Colm Murphy v Linda Kirwan
| Jurisdiction | Ireland |
| Judge | Mr. Justice MacGrath |
| Judgment Date | 16 November 2022 |
| Neutral Citation | [2022] IEHC 743 |
| Court | High Court |
| Docket Number | [Record No 2010/72 SA] [Record No 2010/73 SA] SDT record no. 3638 DT 42/10 [Record No 2010/74 SA] SDT record no. 3638 DT 14/10 [Record No 2010/75 SA] SDT record no. 3638 DT 130/09 [Record No 2010/76 SA] SDT record no. 4280 DT 03/10 [Record No 2010/77 SA] SDT record no. 5297 DT 129/09 [Record No 2010/78 SA] SDT record no. 5297 DT 02/10 [Record No 2010/79 SA] SDT record no. 5297 DT 128/09 [Record No 2010/80 SA] SDT record no. 6812 DT 06/10 [Record No 2010/81 SA] SDT record no. 3638 DT 07/10 [Record No 2010/82 SA] SDT record no. 5297 DT 138/09 [Record No 2011/50 SA] SDT record no. 5297 DT 170/10 |
[2022] IEHC 743
[Record No 2010/72 SA]
SDT record no. 3638 SDT 136/09
[Record No 2010/73 SA]
SDT record no. 3638 DT 42/10
[Record No 2010/74 SA]
SDT record no. 3638 DT 14/10
[Record No 2010/75 SA]
SDT record no. 3638 DT 130/09
[Record No 2010/76 SA]
SDT record no. 4280 DT 03/10
[Record No 2010/77 SA]
SDT record no. 5297 DT 129/09
[Record No 2010/78 SA]
SDT record no. 5297 DT 02/10
[Record No 2010/79 SA]
SDT record no. 5297 DT 128/09
[Record No 2010/80 SA]
SDT record no. 6812 DT 06/10
[Record No 2010/81 SA]
SDT record no. 3638 DT 07/10
[Record No 2010/82 SA]
SDT record no. 5297 DT 138/09
[Record No 2011/50 SA]
SDT record no. 5297 DT 170/10
THE HIGH COURT
Misconduct – Perjury – Dishonesty – Applicant alleging misconduct against the respondents – Whether the Solicitors Disciplinary Tribunal fell into error in holding that there was no prima facie evidence of misconduct, perjury or dishonesty
Facts: The applicant, Mr C Murphy, in 2009 and 2010, lodged eleven complaints alleging misconduct against four solicitors who held positions within the Law Society, three of whom had been involved or connected with the progression of disciplinary matters against him. The fourth was the Director General of the Society, Mr K Murphy, regarding comments which he made to the Phoenix magazine about proceedings brought by Mr Murphy against the Society. A further complaint was lodged against “Solicitor X” in 2011. In each case he completed the appropriate complaint form, DT1 and made application to the Solicitors Disciplinary Tribunal (SDT) pursuant to s. 7 of the Solicitors Act 1960 for an inquiry into the conduct complained of. Five complaints were lodged against Ms Kirwan, five against Solicitor X, one against Ms McMahon and one against Mr Murphy. The SDT rejected all complaints as disclosing no prima facie evidence of misconduct. The applicant appealed to the High Court from those decisions. The appeals in respect of the complaints made against Ms Kirwan came before the Court under reference numbers 2010/72 SA, 2010/73 SA, 2010/74 SA, 2010/75 SA and 2010/81 SA. The appeal in respect of the complaint made against Mr Murphy came before the Court under reference number 2010/76 SA. The appeals in respect of the complaints made against Solicitor X came before the Court under reference numbers 2010/77 SA, 2010/78 SA, 2010/79 SA, 2010/82 SA and 2011/50 SA. The appeal in respect of the complaint made against Ms McMahon came before the Court under reference number 2010/80 SA.
Held by MacGrath J that, regarding appeals 2010/72 SA, 2010/73 SA, 2010/74 SA, 2010/75 SA, 2010/76 SA, 2010/77 SA, 2010/79 SA, 2010/80 SA, 2010/81 SA and 2010/82 SA, he was not satisfied that the SDT fell into error in holding that there was no prima facie evidence of misconduct, perjury or dishonesty and rejected the appeals. Regarding appeal 2010/78 SA, he was satisfied that, prima facie, the failure to inform the court of the closure of the complaint by the Society in September 2007 was a failure to promote the cause of justice in the context of a complaint which had been brought to the attention by Solicitor X herself, as per dicta of Lord Wright in Myers v Elman [1940] AC 282. MacGrath J was therefore satisfied that a prima facie case of misconduct had been established in respect of allegations (iii), (iv) and (v), insofar as those related to the failure to notify the court of the closure of the complaint. He allowed appeal 2010/78 SA in respect of those allegations.
MacGrath J held that, regarding appeal 2011/50 SA and the allegation at (g) and (h), that allegation of misconduct was intimately connected with Solicitor X’s response to the complaints which were the subject of appeal 2010/78 SA. For the reasons expressed in appeal 2010/78 SA and applying principles in dicta in Myers, accepted by Geoghegan J, MacGrath J allowed appeal 2011/50 SA on those matters.
Appeals dismissed in part.
JUDGMENT of Mr. Justice MacGrath delivered on the 16 th day of November 2022 .
. In 2009 and 2010 Mr Murphy lodged eleven complaints alleging misconduct against four solicitors who held positions within the Society, three of whom had been involved or connected with the progression of disciplinary matters against him. The fourth was the Director General of the Society, Mr Ken Murphy, regarding comments which he made to the Phoenix magazine about proceedings brought by Mr Murphy against the Society. A further complaint was lodged against Solicitor X in 2011. In each case he completed the appropriate complaint form, DT1 and made application to the Solicitors Disciplinary Tribunal pursuant to the Solicitors Act 1960, s. 7 as substituted by s. 17 of the Solicitors Amendment Act 1994 as amended by s. 9 of the Solicitors (Amendment) Act 2002, for an inquiry into the conduct complained of.
. Five complaints were lodged against Ms Linda Kirwan, five against Solicitor X, one against Ms Dara McMahon and one against Mr Ken Murphy. The Solicitors Disciplinary Tribunal (the “SDT”) rejected all complaints as disclosing no prima facie evidence of misconduct. Mr. Murphy has appealed to this court from these decisions. The order of Kelly P. of 11 th December 2017 provided for the manner in which these appeals should be heard and determined.
. Certain of the complaints relate to the manner in which the Society sought and obtained orders under s.18 and in respect of the enforcement of those orders. Four are connected with court undertakings, one of which concerns an undertaking as to damages which was given by and on behalf of the Society by Solicitor X to the High Court on the 17 th October, 2002. Mr Murphy's complaint is that the Society had no authority to give that undertaking. The factual background is addressed in the context of complaint 2010/82 SA. The other three relate to the much disputed undertaking allegedly given on 31 st July 2003. In the principal judgment, paragraph 16.10, the court concluded that no such undertaking was reflected in the court order of Finnegan P. and that “ whatever may have been said in court by counsel on behalf of Mr Murphy, that the court did not consider that such an undertaking had been given or accepted. Indeed, one can only wonder how such undertaking might have been enforced through the court process, in the absence of it being reflected in the perfected order of the court.”
. It would appear from an affidavit sworn by Solicitor X on the 12 th of May 2011 that Mr. Murphy instituted 15 sets of disciplinary proceedings against individuals both previously and currently employed by the Society. An application for Isaac Wunder type relief was made by notice of motion dated 7 th September 2010. What occurred thereafter is addressed in her affidavit:-
“Following a hearing before the President of the High Court on the 1 March 2011, the President of the High Court undertook to consider the said appeals and indicated that he would deliver a written judgment in due course in respect of these appeals in the usual way. However, the President of the High Court refused the Society's application for Isaac Wunder type relief which was also made in the context of a separate application brought by the Society against Mr Murphy in which it sought an order striking out proceedings which Mr Murphy had issued against the Society in 2004 (Record no 2004 no 19212 P) but directed that Mr Murphy bring no further complaints against the Society pending the determination of those proceedings”.
. There is no disagreement between the parties on the principles which, in normal course, are applicable to these appeals. In O'Reilly v Lee [2008] IESC 21, Macken J. observed:
“ I am satisfied that the correct interpretation of the Solicitors Act 1954–2002 as amended in the manner referred to above, is that the appeal from a decision of the Solicitors Disciplinary Tribunal, in this case from its decision dated 20 March 2006, is a hearing de novo in the High Court in which the matters contended for by the appellant as constituting grounds for the holding of an inquiry into the Respondent's alleged misconduct, and the Respondent's reply may be exposed again and argued afresh before the High Court, which decides the appeal on the basis of the materials which were before the Disciplinary Tribunal, but having regard to the arguments made before it, the High Court, exercising an independent jurisdiction in the matter. It is for this reason that the Respondent is the correct Respondent, and equally, that the Solicitors Disciplinary Tribunal is a proper Notice Party to the proceedings, bound by any order which the High Court might make on the appeal.
A different situation would of course arise if the Appellant sought to challenge the Solicitors Disciplinary Tribunal in respect of matters dealt with or failed to be dealt with in an appropriate case, such as would lend themselves to an application for judicial review. In support of his contention that the Solicitors Disciplinary Tribunal should be a Respondent to his appeal and not a mere notice party, the Applicant invokes the decision of this court in The State (Creedon) v The Criminal Injuries Compensation Tribunal [1988] IR 51 where that...
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