O'Callaghan v Disciplinary Tribunal

• Jurisdiction: Ireland
• Judge: Justice Geoghegan
• Judgment Date: 02 February 2001
• Neutral Citation: [2001] IESC 11
• Court: Supreme Court
• Docket Number: [S.C. No. 168 of 1999]
• Date: 02 February 2001

[2001] IESC 11

THE SUPREME COURT

Denham J.

Murray J.

Geoghegan J.

168/1999

O'CALLAGHAN v. DISCIPLINARY TRIBUNAL & ORS

BETWEEN/

MAURICE O'CALLAGHAN

Applicant/Appellant

and

THE DISCIPLINARY TRIBUNAL, IRELAND AND THE ATTORNEY GENERAL

Respondents

Citations:

O CEALLAIGH V BORD ALTRANAIS 2000 4 IR 102

RADIO LIMERICK ONE LTD V INDEPENDENT RADIO & TELEVISION COMMISSION (IRTC) 1997 2 ILRM 1

CORRIGAN V IRISH LAND COMMISSION 1977 IR 317

REES V CRANE 1994 2 AC 173

MURRAY V LEGAL SERVICES COMMISSIONER 1999 46 NSWLR 224

Synopsis

Administrative Law

Administrative; judicial review; fair procedures; appellant seeking order of certiorari quashing respondent's decision to strike appellant off the Roll of Solicitors for misconduct; whether unfair or unlawful for a person who is involved in a decision as to whether there is a prima facie case for an inquiry to participate in inquiry itself; whether respondent itself required to serve notice of complaint on respondent and await a reply before it makes its decision as to whether there is a prima facie case for inquiry.

Held: Appeal dismissed.

O'Callaghan v. The Disciplinary Tribunal - Supreme Court: Denham J., Murray J., Geoghegan J. - 02/02/2001 - [2002] 1 IR 1

- [2002] 1 ILRM 89

The applicant sought to challenge the findings of a disciplinary tribunal. The application for judicial review was rejected in the High Court (McCracken J). On appeal to the Supreme Court, Geoghegan J, held that the requirements of natural justice had been complied with and dismissed the appeal.

1 Justice Geoghegan delivered the 2nd February 2001 [nem diss]

2 The appellant is a solicitor against whom a complaint was made to the respondent tribunal in relation to the handling of a personal injury claim. A disciplinary inquiry was held and the Tribunal, presided over by Mr. Walter Beatty, made a decision against the appellant. The transcript of the oral decision delivered by Mr. Beatty reads as follows:

"Now, the Tribunal has made a finding and I will read it to you and it is a majority and a minority decision so it is a little bit longer than usual.

The Tribunal finds that the matters alleged in paragraph 13 sub-paragraphs A to H in the affidavit of Linda Kirwin sworn on the 21st of June, 1995 have been proved to the Tribunal's satisfaction. The Tribunal has decided that they do not intend to make an order under subsection 9 of section 17. The Tribunal have decided that the solicitor/respondent is guilty of misconduct and he may not have the necessary fitness to be a member of the solicitors profession. Ms. M. Morrissey and Mr. W. Beatty recommend that the solicitor/respondent's name be struck off the Roll of Solicitors. Mr. Donal Kelliher does not concur with this recommendation and recommends instead that the solicitor/respondent be censured and fined the sum of £5,000 to be divided between the Law Society Compensation Fund and the complainant, Miss Ciara O'Neill. The Tribunal also unanimously recommends that the solicitor/respondent do pay the costs of the Society in the sum of £500 or such other sum which may be taxed by a Taxing Master of the High Court, if so required by the solicitor/respondent."

3 The appellant obtained leave in the High Court to apply by way of judicial review for orders of certiorari quashing that decision. Leave was granted and an application was brought pursuant to the leave. The High Court (McCracken J.) refused the application and this is an appeal from that refusal.

4 In the Supreme Court two grounds of attack have been put forward. The first relates to the statutory procedures under which the Disciplinary Tribunal acts. Before there can be an inquiry the Tribunal has to make a determination as to whether there is a prima facie case for holding such an inquiry. Mr. Walter Beatty sat on the division of the Tribunal which initially decided that there was a prima faciecase for an inquiry and then sat on the division of the Tribunal which conducted the inquiry itself. It is argued on behalf of the appellant that that is an unfair and unlawful procedure in that not only will all the documentation have been before Mr. Beatty at the preliminary stage but he will have formed a preliminary view of the matter or at least might have, and that in these circumstances there was apparent or objective bias on the part of Mr. Beatty while he participated in the inquiry itself.

5 The second ground of attack is that the appellant ought to have received formal notification and particulars of the original complaint from the Tribunal and ought to have been given a proper opportunity to rebut it before any decision was made to hold an inquiry. It is conceded that the appellant had been sent the letter of complaint by the Law Society and had had an opportunity which he availed of to write a reply and that this correspondence was before the Tribunal before it decided to hold the inquiry. But the appellant argues that that is not enough, that there ought to have been formal notification coming from the Tribunal itself and that the absence of such procedure rendered the inquiry unlawful, particularly having regard to the decision of this Court in O'Ceallaigh v. An Bórd Altranais (unreported judgments delivered the 17th May, 2000).

6 On the first of these grounds the following is what was said by McCracken J. in the High Court.

"... I think this case is made under a misapprehension of the nature of the preliminary procedures. It is not an inquiry and it does not in any way decide upon the validity of the complaint made against the applicant. It simply decides that there is a serious case put forward by the complainant. At that stage the Tribunal is not aware of the attitude of the solicitor against whom the complaint is made, and all that it is doing is directing that inquiries should be made into the complaint. As I said earlier, this is very similar to the situation where a court gives leave to an applicant to bring judicial review proceedings."

7 The learned High Court judge goes on to point out that there is no rule in the High Court that a judge who gives leave for judicial review cannot hear the judicial review application itself or that a judge who grants an interim injunction may not hear the later interlocutory injunction application. The nature of the decision to be made the second time round is quite different from the nature of the decision made on the first occasion. In so far as McCracken J. is holding that a person who is involved in a decision as to whether there is a prima facie case for an inquiry cannot be precluded from participating in the inquiry given that the exercise of conducting the inquiry and making a final decision is totally different, I am in complete agreement with him. I cannot see that there was anything unfair or unlawful about Mr. Beatty sitting on both divisions of the Tribunal. One of the cases relied on by the appellant in this connection is Radio Limerick One Limited v. Independent Radio and Television Commission [1997] 2 ILRM 1. But the bias alleged in that case...