Re Solicitors Act, 1954

• Jurisdiction: Ireland
• Judgment Date: 08 June 1960
• Date: 08 June 1960
• Court: Supreme Court

In re Solicitors Act, 1954.

In the Matter of CLIFFORD D. O'FARRELL, a former Solicitor, and In the Matter of the Solicitors Act, 1954. In the Matter of JAMES H. GORMAN,a former Solicitor, and In the Matter of the Solicitors Act

1954.

Supreme Court.

Constitution of Ireland - Solicitor - Disciplinary Committee of Incorporated Law Society - Committee empowered by statute to strike solicitors off the roll of solicitors - Committee established under statutory powers - Whether Committee exercising judicial power - Whether powers of Committee of a limited nature - Appeal from decision of Committee to Courts - Whether statute authorising the setting up of the Committee repugnant to the Constitution - Solicitors Act, 1954 (No. 36 of 1954), ss. 10, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22 and 23 - Constitution of Ireland, Articles 34and 37 - Judicature Act (Ireland), 1877 (40 & 41 Vict., c. 57), s. 78.

Solicitors - Misconduct - Complaint made to Incorporated Law Society - Complaint heard by Disciplinary Committee set up under statutory powers by the Society - Solicitors against whom complaints made not appearing before Committee - Order made by Committee in their absence striking them off roll of solicitors - Whether Committee acting contrary to provisions of the Constitution - Whether Committee competent to adjudicate upon complaint and to strike solicitors off the roll of solicitors.

Costs - Solicitors struck off roll by Disciplinary Committee of Incorporated Law Society - Appeal by solicitors to High Court - Appeal to Supreme Court - Contention that Solicitors Act, 1954, unconstitutional - Attorney General joined to argue Constitutional issue - Costs awarded against solicitors - Whether solicitors should be made to hear the costs of both the Attorney General and the Incorporated Law Society of Ireland - One set of costs only awarded - Costs of the Attorney General not awarded against solicitors.

The Solicitors Act, 1954, by s. 13 set up a disciplinary committee consisting of not loss than seven, or more than ten, members of the Council of the Incorporated Law Society. Appointments to the Committee were only to be made by the Society with the approval of the Chief Justice. Under the provisions of s. 18, sub-s. 1, the Committee, upon the hearing of a complaint against a solicitor, was empowered, inter alia to strike his name off the roll of solicitors and order the payment by any party to the inquiry of the costs thereof or of a sum by way of contribution to the costs thereof. Under the provisions of s. 14 of the Act an application could be made to have the name of a solicitor struck off the roll by any person or by the Society. If, on such application, the Society decide that a prima facie case has been made they are, under s. 16 of the Act, to hold an inquiry into the matter. Sect. 23 gave a right of appeal to the Chief Justice from an order of the Disciplinary Committee.

On the hearing of an appeal by O'F. and G., solicitors, against orders made by the Disciplinary Committee striking their names off the roll of solicitors, it was contended by them that the entire of the Solicitors Act, 1954, and in particular ss. 4, 5, 7, 13 to 23, inclusive, were unconstitutional in that they delegated the constitutional judicial authority of the Chief Justice to a body or group of persons not created or sanctioned by the Constitution and not appointed by the Chief Justice.

Held by Maguire C.J. 1, The question whether or not a solicitor is to be allowed to continue to practise his profession is a justiciable controversy.

2, By its adjudication the Disciplinary Committee purports to decide the controversy in a final manner and, if necessary, its decision will be enforced by the authority of the State.

3, The Disciplinary Committee, in ordering that the applicants' names should be struck off the roll of solicitors were purporting to exercise judicial power.

4, That as the powers of the Committee were limited to solicitors and were subject to a right of appeal to the Courts, the said powers were of a limited nature within the meaning of Article 37 of the Constitution.

5, Accordingly, the provisions of the Solicitors Act, 1954, which had been challenged, were not repugnant to the provisions of the Constitution.

6, In the circumstances and in view of the fact that the applicants had not appeared before the Disciplinary Committee at the hearing at which the order to strike their names off the roll was made, the order of the Committee should be affirmed and the appeal on the merits dismissed.

7, The applicants should not be asked to bear the costs of the Attorney General as he was a necessary party when a constitutional issue was raised for argument before the Court and it was not unreasonable that the taxpayers should bear his costs.

Accordingly, the applicants should be ordered to pay only the costs of the Incorporated Law Society of Ireland.

Held by the Supreme Court (Lavery, Kingsmill Moore, O'Daly, Maguire and Murnaghan JJ.) reversing the order of Maguire C.J., 1, The power to strike a solicitor off the roll of solicitors is, when exercised, an administration of justice, both because the infliction of such a severe penalty on a citizen is a matter which calls for the exercise of the judicial powers of the State and because to entrust such a power to persons other than judges is to interfere with the necessity of the proper administration of justice.

2, The powers and functions conferred by the Solicitors Act, 1954, on the Disciplinary Committee could not be described as merely limited powers and functions of a judicial nature within the meaning of Article 37 of the Constitution and, accordingly, the exercise of such powers was unconstitutional and the applicants accordingly were not validly struck off the roll of solicitors.

Appeal from Disciplinary Committee.

The appellants, Clifford D. O'Farrell and James H. Gorman, carried on business in partnership as solicitors under the name of O'Farrell and Gorman in the city of Dublin.

A client of the firm lodged with the Incorporated Law Society of Ireland a complaint against them to the effect that they were in possession of money belonging to her and that, despite repeated requests by her, they had failed to deliver it to her. The Secretary of the Incorporated Law Society of Ireland, on behalf of the Society, made application to the Disciplinary Committee set up under the provisions of the Solicitors Act, 1954, in respect of each member of the firm that they might be required to answer the client's allegations of misconduct; that their names should be struck off the roll of solicitors; or that such order be made as the Committee should consider right under the powers given to them by s. 14 of the Act. An inquiry was duly held, at which neither of the appellants was present, either in person or by solicitor or counsel, nor did either of them file any affidavit. The Committee found each of them guilty of misconduct; they ordered their names to be struck off the roll of solicitors and also ordered them to pay to the Society the costs of the application, taxed on the scale of costs applicable to a High Court proceeding. The Committee also ordered their findings and order to be published in three daily papers, the Gazette of the Incorporated Law Society of Ireland and Iris Oifigiúil.

From that order each of the appellants appealed to the Chief Justice under the provisions of s. 23 of the Solicitors Act, 1954. The grounds of appeal were as follows:—

"(a) The entire of the said Solicitors Act, 1954, and in particular ss. 4, 5, 7, and 13-23, inclusive, are ultra viresthe Constitution of Ireland in that they purport to delegate the constitutional judicial authority of the Chief Justice to a body or group of persons not created or sanctioned by the Constitution of Ireland and not appointed by the said Chief Justice and further that the said Act is unconstitutional in that it is an unconstitutional and unwarranted limitation and usurpation of the powers, rights and duties of the Chief Justice and the judiciary as constitutionally established by the Constitution of Ireland.

(b) The said order was made ultra vires the powers of the Disciplinary Committee under the Solicitors Act, 1954.

(c) The said order was not supported by the evidence.

(d) The penalty provided in the said order is in the circumstances oppressive and contrary to natural justice.

(e) The said order was made in disregard to the appellant's right to be heard in his own defence.

(f) The said order in effect amounts to a deprivation of one of the appellant's rights of private property in a manner that violates the constitutional guarantees accorded to the appellant in the Constitution of Ireland.

(g) The said order is neither just nor equitable in the circumstances."

The first ground of appeal was first argued as a separate issue.

The remaining grounds of appeal in the appellant's notice of appeal to the Chief Justice were argued on the 15th June, 1956.

From the above decisions the appellants appealed to the Supreme Court (1) on the grounds:—1, that so much of the judgment of the Chief Justice delivered herein on the 8th June, 1956, as held that the powers and functions which Part III of the Solicitors Act, 1954, purported to confer on the Disciplinary Committee are limited powers and functions of a judicial nature within the meaning of Article 37 of the Constitution and accordingly that the provisions of Part III of the said Act of 1954 were not repugnant to the Constitution was erroneous in law, as the said Part III of the Act of 1954 purports to delegate judicial power to the Disciplinary Committee in contravention of Article 34 of the Constitution; 2, that the Chief Justice misdirected himself in law in giving the said judgment and making the said order each dated the 19th June, 1956, as the provisions of Part III of the said Act of 1954 were for the reasons aforesaid repugnant to the...