O'Driscoll and Another v Law Society of Ireland and Another

• Jurisdiction: Ireland
• Judge: Mr. Justice William M. McKechnie
• Judgment Date: 27 July 2007
• Neutral Citation: [2007] IEHC 352
• Docket Number: 587 JR/2006
• Court: High Court
• Date: 27 July 2007

O'Driscoll & Grattan D'Estere ROberts v Law Society of Ireland & Solicitors Disciplinary Tribunal

IN THE MATTER OF THE SOLICITORS ACTS, 1954 to 2002

AND IN THE MATTER OF SECTION 9 OF THE SOLICITORS

(AMENDMENT) ACT, 1994

BETWEEN

GARY O'DRISCOLL AND GRATTAN D'ESTERRE ROBERTS

APPLICANTS

AND

THE LAW SOCIETY OF IRELAND AND THE SOLICITORS DISCIPLINARY TRIBUNAL

RESPONDENTS

[2007] IEHC 352

587 JR/2006

THE HIGH COURT

RESIDENTIAL INSTITUTIONS REDRESS ACT 2002

SOLICITORS (AMDT) ACT 1994 S9

SOLICITORS (AMDT) ACT 1994 S9(1)

SOLICITORS (AMDT) ACT 1994 S68

SOLICITORS (AMDT) ACT 1994 S68(1)

SOLICITORS (AMDT) ACT 1994 S68(3)

SOLICITORS (AMDT) ACT 1994 S68(6)

SOLICITORS (AMDT) ACT 1994 S8

SOLICITORS (AMDT) ACT 1994 S10

SOLICITORS (AMDT) ACT 1994 S11

SOLICITORS (AMDT) ACT 1994 S17

RSC O.84 r21(1)

DE ROISTE v MIN DEFENCE 2001 1 IR 1902001 2 ILRM 241 2001 ELR 33

SOLICITORS (AMDT) ACT 1994 S11(2)

ELM DEVELOPMENTS, STATE v BORD PLEANALA 1981 ILRM 108

MONAGHAN UDC v ALF-A-BET PROMOTIONS LTD 1980 ILRM 64

O'CEALLAIGH v BORD ALTRANAIS 2000 4 IR 54

NATIONAL IRISH BANKS LTD, RE 1999 3 IR 1451999 1 ILRM 321

MILEY v FLOOD 2001 2 IR 50

SOLICITORS (AMDT) ACT 1960 S3(c)

SOLICITORS (AMDT) ACT 1994 S24

SOLICITORS (AMDT) ACT 2002 S7

SOLICITORS (AMDT) ACT 1994 PART III

SOLICITORS (AMDT) ACT 2002 S9

SOLICITORS (AMDT) ACT 1994 S18

SOLICITORS (AMDT) ACT 1994 S7

SOLICITORS (AMDT) ACT 1994 S8(1)

SOLICITORS (AMDT) ACT 1994 S9(1)(a)

SOLICITORS (AMDT) ACT 1994 S9(1)(b)

SOLICITORS (AMDT) ACT 1994 S9(3)

SOLICITORS (AMDT) ACT 1994 S9(4)

HOLLAND, STATE v KENNEDY 1977 IR 193

CHILDRENS ACT 1908 A102(3)

ORANGE COMMUNICATIONS v DIRECTOR OF TELECOMMUNICATIONS REGULATION 2000 4 IR 159

O'NEILL v BEAUMONT HOSPITAL 1990 ILRM 419

DUBLIN & COUNTY BROADCASTING LTD v INDEPENDENT RADIO & TELEVISION COMMISSION (IRTC) UNREP MURPHY 12.5.1989

CONSUMER INFORMATION ACT 1978

1 Mr. Justice William M. McKechnie delivered the 27th July, 2007.

1. Background:

2 At all times relevant to the facts, matters and circumstances hereinafter referred to, both the first and second named applicants were the sole partners in a firm of solicitors known as Ahern Roberts Williams and Partners, which firm carried on business in the County and City of Cork.

3 The first named respondent is charged with the duties and obligations entrusted to it under the Solicitors Acts, 1954 to 2002. In short, it has the responsibility of educating and regulating the practice of, as well as representing solicitors. In order to so do, it has lawfully established a number of committees including one known as the Complaints and Client Relations Committee ("the CCR Committee" or "the Committee"). That committee is at the centre of the allegations made in this case.

4 The second named respondent is a statutory body, independent of the Law Society, which deals with unresolved complaints of misconduct against solicitors. Apart from receiving two applications (Form D.T.1), both dated the 4 ^th April, 2006, in which the Law Society sought an inquiry into certain allegations of misconduct against the applicants, the Solicitors Disciplinary Tribunal ("the Tribunal" or "the Disciplinary Tribunal") has taken no further or other step in the disciplinary process. It therefore played no part in the lead up to these proceedings and as a result has made no independent submissions in this case.

5 2. In 2002, the Oireachtas enacted the Residential Institutions Redress Act, 2002. The purpose of this Act was to provide a statutory framework by which any person, who had suffered abuse whilst resident in a nominated institution, could seek compensation in respect thereof. To implement this scheme, the Act established the "Residential Institutions Redress Board" ("the RIRB" or "the Redress Board") to deal with all such applications. The firm of Ahem Roberts Williams and Partners had approximately seven clients in all who sought redress under the Act. These included a Mr. N. O'S. and a Mr. D.P., both of whom subsequently contacted the Law Society about the fees which their solicitors had charged them.

6 3. Having received an offer of compensation acceptable to their client, Mr. N.O'S, the applicant solicitors submitted a bill of costs to the Redress Board on the 6 ^th October, 2003. In that bill, a professional fee of €8, 510, exclusive of V.A.T., was sought in respect of the services provided. On the 16 ^th October the Redress Board, as against that item, offered €6, 000, excluding V.A.T. On the 5 ^th November, 2003, a second or amended bill of costs was sent to the Board in which this offer was accepted. That left a shortfall in the sum of €2, 510, which was then sought directly from the client by way of a supplementary bill dated the 5 ^th November, 2003. Together with V.A.T. the entire sum came to €3, 037.10.

7 4. A similar situation arose with regard to a second client, namely, Mr. D.P. On the 4 ^th May, 2004, a bill of costs was sent to the Board in which a professional fee of €11, 500 plus V.A.T. was sought. The offer, dated the 11 ^th May, suggested a sum of €8, 800 plus V.A.T. This figure was accepted on the 12 ^th May and confirmed by the issue of a second, or amended bill of costs. On the 28 ^th May, 2004, the applicants sought from Mr. D.P. the sum of €3, 500, which they described as being the "shortfall" in their professional fee. Together with V.A.T., the total sum claimed was €4, 235.00. No point has been taken on the accuracy of this figure.

8 It was the seeking of these sums by the applicants from their respective clients, which ultimately led to the Law Society's involvement in this matter.

Adjudication on Complaints

9 5. With regard to Mr. N.O'S. the following events took place in 2005:-

* 13/10/05 This client makes telephone contact with the Law Society in respect of the aforesaid charge of €3, 037.10: The actual date may be the 18/10/05 (see Exhibit LK2 in Ms. Kirwan's affidavit of the 25 ^th July, 2006).

* 18/10/05	The applicants, unaware of this complaint, write to Mr. N.O'S. and indicate that if he is not satisfied with the charge, he should contact them immediately so that the matter can be resolved to his satisfaction.
* 25/10/05	The Law Society, in its letter to the firm in question, gives notice that it had received a complaint in respect of these legal fees; that it requires a copy of the entire file and all other relevant documentation and that the matter would be dealt with by the CCR Committee on the 10 th November, 2005.
* 03/11/05	The information requested is supplied.
* 10/11/05	A hearing takes place before the CCR Committee at which Mr. Colm O'Rourke, the then managing partner of the firm, attends. Mr. O'Rourke confirms that the monies in question would be refunded because appropriate procedures may not have been followed, although the firm retained the view that the fees charged were justified. At the conclusion of the hearing, the Committee found that the fees were excessive and should be refunded. It also decided that there was evidence of misconduct which warranted a referral to the Disciplinary Tribunal. (Emphasis added).
* 15/11/05	The Law Society formally writes to the solicitors in question setting out in part the conclusions previously reached by the said Committee.

10 6. With regard to Mr. D.P., the following similar events also took place in 2005:-

* 18/10/05	The applicants write to Mr. D.P., indicating that if he is not satisfied with the aforementioned charge, he should contact them immediately so that the matter can be resolved to his satisfaction.
* 08/11/05	Mr. D.P. writes to the Law Society and having referred to an unspecified solicitor and client charge, asks that society to let him know "how he stands" in relation to this matter.
* 24/11/05	The Law Society writes to the solicitors on the 25 th October, 2005 and seeks the same information which it had previously sought in relation to Mr. N.O'S. on the 25 th October, 2005. In addition, the letter indicates that the matter would be dealt with by the CCR Committee on the 15 th December, 2005.
* 30/11/05	The solicitors respond to the Law Society and raise a number of queries.
* 06/12/05	The applicants furnish the information as requested.
* 08/12/05	The Law Society purports to reply to the queries raised on the 30 th November, 2005.
* 15/12/05	At the meeting of the CCR Committee, both Mr. O'Driscoll and Mr. Roberts were represented by independent solicitor and counsel. Having indicated their intention to repay the money, together with interest and an apology, counsel on their behalf referred to s. 9 of the Solicitors (Amendment) Act, 1994 and requested the Committee, in accordance with that section, "to take appropriate steps" to resolve the matter by agreement

between the parties. At the conclusion of the hearing the Committee decided that the fees charged were excessive and should be refunded. Moreover, it also decided to refer this matter to the Disciplinary Tribunal.

11 7. To put the later correspondence into context, it is necessary to refer in more detail to:

12 (a) the Law Society's letter of the 25 ^th October, 2005, which letter can be taken as applying to both clients;

13 (b) the minute of the Committee's inquiry dated the 10 ^th November, 2005, in relation to Mr. N. O'S.; and

14 (c) the minute of its hearing dated the 15 ^th December, 2005, in relation to Mr. D.P.

15 Because of its importance to this case the said letter of 25 ^th October should be quoted in full:-

"Dear Sir"

16 The Law Society have been contacted by … [Mr. N. O'S.] concerning legal fees in connection with your client's application to the … RIRB. Accordingly, the Law Society has commenced an investigation into this matter....