HEARING DATE 17 January 1996
Visitors - B was student on Bar Vocational Course at Inns of Court School of Law - Failed assessments - Mitigating circumstances - Appeal to review board - Petition to Visitor - Jurisdiction of Visitors
HEADNOTE
B was a student on the Bar Vocational Course at the Inns of Court School of Law in the academic year 1991/92. He failed four of his assessments. These were on legal research, an in-course assessment on legal drafting, and two 'final assessments' on drafting and on family law. The assessment on legal research qualified for automatic condonation but this was not available for the other three. However, under 'Discretionary Condonation Guidelines' the failure of one final examination and one module would also have been condoned. The failure of the in-course assessment on drafting was therefore crucial. B submitted that this assessment was affected by financial problems which required him to undertake employment while he was on the course, and that the substantial number of hours worked then affected his health. Under reg 7 of the Assessment Regulations for the Vocational Course 1991/92 the board of examiners could consider mitigating circumstances but only where a mitigating circumstances form had been submitted. B had not submitted such a form in relation to the in-course assessment. The main reason he gave for this failure was that he had become irrational as a result of extreme physical and emotional debilitation. He did submit a mitigating circumstances form after the final assessments were over. In August 1992 the board of examiners decided that his performance in the whole of the assessment process was not such as to merit condonation of the three uncondoned failures (reg 8.2). However, it granted B permission to resit the two failed 'final assessments' once more, in 1993, on the grounds that his performance in the whole of the assessment process was such as to merit such action (reg 9.1). B appealed to the review board. The review board confirmed the decision of the board of examiners on two grounds. First, it was not satisfied that B had put forward a reasonable explanation for his failure to submit a mitigating circumstances form. Secondly, in any event, it considered that the information B had put forward was not such that if it had been available to the board of examiners at the time when it reached its decision it would or might have reached a different decision, having regard to his other failures and his total number of marks. In 1993 B failed both of the resits. He obtained no satisfaction from the 1993 review board. In September 1994 B lodged a petition appealing to the Visitors to the Inns of Court against the decision not to certify him as having completed the 1991/92 course successfully and seeking an order that he be so certified. The Council of Legal Education maintained that B's substantive complaints fell outside the jurisdiction of the Visitor. A preliminary hearing was held on the question of jurisdiction. Tucker J held that in an education or vocational matter like this he did have jurisdiction to inquire into B's complaint, but only if he was satisfied that the council had acted unlawfully or irrationally. B sought leave to apply for judicial review of that decision.
Held
(1) A Visitor has a general power to right wrongs and redress grievances within the foundation to which he is appointed.
(2) That power gives him an untrammelled jurisdiction to investigate and correct wrongs done in the administration of the internal law of that foundation, which he may exercise in whatever way he considers appropriate.
(3) A Visitor should investigate the basic facts underlying a grievance to whatever depth he considers appropriate, and he may interfere with any decision he concludes to be wrong.
(4) In certain contexts there may be circumstances which quite properly inhibit him from embarking on a general fact-finding role, because as Visitor he lacks the particular experience and expertise which is possessed by those within the foundation on whom the relevant responsibility lies.
(5) In these kinds of context the Visitor may properly limit himself to determining whether there was any reliable evidence on which the foundation could reasonably have taken the decision complained of, and that the decision was taken in good faith and not for any extraneous reasons such as bias or other improper motive.
(6) These five principles, approved by the majority of the Court of Appeal in R v Her Majesty the Queen in Council ex parte Vijayatunga, applied in the context of educational matters at the Inns of Court School of Law.
(7) After the Courts and Legal Services Act 1990 Visitors no longer had any power to set aside rules or regulations as contrary to natural justice. At most a Visitor could suggest that the provisions of a regulation might be altered by recourse to the procedure set out in that Act.
(8) B's various substantive complaints failed on the grounds that: (a) a Visitor has no power to set aside a regulation; (b) one complaint was unarguable; (c) the other matters were essentially matters of academic judgment and no form of impropriety was suggested.
Statutory provision considered
Courts and Legal Services Act 1990, ss 27, 31, Sch 4, Part II
Cases referred to in judgment
E (Visitors), Re (1993) 1 October (unreported)
Ershad and Others v The Council of Legal Education (Inns of Court School of
Law) and Another (1991) 5 February (unreported)
Joseph v Board of Examiners of the Council of Legal Education [1994] ELR 407,
CA
M, Re (1994) 7 June (unreported)
M (Visitors), Re (1979) 15 October (unreported)
R v Council of Legal Education ex parte Eddis and Others (1994) The Times,
August 11, QBD
R v Her Majesty the Queen in Council ex parte Vijayatunga [1988] QB 322,
[1990] 2 QB 444, [1989] 2 All ER 843, [1989] 3 WLR 13, DC and CA
R v Lord President of the Privy Council ex parte Page, sub nom Page v Hull
University Visitor, sub nom R v Hull University Visitor ex parte Page [1993] AC
682, [1993] 3 WLR 1112, [1993] 1 All ER 97, HL
R v Secretary of State for Wales ex parte Rozhan [1994] LGR 667, CA
R v Visitors to the Inns of Court ex parte Calder; Same v Same ex parte
Persaud; Calder v General Council of the Bar, sub nom R v Visitors to Lincoln's
Inn ex parte Persaud; R v Same ex parte Calder; Calder v General Council of the
Bar [1993] QB 1, [1993] 3 WLR 287, [1993] 2 All ER 876, DC and CA
X, Re (1991) 11 November (unreported)
Y (Visitors), Re (1971) 13 January (unreported)
COUNSEL
Philip Engleman for the applicant
Philip Havers QC for the Council of Legal
Education
JUDGMENT BY BROOKE J
In the summer of 1990 the applicant, Andrew Bullock, obtained a 2.2 honours degree in business law at the City of London Polytechnic. He was a mature student. The possession of this degree qualified him to take part in the Bar Vocational Course at the Inns of Court School of Law (ICSL) in the academic year 1991/92. His grievance in this matter arises because he complains of a culpable failure to take fair account of mitigating circumstances in connection with the assessment of his work during that course. I must therefore say something, first, about the assessment system.
The topics taught in the course are treated in three different ways. For Fact Management and Legal Research there is a single in-course written assessment. For Conference Skills, Negotiation, Opinion Writing, Drafting and Advocacy there is a mixture of in-course assessments, which may be one or two in number, oral or written, as prescribed by regulations, and a final assessment, which is oral in the case of three of these topics and written in the case of the other two. Finally, for the two subjects the student selects for what is called 'the module', there is a single, final written assessment. The student is also required to take two batches of multiple choice tests (MCTs) on evidence topics.
The regulations to which I have referred were at the material time the Assessment Regulations for the Vocational Course 1991/92 ('the 1991/92 regulations'). These regulations made it clear that with certain qualifications a student would not be certified as having completed the course unless he or she had achieved a pass standard in each of the MCTs and at the very least a 'competent' grading in each of the formal in-course assessments and each of the final assessments. A student could acquire a 'competent' grading if he or she obtained, at the very minimum, 40% of the marks available to be awarded for an assessment.
Mr Bullock passed all the MCTs and achieved a 'competent' grading in all but four of the assessments. He failed the in-course assessment on Legal Research, the first of the two written in-course assessments and the final assessment on Drafting and the final assessment on the Family Law module. In the last three of these assessments he obtained 6 marks out of 25, 10 marks out of 30, and 8 marks out of 25 respectively, all comfortably below the 40% required for success. He obtained an overall total of 309 marks out of 600.
I can put on one side his failure in the Legal Research module since, in this respect, different aspects of his overall performance allowed him to qualify for automatic condonation of this failure pursuant to reg 8.1(1). No such automatic condonation was available, however, in respect of the other three failures. I will refer, in due course, to certain discretions given under the regulations to the board of examiners and the review board which are important in this context.
In August 1992 the board of examiners was not of the opinion that his performance in the whole of the assessment process was such as to merit condonation of the three uncondoned failures (reg 8.2) but it granted him permission to resit the two failed final assessments once more, in 1993, on the grounds that his performance in the whole of the assessment process was such as to merit such action (reg 9.1). Mr Bullock then applied to the review board, which confirmed the decision of the board of examiners on grounds that I will also explain in due course.
The following year he resat the two subjects on which he had failed his final assessments and failed them both again. He obtained no satisfaction from the 1993 review board. He continued, however, to feel aggrieved that he had not been certified as having successfully completed the 1991/92 course, and he would not take 'no' for an answer until, on 21 July 1994, the chairman of the board of examiners told him that it was inappropriate to review that decision any further.
The matter then passed to the judges as Visitors to the Inns of Court. On 15 September 1994 he lodged a petition appealing against the decision not to certify him as having completed the 1991/92 course successfully and seeking an order that he be so certified. The Council of Legal Education (CLE) filed an answer 7 weeks later. It maintained that the substantive complaints Mr Bullock had made fell outside the jurisdiction of the Visitors. It was eventually agreed that there should be a preliminary hearing on this jurisdiction point.
On 17 May 1995 Tucker J, sitting as a Visitor, ruled that in an educational or vocational matter like this he did have jurisdiction to inquire into Mr Bullock's complaint, but that he should only exercise his jurisdiction to interfere if he was satisfied that the Council had acted unlawfully or irrationally. Nothing daunted, Mr Bullock now seeks the leave of this court to apply for judicial review of Tucker J's decision. The main thrust of his challenge was that Tucker J was willing to follow earlier decisions of Visitors, and, in particular, a decision of Buxton J in Re M (1994) 7 June (unreported) and a decision of Henry LJ, Popplewell and Rougier JJ in R v Council of Legal Education ex parte Eddis and Others (1994) 29 July (unreported) [(1994) The Times, August 11, QBD], which, he maintains, were wrongly decided and inconsistent with earlier authorities.
I must now explain in rather greater detail the principal matter of which he makes complaint. Mr Bullock maintains that under the 'Discretionary Condonation Guidelines', which were issued to the board of examiners in 1992, but not published until after the review board had completed its work that year, the failure of one final examination and one module is automatically condoned. It therefore follows, he says, that the question of his success or failure turns crucially on the approach that ought to have been adopted towards his failure in the first in-course assessment in Drafting. Although the CLE cavils at the use of the word 'automatic' in this context, in para 7 of its answer it accepts this basic proposition.
In his petition Mr Bullock explains the circumstances in which he came to submit this assessment in the last week of January 1992. He had been badly hit by the upturn in interest rates in the late 1980s and early 1990s, and when his house was repossessed in April 1991 he still owed £10,000 to two mortgagees. He also owed £6000 to banks, which led to the withdrawal of banking facilities, and he had no hope of obtaining a student loan or financial assistance from his Inn towards the cost of the Bar Vocational Course. He therefore had to continue in gainful employment to earn the fees for the course, as well as meeting his other financial commitments, while the course was going on. It appears that his local education authority was to meet approximately half the fees, but the balance, in excess of £1500, had to be paid by a January deadline - the pleadings reveal some differences as to detail, but none as to the substance of all this.
From the middle of November 1991 he increased his hours of paid work in order to ensure that he could pay the fees. This involved him working for 4 hours on each of three weekday evenings, and for 12 hours on Friday, Saturday and Sunday nights. He also worked about 70-80 hours per week throughout the Christmas vacation. He says that this enabled him to pay the balance of the fees in mid-March 1992: for what it is worth, the CLE says that it did not receive payment till 2 months later.
It is hardly surprising that all this extra work, in addition to the considerable demands of the course itself, wreaked havoc with Mr Bullock's health. He says he found that the need to adjust his sleep pattern twice each week was disorientating and increasingly debilitating, and during January 1992 he became aware of his deteriorating physical condition as his weight loss became apparent. On several occasions he was unable to attend the course because of breathing difficulties.
In mid-January 1992 he took and passed the first set of MCTs. The pressure continued, however, as did his anxieties about the consequences of failing to be able to raise the money to pay the fees, and he says that towards the end of January 1992 he was physically unwell and irrational. He had to hand in the Drafting assessment by 5pm on Monday, 26 January 1992, and he completed it and handed it in on time after finishing his night shift at 7am that morning and obtaining a little sleep before undertaking the assessment.
His complaints are centred around the application of the provisions of reg 7 in his case. The effect of this regulation, so far as is material, is that where a student can establish, to the satisfaction of the board of examiners, that there were mitigating circumstances which adversely affected his performance in a formal in-course assessment and the board is satisfied that but for the mitigating circumstances he would have performed competently in that assessment, it may credit a competent performance in the assessment and may certify, where appropriate, that the student has completed the course (reg 7.1). In exercising its discretion it may also take into account any other formal assessments in that skill and also the formal in-course and final assessments generally (reg 7.2). The board's jurisdiction can, however, only be invoked under this regulation if the student delivers a completed mitigating circumstances form, together with supporting medical or other documentation, to the ICSL no later than 7 days after the submission date for the formal assessment in question (reg 7.5, which includes a special allowance for cases in which it was not reasonably practicable, in all the circumstances, to deliver the form within 7 days, subject to a proviso that the board of examiners could only consider such a plea, if made after more than 14 days, if it was satisfied that there were exceptional circumstances which justified the late delivery of the form).
In his petition Mr Bullock gave a number of reasons for not submitting a mitigating circumstances form in relation to this assessment, the chief of which was that he had become irrational as a result of extreme physical and emotional debilitation. He says that he wrote to the board of examiners, before taking the final assessments, concerning his failure in this January 1992 assessment, explaining the circumstances and enclosing a work schedule. For its part the CLE says that it received a mitigating circumstances form, accompanied by a letter from a car service company, on 17 July 1992, after the final assessments were over. The mitigation referred to his financial need to work at weekends and did not refer to any particular assessment.
Mr Bullock was told his results in August 1992, when he was also told that he could resit the final assessments in the two subjects he had failed. He thereupon exercised his right, along with nearly 200 others, to make submissions to the review board. Regulation 13.6.3 empowers that board to consider mitigating circumstances which were not put before the board of examiners in accordance with reg 7.5 if, and only if, it is satisfied that there is a reasonable explanation for the failure to comply with reg 7.5. If the board is so satisfied, reg 13.2 gives it power to remit the case to the board of examiners with a direction to reconsider it or to substitute its own decision if it is satisfied that the information it has received is such that if it had been available to the board of examiners at the time it reached its decision that board would or might have reached a different decision.
The review board was chaired by a Lord Justice of Appeal and contained four other members, one from each Inn. The CLE says in its answer that the board considered the new 'mitigating circumstances' (namely, extreme financial pressure) but rejected the application on two separate grounds. First, it was not satisfied under reg 13.6.3 that Mr Bullock had put forward a reasonable explanation for his failure to comply with reg 7.5. Secondly, it considered (in relation to the matters set out in reg 13.2) that, in any event, the information he had put forward was not such that if it had been available to the board of examiners at the time when it reached its decision it would or might have reached a different decision, having regard to the fact that he had failed one in-course assessment and two final assessments and his overall total number of marks in the formal assessment process was only 309. I have little doubt that the review board had the provisions of reg 7.2 well in mind when it made this judgment.
According to the procedure prescribed by the regulations that was clearly the end of the matter. However, Mr Bullock exercised his right of appeal to the Visitors, which is an unfettered right, not requiring leave from anybody, and this case has revealed a good deal of confusion about the status of the judges as Visitors to the Inns of Court in relation to educational matters. It is for this reason that, although this is only an application for leave, I agreed with counsel that I should reserve judgment in order to clarify the position as best I can. In addition to the cases already referred to, I have had my attention drawn to four other unreported decisions by Visitors: Re Y (Visitors) (13 January 1971), Re M (Visitors) (1979) 15 October (unreported), Re X (1991) 11 November (unreported), and Re E (Visitors) (1993) 1 October (unreported). I have also considered the judgments at first instance and on appeal in R v Her Majesty the Queen in Council ex parte Vijayatunga [1988] QB 322 and [1990] 2 QB 444; and in R v Visitors to the Inns of Court ex parte Calder; Same v Same ex parte Persaud; Calder v General Council of the Bar, sub nom R v Visitors to Lincoln's Inn ex parte Persaud; R v Same ex parte Calder; Calder v General Council of the Bar [1993] QB 1, DC and CA; Ershad and Others v The Council of Legal Education (Inns of Court School of Law) and Another (1991) 5 February (unreported); and Joseph v Board of Examiners of the Council of Legal Education [1994] ELR 407.
There has been an unusual amount of litigation concerned with Visitors to educational foundations in recent years. Its effect can be summarised as follows:
(1) A Visitor has a general power to right wrongs and redress grievances within the foundation to which he is appointed (R v Her Majesty the Queen in Council ex parte Vijayatunga [1988] QB 322, per Simon Brown J at p 344).
(2) This power gives him an untrammelled jurisdiction to investigate and correct wrongs done in the administration of the internal law of that foundation, which he may exercise in whatever way he considers appropriate (ibid).
(3) In other words, he should investigate the basic facts underlying a grievance to whatever depth he considers appropriate, and he may interfere with any decision he concludes to be wrong (ibid).
(4) In certain contexts there may be considerations which quite properly inhibit him from embarking on a general fact-finding role, because as Visitor he lacks the particular experience and expertise which is possessed by those within the foundation on whom the relevant responsibility lies. Examples include:
(a) the appointment of examiners;
(b) the decision of examiners on the standard attained by a candidate;
(c) decisions which depend to a material extent (ie not de minimis) on the exercise of academic or scientific or other technical judgment (R v Her Majesty the Queen in Council ex parte Vijayatunga [1988] QB 322, per Kerr LJ at pp 333-4 and per Simon Brown J at p 344).
(5) In these, and indeed in such other contexts as he may think fall within this general rubric, the Visitor may properly limit himself to determining whether there was any reliable evidence on which the foundation could reasonably have taken the decision complained of, and that the decision was taken in good faith and not for any extraneous reason such as bias or other improper motive. Examples include:
(a) a decision by a foundation that a member of it was guilty of persistent insobriety such as in its opinion to render him or her unfit to remain a member;
(b) a decision by a foundation that a student failed in its opinion to attain the academic standard required of its students (R v Her Majesty the Queen in Council ex parte Vijayatunga [1990] 2 QB 444, per Bingham LJ at pp 457-8).
All these principles were approved by the majority of the Court of Appeal in R v Her Majesty the Queen in Council ex parte Vijayatunga (see [1990] 2 QB 444, per Bingham LJ at p 457, and per Lord Donaldson of Lymington MR at p 460) and are binding on me.
Mr Engleman sought to persuade me that whatever might have been the position with other educational foundations, the position of the judges as Visitors to the Inns of Court is quite different. I remind myself that until the launching of the Bar Vocational Course in the late 1980s the system of examination at the ICSL was relatively unsophisticated. Candidates sat a written Bar examination (and, in earlier years, a written Bar Part I examination) and the only issues that might be remotely justiciable would be whether a candidate's papers had been fairly marked, and whether the CLE was entitled to stop a candidate from continuing to resit an examination after persistent failures. The unreported 1971 and 1979 decisions to which I have referred fall into the latter category.
I also remind myself that it is no longer correct to say, as the Vice-Chancellor said in Re M (Visitors) (1979) 15 October (unreported) at p 11, that if necessary the Visitors can override or declare void any rule or regulation if, for instance, they considered it to be contrary to natural justice. Although the 1991/92 regulations owed their origin to regulation-making powers derived from the judges, ss 27 and 31 of the Courts and Legal Services Act 1990 had the effect of transforming them into qualification regulations (see s 27(9)) which were deemed to have been properly approved for the purposes of s 27, and in these circumstances the judges, as Visitors, no longer have any power to set them aside (see R v Council of Legal Education ex parte Eddis and Others at p 32). At most a Visitor could suggest that the provisions of a regulation might be altered by recourse to the procedure set out in Sch 4, Part II to the Act.
I can find nothing in the judgments in the Divisional Court or the Court of Appeal in R v Visitors to the Inns of Court ex parte Calder; Same v Same ex parte Persaud; Calder v General Council of the Bar, sub nom R v Visitors to Lincoln's Inn ex parte Persaud; R v Same ex parte Calder; Calder v General Council of the Bar to throw any doubt on the applicability, in the context of educational matters at the ICSL, of the five principles I have set out in this judgment. Those judgments were concerned with disciplinary appeals, a branch of the law with which the Visitors as judges are very familiar, and the Court of Appeal in R v Visitors to the Inns of Court ex parte Calder explained the basis on which, in that context, the Visitors should exercise their very wide powers. In R v Her Majesty the Queen in Council ex parte Vijayatunga, indeed, it was made clear that in some contexts the appropriate way in which a Visitor to an educational foundation might exercise his powers would be by acting as an appellate body rehearing a case on its merits (see [1988] QB 322, per Simon Brown J at p 344, approved by Bingham LJ [1990] 2 QB 444 at p 457).
I turn, therefore, to see if there is anything in the three other educational cases that should lead me to suppose that the five principles do not apply to the Visitors to the Inns of Court. The first two, Ershad and Others v The Council of Legal Education (Inns of Court School of Law) and Another and Re E (Visitors), illustrate the admirable flexibility of the Visitors' jurisdiction. In the former Potts J adjourned High Court proceedings pending the consideration by the Visitors of the students' complaints. It is clear from p 5 of his judgment that Potts J knew that there were current disputes that related not only to the question whether the Visitors possessed jurisdiction but also whether any limits should be set on that jurisdiction in appeals concerning the exercise of academic judgment. In the interlocutory proceedings in Re E (Visitors) (the case was subsequently settled) the Visitors decided, on the basis of skeleton arguments, that they did have jurisdiction, but they otherwise limited themselves to discussing the arrangements for the pending 2-week hearing in a case that included, inter alia, allegations of racial discrimination. There is nothing in the five principles to restrict Visitors from embarking on an exercise of the kind they envisaged in a case of that type.
Finally, Mr Engleman relies heavily on a passage at the end of the judgment of Hirst LJ in Joseph v Board of Examiners of the Council of Legal Education [1994] ELR 407, with which the other members of the Court of Appeal agreed. In that case Mr Joseph was complaining about matters which are comparable to those complained of by Mr Bullock, and the Court of Appeal ruled that the Visitors had exclusive jurisdiction. The passage relied on, at p 415, is clearly obiter and reads: 'May I stress that it should not be thought that this places a student in the position of the appellant at any disadvantage, since the right of appeal to the visitors gives a student a far wider scope to challenge a decision of the board of examiners than an application for judicial review.'
It is quite obvious that the question of the scope of the Visitors' powers in academic matters, which Potts J had identified as a contemporary issue in Ershad and Others v The Council of Legal Education (Inns of Court School of Law) and Another, was not decided by the Court of Appeal in Joseph v Board of Examiners of the Council of Legal Education. It is also a curious feature of that case (which related to 1989/90 and 1990/91 assessments) that the relevant provisions of the Courts and Legal Services Act 1990 did not come into effect until 1 January 1991, and Hirst LJ may have been thinking, in the absence of argument, of the wide powers described by the Visitors in Re M (Visitors) (1979) 15 October (unreported) which were restricted when those parts of the Act came into effect. Whatever may be the reason, I do not consider that this solitary obiter dictum, in the absence of any argument on the issues with which I am now concerned, provides the foundation for even a properly arguable case that in an educational matter one (or even three) of more than a hundred judges qualified to sit as Visitors should have an unfettered power to overrule decisions made by an expert review body appointed under statutorily approved regulations.
I am comforted by the fact that this is a view shared by Buxton J in the recent case of Re M (1994) 7 June (unreported) at paras 71-2, and that the three Visitors in R v Council of Legal Education ex parte Eddis and Others shared Buxton J's approach (see transcript, pp 31D-33C).
If it is inappropriate for a Visitor to a university, who is often selected, no doubt, for his understanding of the world of education, to set aside decisions that call for the exercise of academic judgment in the absence of evidence of impropriety, then it would seem to be even more inappropriate for a judge who might not even have that basic qualification to have an unfettered jurisdiction in such matters. Mr Engleman suggested that judges would be well placed to assess whether students are fit to practise at the Bar, but I was not at all impressed by this submission in the present context.
If I turn now to the substantive complaints in Mr Bullock's petition, it is clear for the reasons I have given that a Visitor now has no power to set aside any of the regulations. Paragraphs 8(i) and (ii) and 10(iv) of the petition, which address that issue, therefore fail at the first hurdle. Paragraph 11 appears to me to be completely unarguable: it is a complaint that it was wrong to warn assessors that it was statistically likely that a higher proportion of 'resit' candidates (who had already, by definition, failed once) would fail again than the proportion of failures in the candidate body as a whole, and, in any event, this has nothing to do with the 1991/92 assessments in respect of which Mr Bullock seeks relief. The other matters complained of are essentially matters of academic judgment, and no form of impropriety is suggested.
On this material I am not surprised that Tucker J concluded that he should only exercise his jurisdiction to interfere if he was satisfied that the CLE had acted unlawfully or irrationally. He was following the fifth principle set out in this judgment, which is binding on both him and me. Because I consider that the case to the contrary is not properly arguable, I do not have to consider the limits placed on the High Court's jurisdiction in matters of this kind by the decision of the House of Lords in R v Lord President of the Privy Council ex parte Page, sub nom Page v Hull University Visitor, sub nom R v Hull University Visitor ex parte Page [1993] AC 682.
For these reasons I dismiss this application.
There is something else I should add before I leave this judgment. I was not at all surprised to see that both Buxton J in Re M (at paras 75-8), and Henry LJ, giving the judgment of the Visitors in R v Council of Legal Education ex parte Eddis and Others (transcript, p 6), impliedly hinted that the time might have come when the role of the Visitors to the Inns of Court in educational matters might usefully be re-examined. In this case a student who has failed to achieve the surprisingly low pass-mark of 40% in two of his final assessments and one of his in-course assessments has been able to exercise, as of right, a right of appeal to a High Court judge as a Visitor against a decision of a review board chaired by a Lord Justice of Appeal; and as Buxton J pointed out (at para 78 of his judgment), as at June 1994 the chairman and vice-chairman of the CLE were both High Court judges, as were the chairman of the board of examiners and two of his immediate predecessors. And now there has been an application to another High Court judge for leave to apply for judicial review because features of the Visitors' jurisdiction in educational matters are not set out with the clarity of the statutorily approved regulations. There must surely be a more straightforward way of arranging things. This, however, is a matter for the Inns Council, the Bar Council, the CLE, the Visitors and, possibly - I have not heard argument - for the machinery set up under Sch 4 to the Courts and Legal Services Act 1990. It is not a matter for me.
There followed a discussion on costs.
BROOKE J: After I dismissed this application Mr Havers, acting for the Council of Legal Education, applied for an order for costs against the applicant. This is an application for leave to apply for judicial review which, in the ordinary way, would be made ex parte. I understand that at the end of the hearing before Tucker J Mr Havers asked to be given notice of any application for leave to apply for judicial review because the respondents would wish to make observations at the leave stage. What happened then was that the applicants considered that the appropriate course, in order to give the respondents an opportunity to make submissions, would be to have the matter listed for oral hearing and they duly gave notice. Mr Havers, for the respondents, said that he would have been perfectly content, if it had been a paper application, to have made the submissions in writing, thus obviating an oral hearing, unless leave was refused and a renewed application made.
At all events, when the notice of the proposed oral hearing came through, Mr Havers' solicitors did not, at that stage, say that they would be content if the application was to be made in writing; they would be content to make written submissions and suggested that route to avoid the additional expense of an oral hearing.
However that may be, the matter did come on for oral hearing. I am told that the applicant is on income support and that Mr Engleman is acting pro bono. In the normal course of events it takes unusual circumstances for this court to award costs to a respondent successfully opposing a grant of leave, although following the decision of the Court of Appeal in R v Secretary of State for Wales ex parte Rozhan [1994] LGR 667 these orders are now being made if the court considers that the applicant is putting the respondent to unreasonable expense by making a hopeless application.
In my judgment the appropriate order on this occasion is to make no order as to costs. There appears to have been some misunderstanding between the parties as to the basis on which the Council for Legal Education wished to have the opportunity of making submissions and although I have the greatest sympathy for the Council in the expense that they have had to bear in opposing this application, I hope that my judgment (unless it is to be successfully appealed) may make the position completely clear for the purpose of future applications of this kind. I would like to make it equally clear - although I cannot prejudge any future application - if there were to be a future application by a student seeking leave to apply for judicial review of a decision by the Visitors which was rejected on the grounds which I set out in my judgment, approving the approach of two previous decisions by Visitors to the Inns of Court, then I can, for my part, see no reason why the Council for Legal Education, if it successfully opposed a future application for leave, should not be awarded its costs whatever the impecuniosity of the student. Of course, if there is a legal aid certificate and the legal aid authorities consider that it is reasonable for the application for leave to apply for judicial review to be made at the expense of public funds then different considerations will apply under the Legal Aid Act, but for the purposes of this application I consider that the appropriate order is no order as to costs.
DISPOSITION
No order as to costs.
SOLICITORS
Teacher Stern Selby for the applicant
Stitt & Co for the Council for Legal
Education
DOMINIC MCGOLDRICK BARRISTER