O'Sullivan v Law Society of Ireland & Solicitors Disciplinary Tribunal

• Jurisdiction: Ireland
• Judge: McKechnie J.
• Judgment Date: 23 February 2012
• Neutral Citation: [2012] IESC 21
• Court: Supreme Court
• Date: 23 February 2012

[2012] IESC 21

THE SUPREME COURT

Finnegan J.

McKechnie J.

O'Donnell J.

[S.C. No. 442 of 2009]

O'Sullivan v Law Society Of Ireland & Solicitors Disciplinary Tribunal

BETWEEN

MICHAEL O'SULLIVAN

Plaintiff/Appellant

AND

THE LAW SOCIETY OF IRELAND

AND

THE SOLICITORS DISCIPLINARY TRIBUNAL

Defendants/Respondents

SOLICITORS (AMDT) ACT 1994 S9

SOLICITORS (AMDT) ACT 1960 S7

ROAD TRAFFIC ACT 2004 S17

O'DRISCOLL v THE LAW SOCIETY OF IRELAND UNREP MCKECHNIE 27.7.2007 2007/48/ 10302 2007 IEHC 352

SOLICITORS ACT 1954 S73(1)

SOLICITORS (AMDT) ACT 1994 S8

SOLICITORS (AMDT) ACT 1994 S9

SOLICITORS (AMDT) ACT 1994 S10

SOLICITORS (AMDT) ACT 1994 S17

SOLICITORS (AMDT) ACT 1960 S6

SOLICITORS (AMDT) ACT 1994 S16

SOLICITORS (AMDT) ACT 2002 S8

SOLICITORS (AMDT) ACT 2002 S35

CIVIL LAW (MISCELLANEOUS PROVISIONS) ACT 2008

SOLICITORS (AMDT) ACT 1994 S2

SOLICITORS (AMDT) ACT 2002 S22

SOLICITORS (AMDT) ACT 1960 S7

SOLICITORS (AMDT) ACT 2002 S9

SOLICITORS (AMDT) ACT 1960 S7(9)

ATTORNEYS & SOLICITORS (IRELAND) ACT 1849 S2

SOLICITORS (AMDT) ACT 1994 S68(1)

SOLICITORS (AMDT) ACT 1994 S68(3)

SOLICITORS (AMDT) ACT 1994 S68(4)

SOLICITORS (AMDT) ACT 1994 S68(5)

SOLICITORS (AMDT) ACT 1994 S68(8)(A)(B)(ii)

SOLICITORS (AMDT) ACT 1994 S76(17)

SOLICITORS (AMDT) ACT 1994 S11

SOLICITORS (AMDT) ACT 1994 S10

DOUPE v LIMERICK CO COUNCIL & O'CONNOR 1981 ILRM 456

O'CEALLAIGH v BORD ALTRANAIS 2000 4 IR 54

MILEY v FLOOD & LAW SOCIETY OF IRELAND 2001 2 IR 50

SOLICITORS (AMDT) ACT 1994 S9

SOLICITORS (AMDT) ACT 1994 S8

DUFFY v DUBLIN CORPORATION 1974 IR 33

O'REILLY v LIMERICK CO COUNCIL 2007 1 IR 593

SOLICITORS (AMDT) ACT 1994 PART III

NATIONAL IRISH BANK LTD (NO.1), IN RE 1999 3 IR 145

NATIONAL IRISH BANK LIMITED, (UNDER INVESTIGATION), IN RE IN RE 1999 3 IR 190 1999 2 ILRM 443 2003 42 10011

SOLICITORS (AMDT) ACT 2002 S22

SOLICITORS (AMDT) ACT 1960 S7(3)

SOLICITORS (AMDT) ACT 2002 S9

COMPANIES ACT 1990 S8(1)

MAXWELL v DEPT OF TRADE 1974 1 QB 523

HAUGHEY, IN RE 1971 IR 217

DE SMITH, JUDICIAL REVIEW OF ADMINISTRATIVE ACTION 4ED 1980 199

WADE & FORSYTH ADMINISTRATIVE LAW OXFORD UNIVERSITY 10ED 2009 466

SOLICITORS (AMDT) ACT 1994 S14B

CIVIL LAW (MISCELLANEOUS PROVISIONS) ACT 2008 S41

Abstract:

Administrative law - Judicial review - Natural and Constitutional justice - Fair procedures - Complaint regarding solicitor's costs - Whether the respondent conducted an inquiry pursuant to s. 9 of the Solicitors (Amendment) Act, 1994 - Whether the appellant was denied fair procedures in the circumstances of this case - Solicitors (Amendment) Act 1960 - Solicitors (Amendment) Act, 1994.

Facts The appellant solicitor sought to quash by way of judicial review the decision of the first named respondent to refer a complaint to the second named respondent and also the actual application by the first named respondent to the second named respondent for an inquiry on the basis that there existed prima facie evidence of misconduct against the appellant. The appellant essentially complained that he was denied fair procedures and natural justice by the first named respondent and in particular submitted that he was deprived of relevant material including material on which the decision to refer the complaint was based. He further submitted that the respondent failed to individualise those complaints emanating from the client and failed to distinguish them from complaints which the respondent itself initiated. The appellant also submitted that the first named respondent acted ultra vires the provisions of section 9 of the Solicitors (Amendment) Act 1994 by failing to resolve what he submitted was essentially a complaint by a client of overcharging and by commencing but not concluding an inquiry in this regard. The appellant further submitted that the decision to refer and the application made to the second named respondent were null and void. The appellant submitted that the full operation of section 9 was a pre-condition to making any request for a misconduct inquiry. The respondent provided the appellant with a copy of the complaint letter and there was considerable correspondence between the parties. The respondent submitted that there was a general conduct inquiry and the appellant was afforded fair procedures.

Held by the Supreme Court; McKechnie J. (Finnegan, O'Donnell JJ concurring): That having regard to all of the evidence, the appellant was not denied natural justice and fair procedures. He received all of the correspondence, was informed by the respondent from time to time as to the matters then currently under investigation, was afforded opportunities to respond, was invited to and did attend several meetings, and on some occasions addressed or engaged with the respondent's Committee members. The appellant was told that conduct disparaging of the profession was in issue. The process conducted by the respondent involved more than one step/stage and was not simply a pure information gathering exercise. It was clear the respondent never committed itself to having an inquiry under s. 9 of the 1994 Act and the essence of the respondent's focus was on conduct. The respondent did not undertake a section 9 inquiry but was involved in a general conduct inquiry and the appellant was expressly informed that conduct was the issue. Despite the respondent's lack of clarity regarding the nature of the inquiry the respondent afforded the appellant an appropriate level of protection and fair procedures were followed. Fair procedures had to be and were considered at all stages of the tiered process. The decision in the case of O'Driscoll v. The Law Society of Ireland [2007] IEHC 352 (Unreported, High Court, McKechnie J., 27 July 2007) relied on by both parties was not relevant to the circumstances of this case as that case dealt with a situation were section 9 of the 1994 Act was exclusively invoked.

Reporter: L.O'S.

1 JUDGMENT delivered on the 23rd day of February, 2012 , by McKechnie J.

Introduction:

2 1. The appellant is a solicitor and as a sole practitioner carries on a general business from offices at Baggot Street in the City of Dublin. Arising out a road traffic accident which occurred in September, 1997 he was asked by one J.F. ("the client") to represent him in the subsequent civil action seeking damages for personal injuries. The case settled on the 19 ^th February, 2004. The client was dissatisfied with the claim for solicitor/client costs, and so informed the appellant in writing. The response was ill considered. On the 18 ^th May, 2004, the client took the matter to the Law Society of Ireland ("the Law Society" or "the Society"). After about two and half years, during which a great deal of correspondence and certain other events took place, the Law Society, through one of its established committees, made a decision to apply to the Solicitors Disciplinary Tribunal ("the Tribunal") for an inquiry on the basis that there existed prima facie evidence of misconduct against the appellant. It was not until September, 2007 that the application itself was made.

3 2. Leave was given to the appellant to seek judicial review on the 18 ^th January, 2008: therein he sought to quash the decision to refer as well as the actual application made to the Tribunal itself. No further step has been taken in this process. Pleadings closed and submissions exchanged, Edwards J. delivered a very detailed and lengthy judgment on the 31 ^st July, 2009. The appellant was unsuccessful in all aspects of his challenge. It is his appeal from that decision which this judgment addresses.

4 3. The notice of appeal contains 19 grounds of complaint which can be condensed in the manner following. All allege that the learned trial judge misdirected himself:-

5 · * in his interpretation of s. 9 of the Solicitors (Amendment) Act 1994 ("the Act of 1994") and in his application of its provisions to the facts so found;

6 · * in his application of s. 7 of the Solicitors (Amendment) Act 1960 ("the Act of 1960"), as amended and substituted by s. 17 of the Act of 2004;

7 · * in holding that neither the provisions of natural nor constitutional justice applied to the type of inquiry conducted by the Law Society under s. 7 of the Act of 2004, as amended and substituted;

8 · * in failing to distinguish the roles of the Society under s. 9 of the Act on the one hand as against s. 17 of the Act on the other hand, and;

9 · * in failing to hold:-

10 (i) that the Society had indicated to the appellant an intention to deal with the complaint under s. 9 of the Act;

11 (ii) that it, in fact, embarked upon such an inquiry;

12 (iii) that it was in breach of these provisions by not continuing the inquiry in the manner as provided;

13 (iv) in holding that two parallel inquiries were ongoing simultaneously as part of this investigation and, finally;

14 (v) in failing to apply the judgment in O'Driscoll v. The Law Society of Ireland [2007] IEHC 352 (unreported, High Court, McKechnie J., 27 ^th July, 2007), to the interpretation of the relevant provisions of the Act.

15 4. When these grounds are considered in conjunction with the submissions as made, it will be seen that the principal issues for determination are:-

16 (a) whether, following the receipt of the complaint above mentioned, the appellant has been denied fair procedures in the Society's engagement with him, and secondly;

17 (b) whether the Society was compelled to dispose of this complaint, and all matters arising out of their investigation into it, within and solely by reference to the provisions of s. 9 of the Act of 1994: and if so, what are the consequences of any breach of this obligation?

The Respondents:

18 5. The Law Society of Ireland is governed by a Council, comprised of elected and. nominated members...