Colm Murphy v The Law Society of Ireland and Simon Murphy

• Jurisdiction: Ireland
• Judge: Mr. Justice MacGrath
• Judgment Date: 26 July 2021
• Neutral Citation: [2021] IEHC 848
• Court: High Court
• Docket Number: [Record No. 2004 19212 P] [Record No. 2009 No. 14 SA]

Between

Colm Murphy

Plaintiff

and

The Law Society of Ireland and Simon Murphy

Defendants

Disciplinary Tribunal 5306 DT 464/04

In the Matter of John Colm Murphy Formerly Practising as Colm Murphy and Company Solicitors at Market Street Kenmare County Kerry and as Murphys at 1 Chapel Street Killarney County Kerry and

In the Matter of the Solicitors Act, 1954 to 2002

Between

The Law Society of Ireland

Applicant

and

John Colm Murphy

Respondent Solicitor

In the Matter of Colm Murphy, a Solicitor Practising as Colm Murphy And Company Solicitors at Market Street Kenmare County Kerry and as Murphys at 1 Chapel Street Killarney County Kerry and

In the Matter of an Application of the Law Society of Ireland to the Solicitors Disciplinary Tribunal and

In the Matter of the Solicitors Act, 1954 to 2002

The Disciplinary Tribunal Record No. 5306 DT 464/04

Between

Colm Murphy

Appellant

and

The Law Society of Ireland

Respondent

[2021] IEHC 848

[Record No. 2004 19212 P]

[Record No. 2009 12 SA]

[Record No. 2009 No. 14 SA]

THE HIGH COURT

Misfeasance of public office – Negligence – Defamation – Applicant seeking an order to review and to set aside the judgment of the High Court and its ruling – Whether there were errors in the judgment which were so fundamental that they had had an effect on the outcome of the civil case

Facts: The plaintiff/applicant, Mr Murphy, applied to the High Court, inter alia, for relief sought at para. 8 of the notice of motion dated 24th July, 2020, being an order to review and to set aside the judgment of the Court made in proceedings entitled Colm Murphy v Law Society of Ireland and Simon Murphy record No. 2004/19212P on 31st July, 2019 and its ruling made on 13th November, 2019. In the judgment delivered on 31st July, 2019 (the principal judgment in the civil case), the Court dismissed Mr Murphy’s claim for damages for misfeasance of public office, negligence and defamation. The second ruling concerned costs and orders consequent on the principal judgment. In his grounding affidavit, Mr Murphy averred to his belief that there were errors in the judgment which were so fundamental that they had had an effect on the outcome of the civil case. He submitted that there was a failure by the Court to consider all of the evidence, particularly uncontroverted evidence, which led to a mistake in the reasoning of the judgment. The issues which, it was submitted, must be re-addressed, included the Court’s consideration of memoranda and documents which it was contended the Court either did not address or failed to address appropriately. The matters raised included the following: (a) it was alleged that the defendants breached Court orders for discovery and failed to comply with Data Access Requests, which had not been properly addressed by the Court; (b) the Court failed to deal with what Mr Murphy said was the egregious conduct of legal representatives of the first defendant/respondent, the Law Society of Ireland. In his notice of motion, Mr Murphy also sought various directions requiring that the Court investigate, examine and adjudicate on particular conduct alleged against the Society and its officials.

Held by MacGrath J that he was not satisfied that the issues raised by Mr Murphy were such as to warrant the exercise of the jurisdiction of the Court to revisit or set aside its judgment. The suggested errors, even if accepted, were not of a fundamental nature that go to the root of the judgment such that the Court was persuaded that there had been a denial of justice. To the extent that complaint was made of late disclosure or that documents were only produced at trial, MacGrath J was not satisfied that those complaints were such as to have an effect on the reasoning in the judgment or that it had been established that the Court may have been led into error of a fundamental nature. To the extent that the application involved allegations of fraud on the Court, MacGrath J was satisfied that insofar as complaint was made in respect of particular individual documents, most were either in Mr Murphy’s possession or he was, or became, aware of their existence prior to or during trial. MacGrath J held that those that may not have been evident at trial, such as the regulations, whose discoverability was in any event contested, were not fundamental to the Court’s reasoning nor, in the Court’s view, impact on the decision in the manner contended for. MacGrath J held that an allegation of fraud in civil proceedings must be specifically pleaded and proved. To the extent that it was permissible for the issue of fraud to be agitated on this application, MacGrath J was not satisfied that Mr Murphy’s complaints reached the required threshold.

MacGrath J refused the relief sought.

Relief refused.

JUDGMENT of Mr. Justice MacGrath delivered on the 26th day of July, 2021 .

1 . The plaintiff/applicant, Mr. Colm Murphy, brings this application, inter alia, for relief sought at para. 8 of the notice of motion dated 24 ^th of July 2020, being an order to review and to set aside the judgment of this Court made proceedings entitled Colm Murphy v Law Society of Ireland and Simon Murphy record No. 2004/19212P on the 31 ^st July, 2019 and its ruling made on 13 ^th November, 2019. In the judgment delivered on 31 ^st July 2019, (the ‘principal judgment’ in the ‘civil case’), the Court dismissed Mr. Murphy's claim for damages for misfeasance of public office, negligence and defamation. The second ruling concerned costs and orders consequent on the principal judgment.

2 . A fundamental part of the complaint made by Mr Murphy in the civil proceedings concerned the manner in which the Society had dealt with Court applications. A number of applications were the subject of particular scrutiny and were considered in detail in the principal judgment. It is not intended to repeat the background to civil proceedings, which is fully set out in the Court's principal judgment. It is sufficient for present purposes to record that one set of proceedings concerned Court orders which were made on 31 ^st January 2007 at the behest of the Society under s. 18 of the Solicitors (Amendment) Act 1994 (“the s.18 proceedings”). The Society also instituted attachment and committal proceedings for alleged failure by Mr Murphy to comply with the orders in the s.18 proceedings.

3 . The second application to Court was brought in 2009 which resulted in Mr Murphy being struck from the roll of solicitors by the then President of the High Court, Johnson P. This followed a referral by the Solicitors Disciplinary Tribunal on 13 ^th January 2009 with a recommendation that Mr Murphy be struck from the roll of solicitors. On 12 ^th February 2009, the respondent brought the application. On 23 ^rd February 2009, Mr Murphy issued a motion appealing against the Tribunal's decision to refer the matter to the High Court and both matters were heard together. The matter came before the Court on 21 ^st April 2009 and, the decision having been reserved, an order was made by Johnson P. striking Mr Murphy from the roll of solicitors (“the strike off proceedings”).

Affidavits.

4 . The application now before the Court is grounded on the affidavits of Mr. Murphy sworn on 24 ^th July, 2020, 11 ^th August, 2020 and 24 ^th September, 2020. These were responded to by affidavit sworn on 24 ^th September, 2020 on behalf of the Society by Mr. John Elliot, the Registrar of Solicitors and Director of Regulation of the Society. Mr. Murphy has sworn further affidavits on 9 ^th October, 2020 and 23 ^rd February, 2021. Mr. Elliot has also sworn a supplemental affidavit on the 12 ^th March, 2021 in reply. The Court has been furnished with copies of correspondence exchanged between the parties, largely since May 2020. The parties have also made written submissions.

Liberty to make this application.

5 . An issue arose as to whether Mr Murphy was entitled to make this application in view of undertakings which he had given to the President of the High Court in 2011 not to institute any further proceedings or make any further applications to Court. This Court is satisfied that it enjoys jurisdiction to grant Mr Murphy liberty to make this application regardless of any undertaking which he may have given in 2011, and has ruled that such leave, if required, ought to be granted.

Affidavits of the Applicant.

6 . In his grounding affidavit, Mr Murphy avers to his belief that there are errors in the judgment which are so fundamental that they have had an effect on the outcome of the civil case. He submits that there was a failure by the Court to consider all of the evidence, particularly uncontroverted evidence, which led to a mistake in the reasoning of the judgment. The issues which, it is submitted, must be re-addressed, include the Court's consideration of memoranda and documents which it is contended the Court either did not address or failed to address appropriately. The matters raised include the following:

• a. It is alleged that the defendants breached Court orders for discovery and failed to comply with Data Access Requests, which have not been properly addressed by the Court.

• b. The Court failed to deal with what Mr. Murphy says is the egregious conduct of legal representatives of the Society manifested in the following ways:

  • i. Incorrect information was placed before the Court by the Society and its legal representatives. They have failed to avail of several opportunities to correct the position. In this context, Mr Murphy points out that Mr Elliot referred to two findings of misconduct (in the [REDACTED] matter) on a number of occasions when the fact is that there was only one. It is averred that Mr Elliot, as an officer of the Court, has a duty to rectify any error made and which may have misled the Court. This has not been done to date.

  • ii. The Society ought to have rectified the position regarding the undertaking allegedly given by Mr...