Carroll v Law Society of Ireland (No 2)

• Jurisdiction: Ireland
• Judge: Mrs. Justice McGuinness
• Judgment Date: 19 January 1999
• Neutral Citation: [1999] IEHC 85
• Court: High Court
• Docket Number: [1996 No. 236 J.R.]
• Date: 19 January 1999

[1999] IEHC 85

THE HIGH COURT

Record No. 236 J.R./1996

CARROLL v. LAW SOCIETY

JUDICIAL REVIEW

BETWEEN

EAMONN EARROLL

APPLICANT

AND

THE LAW SOCIETY OF IRELAND

RESPONDENT

AND

THE ATTORNEY GENERAL

NOTICE PARTY

Citations:

SOLICITORS ACT 1954 PART IV

SOLICITORS ACTS 1954 & 1960 (APPRENTICESHIP & EDUCATION) REGS 1991 SI 9/1991 REG 26(b)(i)

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 6(1)

INCORPORATED LAW SOCIETY OF IRELAND V CARROLL 1995 3 IR 145

SOLICITORS (AMDT) ACT 1994 S40

SOLICITORS ACT 1954 S24

SOLICITORS ACT 1954 S4

SOLICITORS ACT 1954 S73

SOLICITORS ACT 1954 S40

SOLICITORS (AMDT) ACT 1994 S49

SOLICITORS (AMDT) ACT 1994 S40(5)(i)

SOLICITORS ACT 1954 S5

SOLICITORS ACT 1954 S5(1)

SOLICITORS ACT 1954 S71

SOLICITORS ACT 1954 S5(2)

SOLICITORS ACTS 1954 & 1960 (APPRENTICESHIP & EDUCATION) REGS 1991 SI 9/1991 REG 26(b)(iii)

SOLICITORS ACTS 1954 & 1960 (APPRENTICESHIP & EDUCATION) REGS 1991 SI 9/1991 REG 26(c)

SOLICITORS ACTS 1954 & 1960 (APPRENTICESHIP & EDUCATION) REGS 1991 SI 9/1991 REG 26(c)(i)

KEOGH V COMMISSIONER OF AN GARDA SIOCHANA UNREP MORRIS 6.11.1997

HOWARD V COMMISSIONER OF PUBLIC WORKS 1994 1 IR 101

SOLICITORS ACT 1954 S24(1)

SOLICITORS ACT 1954 S24(1)(e)

SOLICITORS ACTS 1954 & 1960 (APPRENTICESHIP & EDUCATION) REGS 1991 SI 9/1991 REG 26(b)(iv)

PHILLIPS V MEDICAL COUNCIL 1992 ILRM 469

GOODMAN INTERNATIONAL V HAMILTON 1992 2 IR 542

SOLICITORS ACT 1954 S77

HAUGHEY, IN RE 1971 IR 217

SAUNDERS V UNITED KINGDOM 23 EHRR 313

ROCK V IRELAND 1998 2 ILRM 35

CRIMINAL JUSTICE ACT 1984 S18

CRIMINAL JUSTICE ACT 1984 S19

HEANEY V IRELAND 1996 1 IR 580

PROCEEDS OF CRIME ACT 1996 S9

M V D UNREP MORIARTY 10.12.1996

ISTEL LTD V TULLY 1993 AC 45

GILLIGAN V CRIMINAL ASSETS BUREAU (CAB) 1997 1 IR 526, 1996 ITR 205

SOLICITORS (AMDT) ACT 1960 S6(5)

SOLICITORS (AMDT) ACT 1994 S16

HOGAN & MORGAN ADMINISTRATIVE LAW

SCOTT "PROCEDURE AT INQUIRIES-THE DUTY TO BE FAIR" 1995 111 LQR 596

O'REILLY V CASSIDY 1995 1 ILRM 306

DUBLIN WELL WOMAN CENTRE V IRELAND 1995 1 ILRM 408

SOLICITORS ACT 1954, IN RE 1960 IR 239

O'DONOGHUE V VETERINARY COUNCIL 1975 IR 398

S (A BARRISTER), IN RE 1981 2 AER 952

BANE V GARDA REPRESENTATIVE ASSOCIATION 1997 2 IR 449

Synopsis

Solicitors

Judicial review; declaration; admittance to the Roll of Solicitors; jurisdiction; respondent refused to admit applicant as a solicitor and proposed to set up inquiry into allegations of misconduct made against him; applicant sought declarations that he fulfilled the requirements to be admitted as a solicitor and that the Respondent had no jurisdiction to hear complaints against him; whether the applicant's privilege against self-incrimination had to be protected; whether the power to control and discipline apprentices in Solicitors (Amendment) Act, 1994 referred solely to such matters as courses and examinations; whether the respondent could have jurisdiction to enquire into allegations of misconduct outside the sphere of education; whether the Education Committee could rely on hearsay; whether a judicial review hearing could direct procedures in advance; whether the composition of the Education Committee hearing the allegations was contrary to the requirements of the Regulations; whether there should be lay participation on the Committee; whether a committee comprised of three solicitors would be capable of acting independently and impartially; Solicitors Act, 1954; Apprenticeship and Education Regulations, 1991; Solicitors (Amendment) Act, 1994 Held: Respondent had jurisdiction to carry out the proposed inquiry; it was not the purpose of judicial review to direct procedures in advance; declaration granted that the committee of three solicitors was invalidly constituted and had no lawful authority Carroll v. The Law Society of Ireland - High Court: McGuinness J. - 19/01/1999 - [2003] 1 IR 284 - [2000] 1 ILRM 161

While the Law Society, when fixing its procedures for conducting an inquiry into the conduct of the applicant, had to have regard to standards of fairness and constitutional justice judicial review is a means by which conduct which has occurred can be examined and is not to be used as a mechanism for directing procedures in advance. However, a combination of the principle of nemo iudex in causa and the statutory rules governing how complaints should be determined made it imperative that there be some lay participation in the inquiry. The High Court so held in declaring that the Committee of three practising solicitors designated to conduct the inquiry is invalidly constituted.

1 Mrs. Justice McGuinnessdelivered the 19th day of January, 1999

THE PROCEEDINGS

2 In these Judicial Review proceedings the Applicant, who is a person seeking to be admitted to the Roll of Solicitors, seeks a number of declaratory and other reliefs against the Respondent, The Law Society of Ireland. By Order of Kelly J. made on the 22nd July. 1996 the Applicant was permitted to issue Judicial Review proceedings seeking the followingreliefs:

3 1. A Declaration that the Applicant has fulfilled all the requirements of Part IV of the Solicitors Act 1954, as amended? to be admitted as a solicitor:

4 2. A Declaration that the Apprenticeship and Education Regulations of 1991(S.I. No. 9 of 1991) are ultra vires the Law Society and that the Respondent's Education Committee has no jurisdiction to hear and determine all or any of the complaints made against the Applicant as set out in Paragraph 43 of an affidavit of Richard Woulfe of the 15th December, 1993:

5 3. A Declaration that, if the said Committee has suchjurisdiction.

6 (a) it cannot rely on hearsay evidence:

7 (b) it must permit cross-examination of all witnesses:

8 (c) it cannot rely on the finding of fact concerning the Applicant made by Mr. Justice Murphy in High Court Record No. 1993/8169P Between The Incorporated Law Society of Ireland and Godfrey Carroll, Eamonn Carroll, John Carroll, Anne Marie Govern and Christopher Ryan:

9 (d) it should require the Respondent to pay the Applicant's reasonable legal costs and expenses:

10 4. An Order directing the Respondent to forward the Applicant's name to the President of the High Court with a view to his admission as aSolicitor.

11 The Originating Notice of Motion issued by the Applicant pursuant to the Order of Kelly J. included at Paragraph 4 a relief which, as I understand his Order, was specifically excluded by the learned Kelly J. and which clearly should not properly have come before this Court at the hearing of the matter. I will refer to this later.

12 The grounds upon which the Applicant was permitted by the Court to seek these reliefs were those set out under Declaration No. 2 and Declaration No. 3 in the Applicant's Originating Statement as follows:

13 Declaration No. 2. The said Committee has no jurisdiction to so hear and determine on the ground that

14 (i) to do so is altra vires the provisions of the 1954 Act as amended:

15 (ii) the Regulations which purport to grant such jurisdiction are unconstitutional, as inter alia contrary tothe "democratic nature" of the State:

16 (iii) in the circumstances, there is an overwhelming likelihood of the said Committee being biased against the Applicant:

17 (iv) no satisfactory arrangements exist to safeguard the Applicant's privilege against self-incrimination.

18 Declaration No. 3. The said procedural safeguards are based on:-

19 (a) the practice in e.g. the Beef Tribunal, together with what is at stake for the Applicant - his entire good name and career:

20 (b) similarly and Article 6(1) of the European convention on HumanRights and Fundamental Freedoms

21 (c) on Counsel's advice the Applicant did not join issue in the said proceedings in relation to the facts

22 (d) equality of arms and estoppel created by the demand of Joan O'Neill in relation to the Society's own costs.

23 No doubt arising out of Ground No. 2(ii), which challenges the constitutionality of the 1991 Regulations, Kelly J. in his Order of the 22nd July, 1996 directed that the Attorney General be joined as a Notice Party in the action. In October 1996 the Attorney General brought a Motion seeking to vacate that part of the Order of Kelly J. onthe grounds that no specific relief by way of declaration that any Act of the Oireachtas was unconstitutional was sought in the proceedings. This Motion came on before Geoghegan J. on 14th October, 1996. Apparently there was no opposition to the application and it was granted. Subsequently on the 3rd March, 1997 the Solicitors for the Applicant wrote to the Chief State Solicitor reiterating and elaborating the nature of the Applicant's constitutional challenge. Basically as a result of this correspondence and apparently following on an application before Carroll J. the Attorney General was rejoined as a Notice Party and filed a Statement of Opposition on the 20th June,1997. Neither the Order of Geoghegan J. nor any Order of Carroll J. is included in the Book of Pleadings provided to this Court at the hearing of the action.

24 In the event, however, Senior Counsel for the Applicant informed me when opening the case that, as is the normal procedure, any consideration of the challenge to the constitutionality of either the 1991 Regulations or the Solicitors Act, 1954would not be dealt with until after the Court had reached the decision on all other grounds. The constitutional issue, therefore, was not argued before me.

25 The Respondent had filed its Statement of Opposition on the 16thSeptember,1996.

26 On the 3rd November, 1997 an application was made to me by way of Notice of Motion to add a further declaratory relief to the original application for Judicial Review.Following the hearing of that application I permitted the addition of the following relief;

"A Declaration that the Committee of three practising Solicitors designated to hold the Inquiry which is the subject matter of these proceedings is invalidly...