Brendan Kirwin v John O'Leary and Bridget O'Leary, Seamus Turner, Peter Redmond, Cormac McMullen, Catherine O'Connor, Sean Nolan, Geraine O'Loughlin and Wendy Smith

• Jurisdiction: Ireland
• Judge: Ms. Justice Irvine
• Judgment Date: 09 March 2022
• Neutral Citation: [2022] IEHC 152
• Court: High Court
• Docket Number: [2020 No. 79 S.A.]

In the Matter of the Solicitors Acts 1954 – 2015

And in the Matter of John O'Leary, Bridget O'Leary, Seamus Turner, Peter Redmond, Cormac Mullen, Catherine O'Connor, Sean Nolan, Geraine O'Loughlin and Wendy Smith, Solicitors

Between

Brendan Kirwin

Appellant

and

John O'Leary and Bridget O'Leary, Seamus Turner, Peter Redmond, Cormac McMullen, Catherine O'Connor, Sean Nolan, Geraine O'Loughlin and Wendy Smith

Respondents

and

Solicitors Disciplinary Tribunal

Notice Party

In the Matter of the Solicitors Acts 1954 – 2015

And in the Matter of John O'Leary and Bridget O'Leary, Solicitors

Between

Brendan Kirwin

Appellant

and

John O'Leary and Bridget O'Leary

Respondents

and

Solicitors Disciplinary Tribunal

Notice Party

[2022] IEHC 152

[2020 No. 79 S.A.]

[2020 No. 78 S.A.]

THE HIGH COURT

Misconduct – Time barred – Solicitors (Amendment) Act 1960 s. 7(12B) – Respondents seeking to strike out proceedings – Whether the proceedings were time barred

Facts: The appellant, Mr Kirwan, in 2019, made a complaint concerning the respondents, Mr O'Leary, Ms O’Leary, Mr Turner, Mr Redmond, Mr McMullen, Ms O’Connor, Mr Nolan, Ms O’Loughlin and Ms Smith, to the notice party, the Solicitors Disciplinary Tribunal. He made two separate complaints. The first was made against Mr O’Leary and Ms O’Leary, and the second was made against all of the members of the firm in which those solicitors were partners. The complaints were essentially the same. The main focus of the appellant’s complaint was that a member of the staff of M.J. O’Connor Solicitors, who according to the complainant had “no practising certificate and no ability in law”, had “no professional indemnity insurance” and who had allegedly given legal advice and charged fees as if they were a qualified solicitor, had been held out to him as a solicitor. In addition, it was alleged that the respondents withheld and suppressed facts concerning the price agreed to be paid by a third party for the purchase of certain lands as a result of which the appellant had sustained very significant financial loss. It was alleged, inter alia, that the respondents had acted dishonestly and furthered the interest of a third party to his loss and detriment. In its decision dated 8th October, 2020, the Solicitors Disciplinary Tribunal concluded that the appellant had not established a prima facie case of misconduct on the part of the respondents. Two notices of motion were issued by the respondents each dated 9th June, 2021. The respondents asked the High Court to conclude that the proceedings were time barred as they were not commenced within the mandatory time limit provided for in s. 7(12B) of the Solicitors (Amendment) Act 1960 as substituted by s. 17 of the Solicitors (Amendment) Act 1994, as amended by s. 9(g) of the Solicitors (Amendment) Act 2002. The appellant maintained that an appeal to the High Court against the decision of the Solicitors Disciplinary Tribunal was “the only way in which he can stop the respondents seeking to whitewash their misconduct”.

Held by Irvine P that the respondent’s interpretation of s. 7(12B) was correct. Irvine P held that, not having issued his appeals out of the Central office within 21 days of receiving the decision of the Solicitors Disciplinary Tribunal to the effect that he had not made out a prima facie case of misconduct against the respondents, the appellant’s appeal was out of time. In so concluding Irvine P followed the decision of Eagar J in Curran v Solicitors Disciplinary Tribunal [2017] IEHC 2 as she could find no flaw in his reasoning and she believed his interpretation of s. 7(12B) received some support from the obiter observations of Finlay Geoghegan J in Law Society of Ireland v Tobin [2016] IECA 26 and the decision of Noonan J in Noone v Residential Tenancies Board [2017] IEHC 556.

Irvine P granted the relief claimed by the respondents in their notices of motion.

Relief granted.

JUDGMENT of Ms. Justice Irvine, President of the High Court delivered the 9th day of March 2022

1 This judgment is delivered in respect of the relief sought in two notices of motion issued by the respondents to the above entitled proceedings each dated 9th June, 2021. Simply put, the respondents ask the Court to conclude that the within proceedings are time barred as they were not commenced within the mandatory time limit provided for in s. 7(12B) of the Solicitors (Amendment) Act 1960 as substituted by s. 17 of the Solicitors (Amendment) Act 1994, as amended by s. 9(g) of the Solicitors (Amendment) Act 2002.

2 The respondents' applications were heard by this Court on 11th October and 15th November, 2021. The reason for the interval between the hearing dates was to allow the appellant time to consider the respondents' submissions in circumstances where he was unrepresented and hadn't been given copies of the authorities upon which the respondents had relied in the course of their oral submissions.

3 It should be stated that in the intervening period the appellant sought to issue what is described on the face of the document as a “Notice for Article 40 Motion” grounded upon an affidavit dated 28th October, 2021. The Central Office had refused to issue that Motion and when it was handed in to the court on the day of the hearing, I refused the appellant the right to issue the Motion or to pursue the relief set forth therein, having first indicated that the intended application was misguided and irregular. However, having ascertained from the appellant that the reason he wished to issue the aforementioned Motion was to allow him to rely upon his right of access to justice as provided for in the Constitution to counter the respondents' Motions, I informed him that he was fully entitled to advance such an argument without any need to issue his proposed Article 40 Motion.

Background

4 In 2019, the appellant made a complaint concerning the respondents to the Solicitors Disciplinary Tribunal. He made 2 separate complaints. The first was made against Mr. John O'Leary and Ms. Bridget O'Leary and the 2nd was made against all of the members of the firm in which those solicitors were partners. The complaints were essentially the same. The details of misconduct alleged against the respondents can be gleaned from the decision of the Solicitors Disciplinary Tribunal dated 8th October, 2020, which is exhibited at exhibit “JOL2” to the affidavit sworn by the first named respondent, Mr. John O'Leary, Solicitor, on 8th June, 2021.

5 The main, but by no means the entire focus of the appellant's complaint, was that a member of the staff of M.J. O'Connor Solicitors, who according to the complainant had “no practising certificate and no ability in law”, had “no professional indemnity insurance” and who had allegedly given legal advice and charged fees as if they were a qualified solicitor, had been held out to him as a solicitor. In addition, it was alleged that the respondents withheld and suppressed facts concerning the price agreed to be paid by a third party for the purchase of certain lands as a result of which the appellant had sustained very significant financial loss. It was alleged, inter alia, that the respondents had acted dishonestly and furthered the interest of a third party to his loss and detriment.

6 In its decision dated 8th October, 2020, the Solicitors Disciplinary Tribunal concluded that the appellant had not established a prima facie case of misconduct on the part of the respondents. It is not necessary to engage with the substance of the Tribunal's decision as the issue which I have to determine is a net one, namely whether the appellant's appeals are time barred. However, the issue is clearly of significant importance to the appellant insofar as he maintains that an appeal to the High Court against the decision of the Solicitors Disciplinary Tribunal is “the only way in which he can stop the respondents seeking to whitewash their misconduct”.

Chronology

7 The first named respondent, Mr. John O'Leary, in his affidavit sworn in support of his Motions relies upon the following undisputed chronology of key events:

Regarding the aforementioned chronology, it is important to state that it is not disputed that Mr. Kirwin sent a letter by registered post on 29th October, 2020 addressed to Ms. Angela Brennan, who at that time was the registrar to the Solicitor's List, which stated as follows:

“Dear Angela and High Court Central office,

Please see enclosed original stamped 2 motions and 2 affidavits for filing 2 appeals of the solicitors Disciplinary DT56 and DT62.

Also a copy of each for you to insert date for motions on and return envelope to address above are enclosed.

Kind regards

Brendan Kirwin”

8th October, 2020	The Solicitors Disciplinary Tribunal makes its determination.
8th October, 2020	Notification of the determination is sent to the appellant by registered post.
9th October, 2020	Notification of the decision is received by the appellant.
29th October, 2020	The appellant's son, Mr. Barry Kirwin swears an affidavit grounding the appeal.
29th October, 2020	The originating notices of motion in these proceedings are stamped.
21st December, 2020	The appellant issues his originating notice of motion and is given a return date of 25th January, 2021.
21st December, 2021	The affidavit of Mr. Barry Kirwin, is filed.
31st December, 2021	The appellant writes to the respondents and encloses the appeal papers.

8 Neither is it disputed that the tracking report from An Post shows that the aforementioned letter was delivered on 30th October, 2020 at 9:12 am.

9 Accordingly, the only issue I am required to decide on the respondents' applications is whether or not the appellant's appeals, which were commenced by notices of motion issued out of the Central Office on 21st December, 2020, are time barred.

The Parties' Submissions

10 After hearing oral...