Kennedy v Law Society of Ireland

Judgment Date01 January 1999
Date01 January 1999
Docket Number[S.C. No. 268 of 1997]
CourtSupreme Court

1998 WJSC-SC 8750


Hamilton C.J

Keane J.

Barron J.





SOLICITORS ACT 1954 S49(1)(g)



CROWLEY, IN RE 1964 IR 106


SOLICITORS ACT 1954 S49(2)(a)(ii)



Professional rules; application for practising certificate; judgment against applicant outstanding; certificate refused despite indemnity in applicant's favour; whether grounds for refusal existed under s.49(1)(g) Solicitors Act, 1954; whether decision to refuse properly taken Held: S.49(1)(g) inapplicable; refusal must be for protection of public or profession, not for disciplinary purposes Kennedy v. Law Society of Ireland - Supreme Court: Hamilton C.J., Keane J., Barron J. - 29/04/1998 - [1999] 2 IR 583


29th day of April 1998 by BARRON J. [NEM DISS]


The respondent is a solicitor who has been in practice as a sole practitioner since Trinity Term 1978. In 1993, he became involved in a legal dispute with the Ulster Bank. It sought to recover monies which had been lent to him in his own name, while he sought to set off against the Bank a claim which he had against it. His set off was held not to be maintainable in the same proceedings and on the 21st March 1994 the Bank obtained judgment for the sum of £413,399.33 together with costs. The respondent appealed that decision to this Court. His appeal was heard on the 20th January 1997, but was dismissed subject to a stay of two months.


The High Court judgment caused problems for the respondent in relation to his practising certificate in 1995. However, what occurred between the parties then is not relevant save that on the 5th April 1995 the Society was furnished with an indemnity in writing in favour of the respondent given to him by a company, Villardis, in respect of any claim by the Ulster Bank against him.


These proceedings related to the respondent's application for a practising certificate in 1997. This application was made on the 6th January 1997 and apart from the fact that his appeal to this Court was dismissed would have been issued, if it had been processed. Having confirmed the result of the appeal, the Society wrote on the 20th February 1997 to the respondent that as result s. 49(l)(g) of the Solicitors Act, 1954as substituted by s.61 of the Solicitors (Amendment) Act, 1994applied to his application for a practising certificate for the current year. It was indicated to him that his application would be considered at the next meeting of the Compensation Fund Committee ("the Committee") which was to take place on the 6th March 1997. He was advised that he might attend in person or file written representations as soon as possible in advance of the meeting. The hearing before the Committee was adjourned to the 17th April 1997 on the application of the respondent and so far as the Committee was concerned on condition that the judgment would be paid off.


There is little dispute as to how the matter progressed. The respondent made a written submission in which he made two basic arguments:


(1) That s. 49(l)(g) did not apply because he had an indemnity; and


(2) that he was solvent having a net worth of some £3.5 million. The Society did not accept the validity of his legal submission and maintained that the only issue was whether or not the judgment had been paid off.


The respondent appeared at a meeting of the Committee on the 17th April 1997. The judgment had not been discharged. He repeated his written submissions. No questions were asked of him by anyone at the meeting. The following day he was notified that his practising certificate had been refused. The notice to this effect was as follows:

"Solicitors Acts, 1954to 1994

Form PC4

Notice to a solicitor by the registrar of a direction refusing to issue a certificate unconditionally pursuant to section 49(2)(c).

To (the respondent)

TAKE NOTICE that the Society pursuant to section 49(2)(a)(iii) of the Solicitors Act, 1954as substituted by section 61 of the Solicitors (Amendment) Act, 1994has directed the registrar to refuse to issue a practising certificate for the practice year 1997 and that the grounds for such direction are as follows:

Failure to produce documentary evidence of the satisfaction of a judgment obtained against you by Ulster Bank Limited in the amount of £413,399.33 and costs in proceedings entitled Ulster Bank Limited v. Giles Kennedy No. 717 of 1993, pursuant to the provisions of section 49(l)(g) of the Solicitors Act, 1954 as substituted by section 61 of the Solicitors (Amendment) Act, 1994.

Dated this 18th day of April 1997

Signed: Patrick Joseph Connolly

Registrar of Solicitors".


The respondent appealed to the President of the High Court. He was given an interim certificate. The judgment debt was discharged on the 9th May 1997 and on the expiry of the interim certificate on the 12th May 1997 he received a full certificate. The appeal which was heard on the 20th June 1997 related only to costs.


The question was whether or not the appeal would have succeeded. The respondent submitted that by reason of the indemnity which he held s. 49(l)(g) did not apply. The Society had apparently made some enquiries independently in relation to the indemnity and made the case that it would not have been effective. The learned President held that the sub-paragraph applied only if the indemnity was effective but that since the Society were not relying in their notice upon this submission their reasons for refusing the certificate were not valid. In the course of his judgment he said:

"The Society did not refuse to give a practice certificate because the section applied, the indemnity being ineffective. The Society refused the certificate on the grounds that it was not relevant whether it was effective or not."


The Society has appealed to this Court against the order of the learned President awarding costs to the respondent. It was submitted on behalf of the Society that s. 49(l)(g) did apply and that in any event the Society was entitled to take into account the fact that the respondent had not discharged the judgment within the time limit of the stay granted by this Court nor before the hearing before the Committee on the 17th April 1997.


S. 49(l)(g) is as follows:


"This section applies where a solicitor makes application for a practising certificate in any one or more of the following circumstances.


(g) He has had a judgment or decree given against him


(i) which involved the payment of monies, and


(ii) which is not a judgment or decree in relation to which he is entitled, as respects the...

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