Deirdre O'Flynn v J. M

JurisdictionIreland
CourtHigh Court
JudgeMr. Justice Richard Humphreys
Judgment Date01 February 2021
Neutral Citation[2021] IEHC 41
Docket Number[2020 No. 30 SA]
Date01 February 2021

In the Matter of the Solicitors Acts 1954 to 2011

Between
Deirdre O'Flynn
Appellant
and
J. M.
Respondent

[2021] IEHC 41

[2020 No. 30 SA]

THE HIGH COURT

Misconduct – Inquiry – Prima facie case – Appellant seeking an inquiry into the conduct of the respondent – Whether there was a prima facie case

Facts: The appellant, Ms O’Flynn, together with her former husband, established a company called BOD Investments (IRL) Ltd in September 1994. Her ex-husband, Mr O’Flynn, had 39,999 shares and the appellant had one share. The respondent solicitor was instructed on behalf of the company in relation to the majority of the company’s property transactions. The appellant made complaints about various matters occurring between 1997 and 2011, including not being kept informed of the affairs of the company and claimed that her signature was forged on various documents. The appellant complained to the Law Society about the respondent solicitor in May and June 2019 and then made a complaint to the Solicitors Disciplinary Tribunal on 10th June, 2019. The Solicitors Disciplinary Tribunal decided on 16th June, 2020 that there was no prima facie case for an inquiry into the conduct of the respondent. On 9th July, 2020 the appellant issued a notice of motion by way of appeal under s. 7(12A)(a) of the Solicitors (Amendment) Act 1960. The High Court (Humphreys J) ruled that, given that the appeal was by way of de novo rehearing in accordance with the Supreme Court decision in O’Reilly v Lee [2008] IESC 21, Humphreys J was concerned with whether there was a prima facie case, rather than with a review of the tribunal procedures. He therefore excused the tribunal from further attendance on the basis that any complaints about whether or not it had provided fair procedures to the appellant were not matters for the statutory appeal. The substantive hearing of the appeal then took place on 16th December, 2020.

Held by Humphreys J that, regarding the complaint alleging that forgery of the appellant’s signature was facilitated by the respondent solicitor and his firm falsely purporting to witness the appellant’s signature when in fact the documents were signed by somebody else, given the potential falsehood and perjury involved, such conduct well clears the bar of potential misconduct. Regarding the complaint alleging that the respondent essentially misled the new solicitor engaged by the appellant to seek to investigate the company’s affairs by saying he had sent documents to the appellant when he had not, failure in honesty must be viewed as a serious departure from the necessary minimum standard of conduct required to practice as a solicitor.

Humphreys J held that he would allow the appeal in respect of the following two categories of allegations: (a) personally and as principal, falsely witnessing the appellant’s signature and falsely swearing to have done so, and related matters alleged at paras. 3(1) and 4(5), (9) and (10) of the complaint; and (b) providing false or misleading information to the new solicitor instructed by the appellant and related matters as alleged at paras. 3(6)(a), (b), and (d), 3(7) and 4(8) of the complaint. Humphreys J held that he would make a finding that there was a prima facie case in relation to those allegations of misconduct and would require the Disciplinary Tribunal to proceed to hold an inquiry under s. 7(3) of the 1960 Act in relation to those allegations. Humphreys J held that he would otherwise dismiss the appeal and confirm the findings of the Disciplinary Tribunal in relation to the other complaints.

Appeal allowed in part.

Judgment of Mr. Justice Richard Humphreys delivered on Monday the 1st day of February, 2021

1

The appellant, Ms. O'Flynn, together with her former husband, established a company called BOD Investments (IRL) Ltd. (Company No. 221820) in September 1994. Her ex-husband, Mr. O'Flynn, had 39,999 shares and the appellant had one share.

2

The respondent solicitor was instructed on behalf of the company in relation to the majority, and it may well be the vast majority, of the company's property transactions.

3

The appellant makes complaints about various matters occurring between 1997 and 2011, including not being kept informed of the affairs of the company and most strikingly claims that her signature was forged on various documents.

4

The company was struck off on two occasions. It was restored to the register on 26th March, 2000 and later on 24th October, 2005 after a second strike-off.

5

The appellant says that she learned of the company's significant indebtedness to Revenue in December 2012. A liquidator was appointed in April 2014, and on 11th March, 2015 she was listed as a tax defaulter in national newspapers. In fairness to the appellant it must be noted that she had no knowledge of the Revenue indebtedness at the time at which the liability arose.

6

She was then served with a notice of motion by the liquidator on 19th March, 2015 seeking to disqualify her as a director. On 13th July, 2015 Keane J. gave an ex tempore ruling refusing to disqualify the appellant. That is referenced in a written judgment issued on a later date, ( [2016] IEHC 197 Murphy v. O'Flynn Unreported, High Court, 18th April, 2016).

7

The appellant complained to the Law Society about the respondent solicitor in May and June 2019 and then made the present complaint to the Solicitors Disciplinary Tribunal on 10th June, 2019.

8

The respondent swore an affidavit on 16th July, 2019 in response, raising a number of legal preliminary issues. Those included an allegation of delay, and the contention that he didn't act for the appellant and took his instructions from the Managing Director of the company, Mr. O'Flynn. He denied any involvement in forgeries, but said that, “[i]t may have been the case that in certain instances documents were signed by Mr. O'Flynn in the presence of staff members of [Name of Solicitors' firm] and then given to Mr. O'Flynn to permit his co-director to sign the necessary documents” (p. 13 of affidavit). That implies that the appellant's signatures were indeed purportedly “witnessed” by himself or other members of the firm of which he was a principal despite Ms. O'Flynn not actually being there. That is pretty much an implied admission of serious wrongdoing and it is very hard to see how there is not a prima facie case against the respondent solicitor under those circumstances. Ms. O'Flynn's reply to this is as simple as it is devastating: “he either witnessed the signing of the documents by me in his presence or he did not. Furthermore, [the respondent] swore a Memorial to the effect that he had witnessed my signature when it is clearly not the case” (replying affidavit of 28th August, 2019).

9

The Solicitors Disciplinary Tribunal decided on 16th June, 2020 that there was no prima facie case for an inquiry into the conduct of the respondent.

10

On 9th July, 2020 the appellant issued a notice of motion by way of appeal under s. 7(12A)(a) of the Solicitors (Amendment) Act 1960 (as substituted by s. 17 of the Solicitors (Amendment) Act 1994 and as amended by s. 9 of the Solicitors (Amendment) Act 2002).

11

The matter was listed for mention on 14th September, 2020 when the disciplinary tribunal appeared and submitted that the court should not be concerned with that part of the complaint that referred to whether there were fair procedures before the tribunal.

12

I ruled that, given that the appeal was by way of de novo rehearing in accordance with the Supreme Court decision in O'Reilly v. Lee [2008] IESC 21, [2008] 4 I.R. 269, I was concerned with whether there was a prima facie case, rather than with a review of the tribunal procedures. I therefore excused the tribunal from further attendance on the basis that any complaints about whether or not it had provided fair procedures to the appellant were not matters for the statutory appeal.

13

The substantive hearing of the appeal then took place on 16th December, 2020 and I have received helpful submissions from Ms. O'Flynn, the appellant, pro se, and from Ms. Marguerite Bolger S.C. for the respondent solicitor.

Redaction
14

Ms. Bolger requested redaction of the name of the respondent solicitor while accepting that there was no statutory procedure for doing so. She referred to the practice of the disciplinary tribunal, but that is not itself relevant to the administration of justice by a court. The Supreme Court in Gilchrist v. Sunday Newspapers Ltd. [2017] IESC 18, [2017] 2 I.R. 284, recognised the jurisdiction to depart from fully open justice despite the absence of a statutory basis for that. But that must be approached on a restrictive basis and with scepticism. Gilchrist has been applied in the disciplinary context by Kelly P. in ( [2017] IEHC 548 Medical Council v. T.M. Unreported, High Court, 3rd October, 2017) and ( [2019] IEHC 109 Medical Council v. Anonymous Unreported, High Court, 1st March, 2019).

15

I have due regard to the fact that the appellant was not strongly arguing for naming of the respondent at this stage, albeit that her preference was that he would be named. On balance in all the circumstances I am inclined to order redaction at least as matters stand now. Ms. O'Flynn didn't want her name redacted either way, so it doesn't seem necessary to do so.

De novo rehearing versus review by way of identification of error
16

While accepting that the function of the court under s. 7 of the 1960 Act is a de novo rehearing (see O'Reilly v. Lee referred to above), the respondent also argued that the court had to be satisfied that the tribunal had committed an identifiable error. Unfortunately, that is self-evidently a contradictory proposition. If the appeal is de novo it doesn't require demonstration of an error at all. The doctrine of curial deference doesn't and can't logically apply to a de novo rehearing.

17

Various cases across a...

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