Curran v Solicitors' Disciplinary Tribunal

JurisdictionIreland
CourtHigh Court
JudgeMr. Justice Eagar
Judgment Date13 January 2017
Neutral Citation[2017] IEHC 2
Date13 January 2017
Docket Number[2016 No. 55 SA]

IN THE MATTER OF JAMES BINCHY (A SOLICITOR)

AND IN THE MATTER OF AN APPLICATION BY BRIAN CURRAN TO THE SOLICITORS' DISCIPLINARY TRIBUNAL WITH RECORD NUMBER 3058/DT195/13

AND IN THE MATTER OF THE SOLICITORS ACTS 1954 — 2011

BETWEEN
BRIAN CURRAN
APPELLANT
AND
THE SOLICITORS' DISCIPLINARY TRIBUNAL
RESPONDENT

[2017] IEHC 2

Eagar J.

[2016 No. 55 SA]

[2016 No. 65 SA]

THE HIGH COURT

Professional Conduct & Ethics – The Solicitors Acts 1954–2011 – Leave to appeal – S. 7(12) (b) of the Solicitors (Amendment) Act, 1960 – Extension of time limit

Facts: The appellant sought leave to appeal to the High Court against the findings of the Solicitors' Disciplinary Tribunal that there was no prima facie case for inquiry into the conduct of the named solicitor. The issue before the Court was as to whether the Court could extend the time limit within which to appeal against the impugned findings.

Mr. Justice Eagar held that it had no authority to extend the time limit for filing the appeal against the findings of the Solicitors' Disciplinary Tribunal that there was no prima facie case for inquiry. The Court found that it could exercise the discretion to grant extension where there were arguable grounds of appeal, which was clearly missing in the present case. The Court noted that the appellant was notified by the Central Office about the lacunae in his application, which was never remedied by him within the prescribed time limit.

JUDGMENT of Mr. Justice Eagar delivered on the 13th day of January, 2017
1

This is a judgment on foot of a notice of motion issued by Brian Curran seeking leave to appeal to the High Court against the findings of the Solicitors' Disciplinary Tribunal dated the 6th November, 2015 and dated the 10th December, 2015 (notified to the appellant on the 10th December, 2015), that there was no prima facie case for inquiry into the conduct of the solicitor in the title hereof, Mr. James Binchy of Murphy & Company.

2

The first issue that arises in this Court's judgment is that the title of the proceedings is incorrect and I propose to amend the title as the Law Society of Ireland is not the appropriate respondent. In my view, the Solicitors' Disciplinary Tribunal should be respondents, and I amend the title appropriately.

3

The important issue before this Court is whether it is permissible for this Court to extend the time limit within which to appeal against the finding of the Disciplinary Tribunal where there has been a finding that there is no prima facie case for inquiry into the conduct of a solicitor having regard to the provisions of s. 7(12)(B) of the Solicitors (Amendment) Act, 1960, amended.

The statutory framework
4

The disciplinary provisions in relation to solicitors is contained in Part II of the Solicitors (Amendment) Act, 1960 as amended by Part III of the Solicitors (Amendment) Act, 1994 and by the Solicitors (Amendment) Act, 2002.

5

Pursuant to s. 6 of the Act of 1960 as amended by s. 16 of the Act of 1994 and by s. 8 of the Act of 2002:—

'(1) The President of the High Court shall, from time to time as occasion requires, appoint a tribunal which shall be known as the Solicitors Disciplinary Tribunal (in this Act referred to as the "Disciplinary Tribunal") consisting of—

(a) not more than twenty persons from among practising solicitors of not less than 10 years standing (to be known and referred to in this section as "solicitor members"), one of whom shall be appointed by the President of the High Court to be chairperson of the Disciplinary Tribunal and each of whom shall be appointed after consultation with the Society, and

(b) not more than ten persons, who are not solicitors or barristers (to be known and referred to in this section as "lay members"), who shall be nominated by the Minister to represent the interests of the general public,

for such a period, not exceeding five years, as the President of the High Court may determine, and any such person so appointed shall be eligible for reappointment to the Disciplinary Tribunal for not more than one such period.',

6

Section 7 of the Act of 1960 as substituted by s. 17 of the Act of 1994 and amended by s. 9 of the Solicitors (Amendment) Act, 2002 provides:—

'(2)(a) Where an application in relation to a solicitor (in this section referred to as the "respondent solicitor") is duly made under this section, the Disciplinary Tribunal shall—

(i) where the Society is not the applicant, inform the Society as soon as practicable of the receipt of the application, and

(ii) before deciding whether there is a prima facie case for inquiry:

(I) send a copy of the application and of any accompanying documents to the respondent solicitor, and

(II) request that any observations which he or she may wish to make on the application be supplied to the Disciplinary Tribunal within a specified period.

(b) If, after receipt of the respondent solicitor's observations or on the expiration of the specified period, the Disciplinary Tribunal find that there is no prima facie case for inquiry, they shall so inform the applicant, the Society (where the Society is not the applicant) and the respondent solicitor and take no further action in relation to the application.'

7

Subsection 3 deals with a situation where the Disciplinary Tribunal found that there is a prima facie case and it is not relevant in this context.

8

Subsection 7(12) provides for an appeal as follows:—

'(12A) The Society or any person who has made an application under subsection (1) of this section may appeal to the High Court within the period specified in subsection (12B) of this section—

(a) against a finding of the Disciplinary Tribunal that there is no prima facie case for inquiry into the conduct of the respondent solicitor, or

(b) against a finding of the Disciplinary Tribunal that there has been no misconduct on the part of the respondent solicitor in relation to an allegation of misconduct (whether or not there has been a finding by the Disciplinary Tribunal of misconduct in relation to any other such allegation), and the Court may—

(i) confirm the finding concerned,

(ii) where the appeal is under paragraph (a) of this subsection, make a finding that there is a prima facie case in relation to the allegation of misconduct concerned or, as the case may be, one or more than one of such allegations and require the Disciplinary Tribunal to proceed to hold an inquiry under subsection (3) of this section in relation to such allegation or allegations, or

(iii) where the appeal is under paragraph (b) of this subsection, rescind or vary any finding of the Disciplinary Tribunal that there has been no misconduct on the part of the respondent solicitor in relation to an allegation of misconduct and, in relation to that solicitor, by order do one or more than one of the things specified in section 8(1)(a) (as substituted by the Act of 1994) of this Act.

(12B) An appeal against a finding of the Disciplinary Tribunal under subsection (12A) of this section shall be made within 21 days of the receipt by the appellant of notification in writing of the finding.'

Background to the complaint to the Solicitors' Disciplinary Tribunal
9

I will outline the factual issues, not for the purposes of analysing the decision of the Solicitors' Disciplinary Tribunal, but with a view to dealing with the issues of appeal which this Court is required to address.

10

The Court was asked to address the following:—

a. Can this Court extend the time limit within which to appeal against a finding of the Disciplinary Tribunal that there is no prima facie case for inquiry into the conduct of a solicitor having regard to the provisions of s. 7(12)(b) of the Solicitors (Amendment) Act, 1960, as amended.

b. If the time limit set out in s. 7(12)(b) is capable of extension should the time be extended on the facts of this case.

11

Mr. Binchy qualified as a solicitor in Easter 1976 and has been a practicing solicitor every since. He also had never been before the Tribunal in his legal career to date. In late 2005, the applicant retained Mr. Binchy in connection with the sale of 9.23 acres of land bequeathed to the applicant at Mount Pleasant, Loughrea, Co. Galway (the Mount Pleasant lands). The appellant retained Michael Regan as his Auctioneer in connection with the sale of the lands. Mr. Binchy said he had never met Michael Regan but he was based in Galway and never had any communications whatsoever with him. The purchaser, Joe Hoade, agreed to pay the sum of €3,694,716.60 for the Mount Pleasant lands.

12

A deposit was placed by Mr. Hoade on 12th December, 2005 in the sum of €369,471.96 and a letter was received bearing that date came from Dearbhla MacGowan, the solicitor for Mr. Hoade, also enclosing an executed contract signed by Mr. Hoade. The applicant signed the contract for the sale of the lands which was dated 26th January, 2006. The applicant alleged that Mr. Binchy altered the contract. On 7th December, 2005, Ms. MacGowan wrote to Mr. Binchy enclosing the Special Conditions to be inserted into the Contract. These were Special Conditions 4, 5 and 6. The Special Conditions were removed from the Contract by the applicant by putting a line through them. This was done with the applicant's consent and correspondence.

13

There were a number of letters exchanged between Mr. Binchy and the applicant on the Special Conditions. Mr. Binchy said that he explained to the applicant why spousal consent was not necessary and what Special Condition 5 meant. There was no family home at issue in the sale. On 13th January, 2008 Mr. Binchy wrote to the applicant stating that he had received a phone call from the purchaser's solicitors confirming that it was in order to delete the Special Condition that referred to Recourse Mortgage and the subsequent sub sales of the property and that if he was happy...

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