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Rizk v. Royal College of Physicians [1997] IEHC 148 (27th August, 1997)

THE HIGH COURT

JUDICIAL REVIEW

1997 No. 135 J.R.

BETWEEN

AHMED FOUAD RIZK

APPLICANT

AND

ROYAL COLLEGE OF PHYSICIANS OF IRELAND

RESPONDENT

Judgment of Miss Justice Laffoy delivered on the 27th day of August 1997

1. The Applicant made this ex parte application for leave to apply for judicial review under Order 84, Rule 20 of the Rules of the Superior Courts, 1986 in person. While the notice on which his application was grounded did not fully conform with Form No. 13 in Appendix T to the Rules, in that the grounds upon which the relief claimed is sought were set out not in the notice itself but at pages 8 through 15 of a book of documents which the Applicant produced to the Court, given that the Applicant is a lay litigant and that he resides in England, I consider it appropriate, in ease of the Applicant, to deal with the application.

2. The facts deposed to in the grounding Affidavit of the Applicant sworn on 11th April, 1997 which give rise to the Applicant's application are as follows:-

(a) The Applicant, who is a medical doctor, was a candidate for the June 1995 examination for Membership of the Royal College of Physicians of Ireland (MRCPI), Part II in General Medicine conducted by the Respondent. The examination results despatched to him by the Respondent in June 1995 indicated that " the marks achieved in Paper and Oral were insufficient to permit " him to proceed to the clinical part of the examination. In relation to the Paper, or written examination, it was indicated that, as regards two out of the three essay questions, no paper was returned. In subsequent correspondence with the Respondent, the Applicant disputed that he had not returned papers on two essay questions. Eventually, by letter dated 29th August, 1995, the Respondent's Director of Examinations indicated that, in the absence of any satisfactory explanation to account for the missing papers, the Respondent was prepared to permit the Applicant to resit the examination without payment of a fee and to disregard his June 1995 presentation. It was intimated that all records would show that the Applicant had presented for the Part II Examination in General Medicine on four (rather than five) occasions.

(b) The Applicant availed of the opportunity of resitting the examination in January 1996. He was notified of the result later than month and he was notified that he had failed the examination.

(c) The Applicant then embarked on correspondence with various officers and organs of the Respondent and, in essence, as I understand it, what he was seeking from the Respondent was a report on the reasons for his failure to achieve a pass in the written test which formed part of the examination.

(d) His request was referred to the Education and Examination Committee. By letter dated 16th May, 1996, the Registrar of the Respondent advised the Applicant that the marks on his essay papers had been checked and no error was found. The matter had been brought forward for consideration by the Education and Examination Committee of the Respondent, but as no error had been found in the marking, the Committee did not feel it was in a position to reverse the decision of the Examination Board.

(e) The Applicant was not satisfied with this response and he renewed his quest for the reasons why his essay answers at the January 1996 examination were rejected. The matter was once again referred to the Education and Examination Committee. While he was awaiting a decision from that Committee, the Applicant continued in correspondence with the Registrar of the Respondent and a firm of solicitors, Messrs. Whitney Moore & Keller, entered into correspondence on his behalf in December 1996.

(f) Eventually, on 17th February, 1997, the Registrar of the Respondent wrote to Messrs. Whitney Moore & Kelly in the terms following:-

"All material relevant to the decision regarding Dr. Rizk's performance at the Part II Membership Examination ... January 1996 were reviewed at the recent Education and Examination Committee meeting of 7th February, 1997. At that meeting, it was confirmed that the appropriate procedures were followed in assessing Dr. Rizk's performance. A decision that Dr. Rizk had failed to achieve an overall pass standard was also confirmed.

An outline explanation of Dr. Rizk's performance in each part of the examination was forwarded to Dr. Rizk in January 1996 in a communication signed by the Director of Examinations. Additional explanation was supplied on Dr. Rizk's request in a letter from the Director of Examinations dated 1st June, 1996. This information is, therefore, available to your client.

In the opinion of the Education and Examination Committee there is no purpose to be served by any further communication on this matter."

(g) As I understand it, the Applicant's contention is that the Education and Examination Committee did not address the issues he required them to address, which were outlined in his letter of 28th August, 1996 to the Registrar of the Respondent. That letter ran to four and a half pages and contained numerous allegations in relation to the manner in which the Respondent had dealt with the Applicant's examination candidature from June 1995 onwards. However, what the Applicant appears to have required the Respondent to do was to mark his examination answer papers again and report on the answers and give reasons for the marking. As I understand it, what the Applicant means by "giving reasons" is a commentary on the errors in his answers which resulted in the answers being allotted a mark below the pass standard.

3. The reliefs which the Applicant has sought leave to apply for are as follows:-

(1) an order of mandamus directing the Respondent to furnish a full report of the recommendations of the Education and Examination Committee meetings of April 1996 and September 1996 concerning his complaint;

(2) an order of mandamus directing the Respondent to release the results of the investigation of his complaints;

(3) an order of mandamus directing the Respondent to set independent and impartial enquiries in train for all events from June 1995 to February 1997 concerning his case;

(4) an order of mandamus directing the Respondent to give " medical reasons for rejecting " the written answers in January 1996; and

(5) an order to quash the decision to fail in the January 1996 examination on the grounds of ultra vires and to grant a pass decision and the degree of MRCPI.

4. I interpret the reliefs sought at (1) and (2) as, in effect, an application for discovery.

5. The book of documents referred to in the Applicant's notice contained a written submission and the grounds on which the Applicant bases his claim for leave to apply for judicial review. It also contained correspondence additional to the correspondence exhibited in the Applicant's grounding Affidavit. Finally, it contained a copy of an extract from Wade on Administrative Law , 7th Edition, and copies of the reports of Rajah -v- The College of Surgeons [1994] 1 I.R. 384 and Reg. -v- Higher Education Funding Council [1994] 1 W.L.R. 242.

6. It is to the credit of the Applicant that, as a lay litigant, he anticipated the fundamental issue which arises on his application, namely, whether the Court has any jurisdiction to grant relief by way of judicial review against the Respondent. A similar issue arose in Rajah -v- The College of Surgeons in which the applicant in that case sought to quash a decision of The Royal College of Surgeons refusing permission to resit its pre-medical examination. In his judgment, Keane J. stated as follows as page 393:-

"The first matter that arises is as to whether the Court has any jurisdiction to grant relief by way of judicial review. The College was originally incorporated by a Charter of George III dated 9th March, 1784. That Charter was repealed and replaced by a Charter of George IV dated 19th September, 1828, which in turn was amended and partly repealed by a supplemental Charter of Victoria dated 24th January, 1844.

The test for determining whether judicial review is appropriate in a case of this nature was stated as follows by Barr J. in Murphy -v- The Turf Club [1989] I.R. 171 at page 173:-

'Certiorari or prohibition will not issue to a body which derives its jurisdiction from contract or to a voluntary association or domestic tribunal which derives its jurisdiction solely from or with the consent of its members- see R. -v- National Joint Council for the Craft of Dental Technicians, ex parte Neate [1953] 1 Q.B. 704 and The State (Colquhoun) -v- Darcy [1936] I.R. 641.'

The approach adopted by Barr J. in that case was expressly approved by Finlay C.J. in Beirne -v- The Commissioner of An Garda Siochana [1993] I.L.R.M. 1 and is the one which I adopt in the present case.

The jurisdiction of the Student Progress Committee and the Appeals Committee in the present case derive, not from public law, but from the contract which came into being when the applicant became a student in the College. The jurisdiction of the respondents is derived solely from her agreement, express or implied, to be bound by the regulations of the College, including the procedures under consideration in this case. The case is entirely distinguishable from Beirne -v- The Commissioner of An Garda Siochana [1993] I.L.R.M. 1 where it was held that the functions of the Commissioner in admitting persons as trainees in the Garda Siochana were:-

'matters of particular and immediate and public concern ... directly relevant to the public question of the ordering of society and the regulation of discipline within society.'

No such considerations arise in the present case. The applicant is in the same position as a student in any other third level institution. The fact that the College, like others, derives its existence in law from a charter or Act of parliament is not a sufficient ground for bringing matters related to the conduct and academic standing of its student within the ambit of judicial review.

The respondents are, accordingly, entitled to succeed on the first ground on which they have relied."

7. As appears from The Royal College of Physicians of Ireland (Charter and Letters Patent Amendment) Act, 1979 (No. 1 (Private) of 1979), the Respondent was originally incorporated by a Charter or Letters Patent dated 15th December, 1692 of William III and Mary. The original Charter was affected from time to time by various Statutes and it was also varied by amending Charters or Letters Patents of 12th December, 1878; 5th August, 1890; and 27th June, 1905. The purpose of the Act of 1979 was to amend the original Charter and the amending Charters.

8. Amongst the documents which the Applicant furnished to the Court is a print of the Respondent's "Examination Regulations Effective from 1995", in relation to MRCPI examinations, although the print was not exhibited in the Applicant's grounding Affidavit. The examination regulations recite that membership of the Respondent is governed by the "By-laws of the College (17 - 22 inclusive)" and provide that the succeeding regulations apply to all candidates entering for MRCPI examinations. In his written submission, the Applicant submitted that the Respondent is empowered to make by-laws to regulate its affairs and the conduct of physicians and that such bye-laws have a public character. As I understand it, the Applicant seeks to distinguish the Rajah case on this basis.

9. In my view, the position of the Applicant is indistinguishable from the position of the applicant in the Rajah case. Here, the jurisdiction of the various organs of the Respondent which decide whether a candidate has been successful in the MRCPI examinations is derived solely from the agreement, express or implied, of a candidate entering the examinations to be bound by the regulations of the Respondent in relation to such examinations. There is no public law aspect to the Applicant's complaint or to the Respondent's handling of that complaint.

10. Accordingly, I must refuse the Applicant's application for leave to apply for judicial review on the basis that the Court has no jurisdiction to grant such leave.

11. In any event, I am not satisfied that the Applicant has demonstrated that he has a stateable case for the proposition that the Respondent is under a legal duty, whether contractual or otherwise, to perform the acts the performance of which the Applicant seeks to compel by orders for mandamus or for the proposition that the decision of the Respondent that he failed the January 1996 examination was ultra vires and that he is entitled, as it were, to a pass by default.