial review as her rights were based on private contract. In the course of his judgment in that case Kelly L.J. reviewed a range of authorities, including R -v- The National Joint Council of the Craft of Dental Technicians (Disputes Committee) Ex Parte Neale (19531 1 QB 704, which as  earlier noted also had been considered by Barr J. in Murphy -v- The Turf Club and cited the following passage from R -v- The Criminal Injuries Compensation Board Ex Parte Lain [1976] 2 QB 864, where Parker L.C.J., after tracing the development of certiorari from its earlier days, said at 882: 

"The only constant limits throughout were that [the tribunal] was performing a public function. Private or domestic tribunals have always been outside the scope of Certiorari since their authority is derived solely from contract, that is from the agreement of the parties."

Kelly L.J. turning to Malone's position, he considered the power to employ the Applicant was one given to the University under its charter, but which could only be exercised by an ordinary contract of employment. The non-discrimination of the charter was not concerned with members of the public, and did not inject a sufficient public element into her contract of employment. The charter merely authorised the University to do what a private employer could do. Kelly L.J. conclude that: 

"If any statute can be said to touch on that contract, it can only be the Irish Universities Act 1908, which gives authority to the sovereign to found by royal charter the university. This is so remote and indirect that it cannot be realistically be said to bring in any significant element of public law. The statute does not, of course, regulate the tenor of her employment even directly, or underpin your position as an employee of the University by restricting its freedom to employ, dismiss or retire her."

In the case of an office of a public law character where a regime which flowed from the Irish Universities Act was considered, to wit. Eogan –v-University College Dublin [1996] 1 I.R. 390; [1996] 2 ILRM 302 Shanley J. determined that the following were among that matters which might be taken into account in considering whether the decision was subject to judicial review:

(A)	Whether the decision was made pursuant to statute.

(B)	Whether the decision maker, by his decision, was performing a duty relating to a matter of particular and immediate public concern, and therefore falling within the public domain. 

(C)	Where the decision affected a contract of employment, whether that employment had any statutory protection as to afford the employee "public rights" upon which he might rely.

(D)	Whether the decision was being made by a decision maker whose powers, though not directly based on statute, depended on approval by the legislature or the government for their continued exercise.

 It is sufficient to note, in that case, that the claim of the plaintiff's based on legitimate expectation failed because he knew in advance of his 65th birthday that he would be obliged to retire at 65. Because he was "in contract" before the alteration of a regime of renewals was discontinued he was given and availed of an opportunity to comment on same; and that there were rational grounds for such a scheme both when it was introduced and when it was applied to the Applicant. The Applicant in the instant case, is quite clearly distinguishable, because in the instant case the terms of the contract were known to the Applicant before she entered onto the contract and committed herself to it.

The Applicant submitted that non-negotiable contracts of adhesion by a monopoly supplier, signed in circumstances of vast disparity and strength of the parties are not generally favoured by the courts and in this regard relied as authority for that proposition on the case of McCord -v- ESB [19801 ILRM 153. That was a case which went to a plenary hearing and was ultimately determined by the Supreme Court. In the course of his judgment Henchey J. deals with the take it or leave it nature of the standard contract tendered to all members of the public in respect of the supply of electricity. It is noted in the judgment at page 161 that the final term of the contract provided that:

"The Board reserves to itself the right to add to, alter, or amend any of the foregoing terms and conditions as it thinks fit."

No such absolute unilateral discretion existed in the terms of the life of the contract entered into between the Applicant and the Respondent in this case.

In my judgment the instant case is clearly distinguishable from McCord as the following passage from the judgment of Henchey J. makes clear. 

"When the monopoly supplier of a vital public utility -- which is what the Board is -- forces on all its customers a common form of contract reserving to itself sweeping powers, including the power to vary the document unilaterally as it may think fit, such an instrument has less affinity with a freely negotiated interpersonal contract than with a set of by-laws or with any other form of autonomic legislation. As such, its terms may have to be construed not simply as contractual elements, but as components of a piece of delegated legislation, the validity of which will depend on whether it is kept within the expressed or implied confines of the statutory delegation and, even if it has, whether the delegation granted or assumed is now consistent with provisions of the Constitution of 1937."

While the case of Geoghegan -v- The Institute of Chartered Accountants in Ireland r19951 3 IR 86 was cited and argued about by the parties, the decision of the Supreme Court was that the relationship between the Applicant and the Respondent was based on contract, rather than an Act of the Oireachtas, and so the Respondent, in applying disciplinary procedures, was not administering justice. The Applicant's case is not one of dismissal in the instance case. The conflicting dicta in Geoghegan, -- in which it would appear from the report Rajah was not considered -- are evenly divided and the then Chief Justice preferred to reserve his decision on the point. Murphy J. at first instance was unequivocal in his view that the decision of the Institute was not amenable to judicial review and his decision embraced a consideration inter alia of the decision of Lord Parker C.J. in R -v- The Criminal Injuries Compensation Board Ex Parte Lain [19671 2 QB 864 at 82, and the Irish cases of Murphy -v- the Turf Club [1989] IR 171 and Beirne -v- The Commissioner of An Garda Síochána [19931] ILRM 1, both of which were considered and the latter distinguished in Rajah. 

I am unconvinced by the obiter that contend for the amenability of the Institute (in the instant case the Respondent) to judicial review. The principle of subsidiarity so beloved of lawyers of European law embraces the concept of subsidiary function, and therefore only in those cases where the nature and   sources and purpose of the exercise of the power has a public purpose or function (as opposed to simply being in the public domain), should the court seek to convert what is in reality a private contract into a matter of public law. 

In R -v- Jockey Club Ex Parte Aga Khan (Court of Appeal)[1993] 1WLR 909 (considered in detail by Murphy J. at first instance in Geoghegan's case, earlier referred to) Bingham M.R. (as he then was) held that although the Jockey Club exercised dominant control over racing activities in Great Britain its powers and duties were in no sense governmental but derived from the contractual relationship between the club and those agreeing to be bound by the rules of racing, and that such powers gave rise to private rights enforceable by private action in which effective relief by way of declaration, injunction and damages are available; and that, accordingly, the club's decision was not amenable to Judicial Review.

Hoffman L.J. put the matter concisely in his judgment
at page 930/1, thus:

"The Jockey Club is an exclusive private club incorporated by Royal Charter which controls the racing industry. It does so by tradition, widespread acceptance and the contractual consent of almost all active participants in racing to the club's Rules of Racing and the jurisdiction of its disciplinary committee. The control gives the club considerable power over a section of

the economy which is not only important in itself but supports another economic activity, namely horse race betting. The question in this appeal is whether the power exercised by the club brings its decisions into the realm of public law so that they are amenable to judicial review. In my view it does not. However impressive its powers may be the Jockey Club operates entirely in the private sector and its activities are governed by private law."

While accepting that an educational establishment differs from a sporting establishment it is the underlying distinction between the relationships which are governed by private law rather than public law that is of importance.

In my judgment the instant case falls four square within the decision in Rajah. The Examination Board's jurisdiction derives from the Education Rules of the Respondent. The Applicant was accepted as an applicant in the Entrance Examination on the basis of those rules. Accordingly insofar as the decision involved in those proceedings is concerned, the Applicant's rights are determined by a contract and the matter is essentially a private one relating to the rights of a student with respect to the Respondent. The fact that the Respondent's powers may initially derive from a charter is removed and indirect to the consideration of the instant case - as was made clear in Re Malone's application, it is necessary to consider the nature of the power as well   as its source. The Examination Board when deciding to fail the Applicant was not exercising a disciplinary function and so is clearly distinguishable from Geoghegan's case. 

In short, the Applicant is not entitled to invoke a public law remedy for a private law right.

Notwithstanding this conclusion, in deference to the submissions of the parties, and in particular the Applicant, I proceed to consider the second question.

(II) Are the grounds advanced referable to the release in respect of which leave was granted sustained by the facts found?

The Applicant's submissions are that she had and has a legitimate expectation that:

(1) Standards of marking applied by the Respondent, their servants or agents would be fair and appropriate (e) 6 A.G.S (i.e. ground (e)(6) in the Applicant's Grounding Statement for judicial review)

(2) Her admission to the King's Inns will be determined in accordance with examinations fairly and competently assessed; (x) A.G.S. The order of O'Sullivan J. did not grant leave for this relief.

(3) Her right to pursue a career will not be arbitrarily interfered with, but will be determined in accordance with a fair and independent mechanism in accordance with her right to constitutional justice: (v), (viii) S.S.G and (e) 6 A.G.S. The 
order of O'Sullivan J. did not grant leave for reliefs (v) and/or (viii); however the ground was advanced and is advanced in the grounds upon which leave was granted.

The Applicant relied on the decision of McCracken in Abrahamson -v- The Law Society of Ireland [1999] 1 I.R. 403: [1996] 2 IRLM 481. In the course of his judgment at page 492 and following McCracken J. reviewed a number of authorities and stated at page 498 that "the following principles are now established":

(1) It is now well established in our law that the courts will, as a general rule, strive to protect the interests of persons or bodies who have a legitimate expectation that a public body will act in a certain way.

(2) In protecting those interests, the courts will ensure that, where that expectation relates to a procedural matter, the expected procedures will be followed.

(3) Where the legitimate expectation is that a benefit will be secured, the courts will endevour to obtain that benefit, or to compensate the Applicant, whether by way of an order of mandamus or by an award of damages, provided that to do so is lawful.

(4) Where a Minister or a public body is given by statute or statutory instrument a discretion or a power to make regulations for the good of the public, or of a specific section of the public, the court will not interfere with the exercise of such a discretion or power, as to do so would be tantamount to the court usurping that discretion or power to itself and would be an undue interference by the court in the affairs of the persons or bodies to whom such discretion or power was given by the legislature."

In my judgment the Applicant was entitled to have a legitimate expectation that the Respondent would adhere to the terms of the documents furnished to her. That they did. What the Applicant could have no reasonable expectation about is that there would be provision for an appeal or an entitlement to receipt of the original or a copy of her script or to have a third party, however distinguished, assess her examination paper. There is no evidence supporting any promise, express or implied, or any    representation or allegation that such was made by the Respondent or existed for the provisions the Applicant now contends were part of the contract with the Respondent. The underlying assumption in the contract is that both parties would adhere to its terms. In Carna Foods Limited and Another -v- Eagle Star Insurance Company [1997] 2 IR 193 the Supreme Court held that a term which is left to be implied into a contract is something so obvious that it goes without saying. Moreover, a term will only be implied into a contract where it gives effect to the true intention of all the parties to the contract who might be affected by such implied term. It must be a term necessary to give business efficacy to the contract. While accepting that this related to a commercial transaction, the Respondent in this case has not resiled from a position created or adopted by it. If as was submitted by the Applicant 'that legitimate expectation is concerned essentially to see that administrative powers are not used unfairly' (Cannon -v- Minister for the Marine [19911 1 I.R. and Daly -v- Minister for the Marine [20011 IESC 58). I am satisfied that the powers of the Respondent were carried out in accordance with the terms of the contract and exercised fairly. 

 The Respondent submitted that even if the application were viewed as a public law matter and the Respondents were obligated to act in accordance with    natural justice -- its requirements will vary with circumstances of the case (Mooney -v- An Post [1998] 4 I.R. 288. In my judgment the requirements of natural justice do not give rise to a right of independent appeal, particularly in circumstances where not only were the examiner and external examiner requested to reconsider their decision at the meeting on 3rd October, 2003 but invited and accepted an invitation to review the Applicant's script, which both of them did, and which reports were considered by the Education Board at the meeting on 16th October, 2003. 

Even if the applicant were entitled to the legitimate expectations contended for I am satisfied on the facts as found that such have been met. In this regard I expressly confine myself to the evidence and am mindful that the court must confine itself to review and not seek to exercise any form of appellate jurisdiction (see The State (Abenglen Properties Limited) -v- Dublin Corporation [1984] I.R. 381.

The Applicant next submits that the Respondents have failed to ensure compliance with fair procedures; ((e) 7 and (e) 6, (e) 8 A.G.S. and (v), (vii) and (viii)). The order of O'Sullivan J. did not grant leave in respect of (v) and/or (viii). The complaint is that in failing to appoint an independent assessor and that she could make personal representations to   the Examination Board and that she had not been accorded a right to the observation of fair procedures in the manner in which her examination results were scrutinised and reviewed, that her right to pursue a career was in effect arbitrarily interfered with. 

In my judgment it is nihil ad rem as to what rules and regulations govern public examinations held under the auspices of the Department of Education, or that other schools of learning, e.g. University College Dublin, have different rules and procedures (the latter which incidentally do not confer a right on a student to a copy of his/her examination script, but in respect of examination irregularity a 'face to face' encounter may take place).

The Respondent submits that the Respondent is like any other educational body, it must be entitled to make a decision as to whether a perspective student meets its entry requirements. If it were otherwise they contend the decision in respect of some students (i.e. those who contest their mark) would be made by third parties and in circumstances where there are no guidelines for the choice of the third party or indeed the review of that third party's work.

 In my judgment there was nothing arbitrary in the manner in which the Education Board conducted its    business. There was nothing unfair in a procedure signaled in advance which was agreed upon by the Applicant and followed as agreed by the Respondent. I am satisfied and find as a fact that fair procedures were followed by the Respondent. While the Applicant was clearly upset and disappointed at the result of her Entrance Examination, especially in the light of her career at university and the standard achieved in the Entrance Examination in other subjects, the procedures followed by the Respondent were not unfair. 

 The Applicant's submission on the issue of ultra vires per se are unsustainable and not borne out by the evidence. However, the gravamen of her complaint is that "the extreme manner in which admission to practice at the Bar of Ireland is restricted in the absence of a fair, transparent and independent appeals mechanism is ultra vires the Respondent in that it is unreasonable and/or operates to unduly and/or improperly restrict access to the profession of Barrister-at-Law, (e) 8 A.S.G.". 
 
There is no evidence that admission to the Bar of Ireland is restricted, nor of any manner of its being so allegedly restricted. The Entrance Examination is a preliminary examination in respect of all who wish to study for and take the Degree of Barrister-at-Law. They are obliged to pass that   examination. In that it is no different than many other schools of learning. The examination is devised in a manner in which all scripts are marked by an internal examiner, whose actions are scrutinised by an external examiner. The integrity of the system and the academic autonomy of the examiners would in my judgment require that all students be marked by the same individual, where practicable, and subject to the same type of review. The assertion of unreasonableness to be found in paragraph 23 of the Applicant's affidavit is expressed in these terms: 

"I believe that an independent examination of my script by an appropriately qualified person will establish this. In short I believe that the result accorded to me was such that no reasonable examiner could have given me such a grade, and as such the grade is unsustainable in law."

 In my judgment the absence of an appeal mechanism as such is not ultra vires or unreasonable. Even if the reconsideration by the examiner and external examiner was not committed to writing initially I am satisfied that their review of the script about a fortnight later (which is in writing) are detailed and the report of the external examiner in particular, Mr. Lydon McCann SC, was very comprehensive. When the Applicant received these on 20th October, 2003, she could have had no doubt about the reason as to why   she was unsuccessful. A decision based on such material was, in my judgment, reasonable and there was real hard evidence, not just a flimsy excuse for evidence, which is well over the bar and requirements of the standards set in associated Provincial Picture Houses Ltd -v- Wednesbury Corporation in the UK and O'Keeffe -v- An Bord Pleanla [1993] 1 I.R. 39 (even if I was wrong in any judgment that the instant case is non-amenable to judicial review), 

Another ground upon which the Applicant sought to rely on unreasonableness and ultra vires was that the Respondent fettered their discretion, abused their discretionary power or failed to exercise their discretionary power or exercise same for an improper motive. This contention was grounded in the proposition that entry to the Degree course should be determined on the basis of merit.

 I am satisfied and find as a fact that the Respondent did not fetter its discretion. It made two specific enquiries concerning the Applicant's script, the first on 3rd October, 2003 on the Education Board's own initiative and again on the urgings and request of the Applicant before the involvement of any solicitor. The flexibility provided in the rules for compensation was exercised and applied where warranted in accordance with the rules. There was, I am satisfied, no animus towards the Applicant because    of her querying the results, nor was there any question of operating a quota system. The examination was conducted on the basis of merit but that had in fairness to all candidates to be in accordance with the rules. A subjective judgment on merit is of little assistance in this regard. 
 
On the evidence before the Court I am satisfied and find as a fact that the decision making authority had regard to all relevant and legitimate factors and did not take into account any irrelevant or illegitimate factors in coming to the decision (P & F Sharp –v- Dublin City and County Manager [19891, IR701). The Applicant submitted that because the Respondent was the sole institution within the State through which the degree of Barrister-at-Law can be pursued and gained, it was in a monopoly position and that failing her in the Entrance Examination it failed protect and/or vindicate to prepare for and pursue a chosen career and/or to earn a livelihood pursuant Article 40.3.1 of the constitution. Altogether from the specifically stated constitutional a right and without determination of any duty of or obligation of the Respondent under the Constitution which was not argued: I turn to the judgment in Murphy -v- Stewart [19731 IR97; 107 ILTR 117, of Walsh, J. referred to by the Applicant. Walsh J. observed that if a person or body was in a monopoly position (a trade union in that case) and the "monopoly was abused in such a way    as to effectively prevent the exercise of a person's constitutional right to work. The question of compelling that union to accept the person concerned into its membership (or, indeed, or break the monopoly) would fall to be considered for the purpose of vindicating the right to work. The terms of the letter of 3rd November, 2003 clearly indicate that the door was not closed and that the Applicant would have another opportunity to sit the Entrance Examination under and in accordance with rules, an offer that was given again and presented to her during these proceedings. 
 I reject the submission of the Applicant, that the Defendants have been shown to have engaged in unlawful activity as there is no basis for that in the facts found. Furthermore the decisions in Parsons -v- Kavanagh [1990] INRM 560 and Cox -v- Ireland (1992] 2IR, 503 relied upon by the Applicant as authorities are clearly distinguishable from the instance case. The Applicant very properly in her written submissions refers to the judgment of Costello, J. in The Attorney General -v- Paperlink Ltd (1984] ILRM373 at 384 wherein he states: 

"The defendants like all citizens have a constitutional right to earn a living. Their freedom to exercise this constitutional right is not an absolute one, however, and it may be subject to legitimate legal constraints."
In my judgment, such constitutional rights as the Applicants has and is entitled to enjoy have not been infringed by the Respondent.

In short this is a case in which a student agreed that an Entrance Examination to a professional law school would be conducted in accordance with known rules, regulations and procedures which the law school in my judgment properly and fairly adhered to. The fact that no appeal mechanism, as such, was provided for, did not form part of the contract, does not, especially in the light of the facts as I find them to be, give rise to an entitlement to the reliefs permitted to be claimed on the grounds advanced. 
 Accordingly, I refuse the application for the order of certiorari, the declarations and damages as sought. 

END OF JUDGMENT

Approved
T.C. Smyth
17/06/2004