O'Duffy v The Law Society of Ireland

• Jurisdiction: Ireland
• Judge: Mr. Justice Kelly
• Judgment Date: 03 December 2004
• Neutral Citation: [2004] IEHC 372
• Court: High Court
• Docket Number: [2003 No. 143 JR]
• Date: 03 December 2004

[2004] IEHC 372

THE HIGH COURT

[2003 No. 143 JR]

[2004]IEHC 3720

KIRAN P. O'DUFFY v. LAW SOCIETY OF IRELAND

JUDICIAL REVIEW

BETWEEN

KIRAN P O'DUFFY

APPLICANT

AND

THE LAW SOCIETY OF IRELAND

RESPONDENT

Citations:

SOLICITORS (AMDT) ACT 1994 S68

SOLICITORS ACCOUNTS REGULATIONS NO 2/1984 SI 304/1984 REG 7

SOLICITORS ACCOUNTS REGULATIONS NO 2/1984 SI 304/1984 REG 10

SOLICITORS ACT 1954 S66

SOLICITORS (AMDT) ACT 1994 S76

SOLICITORS (AMDT) ACT 1994 S76(10)

SOLICITORS ACCOUNTS REGS 2001 SI 421/2001 REG 7(2)

SOLICITORS ACCOUNTS REGS 2001 SI 421/2001 REG 7(9)(iii)

SOLICITORS (AMDT) ACT 1994 S68(9)

SOLICITORS (AMDT) ACT 1994 S76(13)

SOLICITORS ACCOUNTS REGS 2001 SI 421/2001 REG 20(1)(b)

SOLICITORS ACCOUNTS REGS 2001 SI 421/2001 REG 12(3)(a)

O'CEALLAIGH V BORD ALTRANAIS 2000 4 IR 54

NATIONAL IRISH BANKS LTD, RE 1999 3 IR 145 1999 1 ILRM 321

SOLICITORS ACT 1954 S66(10)

SOLICITORS ACT 1954 S66(1)

SOLICITORS (AMDT) ACT 1994 S6

SOLICITORS ACCOUNTS REGS 2001 SI 421/2001 REG 28(1)

SOLICITORS ACCOUNTS REGS 2001 SI 421/2001 REG 28

FLOOD V GARDA SIOCHANA COMPLAINTS BOARD 1997 3 IR 321

SOLICITORS (AMDT) ACT 1994 S68(1)

SOLICITORS ACT 1954 S66(11)

SOLICITORS (AMDT) ACT 2002 S3

SOLICITORS ACT 1954 S66(18)

SOLICITORS ACCOUNTS REGS 2001 SI 421/2001 REG 20

SOLICITORS ACCOUNTS REGS 2001 SI 421/2001 REG 12(1)

KENNEDY V LAW SOCIETY OF IRELAND & ORS 2002 2 IR 458

Abstract:

Judicial review - Certiorari - Whether the respondent breached the applicant’s rights by referring a report into the conduct of the applicant to a Disciplinary Tribunal -Solicitors (Amendment) Act, 1994 .

The applicant who was a Solicitor was the subject of an investigation by the Law Society. The respondent appointed an investigating accountant to investigate the applicant’s practice. That investigation was conducted as part of the respondent’s ongoing policy of inspection of solicitor’s practices. Subsequently, the applicant sought an order of certiorari by way of an application for judicial review to quash a decision of the Compensation Fund Committee - Finance Section of the respondent, whereby it decided to refer the report of the investigating accountant into the conduct of the applicant to the Disciplinary Tribunal.

Held by Kelly J. in dismissing the application:

1. That the decision here to refer the matter to the Disciplinary Tribunal did not in and of itself affect the rights of the applicant. The Compensation Fund Committee did not breach any of the applicant’s entitlements to fair procedures by deciding to refer the report to the Disciplinary Tribunal.

2. That the court would only be permitted to set aside the decision of the respondent to conduct an investigation of the applicant’s practice if it were shown to have been made unlawfully. In the present case there was no evidence to show that the decision to order an inspection was irrational, mala fide, in breach of the statutory requirements or disproportionate and accordingly it should not be set aside.

3. That the applicant was notified in advance of the inspection and it was made clear to him what the purpose of the inspection was. There was no improper or unlawful search of the applicant’s premises nor was there any necessity to obtain the specific authority of the applicant to inspect such files as the investigating accountant did.

Reporter: L.O’S.

JUDGMENT of

Mr. Justice Kelly

1 delivered the 3rd day of December, 2004.

2 The applicant seeks an order ofcertiorari to quash a decision of the Compensation Fund Committee - Finance Section of the respondent (the Law Society) dated the 5^th December, 2002, whereby it decided to refer a report of an investigating accountant into the conduct of the applicant to the Disciplinary Tribunal.

3 Leave was given by O'Donovan J. to seek a variety of other orders in addition to the one to which I have just referred. Counsel for the applicant accepts that these do not fall for consideration. Either they are ancillary to the application forcertiorari already referred to or alternatively cannot as a matter of law be granted. Amongst those in this latter category is an application forcertiorari to quash the report of the investigating accountant.

4 Leave was given to pursue a claim for damages. It was agreed that that element of the case would be stood over to abide the result of the application forcertiorari.

5 The applicant is a solicitor who has been in practice for well over twenty years. In 1985 he went into partnership with James Quinn Solicitor and practised under the name of O'Duffy Quinn Solicitors. In July, 1996, that partnership was dissolved. Since that time he has practised as a solicitor under the style of O'Duffy and Associates. That practice is carried on at 10 Blessington Street, Dublin 7.

6 The applicant was the subject of an investigation by the Law Society while he was in partnership with Mr. Quinn. That investigation followed a complaint from a client of that firm regarding a payment of hospital fees in a personal injury claim. It was found,inter alia, that the firm operated a client loan scheme and that solicitor/client fees deducted were being lodged to the personal accounts of the partners. At a meeting of the Compensation Fund Committee held on the 6^thApril, 1995, counsel for the applicant and his partner stated that he had advised his clients of the contents of the Solicitors (Amendment) Act, 1994and that in future all the documentation on file would be in accordance with the necessary requirements.

7 The subsequent inspections with which this judgment is concerned were not triggered or brought about in any way by reference to this first inspection. The matter is relevant only to demonstrate that the applicant was fully au fait, thanks to his counsel's advice, with his statutory obligations as a solicitor. He also had a familiarity with the procedures followed by an investigating accountant appointed by the Law Society to conduct an inspection of a solicitor's practice.

8 In January, 2001, the Law Society appointed Mary Devereux as investigating accountant to investigate the applicant's practice. That investigation was conducted as part of the Law Society's ongoing policy of inspection of solicitor's practices.

9 Mary Devereux is a Fellow of the Institute of Chartered Accountants. She has been employed as an accountant by the Law Society for twenty two years. In that time she has conducted of the order of six hundred investigations into solicitors' practices.

10 At no time did the applicant make any complaint concerning this inspection or the report which was prepared on foot of it.

11 Ms. Devereux prepared a report on her inspection which was dated the 9^th March, 2001. She raised a number of matters of concern in that report. Some were more serious than others. One of the more serious was that the applicant maintained his own personal account in the client ledger which at times went into debit. The effect of that was that the applicant was using general client funds for his personal use. Neither that finding nor indeed any of the other findings in Ms Devereux's report have ever been contested by the applicant.

12 The report of Ms. Devereux was considered by the Compensation Fund Committee of the Law Society. That Committee directed that the findings and recommendations as detailed in Ms. Devereux's report be brought to the applicant's attention. Accordingly on the 23^rd May, 2001, the applicant was written to by the Law Society and was sent a copy of the report. The letter to him inter alia said as follows:-

"The Committee noted in particular that you maintained a personal account in the client ledger which at times went into debit in breach of Regulation 7 of the Solicitor's Account Regulations No. 2 of 1984. The Committee considered this a serious breach of the regulations and instructed that you confirm that your personal transactions will no longer be transacted through clients account.

The Committee also noted that the practice books of account were not maintained in accordance with Regulation 10 of the Regulations, in respect of some clients, who had a number of matters ongoing at any one time. The Committee directed that separate ledger accounts not one general ledger account for all matters should be opened and maintained for each matter/transaction.

The Committee also instructed that your attention be drawn to the provisions of s. 68 of the Solicitors (Amendment) Act,1994and that you should take all necessary steps to ensure that your practice is fully compliant with the said provisions.

I take this opportunity to thank you for the cooperation and assistance afforded by you to Mary Devereux, the investigating accountant, and I would be glad if you would acknowledge receipt of the report, at your convenience."

13 Although that letter in two separate places quite clearly sought a response from the applicant none was forthcoming. Indeed in a replying affidavit sworn by him on the 3^rd June, 2003, he said:-

"Although on the face of it the said letter does not call for a response I in fact responded in or about June 2001 in writing to the said letter. I have been unable to locate a copy of this letter but recollect very clearly dictating same to my secretary and recall informing the respondent that I was in receipt of their report and furthermore that I would take steps to comply with the directions of the Compensation Fund of the Law Society."

14 The applicant was cross examined on his affidavits before me pursuant to an order of Quirke J. made on 26^th January, 2004.

15 His assertion on oath in the course of his affidavit that this letter on the face of it did not call for a response is plainly wrong. Having had the opportunity of listening to and observing him during the course of his cross-examination I regret to say that I do not believe that he ever responded or attempted to respond to the letter....