John Colm Murphy v The Law Society of Ireland

• Jurisdiction: Ireland
• Judge: Mr. Justice Noonan
• Judgment Date: 09 December 2021
• Neutral Citation: [2021] IECA 332
• Court: Court of Appeal (Ireland)
• Docket Number: Record Number: 2021/56

Between/

John Colm Murphy

Appellant

and

The Law Society of Ireland

Respondent

[2021] IECA 332

Whelan J.

Noonan J.

Barniville J.

Record Number: 2021/56

High Court Record Number: 2004/19212P

THE COURT OF APPEAL

Extension of time – Balance of justice – Misconduct – Appellant appealing against the refusal to extend the time for the bringing of an appeal against the determination of the Solicitors Disciplinary Tribunal – Whether the balance of justice lay against the grant of an extension of time

Facts: The Solicitors Disciplinary Tribunal (the SDT), on the 28th September, 1999, determined that the appellant, Mr Murphy, was guilty of misconduct in failing to file an accountant’s report for his Killarney practice in respect of the year ending 31st March, 1997 in a timely manner or at all, in breach of the relevant regulations. The SDT made an order that Mr Murphy be censured and that he pay the costs of the respondent, the Law Society of Ireland (the Society). Mr Murphy appealed to the Court of Appeal against the refusal of the High Court to extend the time for the bringing of an appeal by Mr Murphy against the determination of the SDT. The balance of Mr Murphy’s grounds of appeal were largely concerned with the contention that the trial judge incorrectly analysed the salient facts in concluding erroneously that the threshold of arguability had not been met by Mr Murphy. Further, Mr Murphy contended that the judge was in error in addressing the balance of prejudice that arose in the circumstances. Mr Murphy also contended that the judge was incorrect in concluding that he was seeking to revisit the judge’s findings on the issue of suppression of documents and in particular the “Healy letter”. In his submissions, Mr Murphy placed considerable emphasis on what he described as the Society’s failure to produce the letter to him and the SDT at the relevant time.

Held by Noonan J that he agreed with the conclusion of the trial judge that Mr Murphy had fallen far short of surmounting the threshold of arguability in relation to his appeal that such extraordinary delay demands. Even were the appeal arguable, or arguable to a sufficient degree, that was in Noonan J’s view again far outweighed by countervailing prejudice. Noonan J agreed with the trial judge’s conclusion that the balance of justice lay against the grant of an extension of time and that no error had been demonstrated in that conclusion.

Noonan J held that no error had been demonstrated in the approach of the trial judge to Mr Murphy’s application for an extension of time. Noonan J agreed with the trial judge’s reasoning and his conclusions. Noonan J dismissed the appeal. Noonan J’s provisional view was that as the Society had been entirely successful in the appeal, it should be entitled to its costs.

Appeal dismissed.

UNAPPROVED

NO REDACTION NEEDED

Judgment of Mr. Justice Noonan delivered on the 9th day of December, 2021

1 . The appellant (“Mr. Murphy”) appeals against the refusal of the High Court to extend the time for the bringing of an appeal by Mr. Murphy against the determination of the Solicitors Disciplinary Tribunal (“the SDT”) made on the 28 ^th September, 1999. As the latter date suggests, this and related matters have been the subject of protracted and complex litigation between Mr. Murphy and the respondent (“the Society”) spanning over two decades.

Background Facts

2 . The facts are set out in detail in the written judgment of the High Court (MacGrath J.) of the 10 ^th February, 2021. Mr. Murphy was a solicitor practising in Kenmare, County Kerry. For a period of time, he employed another solicitor, Mr. Tim Healy, who left to set up his own practice in Killarney in the mid-1990s. It would seem that by 1996, Mr. Healy's practice in Killarney had got into some difficulties which attracted the attention of the Society.

3 . Mr. Murphy entered into an agreement with Mr. Healy to acquire the Killarney practice and he did so with effect from the 16 ^th August, 1996. Mr. Murphy was aware of the difficulties in the Healy practice before he agreed to acquire it. In the following year, 1997, it came to the attention of the Society that Mr. Murphy had failed to file the requisite accountant's report for the Killarney practice. Accordingly, the Registrar of Solicitors, Mr. Patrick J. Connolly, wrote to Mr. Murphy advising him that he was late in filing an accountant's report for the year ending the 31 ^st March, 1997. Mr. Murphy was not responsible for the practice during the period from the 1 ^st April, 1996 until the 15 ^th August, 1996 when Mr. Healy was still in charge.

4 . This has become the crux of much of the subsequent litigation with Mr. Murphy claiming that he was only in a position to provide an accountant's report for the approximately 8 month period between the 16 ^th August, 1996 and the 31 ^st March, 1997 whereas, on Mr. Murphy's case, the Society sought to make him liable in respect of the practice's accounts for an approximately 4 month period during which he had no control over them.

5 . Mr. Murphy responded to the letter from Mr. Connolly indicating that he would contact his accountant and instruct him to prepare a report. Further correspondence ensued during the course of 1998 with the Society again drawing Mr. Murphy's attention to the failure to file an accountant's report. Mr. Murphy instructed his accountant, Mr. Kevin O'Reilly, to prepare the relevant report and Mr. O'Reilly also corresponded with the Society, furnishing accounts for the Kenmare practice on the 20 ^th April, 1998.

6 . In the affidavit sworn by Mr. Connolly on the 16 ^th December, 1998, referred to further below, he avers at paragraph 8 that Mr. O'Reilly wrote to the Society on the 24 ^th March, 1998 indicating that he was in the process of completing the solicitor's financial statements for the year ended 31 ^st March, 1997 and they would be furnished in early April. The Kenmare accounts were furnished on the 20 ^th April, 1998 but not those for Killarney. In related plenary proceedings before the High Court ( 2004/19212P), a witness statement of Mr. Connolly dated the 28 ^th November, 2017 states the following:-

“19. I note that Kevin O'Reilly, in his Witness Statement, dated 20 September 2017, states that he had at least two telephone conversations with me in early 1998 wherein he claims he indicated to me an intention to issue a qualified certificate and further claims that I stated that such a Certificate would not be acceptable. I do not recall any such telephone calls and I wish to make it clear that the Society would never refuse the suggestion to put in a qualified Accountant's Report. I am aware that accountants have been reported to their professional body for failing to file such Certificates. In fact I should point out that it was the qualified report which was submitted by Mr. Healy's accountant on 23 June 1995… that led me to appoint [an investigating accountant] on 26 June 1995, to carry out the first investigation of Mr. Healy's practice.”

7 . This conflict of evidence between Mr. Connolly and Mr. O'Reilly is referred to in some detail in the judgment of the High Court herein.

8 . On the 15 ^th May, 1998, Mr. Murphy attended a meeting of the Society's Compensation Fund Committee during which he advised the Committee that there were some discrepancies in the accounts of the Killarney office that required to be resolved before a report could be filed. Following the Committee meeting, Mr. Connolly again wrote to Mr. Murphy on the 8 ^th June, 1998 advising him to file an accountant's report for the year ended 31 ^st March, 1997 and informing him that the Committee's next meeting was scheduled for the 19 ^th June, 1998 and he should attend. Mr. Connolly further advised that a decision may be made by the Committee to refer the matter to the SDT. In a reply of the 16 ^th June, 1998, Mr. Murphy told the Society that the reason for not filing the report was “due to matters that arose before we took over the practice”, but he expected to be able to file it before the end of the following week.

9 . The Committee meeting was deferred peremptorily to the 17 ^th July, 1998 because Mr. Murphy was not able to attend the proposed June meeting. However, on the 16 ^th July, 1998 Mr. Murphy again wrote to Mr. Connolly saying he could not attend for various reasons, repeated the same reason for the delay in filing the report and assured the Society that it would be ready by the end of the following week at the latest. It was not. At the 17 ^th July meeting, the Committee referred the matter to the SDT for inquiry. On the 21 ^st October, 1998, Mr. O'Reilly corresponded with the Society referring to his earlier phone conversation and offering various reasons for the delay. He indicated that the report would be finalised by early December. Again, no report was filed.

10 . It is of relevance to note that despite Mr. O'Reilly's evidence concerning telephone conversations with the Society in early 1998 about the possibility of filing a qualified report for the 8 month period only, none of the written correspondence noted above refers to this alleged difficulty. In particular, Mr. O'Reilly's letter of the 21 ^st October, 1998 is silent on the issue and does not purport to suggest that the filing of a report for the 12 month period was impossible or that the Society had refused to accept a qualified report for the 8 months. Instead, the letter refers to the fact that the delay in filing was due to the mislaying of documents and the fact that the associate in the office who dealt with Mr. Murphy's accounts was on holidays.

11 . Having not received the report by early December, on the 16 ^th December, 1998, the Society applied to the SDT for an inquiry into Mr. Murphy's conduct grounded upon the affidavit of Mr. Connolly of the same date. Two complaints were articulated in Mr. Connolly's affidavit. First, that Mr....