McMahon v Law Society of Ireland

• Jurisdiction: Ireland
• Judge: Mr. Justice Herbert
• Judgment Date: 10 July 2009
• Neutral Citation: [2009] IEHC 339
• Court: High Court
• Date: 10 July 2009

[2009] IEHC 339

THE HIGH COURT

[No. 1696 J.R./2007]

McMahon v Law Society of Ireland

BETWEEN

DENIS McMAHON

APPLICANT

AND

THE LAW SOCIETY OF IRELAND

RESPONDENT

AND

THE SOLICITORS DISCIPLINARY TRIBUNAL

NOTICE PARTY

RSC O.84 r21

ADAMS v DPP & ORS 2001 2 ILRM 401 2000/1/52

G v DPP & KIRBY 1994 1 IR 374 1994/3/724

SOLICITORS (AMDT) ACT 1994 S9(1)

SOLICITORS (AMDT) ACT 1994 S9

SOLICITORS (AMDT) ACT 1994 S8

SOLICITORS (AMDT) ACT 1994 S8(1)

SOLICITORS (AMDT) ACT 1994 S2

O'DRISCOLL & GRATTAN D'ESTERE ROBERTS v LAW SOCIETY OF IRELAND & SOLICITORS DISCIPLINARY TRIBUNAL UNREP 27.7.2007 2007/48/10302 2007 IEHC 352

SOLICITORS (AMDT) ACT 1994 S8(2)

SOLICITORS (AMDT) ACT 1960 S6A

CIVIL LAW (MISCELLANEOUS PROVISIONS) ACT 2008 S36

SOLICITORS (AMDT) ACT 1994 S14A

CIVIL LAW (MISCELLANEOUS PROVISIONS) ACT 2008 S40

SOLICITORS (AMDT) ACT 1960 S7

SOLICITORS (AMDT) ACT 1994 S17

SOLICITORS (AMDT) ACT 1994 S14B

CIVIL LAW (MISCELLANEOUS PROVISIONS) ACT 2008 S41

SOLICITORS (AMDT) ACT 1994 S10

SOLICITORS (AMDT) ACT 1960 S3

SOLICITORS (AMDT) ACT 1994 S24

SOLICITORS (AMDT) ACT 2002 S7

SOLICITORS (AMDT) ACT 1994 S10(1)

SOLICITORS (AMDT) ACT 1960 S7(2)

NATIONAL IRISH BANK LTD, IN RE (NO 1) 1999 3 IR 145 1999 1 ILRM 321 1998/27/10834

MILEY v FLOOD (PLANNING TRIBUNAL) & LAW SOCIETY OF IRELAND 2001 2 IR 50 2001 1 ILRM 489 2003/36/8641

O CEALLAIGH v BORD ALTRANAIS 2000 4 IR 54 2000/2/648

SOLICITORS (AMDT) ACT 1994 S9(1)(A)

SOLICITORS (AMDT) ACT 1994 S9(1)(B)

O'MAHONY v BALLAGH & DPP 2002 2 IR 410 2001/19/5350

J & E DAVY (T/A DAVY) v FINANCIAL SERVICES OMBUDSMAN & ORS UNREP CHARLETON 30.7.2008 2008/30/6639 2008 IEHC 256

BAILEY & BOVALE DEVELOPMENTS LTD v FLOOD (PLANNING TRIBUNAL) UNREP MORRIS 6.3.2000 2000/2/457

BRENNAN & ORS v GOVERNOR OF PORTLAOISE PRISON UNREP SUPREME 12.3.2008 2008/4/657 2008 IESC 12

BRENNAN v LOCKYER & ORS 1932 IR 100

R v STRATFORD UPON AVON DISTRICT COUNCIL, EX PARTE JACKSON 1985 3 AER 769 1985 1 WLR 1319

DE ROISTE v MIN FOR DEFENCE & ORS 2001 1 IR 190 2001 2 ILRM 241 2001 ELR 33 2001/6/1371

O'DONNELL v DUN LAOGHAIRE CORP 1991 ILRM 301 1990/8/2084

CONNOLLY v DPP & JUDGES OF METROPOLITAN DISTRICT COURT 2003 4 IR 121 2003/9/1961

DPP v O'C (P) UNREP CCA 27.1.2003 2003/19/4280

DEKRA EIREANN TEORANTA v MIN FOR ENVIRONMENT 2003 2 IR 270 2003 2 ILRM 210 2003/12/2484

DPP v MONAGHAN UNREP CHARLETON 14.3.2007 2007/20/4140 2007 IEHC 92

FAULKNER v MIN FOR INDUSTRY 1997 8 ELR 107 1997/3/953

GAMMELL v DUBLIN CO COUNCIL 1983 ILRM 413 1983/2/490

DUFFY, STATE v MIN FOR DEFENCE 1979 ILRM 65

AINSWORTH & ANOR v CRIMINAL JUSTICE CMSN 1992 106 ALR 11 1992 175 CLR 564 1992 HCA 10

R v ASSOCIATION OF FUTURES BROKERS & DEALERS LTD & ANOR, EX PARTE MORDENS LTD 1991 3 ADMIN LR 254

MCNAMARA v ONTARIO RACING CMSN 1998 164 DLR (4TH) 99

Solicitors

Discipline

Fair procedures - Preliminary investigation - Inquiry into alleged misconduct of applicant - Whether failure to afford fair procedures to applicant during course of investigation - Complaint of overcharging - Whether complaint of overcharging merited application for inquiry by disciplinary tribunal - Applicable principles of law - Legislative scheme - Meaning of misconduct - Whether applicant on notice that Committee considering misconduct - Whether entitled to be expressly informed of precise nature of investigation being conducted - Whether reasons should have been given for decision - Alleged failure of to comply with provisions of Solicitors (Amendment) Act 1994 - Whether any delay in seeking leave to apply for judicial review - Alleged failure to put material facts before court - Whether any failure on the part of the applicant to act with the utmost candour - Ceallaigh v An Bord Altranais [2000] 4 IR 54; De Roiste v Minister for Defence [2001] 1 IR 190; O'Donnell v Dun Laoghaire Corporation [1991] ILRM 301; Connolly v Judges Metropolitan District Court [2003] 4 IR 121; DPP v POC (Unrep, CCA 27/1/2003); Dekra Eireann Teo v Minister for Environment [2003] 2 IR 270; DPP v Monaghan [2007] IEHC 92, (Unrep, HC, Charleton J, 14/3/2007); Faulkner v Minister for Industry [1997] 8 ELR 107; Gammell v Dublin County Council [1983] ILRM 413; State (Duffy) v Minister for Defence [1979] ILRM 65; Ainsworth v Criminal Justice Commission [1992] 106 ALR 11; R v Association of Futures Brokers & Dealers Ltd [1991] 3 Admin LR 254; McNamara v Ontario Racing Commission [1998] 164 DLR (4th) 99; O'Mahony v Ballagh [2002] 2 IR 410; Adams v Director of Public Prosecutions [2001] 2 ILRM 401; G v Director of Public Prosecutions [1994] 1 IR 374; J & E Davy v Financial Services Ombudsman [2008] IEHC 256, (Unrep, HC, Charleton J, 30/7/2008); Bailey v Flood (Unrep, HC, Morris J, 6/3/2000); Brennan v Governor of Portlaoise Prison [2008] IESC 12, (Unrep, SC, 12/3/2008); Brennan v Lockyer [1932] IR 100; R v Stratford upon Avon DC [1985] 1 WLR 1319 and State (Elm Developments Limited) v An Bord Pleanála [1981] ILRM 108 considered; Re National Irish Bank Ltd (No 1) [1999] 3 IR 145 and O'Driscoll v Law Society [2007] IEHC 352, (Unrep, HC, McKechnie J, 27/7/2007) applied; Miley v Flood [2001] 2 IR 50 distinguished - Solicitors (Amendment) Act 1960 (No 37), ss 3, 6A and 7 - Solicitors (Amendment) Act 1994 (No 27), ss 8, 9(1), 10, 14A, 14B, 17 and 24 - Solicitors (Amendment) Act 2002 (No 19), s 7 - Civil Law (Miscellaneous Provisions) Act 2008 (No 14), ss 36, 40 and 41 - Rules of the Superior Courts 1986 (SI 15/1986) O 84, r 21 - Application granted (2007/1696JR - Herbert J - 10/7/2009) [2009] IEHC 339

McMahon v Law Society of Ireland

Facts The applicant, who was a Solicitor, sought by way of judicial review an order of certiorari quashing the decision of the Complaints and Client Relations Committee of the respondent to apply to the notice party for an inquiry into the conduct of the applicant, on grounds of alleged misconduct. A previous client of the applicant submitted a complaint to the respondent regarding alleged overcharging by the applicant. The applicant received a letter from the respondent regarding the complaint and was invited to furnish his observations and any necessary explanations and 'where appropriate' his proposals to resolve the matter by agreement. Enclosed with that letter was a copy of the respondent's booklet entitled 'Resolving Complaints'. The applicant submitted that the complaint related solely to the issue of overcharging and therefore came within the provisions of s. 9 of the Act of 1994. The applicant's challenge to the decision of the respondent to apply for an inquiry into alleged misconduct on his part was based on the failure of the respondent to inform him of the nature or any perceived misconduct on his part and that it proposed to investigate alleged misconduct.

Held by Herbert J. in granting the relief sought: That the applicant was denied the most basic fair procedures, as he was not expressly informed of the precise nature of the investigation being conducted by the Committee. The applicant was entitled to consider from the correspondence and documentation that the sole matter under investigation was the litigant's claim that he had been overcharged by the applicant, and the circumstances, in which that was alleged to have occurred. The applicant was quite unfairly not advised of the respondent's decision to look into the question of possible general misconduct on the part of the applicant, nor was the applicant advised of any matter which the respondent perceived as constituting misconduct or given a reasonable opportunity to consider matters and address those matters. The complaint regarding overcharging fell within the terms of s. 9 of the Act of 1994 and the primary obligation imposed on the respondent by s. 9 was to seek to resolve the dispute concerning the alleged overcharging and that was not done.

Reporter: L.O'S.

1 Mr. Justice Herbert delivered on the 10th day of July 2009

2 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 17 ^th 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 26 ^th 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.

3 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 10 ^th 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 10 ^th March, 2008. A replying affidavit was sworn by the applicant on the 17 ^th June, 2008.

THE FACTS

4 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...