Sandys v The Law Society of Ireland
| Jurisdiction | Ireland |
| Judge | Ms. Justice Finlay Geoghegan |
| Judgment Date | 20 December 2016 |
| Neutral Citation | [2016] IECA 395 |
| Date | 20 December 2016 |
| Court | Court of Appeal (Ireland) |
| Docket Number | Neutral Citation Number: [2016] IECA 395 2015/430 |
[2016] IECA 395
THE COURT OF APPEAL
Finlay Geoghegan J.
Finlay Geoghegan J.
Peart J.
Hogan J.
Neutral Citation Number: [2016] IECA 395
2015/430
AND
Fair procedures – Orders of certiorari – Unlawful delegation – Appellants seeking orders of certiorari – Whether the Client Relations Committee denied the appellants fair procedures
Facts: The applicants/appellants, Mr Sandys and Mr Brophy, are solicitors who practice together under the style and title of Sandys & Brophy Solicitors. On the 21st October, 2013, the High Court (Keane J) granted leave to the appellants to seek orders of certiorari of the determinations of the Client Relations Committee of the 3rd July, 2013. The principal grounds upon which leave was granted and the claim for certiorari pursued were: 1) The Committee denied the appellants fair procedures by refusing to permit them to adduce expert evidence in their defence of the allegation of overcharging; 2) The Committee unlawfully delegated its decision making power to its appointed legal cost accountant; 3) The Committee failed to give any or any adequate reasons for its decision; 4) The Committee was in error in deciding that the appellant was obliged to furnish an estimate of costs to the Society of St Vincent de Paul pursuant to the provisions of s. 68(1) of the Solicitors (Amendment) Act 1994. In the notice of opposition the respondent, the Law Society of Ireland, in addition to denying each of the above contended that the appellants were not entitled to relief by way of judicial review by reason of the availability of the adequate alternative remedy of an appeal pursuant to s. 11(1) of the 1994 Act. By written judgment of the 12th June, 2015, Kearns P upheld the entitlement of the appellants to apply by way of judicial review, but found against them on each of the grounds advanced and dismissed the application for certiorari. On appeal to the Court of Appeal the same issues which were before the High Court arose for determination.
Held by Finlay Geoghegan J that she would allow the appeal against so much of the order of the High Court of the 25th June, 2015, as refused the orders of certiorari in relation to the determination of excessive charging in respect of three bills and the directions for reimbursement of specified amounts as claimed at paras. (d)(ii), (iii), (iv), (v) and (vi) of the statement of grounds. Finlay Geoghegan J held that the Court must grant an order of certiorari of the decision of the Committee to refer to the Disciplinary Tribunal the failure of the appellants to send a letter in accordance with s. 68(1) of the 1994 Act to the residuary beneficiary.
Finlay Geoghegan J held that she would allow the appeal, set aside the order of the High Court of the 25th June, 2015, grant to the appellants orders of certiorari as sought in paragraphs d(i), (ii), (vii) of the statement of grounds and remit the complaints made by the Society to a differently constituted Complaint and Client Relations Committee of the respondent for further consideration in accordance with law and this judgment.
Appeal allowed.
The appellants are solicitors who practice together under the style and title of Sandys & Brophy Solicitors. They were also the executors appointed by Maureen O'Connell - who died in 1998 - in her last will and testament dated 20th March 1996 and in respect of which a grant of probate issued to them on the 7th October, 2004.
The Society of St. Vincent de Paul was the residuary beneficiary named in the last will and testament of the deceased. The estate ultimately realised in excess of €14 million.
The administration of the deceased's estate was not straightforward. The appellants were obliged to prosecute two sets of legal proceedings (in the High Court and Circuit Court respectively) and to undertake work in relation to the conveyance of two properties (one of which was a licensed premises) in respect of which the Circuit Court proceedings were taken and which ultimately sold for €14 million.
The appellants raised five separate bills of costs in relation to the professional services they provided and their fees were discharged out of the deceased's estate. On the 23rd February, 2011, a complaint was made on behalf of the Society of St. Vincent de Paul (‘the Society’) to the respondent alleging (i) the deceased's estate was charged excessive fees for the professional services given and (ii) no letter was issued at any stage to the Society with an estimate of fees to be charged by the appellants in breach of s. 68 of the Solicitors (Amendment) Act 1994 (‘the 1994 Act’).
The respondent referred the complaint to its Complaint and Client Relations Committee on the 5th September, 2011 (‘the Committee’). Thereafter correspondence commenced between the Committee and the appellants in which the Committee sought detailed schedules to the bills of costs and details of the nature of the work undertaken and the basis upon which the appellant's fees were calculated. The matter was before the Committee and adjourned from time to time. In January 2012, the Committee suggested that the parties might resolve their differences by agreeing to be bound by the decision of an independent legal cost accountant in relation to the alleged overcharging. No agreement was reached on this proposal. Ultimately in July 2012, the Committee engaged Mr. Noel Guiden of Behan & Associates, Legal Costs Accountants, to advise the Committee in relation to the complaint of overcharging. The Committee wrote to the parties on the 12th September, with that decision and stated that the respondent would bear the cost of Mr. Guiden's report.
In October, 2012, the appellants' solicitors furnished the appellants' files to the Committee so the Mr. Guiden could prepare his report.
Mr. Guiden furnished a report dated the 9th November, 2012. He concluded that three of the bills of costs were excessive by significant amounts.
Mr. Guiden's report was furnished to the appellants on the 21st November, 2012 and their files returned shortly thereafter. They indicated that a response would be submitted when matters had been considered. On the 6th December, 2012, the appellants were informed that the matter would be considered by the Committee at the meeting to be held on the 6th February, and were advised that any submissions were to be furnished by the 23rd January, 2013. No submissions were lodged by that date. However, by letter of the 5th February, 2013, from the appellants' solicitors the Committee was informed for the first time that the appellants wished to obtain and submit their own cost accountant's report. At the meeting on the 6th February, the appellants' solicitors sought an adjournment for that purpose. The Committee at that meeting indicated that it would not consider a separate report from another firm of legal cost accountants. The Committee permitted the appellants to lodge submissions which could be informed by advice from their own cost accountant and adjourned the matter on a peremptory basis to the 30th April, 2013.
The appellants obtained a report from a cost accountant and through their solicitors made submissions on the 29th April, 2013, taking issue with Mr. Guiden's approach and challenging his conclusions. Thereafter the Committee sent those submissions to Mr. Guiden and asked him to comment thereon. He replied by letter of the 7th June indicating that there was nothing contained in the appellants submissions which in any way altered his opinion.
The Committee met again on the 3rd July, 2013 and adjudicated on the complaints before it against the appellants. By letter of the 8th July, 2013, the appellants' solicitor was notified of the determinations which in summary and as relevant to the issues on appeal were:-
‘1. The issue of the appellants' failure to send letters in accordance with s. 68(1) of the Solicitors (Amendment) Act 1994, to the residuary beneficiaries/complainant was to be referred to the Solicitors' Disciplinary Tribunal for further inquiry into their conduct.
2. The Committee found that there was evidence of excessive charging in three of the bills submitted to the complainant and the complaint made to the Society under s. 9 of the above Act was therefore upheld. The letter set out the detail in relation to each bill of the amount of the overcharge determined by the Committee by reference to the higher reasonable sum recommended by Mr. Guiden and which amounted in aggregate to €340,070 and the letter then stated: ‘The Committee have directed your clients to reimburse that sum in full plus VAT at the rate charged no later than the 31st January, 2014.’
3. Given the extent of the overcharging found by the Committee under s. 9 of the Act, the Committee directed that the extent of the overcharging also be referred to the Solicitors Disciplinary Tribunal for further inquiry into the appellants' conduct.
The letter referred to the right of appeal pursuant to s. 11(1) of the Solicitors (Amendment) Act 1994, within 21 days in default of which the decision became binding.
There was then further correspondence between the solicitors for the appellants and the Committee, during which the appellants were furnished with the minutes of the meeting of the Committee of the 3rd July, 2013. These set out in some detail the discussion which took place amongst the members of the Committee prior to it reaching its decision.
On the 21st October, 2013, leave granted by the High Court (Keane J.) granting leave to seek orders of certiorari of the determinations of the Committee of the 3rd July, 2013. The principal grounds upon which leave was...
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...consequence to enjoy an immunity from the provisions of s.8 of the Act of 1994.’ 131 In Sandys & Another v. The Law Society of Ireland [2016] IECA 395 Finlay Geoghegan J. said:- ‘I am not intending to express any view adverse to the conclusion reached by Kearns P. in Condon that a beneficia......