O'C. v The Solicitors Disciplinary Tribunal

• Jurisdiction: Ireland
• Judge: Mr. Justice Barr
• Judgment Date: 14 January 2022
• Neutral Citation: [2022] IEHC 13
• Court: High Court
• Docket Number: [Record No. 2020/295 JR]

Between:-

O'C.

Applicant

and

The Solicitors Disciplinary Tribunal

Respondent

and

Nirvana Property Holdings Ltd

Notice Party

[2022] IEHC 13

[Record No. 2020/295 JR]

THE HIGH COURT

Misconduct – Adjournment – Jurisdiction – Applicant seeking an order of certiorari of the respondent’s decision to adjourn the proceedings and an order of prohibition preventing it from taking any further steps in the inquiry – Whether judicial review was the appropriate remedy

Facts: The applicant solicitor challenged a ruling made by the respondent, the Solicitors Disciplinary Tribunal, in the course of an inquiry into alleged misconduct on the part of the applicant, wherein the respondent granted an adjournment of the hearing to a Mr Fleming, who was either the company secretary or a director of the complainant company, Nirvana Property Holdings Ltd (the notice party), to enable the company to obtain legal representation to be represented before the Tribunal. The applicant maintained that, having embarked on the substantive hearing and having acceded to the preliminary objection taken on behalf of the applicant, a company could not be represented before the Tribunal by one of its officers, but could only appear by retaining a solicitor and/or barrister; the respondent erred in law in granting an adjournment of the hearing, on the application of Mr Fleming. It was submitted that the respondent should have proceeded to dismiss the entire complaint against the applicant. In the alternative, the applicant submitted that the respondent lacked jurisdiction to deal with the substantive application for an inquiry that had been lodged by Mr Fleming on behalf of the company, because there was no evidence before the respondent that the company had passed any resolution authorising Mr Fleming to make the application on its behalf. It was submitted that this was a fatal defect in the proofs, which denied the respondent jurisdiction to embark on the inquiry. The applicant sought a number of reliefs, including an order of certiorari of the Tribunal's decision to adjourn the proceedings and an order of prohibition preventing it from taking any further steps in the inquiry.

Held by the High Court (Barr J) that ordinarily it would be inappropriate for the court to interfere in the ongoing conduct of an inquiry before an administrative Tribunal; however, there were unusual circumstances in the case which made it appropriate for the court to deal with the issues that had been raised on the judicial review application. Given the fact that there had been a lengthy hiatus in the conduct of the inquiry, due to matters that were unrelated to the inquiry, being the onset of the COVID-19 pandemic, the court was satisfied that it was appropriate to allow the applicant to raise the issues that he had in the proceedings. The court was satisfied that the respondent had jurisdiction under its rules of procedure, as well as an inherent jurisdiction, to grant an adjournment, where it considered that it was necessary in the interests of fairness and justice to do so. The court was satisfied that in granting the adjournment in the circumstances that arose in the case, the respondent acted reasonably, logically and in accordance with the dictates of fairness and justice. The court was satisfied that where an officer of a company swore an affidavit on its behalf, where he represented the company at procedural hearings in advance of the substantive hearing and purported to represent the company at the substantive hearing, the Disciplinary Tribunal hearing the matter was entitled to proceed on the basis that the director had been properly authorised to represent the company, subject to proof of the necessary authority being established in the course of the complainant’s evidence.

Barr J refused all the reliefs sought by the applicant in the proceedings.

Reliefs refused.

JUDGMENT of Mr. Justice Barr delivered electronically on the 14th day of January, 2022.

Introduction.

1 This is a challenge by the applicant solicitor, to a ruling made by the respondent in the course of an inquiry into alleged misconduct on the part of the applicant, wherein the respondent granted an adjournment of the hearing to a Mr. Fleming, who was either the company secretary or a director of the complainant company (the notice party), to enable the company to obtain legal representation to be represented before the Tribunal.

2 The applicant maintains that, having embarked on the substantive hearing and having acceded to the preliminary objection taken on behalf of the applicant, that a company could not be represented before the Tribunal by one of its officers, but could only appear by retaining a solicitor and/or barrister; the respondent erred in law in granting an adjournment of the hearing, on the application of Mr. Fleming. It was submitted that the respondent should have proceeded to dismiss the entire complaint against the applicant.

3 In the alternative, the applicant submitted that the respondent lacked jurisdiction to deal with the substantive application for an inquiry that had been lodged by Mr. Fleming on behalf of the company, because there was no evidence before the respondent that the company had passed any resolution authorising Mr. Fleming to make the application on its behalf. It was submitted that this was a fatal defect in the proofs, which denied the respondent jurisdiction to embark on the inquiry.

4 The applicant seeks a number of reliefs, to include an order of certiorari of the Tribunal's decision to adjourn the proceedings and an order of prohibition preventing it from taking any further steps in the inquiry.

5 On behalf of the respondent, it was submitted that, (a) as the applicant had a statutory right of appeal against any finding that may be made by the respondent at the end of the inquiry, it was inappropriate for this court to interfere in the conduct of the inquiry by way of an application for judicial review; rather than allowing the matter to proceed and allowing the applicant to appeal that decision, if he wished to do so; and (b) the Tribunal was entitled to make whatever orders it deemed necessary, including an order adjourning the hearing, so as to ensure that the inquiry upon which it had embarked, was carried out in a fair and proper manner. It was submitted that the rules of procedure under which the respondent operated, clearly provided that it had the power to adjourn the proceedings from time to time, as necessary.

6 In relation to the jurisdiction point, it was submitted that both s. 7 of the Solicitors (Amendment) Act 1960 (as amended), and the Solicitors Disciplinary Rules 2003, which governed procedures before the respondent, made it clear that applications could be made on behalf of another person, who wished to claim that there had been misconduct on the part of their solicitor.

7 Counsel for the respondent pointed to the fact that the forms DT1 and DT2, the necessary application forms for an inquiry into the conduct of a solicitor, which had been filled out in this case, made it clear that the application for an inquiry had been made by Mr. Fleming on behalf of the notice party. Prior to the commencement of the substantive inquiry on 11th February, 2020, there had been numerous preliminary applications before the respondent which dealt with procedural matters, primarily attempting to fix the date for the substantive hearing of the inquiry. On various occasions an adjournment had been sought by the applicant and on other occasions, either Mr. Fleming had not appeared, or he had sought an adjournment or postponement of the commencement date of the substantive hearing for one reason or another. At none of these “for mention” dates, did counsel for the applicant take any objection to Mr. Fleming appearing on behalf of the notice party and making representations on its behalf.

8 Counsel pointed out that at page 14 of the transcript of the hearing on 11th February, 2020, counsel for the applicant had expressly conceded that Mr. Fleming had had authority to represent the company at the previous hearings.

9 It was pointed out that it was only at the hearing of the substantive inquiry, some 10 years after the date on which the application for an inquiry had first been lodged on behalf of the company, that counsel for the applicant for the first time, had raised the objection based on the decision in Battle v Irish Art Promotion Centre Ltd [1968] IR 252, that the company could not be represented before the Tribunal by one of its officers, but could only be represented by a solicitor and/or counsel.

Issues for Determination in these Proceedings.

10 The court is of the view that the following issues arise for determination in these proceedings:

• (a) Whether judicial review is the appropriate remedy at this stage in the proceedings;

• (b) Whether the respondent was entitled to grant an adjournment to Mr. Fleming to enable him to obtain legal representation for the notice party;

• (c) Whether the respondent had been obliged to inquire into whether the company had authorised Mr. Fleming to make the complaint on its behalf and whether the respondent ought to have demanded production of a resolution of the members in general meeting, or of the board of directors of the notice party, authorising Mr. Fleming to act on its behalf, and in the absence of such proof, whether the respondent ought to have held that it lacked jurisdiction and on that basis, ought to have dismissed the complaint against the applicant.

Background.

11 There is an extremely long background to these proceedings. The application for an inquiry pursuant to s. 7 of the Act was made by Mr. Tom Fleming and Mr. Sean Fleming on behalf of the notice party on 30th May, 2010. On that date, they completed a form DT1(a) and swore an affidavit in the form provided for in DT2(a).

12 In the application made on behalf of the...