The Gazette 1989

162 / 482

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 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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