Law Society of Ireland v Walker

JurisdictionIreland
CourtHigh Court
JudgeFinnegan P.
Judgment Date21 July 2006
Neutral Citation[2006] IEHC 387
Docket Number[2006 No. 21 SA]
Date21 July 2006

[2006] IEHC 387

THE HIGH COURT

NO. 21SA/2006
LAW SOCIETY OF IRELAND v WALKER
IN THE MATTER OF ANDREW WALKER SOLICITOR PRACTISING AS A PARTNER IN HAYES SOLICITORS, LAVERY HOUSE, EARLSFORT TERRACE, DUBLIN 2 AND IN THE MATTER OF AN APPLICATION BY THE LAW SOCIETY OF IRELAND TO THE SOLICITORS DISCIPLINARY TRIBUNAL AND IN THE MATTER OF THE SOLICITORS ACTS 1954 - 2002 THE LAW SOCIETY OF IRELAND
APPELLANT

AND

ANDREW WALKER
RESPONDENT

SOLICITORS (AMDT) ACT 1960 S7

SOLICITORS (AMDT) ACT 1994 S17

SOLICITORS (AMDT) ACT 2002 S9

SOLICITORS (AMDT) ACT 1960 S3

SOLICITORS (AMDT) ACT 1994 S24

R v O'CONNELL & ORS 1844 7 ILR

RONDEL v WORSLEY 1967 1 QB 502

MEEK v FLEMING 1961 3 AER 148

TOMBLING v UNIVERSAL BULB COMPANY LTD 1951 2 TLR 289

RE GRUZMAN EX PARTE PROTHONOTARY 1968 SR (NSW) 70

GIANNARELLI & ORS v WRAITH & ORS 1987-1988 165 CLR 543

UNIOIL INTERNATIONAL PTY LTD & ORS v DELOITTE TOUCHE TOHMATSU & ANOR 1997 18 WAR 190

KYLE v LEGAL PRACTITIONERS COMPLAINTS COMMITTEE 1999 WASCA 115

MYERS v ELLMAN 1940 AC 282

JONES, IN RE 1870 LR 6 CH 497

VERNON v BOSLEY (NO 2) 1997 1 AER 614

SOLICITORS PRACTICE RULES RULE 5

SOLICITORS PRACTICE RULES RULE 6

SOLICITORS PRACTICE RULES RULE 7

SOLICITORS PRACTICE RULES RULE 8

SOLICITORS PRACTICE RULES RULE 9

SOLICITORS (AMDT) ACT 1960 S7(2)

ESSO PETROLEUM CO (IRL) LTD v FOGARTY 1965 IR 531

AMERICAN CYANAMID CO v ETHICON LTD 1975 AC 396

CAMPUS OIL LTD v MIN FOR INDUSTRY (NO 2) 1983 IR 88

ARMAH v GOVT OF GHANA 1968 AC 192 1966 2 AER 1006

FUGITIVE OFFENDERS ACT 1881

R v GENERAL MEDICAL COUNCIL EX PARTE TOTH 2000 1 WLR 2209

BHANDARI v ADVOCATES COMMITTEE 1956 1 WLR 1442 1956 3 AER 742

O LAOIRE v MEDICAL COUNCIL UNREP SUPREME 25.7.1997 1998/29/11470

PHILP v RYAN UNREP HIGH COURT RYAN 16.12.2004 2004/42/9573

PROFESSIONS:

Solicitors

Solicitors Disciplinary Tribunal- Alleged professional misconduct - Preliminary stage - Prima facie case - Dismissal of application - Power to dismiss application where complaint fails to disclose prima facie case - Failing to disclose client had altered relevant document - Whether prima facie case of misconduct - Whether power to make findings of fact at preliminary stage - Duty to court - Misleading court - Whether failure to inform court that client had altered document breach of duty to court- Whether personal duty of solicitor to court- Whether defence for solicitor to rely on advices of counsel - Solicitors (Amendment) Act 1960 (No 37), s 7 - Solicitors(Amendment) Act 1994 (No 27), s 17 -Solicitors (Amendment) Act 2002 (No 19), s9 - Appeal granted (2006/21SA - Finnegan P- 21/7/2006) [2006] IEHC 387 Law Society of Ireland v Walker

Finnegan P.
1

On the 13th October 2005 the Appellant made application to the Solicitors Disciplinary Tribunal pursuant to section 7 of the Solicitors (Amendment) Act 1960 as substituted by the Solicitors (Amendment) Act 1994 section 17 and amended by the Solicitors (Amendment) Act 2002 section 9 for an inquiry into the conduct of the Respondent. In a medical negligence action The High Court 2002 No. 15012P David Philip Plaintiff and Peter Ryan and Bon Secours Hospital Bon Secours Health System Defendants the Respondent acted for the first named Defendant a consultant neurologist and for present purposes the allegation made in that action was that the first named Defendant on the 12th July 2001 failed to advise the Plaintiff to have a further PSA test carried out in six weeks time. The Defence delivered on behalf of the Defendants on the 20th February 2003 raised a plea of contributory negligence one particular being that the Plaintiff failed to have a serum PSA measurement carried out in the Middle East in August 2001 when directed by the first named Defendant to do so. The Plaintiffs solicitors sought particulars of the direction and in response the Defendants replied that the direction was given on the 12th July 2001 at the first named Defendant's clinic and was given orally by the first named Defendant. On the 1st July 2003 the Defendants served a notice to admit facts and among the facts of which admission was sought was that on the 12th July 2001 the first named Defendant told the Plaintiff to arrange to have a PSA test carried out six weeks later and to contact the first named Defendant with the results of the same and that it was important that he should do so. Interrogatories were raised on behalf of the first named Defendant to the like effect. There was no admission by the Plaintiff of the facts and the relevant interrogatories were answered "no". The action came on for hearing before Peart J. and events were there disclosed which are dealt with in the Judgment of McCracken J. delivered on the appeal taken against the decision of Peart J. In the interest of brevity I propose incorporating, that judgment in its entirety the same to be annexed to my Judgment herein. In short the first named Defendant swore an Affidavit of Discovery and discovered inter alia his clinical notes which contained an entry dated 12th July 2001 reading -

"ROC at OPD today

4 CDEC01

PSA 6/52"

2

The entry purported to be a contemporaneous account of what occurred on the date set out in the notes. The evidence at the trial was that the note above was shorthand for "removal of catheter at outpatients department today and that the Plaintiff was to have a PSA test in six weeks". On the sixth day of the hearing before Peart J. in the course of the first named Defendant's evidence in chief the trial Judge asked to see the clinical notes and when the originals were produced the first named Defendant disclosed that the entry cited was an addition made at a later date. During cross examination Counsel for the Plaintiff sought to ask the first named Defendant when was the first time that he had disclosed to anyone that he had altered the document. Counsel for the first named Defendant objected to the question on the grounds of privilege. It was however disclosed in evidence that he had disclosed to the Respondent the fact that the document had been altered approximately one week prior to the hearing. Up to that time the first named Defendant's legal advisors had been misled as had his professional witnesses. The effect was also to mislead the Plaintiffs advisors both legal and professional and to make the first named Defendant's case appear to them much stronger than it really was. A consequence of this is that the Plaintiff might have Settled his action for less than full value or indeed determined not to proceed. In fact no offer to settle was made or contemplated by the Defendants. The alteration of the clinical notes came to light fortuitously through the intervention of the trial Judge.

3

Having recited the foregoing facts McCracken J. made the following comment -

"The truly appalling feature in this case is that it appears that the Defendants' advisors were told of the alteration by the first Defendant between one and two weeks before the commencement of the action. I find it almost incomprehensible that in those circumstances they did not inform the Plaintiffs solicitors of the true facts. While a great deal of blame attaches to the first Defendant for having altered the document in the first place, he did at least disclose the facts to his own legal advisors, and in my view at least equal if not greater blame must be attributable to them. It is instructive that they did not seek to use the clinical notes in cross examination of the Plaintiff or his advisors, although they did suggest in such cross examination that he had been instructed to have a further test taken in six weeks time. They did not seek to have their own client prove the notes until they were called for by the learned trial Judge, although they knew they were being put on proof of the notes. There must be at least a suspicion that there was a deliberate attempt to keep the true facts from the Court notwithstanding that the altered document had been furnished to the Plaintiff s solicitors as genuine, and that the facts stated in the alteration had formed part of the instructions to Mr. Murphy (the Defendants' Consultant Urologist)."

4

In reading these observations it must be remembered that the Respondent was not a party to the proceeding. The comments in their totality are regulated by the word "appears". Neither the High Court nor the Supreme Court conducted an inquiry which would enable the Respondent to furnish his version of what had occurred pre trial. All that can be attributed to the observations of McCracken J. is that on such information as was before him it appeared that the Defendants' legal advisors were blameworthy.

5

Arising out of the Supreme Court Judgment the Appellant investigated the Respondent's conduct in the action. The Respondent furnished a letter to the Appellant dated 28th October 2003 in which he gave the following account. A pre trial consultation was held on the 21st October 2003 attended by the first named Defendant and the expert witnesses it was intended to call on his behalf. The Respondent felt that the first named Defendant at the consultation was a lot less certain than he had previously been as to what he told the Plaintiff on the 12th July 2001. Following this consultation the Respondent discussed the position with senior counsel retained and he was directed to send a letter to the Plaintiffs solicitors clarifying exactly what the first named Defendant would say he had told the Plaintiff on the 12th July 2001. The letter was drafted in consultation with senior counsel. The relevant passage in the draft letter reads as follows -

"Our client does, however, make the case that your client failed to follow the instructions given to him on the 12th July 2001 to have a repeat PSA test in six weeks and to advise him of the result."

6

On the 24th October 2003 the Respondent wrote to...

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