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[2004] IEHC 125

2003 297 JR

THE HIGH COURT

DUBLIN

CIARAN WALDRON

Applicant

-and-

THE HONORABLE SOCIETY OF KING'S INNS

Respondent

-and-

THE HONORABLE SOCIETY OF KING'S INNS EDUCATION COMMITTEE

First Named Notice Party

-and-

THE HONORABLE SOCIETY OF KING'S INNS EDUCATION APPEALS BOARD

Second Named Notice Party

JUDGMENT OF MR. JUSTICE T.C. SMYTH DELIVERED ON TUESDAY, 16TH MARCH 2004

On 28th April 2003 O'Donovan J. granted relief to apply for judicial review to the Applicant for the following reliefs:

"l. Certiorari by way of application for judicial review against the Respondent for decisions made by the First Named Notice Party on both the 14th October 2002 and 9th December 2002, which decision purported to prohibit and prevent the Applicant herein from attending law lectures and tutorials being provided by the Respondent at their law school at Henrietta Street, Dublin 1 and to have the Applicant's name removed from the register of the Honorable Society of the King's Inns.

2. Certiorari by way of application for judicial review of a decision made by the Second Named Notice Party on behalf of the Respondent on 15th January 2003 at the Benches room, Four Courts, Dublin, which Board dismissed the Applicant's appeal against the decision of the First Named Notice Party made on 14th October 2002 and furthermore purported at this stage to refuse the Applicant's exemption to be required to sit for the entrance examination for admittance to the Degree of Barrister at Law.

3. Prohibition by way of application for judicial review of an anticipated decision by the Respondent to prohibit and prevent the Applicant from sitting his second year annual examination in Diploma II at the Honorable Society of King's Inns in May 2003.

4. Declaratory relief by way of application for judicial review that the decisions made by the First and Second Named Notice Parties shall not have effect and that same be quashed pending the final determination of these judicial reviews proceedings.

5. Stay on the decisions of the Respondent and the First and Second Named Notice Parties herein until the final determination of these judicial review proceedings.

6. Costs".

The grounds upon which relief was sought and granted are as follows:

"Grounds for relief in relation to the application for Certiorari:

1. The First Named Notice Party acted ultra vires their powers when that Committee made a decision on 14th October 2002 at a meeting of the Education Committee to reconsider the Applicant's entitlement to attend law lectures and tutorials of the Honorable Society of King's Inns, Law School unless the Applicant herein completed Form 5 in the format as laid down by the Honorable Society of King's Inns.

The First Named Notice Party failed to consider the implications of their actions and indeed ignored the decision by the Council of the King's Inns made at their meeting on 25th January 2001 in response to a Petition of the Applicant.

The First Named Notice Party did not provide any advance notice or indeed any form of notice to the Applicant that matters pertaining to the Applicant's student status or ability to attend lectures would be determined or raised in discussion before the Education Committee on 14th October 2002 and, furthermore, the First Named Notice Party failed to allow the Applicant herein to attend and be heard at this meeting of the Committee which would allow the Applicant to provide reasons as to why he should not be compelled to complete Form 5 in its present format.

The First Named Notice Party sought to compel the Applicant to complete Form 5 by means of duress and unlawful sanctions with the ultimate sanction being the threat of withdrawal of the Applicant's right and contractual entitlement to attend lectures at the Respondent's premises and to participate in his class tutorials, even though the Applicant had paid lecture and examination fees for the academic year 2002/03 in the sum of E4,000 to the Respondent at their request on 30th September 2002. Therefore, the Respondent had a contractual agreement with the Applicant to provide such law lectures.

The First Named Notice Party at its meeting on 9th December 2002 made the decision that if the Applicant failed to return Form 5 duly completed in the Society's format to the Society before 6th January 2003, then the Applicant would not be allowed to attend lectures and would be taken off the King's Inns register.

The decision of the First Named Notice Party dated 9th December 2002 was made without notice and in the absence of the Applicant and without affording the Applicant the right to attend the meeting and discuss and provide his reasons to the Education Committee for not completing Form 5 in the Society's format, since the Applicant felt that should he complete Form 5 then he would be acknowledging that he had no right to an exemption from sitting the entrance examination to the Degree of Barrister at Law.

The First Named Notice Party acted ultra vires their powers in reaching their decision on 9th December 2002 and breached the Applicant's constitutional rights to access to education and the right to be heard in advance of any hearing which would purport to restrict or curtail the Applicant's right to access to education and be treated equally and, furthermore, the First Named Party acted in breach of fair procedures and the principles of natural justice in refusing and failing to allow the Applicant to receive a hearing before the Education Committee on either 14th October 2002 or on 9th December 2002.

The First Named Notice Party prior to both its meetings on 14th October 2002 and 9th December 2002 failed to properly or fully appraise itself of the history, correspondence and decisions made in respect of the Applicant by the Honorable Society of King's Inns or, indeed, request the Director of Education to provide and circulate copies of the Applicant's papers in advance of these two meetings before making a decision which would have serious consequences for the Applicant's legal education and ability to sit his second year examinations.

The First Named Notice Party made their decision on 9th December 2002 in spite of the fact that on 5th December 2002 the Director of Education allowed the Applicant herein an extension of time until Wednesday, 11th December 2002 to reply and address matters raised in the Director of Education's letter dated 15th October 2002 to make submissions to the Education Committee in advance of any final decision in relation to my right to attend lectures and remain on the register of the King's Inns. The Applicant's letter of 11th December 2002 and the submissions could not possibly have been considered by the Education Committee prior to its decision on 9th December 2002 and the Minutes of the Meeting of the Education Committee held on Monday, 9th December 2002 wherein the Committee appears to have been advised by the Director of Education of her grant of extension of time to allow the Applicant to submit a letter by 11th December 2002. However, the First Named Notice Party appears not to have considered this fact or taken same into consideration when reaching its decision at that meeting.

The Second Named Notice Party acted ultra vires their powers on 15th January 2003 when that Education Appeals Board reached a decision based on selective and incomplete copies of correspondence circulated in advance and placed before the Board of the Honorable Society of King's Inns which gave the Second Named Notice Party an incorrect view of the facts and purported to impress on the Board that the Applicant had been provided with exhaustive concessions by the Society regarding re-sits to annual examinations.

The Applicant herein on 13th December 2002 lodged an Appeal by way of letter dated 11th December 2002 in the offices of the Honorable Society of King's Inns, Henrietta Street, Dublin 1 against the findings and decisions of the First Named Notice Party dated 14th October 2002 and 9th December 2002. However, it appears now that the Respondent ignored this appeal and brought into effect on 6th January 2003 the decision of the First Named Notice Party dated 9th December 2002 by removing the Applicant's name from the Register of the King's Inns and prohibiting the Applicant from attending lectures.

The Applicant was not afforded fair procedures and natural justice before the Education Appeals Board on 15th January 2003 in that that Board was composed of Mr. Justice Peter Kelly who had served on the Council of the Honorable Society of King's Inns on 25th January 2000 when he publicly resigned from Council, when he dissented in Council's decision to allow the Applicant and other fellow students of the Society to re-sit annual examinations due to reasons offered on petition.

Indeed, as a result of his dissension in regard to the decision of Council on 25th January 2000 Mr. Justice Peter Kelly excused himself from the Education Appeals Board panel hearing the Applicant's Appeal against the Society's refusal to supply the Applicant with copies of scripts of his Annual and Supplementary examinations for year 2000 as Mr. Justice Kelly stated that he "had previous knowledge of the Applicant's case".

Having regard to this fact, the Applicant feels that Mr. Justice Peter Kelly, who obviously had strong feelings regarding the matters pertinent to the Applicant arising from the decision of Council dated 25th January 2000, should have once again excused himself from the Board hearing of the Applicant's Appeal on 15th January 2003 in the interests of fairness, impartiality and in the interests of natural justice.

Grounds for relief in relation to the application for prohibition:

(i) The Respondent and the Notice Parties will fail to comply with the principles of natural and constitutional justice and basic fairness of procedures if they fail to allow the Applicant to be reinstated on the Register of the King's Inns and therefore sit for the annual examination Diploma Part II in May 2003.

(ii) Should the Respondent prohibit the Applicant herein to sit the annual examination in May 2003, it would breach the Applicant's constitutional and legal rights and would therefore act ultra vires its powers.

(iii) The Respondent will be acting in breach of the accepted principles of law in preventing the Applicant from sitting the Society's Annual Examination in 2003.

Grounds for relief in relation to the application for a declaration:

(i) That the decisions of both the First and Second Named Notice Parties on behalf of the Respondent breached the constitutional and legal rights of the Applicant and further breached the principles of fairness and natural justice in that the consequence of the decisions will have far-reaching consequences for the Applicant in his ability to receive a legal education.

(ii) That this issue is not such that it is adequately compensated for in grant of damages and as such the Applicant should be allowed to continue his legal education unimpeded by sanctions or duress or threats of withdrawal or exclusion from a recognized course of legal education which is subvented and supported by Public Funds from the Exchequer".

For convenience of reference, I shall refer to the parties as they appear in the order of the title of these proceedings as the Applicant, the Society, the Education Committee and the Appeals Board.

Subsequent to the filing of the Grounds of Opposition and supporting affidavits, another step was taken by the Applicant in these proceedings by motion against the Society, the Education Committee and the Appeals Board, which motion is dated 13th November 2003 in which the Applicant sought certain injunctive relief and an order for damages and an order amending the original statement required to ground the application for judicial review in the terms of the reliefs sought. Quirke J. who dealt with this matter on 24th November 2003 refused injunctive relief and the order amending the original statement required to ground the application, but permitted the Applicant to pursue a claim for damages. In the events none were proven.

Prior to the hearing of the application for judicial review, application was made by the Applicant to have the hearing adjourned. I was given a detailed and chronological order of the events that had led to the matter being placed on the list of fixed dates and the matters that occurred thereafter. Having considered the 57 pages of "additional documents" upon which the Applicant sought to base his application for adjournment, I first undertook the burden of reading and considering same. Thereafter, I was satisfied that there was no new matter that would or could be said to take the Applicant by surprise or place him at a disadvantage altogether from the interval of time he had to consider them and having so ruled without objection the matter proceeded by way of a hearing. The Applicant appeared in person. As appears from the voluminous documentation placed before the Court, a great deal of the matter is laced with peripheral detail and a number of side issues that do not call for determination arising from the order of O'Donovan J. who set out the grounds upon which leave was given. During the course of the hearing the Applicant admitted that certain of the averments in his affidavits were made in anger and inaccurate. Many of the assertions and allegations under the heading of averments could and should be regarded as scandalous and unworthy to have been made by any responsible litigant placing them on the court records.

Towards the conclusion of the Applicant's submissions on the fourth day of the hearing, the Applicant withdrew, but without apology, the several averments in his affidavits which pilloried or wrongfully accused the officers of the Respondent, the Education Committee and Appeals Board, of lies, deliberate untruths, deceit, acting peevishly and the like. I am satisfied and find as a fact that the allegations attacking their integrity and competence were unwarranted and unfounded. Nonetheless, I do accept the Applicant's submission that intemperance per se ought not automatically disentitle an applicant to relief by way of judicial review if there are otherwise valid and sustainable grounds for same.

The facts:

I am satisfied and find the following facts as either agreed or established by the evidence:

(a) Historical background:

The Applicant initially applied for a place in the Society's special course of Education (now the Diploma in Legal Studies) on 4th June 1982. As of that date, the Applicant stated that he was a District Court Clerk and Commissioner for oaths. The Applicant sat the annual examination on what is now the Diploma Course in the summer of 1983 and failed. The Applicant did not sit the Supplemental Examinations in the Autumn of 1983. He did, however, sit a special Supplemental Examination in 1984. He was not successful in that examination.

(b) Recent history:

By letter dated 30th March 1999 the Applicant applied for re-admission to the Society's Diploma in Legal Studies course. At that time the Applicant described himself as a full-time student on a diploma in legal studies course at the Dublin Institute of Technology. In an Application Form completed by the Applicant on 7th May 1999, the Applicant described himself as an "apprentice solicitor" and that he was on a "career break" from the Department of Justice.

The Applicant was, after an interval of correspondence, offered a place on the Diploma in Legal Studies course and on 26th August 1999 signed two forms. At the ex parte application before O'Donovan J, these forms were separately exhibited as Exhibit "B" and "D" in the Applicant's grounding affidavit sworn on 26th April 2003, to wit the "Notification of Acceptance of Place offered on Diploma in Legal Studies Course Academic Year 1999/2000." The Applicant therein (inter alia) acknowledged that he had been informed as follows:

(1) success in the Diploma in Legal Studies course examinations does not of itself secure me a place in the Barrister at Law Degree Course;

(2) the allocation of places in the Degree Course is made in accordance with Rule 8(a), and

(3) the total number of places in the Degree Course for the academic year 2001/2002 will be limited to 100.

While the Applicant did at paragraph (5) of his grounding affidavit refer to the second of the two forms entitled "Notice, Confirmation and Acknowledgment". This document is, in my judgment, of central importance and had its content been fully opened before the Court at the ex parte application, it may have caused the judge to either decline to grant leave at all on the basis of the authority of Rajah -V- The College of Surgeons [1994] 1 IR 384 or to order that the Society, Education Committee or the Appeals Board should be put on notice before any leave to apply for judicial review was granted when what was being sought was a public law remedy for a private law; right for the Applicant expressly relied in his grounds for the relief of certiorari on "contractual entitlement" and "contractual agreement".

The full text of the document is as follows:

"THE HONORABLE SOCIETY OF KING'S INNS

Notice, Confirmation and Acknowledgment

To all Applicants for a place in the Diploma in Legal Studies course of the Honorable Society of King's Inns.

1. The Honorable Society of King's Inns will introduce with effect from October, 2002, an Entrance Examination for admission to the course leading to the degree of Barrister-at-Law.

2. From that date, all Applicants seeking a place on the course leading to the degree of Barrister-at-Law must sit and pass the Entrance Examination.

3. To be eligible to sit for the Entrance Examination, a candidate must hold an approved degree in law from an approved University (as accredited by the Honorable Society from time to time) or hold the Society's Diploma in Legal Studies.

4. In order for the current provisions of Rule 8 of the Society's Rules to apply, a candidate must be awarded the Society's Diploma in Legal Studies by the year 2001. The provisions of Rule 8 are set out in a schedule hereto.

5. A candidate who has not been awarded the Society's Diploma in Legal Studies by the year 2001, shall be required to sit the entrance examination.

6. The offer of a place in the Society's Diploma in Legal Studies course is offered strictly on the above basis and no derogation will be allowed. In accepting a place a candidate agrees to be bound by the above provisions."

The document is signed by the Applicant and it gives his address and is witnessed and is dated 26th August 1999. It concludes with a paragraph of confirmation and acknowledgment that:

"I have read the above Notice carefully and have availed of any opportunity to have the same explained to me and agree that any offer of a place to me on the Society's Diploma in Legal Studies course is on the basis of the foregoing provisions and that any acceptance of a place by me is subject to these conditions."

The relevant Rules of the Society for the admission of students to the Society's legal courses at the time the Applicant applied for readmission were the Rules as of May 1997 (the "1997 Rules"). Rule 29 provided that:

"All students shall be bound by such alterations and variations (whether of a fundamental character or not) as may from time to time be made in these Rules."

The 1997 Rules were replaced in 2000 by "the 2000 Rules" in which Rule 34 was in identical terms to Rule 29 of the 1997 Rules. The "2000 Rules" have been replaced by a new set of rules with effect from April 2003 (the "2003 Rules").

The Applicant took up his place in First Year, Part I of the Society's Diploma in Legal Studies in October 1999. He sat for Part I of the Annual Examination in 2000. He passed three subjects and failed two subjects. He was permitted exemptions in the three subjects in which he achieved 40% or more. However, he was required to re-sit the two subjects which he failed, Introduction to the Legal System (20%) and Criminal Law (30%). He sat for examinations in these two subjects in the Supplemental Examination in Autumn 2000. He passed Introduction to the Legal System (46%) but failed Criminal Law (35%).

While there was a considerable amount of correspondence and a number of events between September 2000 and October 2002, such issues as may be said to arise therefrom were not grounds related to the reliefs granted at the leave stage, for only three decisions are impugned in the proceedings as against:

(a) the Education Committee
(i) Decision of 14th October 2002

(ii) Decision of 19th December 2002

(b) the Appeals Board decision of 15th January 2003.

The interval after September 2000 consisted of a petition to the Education Committee which was refused on 16th October 2000, which decision was appealed to the Council of the Society whose decision made on 25th January 2001 was communicated to the Applicant by letter dated 26th January 2001, which letter the Applicant stated he did not receive. The Society accepted at face value the Applicant's statement and the Council by decision of 29th May 2001 "agreed that on medical grounds this student could have one further attem t in the subjects" the cause of his concern (my emphasis).

The decision was conveyed to the Applicant by letter dated 29th May 2001. At the hearing, the Applicant took exception to the use of the expression in that letter of: "As a final concession, it has been agreed that you may re-sit the two subjects at the annual examinations in 2002". The allegation, that in the context in which that letter was written such was "made up" and a distortion of the decision intended to be conveyed, I reject without hesitation. A later letter of 31st October 2001 did draw attention to the entrance examination thus:

"If you pass your examinations in May 2002, you will have missed lectures in Irish Constitutional law (one of the subjects in the entrance examination) which is being taught in Diploma 1 level 1 this year. You may attend these lecture if you wish. While it will not be necessary for you to pass an examination in Constitutional Law as part of your Diploma examinations, you will be required, together with all other students, to sit the full range of the entrance examination subjects should you present for that examination."

The reply to this letter dated 4th December 2001 by the Applicant is of importance because (a) it acknowledges the basis of contract between the Applicant and the Society, and (b) reveals where the point of disagreement between them arises. The accusation of the Applicant is that the Society "are now deviating from the terms in which I was accepted on the course in 1999". The letter goes on:

"You are now attempting to impose on me (for the first time) new criteria for my progression to the Degree course with additional law subjects and at no time previous, either in correspondence or at any meeting with the Director or yourself or indeed at the Appeal hearing was this new condition and criteria averred (sic) to or mentioned.

I intend to take advice on the matter and will revert to you in a more detailed reply."

The Applicant did, in fact, sit the examinations in the two subjects, Introduction to the Legal System and Criminal Law, in the Annual Examination of Part I of the Diploma Course in Summer 2002. He passed those subjects, thereby entitling him to move into the second year of the Diploma Course, Part II.

[During the year 2001, the Applicant sought inspection of his examination scripts in Criminal Law for the examinations he had sat in that subject in the year 2000. Initially, he was refused at a time when Mr. Justice Kelly was Chairman of the Education Committee. The Applicant appealed that decision to the Appeals Board but Mr. Justice Kelly properly declined to act as a member of the Appeals Board in respect of this matter.]

Along with other eligible students, the Applicant was sent a copy of the Admission Form for Part II of the Diploma Course (Form 5) in September 2002. In addition to the requirement to pay a fee by 1st October 2002, the student was requested to sign the form under the following words:

"I agree to accept and be bound by the Education Rules of the Honorable Society of King's Inns. I am aware that admission as a student of the Society to the degree course for holders of the Diploma in Legal Studies will only be by a competitive Entrance Examination."

In fact, the Form 5 signed by the Applicant and dated 30th September 2002 was imperceptibly altered to read:

"I agree to accept and be bound by the Education Rules 1997 of the Honorable Society of King's Inns. I am aware that I am not bound by the Rule that admission as a student of the Society to the degree course for holders of the Diploma in Legal Studies will be by a competitive examination."

The Form 5 in its altered format was first exhibited in these proceedings in paragraph (25) of the replying affidavit of Marcella Higgins previously referred to in this judgment. The Applicant does deal with Form 5 in paragraphs 21 - 25 inclusive of his affidavit, but does not exhibit the form as exhibited by Ms. Higgins.

There was a variety of explanations given to me at the hearing as to how the alterations were effected. It was asserted by the Applicant that a copy of Form 5 in its altered state was put before the Judge who dealt with the ex parte application and then returned in court to the Applicant. The unaltered Form 5 in blank was and is attached to the papers on the Court File. I make no finding as to the true facts in regards to how the alteration was accomplished or whether the form was in its altered form before O'Donovan J. and I draw no adverse inference from my uncertainty in this regard.

However, the Applicant avers that when lodging the Form 5 in the Administration Office of the Society, he had informed someone that he had changed Form 5. Not only can the Under Treasurer or the Director of Education not account for such receipt, neither can any member of staff, male or female, of the Society do so. No one can be found who has any such recollection. This is hardly surprising as the alterations are not only not obvious, but they are imperceptible except by close scrutiny examination and/or comparison with the "official" form. I find as a matter of probability to the extent possible on affidavit evidence and the observed manner of response to enquiries in that regard during the hearing that the alterations were not brought to the attention of the Society or the Education Committee. Furthermore, I consider it most probable that had the alteration been brought to the attention of the Society staff, it would have been brought to the attention of the Director of Education because, in the words of Ms. Higgins at paragraph 25 of her affidavit of 25th July 2003, it would has been "so unusual for a student to have made such an alteration".

The impugned decisions of the Education Committee:

This Committee met on 14th October 2002 (as is clear from the extracts of the meetings of the Council of the Society, the Education Committee and the Appeals Board handed into court on the hearing without objection). Under the heading of Any Other Business, it is noted:

"The admission form for Part II of the Diploma in Legal Studies course 2002/2003 was circulated at the meeting. This form is signed and returned by the students. The Committee noted that the form returned by Mr. C. Waldron was not identical to the form which was sent to him to complete.

The Chairman agreed that he be sent another form to complete and return by 29th October 2002."

The Applicant was informed by letter dated 15th October 2002 of the decision of the Committee. In my judgment, this is not a decision that was ultra vires the Committee. Furthermore, the Educational Committee was not obliged to give any notice to the Applicant of this meeting; nor was he entitled to attend or be heard. The matter, as is clear from the text, noted matters of fact not disputed by the Applicant. It dealt with a matter of simple administration. It did not do as is contended for in the Grounds for Relief in relation to the application for certiorari. Furthermore, there is no assertion or averment that there is an error on the face of the record. There was no failure of any form of natural or constitutional justice involved. The decision simply was 'send another Form 5 to be received back within a fortnight'.

The next meeting of the Committee was held on 18th November 2002, this decision is not challenged in these proceedings. The minutes, insofar as the Applicant is concerned, recap what was recorded in the minutes of the meeting of 14th October 2002 and proceed to note:

"We have not received the correct form from Mr. Waldron. The Committee agree that another Form 5 be sent to Mr. Waldron to be returned within 10 days. The Committee agreed to reconsider his entitlement to attend lectures."

The Applicant was informed of this decision (and again sent a Form 5 for completion) by letter dated 15th November 2002.

In the chronology of events, the next matter of moment is a meeting of 5th December 2002 between the Applicant and the Director of Education. This is deposed to in the affidavits which were without objection corroborated by the contemporaneous diary notes except for the matter appearing in brackets of the Director of Education which read:

"(c) Without prior arrangement Mr. Waldron called to my office on Thursday, 5 December 2002, at 3:30p.m. I made a note in my diary of the brief conversation that ensued.

The note records:

Mr. Waldron stated that he wished to submit a letter on Wednesday 11 December to the Education Committee with respect to the correspondence addressed to him. I informed Mr. Waldron that the next scheduled meeting of the Education Committee was on Monday 9th December 2002 and he could submit his letter on Wednesday 11 December 2002 which would be put before the Education Committee. I told him I would let the Committee know on Monday that he spoke with me (see minutes of 9 December). He said 'he did not want to mislead anyone and that he told them in the office that he had changed Form 5'. The office staff have no recollection of Mr. Waldron indicating that he changed Form 5. I told Mr. Waldron that I would not make any comments on the matter."

I am satisfied and find as a fact that Ms. Higgins could not and did not refer to or infer or grant any extension of time such as is contended for by the Applicant in regard to the meeting of 9th December 2002. I further find as a fact, as is borne out by the minutes of the Education Committee, that she acted as she had promised the Applicant. The Education Committee at its meeting on 9th December 2002 "agreed to inform Mr. Waldron that he must return Form 5 before 6th January and if not returned he will not be allowed attend lectures from that date". He was also informed that his name would be taken off the King's Inns register. In fact, the Applicant attended at King's Inns on 13th December 2002 and handed in a letter dated 11th December 2002 which concluded with a notification of an appeal of the decision of the Education Committee dated 14th October 2002 to the Appeals Board.

I am satisfied and find as a fact and as a matter of law that the Applicant had notice that a meeting would take place on 9th December 2002, that as he had been sent the Form 5 on three previous occasions in that calendar year in each of the immediately preceding three months with increasing expressions of concern by the Committee in their letters, including on 21st November 2002 "a reconsideration of the Applicant's entitlement to attend lectures", he can have been in no doubt that having been given ample opportunities to comply with the reasonable and lawful requirements of King's Inns some form of definitive or final decision could be taken.

In my judgment, the decision of 9th December 2002 was not ultra vires the Education Committee. Nor was there a failure of natural or constitutional justice or want of fair procedures. Further, the letter dated 11th December 2002 sought not any deferral of any decision that might be made on 9th December 2002 or a right of audience thereat, but rather sought to address matters referable to earlier appeals and events in October 2002 as if nothing had transpired in the interval. It expressly concludes with notice of appeal of the decision of 14th October 2002. Therefore, there was no prejudice by any failure, if there was such, by the Committee to defer its decision.

The impugned decision of the Appeals Board:

The decision of 15th January 2003 was preceded by letters from the Applicant and the Under Treasurer, Ms. McAleese. This reveals the names of the Board, the correspondence and documents circulated, the time and place of the hearing and the Applicant's right of audience. The appeal put in issue many matters including at page 4 of the Applicant's letter of appeal dated 7th January 2002 the fairness of and stated sanctions of the decisions of the Education Committee of 9th December 2002 and 14th October 2002.

In the course of the hearing in court, the Applicant took exception to the following matters referable to the Board's hearing:

(i) The presence of Mr. Justice Kelly. This objection has no merit or substance. The members of the Appeals Board were noted in correspondence addressed to the Applicant prior to the hearing. He did not exhibit this in any affidavit of his in these proceedings. The letter of 9th January 2003 was sent by registered post to the Applicant. I am satisfied the matter is covered by the authority of the decision of the Supreme Court in Corrigan -V- Irish Land Commission [1977] IR 317 at 323. The only explanation the Applicant could make in court to support his criticism was that he did not read the letter or that part of it that stated the names of the Board. Mr. Justice Kelly had no prior involvement with the Education Committee decisions concerning Form 5 and, therefore, had no reason to recuse himself from the Board.

(ii) That the Committee did not receive two letters, to wit 26th January 2001 and 29th May 2001 (pages 29 and 35 of Book of inter partes correspondence). These were letters the Applicant had received, the second because the Applicant said he did not receive the first and were nihil ad rem the matter for decision of the Board, but if they were so, they were de minimus omissions. If the Applicant considered these letters relevant, he could have put them before the Appeals Board. Indeed, I am satisfied from item (2) in the letter of 18th December 2002 as referred to in Ms. Higgins, affidavits to the Applicant, the Board had these letters.

(iii) That the Under Treasurer put selective and misleading correspondence before the Appeals Board. I find as a fact that this is not so. The Applicant's letter to the Under Treasurer dated 4th December 2001 was opened to the Board by the Applicant, who when he declined to read it in full to explain conduct which he complained of, the Under Treasurer completed same.

There is no dispute between the parties that the desired outcome of the appeal by the Applicant as conveyed by him to them was to be permitted an exemption from sitting the entrance examination prior to entering the Degree Course. The decision of the Board is recorded thus:

"The Board, having considered the submissions of the Appellant and the material placed before it, are satisfied that when the Appellant entered the King's Inns as a Diploma student, he did so subject to the express conditions set out in paragraphs 1, 2, 5 and 6 above (set out in the Notice, Confirmation and Acknowledgment signed by the Applicant on 26th August 1999) and as such was obliged, if the Diploma was not awarded to him by 2001, to sit the entrance examination for the degree course. The Board is also satisfied that the letter of 31st October 2001 from the Under Treasurer expressly notified the Appellant of his position and sought to assist him regarding lectures in Irish Constitutional Law. The decision of the Board is to dismiss the Appellant's appeal and refuse the exemption sought in relation to the entrance examination to the degree course."

In my judgment, there is no illegality, irrationality or procedural impropriety in this decision (Council of Civil Service Unions -V- Minister for the Civil Service [1985] AC 374 per Lord Diplock at pages 410 - 411).

The Plaintiff knew or must have known from 26th August 1999 that if he did not have or hold a Diploma in Legal Studies by the year 2001 he would have to sit and pass a competitive entrance examination prior to being accepted for the Degree course. Furthermore, there was no lack of fairness or want of natural or constitutional justice towards the Applicant. He exercised his right of appeal. He was given the opportunity to put his case. The principles or maxim audi alteram partem was not infringed and his objective in appealing was clearly understood by the Board, who having heard the appeal gave reasons for their decision which was communicated to him. I am satisfied and find as a fact that no assurance was given to the Applicant as he avers by Mrs. Justice McGuinness, the Chairperson of the Board.

It is noteworthy that when the Applicant wrote on 20th January 2003 to the Director of Education, there is no mention of any lack of fairness of procedures of the Appeals Board or of Mr. Justice Kelly's involvement. The first time such complaints are made is in a letter two months later, viz. 25th January 2003, almost ten weeks after the event. Indeed, when leave was granted ex parte in this case, the Board's decision with its reasons was not placed before the Court. Had it been, the outcome of that application may well have been different.

Furthermore, during the hearing the Applicant complained of being excluded from the lectures, tutorials and registration as a student. I am satisfied and find as a fact that such events did not take place as intended on 6th January 2003 but after the Appeal Board's decision, on 3rd and 4th February 2002. Even as late as 1st April 2003 Ms. Higgins writing to the Applicant on a number of issues dealt with this issue concluding:

"The completed standard version of Form 5 has still not been received from you. Should you complete and return this Form, a special meeting of the Education Committee can be convened with a view to reinstating you on the course."

The Applicant declined to follow this course.

The law:

In addition to the determinations above expressed, I found considerable force in the detailed submissions made on behalf of the Society, the Education Committee and the Appeals Board that the Applicant had failed to comply with the provisions of order 84 Rule 21(1) of the Rules of the Superior Courts and, accordingly, the application should be refused on that ground alone. While persuaded by the force of the argument, I would be reluctant to base my decision on such findings.

I view with serious concern that certain very important, if not crucial or pivotal, information and documentation was not placed before the Court at the ex parte stage. In the instant case, some of these have already been referred to in this judgment - others too were relied upon by defence counsel. Such, in my opinion, would well justify the leave order having been set aside. However, I decline to base my decision on such alone.

In my judgment, none of the impugned decisions were made in breach of the principles of natural and constitutional justice or basic fairness of procedures.

"The requirements of natural justice must depend on the circumstances of the case, the nature of the inquiry, the rules under which the tribunal is acting, the subject matter that is being dealt with and so forth."

(Russell -v- Duke of Norfolk [1949] 1 All ER 109 at 118) quoted with approval in Kiely -v- Minister for Social Welfare [1977] IR 267 per Henchy J. at 281. The Education Committee and the Appeals Board were obliged to act in a fair and reasonable manner and in my judgment they did so act. The rules applied by both were fairly and properly applied and the two 'bodies' (as indeed did the Society) acted within their remit or discretion and there is no error on the face of the record.

The Applicant was obliged to complete Form 5, acknowledging the requirement to sit the Entrance Examination before being admitted to the Degree Course as everyone else in Part II the Diploma Course of that year. There was nothing unfair or unreasonable or unique in requiring the Applicant to submit a proper Form 5, having regard to the documents signed by the Applicant on 26th August 1999 when he accepted a place on Part I of the Diploma Course. The Applicant clearly accepted in the Notice signed by him on that date that if he did not have the Diploma by the year 2001 he would be required to sit the Entrance Examination before being eligible for a place on the Degree Course.

While appreciating the unspoken reasons as to why the Society, the Education Committee and the Appeals Board have not advanced the case that they, perhaps more particularly the Society, is not amenable to judicial review, I nonetheless consider the decision of Keane J. (as he then was) in Rajah -v- The College of Surgeons [1994] 1 IR 384 is in point. That case very closely resembles the instant case and relief by way of judicial review was refused on the grounds that:

(i) the jurisdiction of the respondents was derived from contract which came into being when the Applicant became a student of the college and her agreement express or implied to be bound by the regulations, including appeals procedure, the Court had no jurisdiction to grant relief by way of judicial review. Murphy -V- The Turf Club [1989] IR 171 applied. Beirne -V- The Commissioner of An Garda Síochána [1993] ILRM 1 distinguished;

(ii) the fact that the first respondent derived its existence in law from a Royal Charter was not a sufficient ground for bringing matters relating to the conduct and academic standing of its students within the ambit of judicial review, and that the same would apply in the case of an educational institution established by Act of Parliament.

In the instant case, despite the elaborate and detailed submissions by the parties and the Applicant in particular, who advocated his own cause, I am satisfied that the Society, the Education Committee and the Appeals Board did not seek the protection of that decision and counsel indicated that he was in all the circumstances prepared to argue the case on its merits. On whatever its merits, the case fails. I dismiss the application on all grounds. There was no duress or undue influence brought to bear or unlawful sanctions imposed upon the Applicant. I set aside the orders for leave which are discharged. I refuse the reliefs sought. This case was and is untrammelled by merits.