The Law Society of Ireland v Daniel Coleman

• Jurisdiction: Ireland
• Judge: Mr. Justice William M. McKechnie
• Judgment Date: 21 December 2018
• Neutral Citation: [2018] IESC 71
• Date: 21 December 2018
• Court: Supreme Court
• Docket Number: [Appeal No. 2010/318 66 SA]

Between

THE LAW SOCIETY OF IRELAND

Applicants/Respondents

AND

DANIEL COLEMAN

Respondent/Appellant

[2018] IESC 71

McKechnie J.

MacMenamin J.

Dunne J.

[Appeal No. 2010/318 66 SA]

[Appeal No. 2010/319 65 SA]

THE SUPREME COURT

Professional misconduct – Striking off the Roll of Solicitors – Restitution – Appellant seeking to appeal against High Court orders – Whether the hearing before the High Court lacked the essential features of fairness

Facts: Two substantive appeals arose out of separate allegations of misconduct made by former clients against the appellant, Mr Coleman, who at the time was practising as the principal in the firm of Coleman & Company, Solicitors, Main Street, Ballinrobe, Co. Mayo. Both complaints, following an initial assessment as to merit, were referred by the relevant Committee of the respondent, the Law Society of Ireland, to the Solicitors Disciplinary Tribunal for further inquiry. As a result of the Tribunal’s investigations, a total of seven findings of professional misconduct were made against the appellant, arising out of both complaints. The statutory reports of that body were then put before the High Court where an order was sought in each case, inter alia, striking Mr Coleman from the Roll of Solicitors. Other reliefs, including the making of restitution in the sum of €320,000 were also claimed. On 26th July, 2010, Kearns P granted the orders sought. Therefrom the appellant served a Notice of Appeal in each case in August, 2010. In addition, he subsequently issued a number of motions, made returnable directly before the Supreme Court, in which he sought first to adduce new and further evidence and second, to enlarge the grounds of appeal as originally filed.

Held by McKechnie J that the hearing before the High Court on 26th July, 2010, lacked the essential features of fairness and thus, the resulting orders could not stand. McKechnie J remitted this matter back to the High Court, so as to adjudicate afresh on the applications which the Society issued on the 9th of July, 2010. Subject to any order which that Court might make, McKechnie J envisaged that the appellant should be given an opportunity of responding to the motions. Save for that, McKechnie J did not wish to foreclose on how the High Court may deal with any application made or submission advanced; it would be entirely up to that court to decide on how the case should further proceed.

McKechnie J held that he would therefore allow the appeal in the manner above indicated, but dismiss both motions which the appellant issued on 10th February, 2015, and 24th April, 2015, respectively.

Appeal allowed.

JUDGMENT of Mr. Justice William M. McKechnie delivered on the 21 ^st day of December, 2018

Introduction:

1 Arising out of the circumstances more fully described in a moment, there were two substantive appeals still pending in this case, at the most recent hearing before the court: these arose out of separate allegations of misconduct made by former clients against the appellant, who at the time was practising as the principal in the firm of Coleman & Company, Solicitors, Main Street, Ballinrobe, Co. Mayo. Both complaints, following an initial assessment as to merit, were referred by the relevant Committee of the Society to the Solicitors Disciplinary Tribunal for further inquiry. As a result of the Tribunal's investigations, a total of seven findings of professional misconduct were made against the appellant, arising out of both complaints. The statutory reports of that body were then put before the High Court where an order was sought in each case, inter alia, striking Mr. Coleman from the Roll of Solicitors: other reliefs, including the making of restitution in the sum of €320,000 were also claimed. On 26 ^th July, 2010, Kearns P. granted the orders sought. Therefrom the appellant served a Notice of Appeal in each case in August, 2010. In addition, he subsequently issued a number of motions, made returnable directly before this Court, in which he sought first to adduce new and further evidence and second, to enlarge the grounds of appeal as originally filed. These are therefore the issues which form the subject matter of this judgment.

Background:

The Insurance Issue:

2 Prior to the commencement of any formal proceedings in this case and unrelated to any of the events giving rise thereto, there was an order made by the High Court on the 9 ^th November, 2009, suspending the appellant's practising certificate from that date onwards. This order was made on the basis of and following a decision of the Professional Indemnity Insurance Committee of the Society (“the PII Committee”) on 28 ^th September, 2009, to refuse to admit Mr. Coleman to the Assigned Risk Pool, so that insurance cover was denied (2009/101 SA). The decision itself as such, is of no ongoing relevance to the current proceedings, save that it prevented the solicitor from directly instructing counsel to act on his behalf which he says placed him in considerable difficulty and secondly, that as the matter was still ongoing, it was due to further appear in the High Court's list on 26 ^th July, 2010. This scheduled listing explains quite an important phone call which was had between the parties on the preceding Friday of that week. This is later referred to and dealt with in the judgment (paras. 14 & 83 infra).

3 In order to make chronological sense of this lengthy and protracted litigation it is necessary to separately outline the background of each complaint and how such proceeded before the regulating body, before dealing with the High Court proceedings and the events which subsequently followed.

Complaint No. 1: St. Jarlath's Credit Union:

4 On the 22 ^nd January, 2009, the Society received a complaint from a Mr. Michael Culkeen, the Chief Executive Officer of St. Jarlath's Credit Union in Tuam, Co. Galway (“the Complainant”). Enclosed was a letter of undertaking from the appellant, dated 16 ^th February, 2004, to the effect that he would hold the title deeds of hereditaments in Folio 63100F Co. Galway to the order of the Credit Union in respect of certain advances made by it to one Patrick and Michael Kavanagh, who were then clients of his firm. On occasions the date is given as the 6 ^th February, 2004: nothing turns on this. Mr. Coleman failed to honour that undertaking, with the lands being sold to a third party without the knowledge, consent or approval of the Union. The resulting loss was in the sum of €320,000 (para. 1 above).

5 As part of its investigation the Society sent several pieces of correspondence to the appellant over the following three months: whilst he did reply on occasions, he did not substantively or adequately deal with the complaint. Accordingly, the matter was referred to the Complaints and Client Relations Committee (“the Committee” or “the CCRC”) of that body which, at its meeting on 24 ^th April, 2009, decided to refer the matter to the Solicitors Disciplinary Tribunal (“the Disciplinary Tribunal” or “the Tribunal”) for further inquiry. The Committee however placed a stay of fourteen days on that order so as to afford Mr. Coleman an opportunity of producing evidence that the Credit Union had consented to the transfer of his undertaking, which on his behalf, counsel had asserted at that meeting. No such evidence either within the timeframe as provided or at all, was over produced.

6 The Law Society, on 21 ^st September, 2009, made application to the Disciplinary Tribunal for an inquiry into the matters alleged against Mr. Coleman: he did not attend and was not represented at the follow-on substantive hearing, which took place on 25 ^th February, 2010. Three findings of misconduct were made against him. These were:-

(a) “Failed in a timely fashion or at all to comply with an undertaking given by him in letter dated the 6 ^th February, 2004, (sic) to the Complainant whereby he undertook to hold the title deeds in respect of Folio 63100F Co. Galway in trust to the order of Tuam Credit Union Limited:

(b) Failed to adequately respond to the Complainants correspondence, and in particular … letters dated the 31 ^st January, 2008 and the 1 ^st September, 2008.

(c) Failed to reply adequately to the Society's correspondence, in particular to letters dated the 30 ^th January, 2009, 3 ^rd March, 2009, and the 6 ^th April, 2009.”

These findings were reflected in an order made by the Chairperson of the Tribunal, on the 16 ^th March, 2010, and were again set out in the report next mentioned.

7 As is statutorily required, a motion in each complaint issued on 9 ^th July, 2010: these were supported by separate affidavits sworn on the same day by one Mr. David Irwin, a Solicitor in the Regulation Department of the Society. In the case of the Credit Union, that referred inter alia to the Tribunal's Order and Report to the High Court and sought the following reliefs:

(i) An order striking the name of the appellant, Daniel Coleman from the Roll of Solicitors;

(ii) An order that the appellant pay the sum of €320,000 in restitution to St. Jarlath's Credit Union Tuam, Co. Galway;

(iii) An order that the appellant pay all the costs of the Law Society of Ireland for the Solicitors Disciplinary Tribunal proceedings including those of the witnesses who attended, with the same to be taxed in default of agreement;

(iv) An order for the costs of the within proceedings;

(v) Such further and other reliefs as this Honourable Court shall deem meet and just.

What occurred between the issue date of that motion and the hearing date of 26 ^th July, 2010, is common to both complaints, and can be found at paras. 14 – 15 and 82 – 85 infra.

Complaint No. 2: Fairview Construction Limited:

8 On 15 ^th May, 2007, the Society received a complaint from Mr. Damien Tansey, Solicitor, of Damien Tansey & Associates who at that time were acting for a company known as Fairview Construction Ltd (“Fairview...