O'Callaghan v Nirvanna Property Holdings Ltd and Another

• Jurisdiction: Ireland
• Court: High Court
• Judge: Mr. Justice David Barniville
• Judgment Date: 30 May 2025
• Neutral Citation: [2025] IEHC 312
• Docket Number: (H SA 2024 115)

In the Matter of the Solicitors Acts 1954 – 2008

And in the Matter of Declan O'Callaghan, A Solicitor Formerly Practising as Principal of Kilrane O'Callaghan & Co., Solicitors, Ballaghderreen, Co. Roscommon

And in the Matter of An Application by Nirvanna Property Holdings Limited to the Solicitors Disciplinary Tribunal

Between

Declan O'Callaghan

Applicant/Appellant

and

Nirvanna Property Holdings Limited

Respondent

and

Law Society of Ireland

Notice Party

[2025] IEHC 312

(H SA 2024 115)

THE HIGH COURT

Preliminary issue – Full rehearing – O. 53B, r. 9 (h)(I) RSC – Appellant appealing from a decision of the Solicitor Disciplinary Tribunal – Whether it was open to the appellant to confine his appeal to certain grounds and to something less than a full rehearing

Facts: The appellant, Mr O’Callaghan, a solicitor, appealed to the High Court under s. 7 of the Solicitors (Amendment) Act 1960 from a decision of the Solicitor Disciplinary Tribunal (the Tribunal) dated 21 August 2024. A preliminary issue arose in the course of the appeal. The issue was whether it was open to Mr O’Callaghan to confine his appeal to certain grounds and to something less than a full rehearing, which is the default position under the Rules of the Superior Courts (the RSC), in circumstances where the respondent, Nirvanna Property Holdings Ltd (Nirvanna), did not agree with that proposed course and wished the appeal to proceed on the basis of a full rehearing. At the conclusion of the hearing on 22 May 2025, Barniville P informed the parties that he had decided that it was not open to Mr O’Callaghan to proceed on the proposed basis and that the appeal, if it was to proceed before the High Court, must proceed as a full rehearing as provided for in O. 53B, r. 9 (h)(I) RSC. Barniville P agreed to provide the reasons for his decision in writing.

Held by Barniville P that the default position for Mr O’Callaghan's appeal mandated by the RSC in O. 53B, r. 9(h)(I) and also seen in O. 53B, r. 6(a)(i) was that the appeal must be conducted on the basis of a “full rehearing” of the evidence before the Tribunal unless something less than that was agreed to by Nirvanna, and also by the notice party, the Law Society, and by the court. Barniville P noted that Sheehan v Solicitors Disciplinary Tribunal [2022] 1 I.R. 78 made clear that the predecessor to O. 53B, r. 9(i)(I) provided for that default position which applied in the absence of agreement to something else by the relevant parties and by the court. In the absence of such agreement from Nirvanna, Barniville P held that Mr O’Callaghan’s appeal could not proceed other than by way of a full rehearing as required under O. 53B, r. 9(h)(I). In circumstances where the RSC made provision for the form of appeal and where something less than the full rehearing provided for as the default position was sought, there was in Barniville P’s view no scope for the court to exercise an inherent jurisdiction to depart from the provisions of the rules. While the court might be entitled to depart from the rules where some injustice would be suffered by Mr O’Callaghan, Barniville P held that it cannot credibly be argued that it would be an injustice to Mr O’Callaghan to be required to run his appeal on the basis of the full rehearing mandated as the default position under the rules. There was in Barniville P’s view no basis for exercising any inherent jurisdiction in the case to direct a less than full rehearing of the appeal, in circumstances where Nirvanna did not, for good and valid reasons, agree to such a course being adopted. In the absence of agreement by Nirvanna to the approach to the appeal for which Mr O’Callaghan contended, Barniville P held that there was no basis for departing from the default position provided for in O.53B, r. 9(h)(I).

Barniville P held that Mr O’Callaghan’s appeal was one which arose only under s. 7(13) of the 1960 Act and must proceed on the basis of the default position set out in O. 53B, r. 9(h)(I) RSC.

Preliminary issue determined.

[APPROVED]

JUDGMENT of Mr. Justice David Barniville, President of the High Court, delivered on the 30 ^th day of May, 2025

Index

1. Introduction	2
2. Factual Background	2
3. The Inquiry: Hearings	3
4. Mr O'Callaghan's Appeal	4
5. Relevant Statutory Provisions	8
6. Brief Summary of Submissions of Parties on Nature and Scope of Appeal	12
7. Analysis and Decision	17
8. Conclusions	22
9. Preliminary View on Costs	23
10. Further Listing	23

1. Introduction

1 . This is my judgment on a preliminary issue which has arisen in the course of an appeal by the Applicant/Appellant, Mr. Declan O'Callaghan, a solicitor, to the High Court under s. 7 of the Solicitors (Amendment) Act 1960 (as amended) (the “1960 Act (as amended)” from the decision of the Solicitor Disciplinary Tribunal (the “Tribunal”) dated 21 August 2024.

2 . The issue is whether it is open to Mr. O'Callaghan to confine his appeal to certain grounds and to something less than a full rehearing, which is the default position under the Rules of the Superior Courts (the “RSC”), in circumstances where the Respondent to the appeal, Nirvanna Property Holdings Limited (“Nirvanna”), does not agree with that proposed course and wishes the appeal to proceed on the basis of a full rehearing.

3 . At the conclusion of the hearing on 22 May 2025, I informed the parties that I had decided that it was not open to Mr. O'Callaghan to proceed on the proposed basis and that the appeal, if it is to proceed before the High Court, must proceed as a full rehearing as provided for in O. 53B, r. 9 (h)(I) RSC. I agreed to provide the reasons for my decision in writing and I now do so in this judgment.

2. Factual Background

4 . The case has a very lengthy history which it is necessary for me to briefly sketch out in this judgment in order to explain how the issue has arisen.

5 . In May 2010, Nirvanna made a complaint about Mr. O'Callaghan to the Tribunal and applied under s. 7(1) of 1960 Act (as amended) for an inquiry into the conduct of Mr. O'Callaghan on the grounds of alleged misconduct in connection with a property transaction concerning a property in Co. Roscommon in 2006/2007. In February 2011, the Tribunal decided there was a prima facie case of misconduct on the part of Mr. O'Callaghan and directed an inquiry into four grounds of alleged misconduct against him. Those grounds were that Mr. O'Callaghan:

• (a) purported to act for both the vendor and the purchaser in a transaction where there was a clear conflict of interest;

• (b) failed to ensure that the relevant consideration passed to the vendor company before title in the property passed to the purchaser;

• (c) provided inadequate professional services and was in breach of his duty of care to Nirvanna; and

• (d) continued to act for the purchaser in proceedings against him for recovery of the relevant consideration.

6 . The proceedings before the Tribunal were very long drawn out. Several affidavits were sworn by Mr. O'Callaghan and by Mr. Tom Fleming on behalf of Nirvanna. Mr. O'Callaghan denied, and continues to deny, the allegations of misconduct made against him.

7 . The inquiry was initially listed for hearing by the Tribunal in May 2011 but was adjourned to allow certain High Court proceedings in relation to the same transaction to proceed, in circumstances where the existence of those proceedings allegedly prevented a witness from attending and giving evidence at the inquiry.

8 . Various further dates for the inquiry were fixed in 2018 – 2019, with the hearing of the inquiry ultimately listed to proceed on 11 February 2020. Mr. O'Callaghan was represented by a solicitor and counsel that day. However, Nirvanna was purported represented by one of its directors, Mr. Tom Fleming. At the outset of the hearing that day, an objection was made on behalf of Mr. O'Callaghan to Mr. Tom Fleming representing Nirvanna. It was contended that Nirvanna had to be represented by a solicitor or by a solicitor and counsel. The Tribunal accepted that objection and then acceded to an application by Mr. Tom Fleming to adjourn the hearing notwithstanding that Mr. O'Callaghan opposed the adjournment. The adjournment was initially to 29 April 2020. However, in the meantime, the Covid-19 pandemic struck and the hearing was deferred.

9 . On 30 April 2020, Mr. O'Callaghan sought and was granted leave to seek judicial review of the Tribunal's decision to adjourn the hearing. Mr. O'Callaghan challenged the decision to adjourn the hearing as well as the jurisdiction of the Tribunal to accept Nirvanna's complaint in circumstances where it was suggested that the authority of Mr. Tom Fleming and Mr. Seán Fleming to make the complaint on behalf of Nirvanna had not been established. Mr. O'Callaghan was unsuccessful in his judicial review in the High Court. Barr J. delivered a judgment on 14 January 2022, refusing the reliefs sought (that judgment is at [2022] IEHC 13). Mr. O'Callaghan was unsuccessful in his appeal to the Court of Appeal. Butler J. delivered judgment on behalf of the Court of Appeal on 17 January 2023 in which she rejected all of Mr. O'Callaghan's claims (that judgment is at [2023] IECA 3). The Court of Appeal held that the issue as to the authority of Mr. Tom Fleming and Mr. Seán Fleming to make the complaint on behalf of Nirvanna was a matter that could be determined by the Tribunal in the course of the inquiry itself.

3. The Inquiry: Hearings

10 . The inquiry before the Tribunal finally proceeded on 13 June 2024. Mr. Tom Fleming gave evidence and was then cross examined by counsel for Mr. O'Callaghan. It is contended on behalf of Mr. O'Callaghan that his counsel's cross examination of Mr. Tom Fleming was improperly and unfairly constrained and curtailed by the Tribunal. Mr. O'Callaghan also gave evidence...