165 / 482
GAZETTE
APRIL 1989
evidence is not in my opinion
sufficient. It does not necessarily
follow from it that if the Applicant's
position had been considered by a
board consisting of all the extern
and chief intern examiners, he
would have passed. The furthest it
goes is to indicate that he might
have passed. And that is not
enough to entitle him to a declara-
tion that he did.
The foregoing are my findings on
the issues submitted to the Court
for its determination. It follows
from them that the Applicant's
principal claims for relief must be
refused. He is not entitled to have
quashed the decision of the
Committee refusing him entry to
the Law School nor is he entitled to
a declaration that he has passed
the final examination - first part.
But in my opinion he is entitled to
the following two declarations:
(1) A declaration that it is
ultra
vires
the present powers of the
Society to impose a limiting
quota of in or about 150 on
candidates seeking admission
to the Law School, and
(2) A declaration that it is
ultra
vires
the powers conferred on
the Society under the 1975
Regulations to hold a com-
petitive examination for entry
into the Law School of the
Society.
In considering the relief claimed
by the Applicant I was limited to
the issues which had been agreed
between the parties. Having now
fully considered the system
adopted by the Society for the
examination with which this case
is concerned, it seems to me that
there is a further issue which could
be relevant. As it was not raised or
argued before me, I do not propose
to express any view on it, but as it
is an issue which could arise in the
future, I consider that I should refer
to it.
It might be formulated as
follows: in the light of the pro-
visions of the 1954 Act and the
1975 Regulations, who should
decide if a student has passed the
final examination - first part? Is it
the examiners or is it the Com-
mittee? It is clear that it is for the
Committee to lay down the
standard of proficiency to be
obtained and on being satisfied as
to the proficiency of a candidate to
declare him to have passed
(Regulation 28 (1) of the 1975
Regulations), but how are they to
be so satisfied? Is it by applying
themselves the standard they have
laid down, or by permitting the
examiners to apply it and relying on
their conclusions? The regulations
are not very clear on this.
Regulation 7 says that "the
Committee shall also consider and
adjudicate upon the reports of the
examiners". The use of the word
"adjudicate" would suggest that
the final decision as to whether a
student has passed is to be made
by the Committee but, if this is
corect, the question might still arise
as to whether the Committee,
having appointed examiners, as it is
given power to do under the
regulations, can reserve to itself
what may necessarily be a function
of the examiners, namely, the
decision as to whether a candidate
has passed or not. It could be
argued that two separate functions
are involved, that of laying down
the standard of proficiency to be
obtained, and that of applying the
standard, and that the former is to
be carried out by the Committee
and the latter by the examiners.
Under the present system it would
appear that both are carried out by
the Committee. The issue is
whether under the Act and the
regulations this is permissible. It is
an issue which it seems to me may
need to be considered by the
Society.
This judgment has been appealed
to the Supreme Court.
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