England and Wales High Court (Queen's Bench Division) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION

		Royal Courts of Justice Strand, London, WC2A 2LL
		19/11/2012

Mr Justice Sweeney :

Introduction

1. By an Application Notice dated 30 October 2012, supported by a witness statement of the same date, the Applicant seeks an interim injunction ordering the suspension of a decision made on 26 October 2012 by the City Law School ("CLS"), which is part of the City University, London, to de-register him from the Bar Professional Training Course ("BPTC") "pending the outcome of [The Applicant's] appeal against a decision of the Inns' Conduct Committee ("ICC"), dated 29 August 2012, not to admit him as a member of the Inner Temple".
2. The application was first pursued, ex parte, before Lindblom J on 31 October 2012. At that time the only Respondent named as such in the Application Notice was the ICC. In the result Lindblom J ordered, inter alia, that:

"1. The Applicant's application for injunctive relief is adjourned to an inter partes hearing on notice to

(a) the Respondent,

(b) the Bar Standards Board, and

(c) The City Law School (City University, London),

to be fixed on the first available date after 7 November 2012 with a time estimate of one hour.

1. The Applicant is forthwith to serve on the Respondent, and on the other bodies named in paragraph 1 above, his Application Notice, together with all evidence upon which he relies, with leave to effect such service by electronic means.

2. By no later than 6 p.m. on 6 November 2012 the Applicant is to file and serve on the court, on the Respondent and on the other bodies named in paragraph 1 above his counsel's skeleton argument for the inter partes hearing, with leave to effect such service by electronic means…."

3. The application was listed before me on 7 November 2012. The Applicant was represented by Miss Sarah Plaschkes QC. No other party attended. However, the Chair of the ICC (Margaret Bickford-Smith QC) provided a Note to assist the Court, together with a witness statement, dated 5 November 2012, made by the Programme Director of the full-time BPTC at CLS (Professor Stuart Sime), and accompanying exhibits.
4. Miss Plaschkes's skeleton argument set out the broad background to, and the nature of, the application, but (no claim having been issued) did not deal with the nature of any proposed underlying claim. During the course of her argument on the Applicant's behalf I pressed Miss Plaschkes as to the identification and broad particulars of the proposed underlying claim sought to be relied upon. In the result she indicated, on taking instructions, that the proposed underlying claim was one of breach of contract. I was not, however, satisfied that the claim had been particularised by the Claimant with sufficient clarity to enable me to reach an appropriately informed conclusion as to whether, in the terms of American Cyanomid Co v Ethicon [1975] AC 396, there is a serious question to be tried in this case. Accordingly I adjourned my decision and permitted the Applicant to file, by not later than 4 p.m. on 8 November 2012, any further material relied upon to broadly particularise the proposed underlying claim.
5. In the result the Applicant duly filed a second witness statement dated 8 November 2012 and accompanying exhibits, together with an unsigned statement by his mother Kausar Ahmed (a signed copy of which was filed the following day).
6. I was acutely conscious that the CLS, which is the true Respondent in this application, had not had the opportunity to consider either the argument advanced before me as to the proposed underlying claim or the new material filed since. However, given the urgency of the situation (arising principally from the 80% academic attendance requirement which I explain below) I concluded that the correct course was to make a decision, on the available material, as to whether to grant the application or not.
7. In the result, on 12 November 2012, I decided to refuse the application and notified those representing the Applicant accordingly. I now set out my reasons.

The Regulatory Background.

8. The Bar Training Regulations ("BTR") are published by the Bar Standards Board ("BSB"). The BTR set out the training which a person must complete, and other requirements which a person must satisfy, in order to be called to the Bar by an Inn and to become qualified to practise as a Barrister. There are three stages in the process: the academic stage, the vocational stage, and the professional stage.
9. The BPTC, which is offered at a number of institutions, including CLS, is the vocational stage of the training.
10. Regulation 25 of the BTR provides that:-

"Before commencing the Vocational Stage, a person must:

(a) have completed (or been exempted under Part VII of these Regulations from) the Academic Stage; and

(b) be a member of an Inn of Court."

11. The requirement to be a member of an Inn of Court before commencing the Vocational Stage is underlined in the BPTC Academic Regulations which have been published by the BSB in the BPTC Handbook.
12. Regulation 3.1.5 of the Academic Regulations makes clear that membership of an Inn of Court is one of the entry requirements.
13. Under the heading "Membership of an Inn of Court" Regulation 3.2.2 of the Academic Regulations provides that:-

"a. Before commencing the BPTC, a person must have been admitted to an Inn of Court.

b. As with the requirement for the completion of the Academic Stage of training, the process of obtaining membership of an Inn must similarly be fully completed before commencement of the BPTC. Application must normally be made by 31 May each year. The process of application for membership of an Inn may take a considerable period of time and a candidate admitted to the BPTC who has not obtained membership of an Inn before the course commences will not be able to enrol or, having enrolled, will be asked to leave (or otherwise not have their BPTC qualification recognised professionally by the BSB)…

c. When membership of an Inn is withdrawn for disciplinary or other reasons then the student must withdraw from the BPTC with immediate effect…… When a candidate has reason to believe that their application for Inn membership may not be straightforward (e.g. when they have a criminal conviction that they must disclose), the candidate must allow for the extra time that consideration of their case may take and apply to the Inn well in advance of the deadline."

14. Part II of the BTR, Regulations 4-17, deals with "Admissions to Inns of Court". This includes a requirement (Regulation 4(b)) that, to be eligible for admission to an Inn, a person must "be a fit and proper person to become a practising barrister".
15. Regulation 6(a) provides that a person is a "fit and proper person to become a practising barrister" if "there is no reason to expect that that person, if admitted to an Inn, will engage in conduct which is dishonest, or which otherwise makes that person unfit to become a practising barrister".
16. Regulations 13 and 14 require that, in the event of a person who has been convicted of a criminal offence applying for admission to an Inn, the Inn must refer the question of whether that person is a fit and proper person to become a practising barrister to the ICC.
17. The ICC sends its decision to the applicant and to the relevant Inn (Regulation 15). In the event that the ICC finds that the applicant is not "fit and proper", there is a right (under Regulation 16 and Part X) to ask for the decision to be reviewed. Any such review is carried out by the BSB provided that the request is made to it in writing within one month of the date when notice of the decision was given.
18. Regulation 17 provides that if the BSB is satisfied that the applicant is eligible for admission to an Inn, and has complied with Regulation 9 (the application procedure), then the Inn must admit the applicant.
19. If the BSB upholds the ICC's decision then, by virtue of Regulation 103, the applicant may appeal against the decision to the Visitors to the Inns of Court in accordance with the Hearings before the Visitors Rules.
20. There are minimum attendance requirements on the BPTC. In particular if, over the whole length of the course, a student's attendance is less than 80%, then they will automatically fail.

The Factual Background

21. The Applicant was born in May 1985, and is thus now aged 27.
22. In the broad period between the early autumn of 2004 and the late spring of 2005 he committed ten offences of using a false instrument with intent and two offences of obtaining a pecuniary advantage by deception. The offences were committed in connection with on-line trading by the Applicant in stocks and shares, and included the use of doctored bank statements showing greatly inflated credit balances in order to gain enhanced credit facilities.
23. The Applicant was first arrested in March 2005 and a long investigation followed. A prosecution was eventually commenced in 2008. On 22 April 2009 the Applicant pleaded guilty, on re-arraignment, to all twelve offences. On 12 June 2009 he was sentenced to a total of 9 months' imprisonment suspended for two years, and ordered to complete 180 hours of community service. In due course, a confiscation order in the sum of £18,921.30p was also made against him.
24. There is no doubt that the Applicant had the necessary educational qualifications to enable him to apply to an Inn of Court, and to apply to take the BPTC. That said, there are a number of factual disputes as to what happened when he did so.
25. Professor Sime says that there is an on-line system for applying to join the BPTC at CLS, and that the main round for applying closes in January for entry on the course in September, with a deadline for applying for Inn membership of 31 May.
26. The Applicant says that it was "in or around April 2012" that he made applications to various institutions for a place on the BPTC.
27. It is, however, common ground that the CLS offered the Applicant a place on 17 April 2012. The offer letter stated, inter alia, that:

"This offer is subject to you meeting the following standard conditions set out by the Bar Standards Board:….

(b) Being confirmed as a member of one of the four Inns of Court. Please note that the application deadline for Inn membership is 31 May 2012. You must ensure you apply to join by this date…."

28. The Applicant accepted the offer, via the CLS on-line portal, on 8 May 2012, but failed thereafter to make the necessary deposit payment.
29. On 31 May 2012 (and thus on the last possible normal day to do so) the Applicant applied to become a member of The Honourable Society of Inner Temple ("The Inner Temple"). The Applicant says that this was because of problems in obtaining the criminal case papers. At all events, he gave notice of his previous convictions.
30. On 3 July 2012 the Inner Temple referred the question of whether the Applicant is a fit and proper person to become a practising barrister to the ICC.
31. On 15 August 2012 a hearing panel of the ICC was convened to determine the issue. The panel was chaired by David Streatfeild- James QC, and there were two other members – an ICC Committee member and a Lay Representative. The Applicant was represented by Peter Lodder QC.
32. By a detailed written decision dated 29 August 2012, which was provided to the Applicant on that date, the panel concluded that the Applicant is not a fit and proper person to become a practising barrister. The panel also concluded that it would not be appropriate for the Applicant to be reconsidered for admission until at least 10 years after his conviction, but explained that that conclusion did not preclude an earlier application, and that nor did it express a view as to what the outcome of an application after that period would be.
33. It is not in dispute that the Applicant attended and temporarily enrolled at the CLS on 17 September 2012, and that he was not a member of one of the Inns of Court when he did so. Indeed, he had not even lodged an appeal against the panel's decision at that stage. That said, there is considerable dispute as to what happened – particularly as to what was, and was not, said.
34. In his first witness statement the Applicant says that he was in the process of enrolling electronically in a computer room when he had to select from a drop down menu the Inn of Court of which he was a member. He says that he explained the situation to the gentleman who was supervising the enrolment process in the computer room, saying that he had applied to the Inner Temple, that the application had been refused, but that he was appealing to the BSB. The Applicant says that, nevertheless, he was advised by the gentleman to select the Inner Temple and to proceed with temporary enrolment (as he did not have a copy of his Graduate Diploma in Law with him).
35. The Applicant says that, on the same day, he also had a conversation with the Registrar of CLS (Kiri Lee) regarding his "Inn membership situation".
36. Having been granted temporary enrolment the Applicant says that thereafter he obtained a copy of his Graduate Diploma in Law and thus went to the CLS office to collect his student ID card. In his first witness statement he says that this took place on either 28 September 2012 or 1 October 2012. In his second witness statement he says, by reference to certain emails, that it was on 3 October 2012. He says that whilst the necessary administrative work was being done he spoke with Kiri Lee, who asked him whether the CLS had his Inn membership details on record but who then, before he answered, appeared to recollect their conversation on 17 September 2012, and to take it no further.
37. The Applicant says that, in any event, the CLS ought to have been informed of the result of the panel hearing well in advance of 17 September 2012.
38. In his first witness statement the Applicant says that had he not been allowed entry on the BPTC he would not have entered into an agreement for his accommodation, whereas Professor Sime points out that payment under the first rental invoice was due on 7 July 2012 – over two months before the Applicant's temporary registration on 17 September 2012.
39. Professor Sime says that registration for the BPTC at CLS is a two part process – online and in person. The great majority of BPTC students complete the on-line part (which is for registration as a City University Student rather than for the BPTC) before attendance at a specified time to register for the BPTC itself in person.
40. Professor Sime says that the Applicant had not registered on-line as a City University student in advance of 17 September 2012, and that it was for that reason that he was referred to the computer room. There were two administrators in the room -Mr Pearson and Mr Topping. Neither of them was asked by any student about an Inn membership application. Indeed, the on-line registration is a generic one-size-fits-all application across the whole university, with no course-specific questions such as the identification of Inn membership. Had any such question been asked of the administrators it would have been referred to one of the CLS staff who were also present.
41. Professor Sime says that the Applicant was unable to register because of fee issues. He says that CLS administrative staff did raise the issue of his Inn membership, and that Miss Lee is fairly sure that the Applicant showed her a document relating to his Inn membership. She is however sure that nothing was said about the ICC proceedings or about the Applicant having been refused Inn membership.
42. Professor Sime states that the fees issue arose because, against the background that the Applicant had already failed to pay the necessary deposit on acceptance of his place in May 2012, he also failed to pay the first main instalment of his fees which was due on 17 September 2012. Professor Sime states that, on that date, the Applicant promised the CLS Income manager, Mr Greg Wray, that the fees would arrive in a few days and that he would confirm by email. No such email was sent and nothing at all had been paid as at 5 November 2012.
43. The Applicant states, in contrast, in his second witness statement, that he did not speak with Mr Wray on 17 September 2012. He points to an email from Kiri Lee on 28 September 2012 urging him to "complete registration for the course and pay the required fee today". He says that he told Kiri Lee about his financial problems (occasioned by a police investigation into the provenance of the requisite funds) on 1 October 2012, and was directed by her to Mr Wray to whom he spoke on 2 October 2012. He says that he told Mr Wray that the Police had arrested his mother and sister on 19 September 2012, following a complaint by his late grand-uncle's grandson in relation to cheques totalling £62,500 which the grand-uncle had issued to members of the Applicant's family in the period leading up to his death. In the result the Applicant's mother's bank account, which contained substantial funds from which it had been intended to pay the Applicant's fees, had been frozen. The Applicant says that, believing that the police investigation would be completed within a month, he gave an undertaking to Mr Wray to pay his fees within 6 weeks, and that Mr Wray agreed. The Applicant says that, in the result, he was able to complete registration on 2 October 2012 and to collect his card, etc the following day.
44. Professor Sime says that, when CLS did finally register the Applicant, he had told Kiri Lee, and/or another member of staff Helen Brown, that he was a member of the Inner Temple.
45. On any view, it was not until 2 October 2012 (and thus shortly outside the stipulated one month period in which to do so) that the Applicant appealed the findings of the panel to the BSB. Nevertheless, his appeal was accepted by the BSB. However, it appears that the outcome will not be known until approximately the first week in December 2012.
46. In the meanwhile, CLS had sent lists of its registered students to the Inns of Court so that their membership could be confirmed.
47. In the result, on 12 October 2012, the Inner Temple notified the CLS that the Applicant had been refused membership because he was "not at present a fit and proper person to become a practising barrister".
48. That same day Miss Lee sent an email to the Applicant asking for confirmation of his Inn membership as a matter of urgency.
49. On 16 October 2012 the Applicant replied by email to Professor Nash, the Dean of CLS. The Applicant stated that on 17 September 2012 he had told the school's administrative staff that he had applied to the Inner Temple; that his application had been refused, that he was awaiting an appeal; that the Inner Temple would have made CLS aware of the refusal around 29 August 2012, and that he had made full and frank disclosure at the outset. Professor Sime says that all but the first point are incorrect.
50. On 26 October 2012 the CLS received a letter from the Inner Temple indicating its disappointment that the Applicant was still on the BPTC; stating that it did not consider the Applicant's membership of the Inn to be a pending matter; pointing out that if the Applicant decided to follow the appeals process to its conclusion that could lead to a situation whereby he completed the BPTC without ever having been a member of an Inn; and opining that the Applicant's continued attendance was incompatible with the ICC's finding. Thus the Inner Temple respectfully requested the Applicant's immediate removal from the BPTC.
51. On the same date the CLS wrote to the Applicant and, by reference to Regulation 3.2.2 of the Academic Regulations, required the Applicant to withdraw from the BPTC with immediate effect – spelling out that that meant that he would be de-registered as a student, and thus no longer entitled to attend classes or to make use of the facilities provided by the university. The letter further pointed out that, under the circumstances, it was not possible to defer the Applicant's place on the course.
52. Professor Sime states that the reason for requiring the Applicant's withdrawal was that he could not demonstrate membership of an Inn at the commencement of the BPTC, and that the decision was given in accordance with the requirements of the BTR and the BPTC Handbook. He points out that CLS only runs its BPTC as a validated course leading to call to the Bar, that it does not run a BPTC operating outside the regulated system, and that all students on the CLS have to be members of an Inn.
53. On 31 October 2012 solicitors representing the Applicant wrote to CLS inviting it to allow the Applicant to continue on the course until the final determination of his appeal. The solicitors pointed out that in the event of a successful appeal, and of the Applicant only thereafter being allowed to return to the course, he would be unable to graduate because, given the gap, his academic attendance at the end of the year would necessarily be less than 80%. The CLS declined to allow the Applicant to continue.

The Applicant's Arguments

54. On the Applicant's behalf Miss Plaschkes drew my attention, in particular, to s.37 of the Senior Courts Act 1981, to the case of Siskina v Distos Componia Naviera SA (The Siskina) [1979] AC 210 and the commentary thereon at paragraph 15-4 of the White Book, and to various aspects of Part 25 of the CPR, and to Part 7.2 of the CPR.
55. Miss Plaschkes submitted that, given the 80% academic attendance requirement and the likelihood that, unless allowed back on the course, the Applicant would fall foul of it, the situation was urgent. The more so, she submitted, as the Applicant has been offered employment in India next year which is dependent upon him passing the BPTC, but in relation to which he is not required to have been called to the Bar. Whilst accepting that no underlying claim had been issued, she asserted (on instruction, as I have already indicated) that the underlying claim was one of breach of contract.
56. In his second witness statement the Applicant says that he has tried to obtain a copy of the relevant contract from the University, which has failed to comply with his request but has instead directed him to a website which has not enabled him to identify the full terms. He thus proceeds upon the assumption that the contract relates to the provision of education for the purposes of passing the BPTC.
57. Against that background, the Applicant asserts that his proposed claim would be based upon breach of the following terms or duties:

i) An express term of the contract that CLS would provide the necessary education over the period of an academic year in order for him to be able to pass the Bar exams – which was breached by virtue of his de-registration, which was itself a misapplication of Academic Regulation 3.2.2.

ii) CLS's duty, implied by s.13 of the Supply of Goods and Services Act 1982, to provide their services with reasonable care and skill - which was breached when CLS failed to explain to him that they were only required to ask him to leave and that if he continued on the course then his qualification would not be recognised by the BSB.

iii) Alternatively, an express term of the contract that CLS / City University would work to provide full accurate and accessible information in a variety of formats, including clear information on students' rights and responsibilities and the facilities and opportunities available and would provide access to informed guidance and support – which was breached when he was de-registered from the course without notice and without being advised that he was entitled to be on the course.

iv) A general duty of care – which was breached when CLS negligently applied Academic Regulation 3.2.2.

58. Although not argued on his behalf at the hearing, in his second witness statement the Applicant also raises judicial review as his underlying claim, or part of it, based upon the grounds, in short, that:

i) The decision to de-register the Applicant was ultra vires given that CLS only had power to ask the Applicant to leave, and it was then his decision as to whether he left the course or continued (and ran the risk that his qualification might not be recognised by the BSB).

ii) CLS fettered its discretion insofar as it followed the instructions in the letter from the Inner Temple received on 26 October 2012, or insofar as it otherwise took into account the views of the Inner Temple, which had no jurisdiction in the matter.

iii) CLS misunderstood the terms of the Regulations and/or incorrectly evaluated the facts, resulting in the mistaken belief that it had the power to de-register a student who had enrolled but was not a member of an Inn (as to which he draws attention to H Lavender & Son Ltd v Minister of Housing and Local Government [1970] 1 WLR 1231).

iv) CLS acted unfairly in failing to consult him before reaching his decision, notwithstanding its duty to do so.

v) Against the background that CLS agreed to enrol him on the BPTC despite his "Inn membership situation", as disclosed by him from the outset on 17 September 2012, the decision to de-register him was a clear breach of his legitimate expectation to be able to complete the course, and/or on abuse of power.

59. As to his lack of payment of fees, the Applicant argues that the fact, as he asserts it to be, that on 2 October 2012 Mr Wray accepted his undertaking to make payment within six weeks means that the requirement to make payment was deferred. He further submits that, in any event, his attendance at classes was adequate consideration.
60. Further, the Applicant relies (by reference to Fellowes and Son v Fisher [1976] QB 122) upon his offer of employment in India (as a legal assistant to Counsel) as being an important factor in the exercise of the Court's discretion as to whether to grant an injunction or not.
61. The documents exhibited in the Applicant's second witness statement demonstrate that the Police have completed their investigation into his mother and sister has been completed, and have concluded that there is insufficient evidence to support criminal charges. However, it is equally clear that HSBC has since declined, unsurprisingly, to release the disputed funds until provided with a written agreement made by the relevant parties, or a Court order, confirming how the funds are to be distributed. Nevertheless the Applicant maintains that, absent de-registration, he would have been able to pay the first instalment of his fees within the six week period agreed with Mr Wray – as evidenced, he claims, by his payment of more than £7.000 in legal fees since the start of this litigation on 30 October 2012.
62. Finally, both the Applicant and his mother have undertaken to compensate CLS for any loss arising from the injunction sought.

The Merits

63. Self-evidently, there are aspects of the Applicant's account which, at least on paper, strain credulity. There are no such problems with Professor Sime's account. However, I am in no position to make findings of fact, but must instead do my best to answer the three questions posed in the American Cyanamid case (above).
64. That said, the incontrovertible background is that, unsurprisingly, there are hard edged Regulations that make clear that, before commencing the BPTC, a person must be a member of an Inn of Court. Equally, the Academic Regulations spell out that application for membership of an Inn must normally be made by 31 May each year, and that when a candidate has reason to believe that their application for Inn membership may not be straightforward (as the Applicant did) the candidate must allow for the extra time that the consideration of their case may take. Further, the Regulations also make clear that if Inn membership is withdrawn for disciplinary or other reasons, then the student must withdraw from the BPTC with immediate effect.
65. It is also clear that the offer made to the Applicant by CLS on 17 April 2012 was expressly subject to the Applicant meeting the BSB's standard condition of being confirmed as a member of one of the four Inns of Court; that, for whatever reason, the Applicant did not apply to the Inner Temple until the last possible normal day to do so; that he knew on 29 August 2012 that his application had been rejected; that thus he knew that he was not a member of an Inn when seeking to enrol at CLS on 17 September 2012; that he did not seek to appeal until 2 October; that he has not paid any fees; and that the monies intended to pay the fees remain the subject of dispute.
66. It is equally clear that there is no guarantee of success in the Applicant's appeal to the BSB, and that there is the prospect (in the event of the failure of that appeal) of a further appeal to the Visitors to the Inns of Court.

A serious question to be tried?

67. The central proposition in the Applicant's case is that sub-paragraph b of Academic Regulation 3.2.2 did not permit CLS to de-register him, but rather only to give him the option to choose to continue, albeit that he still failed to meet a fundamental condition of eligibility to take the course. However, against the background set out above, this seems to me to be unarguable. The Regulation does not arguably mean that if a student is asked to leave because he has not obtained membership of an Inn, but refuses to do so, he must be allowed to continue on the course no matter what.
68. Nor do I see any serious question to be tried in relation to the asserted breaches of the other suggested terms or duties.
69. As to the Applicant's now proposed judicial review claim, I heard this application whilst sitting in the Emergency Applications Court of the Queen's Bench Division, not in the Administrative Court. Applications for permission to seek judicial review, and any accompanying interim relief, must be commenced in the Administrative Court. In any event, against the background set out above (but not seeking to fetter any consideration of the issues in the Administrative Court) I am not persuaded that the proposed grounds are arguable.
70. It follows that I am not persuaded, even though it is a relatively low threshold, that there is a serious question to be tried in this case. Nevertheless, in case I am wrong about that, I have also considered the two remaining questions.

Damages an adequate remedy? / The balance of convenience

71. These can be dealt with shortly. Notwithstanding the job offer made to the applicant, and the relatively short period until the beginning of December 2012, it seems to me that, in all the circumstances, damages would be an adequate remedy and that, in any event, the balance of convenience plainly comes down against the Applicant – indeed to reach any other conclusion would be to undermine the fundamental requirement of membership of an Inn by opening up the prospect of a person being able to complete the BSB (via the continuation of the appeals process) without ever having been admitted to an Inn because they were not a fit and proper person.

Conclusion

72. It was for those reasons that I refused the application.