Kennedy v Law Society

• Jurisdiction: Ireland
• Judge: Mr. Justice John MacMenamin
• Judgment Date: 23 March 2006
• Neutral Citation: [2006] IEHC 172
• Court: High Court
• Date: 23 March 2006

[2006] IEHC 172

THE HIGH COURT

[No. 45 J.R./2004]

KENNEDY T/A GILES J KENNEDY & CO SOLICITORS v LAW SOCIETY OF IRELAND

JUDICIAL REVIEW

BETWEEN

GILES J. KENNEDY PRACTISING UNDER THE STYLE AND TITLE OF GILES J. KENNEDY AND COMPANY SOLICITORS

APPLICANT

AND

THE LAW SOCIETY OF IRELAND

RESPONDENT

KENNEDY v LAW SOCIETY OF IRELAND & ORS 2002 2 IR 458

SOLICITORS ACCOUNTS REGULATIONS 1984 REG 29

SOLICITORS ACT 1960 S7

KENNEDY v LAW SOCIETY OF IRELAND & ORS 2002 2 IR 475

MAHER v AG 1973 IR 140

CASSIDY v MIN FOR INDUSTRY & COMMERCE 1978 IR 297

PIGS & BACON COMMISSION v MCCARRON 1981 IR 451

DESMOND v GLACKIN 1993 3 IR 67

GLENCAR EXPLORATIONS PLC v MAYO CO COUNCIL 1993 2 IR 237

MALLON v MIN FOR AGRICULTURE 1996 1 IR 517

R v SECRETARY OF STATE FOR TRANSPORT, EX PARTE GREATER LONDON COUNCIL 1986 QB 556

THAMES WATER AUTHORITY v ELMBRIDGE BOROUGH COUNCIL 1983 1 AER 836

AG v O'BRIEN 1965 IR 142

CASSIDY v MIN FOR INDUSTRY & COMMERCE 1978 IR 297

DPP v KENNY 1990 2 IR 110

A (A) v MEDICAL COUNCIL & AG 2003 4 IR 3022004 1 ILRM 372

GLOVER v BLN LTD 1973 IR 388

O'BRIEN v BORD NA MONA 1983 IR 255

FLANAGAN v UCD 1988 IR 724

GILLIGAN v GOV PORTLAOISE PRISON UNREP MCKECHNIE 12.4.2001 2001/10/2728

O'CEALLAIGH v BORD ALTRANAIS 2000 4 IR 54

O'DUFFY v LAW SOCIETY OF IRELAND UNREP O'NEILL 4.3.2005 2005/47/9906

EAST DONEGAL CO-OP v AG 1970 IR 317

LYNCH, STATE v COONEY 1982 IR 337

CAHILL v SUTTON 1980 IR 269

PHILLIPS v MEDICAL COUNCIL 1992 ILRM 469

DONEGAL FUEL & SUPPLY LTD v LONDONDERRY HARBOUR CMRS 1994 1 IR 24

SCARIFF v TAYLOR 1996 1 IR 242

R v CRIMINAL INJURIES COMPENSATION BOARD EX-PARTE LAIN 1967 2 QB 864

Abstract:

Professions - Solicitors - Judicial review - Investigations - Whether respondent precluded from consideration of report - Interpretation of Supreme Court judgment - Fair procedures

The applicant applied by way of judicial review for orders restraining the respondent, and more particularly its Compensation Fund Committee, from proceeding to consideration of what was described as “Section B” of the report of an investigative accountant. The applicant contended that a decision of the Supreme Court precluded the respondent from having regard to Section B of the report. The applicant also made complaint about the alleged actual conduct of the respondent in the context of fair procedures.

Held by McMenamin J. in refusing the application that the case of the applicant could not in any sense be seen as being premised on an objective or fair reading of the Supreme Court judgments. The applicant had been afforded fair procedures.

Reporter: R.W.

1 JUDGMENT of Mr. Justice John MacMenamin delivered on the 23rd day of March, 2006 .

2 1. This application for judicial review brought by the applicant marks a further chapter in the continuing series of proceedings initiated by the respondent against the applicant. To date the issues have given rise to two lengthy and substantive hearings in the High Court, a procedural hearings on pleadings, and to date three appeal hearing in the Supreme Court. At the conclusion of the hearing herein I indicated that the application for judicial review would be declined and I would furnish my reasons later. I now do so.

2. Background

The issue in suit in these proceedings

3 On 26th January, 2004 the applicant obtained leave to seek judicial review seeking to restrain the respondent and more particularly its Compensation Fund Committee from proceeding to consideration of what was described as “Section B” of the report of Aisling Foley, an Investigative Accountant, originally delivered to the respondent on 19th December, 1995.

4 3. It is necessary to consider in some detail the grounds upon which the applicant obtained leave. Essentially the leave granted can be seen under two headings.

5 4. The first of these (grounds A to H) asserts that a decision of the Supreme Court of 20th December, 2001 and/or an earlier decision of that on the 4th April, 2001 now preclude the respondent and the Committee from having regard to Section B of the report.

6 The remaining grounds make complaint about the alleged actual conduct of the respondent and the Committee in context of fair procedures.

7 5. A consideration of the first set of grounds involves this court in the interpretation of the two judgments of the Supreme Court aforesaid. The parties and the issues in this case closely relate to those which have arisen before the Supreme Court. The applicants contends that the course of action sought to be adopted by the respondent (and now impugned) was in contravention of the orders of the Supreme Court arising from these two judgments. One might have thought common sense might dictate that an application be made to that court to speak to the judgments and orders if issues arose as to their ambit or interpretation. This did not occur. Instead an application was made on 26th January, 2004 leave was obtained to seek judicial review. No application was brought to set aside the leave application. Instead a little over two years later, the matter came on for full hearing as a judicial review proceeding. In the light of the facts and circumstances outlined below one of the consequences of this application has been the deferral of consideration of this issue by the Compensation Fund Committee for that period.

The General Background

8 6. This court will adopt with suitable adaptation the general background as summarised in the judgment of Murphy J. in Kennedy v. The Law Society of Ireland (No. 3) 202 I.R. at pg. 454 on appeal from the substantive judgment of Kearns J. delivered 5th October, 1999.

9 On 15th April, 1993, the Compensation Fund Committee of the first respondent the Law Society decided to investigate the professional practice of six solicitors (including that of the applicant) pursuant to the provisions of regulation 29 of the Regulations of 1984.

10 On 24th May, 1993 the second respondent the registrar of the Law Society assigned the third respondent, Ms. Aisling Foley one of a number of chartered accounts in the employment of the first respondent, to carry out that investigation. By letter dated 24th May, 1993, the second respondent wrote informing the applicant of the fact that the third respondent had been appointed to carry out the investigation and drawing the attention of the applicant to his obligations under the Account's Regulations of 1984. It is clear and Kearns J. so found that the third respondent was specifically instructed by the first respondent that, in addition to inspecting of the books of account, she was to look for evidence of fraudulent claims passing through the practice and, secondly that these instructions were not disclosed to the applicant at the commencement of the investigation or prior thereto. The third respondent was aware of the Lillicrap case (a case wherein it was alleged there had been a bogus personal injury claim) and was further informed by the second respondent of his suspicions in relation to other fraudulent claims which might have been processed by the applicant's office. The third respondent was required to investigate whether the applicant's firm had complied with the account's regulations of 1984 and whether his firm was involved in spurious claims. It was, as the learned trial judge held, a two pronged investigation.

11 The investigations carried out by the third respondent appear to have been challenged by the applicant at every stage and on a variety of grounds. Initially it was the first respondent which instituted plenary proceedings against the applicant on 29th July, 1993, claiming (amongst other things) a mandatory injunction directing the applicant to produce to the first respondent's agents certain documents required for the purpose of the investigation being carried out by the third respondent. The first respondent's claim was disputed in the defence delivered by the applicant which went on to counterclaim for damages then estimated at a sum in excess of €250,000 and on grounds which included the allegation that the investigation had "exceeded its lawful remit". By motion dated 29th April, 1996, the applicant sought and obtained leave for orders for judicial review by way of certiorari to quash (among others things), the appointment of the third respondent to carry out the investigation aforesaid, and for an order quashing a purported decision of the first respondent communicated to the applicant on 12th February, 1996, to seek an inquiry by the Disciplinary Tribunal of the first respondent into his professional conduct. These proceedings were pursued vigorously and gave rise to a variety of interlocutory applications and the preparation and exchange of voluminous documentation. Ultimately the plenary proceedings and the judicial review matter were consolidated by order of the High Court made on 5th March, 1998 and in pursuance of that order points of claim were delivered by the applicant on 26th March, 1998, and points of defence on behalf of the first respondent and the other respondents on 24th April, 1998. Those pleadings set out the issues which were heard by Kearns J. and determined by him in his judgment delivered therein on 5th October, 1999. It was from that judgment and the order made thereon that the applicant appealed to the Supreme Court.

12 7. Kearns J. in the High Court judgment held that Ms. Foley was appointed both to conduct a "traditional" accounts inquiry and also to investigate whether the respondents legal practice had been used for the purpose of prosecuting bogus road traffic claims. This judgment then came to be considered by the Supreme Court in two judgments the first on 4th April, 2001, and the second on 20th December of that year.

13 8. The issues considered in the first were the powers, duties...