O'Reilly v Lee

• Jurisdiction: Ireland
• Judge: Macken, J.
• Judgment Date: 23 April 2008
• Neutral Citation: [2008] IESC 21
• Court: Supreme Court
• Docket Number: [S.C. No. 330 of 2006],333/06
• Date: 23 April 2008

IN THE MATTER OF THE SOLICITORS ACTS 1954 - 2002

AND IN THE MATTER OF ROSARIO LEE,A SOLICITOR

Between:

Brendan O'Reilly Appellant

V

Rosario Lee

Respondent

Denham, J.

Fennelly, J.

Macken J.

333/06

THE SUPREME COURT

Abstract:

Solicitors law - Practice and Procedure - Solicitors Disciplinary Tribunal - Appeal -No prima facie case for inquiry - Appeal de novo - Solicitors Acts 1954-2002

Facts: The appellant appealed a decision of the High Court in turn on appeal from the Solicitors Disciplinary Tribunal, rejecting his complaint against the respondent solicitor. The appellant alleged inter alia that the High Court had erred in law in its application of Rondel v. Worsley and that the Court had failed to address matters in the appeal.

Held by the Supreme Court (per Macken J.: Denham, Fennelly JJ concurring) in allowing the appeal, that the appeal to the High Court from the Solicitors Disciplinary Tribunal was an appeal de novo. The categorisation by the High Court of the complaints as procedural was correct. The appellant had not established a prima facie case and the caselaw as invoked by the High Court was correct.

Reporter: E.F.

1 Judgment delivered on the 23rd day of April 2008 by Macken, J.

2 This is an appeal from the judgment and order of the High Court (Finnegan P.), delivered on the 26th July 2006. That judgment arose on an appeal by the appellant from a decision of the Solicitors Disciplinary Tribunal rejecting his complaint against the respondent, pursuant to the provisions of the Solicitors Act 1954-2002. The Solicitors Disciplinary Tribunal found that no prima facie case had been established.

3 The entitlement to appeal the decision of the Solicitors Disciplinary Tribunal is provided by legislation and specifically by the provisions of s.7 of the Solicitors (Amendment) Act 1960 as amended by s.17 of the Solicitors (Amendment) Act 1994, and as further amended by the provisions of s.9 of the Solicitors (Amendment) Act 2002. The consequence of these legislative provisions is that, in circumstances where the Solicitors Disciplinary Tribunal has found that there is no prima faciecase for an inquiry into the conduct of the solicitor complained of, an applicant may appeal that decision to the High Court within a prescribed period of time. The provisions of the legislation as eventually amended to its final form reads in its relevant portion, as follows:

4 "12A The Society or any person who has made an application under subsection (1) of this section may appeal to the High Court within the period specified in subsection (12B) of this section -

5 (a) against a finding of the Disciplinary Tribunal that there is no prima facie case for an inquiry into the conduct of the respondent solicitor, or

6 ...,

7 and the Court may -

• (i) confirm the finding concerned

• (ii) where the appeal is under (a) of this subsection, make a finding that there is a prima facie case in relation to the allegation of misconduct concerned, ...

  and require the Disciplinary Tribunal to proceed to hold an inquiry under subsection (3) of this section in relation to such allegation or allegations, or

  ... ."

8 Preliminary

9 I have set out the above statutory provision in some detail because it seems to me that the appellant is under a misapprehension as to the precise nature of an appeal from the Solicitors Disciplinary Tribunal

10 to the High Court. He has, for example, drawn this Court's attention to his concern that the Solicitors Disciplinary Tribunal is not itself the respondent to the appeal, as he believes would be the case in respect of the professional body regulating his profession. Rather it is the respondent solicitor. He submits that it is difficult to understand how the Solicitors Disciplinary Tribunal, against whose decision he has sought to appeal, is merely a Notice Party to the proceedings in the High Court, and that in reality this has precluded him from bringing the type of appeal which he would wish to bring. He suggests further that the members of the Tribunal could, for various reasons, be thought to be biased.

11 I am satisfied that the correct interpretation of the Solicitors Act 1954-2002 as amended in the manner referred to above, is that the appeal from a decision of the Solicitors Disciplinary Tribunal, in this case from its decision dated the 20th day of March 2006, is a hearing de novo in the High Court in which the matters contended for by the appellant as constituting grounds for the holding of an inquiry into the respondent's alleged misconduct, and the respondent's reply, may be exposed again and argued afresh before the High Court, which decides the appeal on the basis of the materials which were before the Disciplinary Tribunal, but having regard to the arguments made before it, the High Court, exercising an independent jurisdiction in the matter. It is for this reason that the respondent is the correct respondent, and equally, that the Solicitors Disciplinary Tribunal is a proper Notice Party to the proceedings, bound by any order which the High Court might make on the appeal.

12 A different situation would of course arise if the appellant sought to challenge the Solicitors Disciplinary Tribunal in respect of matters dealt with, or failed to be dealt with in an appropriate case, such as would lend themselves to an application for judicial review. In support of his contention that the Solicitors Disciplinary Tribunal should be a respondent to his appeal and not a mere notice party, the applicant invokes the decision of this Court in The State (Creedon) v The Criminal Injuries Compensation Tribunal [1988] IR 51 where that Tribunal was the respondent to the applicant's claim. That was not however an appeal, but rather an application for judicial review, and it was both legally appropriate and in accordance with the applicable Rules of Court governing such proceedings, that the relevant Tribunal in that case would be the named respondent. The appellant invokes the same case for an additional purpose, namely, to support his contention that a tribunal against whose decision he is appealing is obliged to provide appropriate and adequate reasons for its decision and he argues that the Solicitors Disciplinary Tribunal did not do so.

13 Having regard to the fact that this is not a judicial review of the decision of the Solicitors Disciplinary Tribunal, the arguments and complaints of the above nature and those of an analogous type which the appellant makes on its findings, all fall, once there is a full appeal to the High Court, at which appeal both parties are heard again at an oral hearing in open court, where both can make legal and other relevant submissions on all matters, with a fresh determination of the issues, and where a judgment is delivered on that appeal.

14 The Appeal:

15 In light of the above, I propose now to deal with the applicant's appeal insofar as it concerns the judgment of Finnegan P. Firstly, the grounds of appeal as contained in the Notice of Appeal of the 14th August 2006 are limited to four, namely, (a) that the judgment in Rondel v Worsley [1966] 3 All ER 657 had been overruled, and the High Court judge had therefore erred in law in relying on that judgment; (b) that there were matters in the appellant's appeal from the decision of the Solicitors Disciplinary Tribunal which had not been addressed in the judgment; (c) two issues had been confused by the High Court judge, that is to say, professional misconduct and the conduct of the Circuit Court proceedings; and (d) the reasons given in the judgment were clearly inadequate.

16 It is appropriate, having regard to the nature of the appeal and the interrelated arguments made, to deal with these grounds together. The learned High Court judge set out at page five of the judgment his synopsis of the several categories of complaint raised by the appellant. These are stated to be (a) that the matrimonial proceedings were conducted in an oppressive manner in that there were numerous applications which were considered unnecessary, and caused excessive expense to the parties, (b) reports were obtained on behalf of the appellant which were inappropriate; (c) examination of his children were arranged without his knowledge; (d) he was repeatedly given short notice of applications being made to court; (e) witnesses were called at hearings without advance notice to him; (f) his resignation letter from his former employer may have been improperly obtained; (g) improper use was made of his laptop computer; (h) he was subjected to inappropriate applications for discovery and, in connection with the same, inappropriate inquires were made of third parties; (i) his opponents discovery was incomplete and claims made by her for maintenance lacked vouching; and (j) his discovery in relation to his shareholding in a company was not accepted, and this too was inappropriate.

17 The appellant has very properly and correctly accepted that this synopsis by the President of the High Court of the nature and extent of his complaints is a correct one. The appellant has also very helpfully admitted that he is not trying to question the decisions of the Circuit Court in respect of the matrimonial proceedings in relation to which these complaints arise and says he does not seek to re-litigate any such proceedings. In essence he submits that the several complaints which he makes, and these are very numerous, are all complaints of a nature which constitute professional misconduct, whether or not they arise in the course of, as a result of, or in connection with court proceedings occurring contemporaneously.

18 In the High Court the learned President stated in respect of these complaints made to the Solicitors Disciplinary Tribunal:

19 "All the matters raised are matters which could and ought properly to be canvassed in a forum other than the Solicitors Disciplinary Tribunal. It is a matter for the trial...