Mallon v Law Society

JurisdictionIreland
CourtHigh Court
JudgeMr. Justice Kelly
Judgment Date03 October 2017
Neutral Citation[2017] IEHC 547
Docket Number[2017 No. 27 SA]
Date03 October 2017

IN THE MATTER OF IAN MALLON SOLICITOR PRACTISING AS A SOLICITOR IN IAN MALLON SOLICITORS, 49, PATRICK STREET, NEWRY, CO. DOWN

AND

IN THE MATTER OF AN APPLICATION BY THE LAW SOCIETY OF IRELAND TO THE SOLICITORS DISCIPLINARY TRIBUNAL UNDER CASE REFERENCE NO. S10478/DT157/14

AND

IN THE MATTER OF THE SOLICITORS ACTS 1954-2013

AND

IN THE MATTER OF AN APPLICATION PURSUANT TO SECTION 7 OF THE SOLICITORS ACT 1960, AS SUBSTITUTED BY SECTION 17 OF THE SOLICITORS (AMENDMENT) ACT 1994 AND AS AMENDED BY SECTION 9 OF THE SOLICITORS (AMENDMENT) ACT 2002

BETWEEN
IAN MALLON
APPELLANT
AND
LAW SOCIETY OF IRELAND
RESPONDENT

[2017] IEHC 547

Kelly P.

[2017 No. 27 SA]

THE HIGH COURT

Professional Ethics & Regulation – Solicitors (Amendment) Act 2002 – Appeal in limine – Judicial review – Finding of misconduct – Right of appeal

Facts: The present application was brought by the respondent to strike out in limine the appeal filed by the appellant under s. 7(3) as substituted by s.9(A) of the Solicitors (Amendment) Act 2002. The primary contention made by the respondent was that the appellant had acted in contravention of s.5 of the Solicitors (Amendment) Act 2002. An estoppel argument, by way of a preliminary objection, was raised by the appellant and the Solicitors Disciplinary Tribunal (SDT) concluded that the same was without merit. In the appeal application, it was contended by the respondent that the inquiry could only be halted by a judicial review and no such review was requested in the present appeal.

Mr. Justice Kelly P. struck down the appeal in limine. The Court held that the right of appeal of solicitor arose only after a finding of misconduct had been made by the SDT. No such finding of misconduct was made against the appellant and, therefore, the statutory precondition for an appeal had not been met and that could be done only by means of a judicial review.

JUDGMENT of Mr. Justice Kelly , President of the High Court delivered on the 3rd day of October, 2017
Introduction
1

This is my judgment on an application by the respondent (the Law Society) to strike out in limine a purported appeal brought by the appellant (Mr. Mallon). The purported appeal has been brought by him in respect of what his notice of motion describes as a 'decision/finding of the respondent made on 16th day of February, 2017 that the appellant is not entitled to rely on a defence of estoppel against the Law Society in an application bearing the record no. S10478/DT157/14, before the Solicitors Disciplinary Tribunal'.

2

In fact, there is no such decision or finding of the Law Society. Mr. Mallon intends to refer to a determination made by the Solicitors Disciplinary Tribunal (SDT) of 16th February, 2017.

3

The Law Society contends that no appeal lies against that determination and therefore the purported appeal should be struck out for want of jurisdiction.

4

During the course of the hearing before me it appeared that both solicitor and counsel acting on behalf of Mr. Mallon failed in obligations of disclosure and candour both to the Disciplinary Tribunal and to this court. That matter will be the subject of a separate ruling.

Background
5

On 31st July, 2003 Mr. Mallon was admitted as a solicitor in this jurisdiction. Three years later he established the firm of Ian Mallon Solicitors. He is the principal of that firm and he practises at Ormond Quay in Dublin. That firm also operates in Northern Ireland with its principal offices there at Patrick Street in Newry, Co. Down. Mr. Mallon describes his practice as ' an undertaking which offers to provide and provides legal services, including personal injury legal services, to persons resident in Ireland and in the European Union'.

6

Mr. Mallon has been accused of misconduct by the Law Society. The SDT has commenced an inquiry in respect of those accusations and they are pending before that Tribunal.

The complaints
7

Two complaints have been made against Mr. Mallon by the Law Society. The first is that he had a direct or indirect connection, association or arrangement with Claims.ie and/or its operators and/or owners, whom he knew, or upon reasonable inquiry should have known, was acting or had acted in contravention of s.5 of the Solicitors (Amendment) Act 2002, which amounts to misconduct in accordance with s.3(d)(i) of the Solicitors (Amendment) Act 1960 as amended by s.24 of the Solicitors (Amendment) Act 1994 and s.7 of the Solicitors (Amendment) Act 2002.

8

The second complaint of misconduct is that Mr. Mallon allegedly accepted instructions to provide legal services to persons including the complainant which came via Claims.ie and/or its operators and/or owners, whom he knew, or upon reasonable inquiry should have known, was acting or had acted in contravention of s.5 of the Solicitors (Amendment) Act 2002, which amounts to misconduct in accordance with s.3(d)(ii) of the Solicitors (Amendment) Act 1960 as amended by s.24 of the Solicitors (Amendment) Act 1994 and s.7 of the Solicitors (Amendment) Act 2002.

9

Mr. Mallon denies these allegations of misconduct.

The SDT
10

On 17th January, 2017 the SDT convened to hear and consider these allegations against Mr. Mallon. It determined that it would hear an estoppel argument which had been raised by Mr. Mallon by way of a preliminary objection. That objection was heard on 16th February, 2017. On that occasion the SDT heard both evidence and submissions and came to the conclusion that the estoppel argument was without merit. The inquiry was adjourned until 13th March, 2017.

11

On 13th March, 2017 the SDT resumed the hearing but was met with an application for an adjournment by Mr. Mallon on a twofold basis. First, he sought an adjournment of the SDT hearing because he had on 3rd March, 2017 issued a plenary summons which inter alia challenged certain provisions of the Solicitors Acts. The second basis upon which he sought the adjournment was that he had on 7th March, 2017 commenced this purported appeal by a notice of motion of that date.

12

The Law Society opposed the application for the adjournment. Amongst other things it alleged that no appeal lay under the relevant legislation against the determination made by the SDT on the question of estoppel.

13

The SDT refused to grant the adjournment which was sought by reference to the plenary proceedings but it did grant the adjournment because of the existence of this purported appeal.

14

At no stage during the hearing of 13th March, 2017 was the SDT apprised of the fact that some few days beforehand on 9th March, 2017 Mr. Mallon had applied unsuccessfully to Stewart J. ex parte for an injunction seeking to restrain the SDT hearing of 13th March, 2017. The refusal of that injunction was not disclosed to this court during the course of the instant hearing until I happened to inquire during counsel's closing submission if an application for injunctive relief had ever been made on foot of the plenary summons. I was told for the first time that such an order had been sought and was refused. This fact had also not been disclosed to the Law Society at any stage until then. This non disclosure is compunded by the fact that certain correspondence which had been sent by the Law Society's solicitors to the plaintiff's solicitors prior to the application to Stewart J. was not disclosed to her either. I will deal with these various failures to disclose in a later ruling but I now turn to the Law Society's application to strike out the appeal in limine.

Disciplinary proceedings
15

Inquiries into allegations of misconduct on the part of solicitors are carried out pursuant to the provisions of the Solicitors Acts.

16

The SDT is created by those Acts and its functions and powers are derived from that legislation.

17

The right of appeal to this court from the SDT is likewise regulated by statutory provisions. Those provisions are s.7 of the Solicitors (Amendment) Act 1960 as substituted by s.17 of the Solicitors (Amendment) Act 1994 as amended by s.9 of the Solicitors (Amendment) Act 2002.

18

Section 7(3) as substituted by s.9(A) of the Solicitors (Amendment) Act 2002 provides that if the SDT finds that there is a prima facie case for inquiry (as in Mr. Mallon's case) '(a) they shall proceed to hold an inquiry ...' and '(b) when holding the inquiry the Disciplinary Tribunal shall – (i) consider each allegation of misconduct made against the respondent solicitor and (ii) make a separate finding in respect of each such allegation'.

19

Subsection 3(c) requires the SDT (on completion of the inquiry) to specify in a report to the High Court, inter alia, the nature of the application, the evidence laid before it and the finding on each allegation of misconduct. In the event that the SDT has made findings of misconduct but has not made and does not intend to make an order under subsection 9 imposing a sanction itself it must state its opinion as to the fitness or otherwise of the respondent solicitor to be a member of the solicitors profession and its recommendations as to the sanction which should be imposed. When such report is referred to this court, a full range of sanctions up to the striking off the Roll of a solicitor may be imposed.

20

The SDT is, pursuant to s.7(5) as substituted by s.9(b) of the Solicitors (Amendment) Act 2002, required to serve its report on the solicitor concerned and the Law Society not later than 21 days after its preparation.

21

Section 7(11) as substituted by s.9(f) of the Solicitors (Amendment) Act 2002 provides as follows:-

'(a) A respondent solicitor in respect of whom an order has been made by the Disciplinary Tribunal under subsection (9) of this section, or

(b) without prejudice to subsection (12) of this section, the Society or any person other than the Society who has made an application under subsection (1) of this section, may, within the period of 21 days...

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