163 / 482
GAZETTE
APRIL 1989
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
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
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
149