Murphy v The Law Society of Ireland and Another

• Jurisdiction: Ireland
• Court: Court of Appeal (Ireland)
• Judge: Mr. Justice Noonan
• Judgment Date: 12 December 2023
• Neutral Citation: [2023] IECA 310
• Docket Number: Record Number: 2023/97

Between/

Colm Murphy

Appellant/Plaintiff

and

The Law Society of Ireland and Simon Murphy

Respondent/Defendants

[2023] IECA 310

Noonan J.

Faherty J.

Meenan J.

Record Number: 2023/97

High Court Record Number: 2004/19212P

THE COURT OF APPEAL

Extension of time – Delay – Consent – Appellant seeking an extension of time – Whether the first respondent wrongfully failed to disclose documents and evidence to the appellant

Facts: The High Court (Kelly P), on the 11th December, 2017, ordered by consent that: (1) the claim of the plaintiff/appellant, Mr Murphy, was limited to the matters pleaded in the plaintiff’s amended statement of claim delivered on 1 July 2011 together with the updated particulars of the plaintiff’s claim furnished on 23 October 2017; (2) the statement of claim delivered on 22 June 2009 was a spent document which no longer had any bearing on the trial of the proceedings; (3) no application in respect of the following sets of proceedings should be either heard or determined prior to the determination of the proceedings – the order proceeded to list 14 sets of proceedings between the first defendant/respondent the Law Society of Ireland (the Society), and the plaintiff, and the plaintiff and the Solicitors Disciplinary Tribunal. The plaintiff applied to extend the time for appealing to the Court of Appeal from that order. The essential basis upon which the plaintiff made the application was that the Society wrongfully failed to disclose documents and evidence to him “throughout the proceedings”. The plaintiff contended that had the Society done so, he would not have consented to the order and would have amended his statement of claim to rely on matters he said were wrongfully concealed from him.

Held by Noonan J that the ultimate objective was, as the plaintiff conceded, to re-litigate the entire proceedings by introducing issues that were allegedly new and thus set at naught the principal judgment and the review judgment delivered after years of litigation. Noonan J held that this would amount to a collateral attack on final judgments of the High Court, which were in any event under appeal. He held that the plaintiff had failed to establish the threshold of arguability that he must surmount after such inordinate delay before an extension of time to appeal could be granted. Noonan J found that the recent judgments of the Supreme Court in the proceedings made clear that in Goode Concrete type applications (Goode Concrete v CRH Plc & Ors. [2013] IESC 39) which are premised on the discovery of new evidence post-trial, there is a requirement to explain delay and provide a good reason why the application was not moved sooner. He held that in a case where the delay concerned stretches over years, the appellant carries a heavy burden of explaining the delay; the arguability bar is correspondingly high. He was not satisfied that the plaintiff had advanced anything approaching a good reason for the very lengthy delay. Noonan J noted that the order the plaintiff sought to appeal was made with his consent; the scope for appealing such an order is necessarily very limited and would in the normal way be confined to circumstances where the appellant was induced by fraud or some other vitiating factor to give consent. Noonan J noted that while the plaintiff did in effect allege fraud against the Society in relation to some of the documents and evidence he said were wrongly concealed from him, in other instances the evidence relied upon came to his attention without any involvement on the part of the Society. This could not, in Noonan J’s view, provide a basis for arguing that the plaintiff’s consent was not validly given.

Noonan J dismissed the application. His provisional view was that as the Society had been entirely successful, it should be entitled to the costs of the application.

Appeal dismissed.

UNAPPROVED

JUDGMENT of Mr. Justice Noonan delivered on the 12 ^th day of December, 2023

1 . This judgment concerns an application by the appellant (Mr. Murphy) to extend the time for appealing to this Court from an order made by the High Court on the 11 ^th December 2017 on consent. In order to understand the context of this application, it is necessary to refer in some detail to the lengthy and complex history of this litigation and related matters. For convenience, I shall refer to the respondents throughout as “the Society”.

Relevant background

2 . Mr. Murphy was a solicitor practicing in Kenmare, County Kerry. In 1996, he acquired the practice of another solicitor, Mr. Tim Healy, in Killarney with effect from the 16 ^th August, 1996. There were certain difficulties with Mr. Healy's practice in relation to the practice accounts which were not up to date and in respect of which the Society had been in contact with Mr. Healy. Mr. Murphy was aware of this when he took over the practice. After the acquisition, Mr. Murphy engaged with the Law Society who required him to file the requisite accountant's report for the Healy practice for the year ending the 31 ^st March, 1997. Mr. Murphy was not however in control of the Healy practice for the first four and a half months of that period, subsequently referred to by the Supreme Court as “the missing months”. It was therefore Mr. Healy's responsibility to file accounts for that period and Mr. Murphy's in respect of the subsequent seven and a half month period.

3 . Matters evolved from there and it is sufficient for the purposes of this judgment to note that the Society brought disciplinary proceedings against Mr. Murphy for failing to file an accountant's report for the “ year ended the 31st March, 1997.” The Solicitors Disciplinary Tribunal (“SDT”) found Mr. Murphy guilty of misconduct in relation to this alleged failure and sanctioned him with a censure and required him to pay the Society's costs. Mr. Murphy did not appeal, although he considered doing so in consultation with his then legal team and decided against it.

4 . In 2004, Mr. Murphy brought the within proceedings against the Society claiming, inter alia, damages for misfeasance in public office arising out of the Society's dealings with him in regulatory matters. Mr. Murphy claimed that the Society was motivated by malice in its approach to those regulatory proceedings. Mr. Murphy did not renew his practicing certificate in 2005. In 2006, the Society brought proceedings against Mr. Murphy pursuant to s. 18 of the Solicitors (Amendment) Act, 2002 to prohibit him from practicing as a solicitor and for the winding up of his practice. These proceedings came before the President of the High Court on various occasions in 2006 and 2007 and on the 31 ^st January, 2007, Johnson P. made an order by consent directing the delivery up of Mr. Murphy's practice files and directed that reports on his accounts be delivered. Mr. Murphy gave an undertaking to the court not to practice.

5 . Shortly thereafter, in February 2007, the Society brought a motion for the attachment and committal of Mr. Murphy arising out of his alleged failure to comply with the order of the 31 ^st January, 2007. Various further orders were made arising from that application and ultimately the proceedings were struck out in June 2008.

6 . The Society brought further proceedings in 2009 seeking to strike Mr. Murphy off the Roll of Solicitors following a number of findings of misconduct against him made by the SDT which recommended that Mr. Murphy be struck off. The complaint that led to the SDT determination was made by Patrick Arthur and John Arthur, for whom Mr. Murphy had acted. Mr. Murphy appealed the SDT findings to the High Court and it is clear from the transcript of the appeal before Johnson P. on the 21 ^st April, 2009 that Mr. Murphy accepted the findings of the SDT and in effect confined his appeal to a plea in mitigation, asking that he be subjected to a lesser sanction than being struck off. Johnson P. subsequently delivered judgment on the 18 ^th May, 2009 striking Mr. Murphy off the Roll of Solicitors.

7 . Between 2009 and 2011, Mr. Murphy made fifteen applications to the SDT alleging misconduct against various employees of the Society arising out of his dealings with those parties concerning, inter alia, the s. 18 proceedings. The SDT found in respect of each complaint that no prima facie case of misconduct had been disclosed. Mr. Murphy appealed this determination to the High Court in respect of twelve of the cases.

8 . In October 2010, the Society brought a motion seeking to dismiss the plenary proceedings on the basis that they were frivolous and vexatious together with an Isaac Wunder Order against Mr. Murphy.

9 . The Society's application for an Isaac Wunder Order came before the High Court on the 1 ^st March, 2011 when Mr. Murphy gave an undertaking in the following terms:

“Not to institute any legal proceedings (whether by way of fresh proceedings or appeals from previous proceedings or attempts to reopen previous proceedings) against the Society pending the determination of the within proceedings; and not to institute any disciplinary or legal proceedings against any of the officers, employees, agents or legal representatives of the Society (past or present) or any member of any committee (past or present) appointed by the council of the Society in respect of any matters arising out of or relating to their work for or on behalf of the Society pending determination of the within proceedings.”

10 . This appears to have provided some impetus to proceed with the plenary proceedings which came on for hearing before Hanna J. in the High Court on the 8 ^th March, 2012. On that date, the court directed that there should be a preliminary hearing of issues raised in the Society's defence and on the 30 ^th March, 2012, Hanna J. delivered a judgment holding that the proceedings were an abuse of process and dismissing them. Mr. Murphy has alleged on numerous...