O'Donnell v Payne and another

• Jurisdiction: Ireland
• Judge: Kearns P.
• Judgment Date: 28 July 2014
• Neutral Citation: [2014] IEHC 390
• Docket Number: Record No. 73SA/2014
• Court: High Court
• Date: 28 July 2014

[2014] IEHC 390

THE HIGH COURT

Record No. 73SA/2014

O'Donnell v Payne & Flaherty

IN THE MATTER OF THE SOLICITORS ACTS 1954 -2011; AND IN THE MATTER OF/

Una O'Donnell

SOLICITOR

-and-

ON THE APPLICATION OF/

Catherine Payne and George Flaherty Junior

APPELLANTS

SUCCESSION ACT 1965 S115

SUCCESSION ACT 1965 S56

Legal Profession – Solicitors Disciplinary Tribunal – Misconduct – Appeal

Facts: The appellants in this case alleged that a solicitor was guilty of misconduct in handling probate matters on behalf of their deceased parents. They made a complaint to the Solicitors Disciplinary Tribunal who found there was no prima facie case of misconduct against the respondent solicitor. The appellants appealed against the decision of the Tribunal.

Held by Kearns P: Kearns P said the proceedings had arisen out of a protracted family dispute between the appellants and another sibling and it was not for the court to mediate or resolve those issues. The singular issue for the court was whether or not the Tribunal erred in its finding that there was no prima facie case of misconduct against the respondent solicitor. The court saw no reason to depart from the decision of the Solicitors Disciplinary Tribunal. After careful consideration of the submissions, affidavits and extensive correspondence between the parties the appeal was dismissed.

Kearns P.

1 By notice of motion dated 19^th May 2014 Ms. Catherine Payne and Mr. George Flaherty Junior ('the appellants') appeal against the decision of the Solicitors Disciplinary Tribunal ('the Tribunal) dated 1^st May 2014 that there is no prima facie case of misconduct against the respondent solicitor.

2 The background to these proceedings involves a lengthy and often acrimonious dispute between various members of the same family. The appellants are brother and sister. Their mother, Ms. Veronica Flaherty, passed away on 11^th October 2008. Two other sisters, Ms. Mary McLaughlin and Ms. Helen Flaherty, will also be referred to herein. An attendance note of a meeting at the offices of Nicholas Ruck & Co Solicitors on 23^rd December 2008 where the contents of the late Ms. Flaherty's will were outlined is exhibited. The family home at 21 St. Catherine's Road, Killybegs, Co. Donegal was left to the first named appellant Catherine Payne, with her father, George Flaherty Senior, having a right of residence rent-free for as long as he wished.

3 The appellants' father subsequently sought to exercise his right of election under s.115 of the Succession Act and on 15^th January 2009 this was communicated to Nicholas Ruck & Co. Solicitors, who were acting in the administration of the estate. A large amount of correspondence over the subsequent months is exhibited and disputes in relation to a number of matters are referred to therein. A number of these matters are relatively minor but, in the context of such fraught family relations, seem to have been amplified into matters of considerable importance. It is also clear from this correspondence that the appellants' relationship with their sister, Ms. Mary McLaughlin, is a very difficult one.

4 By letter dated 1^st July 2009 from the respondent, Mr. Flaherty Senior sought to appropriate the family home and chattels therein pursuant to s.56 of the Succession Act 1965 and an issue arose in relation to whether or not there was consequently a conflict of interests on the part of the first appellant, who was an executrix. Correspondence continued on this and other points and a 'without prejudice' family meeting was eventually arranged for 17^th December. Mr. Flaherty Senior subsequently resisted this meeting, apparently on the basis that he was disappointed with the behaviour of the appellants. The respondent solicitor acted for Mr. Flaherty Senior at all material times and a great deal of correspondence from her office in relation to these divisive issues is exhibited.

5 Circuit Court proceedings were commenced by the appellants' father and a Civil Bill issued on 4^th November 2009. Extensive correspondence in relation to the Circuit Court matter is also exhibited. These protracted proceedings were eventually compromised on foot of a settlement agreement dated 31^st May 2011. The respondent solicitor acted for Mr. George Flaherty Senior at all times in these proceedings. The first appellant subsequently filed an affidavit on 19^th December 2011 which states that the respondent solicitor and Ms. Mary McLaughlin contacted another sister, Ms. Helen Flaherty, without her knowledge prior to the settlement agreement and...