Mc Mahon -v- The Law Society of Ireland, [2009] IEHC 339 (2009)

Docket Number:2007 1696 JR
Party Name:Mc Mahon, The Law Society of Ireland
Judge:Herbert J.
 
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THE HIGH COURT2007 1696 JR

BETWEEN

DENIS McMAHONAPPLICANTAND

THE LAW SOCIETY OF IRELANDRESPONDENTAND

THE SOLICITORS DISCIPLINARY TRIBUNALNOTICE PARTYJUDGMENT of Mr. Justice Herbert delivered on the 10th day of July 2009

The applicant is a Solicitor, practising in the State, and is subject to the disciplinary powers of the Law Society of Ireland (hereinafter referred to as the Society), conferred upon it by the terms of the Solicitors Acts, 1954 - 2002. By leave of this Court granted on the 17th December, 2007, the applicant was given leave to seek judicial review, in the form of an order of certiorari, directing that the decision of the Complaints and Client Relations Committee of the Society made on the 26th September, 2007, to apply to the Solicitors Disciplinary Tribunal for an inquiry into the conduct of the applicant, on grounds of alleged misconduct, be delivered up and quashed.

The application is grounded on the affidavit of Patrick Groarke, Solicitor, of Groarke and Partners, Solicitors for the applicant. A Statement of Opposition was delivered on behalf of the respondent on the 10th March, 2008 and is verified by the affidavit of Linda Kirwan, Solicitor, and Secretary of the Complaints and Client Relations Committee (hereinafter referred to as the Committee), sworn on the 10th March, 2008. A replying affidavit was sworn by the applicant on the 17th June, 2008.

THE FACTS

The applicant had acted as his solicitor for a litigant, M.O'S. in a personal injuries claim which the litigant asserts he was led to believe was settled in November 2003, for the sum of 22,000. The litigant stated that he had received a cheque for this amount and at the same time a request from the applicant to endorse over a cheque for 3,000. The litigant stated that he assumed that this sum of 3,000 was for the applicant's costs. As a result of a news-media exposé of overcharging of clients by solicitors acting in personal injury claims, he re-contacted the applicant in November, 2005. He stated that he was promised a detailed statement of account within two or three days but no such statement was furnished. He stated that he persisted in his complaints and that eventually on the 10th November, 2005, he received a party and party account. He stated that the applicant accepted that the case had been settled for 25,000 together an agreed sum of 4,700 for the applicant's professional fees. The applicant contended that the litigant was at all times aware that the case had been settled for 25,000 and had authorised in writing the deduction of 3,000. However, on the 17th November, 2005, the applicant, without any admission, repaid the sum of 3,000 to the litigant. Despite this repayment, on the 15th February, 2007, the Society received by Email a complaint from the litigant.

DISCUSSION

Two preliminary objections to this application were taken by the respondent.

Counsel of the respondent submitted that the applicant was not entitled to the reliefs sought by reason of his failure to take the application for judicial review promptly. I find that the date when grounds for the application first arose was the 26th September, 2007. This was the date of the decision of the Committee to seek an inquiry by the Solicitors Disciplinary Tribunal. This decision was announced on that day in the presence of Mr. Patrick Groarke, Solicitor for the applicant. The application for leave to seek judicial review was made on the 17th December, 2007. Though almost three calendar months were permitted to elapse by the applicant, his application was still made well in advance of the ultimate date specified in O. 84, r. 21 of the Rules of the Superior Courts.

This rule provides that an application for leave to apply for judicial review shall be made promptly and, in any event, within six months from the date when grounds for the application first arose, where the relief sought is certiorari, unless the court considers that there is good reason for extending the period within which the application shall be made. While reflecting and reinforcing a centuries old Rule of Law requiring that applications for relief of this nature must be made promptly, the Statutory Instrument provides a yardstick by reference to which this paramount requirement to act promptly may be judged. In the complete absence of any evidence of circumstances by reference to which justice and fairness, would demand that the application in the instant case be made within a period shorter than six months, I find that it would be altogether unreasonable and entirely disproportionate were this Court to conclude that there was delay on the part of the applicant in seeking leave to apply for judicial review. Therefore, there is no requirement for the court to consider an extension of time.

It was further submitted by counsel for the respondent that the reliefs sought by the applicant should be refused, because of an alleged failure to put material facts before the court in seeking leave, ex parte, to apply for judicial review. The legal principles which govern such an application were stated by Kelly J. in Adams v. The Director of Public Prosecutions [2001] 2 I.L.R.M. 401 at 416, where he held that:-

On any application made ex parte the utmost good faith must be observed, and the Applicant is under a duty to make a full and fair disclosure of all of the relevant facts of which he knows, and where the supporting evidence contains material misstatements of fact or the Applicant has failed to make sufficient or candid disclosure, the ex parte order may be set aside on that very ground. . . .

The obligation extends to counsel. There is an obligation on the part of counsel to draw the judge's attention to the relevant Rules, Acts or case law which might be germane to his consideration. That is particularly so where such material would suggest that an order of the type sought ought not to be made.

In the instant case, counsel for the respondent submitted, that the ex parte Order made on the 17th December, 2007, should be set aside because of a failure on the part of the applicant or of counsel for the applicant, to disclose the following facts which, counsel stated, were very relevant and germane to the decision of Birmingham J. to grant the leave sought:-

  1. The leaflet or booklet which was enclosed with the letter dated the 22nd February, 2007, by which the respondent notified the applicant of the complaint received from the litigant and, with the letter dated the 5th July, 2007, enclosing a copy of the Preliminary Report of the Secretary of the Committee and, notifying the applicant of the meeting of that Committee and, of his right to attend or to be represented at that meeting and, which identified six sanctions which could be imposed by the Committee, including a referral to the Solicitors Disciplinary Tribunal.

  2. The eight reasons why the committee considered that the applicant had been guilty of professional misconduct in his practice as a Solicitor, and which it considered merited an application for an inquiry by the Solicitors Disciplinary Tribunal and, which were set out at para. 10 of the affidavit of Ms. Kirwan, Secretary of the Committee sworn on the 12th October, 2007, which formed the basis of the application of even date seeking that inquiry.

    The issue which the learned judge had to determine was, whether the applicant had made out a stateable ground for the relief sought [G. v. The Director of Public Prosecutions and Another [1994] 1 I.R. 374 at 377 - 378, per. Finlay C.J.]. That is, whether the applicant had demonstrated that the process by which the decision reached by the Committee to seek an inquiry by the Solicitors Disciplinary Tribunal was ultra vires. The grounds set out in s. (e) of the Statement of grounds, as verified by the affidavit of Patrick Groarke, Solicitor for the applicant, sworn on the 17th December, 2007, were as follows:-

    "No issue of overcharging remained outstanding at the date of the complaint, which could be investigated pursuant to the provisions of s. 9 of the Solicitors (Amendment) Act 1999, as the full disputed sum of 3,000 had been repaid by the applicant to the litigant prior to the latter making any complaint to the Society.

    The Committee had purported to reach its decision without first taking all appropriate steps to resolve the matter by agreement between the parties, which was a pre-condition to the Committee exercising any other power whatsoever under the provisions of s. 9 of the Solicitors (Amendment)Act 1994.

    The Committee had declined to give any reasons for its decision and, had merely stated that the basis for its decision would be set out in due course."

    The applicant was granted leave to seek judicial review on these grounds. In the written submissions filed on behalf of the applicant and on behalf of the respondent and, also during the course of argument before the court at the hearing of the application for judicial review, it was accepted by counsel for the respective parties, that the matters in question between them also encompassed the issue of whether the Committee, arising from the complaint, was entitled to consider the applicant's conduct generally in the matter. The applicant contends, that the Committee was strictly confined to considering only the question of alleged overcharging, but if this was not the case, fair procedures required that he ought to have been advised that an investigation of his general conduct in the matter was being conducted. This issue was in fact first raised by the Statement of Opposition filed by the respondent, at para. 4, 6, and 7 thereof.

    It is pleaded at para. 3(i) of the Statement of Opposition and, counsel for the respondent submitted, that the text of this leaflet or booklet in pointing to the powers of the Committee, had put the applicant on notice of the fact that the Committee was looking into his conduct generally and, that it had the option of sending him forward to the Tribunal...

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