Jones v O'Brien

• Jurisdiction: Ireland
• Judge: Kearns P.
• Judgment Date: 23 April 2012
• Neutral Citation: [2012] IEHC 156
• Date: 23 April 2012
• Court: High Court

[2012] IEHC 156

THE HIGH COURT

[No. 11 S.A./2012]

Jones v O'Brien

IN THE MATTER OF THE SOLICITORS ACTS 1954 - 2008

BETWEEN

GRACE JONES

APPELLANT

AND

MICHAEL O'BRIEN

RESPONDENT

PROFESSIONS

Solicitors

Solicitors Disciplinary Tribunal - Appeal - Misconduct - Finding of no prima facie evidence - Whether evidence that respondent led applicant to believe she would recover all costs from personal injuries litigation - Whether reasonable to infer that fees paid to previous solicitor would be recovered - Whether applicant delayed in execution of will of applicant's mother - Whether applicant made enquiries with solicitor following initial request - Whether respondent acted immediately to rectify error on becoming aware of it - Whether oversight as distinct from misconduct - Appeal dismissed (2012/11SA - Kearns P - 23/4/2012) [2012] IEHC 156

Jones v O'Brien

1 JUDGMENT of Kearns P. delivered on the 23rd day of April, 2012

2 This is an appeal by Grace Jones ("the appellant") against a decision of the Solicitors Disciplinary Tribunal ("the Tribunal") dated 23 ^rd January, 2012 that there was no misconduct on the part of Michael O'Brien of Barry C. Galvin & Son, 91 South Mall, Cork ("the respondent").

3 On 16 ^th December, 2010 the appellant herein applied for an inquiry into fourteen counts of alleged misconduct of the respondent solicitor. Over the following months, affidavits were submitted by the appellant and the respondent. On 13th July, 2011 the Tribunal found that there was no prima facie evidence of misconduct in relation to twelve of the complaints, but that there was a prima facie case of misconduct for inquiry in respect of two of the complaints, namely

4 (i) from the respondent's correspondence to the appellant, the respondent led the appellant to believe that she would recover all of her costs arising out of her personal injuries litigation, and not a partial amount of them; and

5 (ii) the appellant wrote to the respondent on 18 ^th June, 2007 asking him to commence the execution of her late mother's will which was with the respondent's firm. The respondent did not respond to this request until 4 ^th February, 2008. The appellant states that this eight month delay in probating her mother's will was a contributory factor in her mother's home being vandalised, and resulted in the property being more difficult to sell because of the collapse in the property market.

6 On 1 ^st December, 2011 the Tribunal held an inquiry into the two complaints, which the appellant and respondent attended. On 23 ^rd January, 2012 the Tribunal issued its decision in relation to the matter. In relation to the costs issue, the Tribunal found that the evidence adduced did not support a finding of misconduct against the respondent. Regarding the execution of the appellant's late mother's will, the Tribunal found that the conduct of the respondent did not meet the standard required to be deemed misconduct.

7 By notice of motion and grounding affidavit dated 13 ^th February, 2012 the appellant seeks to appeal the findings of the Tribunal. In the appellant's grounding affidavit the appellant states that, in addition to the Tribunal decision of 23 ^rd January, 2012, she wishes to appeal the Tribunal finding of no misconduct in relation to the other twelve complaints against the respondent made on 15 ^th July, 2011. As the appellant is outside the timeframe permitted to appeal the Tribunal decision of 15 ^th July, 2011 the Court cannot give specific consideration to these complaints. However, in the interests of completeness I have thoroughly examined all documentation and correspondence submitted in arriving at my decision in this ruling.

AFFIDAVIT OF GRACE JONES

8 On 30 ^th May, 2005 the appellant was involved in a road traffic accident. The appellant initially instructed Nora Gallagher & Company...