E.G v Society of Actuaries in Ireland

• Jurisdiction: Ireland
• Judge: Mr. Justice McDermott
• Judgment Date: 16 June 2017
• Neutral Citation: [2017] IEHC 392
• Docket Number: [2013 No. 973 JR.]
• Court: High Court
• Date: 16 June 2017

[2017] IEHC 392

THE HIGH COURT

JUDICIAL REVIEW

McDermott J.

[2013 No. 973 JR.]

BETWEEN

E.G.

APPLICANT

AND

THE SOCIETY OF ACTUARIES IN IRELAND

RESPONDENT

Estate – Society of Actuaries in Ireland – Evidence of misconduct – R. 4.27(b) of the Disciplinary Tribunal of the Society of Actuaries in Ireland – Fair procedures

Facts: The applicant sought an order of certiorari for quashing the finding of the respondent that there was a prima facie evidence of misconduct against the applicant. The applicant's brother had filed a complaint against the applicant with the Society of Actuaries in Ireland alleging misconduct against the applicant while managing the financial affairs of the estate of his deceased brother and mother. The applicant claimed that he was not practicing actuary in relation to the matters complained of, and therefore, the findings of misconduct were unlawful. The applicant alleged breach of fair procedures as the Investigating Committee had denied him an opportunity for an oral hearing.

Mr. Justice McDermott refused the applicant's application. The Court held that the Investigating Committee had complied with all its obligations to provide fair procedures to the applicant. The Court found that the applicant was given the notice of hearing, he had the assistance of counsel, a detailed exchange of documentation had taken place and the said Committee had given reasoned decision. The Court observed that there was no obligation on the said Committee to conduct an oral hearing at the investigative stage. The Court found that there was no finding of fact against the applicant and he would be given a chance for oral hearing before the Disciplinary Tribunal under the relevant disciplinary scheme.

JUDGMENT of Mr. Justice McDermott delivered on the 16th day of June, 2017

1 The applicant was granted leave to apply for judicial review (Kearns P.) on the 20th December, 2013 to seek orders of certiorari quashing a determination by the respondent communicated to the applicant by letter dated 26th November, 2013 that there was prima facie evidence of misconduct based upon a complaint made against him by his brother J.D.G., and a further decision to refer the matters contained in a ‘Case Report’ of the Investigative Committee established to investigate the complaint to a Disciplinary Tribunal of the Society of Actuaries in Ireland in accordance with rule 4.27(b) of the Disciplinary Scheme of the Society. Time was extended for the issuing of the notice of motion in accordance with the order granting leave (Peart J.) on 17th February, 2014. Subsequently, by consent, an order was made (Kearns P.) on 21st July, 2014 granting liberty to the applicant to deliver an amended statement of grounds and permitting the case to proceed by way of plenary proceedings having regard to the raising of an issue that the decisions of the respondent were not amenable to judicial review as they were matters of private law. The applicant delivered an amended statement of grounds on the 30th July, 2014 and an amended statement of opposition was furnished on 11th September, 2014.

Background

2 The respondent Society is a company incorporated in Ireland limited by guarantee. The applicant is an Associate Member of the Society under Article 8 of its Articles of Association. The applicant became an Associate Member of the Society under the terms of Article 9 and has been a member since 2nd September, 1993. Article 9(a)(iii) provides that:-

‘Every member of whatever category shall be bound to further to the best of his ability the objects, interests and influence of the Society and shall observe all Bye-laws.’

The bye-laws are defined in Article 1(b):-

‘Bye-laws’ means unless the context otherwise requires, all bye-laws, rules and regulations of the Society made pursuant to the provisions contained in these articles, as such bye-laws, rules and regulations may be amended and be in force from time to time and for the time being’.

3 The Council of the Society is vested with the management of the Society's affairs under Article 38. Article 46 provides:-

‘In addition, the Council may make, alter and repeal such Bye-laws, rules and regulations relating to professional conduct (including professional discipline) to be observed by all Members as the Council may consider necessary for attaining the objects of the Society, … provided that no Bye-laws, rules and regulations so made by the Council and no alteration or repeal thereof so made by the Council shall be operative or have effect until the same shall have been approved at a meeting of the Council specially convened for that purpose, and subsequently approved and adopted by a special resolution of the Society and provided further that no Bye-laws, rules or regulations made under this Article shall be repugnant to or inconsistent with the Society's Memorandum of Association or with these Articles, …’

4 A Disciplinary Scheme for the Society was approved by the members and came into effect on 1st September, 2006. That Scheme was amended at an extraordinary general meeting held on 15th September, 2011: the amended scheme became operative on 16th September.

5 The applicant, as a member of the Society was bound by the bye-laws, rules and regulations of the Society including the ‘Disciplinary Scheme’ as adopted.

The complaint

6 The respondent wrote to the applicant enclosing documentation which had been received from his brother J.D.G. dated 13th June 2012, making allegations of misconduct against him in respect of his handling of the financial affairs of his late mother, C.G., and her estate and the financial affairs and estate of his late brother J.G.G. The allegations were considered by the Society's Committee on Professional Conduct pursuant to the rules of the Society's Disciplinary Scheme a copy of which was attached. The letter informed the applicant that the Committee on Professional Conduct was establishing an Investigating Committee to examine the matter pursuant to the Rules of the Scheme.

7 On the 5th August, 2012 the respondent wrote again to the applicant pursuant to rule 4.16 of the Disciplinary Scheme to inform him of the appointment of an Investigating Committee under rule 2.3 to investigate the complaint. The complaint related to his alleged professional conduct in dealing with the affairs of his late brother J.G.G. A copy of the complaint together with a copy of the Disciplinary Scheme was enclosed and copies of the Society's Code of Professional Conduct and the Professional Conduct Standard that applied prior to the Code coming into effect in November 2010. The applicant was informed of the identity of the three individuals who were appointed to the Investigating Committee in accordance with rule 4.9 of the Scheme and that it would convene as soon as possible. The writer Mr. Alfie Shaw was appointed as executive secretary to the Investigating Committee.

8 By letter dated 17th September, 2012 the applicant was informed that the Investigating Committee had considered the complaint and was seeking clarification from J.D.G in respect of a number of issues. The Committee also raised a number of issues with the applicant. These concerned the applicant's dealings with his late brother prior to his death. In particular, he was asked to confirm whether he asked his late brother to sign a statement(s) on 18th September, 2008 (set out below) and if he did, to set out the circumstances in which that occurred and whether he advised his late brother to seek independent legal advice before signing it and whether he received such advice. Further queries were raised in relation to his state of knowledge in relation to his brother's medical condition. He was asked whether he knew that his brother had been hospitalised with motor neurone disease and whether he considered that the document of the 18th September 2008 should have been witnessed. He was asked to explain the statement in the document ‘that (J.G.G's) financial affairs were properly dealt with in accordance with his mother's will’. The Committee sought confirmation as to whether the late J.G.G. was the applicant's client or that of his company and if so, whether he provided a mandate to act on his behalf. Information was requested concerning an alleged failure to reply to a request by J.D.G in 2007 for information concerning J.G.G's assets in circumstances where he had given permission for the provision of this information to his brother J.D.G. It also sought comment in relation to an alleged failure to reply to requests made by his late brother on 6th May, 2008 and his late brother's solicitors of 8th September, 2008 for information concerning his financial affairs. Information was also requested in relation to funds said to have been held in the joint names of the applicant and the late J.G.G. with Irish Life and how the proceeds of that investment came to be credited to a joint account maintained by him and his late brother and were subsequently withdrawn. The Committee also sought information about what was done with these funds and details of any other funds invested on behalf of the late J.G.G. Records in relation to any funds received from the late J.G.G. or from others on his behalf or monies paid to him or others on his behalf were also sought. Further information was sought in relation to the administration of the estate of the applicant's late mother C.G.

9 The applicant furnished an eleven page reply by letter dated 5th November, 2012. He set out an account of his involvement in his late mother's and late brother's financial affairs. He stated that his mother requested that he make certain investments on her behalf during her life-time for her benefit and that of his brother J.G.G. up to the date of her death on 1st December 1998. Her wish was that these and further investments should be made to secure her and J.G.G's...