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

JurisdictionIreland
CourtCourt of Appeal (Ireland)
JudgeMs. Justice Costello
Judgment Date26 March 2020
Neutral Citation[2020] IECA 77
Docket NumberRecord Number: 2017/573

IN THE MATTER OF BARRY SHEEHAN, A SOLICITOR

IN THE MATTER OF THE SOLICITORS ACTS 1954-2015

IN THE MATTER OF THE SOLICITORS DISCIPLINARY TRIBUNAL

BETWEEN/
BARRY SHEEHAN
PRACTISING UNDER THE STYLE OF BARRY SHEEHAN, SOLICITOR
APPELLANT
-AND -
SOLICITORS DISCIPLINARY TRIBUNAL, BERNARD BINGHAM, VIOLA BINGHAM
RESPONDENTS
-AND -
LAW SOCIETY OF IRELAND
NOTICE PARTY

[2020] IECA 77

The President

Costello J.

Haughton J.

Record Number: 2017/573

THE COURT OF APPEAL

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 first respondent, the Solicitors Disciplinary Tribunal, on 5 July 2016, found that the appellant solicitor, Mr Sheehan, was guilty of misconduct in respect of a complaint made by the second and third respondents, Mr and Ms Bingham, relating to the appellant’s threat to destroy their entire file unless they settled the appellant’s bill of costs. The appellant appealed to the High Court under s. 7 of the Solicitors (Amendment) Act 1960 (as amended) and Order 53 of the Rules of the Superior Courts, in respect of the misconduct finding. The appellant contended that the Tribunal lacked jurisdiction to entertain the complaint of the Binghams and also challenged the finding of misconduct on its merits. The High Court delivered judgment on 14 December 2016, rejecting the appellant’s appeal on the merits and directed that there be a separate hearing of the appellant’s jurisdictional challenge with the Tribunal and the notice party, the Law Society of Ireland, participating in this more technical argument, as the trial judge was of the view that it was not appropriate for the Binghams, who were not legally represented, to be the sole respondents to arguments which were of relevance to the solicitors’ profession as a whole. On 31 October 2017, the High Court dismissed the appeal on the grounds that the appellant failed to pursue the jurisdictional challenge by way of an application of judicial review, and that the appellant had acquiesced in and waived his entitlement to raise, or rely upon, his jurisdictional challenge. The appellant appealed the judgments and order of the High Court.

Held by the Court of Appeal (Costello J) that the files of the Binghams were their property and, as such, the appellant had no right to destroy the files, particularly in circumstances where they sought their return and forbid the destruction of the files. Costello J held that a solicitor may exercise a lien over the files of a client and refuse to return the files to a client where there are fees due to the solicitor from the client. She noted that the appellant had sued the Binghams for fees due to him, his claim had been dismissed in the Circuit Court and he had withdrawn his appeal to the High Court; it followed that there were no fees due to him by the Binghams in respect of the services, the subject of his Circuit Court proceedings. She held that there were no fees due to the appellant and he was no longer entitled to assert a lien over the Binghams’ files after the conclusion of the appeal to the High Court. She noted that in the email of 19 June 2014, the appellant sought proposals from the Binghams to pay fees that were not, as a matter of law, due to him; he linked the demand for payment with a threat to destroy files over which he had no lien, and where the client objected and sought the return of the files. She held that he would never have been entitled to destroy the files in the circumstances; the email was a threat to destroy the property of a client with a view to extracting payment which was not, in fact, due to him. She held that this was professional misconduct on the part of a solicitor. She held that the challenges raised to the jurisdiction of the Tribunal to entertain the third complaint of the Binghams were not arguments which could be brought within the scope of the appeal to the High Court, established under the Solicitors Acts 1954-2015, and ought to have been brought by way of judicial review. Further, she noted that the appellant had acquiesced to the Tribunal conducting the inquiry and, thereby, waived his entitlement to challenge the jurisdiction of the Tribunal subsequently, whether in his appeal or in a belated judicial review.

Costello J held that the appeal would be dismissed.

Appeal dismissed.

JUDGMENT of Ms. Justice Costello delivered on the 26th day of March 2020
1

On 5 July 2016, the Solicitors Disciplinary Tribunal (“the Tribunal”) found that the appellant solicitor (“the appellant”) was guilty of misconduct in respect of a complaint made by the second and third named respondents (“the Binghams”) relating to the appellant's threat to destroy their entire file unless they settled the appellant's bill of costs (“the misconduct finding”). The appellant appealed to the High Court under s.7 of the Solicitors (Amendment) Act 1960 (as amended) and Order 53 of the Rules of the Superior Courts, in respect of the misconduct finding. The appellant contended that the Tribunal lacked jurisdiction to entertain the complaint of the Binghams and also challenged the finding of misconduct on its merits. The High Court delivered judgment on 14 December 2016, rejecting the appellant's appeal on the merits and directed that there be a separate hearing of the appellant's jurisdictional challenge with the Tribunal and the Law Society of Ireland (“the Law Society”) participating in this more technical argument, as the trial judge was of the view that it was not appropriate for the Binghams, who were not legally represented, to be the sole respondents to arguments which were of relevance to the solicitors' profession as a whole. On 31 October 2017, the High Court dismissed the appeal on the grounds that the appellant failed to pursue the jurisdictional challenge by way of an application of judicial review, and that the appellant had acquiesced in and waived his entitlement to raise, or rely upon, his jurisdictional challenge. The appellant appealed the judgments and order of the High Court, and this is my judgment on this appeal.

Background
2

Between January 2006 and February 2008, the appellant acted on behalf of the Binghams in respect of a medical negligence claim arising from the death of their son (High Court Record No. 2002/15811SP). The appellant's retainer was an oral one and the case was taken on a contingency fee basis. On 18 February 2008, the appellant sought to vary the contract of retainer and he enclosed a letter, written pursuant to s.68 of the Solicitors (Amendment) Act 1994, setting out the basis upon which he proposed continuing to act for the Binghams. He proposed charging a fixed hourly rate, though the retainer remained on a contingency fee basis. The Binghams declined to sign the contract and the appellant treated his retainer as, thereby, terminated. He applied to the High Court to come off record in the proceedings, which he was prosecuting on their behalf, and he was granted leave to do so.

3

The appellant served a bill of costs, dated 6 May 2008, on the Binghams in the sum of €37,725.44 for professional fees and reimbursement of certain outlays previously paid by the appellant on behalf of the Binghams. The Binghams refused to pay him anything on the grounds that, in accordance with their retainer, no fees were due to him. He retained their files on foot of a solicitor's retaining lien at common law while his fees remained outstanding. The appellant sued the Binghams in the Circuit Court to recover the unpaid legal fees and outlays. The Binghams counterclaimed in professional negligence and breach of contract, seeking damages and for the delivery up of their files so that they might continue to prosecute their medical negligence proceedings as lay litigants. On 24 May 2012, the Circuit Court (Her Honour Judge Flanagan) dismissed the action for reasons which were not recorded and are now unclear. The order states that the appellant “failed to prove his claim” and dismisses the counterclaim.

4

The Binghams did not appeal the decision of the Circuit Court. The appellant did. However, when the matter came on for hearing before the High Court, he withdrew that appeal and the order of the Circuit Court was, therefore, affirmed by Hanna J. As a result, the Binghams say that they do not owe the appellant any fees and that the appellant is, therefore, not entitled to exercise a lien over any file arising from his former retainer. The appellant believes that the fees still remain due and owing and, accordingly, that he is entitled to exercise a lien over all of the files.

5

After the termination of the retainer, the Binghams made a series of complaints against the appellant to the Complaints and Client Relations Section of the Regulation Department of the Law Society (“the CCRS”). On 13 January 2009, they filed a complaint alleging misconduct under a number of headings. On 27 May 2009, this first complaint was rejected by the CCRS and no finding of misconduct was made. The Binghams appealed this determination to the Independent Adjudicator of the Law Society and this appeal was rejected on 17 July 2009.

6

Following the conclusion of the Circuit Court proceedings, on 27 May 2013 the Binghams made a second complaint to the CCRS concerning the appellant which was referred to the Complaints and Client Relations Committee of the Law Society (“the CCRC”). The CCRC referred this complaint to a formal misconduct inquiry as it considered that it was arguable that the appellant's lien over the files had been extinguished in light of the outcome of the Circuit Court proceedings.

7

On 11 March 2014, the appellant objected to the investigation of the second complaint on the basis that it was identical to the first complaint and, therefore, res judicata....

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8 cases
  • The Law Society of Ireland v Coleman
    • Ireland
    • High Court
    • 7 Septiembre 2020
    ...of misconduct made by the Disciplinary Tribunal. 38 A recent judgment delivered by the Court of Appeal, Sheehan v. Law Society of Ireland [2020] IECA 77 ( unreported, 26 March 2020), confirms that the type of argument which may be advanced to the High Court in solicitors disciplinary procee......
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    ...will not usually extend to claims that a body lacked jurisdiction to determine a matter (see Sheehan v. Solicitors Disciplinary Tribunal [2020] IECA 77), an appeal on a point of law itself will usually capture most, if not every category of error that might give rise to judicial review (see......
  • Barry Sheehan Practising Under the Style of Barry Sheehan, Solicitor v Solicitors Disciplinary Tribunal
    • Ireland
    • Supreme Court
    • 16 Septiembre 2021
    ...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 th......
  • Coleman v The Law Society of Ireland
    • Ireland
    • High Court
    • 7 Abril 2020
    ...made by the Disciplinary Tribunal. 34 A judgment delivered by the Court of Appeal last month, Sheehan v. Law Society of Ireland [2020] IECA 77, confirms that the type of argument which may be advanced to the High Court in solicitors disciplinary proceedings will depend on the precise proced......
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