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

• Jurisdiction: Ireland
• Court: Supreme Court
• Judge: Ms. Justice Dunne
• Judgment Date: 17 February 2022
• Neutral Citation: [2022] IESC 9
• 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

and

Viola Bingham

Respondents

and

The Law Society of Ireland

Notice Party

[2022] IESC 9

O'Donnell C.J.

Dunne J.

Charleton J.

Baker J.

Woulfe J.

S:AP:IE:2020:000068

AN CHÚIRT UACHTARACH

THE SUPREME COURT

Misconduct – Res judicata – Fair procedures – Appellant seeking to challenge a finding of misconduct – Whether the matter was res judicata

Facts: There had been a long-running dispute between the appellant, Mr Sheehan, and the second and third respondents, the Binghams, flowing from when the appellant was their solicitor in respect of proceedings brought by them arising from the death of their son. The professional relationship between them broke down irretrievably and led to a series of complaints initiated by the Binghams to the Complaints and Client Relations Committee (the CCRC) and the Independent Adjudicator of the Law Society over fees and the retention of files. There were also Circuit Court proceedings in which the appellant sued the Binghams for fees, and they counterclaimed for the return of their files. A further complaint was made to the CCRC after the Circuit Court proceedings had concluded (including the Circuit appeal). Ultimately, that complaint to the CCRC having been considered, the Binghams made a series of complaints to the first respondent, the Solicitors’ Disciplinary Tribunal (the SDT), of which it was found that there was a prima facie case made out in respect of the two complaints at issue in the proceedings.

Held by the Supreme Court (Dunne J) that the complaint in relation to the email of the 19th June, 2014, of which the appellant was found guilty of misconduct, could never have been the subject of res judicata; it contained a threat to destroy the files, coupled with “one final opportunity to make an offer” in respect of fees. Dunne J held that this was the behaviour found to constitute misconduct by the SDT, and was separate and distinct from anything that had occurred previously. Dunne J found it impossible to see how that complaint could in any way be precluded from being made by reason of the review conducted by the Independent Adjudicator as to the circumstances that pertained between the appellant and the Binghams in 2009. Dunne J held that the doctrine of res judicata and the reliance on the gateway provision could not have availed the appellant in respect of the email of the 19th June, 2014. A somewhat different argument was made at the hearing in relation to those issues, to the effect that the finding of the SDT in relation to the first complaint was “tainted” by the consideration of the second complaint by the SDT, namely, the refusal to return the file or to grant access to the file for the purpose of the Supreme Court hearing. Dunne J held that this was an argument that was never made in the proceedings before; the appellant, in the affidavit grounding the statutory appeal, made no reference whatsoever to the argument that the hearing of both complaints at the same time by the SDT could have contaminated the hearing in some way or interfered with the entitlement of the appellant to fair procedures before the SDT. Dunne J noted that the appellant had pointed to nothing in the hearing before the SDT or in its decision to support that argument; on the contrary, it was clear from the decision of the SDT that they carefully considered each of the complaints against the appellant and found for him in respect of the second complaint and found him guilty of misconduct in respect of the first complaint. Leaving aside the fact that leave was not granted by the Court to raise the issue, but having regard to the way in which the issue was raised, in the absence of any prior suggestion that the hearing before the SDT would be contaminated by the hearing of the two complaints together, for Dunne J’s part, she was satisfied that the complaint had no basis, and that there was nothing to suggest that the appellant was denied fair procedures in any way by the SDT by the hearing of both complaints together.

Dunne J dismissed the appeal.

Appeal dismissed.

Judgment of Ms. Justice Dunne delivered on the 17th day of February, 2022

Introduction

1 This is the second judgment of this Court in relation to these proceedings. The first judgment of this Court on the 16th September, 2021 concerned 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 a solicitor, whose conduct was at issue, could challenge the jurisdiction of the first named respondent (the SDT) 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 essential issue before the Court concerned whether or not it was open to the appellant, in the course of the statutory appeal, to argue that the matter, the subject of the misconduct allegation, was res judicata, and a further issue was raised as to whether or not the provisions of s.7(1) of the Solicitors (Amendment) Act, 1960, (as amended), precluded the Tribunal from hearing the complaint of the Binghams.

Background

2 It is not necessary to set out the background to these proceedings, as that was done in the earlier judgment of this Court. The Court in that judgment concluded that the appellant was entitled to raise the issue of res judicata before the SDT, and likewise was entitled to raise the issue as to s.7(1) or “the gateway provision” as that section was described in the previous judgment. Having found for the appellant on the question of whether those matters could have been properly dealt with in the course of the statutory appeal, and thus allowed the appeal of the appellant on that issue, this Court was of the view that it would be appropriate to deal with the issues of res judicata and the effect of the gateway provision on the complaint of the Binghams against the appellant, and whether, in fact, the complaint of the Binghams should have been dealt with by the SDT. No objection was taken to proceeding in this way. At the conclusion of the previous judgment, the following was stated, at para. 103:

“I am very conscious of the long history between the appellant in these proceedings and the Binghams, arising out of the tragic death of the Binghams' son, Mirek, who died on the 31st December, 1999. Counsel for the Binghams has invited the Court to conclude these proceedings at this stage and I am satisfied that this Court has jurisdiction to do so in the circumstances of this case. Mindful as I am of the lengthy history of this matter, and with a view to concluding these proceedings once and for all, it seems to me that it is appropriate for this Court to consider the issue of res judicata and the s. 7(1) issue now and whether or not, having regard to the circumstances, the contentions of the appellant in this regard are correct. These issues were part of the proceedings before the High Court originally and there is no reason why they cannot be dealt with by this Court at this stage. The Court will hear the parties further as to the orders to be made and the resolution of the remaining issues.”

3 By way of reference to the above it should be borne in mind that all of the material necessary to deal with these issues was before the High Court and, in particular, to note that the appellant herein had sworn a detailed and lengthy affidavit grounding his application seeking to rescind the order of the SDT. In addition to that lengthy affidavit, the Court also had the benefit of a large volume of documentation which was provided by the appellant by way of exhibits to that affidavit, together with transcripts of the hearing before the SDT, and correspondence between the parties.

4 In addition to the large volume of documentation provided to this Court in the course of the proceedings, the parties furnished detailed written submissions in relation to the law on res judicata, and the provisions of s. 7(1) of the Act of 1960. Therefore, this Court was in a position to deal with the matter comprehensively notwithstanding that, while these issues had been before the High Court, and indeed the Court of Appeal, these issues were not considered by those courts.

The Complaints

5 The complaints actually before the SDT and considered by them were as follows: firstly, that the appellant abused his position by threatening to destroy the entire file unless the Binghams settle his alleged Bill of Costs, despite a Circuit Court order dismissing his claim. That complaint arose out of an email of the 19th June, 2014, to which reference will be made later. The second complaint concerned a refusal by the respondent to return the file of the Binghams or grant access to the file for the purpose of a Supreme Court appeal in relation to the events surrounding the death of their son.

6 Following a hearing before the SDT a finding of misconduct was made against the appellant in respect of the first complaint. The SDT found in favour of the appellant in respect of the second complaint.

7 The focus of the finding of misconduct against the appellant was on the contents of an email of the 19th June, 2014 which had been sent by the appellant to the Binghams. It would be helpful to set it out in full at this stage:

“Dear Mr and Mrs Bingham

Thank you for your email dated 15 June 2014.

As you know, your last complaint against the writer was, finally, dismissed by the Complaints and Client Relations Committee of the Law Society of Ireland on 10 June 2014.

As indicated in my email to the [sic] Cathy O'Brien,...