Ryan v Law Society of Ireland

JurisdictionIreland
JudgeMr. Justice Herbert
Judgment Date30 May 2002
Neutral Citation[2002] IEHC 161
CourtHigh Court
Docket Number[2000 No. 557 J.R.]
Date30 May 2002

[2002] IEHC 161

THE HIGH COURT

RECORD NO.557 J.R./2000
RYAN v. LAW SOCIETY OF IRELAND
JUDICIAL REVIEW

BETWEEN

CHRISTOPHER RYAN (PRACTISING UNDER THE STYLE AND TITLE OF CHRIS RYAN SOLICITOR
APPLICANT

AND

THE LAW SOCIETY OF IRELAND
RESPONDENT

Citations:

SOLICITOR'S ACT 1954 S59(1)(b)

SOLICITOR'S ACT 1954 S59

SOLICITOR'S ACT 1954 S59(1)

SOLICITOR'S ACTS 1954 – 1960 (APPRENTICESHIP & EDUCATION) REGS 1991 SI 85/1991 REG 26

MCNEILL V COMMR GARDA SIOCHANA 1997 IR 469

CONSTITUTION ART 38.1

HAUGHEY, IN RE 1971 IR 217

GARDA SIOCHANA (DISCIPLINE) REGS 1989 SI 94/1989

MCGOWAN V WREN 1988 ILRM 744

FLYNN V AN POST 1987 IR 68

R V BBC, EX PARTE LAVELLE 1983 1 WLR 23

MYERS V COMMR GARDA SIOCHANA UNREP COSTELLO 22.1.1988 1988/6/1559

GALLAGHER V REVENUE COMMRS 1991 2 IR 370

O'CONNELL, STATE V FAWSITT 1986 IR 362

CUDDY V MANGAN 1988 ILRM 720

KELLY, IN RE UNREP HIGH 31.5.2001

RAINSFORD V LIMERICK CORP 1995 2 ILRM 561

PRIMORY PLC V STOKES KENNEDY CROWLEY 1996 2 IR 459

RSC O.27

O'NEILL V BEAUMONT HOSPITAL 1990 ILRM 419

DUBLIN WELL WOMAN CENTRE V IRELAND 1995 ILRM 408

BANE V GARDA REPRESENTATIVE ASSOCIATION 1997 2 IR 449

CARROLL V LAW SOCIETY 2000 1 ILRM 161

DUBLIN CO BROADCASTING V INDEPENDENT RADIO & TELEVISION COMMISSION UNREP MURPHY 12.5.1998 (Ex-tempore)

INCORPORATED LAW SOCIETY OF IRELAND V CARROLL & ORS 1995 3 IR 145

SOLICITOR'S ACT 1954 S6

SOLICITOR'S (AMDT) ACT 1994 S16

MORAN V LLOYD'S 1981 1 LLR 423 (CA)

O'CALLAGHAN V DISCIPLINARY TRIBUNAL UNREP MCCRACKEN 22.03.99

Synopsis:

- [2002] 4 IR 21

Facts: the applicant was given leave to seek, inter alia, an order by way of judicial review prohibiting the respondent from conducting an examination of various complaints of professional misconduct arising from incidents in 1993. Those complaints were the subject of High Court proceedings commenced by the respondent in 1993 and which were dismissed in 1995 on the basis that there was a more appropriate remedy available in the form of an inquiry by the Disciplinary Committee of the Law Society. The applicant alleged that the lapse of time between 1993 and 2000 had prejudiced him in answering complaints if now made against him. The applicant further submitted that there was a real likelihood of prejudice to him in the form of prejudgment bias as regards the complaints against him by reason of the findings of fact made by the High Court in its judgment of the 24th January 1995 in that the Disciplinary Tribunal of the Law Society would simply adopt the judgment of the High Court as a basis for making findings against him or would and remain so conscious of the conclusions reached by the High Court that despite every bona fide intention on the part of its members it would be incapable of arriving at a fully impartial and independent judgment in the matter.

Held by Herbert J in refusing the relief sought that delay was not in itself a ground of invalidity in proceedings before domestic disciplinary tribunals and the applicant had to in addition to establishing delay be in a position to point to some specific prejudice flowing from it. The applicant had not established that he had suffered or would suffer any prejudice as a result of the lapse of time. That the test for anticipatory bias in the context of domestic disciplinary bodies such as the Disciplinary Tribunal of the Law Society was an objective test as to whether a reasonable person who was assumed to posses the applicant's knowledge of the matters as found on the evidence might reasonably fear that he would not get a fair an independent hearing and determination of the issues. That the mere existence of a prior determination of the High Court was not in itself a sufficient basis for a reasonable fear of prejudgment bias as the possibility that the Disciplinary Tribunal might ultimately arrive at the same conclusions as the High Court could not be a relevant consideration in deciding the issue of prejudgment bias.

1

Mr. Justice Herbert delivered the 30th day of May, 2002.

THE FACTS
2

By Order of the High Court made on 9th October, 2000 the Applicant was given leave to seek Judicial Review. The relief sought by the Applicant, as allowed by the Order of the High Court and set out in the Notice of Motion seeking Judicial Review is as follows, namely:-

3

1. An Order prohibiting the Respondent from conducting an examination of the following matters:

4

(i) The Applicant's alleged failure to exercise adequate personal supervision over each of his offices or place of business.

5

i (ii)The Applicant's alleged failure to supervise his apprentice, Mr. Eamonn Carroll.

6

(iii) The Applicant's alleged permitting of his name to be made use of, in business carried on by him as a Solicitor on the account or for the profit of an unqualified person in breach of Section 59 subsection 1(b) of the Solicitor's Act, 1954.

7

(iv) The Applicant's declaring the Statutory Declaration on the 2nd September, 1993 to the effect that he knew no reason why his apprentice Mr. Carroll, should not be admitted as a Solicitor.

8

ii (v)The Applicant's alleged permitting of his apprentice, Mr. Carroll, to keep inadequate books of accounts so as to conceal the transfer of substantial sums of money out of the Applicant's Rialto office to unqualified persons.

9

(vi) The Applicant's alleged failure to supervise his apprentice allowing him to mislead the Applicant's reporting Accountant as to the fee income of the said Rialto office.

10

2. A Declaration that any such examination or investigation would amount to a breach of fair procedures.

11

3. A Declaration that the Applicant would be unfairly prejudiced by any such investigation on the grounds of delay.

12

4. A Declaration that the Applicant would be unfairly prejudiced on the grounds of a finding of fact by the High Court.

13

5. A Declaration that the proposed examination of the Respondent constitutes a breach of Constitutional and Natural Justice.

14

6. A Declaration that the Compensation Fund Committee have no jurisdiction to consider the matters complained since their purported referral of the matter to the Disciplinary Committee on the 13th of May, 1993.

15

2 7.Costs.

16

The grounds upon which the Applicant was given leave to seek Judicial Review are as follows:-

17

1. That the Committee Compensation Fund Committee of the Respondent did on the 13th day of May, 1993 refer the Applicant to the Disciplinary Committee and that the said Disciplinary Committee has failed since that day to conduct any inquiry or investigation.

18

2. That the Respondent did in December, 1993 commence proceedings against the Applicant herein in the High Court claiming inter alia that the Applicant failed to honour the duties which were imposed upon him as Master in relation to his apprentice, that he permitted other persons, not being Solicitors, to act and be remunerated as qualified Solicitors and that he permitted his name to be made use of, for and on account and for the profit of other persons, not being Solicitors, in particular by permitting such other persons to utilise his name, letterhead, note paper, business cards and premises so as to enable such persons to act as qualified members of the Solicitors profession and to be remunerated as such.

19

3. That on the 24th day of January, 1995 the High Court held (Mr. Justice Murphy) that the Respondent's claim be dismissed since it was open to the Court to decline to exercise its jurisdiction where there was a more appropriate remedy available to the parties, since the appropriate remedy in the first instance was clearly an Adjudication by the Disciplinary Committee of the Respondent, the Court should not entertain the proceedings against the Applicant.

20

4. That the learned Trial Judge held that the Applicant had on the balance of probabilities contravened Section 59 of the Solicitors Act, 1954.

21

5. That the Respondent had appealed the decision of the High Court to Supreme Court. That the Supreme Court delivered Judgment on the 20th December, 1995, dismissing the Respondent's appeal.

22

6. That since December, 1995, the Respondent has failed to conduct any inquiry or investigation into the matters now sought to be examined. That the finding of the High Court in relation to a contravention by the Applicant of the Solicitors Act amounts to an undue and gross prejudice to any defence the Applicant may seek to advance at any investigation or inquiry to be conducted by the Respondent.

23

7. That the passage of time between the initial referral by the Respondent's Compensation Fund Committee to the Respondent's Disciplinary Committee and the passage of time from the conclusion of proceedings instituted by the Respondent prejudices the Applicant in as much as the Applicant cannot now be in a position to advance a full and comprehensive defence to the allegations being made against him.

24

8. That during the course of the period from December, 1993 to the present. The Respondent has never sought to refuse the Applicant a practising certificate and has permitted the Applicant to take an apprentice pursuant to the Solicitors Acts.

25

9. That the Respondent caused the Applicant to believe that the inquiry now sought to be re-commenced had concluded.

26

10. That the Applicant has in the seven years since 1993, continued to develop his practice as a Solicitor without hindrance and with the express authorisation of the Respondent.

27

11. That the intended investigation and/or inquiry to be held by the Respondent on the 29th June, 2000 would amount, if it where to be held, to a breach of fair procedures and a breach of the principles of Natural and Constitutional Justice.

28

12. That the intended inquiry amounts to an attempted breach of the Applicant's constitutional right to livelihood.

29

On the 5th December, 2000 the Respondent delivered a Statement of Opposition of 20 paragraphs...

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