Re Crowley

CourtSupreme Court
Judgment Date30 July 1964
Date30 July 1964
In re Crowley.
In the Matter of THOMAS CROWLEY, a Solicitor, and In the Matter of the Solicitors Acts, 1954and 1960

Supreme Court.

Solicitor - Practising certificate - Complaint of unprofessional conduct - Refusal by Law Society to issue practising certificate - Refusal based on decision of Registrar's Committee of the Law Society - Appeal by solicitor - Appeal dismissed by President of High Court Appeal to the Supreme Court - Certificate restored pending determination of appeal - Year ending before determination of appeal - Refusal of certificate for subsequent year - Society's power to refuse certificate for subsequent year in respect of same circumstances - Solicitors Act, 1954 (No. 36 of 1954), s. 49.

C. was refused a practising certificate for the year 1961/62 because the Incorporated Law Society of Ireland were not satisfied with the explanation he gave to the Registrar's Committee in reply to allegations of professional misconduct consisting of "touting" for business. C. appealed to the President of the High Court. The President dismissed the appeal and C. appealed to the Supreme Court and under the provisions of the Solicitors Act, 1954, s. 49, sub-s. 3 (b) (i), the certificate was issued to C. pending the determination of his appeal. His appeal in the Supreme Court did not come on for hearing until after the end of the practice year 1961/62 and accordingly the period for which that practising certificate was effective had expired. The appeal was accordingly adjourned generally.

The Society refused C.'s application for a certificate for the subsequent year, 1962/63, and C. again appealed to the President of the High Court who again dismissed his appeal. C. then appealed again to the Supreme Court, contending that once a practising certificate had been refused under s. 49 of the Solicitors Act, 1954, it could not be again refused in respect of the same circumstances.

Held by the Supreme Court ( Ó Dálaigh ó dálaigh C.J., Kingsmill Moore, and Walsh JJ.; Lavery and Haugh JJ. dissenting) 1, that the Society was not justified in refusing to issue the practising certificate for the year 1961/62 or the year 1962/63 and accordingly the certificate must issue.

Per Kingsmill Moore J.: The power of the Law Society, under the provisions of s. 49, sub-s. 1, of the Solicitors Act, 1954, to direct that a practising certificate should not issue is exercisable only for protection and not for disciplinary purposes and should be exercised only where there is a demonstrable probability that a practising certificate, if issued, will be abused.

Appeal from the High Court.

The appellant, Thomas Crowley, was admitted to practise as a solicitor in June, 1955, and practised in Dunmore, Co. Galway. He had a town agent, whose office was in St. Stephen's Green Dublin. He had two clients in Dublin, a Mr. Joseph McDonald and Messr. Patrick Ryan, both of whom, in June, 1959, were interested in the purchase of licensed premises at 30, Fassaugh Avenue, Dublin. These premises were owned by a Mr. Patrick O'Gorman who desired to sell them and for whom Messrs. Margetson & Greene, solicitors, were acting. They had acted for him for some twenty years prior to the events the subject-matter of these proceedings, and had in fact acted for him in the purchase in 1943 of the premises which he now desired to sell. On the 25th June Mr. O'Gorman had instructed his solicitor, Mr. Gordon Greene. to prepare a contract for sale of the premises to a Mr. McMoyler for £11,500 excluding fixtures, fittings and wet stock and to send a draft contract to Mr. McMoyler's solicitors. On the following day, however, Mr. O'Gorman told Mr. Greene by telephone that he had sold the premises for £12,000 to Mr. Ryan, that Mr. Greene would not be acting for him, but that the appellant would be acting for him so that he would have £12,000 free and thus save fees, and that he had already obtained from the appellant a cheque for £2,000 drawn on a Galway bank. The appellant was also acting for the purchaser. In fact, the premises were not sold at that time but were subsequently sold in October, 1959, through Messrs. Margetson & Greene, who were acting for the vendor once again. Messrs. Margetson & Greene reported the matter to the Incorporated Law Society and a meeting of the Society was held on 20th July, 1960, and the appellant attended and gave his explanation of his conduct in the matter. On 23rd July, 1960, the Society's Registrar sent a PC. 3 notice to the appellant, stating:—"You shall on applying for your next practising certificate give to me three weeks before the application is made notice of your intention to make the application." On the 31st January, 1961, the appellant gave the required notice. The Committee again sat to consider the complaint on the 3rd February and had before them an affidavit of the appellant, and on the 7th February sent a form PC. 4 notice to the appellant refusing him his practising certificate for the year 1961. On the 1st March, 1961, the appellant appealed against that refusal, under s. 49, sub-s. 5, of the Solicitors Act, 1954, to the President of the High Court. Having part heard the appeal the learned President stated that he would like to hear the evidence of the solicitor and his brother (who had also been involved in the transaction and was an accountant), and the hearing was adjourned until the 23rd June, when the President of the High Court heard oral evidence on oath.

The other outstanding fact is that this was not to cost Mr. O'Gorman anything. Of course, the most striking feature of the whole case is that under Mr. Crowley's own hand is a letter to the Manager of the New Ireland Assurance Company stating that he was acting for Mr. O'Gorman. All the circumstantial evidence and all the probabilities of the case are in favour of my accepting what is in the affidavit of Mr. O'Gorman and in the affidavit of Mr. Greene. I frankly do not believe the evidence of Mr. Crowley. I do not believe the evidence of his brother. I may as well state that clearly and definitely. This, in my opinion, is a clear case of touting for business and an offer by Mr. Crowley to do the work for nothing.

Accordingly, I don't see any reason to disturb what was done by the Disciplinary Committee. Accordingly, I disallow the appeal.

The President accordingly made an order dismissing the appeal and that order was made up on the 19th July, 1961. The appellant appealed to the Supreme Court from that order and the appeal did not come into the list until the practice year had expired, and the appeal was adjourned generally.

The Society again invited the appellant prior to the issue of the certificate for the year 1962/63 to attend and explain his conduct. This the appellant failed to do and the Society refused to issue a certificate. The appellant appealed to the President of the High Court and again his appeal was refused, and the order was made up on the 23rd March, 1962.

From the above judgment the appellant appealed to the Supreme Court (1) on the grounds 1, that the Society, having invited him to give an explanation of a particular matter (namely, the allegations contained in certain affidavits sworn by Patrick O'Gorman and Gordon M. Greene) and having directed the Registrar of Solicitors pursuant to s. 49, sub-s. 2 (b), of the said Act of 1954 to refuse to issue a practising certificate to the said solicitor for the practice year 1961/62 is not empowered, by the Act of 1954 or otherwise, again to invite him to give an explanation of the same matter or to give a further direction to the Registrar to refuse to issue a practising certificate to him for the practice year 1962/63 by reason of his alleged failure to give a sufficient or satisfactory explanation in respect of the same matter.

2, That none of the allegations contained in the said affidavits of Patrick O'Gorman or Gordon M. Greene constituted a breach of paras. 5 or 6 of Professional Practice, Conduct and Discipline Regulations, 1955, as alleged, or constituted a valid ground for the said direction to the Registrar of Solicitors to refuse to issue the said practising certificate.

3, That his explanation to the Society of the matters in respect of which complaint was made should have been accepted.

4, That the refusal of a practising certificate was too severe a penalty to impose in respect of the said complaints.

5, That the learned President of the High Court misdirected himself in law and in fact in ruling that the onus of proof was on the appellant to satisfy the Court that the direction of the Incorporated Law Society should be discharged.

Davitt P. :—

I am afraid that the facts of this matter are only too painfully clear. There is one matter outstanding. That is that certain work was done by Mr. Crowley which would normally be done by the vendor's solicitor. There is no question about that—preparing the contract is the most outstanding portion of it.

Cur. adv. vult.

Davitt P. :—

The appellant in this matter is Mr. Thomas Crowley, solicitor. Being at the material time a person to whom s. 49 of the Solicitors Act, 1954, applied, he made application to the Incorporated Law Society for a practising certificate for the year 1961/62. He was refused on the ground that, having been invited by the Society to give an explanation in regard to a certain matter which affected his conduct as a solicitor, he had failed to give one which the Society regarded as sufficient and satisfactory. Against this refusal he appealed to this Court on the grounds that the refusal of the certificate was too severe a penalty to impose in respect of the complaint made against him and that his explanation to the Society of the matter complained of should have been accepted. Consequent upon this appeal having been taken a practising certificate was issued to the appellant under the provisions of s. 49, sub-s. 3. The appeal came on for hearing before me on the 23rd June last, when...

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