Condon v Solicitors Disciplinary Tribunal
| Jurisdiction | Ireland |
| Judge | Kearns P. |
| Judgment Date | 27 April 2012 |
| Neutral Citation | [2012] IEHC 173 |
| Court | High Court |
| Date | 27 April 2012 |
[2012] IEHC 173
THE HIGH COURT
BETWEEN
AND
AND
RSC O.84
FLANAGAN v UCD 1988 IR 724
MCMAHON v LAW SOCIETY OF IRELAND UNREP HERBERT 10.7.2009 2009/36/8768 2009 IEHC 339
BANKS v SECRETARY OF STATE FOR THE ENVIRONMENT 2004 AER (D) 265
MOONEY v AN POST 1998 4 IR 288
ATLANTEAN LTD v MIN COMMUNICATIONS & NATURAL RESOURCES & ORS UNREP CLARKE 12.7.2007 2007/4/678 2007 IEHC 233
O'LAOIRE v MEDICAL COUNCIL UNREP KEANE 27.1.1995 2000/21/7913
PROFESSIONS
Solicitors
Disciplinary Tribunal - Judicial review - Professional misconduct - Fair procedures - Whether misconduct charges formulated on basis that complainants were clients of applicant - Whether question of whether complainants were clients of applicant critical in determination of misconduct proceedings - Whether decision of respondent reasonable - Whether mistake of fact - Whether respondent misdirected itself - Whether respondent's taking into account of previous misconduct finding under appeal was irrelevant consideration - Whether applicant entitled to clear formulation of charges in advance of misconduct hearing - Delay - Certiorari - Discretion - Whether lateness of application militated against court's discretion to grant certiorari - Whether applicant's acknowledgement of gross delay should be taken into account - Whether court could fashion remedy to finalise matter without further recourse to courts - Whether misconduct proceedings should be remitted to respondent on issue of penalty only - Flanagan v University College Dublin [1998] IR 724; McMahon v Law Society of Ireland [2009] IEHC 339, (Unrep, Herbert J, 10/7/2009); Atlantean Ltd v Minister for Communications [2007] IEHC 233, (Unrep, Clarke J, 12/7/2007); O'Laoire v Medical Council (Unrep, O'Flaherty J, 25/7/1998) and Mooney v An Post [1998] 4 IR 288 followed - Banks v Secretary of State for the Environment [2004] EWHC 416 (Admin); [2004] (Unrep, Sullivan J, 15/3/2004) approved - Rules of the Superior Courts 1986 (SI 15/1986), O84 - Relief granted; proceedings remitted to respondent for consideration of penalty only (2011/971JR - Kearns P - 27/4/2012) [2012] IEHC 173
Condon v Solicitors Disciplinary Tribunal
Facts: The applicant Solicitor had acted on behalf of individuals, Mr. and Mrs. Gunton, in relation to a gift of a site. They made a complaint to the Law Society against the applicant relating to his alleged failings and conduct in the matter. The question had arisen before the respondent as to the nature of the relationship between them and the applicant. The applicant sought to judicially review a decision of the respondent, whereby the Tribunal recommended that the applicant not be permitted to practice for six months and not be permitted to practices a sole practitioner or in partnership. The Tribunal was alleged to have imposed an extremely severe penalty and that the charges had been formulated on the basis that Mr. and Mrs. Gunton were not in fact clients of the applicant but had been allowed to believe as much. He alleged that he had no prior notice of this case and that there was a breach of fair procedures. The respondent objected to the lateness of the application for judicial review outside of Order 84 Rules of the Superior Courts.
Held by Kearns P. that the newly revised Order 84 had come into existence weeks after the applicant had brought his application. The Court was minded to dispose of the matter by remitting it back to the Disciplinary Tribunal for further consideration on penalty only. The Court was fortified by the express statement of counsel for the applicant that he would abide by such course.
JUDGMENT of Kearns P. delivered the 27th day of April, 2012
In these proceedings the applicant seeks to judicially review a decision of the Solicitors Disciplinary Tribunal (hereinafter "the Tribunal") made on 3 rd May, 2011 whereby the Tribunal decided to recommend to the High Court that the applicant, a solicitor, be not permitted to practise for six months and thereafter be not permitted to practise as a sole practitioner or in partnership and ordered him to pay a fine of €2,000.
The background facts are not really in dispute. Mr. Condon had acted on behalf of Mr. Sandy Perceval who had decided in 2000 to gift a site at Ballymote in Co. Sligo to Mr. Paul Gunton and his wife Mrs. Cicely Gunton, who is a sister of Mr. Perceval. A deed of conveyance was drawn up for that purpose and, following its execution by the Guntons, was returned to the applicant's firm for stamping and registration. Despite repeated requests by the Guntons for the stamped deed, it took Mr. Condon nine years to deal with the matter and his delay, for which he accepts responsibility and blame, caused significant distress to the Guntons. They ultimately made complaint to the Law Society through their solicitors, Messrs. Johnson & Johnson, in respect of the applicant's failure to stamp and register the deed.
On 24 th March, 2009 the Law Society informed the applicant of its intention to refer the matter to the Complaint and Client Relations Committee and later, when it felt the applicant was not being co-operative, informed the applicant of its intention to apply to the High Court for an order directing the applicant to respond to correspondence from the Society. This Court made such an order on 20 th April, 2009.
At all times the applicant maintained that the complainants were not his clients. Although at its meeting on 4 th September, 2009, the Committee appeared to accept that the Guntons were not and never had been clients of the applicant, there was further discussion at the meeting of 9 th October, 2009 as to whether in fact they were clients. In any event the Committee decided on 9 th October, 2009 to refer the applicant to the Disciplinary Tribunal and wrote to the applicant setting out the issues it had determined to be referred to the Tribunal for an inquiry.
The issues referred for inquiry amounted to seven complaints made by the notice party as follows:-
a "(a) The applicant failed to respond to repeated letters and calls from Mr. and Mrs. Gunton in a timely manner or at all;
(b) He misled the Guntons by allowing them to believe that they were his clients and failing to advise them that this was not his view of the matter;
(c) He failed to take any steps to disabuse the Guntons of their belief that he was dealing with the matter for them and on their behalf since 19 th April, 2000;
(d) He allowed the complainants' solicitors to think that he was proceeding with the stamping of the documentation when he was taking no steps to do so;
(e) He failed to reply satisfactorily to the Society's correspondence and in particular the Society's letters of the 19 th February 2009, 4 th March 2009, 11 th March 2009, and 15 th May 2009 in a timely manner or at all;
(f) He failed to respond satisfactorily to numerous letters from the complainant."
It should be noted at this point that the various complaints do not contain an allegation of failure to provide adequate professional services to clients. On the contrary, the clear import of the second complaint was that the Committee did not regard the Guntons as being clients of the applicant. Indeed it is difficult to see how they could have done so, given that the Guntons had their own separate firm of solicitors.
Following a preliminary hearing at the end of September 2010, the Disciplinary Tribunal proceeded to hear the case on 14 th April, 2011, making its order on 3 rd May, 2011. In the course of his remarks at the conclusion of the hearing before the Tribunal, the chairman stated as follows:-
"This is one of the worst cases of misconduct that has come before the Tribunal and is exacerbated by the apparent total lack of concern by the respondent towards the treatment meted out by him to Mr. and Mrs. Gunton over the nine years they were unfortunately involved with him. There is no excuse for his callous behaviour towards his clients."
At all material times during the hearing before the Tribunal the applicant maintained that the Guntons were never in fact clients of his. That said, it is important to acknowledge the applicant's admission in the lengthy affidavit placed before this Court that he fell well short of the standards he himself believed appropriate for a solicitor dealing with the Guntons as members of the public with a particular interest in the matter which they had been pressing him about.
In its report dated 3 rd May, 2011, the Tribunal found that there had been no misconduct on the part of the applicant in respect of the second complaint because the Tribunal found as a matter of fact that Mr. and Mrs. Gunton were clients of the applicant. Rather oddly, the report went on to state that " if the respondent solicitor was of genuine belief that they were not [clients] he was under a positive duty to so inform them that they were not his clients".
The Tribunal found there had been misconduct on the part of the applicant in respect of all the other complaints by reason of the evidence adduced at the hearing before it and made the following recommendations:-
i "(i) That the respondent solicitor be suspended from practice for a period of six months;
(ii) that the respondent solicitor not be permitted to practise as a sole practitioner or in partnership and that he be permitted only to practise as an assistant solicitor in the employment and under the direct control and supervision of another solicitor of at least ten years standing to be approved in advance by the Law Society of Ireland after the expiration of his period of...
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