Incorporated Law Society of Ireland v Carroll

JurisdictionIreland
JudgeBLAYNEY J.
Judgment Date01 January 1996
Neutral Citation1995 WJSC-SC 4879
CourtSupreme Court
Docket Number[1993 No. 8169P; S.C. Nos. 77, 78, 80 and 84 of 1995],77/95
Date01 January 1996
LAW SOCIETY OF IRELAND v. CARROLL
BETWEEN/
THE INCORPORATED LAW SOCIETY OF IRELAND
Plaintiff/Appellant

and

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

1995 WJSC-SC 4879

Hamilton C.J.

Blayney J.

Denham J.

77/95
78/95
84/95

THE SUPREME COURT

Synopsis:

ACTION

Cause

Statute - Provisions - Conduct - Prohibition - Offence - Creation - Civil action brought by Law Society - Claim for order restraining defendant from repeating criminal offence - Claim for order restraining solicitor repeating prohibited act - Claims dismissed - Law Society without ~locus standi~ to protect public interest - Civil action by Law Society inappropriate for purpose of enforcing discipline within solicitors profession - Ministers and Secretaries Act, 1924, s. 6 - Solicitors Act, 1954, ss. 56, 59 - Solicitors (Amendment) Act, 1960, s. 7 - (77,78,84/95 - Supreme Court - 20/12/95) - [1995] 3 IR 165 - [1996] 2 ILRM 95

|Incorporated Law Society of Ireland v. Carroll|

ATTORNEY GENERAL

Functions

Public - Rights - Enforcement - Solicitors - Discipline - Method - Statutory domestic procedure - Law Society lacks ~locus standi~ to enforce public right by civil action - (77,78,84/95 - Supreme Court - 20/12/95) - [1995] 3 IR 165 - [1996] 2 ILRM 95

|Incorporated Law Society of Ireland v. Carroll|

LAW SOCIETY OF IRELAND

Functions

Limitation - Solicitors - Discipline - Enforcement - Method - Statutory domestic procedure - Society lacks ~locus standi~ to enforce public right by civil action - (77,78,84/95 - Supreme Court - 20/12/95) - [1995] 3 IR 165 - [1996] 2 ILRM 95

|Incorporated Law Society of Ireland v. Carroll|

PRACTICE

Parties

~Locus standi~ - Public - Rights - Enforcement - Method - Statutory domestic procedure - Society lacks ~locus standi~ to enforce public right by civil action - (77,78,84/95 - Supreme Court - 20/12/95) - [1995] 3 IR 165 - [1996] 2 ILRM 95

|Incorporated Law Society of Ireland v. Carroll|

WORDS AND PHRASES

"Public right"

Enforcement - Attorney General - Function - Solicitors - Discipline - Method - Statutory domestic procedure - Society lacks ~locus standi~ to enforce public right by civil action - (77,78,84/95 - Supreme Court - 20/12/95)1995 3 IR 165 1996 2 ILRM 95

|Incorporated Law Society of Ireland v. Carroll|

PROFESSIONS

Solicitors

Discipline - Enforcement - Method - Statutory domestic procedure - Society lacks ~locus standi~ to enforce public right by civil action - (77,78,84/95 - Supreme Court - 20/12/95) - [1995] 3 IR 165

|Incorporated Law Society of Ireland v. Carroll|

Citations:

SOLICITORS ACT 1954 S56(1)

SOLICITORS (AMDT) ACT 1994 S64

SOLICITORS ACT 1954 S59

SOLICITORS ACT 1954 S59(1)

AG V PAPERLINK 1984 ILRM 373

GOURIET V UPW 1978 AC 435

GOODMAN INTERNATIONAL LTD V HAMILTON 1992 2 IR 542

SOLICITORS ACT 1954 S77(1)

MOORE V AG 1930 IR 471

SPUC V COOGAN 1990 ILRM 70

CONSTITUTION ART 30

MINISTERS & SECRETARIES ACT 1934 S6

CASEY OFFICE OF THE ATTORNEY GENERAL IN IRELAND 149

SOLICITORS (AMDT) ACT 1960 S7(1)

SOLICITORS (AMDT) ACT 1994 S17

1

20th day of December 1995 by BLAYNEY J. [NEM DISS]

2

The first named and the third named defendants/respondents, Godfrey Carroll and John Carroll are the directors of and shareholders in a company called Associated Consultants Compensation Services Limited, a limited liability company incorporated on the 14th February 1990 which trades under the name or style of "Accident Claims Service" (abbreviated to ACS). The business of ACS is carried on at 109 Lr. Dorset Street in the city of Dublin. Its advertisements indicate that it offers a service in regard to "compensation for injuries", that no fee is charged for advice, and that no fee is charged "unless successful".

3

The second named defendant/respondent, Eamon Carroll, is a solicitor's apprentice and at the time of the institution of these proceedings was apprenticed to the fifth named defendant/respondent, Christopher Ryan, who is a solicitor. The first three defendants/respondents are brothers. The fourth named defendant/respondent Anna-Marie Govern is employed by ACS as a secretary/receptionist.

4

The plaintiff/appellant (hereinafter called the Law Society) instituted these proceedings on the 3rd December 1993. Its claim against the first four defendants is that in and during the preceding three years these defendants, in the course of carrying on the business of ACS, represented themselves to members of the public as being solicitors practising in association with each other under the style of ACS and/or in association with Mr. Ryan under the name and style of Chris Ryan and Co. It was pleaded that in making such representations they were acting in breach of s. 56(1) of the Solicitors Act, 1954which provides as follows:-

5

2 "56(1) A person who is not a solicitor should 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.

6

(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 (now increased to £1, 500 by section 64 of the Solicitors Act, 1994)".

7

The relief claimed against the first four defendants was a number of declarations and injunctions, the principal relief sought being a permanent injunction restraining the first four defendants "from holding themselves out or otherwise purporting to act as solicitors."

8

As against Mr. Ryan it was claimed that in breach of s. 59 of the Solicitors Act, 1954he acted in a business capacity with the first four defendants so as to permit such defendants to act and be remunerated as qualified solicitors. S. 59(1) of the 1954 Act provides as follows:-

"59 - (1) A solicitor shall not wilfully -"

(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 a solicitor,

(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

(c) do an act enabling an unqualified person to act as a solicitor."

9

The relief sought against Mr. Ryan consisted of the following declarations:-

10

(1) That he has acted for unqualified persons (including the first four defendants) so as to enable them to purport to act as solicitors.

11

(2) That he has permitted and continues to permit his name to be used for the profit of the first four defendants.

12

(3) That he has been in breach of the provisions of s. 59 of the Solicitors Act, 1954.

13

The case was heard by Murphy J. over six days in December 1994 and January 1995. Persons who had been clients of ACS were called as witnesses by the Law Society and letterheads and cards were put in evidence which showed that Mr. Ryan was practising, inter alia, at 109 Lr. Dorset Street and that Mr. Eamon Carroll had a close connection with him. None of the first four defendants gave evidence. The learned trial judge, having reviewed all the evidence, held that he "must conclude, on the balance of probabilities, that Mr. Godfrey Carroll and Mr. Eamon Carroll represented themselves and allowed themselves to be represented as being solicitors practising in association with each other and that they acted so as to induce members of the public to believe that they were qualified to act as solicitors."

14

As regards Mr. John Carroll, he held that the evidence was negative; that none of the witnesses had identified him as playing any obvious role in the business of ACS. And as regards Ms. Govern, he took the view that none of the witnesses inferred or had any grounds for inferring that she was a solicitor. Accordingly the learned trial judge dismissed the case against these two defendants on the facts.

15

The learned trial judge then went on to consider whether in law the Law Society was entitled to an order against Messrs Godfrey and Eamon Carroll and held that it was not. He cited the principles enunciated by Costello J. in his judgment in Attorney General v. Paperlink 1984 ILRM 373 as being applicable when it is sought to seek civil remedies in respect of criminal actions and based his decision on the third of the principles which is as follows:-

"Thirdly, whilst the High Court has jurisdiction to grant an injunction in the circumstances just outlined the jurisdiction should only be exercised in exceptional cases (see Gouriet v. UPW 1978 A. C. 435)."

16

He held that the circumstances here did not make it an exceptional case and therefore that it did not warrant granting a civil remedy in respect of a criminal wrong. Accordingly, on this ground, he dismissed the Law Society's claim against Mr. Godfrey Carroll and Mr. Eamon Carroll, notwithstanding that he had held that they were acting in breach of s. 56, but he directed that they should pay their own costs.

17

The learned trial judge made a similar order in regard to the claim against Mr. Ryan. While he found on the facts that Mr. Ryan had been in breach of s. 59 of the 1954 Act, he held that the appropriate remedy to be adopted by the Law Society was to make a complaint to the disciplinary committee and that in the circumstances the proceedings should not be entertained by the High Court. Mr. Ryan was also directed to pay his own costs.

18

The Law Society has appealed against the whole of the judgment of the learned trial judge, and cross-appeals have been filed by Mr. Godfrey Carroll, Mr. Eamon Carroll and Mr. Ryan. Both the Messrs Carroll seek an order reversing the determination made against them on the facts, and reversing the order that they pay their own costs. Mr. Ryan seeks an order reversing the findings made against him on the facts, and reversing the order directing him to pay his own costs. In addition he...

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