Law Society of Ireland v Tobin

• Jurisdiction: Ireland
• Judge: Ms. Justice Finlay Geoghegan
• Judgment Date: 10 February 2016
• Neutral Citation: [2016] IECA 26
• Date: 10 February 2016
• Court: Court of Appeal (Ireland)
• Docket Number: Appeal No. 2015/143

The President

Finlay Geoghegan J.

Peart J.

LAW SOCIETY OF IRELAND

APPLICANT/RESPONDENT

AND

JOHN TOBIN

RESPONDENT/APPELLANT

AND

LAW SOCIETY OF IRELAND

APPLICANT/RESPONDENT

AND

PATRICK E. CALLANAN

RESPONDENT/APPELLANT

[2016] IECA 26

Finlay Geoghegan J.

Appeal No. 2015/143

Appeal No. 2015/237

THE COURT OF APPEAL

Right of appeal ? Time limits ? Extension of time ? Appellants seeking to bring appeals against orders of the High Court ? Whether appeals should be dismissed as out of time

Facts: The respondents/appellants, Mr Tobin and Mr Callanan, appealing to the Court of Appeal, sought to bring appeals against orders of the High Court. Neither appellant lodged the notice of appeal within 21 days of the date of either the making of the order in the High Court or the date of perfection of the order. In the case of Mr Tobin the order sought to be appealed was made on the 13th February, 2015, on application by the Law Society. The order was that his name be struck from the roll of solicitors and for costs. In the case of Mr Callanan he sought to appeal against an order made on the 13th April, 2015 and perfected on the 16th April, 2015, in which it was ordered inter alia that he be prohibited from practicing as a solicitor for a period of ten years. Motions were issued in each appeal by the applicant/respondent, the Law Society, seeking to dismiss the appeal as out of time under s. 12 of the Solicitors (Amendment) Act 1960. In Mr Callanan?s case he brought a motion to extend time and in Mr Tobin?s case it was accepted that the Court should also deal with his application to extend time upon the basis of the affidavits sworn in the Law Society motion, the notice of appeal and High Court judgment. Each of the intended appellants contested the submission of the Law Society in reliance upon Article 34.4.1 of the Constitution, case law relating to the former Article 34.3 in relation to the appellate jurisdiction of the Supreme Court, constitutional and other principles applicable to the construction of the statute, insofar as necessary Article 6.1 of the European Convention on Human Rights and ss. 2 and 3 of the Human Rights Act 2004 and the inherent jurisdiction of the courts. The submission of the Society sought to have the Court construe s. 12 of the 1960 Act as if the Oireachtas had provided that no appeal shall lie to the Supreme Court unless a notice of appeal is lodged within 21 days of the date of the High Court order.

Held by Finlay Geoghegan J that s. 12 of the 1960 Act is not a section which clearly and unambiguously precludes a person at least applying to exercise his constitutional right of appeal after 21 days or the jurisdiction of the Court to consider such an application. Finlay Geoghegan J concluded that the Court has jurisdiction to consider an application to extend time to issue a notice of appeal beyond the 21 days specified in s. 12. The Court considered that the grounds set out in Mr Tobin?s notice of appeal, namely his reliance upon Law Society v Carroll and Another [2009] IESC 41 and a number of steps allegedly taken by Mr Tobin subsequent to the misconduct which grounded the application to submit that the trial judge was in error in exercising his discretion to make the orders which he made, met the relatively low threshold of being arguable grounds. The Court concluded that the grounds in Mr Callanan?s notice of appeal, including an alleged failure of the trial judge to give sufficient weight to mitigating factors, a significant departure from the recommendations as to sanction of the Solicitors Disciplinary Tribunal and the failure to give reasons for such departure, met the threshold of arguable grounds.

Finlay Geoghegan J held that, as the notice of appeal was lodged within 28 days of the perfection of the High Court order and thus within a relatively short period of the statutory time limit of 21 days in each case, the Court would extend the time for the issue of a notice of appeal in each case to the date upon which the notice of appeal was filed; in the case of Mr Tobin, that was the 23rd March, 2015 and in Mr Callanan?s case, the 13th May, 2015.

Appeal allowed.

JUDGMENT of the Court delivered on the 10th day of February 2016 by Ms. Justice Finlay Geoghegan

1 This first issue with which this judgment is concerned is an identical issue in motions relating to appeals sought to be brought by the appellants against orders of the High Court. Neither appellant lodged the notice of appeal within 21 days of the date of either the making of the order in the High Court or the date of perfection of the order.

2 Section 12 of the Solicitors (Amendment) Act 1960 as inserted by s. 39 of the Solicitors (Amendment) Act 1994 provides:

?The Society or the solicitor concerned may appeal to the Supreme Court against an order of the High Court made under s. 8 (1) (as substituted by the Solicitors (Amendment) Act, 1994) or s. 9 or 10 (as amended by the Solicitors (Amendment) Act, 1994) of this Act within a period of 21 days beginning on the date of the order, and unless the High Court or the Supreme Court otherwise orders, the order of the High Court shall have effect pending the determination of such appeal.?

3 In the case of Mr. Tobin the order sought to be appealed is an order of the High Court (Moriarty J.) made on the 13th February, 2015, on application by the Law Society. The order was that his name be struck from the roll of solicitors and for costs. It then provided:-

? That the Respondent do have leave to Appeal the within order and to lodge such appeal within such period as is provided for in order 58 or 86A of the Rules of the Superior Courts (as the case may be) and in the event of execution be further stayed until the further determination of such appeal.

4 It also provided a stay on the order for costs and for further applications to be made to the Court of Appeal. The order was perfected on the 24th February, 2014 and the notice of appeal was lodged on the 23rd March, 2015, in the Court of Appeal being within 28 days of the date of perfection of the order. It is the period referred to in O. 86A, r. 13(1) but ?Subject to any provision to the contrary in any enactment which applies to the particular category of appeal ??.

5 In the case of Mr. Callanan he seeks to appeal against an order of the High Court (Kearns P.) made on the 13th April, 2015 and perfected on the 16th April, 2015, in which it was ordered inter alia that he be prohibited from practicing as a solicitor for a period of ten years; apply to the High Court if he wished to resume practice at the expiration of the ten years and certain further consequential orders. A notice of appeal was lodged on his behalf on the 13th May. An attempt had been made to file the notice of appeal on the 7th May, but by reason of the absence of respondent's details it was not accepted.

6 Motions have been issued in each by the Law Society seeking to dismiss the appeal as out of time. In Mr. Callanan's case he has brought a motion to extend time and in Mr. Tobin's case it is accepted the Court should also deal with his application to extend time upon the basis of the affidavits sworn in the Law Society motion, the notice of appeal and High Court judgment.

7 Each of the intended appellants has put evidence on affidavit before the court in relation to when they formed the intention to appeal and other matters relevant to the exercise by the court of a discretion to extend time if such exists.

8 However, the first issue which requires to be addressed is the submission made on behalf of the Law Society in relation to each intended appeal that s. 12 of the 1960 Act imposes an absolute time limit within which an appeal to the Court of Appeal must be lodged in default of which each appellant is precluded from pursuing an appeal. It forms part of the submission that s. 12 excludes any jurisdiction in the Court of Appeal to extend the 21 day period referred to therein. Each of the intended appellants contests this submission in reliance upon Article 34.4.1 of the Constitution; case law relating to the former Article 34.3 in relation to the appellate jurisdiction of the Supreme Court; constitutional and other principles applicable to the construction of the statute; insofar as necessary Article 6.1 of the European Convention on Human Rights and ss. 2 and 3 of the Human Rights Act 2004 and the inherent jurisdiction of the courts.

9 The Court has had the benefit of written and oral submissions made on behalf of all parties which I have fully taken into account in reaching my decision on the proper construction of s. 12 of the 1960 Act. The constitutional context in which s. 12 of the 1960 Act applies in this application is Article 34.4.1 which provides:-

?1. The Court of Appeal shall ?

(i) save as otherwise provided by this Article, and

(ii) with such exceptions and subject to such regulations as may be prescribed by law,

have appellate jurisdiction from all decisions of the High Court, and shall also have appellate jurisdiction from such decisions of other courts as may be prescribed by law.?

10 Prior to the 33rd Amendment of the Constitution Act and at the time of the enactment of the current version of s. 12 of the 1960 Act, in 1994 Article 34.4.3 similarly provided insofar as relevant:-

?? the Supreme Court shall, with such exceptions and subject to such...