Archibald v The Council of Legal Education

• Jurisdiction: Jamaica
• Judge: BROOKS, J.
• Judgment Date: 26 January 2009
• Judgment citation (vLex): [2009] 1 JJC 2601
• Court: Supreme Court (Jamaica)
• Docket Number: CLAIM NO. 2008 HCV 0873
• Date: 26 January 2009

IN THE SUPREME COURT OF JUDICATURE OF JAMAICA

IN CIVIL DIVISION

CLAIM NO. 2008 HCV 0873

BETWEEN

ROGER ARCHIBALD

CLAIMANT

AND

THE COUNCIL OF LEGAL EDUCATION

DEFENDANT

Education - Student awarded a failing grade - Whether grade unreasonable -Whether court entitled to, or should intervene to change the grade

Judicial Review - Natural Justice - Student appealing to governing tribunal contesting a grade awarded to him by law school - Whether tribunal obliged to give an opportunity to the student to respond to the law school's reply to the appeal

Practice and Procedure - whether document exhibited to an affidavit of the Claimant may be treated as expert evidence

IN CHAMBERS

CIVIL PROCEDURE - Expert evidence - Whether document exhibited to an affidavit of the claimant may be treated as evidence

BROOKS, J

1 Mr. Roger Archibald is an attorney-at-law registered to practice in New York and the Supreme Court of the United States of America. He wishes to extend his practice to the Commonwealth Caribbean. In pursuance of that he registered as a student of, and pursued a course at, the Norman Manley Law School in Kingston. He was, however, given a failing final grade for one of his subjects.

2 Mr. Archibald appealed to the Council of Legal Education, which governs the Law School. He requested that his final grade be changed to a passing grade on the basis that, although he had received a failing grade 'D' on the first two, he received an 'A' on the last of the three assignments, comprising student assessment in that course. His entitlement, he says, was based on the fact that a reasonable approach to assessing marks requires the change. He also claims the change on the basis that the Law School's Senior Tutor assured him, before he submitted the last assignment, that if he did get an 'A' for that assignment, he would have passed the course.

3 Mr. Archibald is aggrieved by the Council's refusal of his request. He has brought this application for judicial review to have the court declare that the final grade should be changed and also that the failing grade awarded on his first assignment was wrongly awarded. Mr. Batts, on behalf of Mr. Archibald, asserts that the Council's treatment of Mr. Archibald amounts to grave injustice. The irony, he submits, is that it has been dispensed by an institution charged with teaching a respect for justice and fairness.

4 The Council resists the application on the basis that the final mark awarded was not unreasonable and that it was consistent with the standard used, for many years, to assess the performance of students of the Law School. This standard, asserts the Council, should not be circumvented because of any individual case or because of any assertion by any individual tutor. In respect of the grade for the first assignment, the Council asserts that courts have traditionally declined invitations to become markers of assignment scripts and that this court, in resolving this matter, should act consistently with that principle.

5 The issues which arise to be resolved by this court have been agreed on by the parties. They are:

• a. Whether Mr. Archibald was given a fair or any hearing so that he could present his appeal against the final grade;

• b. Whether the conclusion that two 'D's and an 'A' amount to a failing grade is unreasonable, wrong in law and contrary to established academic practice;

• c. Whether the failing grade awarded for the first assignment was manifestly wrong;

• d. Whether Mr. Archibald held a legitimate expectation based on the assertion of the Senior Tutor and as a result the Council should not be allowed to resile from the position communicated by the Senior Tutor.

  I shall address each issue in turn.

  A. Whether Mr. Archibald was given a fair or any hearing so that he could present his appeal against the final grade

  The Complaint

  Although this issue was not mentioned in the introduction to this judgment, it is an important part of Mr. Archibald's present claim, that he was deprived of a hearing before the Council. He asserts that, in so doing, the Council did not act fairly and breached the principles of natural justice.

  In his letter of appeal to the Council, Mr. Archibald, at the end of four pages of detailed recounting of the circumstances and advocating his stance, requested a change of his grade. He then went on to say, "[alternatively, I request that I be permitted to address the Council, in person, at its upcoming August meeting so that I may be able to answer any specific questions or inquiries that may arise as a result of this correspondence".

  The Council granted neither request. Its response was in the form of a letter signed by the chairman of the Council, Mr. J. Emile Ferdinand. Mr. Ferdinand explained in that letter that he had "made enquiries" and had "discussed the matter with the senior administrators of all three Law Schools operated by the Council". The chairman then set out some findings of fact and conclusions which he had drawn therefrom. He then said:

  "The decision of the Examination Committee that you failed the course Criminal Practice and Procedure was in strict compliance with the rules, regulations and policies of the Council of Legal Education. In the premises, it will not be possible to accede to your request that your final grade.. .be amended from a failing grade ['D'] to a passing grade ['C'].

  It will also not be possible to accommodate your request to be permitted to address the Council in person at its upcoming August meeting." (Emphasis supplied)

  Mr. Batts submitted that the Council was wrong in refusing to grant Mr. Archibald's request for a hearing.

  Is the Council's decision subject to judicial review?

  There was no real contest that the decision-making process, as opposed to the decision, of the Council, is subject to judicial review. The Council is established by the Council of Legal Education Act. Regulations have been promulgated pursuant to the Act. These give direction to the Council and the persons falling under the Council's jurisdiction. It is my view that the Council's status is such that it has a public character which makes its actions subject to judicial review. See Council of Civil Service Unions v Minister for the Civil Service [1984] 3 All E.R. 935 and R. v. Medical Council, ex parte Dr. Mohammed Baza (1987) 24 J.L.R 443.

  Although it is to the process of the inferior tribunal, that a court conducting judicial review, mainly directs its attention, the decision itself is also examined. This is to determine if it is so unreasonable that no tribunal could properly have arrived at that decision (the Wednesbury principle) (See Associated Provincial Picture Houses Ltd. v Wednesbury Corporation [1948] 1K.B. 223.

  Right to an oral hearing

  Mr. Batts submitted that there was a breach of the audi alteram partem rule, in that the Council did not give Mr. Archibald an "opportunity to challenge any untruth which may or may not have been spoken about him or any inaccuracy that may have been put forward" by the Law School's administrators. Learned counsel made it clear that he was not submitting that the Council was obliged to grant Mr. Archibald an opportunity to make an oral presentation. Counsel submitted that what was required was a fair hearing. In these circumstances, he submitted, a fair hearing meant that the Council ought to have given Mr. Archibald the opportunity to respond to the information which the Council had gleaned from Mr. Ferdinand's "enquiries" and "discussions with senior administrators".

  Support for the...