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Rizk v. Royal College of Physicians [1997] IEHC 148 (27th August, 1997)
THE
HIGH COURT
JUDICIAL
REVIEW
1997
No. 135 J.R.
BETWEEN
AHMED
FOUAD RIZK
APPLICANT
AND
ROYAL
COLLEGE OF PHYSICIANS OF IRELAND
RESPONDENT
Judgment
of Miss Justice Laffoy delivered on the 27th day of August 1997
1. The
Applicant made this ex parte application for leave to apply for judicial review
under Order 84, Rule 20 of the Rules of the Superior Courts, 1986 in person.
While the notice on which his application was grounded did not fully conform
with Form No. 13 in Appendix T to the Rules, in that the grounds upon which the
relief claimed is sought were set out not in the notice itself but at pages 8
through 15 of a book of documents which the Applicant produced to the Court,
given that the Applicant is a lay litigant and that he resides in England, I
consider it appropriate, in ease of the Applicant, to deal with the application.
2. The
facts deposed to in the grounding Affidavit of the Applicant sworn on 11th
April, 1997 which give rise to the Applicant's application are as follows:-
(a) The
Applicant, who is a medical doctor, was a candidate for the June 1995
examination for Membership of the Royal College of Physicians of Ireland
(MRCPI), Part II in General Medicine conducted by the Respondent. The
examination results despatched to him by the Respondent in June 1995 indicated
that "
the
marks achieved in Paper and Oral were insufficient to permit
"
him to proceed to the clinical part of the examination. In relation to the
Paper, or written examination, it was indicated that, as regards two out of the
three essay questions, no paper was returned. In subsequent correspondence
with the Respondent, the Applicant disputed that he had not returned papers on
two essay questions. Eventually, by letter dated 29th August, 1995, the
Respondent's Director of Examinations indicated that, in the absence of any
satisfactory explanation to account for the missing papers, the Respondent was
prepared to permit the Applicant to resit the examination without payment of a
fee and to disregard his June 1995 presentation. It was intimated that all
records would show that the Applicant had presented for the Part II Examination
in General Medicine on four (rather than five) occasions.
(b) The
Applicant availed of the opportunity of resitting the examination in January
1996. He was notified of the result later than month and he was notified that
he had failed the examination.
(c) The
Applicant then embarked on correspondence with various officers and organs of
the Respondent and, in essence, as I understand it, what he was seeking from
the Respondent was a report on the reasons for his failure to achieve a pass in
the written test which formed part of the examination.
(d) His
request was referred to the Education and Examination Committee. By letter
dated 16th May, 1996, the Registrar of the Respondent advised the Applicant
that the marks on his essay papers had been checked and no error was found.
The matter had been brought forward for consideration by the Education and
Examination Committee of the Respondent, but as no error had been found in the
marking, the Committee did not feel it was in a position to reverse the
decision of the Examination Board.
(e) The
Applicant was not satisfied with this response and he renewed his quest for the
reasons why his essay answers at the January 1996 examination were rejected.
The matter was once again referred to the Education and Examination Committee.
While he was awaiting a decision from that Committee, the Applicant continued
in correspondence with the Registrar of the Respondent and a firm of
solicitors, Messrs. Whitney Moore & Keller, entered into correspondence on
his behalf in December 1996.
(f) Eventually,
on 17th February, 1997, the Registrar of the Respondent wrote to Messrs.
Whitney Moore & Kelly in the terms following:-
"All
material relevant to the decision regarding Dr. Rizk's performance at the Part
II Membership Examination ... January 1996 were reviewed at the recent
Education and Examination Committee meeting of 7th February, 1997. At that
meeting, it was confirmed that the appropriate procedures were followed in
assessing Dr. Rizk's performance. A decision that Dr. Rizk had failed to
achieve an overall pass standard was also confirmed.
An
outline explanation of Dr. Rizk's performance in each part of the examination
was forwarded to Dr. Rizk in January 1996 in a communication signed by the
Director of Examinations. Additional explanation was supplied on Dr. Rizk's
request in a letter from the Director of Examinations dated 1st June, 1996.
This information is, therefore, available to your client.
In
the opinion of the Education and Examination Committee there is no purpose to
be served by any further communication on this matter."
(g) As
I understand it, the Applicant's contention is that the Education and
Examination Committee did not address the issues he required them to address,
which were outlined in his letter of 28th August, 1996 to the Registrar of the
Respondent. That letter ran to four and a half pages and contained numerous
allegations in relation to the manner in which the Respondent had dealt with
the Applicant's examination candidature from June 1995 onwards. However, what
the Applicant appears to have required the Respondent to do was to mark his
examination answer papers again and report on the answers and give reasons for
the marking. As I understand it, what the Applicant means by "giving reasons"
is a commentary on the errors in his answers which resulted in the answers
being allotted a mark below the pass standard.
3. The
reliefs which the Applicant has sought leave to apply for are as follows:-
(1) an
order of mandamus directing the Respondent to furnish a full report of the
recommendations of the Education and Examination Committee meetings of April
1996 and September 1996 concerning his complaint;
(2) an
order of mandamus directing the Respondent to release the results of the
investigation of his complaints;
(3) an
order of mandamus directing the Respondent to set independent and impartial
enquiries in train for all events from June 1995 to February 1997 concerning
his case;
(4) an
order of mandamus directing the Respondent to give "
medical
reasons for rejecting
"
the written answers in January 1996; and
(5) an
order to quash the decision to fail in the January 1996 examination on the
grounds of ultra vires and to grant a pass decision and the degree of MRCPI.
4. I
interpret the reliefs sought at (1) and (2) as, in effect, an application for
discovery.
5. The
book of documents referred to in the Applicant's notice contained a written
submission and the grounds on which the Applicant bases his claim for leave to
apply for judicial review. It also contained correspondence additional to the
correspondence exhibited in the Applicant's grounding Affidavit. Finally, it
contained a copy of an extract from Wade on
Administrative
Law
,
7th Edition, and copies of the reports of
Rajah
-v- The College of Surgeons
[1994] 1 I.R. 384 and
Reg.
-v- Higher Education Funding Council
[1994] 1 W.L.R. 242.
6. It
is to the credit of the Applicant that, as a lay litigant, he anticipated the
fundamental issue which arises on his application, namely, whether the Court
has any jurisdiction to grant relief by way of judicial review against the
Respondent. A similar issue arose in
Rajah
-v- The College of Surgeons
in which the applicant in that case sought to quash a decision of The Royal
College of Surgeons refusing permission to resit its pre-medical examination.
In his judgment, Keane J. stated as follows as page 393:-
"The
first matter that arises is as to whether the Court has any jurisdiction to
grant relief by way of judicial review. The College was originally
incorporated by a Charter of George III dated 9th March, 1784. That Charter
was repealed and replaced by a Charter of George IV dated 19th September, 1828,
which in turn was amended and partly repealed by a supplemental Charter of
Victoria dated 24th January, 1844.
The
test for determining whether judicial review is appropriate in a case of this
nature was stated as follows by Barr J. in
Murphy
-v- The Turf Club
[1989] I.R. 171 at page 173:-
'Certiorari
or prohibition will not issue to a body which derives its jurisdiction from
contract or to a voluntary association or domestic tribunal which derives its
jurisdiction solely from or with the consent of its members- see
R.
-v- National Joint Council for the Craft of Dental Technicians, ex parte Neate
[1953] 1 Q.B. 704 and
The
State (Colquhoun) -v- Darcy
[1936] I.R. 641.'
The
approach adopted by Barr J. in that case was expressly approved by Finlay C.J.
in
Beirne
-v- The Commissioner of An Garda Siochana
[1993] I.L.R.M. 1 and is the one which I adopt in the present case.
The
jurisdiction of the Student Progress Committee and the Appeals Committee in the
present case derive, not from public law, but from the contract which came into
being when the applicant became a student in the College. The jurisdiction of
the respondents is derived solely from her agreement, express or implied, to be
bound by the regulations of the College, including the procedures under
consideration in this case. The case is entirely distinguishable from
Beirne
-v- The Commissioner of An Garda Siochana
[1993] I.L.R.M. 1 where it was held that the functions of the Commissioner in
admitting persons as trainees in the Garda Siochana were:-
'matters
of particular and immediate and public concern ... directly relevant to the
public question of the ordering of society and the regulation of discipline
within society.'
No
such considerations arise in the present case. The applicant is in the same
position as a student in any other third level institution. The fact that the
College, like others, derives its existence in law from a charter or Act of
parliament is not a sufficient ground for bringing matters related to the
conduct and academic standing of its student within the ambit of judicial review.
The
respondents are, accordingly, entitled to succeed on the first ground on which
they have relied."
7. As
appears from The Royal College of Physicians of Ireland (Charter and Letters
Patent Amendment) Act, 1979 (No. 1 (Private) of 1979), the Respondent was
originally incorporated by a Charter or Letters Patent dated 15th December,
1692 of William III and Mary. The original Charter was affected from time to
time by various Statutes and it was also varied by amending Charters or Letters
Patents of 12th December, 1878; 5th August, 1890; and 27th June, 1905. The
purpose of the Act of 1979 was to amend the original Charter and the amending
Charters.
8. Amongst
the documents which the Applicant furnished to the Court is a print of the
Respondent's "Examination Regulations Effective from 1995", in relation to
MRCPI examinations, although the print was not exhibited in the Applicant's
grounding Affidavit. The examination regulations recite that membership of the
Respondent is governed by the "By-laws of the College (17 - 22 inclusive)" and
provide that the succeeding regulations apply to all candidates entering for
MRCPI examinations. In his written submission, the Applicant submitted that
the Respondent is empowered to make by-laws to regulate its affairs and the
conduct of physicians and that such bye-laws have a public character. As I
understand it, the Applicant seeks to distinguish the
Rajah
case on this basis.
9. In
my view, the position of the Applicant is indistinguishable from the position
of the applicant in the
Rajah
case. Here, the jurisdiction of the various organs of the Respondent which
decide whether a candidate has been successful in the MRCPI examinations is
derived solely from the agreement, express or implied, of a candidate entering
the examinations to be bound by the regulations of the Respondent in relation
to such examinations. There is no public law aspect to the Applicant's
complaint or to the Respondent's handling of that complaint.
10. Accordingly,
I must refuse the Applicant's application for leave to apply for judicial
review on the basis that the Court has no jurisdiction to grant such leave.
11. In
any event, I am not satisfied that the Applicant has demonstrated that he has a
stateable case for the proposition that the Respondent is under a legal duty,
whether contractual or otherwise, to perform the acts the performance of which
the Applicant seeks to compel by orders for mandamus or for the proposition
that the decision of the Respondent that he failed the January 1996 examination
was ultra vires and that he is entitled, as it were, to a pass by default.
© 1997 Irish High Court
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