Law Society of Ireland v Coleman
| Jurisdiction | Ireland |
| Judge | Mr. Justice Binchy |
| Judgment Date | 07 December 2022 |
| Neutral Citation | [2022] IECA 277 |
| Court | Court of Appeal (Ireland) |
| Docket Number | Appeal Number: 2021/13 |
[2022] IECA 277
Whelan J.
Faherty J.
Binchy J.
Appeal Number: 2021/13
THE COURT OF APPEAL
Dishonesty – Disciplinary proceedings – Conduct – Appellant appealing against a finding of dishonesty – Whether the test for establishing dishonesty in the context of disciplinary proceedings is one based on a subjective or objective assessment of the conduct involved
Facts: The Court of Appeal, on 11th January 2022, handed down two decisions in proceedings entitled Law Society of Ireland v Doocey [2022] IECA 2; the principal judgment being delivered by Donnelly J and a concurring judgment being delivered by Collins J. It appeared to Binchy J that those judgments addressed issues that had also been raised by the appellant, Mr Coleman, specifically: whether or not the High Court may make a finding of dishonesty in the conduct of a solicitor where the allegations made by the respondent, the Law Society of Ireland (the Society), in the course of disciplinary proceedings against a solicitor do not expressly allege dishonesty; and whether or not the test for establishing dishonesty in the context of disciplinary proceedings is one based on a subjective or objective assessment of the conduct involved. The Court decided to afford the parties the further opportunity to make written submissions regarding the potential impact of the decision in Doocey. The parties were afforded fourteen days within which to do so. That period ended on 4th July. A hard copy of the submissions of the Society was received and stamped in the office on 4th July; a soft copy was also delivered on that date. The appellant attempted to file a soft copy of his submissions on 5th July, but owing to the fact that the Courts Service was at the time in the course of changing software, electronic receipt of an e-mail from the appellant enclosing his submissions was delayed. The Court proceeded to finalise its judgment (the Principal Judgment) which was delivered on 11th July. Even though 5th July was one day after the deadline set for submissions, the Court would nonetheless have received them and taken them into account in arriving at its decision. The Court was of the view that it was appropriate to give the appellant’s submissions due consideration and to reconsider the Principal Judgment in light of those submissions. In his submissions, the appellant sought to distinguish Doocey and submitted that there was nothing about the decision in Doocey that was inconsistent with the submissions made by the appellant in the appeal. The appellant further submitted that the Court should not apply, retrospectively, a test for dishonesty laid down subsequent to the conduct in issue, relying upon Prendiville v Medical Council [2008] 3 IR. The Society submitted that the decision in Doocey supported the conclusions of the High Court in the judgment under appeal.
Binchy J held that: (i) the appellant admitted certain facts, the knowledge of which met the subjective element of the test in Doocey; (ii) the facts admitted by him were in terms of allegations that he himself accepted “connoted dishonesty”; (iii) the trial judge did not conclude that the appellant was guilty of dishonest conduct on the basis of a test of strict liability and his conclusion on the issue of dishonesty was correct, was grounded on the specific facts of the case and the admissions made by the appellant, and was consistent with the test for dishonesty articulated by Donnelly J in Doocey; and (iv) there was no question of retrospective application of a new test of dishonesty, the criteria for dishonesty identified by Doocey always represented the law in Ireland’s jurisdiction, nor was there any question of a “new species of conduct...amounting to professional misconduct”, per Prendiville.
Binchy J held that the submissions of the appellant must be rejected, and the decision handed down on 11th July 2022 affirmed.
Appeal dismissed.
JUDGMENT of Mr. Justice Binchy delivered on the 7 th day of December 2022
. Following upon the conclusion of the hearing of this appeal, a different division of this Court, on 11 th January of this year, handed down a decision in proceedings entitled Law Society of Ireland v. Doocey [2022] IECA 2. In fact, there were two decisions of the Court handed down in that appeal, the principal judgment being delivered by Donnelly J. and a concurring judgment being delivered by Collins J.
. It appeared to me that these judgments addressed a significant issue that had also been raised by these proceedings, specifically whether or not the High Court may make a finding of dishonesty in the conduct of a solicitor where the allegations made by the Law Society of Ireland (the “Society”) in the course of disciplinary proceedings against a solicitor do not expressly allege dishonesty. Secondly, the Court also addressed the question as to whether or not the test for establishing dishonesty in the context of disciplinary proceedings is one based on a subjective or objective assessment of the conduct involved.
. Since these issues were of direct relevance to certain grounds of appeal raised by the appellant in these proceedings, the Court decided to afford the parties the further opportunity to make written submissions regarding the potential impact of the decision in Doocey to a determination of a number of issues arising in this appeal. The parties were afforded fourteen days within which to do so. That period ended on 4 th July. A hard copy of the submissions of the Society was received and stamped in the office on 4 th July. A soft copy was also delivered by the Society on that date.
. The appellant did not file a hard copy of his submissions, but instead attempted to file them in soft copy form only. He attempted to do so on 5 th July, one day after the deadline, but regrettably, owing to the fact that the Courts Service was at the time in the course of changing software, electronic receipt of some e-mails was delayed, and included in these e-mails was an e-mail from the appellant of 5 th July enclosing his submissions.
. Both the Court and the Court office were wholly unaware of this state of affairs until 19 th July, when the Court office belatedly received delivery by e-mail, of the appellant's said submissions, and the Court was then notified of this development. In the meantime, however, not having heard anything at all from the appellant, the Court proceeded to finalise its judgment (the “Principal Judgment”) which was delivered on 11 th July. Even though 5 th July was one day after the deadline set for submissions, it is fair to say that the Court would nonetheless have received them and taken them into account in arriving at its decision, had it received the submissions on that date, or indeed on any day prior to delivery of the Principal Judgment. Thus, in the circumstances that arise here, the court is of the view that it is appropriate to give the submissions of the appellant due consideration and to reconsider the Principal Judgment in light of those submissions which it hereby does.
. In his submissions, the appellant seeks to distinguish Doocey. It is submitted that the trial judge in this case determined that the conduct of the appellant was dishonest by reference to a test of strict liability, without any analysis of the appellant's understanding or belief as to the facts. In this regard the appellant refers to the statement of the trial judge at para. 232 of his judgment (quoted at para.160 of the Principal Judgment):
“There are no circumstances in which it would be proper for one solicitor to place another solicitor's name on a contract without the written authority of the latter, and without indicating on the contract that the signature was not that of the other solicitor.”
. The appellant also points out that in Doocey the appellant/respondent had admitted misconduct in the High Court, whereas in this case the appellant had, in the High Court, contended that the admissions that he had made to the Tribunal had been made in circumstances of procedural unfairness, which rendered his admissions unsafe and unreliable.
. The appellant submits that where liability for misconduct is in issue, due process requires an identified test for dishonesty to be satisfied. The appellant contends that as a result of the approach taken by the trial judge in these proceedings,...
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