Michael O'Sullivan v Law Society of Ireland and Another

JurisdictionIreland
JudgeMr Justice John Edwards
Judgment Date31 July 2009
Neutral Citation[2009] IEHC 632
CourtHigh Court
Date31 July 2009

[2009] IEHC 632

THE HIGH COURT

[No. 50 J. R./2008]
O'Sullivan v Law Society of Ireland & Solicitors Disciplinary Tribunal
JUDICIAL REVIEW
IN THE MATTER OF THE SOLICITORS ACTS 1954 - 2002

BETWEEN

MICHAEL O'SULLIVAN
APPLICANT

AND

THE LAW SOCIETY OF IRELAND AND THE SOLICITORS DISCIPLINARY TRIBUNAL
RESPONDENTS

SOLICITORS ACT 1954 S73(1)

SOLICITORS (AMDT) ACT 1994 S8

SOLICITORS (AMDT) ACT 1994 S9

SOLICITORS (AMDT) ACT 1994 S10

SOLICITORS (AMDT) ACT 1994 S17

SOLICITORS (AMDT) ACT 2002 S9

SOLICITORS (AMDT) ACT 1960 S7

SOLICITORS (AMDT) ACT 1960 S6

SOLICITORS (AMDT) ACT 1994 S16

SOLICITORS (AMDT) ACT 1994 S15

SOLICITORS (AMDT) ACT 1960 S16

SOLICITORS (AMDT) ACT 1994 S68

SOLICITORS (AMDT) ACT 1994 S68(3)

SOLICITORS (AMDT) ACT 1994 S68(4)

SOLICITORS (AMDT) ACT 1994 S68(5)

SOLICITORS (AMDT) ACT 1994 S68(6)

SOLICITORS (IRL) ACT 1849 S2

SOLICITORS (AMDT) ACT 1994 S68(1)

SOLICITORS (AMDT) ACT 1994 S68(8)(A)

SOLICITORS (AMDT) ACT 1994 S68(8)(B)(ii)

SOLICITORS ACT 1954 S66(17)

RSC O.7 r2

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 6

RSC O.84 r20(8)(A)

SOLICITORS (AMDT) ACT 1994 S24

SOLICITORS (AMDT) ACT 1994 PART III

DOUPE v LIMERICK CO COUNCIL & O'CONNOR 1981 ILRM 456 1983/5/1313

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

MILEY v JUSTICE FLOOD (TRIBUNAL OF INQUIRY INTO CERTAIN PLANNING MATTERS & PAYMENTS) 2001 2 IR 50 2001 1 ILRM 489 2003/36/8641

NURSES ACT 1985 PART V

NURSES ACT 1985 S38

REES & ORS v CRANE 1994 2 AC 173 1994 2 WLR 476 1994 1 AER 833

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

CHRISTIE & ANOR v LEACHINSKY 1947 AC 573 1947 1 AER 567

O'LAIGHLEIS, IN RE 1960 IR 93

SOLICITORS (AMDT) ACT 1994 S9(1)

SOLICITORS (AMDT) ACT 1994 S9(2)

SOLICITORS (AMDT) ACT 1994 S9(3)

SOLICITORS (AMDT) ACT 1994 S9(4)

SOLICITORS (AMDT) ACT 1994 S11

SOLICITORS DISCIPLINARY TRIBUNAL RULES 2003 ART 6(A)

STEPHENS v PAUL FLYNN LTD 2008 4 IR 31 2008/59/12277 2008 IESC 4

O'FLYNN & EAMON O'FLYNN & SONS LTD v BUCKLEY & ORS 2009 3 IR 311 2009/45/11278 2009 IESC 3

PRIMOR PLC v STOKES KENNEDY CROWLEY & OLIVER FREANEY & CO 1996 2 IR 459 1995/20/5287

BRENNAN v FITZPATRICK & ORS UNREP SUPREME 23.11.2001 2001/2/430

ROGERS v MICHELIN TYRE PLC & MICHELIN PENSIONS TRUST (NO 2) LTD UNREP CLARKE 28.6.2005 2005/53/11045 2005 IEHC 294

B (J) v DPP UNREP SUPREME 29.11.2006 2006/5/797 2006 IESC 66

RYAN (T/A CHRIS RYAN SOLICITOR) v LAW SOCIETY OF IRELAND 2002 4 IR 21 2002/24/6165

FLYNN v AN POST 1987 IR 68 1987/2/621

DE ROISTE v MIN FOR DEFENCE & ORS 2001 1 IR 190 2001 2 ILRM 241 2001 12 ELR 33 2001/6/1371

PROFESSIONS

Solicitors

Disciplinary procedures - Judicial review - Dispute between applicant and client regarding costs - Application for inquiry into conduct of applicant - Whether failure by first respondent to observe fair procedures and natural justice - Whether first respondent in breach of principle of audi alteram partem - Whether preliminary investigation by first respondent - Whether first respondent obliged to afford applicant full spectrum of natural justice rights - Whether first respondent acted irrationally - Whether first respondent failed to give reasons - Whether first respondent acted ultra vires - Whether inordinate delay by first respondent - Whether applicant prejudiced by delay - O'Driscoll v Law Society of Ireland [2007] IEHC 352, (Unrep, McKechnie J, 27/7/2007) distinguished - State (Shannon Atlantic Fisheries) v McPolin [1976] IR 93; Doupe v Limerick County Council [1981] IR 75 and Ó Ceallaigh v An Bord Altranais [2000] 4 IR 54 considered - Solicitors (Amendment) Act 1994 (No 27), ss 8, 9 17 and 24 - Reliefs refused (2008/50JR - Edwards J - 31/7/2009) [2009] IEHC 632

O'Sullivan v Law Society of Ireland

Facts: The applicant was a solicitor who practiced in Ireland. The first named respondent was the applicant?s professional body. The second named respondent was the Solicitors Disciplinary Tribunal, a body independent of the first respondent. On the 17th September 2007, the first respondent requested the second respondent to conduct an inquiry into the applicant on the grounds of suspected misconduct pursuant to the Solicitors (Amendment) Act 1994 (?the 2004 Act?). On the 21st of January 2008, the applicant obtained leave to apply for judicial review in order to gain a number of reliefs. These included an order of certiorari to quash the decision of the first respondent to request the inquiry and an order of prohibition to restrain the second respondent from conducting such an inquiry.

The basis of the alleged misconduct was a professional fee the applicant charged a client for a personal injuries action he was involved in. The complaints made by the applicant?s client at the time included that in settling the claim, the applicant charged an excessive professional fee which did not give a breakdown of the fee, and that he failed to give said breakdown when a reasonable request was made. It was further alleged that the applicant deducted his fee from the settlement figure without his client?s permission.

The applicant submitted four main issues in support of his application. Firstly, he claimed that the respondents had failed to follow fair procedures as well as natural and constitutional justice. This was based on specific complaints that included the applicant not being furnished with investigation materials, correspondence or proper notification of the complaints that had been made. Secondly, it was alleged that the respondents had unreasonably decided to refer the complaints and then initiate an inquiry. Thirdly, it was claimed the respondents had acted ultra vires of their statutory power. It was claimed that s.9 of the 2004 Act outlined that ?when invoked, [it] treats a complaint of overcharging as primarily being a matter between the client and his solicitor with the Law Society acting as mediator either by achieving an agreed settlement or imposing a just solution?. Because the complaint was concerned with the amount of the professional fee charged, a referral for an inquiry was not the correct procedure in order to deal with the matter. Fourthly, it was claimed the first respondent?s delay in requesting an inquiry after the complaint was originally made was unreasonable.

Held by Edwards J that on the first issue, it was clear from the evidence that the applicant had been treated fairly as he has been informed of the substance of the complaints made against him, furnished with the documentation and correspondence relevant to his case, invited to respond in writing to the complaints made, and allowed an opportunity to appear in person before the relevant committee to be heard. On the second issue, it was decided that the first and second respondents were entitled to refer and initiate an inquiry respectively based on the seriousness of the complaints which had been made, as well as the fact they were not easily answerable without an inquiry. The conduct of the respondents was therefore deemed rational.

On the third issue, the court held that whilst there was a question of the reasonableness of the professional fee charged, the issue of overcharging was not a specific complaint made against the applicant, and it certainly was not the primary one. On that basis, it was said that s. 9 of the 2004 Act had no bearing on the case and the decision to refer was not ultra vires. On the fourth issue, it was held that there was a delay on the part of the first respondent in referring the complaint to the second respondent but that this was not so gross to convince the court to effectively discontinue the disciplinary process against the applicant. No specific prejudice to the applicant was demonstrated, and there was a public interest in the process being allowed to continue.

Application rejected.

1

JUDGMENT of Mr Justice John Edwards delivered on the 31st day of July, 2009

Introduction
2

The applicant in this matter is a practising solicitor with offices at 41 Lower Baggot Street, Dublin 2.

3

The first named respondent (otherwise "the Law Society of Ireland", or "the Society") is the professional body for solicitors practising in this jurisdiction. The first named respondent traces its origins back to 1773. and it has operated since then in various incarnations and under various different names including the Society of Attorneys, the Law Club of Ireland, the Society of Attorneys and Solicitors, the Incorporated Law Society of Ireland and, latterly, following the enactment of the Solicitors (Amendment) Act 1994 (otherwise the Act of 1994), as the Law Society of Ireland. It was incorporated by royal Charter dated 1852. Those interested will find an overview of the origins of the Society in a collection of essays edited by Dr Eamonn G. Hall and Daire Hogan entitled "The Law Society of Ireland 1852 - 2002: Portrait of a Profession"(Four Courts Press; 2002), as well as in "The Legal Profession in Ireland 1789 - 1922" (ILSI; 1986) also by Daire Hogan.

4

The modern legislative basis for the Law Society of Ireland is set out in the Solicitors Acts 1954 - 2002 and the first named respondent is charged with the duties and obligations entrusted to it under that legislative code.

5

The Law Society of Ireland is governed by a Council, comprised of elected and nominated members of the profession. The statutory functions of the Society, as set out in the Solicitors Acts 1954 - 2002, are exercised by the Council or by committees to which the Council delegates those functions.

6

The Council's statutory functions can be divided into three broad categories namely, (i) the education and admission of solicitors; (ii) the regulation of practise by, and the discipline of, solicitors; and (iii) the protection of...

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7 cases
  • Sandys & Brophy v Law Society of Ireland
    • Ireland
    • High Court
    • 12 June 2015
    ...ran in tandem with the section 9 investigation and that a similar situation arose in the case of O' Sullivan v. Law Society [2009] IEHC 632. In O' Sullivan, Edwards J. considered the level of fair procedures required in the following terms:- "What level of fair procedures and natural justic......
  • TR v Child & Family Agency
    • Ireland
    • High Court
    • 27 July 2017
    ...overall procedure for the investigation and hearing of the disciplinary charge. The Supreme Court affirmed the judgment of Edwards J. [2009] IEHC 632 who examined the issue in this way:- ‘What level of fair procedures and natural justice rights was the applicant entitled to? It seems to th......
  • Case Number: ADJ-00001266. Workplace Relations Commission
    • Ireland
    • Workplace Relations Commission
    • 1 March 2018
    ...sanction and did not attract In Re Haughey rights. The respondent also refers to the High Court authorities of O’Sullivan v Law Society [2009] IEHC 632 and EG v The Society of Actuaries in Ireland [2017] IEHC 392 where it was held that the full extent of fair procedures did not apply at inv......
  • E.G v Society of Actuaries in Ireland
    • Ireland
    • High Court
    • 16 June 2017
    ...capable of amounting to professional misconduct or misconduct as defined by the Scheme. Fair Procedures 84 In O'Sullivan v. Law Society [2009] IEHC 632 the level of fair procedures appropriate to an inquiry in respect of an allegation of overcharging under s. 9 of the Solicitors Act 1994 wa......
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