Fitzgibbon v Law Society

JurisdictionIreland
CourtSupreme Court
JudgeDenham C.J.,Mr Justice William M. McKechnie,Mr. Justice Clarke
Judgment Date29 July 2014
Neutral Citation[2014] IESC 48
Docket Number[S.C. Nos. 518 & 519 of 2012],Appeal No: 518/2012
Date29 July 2014

In the matter of the Solicitors Acts 1954 to 2008

In the matter of Anne Fitzgibbon Solicitor

Between/
Anne Fitzgibbon
Appellant
And
Law Society of Ireland
Respondent

[2014] IESC 48

Denham C.J., McKechnie J., Clarke J.

Appeal No: 518/2012

THE SUPREME COURT

Appeal – Law Society –Practice and Procedures – Professionalism – Excessive Fees – Financial Matters – Expertise – Solicitor – Complaints – de novo hearing – Deference

Facts: This case was an appeal from a decision of Kearns P. given in the High Court on the 7th November 2011. That decision was on a preliminary point regarding the scope of an appeal from decisions of the Complaint and Client Relations Committee of the Law Society (“the Committee”) in 2011. The principal proceedings within which this matter arose, came before the High Court as a result of sanctions imposed on the appellant, Ms Fitzgibbon, a solicitor, by the Committee for inadequate professional services and for charging excessive fees in respect of different clients: the inadequate services complaint was made by a Mr Cleary and that relating to excessive fees, jointly by Mr Hoary and Ms Quinn. The preliminary issue which the learned President was called upon to decide, related to the scope of the appeal and whether it should consist of a de novo hearing, or be restricted to revising, in some form, the decisions of the Committee. Kearns P. held against the former contention and in favour of the latter: it is that decision alone which was the subject of this appeal. The appellant submitted that the Committee was not a committee to which curial deference should have been afforded. It was claimed that the remuneration of solicitors was matter for the Taxing Master rather than the Society. The appellant also submitted that the findings made against her were not matters for curial deference, meaning that deference should have been exercised by the Court in respect of the findings of the Committee, but rather that they were matters of statutory interpretation, which were within the jurisdiction of the courts. The appellant also argued that due to the method by which the Committee operated, and the adverse consequences which a finding against a solicitor had for that individual, the minimum requirement to comply with fair procedures should be an appeal in the format of a de novo hearing involving oral evidence. To that extent, s. 11(1) of the 1994 Act and Order 53, Rule 16 of the RSC should be given an extremely broad meaning, as the primary concern should always be to ensure that the rights of an aggrieved person should be sufficiently protected. Furthermore, the appellant submitted that according to the principle of audi alteram partem she should have been permitted to produce oral evidence in response to the complaints made against her. Finally Ms Fitzgibbon further highlighted that the Committee had the option of referring the complaints in her case to the Solicitors Disciplinary Tribunal “The Disciplinary Tribunal”), which was a statutory, independent body, which hears matters by way of de novo hearing, with the burden of proof being on the complainant. The respondent pointed out that there was no express guidance in the 1994 Act as to the format of the appeal under s. 11(1). The Society claimed that the decision of the President of the High Court was correct in that matter and that if the legislature had intended that a de novo appeal should take place, this would have been expressly provided for in the Act. The respondent submitted that support for a limited form of appeal was to be found in Order 53 of the RSC. It was further submitted in this regard, that Order 53 and s. 11(1) of the 1994 Act were coherent. The respondent also claimed that the fact that the appeal under s. 11(1) of the 1994 Act was between the solicitor and the Society, rather than the solicitor and the complainant, highlighted that the legislature did not intend to provide for a de novo hearing. The Society referred to the authorities cited in the decision of Finnegan P. in Ulster Bank and fully supported the reliance thereon by the President of the High Court in this case. It submitted that the President was correct in his finding that curial deference should be extended to the Committee, on the basis that the legislature had entrusted the investigation of certain complaints to the Society, rather than the courts, and that the Society had established the Committee to carry out this duty. Finally, the respondent also made the submission that the appellant never raised any issue of unfairness in the procedure adopted by the Committee during the course of its investigation, nor did she make that point in her grounds of appeal to the High Court.

Held by Justice McKechnie in light of the relevant case-law and legislative provisions that the appellant had a full right of participation in, and in fact heavily engaged with, the statutory process, which gave rise to the adverse decision standing against her. The Court was satisfied that the Committee was a body to which a degree of appreciation should be shown. Consequently, the submission made by the appellant that it was not such a body was not accepted. Justice McKechnie was also satisfied that the High Court had full jurisdiction to regulate the manner in which issues before it were dealt with. It was reasoned that Ms. Fitzgibbon was heard by the Committee in every sense of the term and that the President of the High Court had ample power for the purposes of the appeal to ensure that what justice demands, justice would get. Consequently, the appeal was dismissed.

Denham C.J.
Judgment delivered on the 29th day of July 2014, by Denham C.J.
1

1. This is an appeal by Anne Fitzgibbon, the appellant, referred to as “the appellant”, from the ruling of the High Court (Kearns P.) of the 7th November, 2012, which found that an application to the High Court by a solicitor under s. 11(1), (3) and/or (4) of the Solicitors (Amendment) Act, 1994, fell to be dealt with as a review of a specialist tribunal and not as a de novo hearing with the burden of proof on the Law Society of Ireland, the respondent, referred to as “the respondent”; and from the order awarding the costs of the hearing of the 7th November, 2012, to the respondent.

2

2. The appellant is a solicitor who has been sanctioned by the Complaints and Client Relations Committee of the Law Society in relation to two separate complaints.

3

3. The appellant appealed to the High Court against the findings and sanctions imposed, by bringing an appeal under s. 11(1) of the Solicitors Amendment Act, 1994.

4

Preliminary Issue

5

4. A preliminary issue arose in the High Court as to the nature of the hearing.

6

5. The President of the High Court had previously directed on the 5th March, 2012, and on the 7th July, 2012, that witnesses be summoned and that oral evidence be heard.

7

High Court Ruling

8

6. On the preliminary issue, the President of the High Court held that the format of the appeal would be that of a review of a specialist tribunal whereby the finding would be reviewed and oral evidence would be called only if necessary.

9

7. The President ruled on the preliminary issue, holding:-

“I’m satisfied, firstly, that the format of this appeal is a fairly limited appeal, notwithstanding that the Court may, if it deems necessary, during the course of the hearing to receive oral evidence; that is apparent, it seems to me, from the terminology of the section under which this appeal is brought. Both appeals in this case are made pursuant to section 11(1) of the Solicitors Amendment Act, 1994.”

10

8. The President referred to the terms of s. 11(1) of the Solicitors Amendment Act, 1994; Order 63 r. 15 of the Rules of the Superior Courts; Ulster Bank Investment Funds Ltd v. Financial Services Ombudsman [2006] IEHC 323; Orange v. The Director of Telecommunications Regulations and Meteor Mobile Communications Limited (No. 2) [2000] 4 I.R. 159; M. & J. Gleeson & Co. v. Competition Authority (H.C.) [1999] 1 I.L.R.M. 401.

11

9. The President held:-

“I think that the committee here can be regarded as an expert committee in respect of which curial deference should be extended, and I think the test for a review of this particular decision is that as indicated by Mr Justice Finnegan on the 1st of November 2006 in the Ulster Bank case.

Even if I am mistaken in that view, I am quite satisfied that the section of the Act, in other words section l1(1) of the Solicitors Amendment Act 1994, in its terminology clearly envisages something other than a de novo appeal because, if it intended such an appeal it would have simply said that an appellant will enjoy a full right of appeal from any decision of the Complaints and Client Relations Committee, to the High Court, and the same shall consist of a rehearing. I believe in respect of an appeal from the Circuit Court to the High Court, from recollection, a similar form of wording appears in the relevant legislation. The very terminology of the section itself, whereby, on review, this Court can rescind or vary a determination, I think is very suggestive that the Court has a relatively limited role and, indeed, that approach makes perfect common sense, because otherwise the High Court might be involved in endless re-hearings of matters which have been fully ventilated and considered, and in respect of which the material is available for the Court from the proceedings before the Complaints and Client Relations Committee.

So, for all those reasons, I'm of the view that I must resolve this particular point in the manner suggested by counsel for the respondents, and I so find.”

12

Notice of Appeal

13

10. In a notice of appeal the following grounds were set out:-

1. The learned judge erred in fact and in law in holding that the Complaints and Client Relations Committee of the Law Society,...

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