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1. By Order of 28th August, 1998 the Applicant was given leave to apply by way of an application for Judicial Review for the reliefs sought at paragraph (D) of the Statement (grounding the application) dated 27th August, 1998, to wit -

2. On the grounds set forth at paragraph "E" of the aforesaid statement, viz

3. The Applicant enrolled in the academic year 1993/1994 for the diploma course in legal studies provided by the Honourable Society of King's Inns in accordance with the rules of that Society (the latest edition of such rules being of May 1997). He progressed to part 2 of the diploma course in the academic year 1994/1995 having passed the supplemental examination in September 1994.

4. The Applicant failed the annual examination part 2 of the diploma course in May 1995 and did not sit the supplemental examination in September of that year. Having apparently registered to attend lectures in two subjects only on the diploma course (part 2) in the academic year 1995/1996, the Applicant obtained permission from the Education Committee to postpone his second attempt at the examinations for that year until the following year having regard to a personal tragedy. He was permitted to attend three lectures in three subject in the academic year 1996/1997. Notwithstanding that he gave notice of his intention to sit the annual examination for the academic year 1996/1997 and paid the subscribed fee, the Applicant withdrew from the examination on medical grounds on 5th May, 1997 having furnished a medical certificate. It appears that the Applicant did not formally reregister for lectures on part 2 of the diploma course for the 1997/1998 academic year. The Applicant states in his Affidavit of 26th August, 1998 that in late 1997 he confirmed with Mr Waldron, the former Director of Education that he would be completing the continuous assessment programme and sitting examinations in May, 1998.

5. By letter dated 18th December, 1997 the Applicant sought permission to defer attending lectures and sitting examinations for part 2 of the diploma course for that academic year to the following year (i.e. the academic year 1998/1999) the reason given by the Applicant for his request was that he and his wife were likely to be offered an infant for long term fostering with a view to adoption in January 1998. The Applicant apparently gave a copy of his letter to Mr Waldron on 19th December, 1997 (at Mr Waldron's farewell party at the King's Inns). A day or two prior to this it appears that the Applicant called to Mr Waldron's office to discuss his prospects of being allowed to postpone a further year attending lectures and part 2 of the diploma course and sitting the examinations for that course. The Applicant claims that Mr Waldron indicated to him that "there would not be a problem in the circumstances". Mr Waldron avers in his Affidavit that the Applicant was aware that the application would have to be considered by the Education Committee but that in his (i.e. Mr Waldron's) view the Applicant had a "good prospect" of having his application granted. Indeed the Applicant appears to accept that he was aware that his application had to be considered by the Education Committee - the Applicant states that Mr Waldron told him that "it would be a strange Education Committee that would turn down a request like that" (paragraph 3 of the Applicant's supplemental Affidavit sworn on January 4th 1999).

6. The Applicant's request was contained in his letter of 18th December, 1997 and it was considered by the Education Committee at a meeting on 2nd February, 1998. The Education Committee refused the Applicant's request but did grant the Applicant permission to repeat the examination of the diploma course (part 2) in May, 1998 and if necessary, the supplemental examination in September, 1998. The Education Committee's decision to allow the Applicant to sit diploma examinations in September 1998 was a concession made by the Education Committee in accordance with Rule 28 of the Rules of the Honourable Society of King's Inns (the "Rules") under which the Education Committee is empowered to modify or relax or dispense with any requirement or provision of the rules. Under the rules, if the Applicant had sat the annual examination in May 1998 and failed, he would not by virtue of the provisions of Rule 3(e) have been allowed to sit the examination again. The decision of the Education Committee was communicated to the Applicant by Mr Tuite, Mr Waldron's successor as Director of Education, by letter dated 5th February, 1998. Mr Tuite had a meeting with the Applicant on 16th February, 1998 in which he informed the Applicant that if he wished to appeal the decision he could do so to the Council and that his appeal should be addressed to Mrs McAleese the Under Treasurer of the Honourable Society of King's Inns. There is no express provision in the rules for an appeal from the decision of the Education Committee to the Council from a decision such as that taken by the Education Committee on 2nd February, 1998.

7. The Applicant did not seek to appeal the decision of the Education Committee communicated to him on 5th February, 1998 until 19th March, 1998 (some six weeks later) and more than four weeks after speaking with Mr Tuite). Nowhere in his letter of 19th March, 1998 is there any request to bring forward the meeting of the Council to hear his appeal, indeed, in her Affidavit Mrs McAleese refers to a conversation she had on 23rd March, 1998 with the Applicant when he hand delivered his letter of 19th March, 1998 appealing against the decision of the Education Committee. Mrs McAleese informed him that she would place the Applicant's appeal on the agenda for the next Council meeting which she informed the Applicant was on 5th May, 1998. The Applicant wrote a further letter in support of his appeal on 30th April, 1998 in which he reiterated "a few net points" for the purposes of his appeal. There is no request in that letter to bring forward the meeting of the Council.

8. The Council considered the Applicant's appeal at its meeting on 5th May, 1998. The appeal was rejected and the decision of the Committee was upheld. The Applicant was informed of the decision of the Council by letter dated 6th May, 1998 which was received by the Applicant on 8th May, 1998.

9. I am satisfied that the Applicant in this case was well aware of the step he was taking before he ever applied to the Respondents in that he had taken a view as far back as December, 1997 of altering his position. In fact in his letter of 19th March, 1998 and ultimate paragraph thereof he states and I quote "So confident was I after my December, 1997 meeting with Mr Waldron, that I also temporarily renewed my day-time work commitments which I had stood down at that time. In particular I agreed to become temporarily, independent chair of a new EU sponsored partnership company, Co-Operation Fingal (North) Limited which has a mandate to tackle disadvantage, in North Fingal, in an area development context". Altogether from being satisfied that neither Mr Waldron or Mrs McAleese or Mr Tuite would in any way seek to usurp the functions of either the Committee of the Council of the King's Inns, I am satisfied that the Applicant made his own decision in advance of any decision of any Respondent being communicated to him.

10. Notwithstanding that the Applicant's Solicitors had written on the 9th June, 1998 threatening Judicial Review proceedings the Applicant proceeded to register for the supplemental examinations in September, 1998 and indeed, sat that examination. He failed. In accordance with Rule 3(e) of the rules the Applicant would not be permitted to sit such examination again. The rule states that

11. The Applicant apparently sought to have the best of both worlds in that as hereinbefore stated he sat the supplemental examination and failed. However, on 28th August, 1998 before the supplemental examination began the Applicant applied for and obtained leave from the High Court (Mrs Justice McGuinness) to seek Judicial Review of the decision of the Council refusing his appeal.

12. In my judgment in the instant case there was no real danger or likelihood of bias and furthermore in my judgment a reasonable person could not reasonably suspect bias. There was no bias. The instant case both as to its facts and circumstances is very clearly distinguishable from R v Gough [1993] AC 646 per Goff, L.J. at p. 658/9 and 668 as argued for by the Applicant.

13. Notwithstanding that the only decision challenged is that of the Council - and is the basis upon which leave issued, this is not a case in my judgment in which the absence of reasons leaves the decision open to judicial review. The fact that reasons might have been desirable is not ad rem, they were neither mandatory or warranted in the circumstances. The Committee have the discretion under the Rules as to what decisions to make having regard to the provisions of the Rules - the Applicant is not entitled as of right to a decision in his favour. This is not a circumstance of a case being made out by the Applicant and the Respondents putting up contrary arguments; the resolution of the controversy being determined by either the Committee or the Council. It is not a form of lis inter partes . The provisions of rules are to be adhered to unless the Committee in the exercise of its discretion decides (to grant reliefs, such as are envisaged by Rule 28). If this were a case where the Applicant had as of right an entitlement to a decision in his favour a reasoned decision might have been appropriate or necessary - but that is not this case. Furthermore I am satisfied on a consideration of Rajah v The College of Surgeons [1994] 1 I.R. 384 that a decision such as the Respondent's decision in the instant case was not of a nature that necessitated the giving of reasons.

14. In my judgment what the Applicant was entitled to expect was that the Committee would apply the rules fairly and properly within the discretion that was clearly theirs. In earlier applications decisions were made in his favour where involuntary circumstances had arisen. Mr Finnegan for the Applicant on this point cited in support several passages from the speeches in the Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374 and from Eogan v University College Dublin [1996] 1 I.R. 390. However, the view of Keane, J. in Pesca Valentia Ltd v The Minister for Fisheries (No.2) [1990] 2 I.R. 305 at p.321 on Lord Diplock's speech in the C.C.S.U. case is the most enlightening:-

15. The C.C.S.U. appeal arose from the original decision of Glidewell, J. granting a declaration that there had been a procedural irregularity in failing to consult (the Union) before issuing the instruction. In the instant case I am satisfied that there was not any alteration in the regime to which the Applicant had become accustomed (if he could be said to have become accustomed). On all three occasions the Applicant applied to the Committee which made a decision. When the decisions were in his favour, all was well - when adverse, he adopts the pose of victim.

16. Indeed far from any possible real or imaginary legitimate or reasonable expectation of the Applicant been dashed or unrealised, the matter went forward on appeal to the Council, notwithstanding that there is no express provisions or provision in the Rules for an Appeal in this regard. Furthermore the Applicant availed of this facility to press his suit by additional submissions.

17. Mr Gallagher for the Respondents submitted that the matters set forth at (b)(i), (ii) and (iii) ought not to be entertained by the Court on the basis that they were not specified, relied upon or raised in the reliefs or grounds sanctioned by the Primary Order and that unless the Applicant sought an amendment as envisaged by Costello, P. in McCormack v Garda Siochana Complaints Board & Ors [1997] 2 ILRM 321 at 335, ought not to be entertained. This invitation was declined on the ground that it was unnecessary, but that the ground of natural justice was sufficiently wide in scope to encompass these matters. I do not feel called upon to determine this procedural point, in the circumstances of this case, but if I was compelled I would be minded to follow McCormack's case. In the events I have expressed my views on these 'additional or implied' grounds.

18. I. It was submitted that the conduct of the Applicant is not such as to debar him from relief; his conduct is not such as estopps him from relief nor has he by his conduct waived his rights.

19. The Respondent's answer, which may be frail on the point of estoppel as that expression is expressed in Halsbury's Laws of England (4th Ed) Vol. 16 para. 955 which speaks in terms of a representation made whereby a party altered his position to his prejudice. However, much more to the point is that the Applicant had previously obtained 2 deferrals, had sat the examination on 2 occasions and failed and the provisions of Rule 3(e) hereinbefore recited. In my judgment the Applicant sought and obtained benefit in the letter of 5th February 1998 and elected to sit the supplemental examination in September 1998 and ought not now to be entitled to the relief sought.

20. II. That the decision(s) are irrational in the 'Stardust' sense. In particular the Applicant contended that the decision should only have related to the specific application for deferral and that the Committee ought not to have looked at the general background, but should have considered the importance of the family under the Constitution, the competition between students and the circum

21. The response to this submission is that the Court on a hearing by way of judicial review is not to act as a form of court of appeal, furthermore there is no error on the face of the record to warrant an Order of Certiorari. In addi

22. III. The Applicant submits that there was procedural irregularity in that he had no knowledge of the case made against him and therefore had no opportunity to deal with it and that while the natural justice rule is not immutable, he ought to have been told why he was refused a deferral so that he could refute same.

23. The Respondent relied on Rajah's case (in particular that part of the judgment of Keane, J. in Pesca Valentia Ltd . hereinbefore referred to and the judgment of Henchy, J. in Kiely v Minister for Social Welfare [1997] I.R. 267 at p.281 and the discretion of the Committee. For reasons already given this submission of the Applicant fails.

24. IV. The Applicant sought to ground a submission on the series of facts as set out in chronological form in Appendix A to this judgment which was an amalgam of legitimate expectation/improper administration/basic fairness of procedures/unreasonableness. In this regard reliance was placed on a passage in the judgment of Blayney, J. in Wiley v The Revenue Commissioners [1989] I.R. 350 at 355 referring back to the judgment of Hamilton P. (as he then was) in Duggan v An Taoiseach [1989] I.L.R.M. 710. The reply to this omnibus plea was to refer to paragraph 11 of the Grounding Affidavit of the Applicant wherein the Applicant avers that he had "not attended lectures from December nor had I ensured that I had maintained proper preparation for the various continuous assessments". It would therefore appear that even before the application for a deferral was made the Applicant had already ceased attending lectures and preparing for the continuous assessments. On a consideration of the evidence as a whole I am satisfied that before any decision at any level was made by the Respondents, the Applicant had made his own decisions, which presupposed without any rational basis that no matter what application he made for deferral would be in his favour. He voluntarily disadvantaged himself and when his deferral application brought about a situation which was not to his liking he proceeded to complain and blame the Respondents.

25. In my judgment the Application fails for the reasons set out above. For completeness I should mention that:-

26. September 1995 Applicant commenced Diploma Course Part 1.

27. September 1994 Applicant commenced Diploma Course Part 2.

28. May 1995 Applicant sat and failed Diploma Course Part 2 Examination.

29. May 1996 Applicant deferred taking Diploma Course Part 2 Examination

30. May 1997 Applicant deferred taking Diploma Course Part 2 Examination

31. Letter of 6th May 1998 received by Applicant.