Incorporated Law Society of Ireland v Carroll

• Jurisdiction: Ireland
• Judge: Mr. Justice Francis D. Murphy
• Judgment Date: 24 January 1995
• Neutral Citation: 1995 WJSC-HC 879
• Court: High Court
• Docket Number: 8169 P/1993
• Date: 24 January 1995

1995 WJSC-HC 879

THE HIGH COURT

8169 P/1993

INCORPORATED LAW SOCIETY v. CARROLL

BETWEEN

THE INCORPORATED LAW SOCIETY OF IRELAND

PLAINTIFF

AND

GODFREY CARROLL, EAMON CARROLL, JOHN CARROLL, ANNA-MARIE GOVERN AND CHRISTOPHER RYAN

DEFENDANTS

Citations:

SOLICITORS ACT 1954 S55(1)

SOLICITORS ACT 1954 S55(3)

SOLICITORS ACT 1954 S56(1)

SOLICITORS ACT 1954 S56(2)

SOLICITORS ACT 1954 S59(1)

SOLICITORS ACT 1954 S59(1)(a)

SOLICITORS ACT 1954 S59(1)(b)

SOLICITORS ACT 1954 S59(1)(c)

ROAD TRAFFIC ACT 1960 S33 UK

GRAYS HAULAGE CO LTD V ARNOLD 1966 1 WLR 534

JAMES & SON LTD V SMEE 1955 1 QB 78

MAGUIRE V SHANNON REGIONAL FISHERIES 1994 2 ILRM 253

FISHERIES (CONSOLIDATION) ACT 1959 S171(1)

AG V PAPERLINK 1984 ILRM 373

CONSTITUTION ART 31.3

AG V CHAUDRY 1971 1 WLR 1614

GOURIET V UPW 1978 AC 435

PARSONS V KAVANAGH 1990 ILRM 560

LOVETT V GOGAN 1995 1 ILRM 12

O'R V O'R 1985 IR 367

SOLICITORS ACT 1954 S59

SOLICITORS ACT 1954 S14

SOLICITORS ACT 1954 S77

Synopsis:

ACTION

Cause

Statute - Provisions - Conduct - Prohibition - Offence - Creation - Civil action brought by Law Society - Claim for order restraining defendant from repeating offence - Claim for order restraining solicitor repeating prohibited act - Claims dismissed - Solicitors Act, 1954, ss. 55, 56, 59 - (1993/8169 P - Murphy J. - 24/1/95) - [1995] 3 IR 145

|Incorporated Law Society of Ireland v. Carroll|

HIGH COURT

Jurisdiction

Exercise - Refusal - Grounds - Plaintiff - Complaint - Procedure to obtain remedy - Appropriate remedy provided by statute - Civil action by Law Society inappropriate - Claim for order restraining solicitor from repeating prohibited act - Claim dismissed - (1993/8169 P - Murphy J. - 24/1/95) - [1995] 3 IR 145

|Incorporated Law Society of Ireland v. Carroll|

INCORPORATED LAW SOCIETY

Functions

Solicitor - Discipline - Breach - Remedy - Civil action - Propriety - Unqualified person represented himself to be a solicitor - Criminal offence - Whether society entitled to injunctions in civil proceedings - (1993/8169 P - Murphy J. - 24/1/95)1995 3 IR 145

|Incorporated Law Society of Ireland v. Carroll|

PROFESSIONS

Solicitors

Discipline - Breach - Remedy - Civil action - Propriety - Unqualified person represented himself to be a solicitor - Criminal offence - Whether Law Society entitled to injunctions in civil proceedings - (1993/8169 P - Murphy J. - 24/1/95) - [1995] 3 IR 145

|Incorporated Law Society of Ireland v. Carroll|

.Mr. Justice Francis D. Murphy

Mr. Justice Francis D. Murphy

1 In the Statement of Claim herein dated the 10th of January, 1994 the Incorporated Law Society of Ireland (the Society) alleges that the first and thirdly named Defendants are directors of and shareholders in a Company known as "Associated Consultants Compensation Services Limited" and that both of them carry on or did carry on business at 109, Lower Dorset Street in the City of Dublin. It was asserted that the fourthly named Defendant, Anna-Marie Govern (Ms. Govern) was an employee of the first and thirdly named Defendants in the business carried on by them in Dorest Street. It was claimed and accepted that the secondly named Defendant, Eamon Carroll, was admitted by the Plaintiffs as a Solicitor's apprentice on the 7th day of January, 1991; that he resided at 10, Nutly Avenue, Donnybrook in the City of Dublin and that he was apprenticed to the fifthly named Defendant, Christopher Ryan, who was at all material times a practising Solicitor. It was agreed and admitted by or on behalf of the Defendants that none of them (other than Mr. Christopher Ryan) was a Solicitor subject to the qualification that Mr. Eamon Carroll was, of course, at all material times a Solicitor's apprentice.

2 The Statement of Claim purports to set out the effect of certain sections of the Solicitors Act,1954and it is important to set out the actual terms of the sections cited insofar as they are material, namely:-

"55(1) An unqualified person shall not act as a Solicitor. —"

(3) A person who contravenes subsection (1) of this section in relation to a Court of Justice shall also be guilty of contempt of that Court and shall be punishable accordingly.

3 56(1) A person who is not a Solicitor shall not pretend to be a Solicitor or take or use any name, title, addition or description or make any representation or demand implying that he is a Solicitor.

4 (2) A person who contravenes subsection (1) of this section shall be guilty of an offence under this section and shall be liable on summary conviction thereof to a fine not exceeding £50.

59(1) A Solicitor shall not wilfully:-

5 (a) act, in business carried on by him as a Solicitor, as agent for an unqualified person so as to enable that person to act as his Solicitor,

6 (b) permit his name to be made use of, in business carried on by him as a Solicitor, upon the account, or for the profit of, an unqualified person, or

7 (c) do an act enabling an unqualified person to act as a Solicitor.

8 —".

9 The wrongdoings then alleged to have been perpetrated by the first, second, third and fourthly named Defendants are set out in paragraphs 11 and 12 of the Statement of Claim in the following terms:-

10 2 "11. In and during the last three years the first, second, third and fourth named Defendants herein have in the course of carrying on business from premises at 109, Lower Dorset Street in the City of Dublin, individually represented themselves to members of the public and to other third parties to be qualified members of the Solicitors” profession and have held themselves and each other out as Solicitors practising in association with each other under the style of ACS and/or in association with the fifth named Defendant herein trading under the name and style of Chris Ryan & Co.

11 12. Further, the first, second, third and fourth named Defendants have each individually and upon each other's behalf acted so as to induce members of the public and other third parties to believe that they are parties qualified to act as Solicitors. The first, second, third and fourth named Defendants, for the purposes of representing themselves to be Solicitors for the purposes of earning profits in such capacity have furnished members of the public and other third parties with documents purporting to emanate from the Solicitors practice of Chris Ryan and Co. including correspondence and business cards emanating from the practice of Chris Ryan and Co.".

12 As against the fifthly named Defendant, Mr. Ryan, it is alleged first, that he failed to honour the duties which were imposed upon him as Master in relation to his apprentice in accordance with the requirements which are set out in paragraphs (a) to (d) of paragraph 9 of the Statement of Claim secondly, that he permitted the other Defendants to act and be remunerated as qualified Solicitors and, thirdly, that he permitted his name to be made use of for and on account and for the profit of the other Defendants, in particular by permitting the other Defendants to utilise his name, letterhead, notepaper, business cards and premises so as to enable such Defendants to act a qualified members of the Solicitors profession and to be remunerated as such.

13 The proceedings before this Court were complicated by the fact that the case against Mr. Ryan differed in fact and in law from that made against the other Defendants and that the case against Mr. Eamon Carroll too was distinguishable from that made against his brothers and Ms. Govern. Mr. Ryan was separately represented by Counsel as was Mr. Eamon Carroll. The remaining three Defendants were not legally represented. At the conclusion of the Plaintiff's case applications were made on behalf of all five Defendants for a non-suit. Counsel on behalf of Mr. Ryan indicated that in the event of his application failing, his client would go into evidence. The other Defendants elected not to give evidence. Having considered the facts adduced in evidence, I concluded that a prima facie case had been established against Mr. Ryan and I proceeded to hear the evidence adduced on his behalf and reserved my judgment in relation to the other Defendants.

14 This case gives rise to issues of law as well as fact. It seems to me that I should deal separately with these two aspects of the matter to facilitate any appeal that may be brought. I will deal first with the issues turning on matters of fact.

15 As to the case on fact against the Defendants, other than Mr. Ryan:-

16 The essence of the claims against these Defendants is that they represented themselves to members of the public to be qualified members of the Solicitors” profession and/or acted in such a way so as to induce members of the public to believe that they were qualified to act as Solicitors. It is therefore necessary to examine the evidence adduced by the Society as to the impact which the representations or conduct of those Defendants had on members of the public. It is material to consider the organisation and administration available to these Defendants which might have facilitated a wrongdoing but the essence of the case is the wrongful representations or acts and not what has been described as "the internal management" maintained by any of the Defendants.

17 The Plaintiffs called seven clients of the business carried on in Dorset Street. Each of these witnesses had sustained an accident at work or elsewhere and attended at the Dorset Street premises for the purpose of obtaining advice and assistance in that context. These witnesses gave evidence as to how and why they came to attend at the Dorset Street premises; what services they thought they could obtain there and the services which they did obtain and the communications which they did receive from that office. In general these witnesses were drawn to the Dorset Street premises as a result of advertisements on the premises themselves or handbills...