Brendan Kirwan v John O'Leary, Bridget O'Leary, Seamus Turner, Peter Redmond, Cormac Mullen, Catherine O'Connor, Sean Nolan, Geraldine O'Loughlin and Wendy Smith, Solicitors Disciplinary Tribunal

• Jurisdiction: Ireland
• Judge: Mr. Justice Brian Murray,Mr. Justice Woulfe
• Judgment Date: 29 November 2023
• Neutral Citation: [2023] IESC 27
• Court: Supreme Court
• Docket Number: Supreme Court appeal numbers: S:AP:IE:2022:000040

Between/

Brendan Kirwan

Applicant/Appellant

and

John O'Leary, Bridget O'Leary, Seamus Turner, Peter Redmond, Cormac Mullen, Catherine O'Connor, Sean Nolan, Geraldine O'Loughlin and Wendy Smith, Solicitors

Respondents

and

Solicitors Disciplinary Tribunal

Notice Party

[2023] IESC 27

Dunne J.

Charleton J.

O'Malley J.

Woulfe J.

Murray J.

Supreme Court appeal numbers: S:AP:IE:2022:000041

and S:AP:IE:2022:000042

AN CHÚIRT UACHTARACH

THE SUPREME COURT

JUDGMENT ofMr. Justice Brian Murraydelivered the 29th of November 2023

Background

1 . The Solicitors Disciplinary Tribunal ( ‘SDT’) was at all times relevant to this appeal invested by statute with the function of adjudicating on complaints of misconduct against members of the solicitors' profession. Section 7(12A) of the Solicitors (Amendment) Act 1960 ( ‘the 1960 Act’) as amended, provides that where the SDT is presented with a complaint and determines that there is no prima facie case of misconduct disclosed against the solicitor in question, the complainant may appeal that finding to the High Court. Section 7(12B) provides that such an appeal ‘shall be made’ within 21 days of the receipt of notification in writing of the finding.

2 . The essential questions that fall to be resolved in this appeal are (a) how and when an appeal is ‘made’ for the purpose of this provision and (b) if the appeal in issue here was not made within the specified period of 21 days, whether the Court has the power to extend the time for the bringing of such an appeal. Those questions arise from a very particular statutory scheme which has now been replaced by the new disciplinary process for members of the legal profession provided for by the Legal Services Regulation Act 2015 ( ‘LSRA’).1 Nonetheless, there are a significant number of provisions on the statute book in which time periods are fixed for the bringing of various kinds of statutory appeals, and there is now a substantial body of case law from the High Court and Court of Appeal addressing the issue of whether, and if so when, those periods can be extended.2 So, while the issues to which I have referred arise in the context of a very specific section, they are of some general importance.

3 . The sequence of events begins in 2005. In the course of that year, the applicant and a Mr. Eamonn Buttle were engaged in discussions with a view to the sale by the applicant to Mr. Buttle of property owned by him in Wexford town. At a certain point in their discussions (according to the applicant, at a point after an agreement had been reached as to the essential terms of the proposed transaction) they consulted the firm of MJ O'Connor Solicitors, of whom both were long standing clients. Matters ended up with Mr. Buttle's interests being represented in connection with the transaction by the first respondent, a senior partner of the firm. The applicant's interests were handled by a legal executive employed by MJ O'Connor. The legal executive was not a qualified solicitor. The respondents say that she was a person who had many years of experience in dealing with conveyancing transactions, that she had been engaged in other commercial property transactions for the applicant in the past and that he knew that she was not a solicitor. The applicant disputes this and says that the respondents arranged matters in such a way that he would be represented and advised by a person who was – unbeknownst to him – not a solicitor and who was under the control of the first respondent. This, he says, resulted in his being given legal advice by a person who had no entitlement so to do and his being, in consequence, significantly disadvantaged by the transaction.

4 . As a result, he says, the legal documentation produced around the transaction (all relevant components of which purport to bear his signature) did not reflect the agreement he had actually reached with Mr. Buttle. He says that that agreement was to involve the acquisition by Mr. Buttle of the properties in question for a sum of €4M, with €1M to be paid from the outset. The written documentation, on the other hand, evidences an advance to the applicant of €1M, secured by a mortgage over some of the properties, and a contract of sale that was conditional upon the obtaining of certain planning permission. While the applicant does not in any affidavit before this Court deny that what purports to be his signature on some or all of these documents is in fact his signature, he does deny that he signed some of the documents on the dates on which they were purportedly signed, and he consistently asserts that he was at all relevant times acting under the influence of the legal executive and/or the first named respondent. In the course of oral submissions on this appeal, the Court was advised that the applicant signed various papers that were put before him, the suggestion being that he was not aware of what, precisely, he was signing.

5 . Ultimately, the property market entered a rapid decline in the course of 2008 and the transaction did not proceed. A number of legal actions followed. Mr. Buttle claimed to be entitled to recover from the applicant the sum of €1M which, Mr. Buttle said had been advanced to the applicant by way of loan. Thereafter, that alleged debt was purportedly assigned to a company called Filbeck Limited ( ‘Filbeck’), which proceeded to seek judgment against the applicant in that sum. On 15 November 2012, Filbeck obtained judgment in default of appearance in the amount of €1,056,936 against the applicant, the applicant subsequently moving to set this judgment aside. The applicant thereafter sought judgment against Mr. Buttle in separate proceedings in the sum of €3M arising from the terms (as he alleged them to be) of the failed contract. Mr. Buttle brought an application to have these proceedings struck out in February 2013, that application being successfully resisted by the applicant on the basis that the determination thereof should await the outcome of another set of proceedings instituted by the applicant in May 2013 against Mr. Buttle, members of his family and Filbeck, together with the firm of MJ O'Connor Solicitors. His claim against MJ O'Connor Solicitors in that third action sought damages for negligence and breach of contract and contained a wide range of allegations against that firm arising from its representation of the applicant in connection with the transaction.

6 . Those latter proceedings were the subject of successful applications to the High Court by the defendants thereto to strike out for want of prosecution, the decision of that Court being upheld by the Court of Appeal. This has resulted in a separate appeal to this Court. The first and second named respondents swore affidavits in connection with these applications. The course of these proceedings is charted, and the facts elaborated upon further in the decisions of the High Court and Court of Appeal recorded at [2019] IEHC 954, and [2022] IECA 242, and in the Determination of this Court granting leave to appeal in that matter, [2023] IESCDET 34.

The complaints

7 . On 16 and 19 September 2019 Mr. Kirwan delivered two applications to the SDT pursuant to s. 7 of the 1960 Act, as substituted by s. 17 of the Solicitors (Amendment) Act 1994 ( ‘the 1994 Act’) and as amended by s. 9(g) of the Solicitors (Amendment) Act 2002 ( ‘the 2002 Act’). The second in time sought an inquiry into alleged misconduct of all of the respondents, who were identified as the partners at the relevant time of the firm of MJ O'Connor Solicitors ( ‘the firm’). The first was against the first and second named respondents alone.

8 . Each application made wide ranging allegations against the respondents of various forms of illegality. Complaints were made of the fact that the respondents sought to recover fees from the applicant for work that, the applicant said, was done by a person lacking the necessary qualification. He says that he was deceived into thinking that the legal executive was a solicitor, that he thus instructed her to ‘implement the €4 million sale’ and that she personally undertook to do so. He says that due to his chronic dyslexia, he was 100% reliant on the legal executive and that he trusted her. However, he alleges that the legal executive was, in fact, working for the first respondent. He says that the first respondent facilitated her in acting as she did so that he could be in total control of both parties to the transaction.

9 . Mr. Buttle, the applicant contends, wanted the deal structured in a manner that was prejudicial to the applicant. He says that ‘it is alleged that Brendan Kirwan granted a Mortgage in favour of Eamonn Buttle, which is disputed’ and complains that the legal documentation used to record this alleged mortgage has never been put forward by Mr. Buttle or the firm. He says that no letter of instruction to the legal executive exists, and disputes that she had any authority to act in a manner that would bind him. Later in his application he asserts that the legal executive was acting as Mr. Buttle's agent. He says that the first respondent was ‘in control’ of the legal executive and thus of both sides of the transaction. He lays considerable stress on the fact that various documents subsequently relied upon by Mr. Buttle were dated 5 July 2006 when, the applicant says, he was in France.

10 . In the course of his affidavit, the applicant says that the fact that what he describes as ‘the alleged agreements’ were witnessed by the first respondent and the legal executive confirms that the applicant had no solicitor present on 5 July 2006 and that the legal executive was acting ‘ as legal executive of Mr. John O'Leary, and not as solicitor for Brendan Kirwan’. He describes the agreements as ‘one sided agreements where they purport to be executed on a date when Brendan Kirwan was not in the country, and Mr....