MacGabhann v Incorporated Law Society of Ireland

• Jurisdiction: Ireland
• Judge: Mr. Justice Blayney
• Judgment Date: 10 February 1989
• Neutral Citation: 1989 WJSC-HC 563
• Court: High Court
• Date: 10 February 1989

1989 WJSC-HC 563

THE HIGH COURT

No. 199/1987

MAC GABHANN v. INCORPORATED LAW SOCIETY

Judicial Review

BETWEEN /

FRANK Mac GABHANN

APPLICANT

AND

THE INCOPORATED LAW SOCIETY AND DAVID R. PIGOT, THOMAS D. SHAW, RAYMOND T.MONAHAN, DONAL G. BINCHY, ADRIAN P. BOURKE, JOHN F. BUCKLEY, GERALDINE CLARKE, ANTHONY E. COLLINS, LAURENCE CULLEN, MAURICE CURRAN, FRANCIS D. DALY, PATRICK J. DALY, JAMES D. DONEGAN, ANTHONY H. ENSOR, PATRICK GLYNN, GERARD GRIFFIN, JOHN J. JERMYN, CARMEL SARAH KILLEEN, BRIAN J. MAHON, ERNEST J. MARGETSON, VIVIAN C. MATTHEWS, KEN MURPHY, GERARD McCARTHY, WARD McELLIN, BRIAN McMAHON, PATRICK O'CONNOR, RORY O'DONNELL, MICHAEL V. O'MAHONY, MOYA QUINLAN, JOHN C. REIDY, JOHN M. SCHUTTE, ANDREW F. SMYTH, JOSEPH R. SWEENEY BEING THE APPOINTED MEMBERS FOR THE TIME BEING OF THE COUNCIL OF THE INCORPORATED SOCIETY OF IRELAND AND DON BINCHY, JIM DONEGAN, JOHN BUCKLEY, KEN MURPHY, ALMA LYNCH, FRANK LANIGAN, DAVID PIGOT, THOMAS D. SHAW AND LAURENCE CULLEN BEING THE APPOINTED MEMBERS FOR THE TIME BEING OF THE EDUCATION COMMITTEE OF THE INCORPORATED LAW SOCIETY OF IRELAND

RESPONDENTS

Citations:

SOLICITORS ACT 1954 (APPRENTICESHIP & EDUCATION)(AMDT NO.1) REG 1974 SI 138/1974

SOLICITORS ACTS 1954 & 1960 (APPRENTICESHIP & EDUCATION) REG 1975 SI 66/1975 REG 17

EAST DONEGAL CO-OP V AG 1970 IR 317

SOLICITORS ACTS 1954 & 1960 (APPRENTICESHIP & EDUCATION) REG 1975 SI 66/1975 REG 18(2)

SOLICITORS ACT 1954 S40(1) (b)

MIXNAM'S PROPERTIES LTD V CHERTSEY UDC 1964 1 QB 214

CASSIDY V MIN INDUSTRY & COMMERCE 1978 IR 297

SOLICITORS ACTS 1954 & 1960 (APPRENTICESHIP & EDUCATION) REG 1975 SI 66/1975 REG 28(1)

GILMER V INCORPORATED LAW SOCIETY & ORS 1989 ILRM 590

SOLICITORS ACTS 1954 & 1960 (APPRENTICESHIP & EDUCATION) REG 1975 SI 66/1975 REG 7

Synopsis:

PROFESSIONS

Solicitors

Law school - Entrance examination - Incorporated Law Society - Powers of Education Committee - Examination results - Whether candidate entitled to be admitted to law school - Whether Law Society entitled to impose a quota of 150 successful candidates - The respondent Law Society's law school was established in 1978 and, from the start, it was not found possible to admit more than 150 students each year - The students seeking admission to the law school were required to pass the Law Society's final examination (1st Part) - The Society informed candidates that they were competing for 150 places - In order to pass the said examination, a candidate was required by the Society's education committee to attain a pass mark of 50 of the maximum of 100 marks in respect of each of five subjects but the Society's education committee applied compensation rules to a candidate who failed to achieve a pass mark in not more than two of those subjects - The education committee decided whether or not a candidate had passed the examination, having received from the Society's intern and extern examiners the marks allotted to the candidate by the examiners - In November, 1985, the applicant, an apprentice to a solicitor, sat for the examination and failed to pass - In November, 1986 the applicant sat for the examination again - On 30/1/87 the applicant was informed by the Society that he had failed the examination again - The examination subjects and the applicant's marks on the second occasion were:- Tort 50, Contract 50, Property 50, Company Law 51 and Constitutional Law 46 - The applicant's marks were checked again without any alteration being made to them - As the total of those marks was less than 250, an application of the Society's compensation rules would not benefit the applicant - At the said examination there were 319 candidates and 135 of them were informed initially that they had passed but, in consequence of the subsequent decision in ~Gilmer v. Incorporated Law Society of Ireland~ (Hamilton P. - 31/8/87), a further 12 candidates were told that they had passed, so that ultimately 147 candidates were successful - Having obtained leave, the applicant applied in the High Court for (inter alia) an order of certiorari quashing the Society's refusal to admit him to the Society's law school - One of the applicant's main submissions was that in recent years the respondent Society had imposed a quota of 150 successful candidates for the said examination - Article 18(2) of the Regulations of 1975 states that "an apprentice who has passed, or who has been exempted from, the final examination (first part) shall be entitled to admission to the Law School" - The applicant's motion was adjourned for plenary hearing on oral evidence - Held that the quota issue related to the examination for which the applicant sat in November, 1986, and that the circumstances of earlier examinations were irrelevant apart from the light thrown on the circumstances of the applicant's said examination - Held that the applicant's failure to pass the said examination was a consequence of the fact that he did not obtain the required number of marks in the said five subjects; it was not caused by an operation by the Society of any pre-determined quota of 150 successful candidates - Held that the Law Society had not imposed a quota of 150 successful candidates for the said examination as the occasion for such imposition, if it were contemplated, did not arise - Held that the imposition of such a quota by the Law Society in relation to the said examination would have been ~ultra vires~ that Society due to the terms of article 18(2) of the Regulations of 1975 - Held that the determination by the respondent Society's education committed of 50% as the minimum pass mark for the said examination was not tainted by manifest arbitrarieness, injustice or partiality so as to invalidate such determination: ~Cassidy v. Minister for Industry and Commerce~ [1978] I.R. 297 considered - Held that the applicant probably knew of the minimum pass mark required but that, in any event, he had tried to achieve the best result possible irrespective of the minimum pass mark required - Held that the said education committee could not be compelled to treat the applicant as having achieved the required standard in his said examination - Held that the applicant was entitled to orders declaring (a) that the imposition of such a quota would be ~ultra vires~ the respondent Society and (b) that the holding of a competitive examination by the respondent Society for entry into its law school is ~ultra vires~ that Society - Solicitors Acts, 1954 – 1960 (Apprenticeship and Education) Regulations, 1975, article 18 - (1987/199 JR - Blayney J. - 10/2/89) 1989 ILRM 854

|MacGabhann v. Incorporated Law Society of Ireland|

INCORPORATED LAW SOCIETY

Education Committee

Powers - Law school - Entrance examination - Pass standard - Examination results - Adjudication - Exercise of statutory powers - Whether empowered to impose a pre-determined quota of successful candidates - ~See~ Professions, solicitors - (1987/199 JR - Blayney J. - 10/2/89) 1989 ILRM 854

|MacGabhann v. Incorporated Law Society of Ireland|

TRIBUNAL

Powers

Law school - Entrance examination - Pass standard - Law Society's education committee - Examination results - Adjudication - Exercise of statutory powers - Whether empowered to impose a pre- determined quota of successful candidates - ~See~ Professions, solicitors - (1987/199 JR - Blayney J. - 10/2/89) 1989 ILRM 854

|MacGabhann v. Incorporated Law Society of Ireland|

PROFESSIONS

Solicitors

Law school - Entrance examination - Incorporated Law Society - Powers of Education Committee - Examination results - Whether candidate entitled to be admitted to law school - Whether Law Society entitled to impose a quota of 150 successful candidates - The respondent Law Society's law school was established in 1978 and, from the start, it was not found possible to admit more than 150 students each year - The students seeking admission to the law school were required to pass the Law Society's final examination (1st Part) - The Society informed candidates that they were competing for 150 places - In order to pass the said examination, a candidate was required by the Society's education committee to attain a pass mark of 50 of the maximum of 100 marks in respect of each of five subjects but the Society's education committee applied compensation rules to a candidate who failed to achieve a pass mark in not more than two of those subjects - The education committee decided whether or not a candidate had passed the examination, having received from the Society's intern and extern examiners the marks allotted to the candidate by the examiners - In November, 1985, the applicant, an apprentice to a solicitor, sat for the examination and failed to pass - In November, 1986 the applicant sat for the examination again - On 30/1/87 the applicant was informed by the Society that he had failed the examination again - The examination subjects and the applicant's marks on the second occasion were:- Tort 50, Contract 50, Property 50, Company Law 51 and Constitutional Law 46 - The applicant's marks were checked again without any alteration being made to them - As the total of those marks was less than 250, an application of the Society's compensation rules would not benefit the applicant - At the said examination there were 319 candidates and 135 of them were informed initially that they had passed but, in consequence of the subsequent decision in ~Gilmer v. Incorporated Law Society of Ireland~ (Hamilton P. - 31/8/87), a further 12 candidates were told that they had passed, so that ultimately 147 candidates were successful - Having obtained leave, the applicant applied in the High Court for (inter alia) an order of certiorari quashing the Society's refusal to admit him to the Society's law school - One of the applicant's main submissions was that in recent years the respondent Society had imposed a quota of 150 successful candidates for the said examination - Article 18(2) of the...