O'Callaghan v The Solicitors Disciplinary Tribunal

• Jurisdiction: Ireland
• Judge: Ms. Justice Butler
• Judgment Date: 17 January 2023
• Neutral Citation: [2023] IECA 3
• Court: Court of Appeal (Ireland)
• Docket Number: Record Number: 2022/77

Between/

Declan O'Callaghan

Applicant/Appellant

and

The Solicitors Disciplinary Tribunal

Defendant/Respondent

and

Nirvanna Property Holdings Limited

Notice Party

[2023] IECA 3

Whelan J.

Pilkington J.

Butler J.

Record Number: 2022/77

High Court Record Number: 2020/295JR

THE COURT OF APPEAL

Judicial review – Adjournment – Jurisdiction – Appellant appealing from the decision refusing the appellant’s application for judicial review of the decision of the respondent – Whether the lack of jurisdiction alleged by the appellant had been conclusively demonstrated

Facts: The appellant, Mr O’Callaghan, appealed to the Court of Appeal from the decision of the High Court (Barr J, [2022] IEHC 13) refusing the appellant’s application for judicial review of the decision of the respondent, the Solicitors Disciplinary Tribunal, made on 11th February, 2020. The decision under challenge was one adjourning the substantive hearing of the inquiry into the complaint of the notice party, Nirvanna Property Holdings Ltd, against the appellant for what was intended to be a two month period. Due to a combination of the national lockdown imposed in March 2020 as a result of the Covid-19 pandemic and the granting to the appellant of leave to apply for judicial review on 30th April, 2020, the substantive hearing before the respondent had yet to take place. The application for judicial review sought an order of prohibition restraining the respondent from proceeding with the disciplinary hearing and an order of certiorari quashing the decision to adjourn the hearing together with various declarations as to the respondent’s alleged lack of jurisdiction and breach of fair procedures. The appellant contended that the substantive hearing had commenced and was underway at the time it was adjourned on 11th February, 2020. He contended that once the respondent had held that Mr Fleming was not entitled to represent the company then, effectively the company was not in attendance before the respondent. The appellant contended that Mr Fleming should not have been allowed to make an application for an adjournment on behalf of the company and the respondent should not have entertained that application. The appellant contended that the rule relied on by the respondent in granting the adjournment, Rule 21 of the Solicitors Disciplinary Tribunal Rules, 2003, did not actually apply in the circumstances. He contended that the initial application made on behalf of the notice party was flawed such that it should never have been accepted by the respondent nor a decision made that it raised a prima facie case of misconduct which should proceed to inquiry.

Held by Butler J that the prejudice asserted by the appellant both before the respondent and before the court amounted to no more than being unable to avail of a hoped-for advantage as a result of succeeding in its preliminary application. She held that the appellant, who was ready to proceed on 11th February, suffered some inconvenience when the hearing was adjourned; however, the two month adjournment granted would not have placed the appellant in a materially different position to that which he had been in on 11th February. Insofar as matters had moved on since 2020, she held that it would be a matter for the division of the respondent undertaking the inquiry to decide if the degree of prejudice caused to the appellant was such that the inquiry could not be conducted fairly. She was satisfied that the respondent had jurisdiction to adjourn the inquiry under Rule 21 of the 2003 Rules. She was persuaded by the argument made by the respondent that insofar as it was under any obligation to enquire into the Flemings’ authority to make the application on behalf of the notice party, the material in the appellant’s form DT3 affidavit was sufficient to allow the respondent to be satisfied in a general sense that the application was properly made; that information identified the Flemings as owning two thirds of the shares in, and as being the secretary and a director respectively of, the notice party. Consequently, she held that the lack of jurisdiction alleged by the appellant had not been conclusively demonstrated.

Butler J dismissed the appeal and affirmed the order of the High Court judge. The Court’s preliminary view was that as the appeal has been unsuccessful the appellant should pay the respondent’s costs, as in the High Court.

Appeal dismissed.

UNAPPROVED

JUDGMENT of Ms. Justice Butler delivered on the 17 ^th day of January, 2023

Introduction

1 . This is an appeal from the decision of the High Court (Barr J. [2022] IEHC 13) refusing the appellant's application for judicial review of the decision of the respondent Tribunal made on the 11 ^th February, 2020. The respondent is the body established under statute which was, at the material time, responsible for the hearing and determination of complaints of professional misconduct against solicitors. The decision under challenge was one adjourning the substantive hearing of the inquiry into the notice party's complaint against the appellant for what was intended to be a two month period. However, due to a combination of the national lockdown imposed in March 2020 as a result of the Covid-19 pandemic and the granting to the appellant of leave to apply for judicial review on 30 ^th April, 2020, the substantive hearing before the respondent has yet to take place. The application for judicial review seeks an order of prohibition restraining the respondent from proceeding with the disciplinary hearing and an order of certiorari quashing the decision to adjourn the hearing together with various declaration as to the respondent's alleged lack of jurisdiction and breach of fair procedures.

2 . At first glance it may seem contradictory that the appellant is seeking both to quash a decision adjourning a hearing and to restrain the respondent from proceeding with the hearing. However, this apparent illogicality is explained by the fact that, having successfully made a preliminary application before the Tribunal on 11 ^th February, 2020, the appellant then wished the inquiry into the complaint against him to proceed on that date in the absence of the complainant which the appellant believes would inevitably have led to the complaint against him being dismissed. Further, in the course of the exchange of affidavits the appellant (with the leave of the court) expanded his grounds to include a complaint that because of the manner in which the original complaint had been made, the respondent lacked jurisdiction ab initio to even embark upon an inquiry because of the alleged invalidity of the application.

3 . All of these grounds arise because, although the complaint against the appellant is made on behalf of a company, Nirvanna Property Holdings Limited (the notice party), it is being pursued by two individuals, Tom and Sean Fleming. The appellant contends that the authority of these individuals to make the complaint on behalf of the company has never been properly established and, therefore, that the complaint should not have been accepted by the respondent. In addition, when the respondent intended to commence the hearing on 11 ^th February, 2020 a preliminary application was made on behalf of the appellant to the effect that the complainant company could only be represented at the hearing by a solicitor or a solicitor and counsel and could not be represented by Mr. Tom Fleming, an officer of the company. This application was successful. The appellant then objected to Mr. Fleming's subsequent application for an adjournment to allow the company secure legal representation. He contended that Mr. Fleming did not have a right of audience on behalf of the company in order to make that application. Consequently, he argued that the application should have been refused and, in the absence of the complainant appearing or leading evidence of the complaint against him, it ought to have been dismissed. The respondent did not accept this submission and adjourned the hearing.

4 . In order to deal with the legal issues it is necessary to look briefly at the factual context in which they arise. I will then look at the relevant statutory provisions and the rules governing the receipt of complaints and the conduct of hearings by the respondent, the arguments made by the parties and how the issues were treated by the High Court judge in the course of dealing with the two main legal issues raised on this appeal.

Background Facts

5 . The details of the complaint made on behalf of the notice party to the respondent are not relevant to the procedural issues raised on this judicial review. It is however relevant that the complaint arises out of the circumstances in which property which was owned by the notice party came to be transferred to a third party, whom I shall refer to in this judgment as F.P. The transfer between those parties is dated 20 ^th December, 2006 and the change of ownership was registered on the Folio on 4 ^th April, 2007. On 10 ^th June, 2010 an application for an inquiry into the conduct of the appellant for alleged misconduct was made to the respondent on behalf of the notice party through the lodging of a DT1 form which had been completed on 30 ^th May, 2010. On that form the application is stated to be made by the notice party. The form is signed by Tom Fleming and by Sean Fleming and the address given is the private residence of one or both of the Flemings (who are father and son) rather than the registered address of the company.

6 . On the same date a form DT2 was completed by the Flemings. This document is in the form of an affidavit in which details of the allegations of misconduct grounding the application for an inquiry are set out. The affidavit is stated to be made by “ Tom Fleming and Sean Fleming on behalf of Nirvanna Property Holdings Limited”. The complaint and the documents lodged to...