Law Society of Ireland v Malocco

• Jurisdiction: Ireland
• Judge: Mr. Justice Kearns
• Judgment Date: 15 February 2005
• Neutral Citation: [2005] IESC 5
• Court: Supreme Court
• Docket Number: [Record No. 339/2003SC]
• Date: 15 February 2005

[2005] IESC 5

THE SUPREME COURT

Murray CJ.

Geoghegan J.

Kearns J.

[Record No. 339/2003SC]

LAW SOCIETY OF IRELAND v MALOCCO

IN THE MATTER OF ELIO MALOCCO AND IN THE MATTER OF THE

SOLICITORS ACTS, 1954– 1994

BETWEEN

THE LAW SOCIETY OF IRELAND

APPLICANT/ RESPONDENT

AND

ELIO MALOCCO

RESPONDENT/ APPELLANT

SOLICITORS (AMDT) ACT 1960 S20(1)(a)

SOLICITORS (AMDT) ACT 1960 S20

SOLICITORS (AMDT) ACT 1960 S20(3)

SOLICITORS (AMDT) ACT 1960 S8(1)(a)(1)

SOLICITORS (AMDT) ACT 1994 S18(1)

EIRE CONTINENTAL TRADING CO LTD v CLONMEL FOODS LTD 1955 IR 170

SOLICITORS (AMDT) ACT 1960 S7

HENDERSON v HENDERSON 1843 3 HARE 100

EUROPEAN CONVENTION ON HUMAN RIGHTS ACT 2003

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 6(1)CONSTITUTION

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS SEVENTH PROTOCOL ART 4

BENNION STATUTORY INTERPRETATION 4ED 809

SOLICITORS (AMDT) ACT 1994 S17

SOLICITORS (AMDT) ACT 1994 S13

RSC (NO 1) (SOLICITORS (AMDT) ACT 1994) 1998 SI 14/1998 PART VIII(26)

SOLICITORS (AMDT) ACT 1994 S11RSC (NO 1)

(SOLICITORS (AMDT) ACT 1994) 1998 SI 14/1998 PART VIII(28)

SOLICITORS (AMDT) ACT 1960 S7(13)

CARROLL v RYAN & ROGERS & ORS 2003 1 IR 309 2003 2 ILRM 1

A (A) v MEDICAL COUNCIL & AG 2003 4 IR 302 2004 1 ILRM 372

WOODHOUSE v CONSIGNA 2002 2 AER 737 2002 1 WLR 2558

O'DOMHNAILL v MERRICK 1984 IR 151

TOAL v DUIGNAN & ORS (NO 1) 1991 ILRM 135

PRIMOR PLC v STOKES KENNEDY CROWLEY 1996 2 IR 459

DOWD v KERRY CO COUNCIL 1970 IR 27

ANGLO IRISH BEEF PROCESSORS v MONTGOMERY 2002 3 IR 510

KONIG v FEDERAL REPUBLIC OF GERMANY 1978 2 EHRR 170

PHILIS v GREECE (NO 2) 1998 25 EHRR 417

Res judicata

Claim could have been raised in earlier proceedings - Whether judicial review and appeal - Whether delay - Henderson v Henderson (1843) 3 Hare 100, Woodhouse v Consignia Plc [2002] 1 WLR 2558 and AA v Medical Council [2003] 4 I.R. 302 followed -Dowd v Kerry County Council [1970] IR 27;O'Domhnaill v Merrick [1984] IR 151; Toal v Duignan (No 1) [1991] ILRM 135 and Primor Plc v Stokes Kennedy Crowley [1996]2 IR 459 applied - European Convention onthe Protection of Human Rights and Fundamental Freedoms 1950 - Respondent's appeal dismissed (339/2003 - Kearns [nem diss] Murray Geoghegan - 15/2/2005) [2005] IESC 5

LAW SOCIETY OF IRELAND v MALOCCO

The respondent brought a motion to strike the appellant off the Roll of Solicitors, following a finding by a Disciplinary Tribunal that he was guilty of misconduct. Subsequently, the appellant brought three motions before the President of the High Court in which he sought an order discharging freezing orders and other orders that had been made placing restrictions on the use of certain bank accounts by the appellant. The appellant also sought an order extending the time to appeal the finding of the Disciplinary Tribunal and further an order striking out the motion of the respondent on the grounds of delay and double jeopardy. The President refused all three motions, and it was from such refusal that the appellant brought this appeal.

Held by Supreme Court (Murray CJ, Geoghegan, Kearns JJ): in dismissing the appeal:

1. That the Solicitors (Amendment) Act, 1960 permitted the making of orders freezing personal funds as well as business accounts and further it related not only to accounts in existence at the time of the making of the freezing order, but also any subsequently opened account in the name of the solicitor or his firm.

2. That the appellant had not formed the intention to pursue an appeal within the prescribed time period and accordingly an extension should not be granted.

3. That the delay, which occurred was explicable and further no excessive delay of a culpable nature could be attributed to the respondent.

Reporter: L.O'S.

1 JUDGMENT of Mr. Justice Kearns delivered the 15th day of February, 2005

Background

2 The appellant is a solicitor who was enrolled in 1977 and who thereafter practised under the style "Malocco and Killeen" in partnership with Conor Killeen in Dublin. In September, 1991, the Law Society, the respondent herein (and hereinafter referred to as "the Society") received a complaint about the firm from Irish Press Newspapers who were, or had been, clients of the practice. At a meeting of the Compensation Fund Committee of the Society on the 26th September, 1991, a decision was made to refer the matter to the Disciplinary Committee of the Society. Mr. Tim Bolger, chartered accountant, was employed by the Society to investigate the said firm.

3 A special meeting of the Compensation Fund Committee of the Society took place on the 27th September, 1991. It directed that an application for a freezing order pursuant to s.20(1)(a) of the Solicitors (Amendment) Act, 1960, be made to the High Court.

4 The relevant portions of s.20 are as follows: -

"(1) Where the Society are of the opinion that a solicitor or a clerk or servant of a solicitor has been guilty of dishonesty in connection with that solicitor's practice as a solicitor or in connection with any trust of which that solicitor is a trustee, they may apply to the High Court, and the High Court may make an order directing either-"

(a) That no banking company shall, without leave of the High Court, make any payment out of a banking account in the name of the solicitor or his firm, or

(b) That a specified banking company shall not, without leave of the High Court, make any payment out of a banking account kept by such company in the name of the solicitor or his firm.

5 (3) Where the High Court make in relation to a solicitor an order under subsection (1) of this section, the High Court may at the same time order that his practising certificate be suspended until the certificate expires."

6 On 30th September, 1991, the High Court (Denham J.) made orders under s.20 ss.(1)(a) and (3), directing the freezing of payments out of any bank account of the two solicitors or their firm and also suspending the practising certificates of both solicitors. Other orders were made and undertakings given by the two solicitors in respect of the production of documents and books of accounts of the partnership.

7 On the 7th October, 1991, the High Court (Costello J.) by consent varied the order of the 30th September, 1991, to provide that no banking company should without leave of the High Court make any payment out of a banking account in the name of the solicitors or in the name of their firm, or in the name of either solicitor with any other person, firm or company.

8 A third order of the High Court (Flood J.) was made on the 15th October, 1991, in proceedings entitled The High Court (1991 No. 12910P). By that order, Flood J. received a consent from the same parties to be filed with and deemed to be part of the court's order. Under the terms of the consent thus made a rule of court, Mr. Malocco consented, inter alia, to an order restraining him from giving any instructions in respect of the withdrawal of funds held in certain bank accounts in Spain. He also submitted to a variety of other orders restraining him from entering the offices of the firm or communicating with any member of the staff of the firm or giving any directions to such members.

9 All of these orders are still extant and are the subject matter of the appellants" first motion herein which was ruled upon by the High Court (Finnegan P.) on the 31st July, 2003, and which now comes before this court on appeal.

10 In late September or early October 1991, the appellant fled the jurisdiction and did not return to Ireland until 1993. A criminal investigation of the appellant had commenced which resulted in a prosecution and trial following his return in that year. The trial resulted in the appellant's conviction on the 28th March, 1993, on six counts in respect of charges relating to dishonesty in relation to his practice as a solicitor.

11 Thereafter, the appellant brought an appeal to the Court of Criminal Appeal in respect of the five-year sentence of imprisonment which had been imposed upon him following his conviction in the Circuit Court.

12 On the 18th August, 1993, the applicant's solicitor, Mr. Peter Dempsey, wrote a letter to the Law Society in which he sought the Society's confirmation that the initiation of disciplinary proceedings against the appellant should not take place "pending the outcome of the criminal proceedings."

13 On the 23rd May, 1996, the Court of Criminal Appeal rejected the appellant's appeal following which the appellant remained in custody until March/April, 1998. At no point up to the time of his release did the appellant seek to vary or discharge any of the three orders of the High Court made in September and October, 1991, nor did the appellant seek to withdraw or resile in any way from his demand that the Society stay its hand pending the conclusion of the criminal proceedings. In particular he did not seek that the Society proceed with its investigation, as distinct from any hearing, during this period. This was a contention which the appellant advanced in this appeal as a possibility which the Society might have considered.

14 On 12th March, 1998, the affidavit grounding an application to the Disciplinary Tribunal was sworn. The Society had no address for service of the disciplinary proceedings on the appellant and obtained an order for substituted service of same from the President of the High Court on the 2nd July, 1998. This order was made following a number of adjournments to ensure compliance with the requirements of the court. The appellant shortly thereafter confirmed receipt of the said proceedings.

15 On the 22nd October, 1998, the Disciplinary Tribunal determined that the Society's application disclosed a prima facie case.

16 On the 4th February, 1999,...