Barry Sheehan Practising Under the Style of Barry Sheehan, Solicitor v Solicitors Disciplinary Tribunal

• Jurisdiction: Ireland
• Judge: Miss Justice Dunne
• Judgment Date: 16 September 2021
• Neutral Citation: [2021] IESC 64
• Court: Supreme Court
• Docket Number: S:AP:IE:2020:000068

Between/

Barry Sheehan Practising Under the Style of Barry Sheehan, Solicitor

Appellant

and

Solicitors Disciplinary Tribunal

and

Bernard Bingham & Viola Bingham

Respondents

and

The Law Society of Ireland

Notice Party

[2021] IESC 64

Clarke C.J.

O'Donnell J.

Dunne J.

Charleton J.

Baker J.

S:AP:IE:2020:000068

AN CHÚIRT UACHTARACH

THE SUPREME COURT

Misconduct – Jurisdictional challenge – Solicitors’ profession – Appellant seeking to challenge a finding of misconduct – Whether the first respondent lacked jurisdiction to entertain the complaint of the second and third respondents

Facts: The Court of Appeal, in a judgment delivered on 26th March 2020 ([2020] IECA 77), upheld the judgment of Kelly P of the High Court ([2017] IEHC 643), concerning the scope of the statutory appeal provided by s. 7(11) of the Solicitors (Amendment) Act 1960, as substituted by s. 17 of the Solicitors (Amendment) Act 1994, and amended by s. 9(f) of the Solicitors (Amendment) Act 2002, and whether in the course of the statutory appeal to the High Court the appellant, Mr Sheehan, could challenge the jurisdiction of the first respondent, the Solicitors Disciplinary Tribunal, to make a finding of professional misconduct against the appellant in the performance of his duties acting as a solicitor for the second and third respondents, Mr and Ms Bingham, the High Court having rejected that argument. The appellant’s appeal to the Supreme Court in essence concerned the breadth of the statutory appeal under the 1960 Act, and whether a party seeking to appeal a decision can raise an argument that the issue is res judicata, or whether such grounds are precluded from challenge under the statutory scheme and should be brought only in accordance with O. 84 of the Rules of the Superior Courts.

Held by Dunne J that the fact that an issue could have been dealt with by way of judicial review does not mean that it should have been dealt with by way of judicial review. Referring to the judgment of Clarke J in EMI Records (Ireland) Ltd v Data Protection Commissioner [2013] 2 I.R. 669, Dunne J noted that the default position is “that a party should pursue a statutory appeal rather than initiate judicial review proceedings”. Dunne J found that the discussion in Hogan, Morgan and Daly: Administrative Law in Ireland (5th Edition) as to alternative remedies was another reminder of the fact that a party may, in appropriate circumstances, have a choice of proceeding by way of statutory appeal or by way of judicial review. Dunne J held that what was at issue was more than suitable to be considered by the High Court in the course of the statutory appeal. Dunne J could see no reason why the appellant was obliged to confine himself to a remedy in judicial review in respect of that issue. Dunne J held that the appellant was entitled to question the jurisdiction of the Tribunal in that regard and if they found against him it was hard to see why the same issue could not have been raised in the course of the statutory appeal; if the complaint was the same as that previously reviewed by the Independent Adjudicator, that would have been the end of the matter. Dunne J was therefore not of the view that the matters raised by the appellant could not properly have been dealt with in the course of the statutory appeal. Dunne J disagreed with the approach taken by the High Court and the Court of Appeal in that respect and allowed the appeal in that respect.

Dunne J was satisfied that the Court had jurisdiction to conclude the proceedings in the circumstances of the case. Dunne J held that it was appropriate for the Court to consider the issue of res judicata and the issue of s. 7(1) of the 1960 Act and whether or not, having regard to the circumstances, the contentions of the appellant in that regard were correct. Dunne J held that those issues were part of the proceedings before the High Court originally and there was no reason why they could not be dealt with by the Supreme Court. Dunne J held that the Court would hear the parties further as to the orders to be made and the resolution of the remaining issues.

Appeal allowed.

Judgment of Miss Justice Dunne delivered on the 16 ^th day of September 2021

Introduction

1 In a judgment delivered on 26 ^th March 2020, the Court of Appeal ( [2020] IECA 77) upheld the judgment of Kelly P. of the High Court ( [2017] IEHC 643), concerning the scope of the statutory appeal provided by s.7(11) of the Solicitors (Amendment) Act 1960, as substituted by s.17 of the Solicitors (Amendment) Act 1994, and amended by s.9(f) of the Solicitors (Amendment) Act 2002, and whether in the course of the statutory appeal to the High Court the solicitor whose conduct was at issue could challenge the first-named respondent's (“the Tribunal” or “the SDT”) jurisdiction to make a finding of professional misconduct against the appellant in the performance of his duties acting as a solicitor for the second and third-named respondents (“the Binghams”), the High Court having rejected this argument. This appeal in essence concerns the breadth of the statutory appeal under the Solicitors (Amendment) Act 1960 as amended, and whether a party seeking to appeal a decision can raise an argument that the issue is res judicata, or whether such grounds are precluded from challenge under the statutory scheme and should be brought only in accordance with O. 84 of the Rules of the Superior Courts (“RSC”).

Grant of Leave

2 On the 15 ^th December, 2020, this Court granted the appellant leave to bring an appeal. The Court considered that the case raised issues of general public importance. These related to the scope of the statutory appeal pursuant to s.7(11) of the 1960 Act, and whether the jurisdiction of the High Court, and on appeal, the Court of Appeal to consider if it was “proper for the … Tribunal to make the order” permits a review of and consideration of jurisdictional error, in particular, a plea of estoppel in res judicata.

Background

3 The Court of Appeal decision outlines the context in which this case arises. It is not necessary to describe in detail all of the events which caused the now fractious relationship between Mr. Sheehan and the Binghams. Suffice it to say that the Binghams originally instructed the appellant to act on their behalf in relation to a medical negligence claim arising out of the death of their son. Originally, the retainer was on a contingency fee basis but subsequently, the appellant sought to change the basis of his retainer from one of a fixed fee to an hourly rate but was prepared to continue to act on a contingency basis. The Binghams declined to accept his new proposals and accordingly, the appellant sought to come off record and he was granted leave to do so.

The First and Second Complaints

4 These complaints arise from the complex history of the relationship between the appellant and the Binghams, which resulted in the appellant asserting that he held a lien over their client file due to unpaid fees being due to him after he came off record. This culminated in the appellant bringing debt recovery proceedings against the Binghams in the Circuit Court seeking the recovery of costs alleged to be due to him for work he had undertaken on their file. They declined to pay on the basis of their original retainer, contending that no fees were due. The Binghams counter-claimed against the appellant for professional negligence and breach of contract and sought the return of their file for the purposes of continuing the prosecution of their medical negligence claim. In May 2012, these proceedings were heard in the Circuit Court (Her Honour Judge Flanagan), and both Mr. Sheehan's claim and the Binghams' claims were dismissed. The appellant appealed this decision to the High Court (Hanna J.), the Binghams did not, and the appellant subsequently withdrew his appeal, with the result that the order of the Circuit Court was affirmed. Despite this, the dispute continued between the appellant and the Binghams. As a result, Mr. Sheehan retained the files and alleged that he had a lien over the files due to the outstanding fees. This was disputed by the Binghams. Meanwhile, between 2009 and 2014, the Binghams made complaints about the appellant to various bodies on three separate occasions; two to Committees of the Law Society, and one to the Solicitors Disciplinary Tribunal. On 13 ^th January 2009, a complaint was made to the Complaints and Client Relations Section (“the CCRS”) of the Regulation Department of the Law Society alleging misconduct against the appellant under a number of headings, including his exercise of a lien over the Binghams' files. On 27 ^th May 2009, this complaint was rejected by the CCRS and no finding of misconduct was made. The Binghams brought this matter to the attention of the Independent Adjudicator, and this was disposed of on 17 ^th July 2009.

5 Following the conclusion of the Circuit Court proceedings on 27 ^th May 2013, the Binghams made a second complaint to the CCRS of the Law Society concerning Mr. Sheehan's exercise of a lien over their files. This complaint was subsequently referred to the Complaints and Client Relations Committee for consideration (“the CCRC”). On 11 ^th March 2014, Mr. Sheehan objected to the investigation of this complaint on the basis that it was identical to the first complaint, and thus, he argued, the complaint was res judicata. Nevertheless, the CCRC made a determination in relation to the complaint. They held that the appellant could not exercise a lien over the Binghams' files following a decision of the Circuit Court to dismiss Mr. Sheehan's claim that there were fees due and owing to him. The CCRC directed Mr. Sheehan to hand over the files, but the appellant declined, alleging that this determination was ultra vires the CRCC. On 10 ^th June 2014, a special sitting of the CCRC took place, and ultimately it was...