Coleman v The Law Society of Ireland

JurisdictionIreland
JudgeMr. Justice Garrett Simons
Judgment Date07 April 2020
Neutral Citation[2020] IEHC 162
Date07 April 2020
CourtHigh Court
Docket Number2019 No. 51 SA

IN THE MATTER OF SECTION 7(13) OF THE SOLICITORS (AMENDMENT) ACT 1960 (AS AMENDED)

AND IN THE MATTER OF AN INTENDED APPEAL

BETWEEN
DANIEL COLEMAN
APPLICANT/APPELLANT
AND
THE LAW SOCIETY OF IRELAND
RESPONDENT

[2020] IEHC 162

Garrett Simons J.

2019 No. 51 SA

2019 No. 52 SA

THE HIGH COURT

Extension of time – Professional misconduct – Delay– Applicant seeking an extension of time within which to bring an appeal – Whether there had been culpable delay on the part of the applicant

Facts: The applicant, Mr Coleman, applied to the High Court for an extension of time within which to bring an appeal. He wished to appeal findings of professional misconduct made against him by the Solicitors Disciplinary Tribunal to the High Court. The two decisions which he sought to appeal were made in the first quarter of 2010. The motions seeking an extension of time issued on 17 May 2019. It was submitted on behalf of the applicant that most of the delay is referable to the period of time which it took for a separate appeal, which he had taken to the Supreme Court, to be heard and determined. This appeal was not finalised until 1 May 2019. It was said that there had been no “culpable” delay on the part of the applicant. It had been conceded that he had not formed an intention to appeal within the original twenty-one day period, and that the failure to bring an appeal within time had not been the result of any mistake on the part of the applicant. Counsel submitted, however, that the principal consideration for the court in determining whether to grant an extension of time should be the strength of the intended grounds of appeal. The judgment of the Supreme Court in Seniors Money Mortgages (Ireland) DAC v Gately [2020] IESC 3 was cited in this regard.

Held by Simons J that it is not unreasonable to require that a party, in the interests of the overall administration of justice and the balance of justice as and between the parties, to come to a decision to appeal within the time specified; this is especially so where, as in this case, that party not only had the benefit of legal representation at the time of the first-instance decision, but was actually qualified as a solicitor himself. Simons J held that the suggestion that most of the inordinate delay of nine years could be explained away as “systemic” delay, referable to the hearing and determination of the Supreme Court appeal, was an oversimplification. Simons J held that the manner in which the applicant prosecuted that appeal was not a neutral factor; rather, the Supreme Court had been left with the clear impression that the findings of misconduct were not being appealed. Simons J held that this was a factor which weighed heavily against the grant of an extension of time to appeal those findings. Simons J held that the inordinate delay would impair the ability of the High Court to conduct a proper appeal hearing; it was inevitable that the recollection of witnesses of events which, on the facts of the case, took place principally during the years 2004 and 2005 would be diminished by the passage of time. Simons J held that the fact that the Law Society’s “strike off” application would remain outstanding, even if an extension of time to appeal was refused, also tells against the grant of an extension of time. Even in the absence of an appeal, Simons J noted that the High Court would have to consider, in accordance with the judgment of the Supreme Court in Law Society of Ireland v Coleman [2018] IESC 80, whether there was a “sustainable basis” for the findings of misconduct; this residual jurisdiction, which falls short of a full appeal, allows for any injustice to be brought to the court’s attention even in the absence of an appeal. Simons J held that the criticisms made of the findings of misconduct by the Disciplinary Tribunal did not disclose any arguable grounds of appeal. He held that there was no basis for saying that the refusal of an extension of time would result in an injustice.

Simons J held that the application for an extension of time within which to bring an appeal against the findings of misconduct by the Disciplinary Tribunal would be refused.

Application refused.

JUDGMENT of Mr. Justice Garrett Simons delivered on 7 April 2020
INTRODUCTION
1

This matter comes before the High Court by way of an application for an extension of time within which to bring an appeal. The application is brought by a solicitor, Mr Daniel Coleman (“ the Solicitor”), against whom findings of professional misconduct were made by the Solicitors Disciplinary Tribunal. The Solicitor now wishes to appeal those findings to the High Court. The time-limit prescribed for the bringing of an appeal has long since expired. The High Court does, however, have a discretion to extend time having regard to all of the circumstances of the case.

2

The extraordinary feature of the present case is the inordinate length of time which has elapsed since the making of the impugned decisions of the Disciplinary Tribunal. The two decisions which the Solicitor seeks to appeal were made a decade ago, in the first quarter of 2010. Yet, the motions seeking an extension of time only issued on 17 May 2019. It is submitted on behalf of the Solicitor that most of the delay is referable to the period of time which it took for a separate appeal, which the solicitor had taken to the Supreme Court, to be heard and determined. This appeal was not finalised until 1 May 2019. It is said that there has been no “culpable” delay on the part of the Solicitor.

3

It has been conceded that the Solicitor had not formed an intention to appeal within the original twenty-one day period, and that the failure to bring an appeal within time had not been the result of any mistake on the part of the Solicitor. Counsel submits, however, that the principal consideration for the court in determining whether to grant an extension of time should be the strength of the intended grounds of appeal. The very recent judgment of the Supreme Court in Seniors Money Mortgages (Ireland) DAC v. Gately [2020] IESC 3 is cited in this regard.

PROCEDURAL HISTORY
4

To assist the reader in understanding the issues which arise on this application for an extension of time to appeal, it is necessary first to explain the nature of the appeal which the Solicitor now wishes to pursue. (A fuller explanation will be provided at paragraphs 36 et seq. below). In brief outline, there are two options open to a solicitor against whom findings of misconduct have been made, and in respect of whom the Law Society is seeking a “strike off” order. First, the solicitor may choose simply to make submissions in response to the formal application which the Law Society must make to the High Court seeking an order striking the solicitor's name off the Roll of Solicitors. Such submissions will, generally, be confined to the question of whether a “strike off” order is an appropriate and proportionate sanction, but, as will be explained presently, can also be directed to the question of whether the findings of misconduct are legally sustainable. Secondly, the solicitor may choose, instead, to invoke their statutory right of appeal against the decision of the Disciplinary Tribunal. Such an appeal will be by way of a full rehearing (unless the parties otherwise agree, and the High Court so directs).

5

On the facts of the present case, findings of misconduct were made against the Solicitor by the Disciplinary Tribunal following two hearings in February 2010, and two reports recommending that his name be struck off the Roll of Solicitors were then submitted to the High Court in March 2010. The Solicitor did not exercise his statutory right of appeal against the decisions of the Disciplinary Tribunal. The matter thus came before the High Court solely on the basis of the Law Society's application seeking inter alia an order striking off the Solicitor, i.e. there was no parallel appeal by the Solicitor before the High Court. The consequence of this is that the ambit of the submissions which the Solicitor would have been entitled to make to the High Court were more limited than had he brought an appeal.

6

When the matter appeared before the (then) President of the High Court (Kearns P.) on 26 July 2010, the Solicitor applied for an adjournment in order to instruct counsel. The President refused the application for an adjournment, and, having heard submissions, made an order striking the name of the Solicitor off the Roll of Solicitors. An order was also made directing the Solicitor to pay the sum of €320,000 in restitution to St. Jarlath's Credit Union, Tuam.

7

The Solicitor then brought an appeal to the Supreme Court against the order striking him off. This appeal was filed on 24 August 2010. (To avoid confusion, the reader should bear in mind that the Supreme Court appeal is separate and distinct from the statutory appeal which the Solicitor now wishes to bring to the High Court against the findings of misconduct by the Disciplinary Tribunal).

8

The appeal to the Supreme Court had been made prior to the establishment of the Court of Appeal, and at a time when the Supreme Court, being the only appellate court, had a very heavy case load. The appeal was ultimately heard and determined in 2018. (The order of the Supreme Court was perfected on 1 May 2019). The Solicitor has been successful in his appeal, and the order striking his name from the Roll of Solicitors has been vacated. The “strike off” application has been remitted to the High Court for rehearing. See Law Society of Ireland v. Coleman [2018] IESC 80.

9

The Solicitor issued two notices of motion on 17 May 2019 seeking an extension of time within which to bring an appeal to the High Court against the findings of misconduct of the Disciplinary Tribunal. The application for an extension of time was listed for hearing before the High Court together with the Law Society's...

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