The Law Society of Ireland v Coleman

• Jurisdiction: Ireland
• Judge: Mr. Justice Garrett Simons
• Judgment Date: 07 September 2020
• Neutral Citation: [2020] IEHC 381
• Docket Number: 2010 No. 65 SA
• Date: 07 September 2020
• Court: High Court

IN THE MATTER OF SECTION 8 OF THE SOLICITORS (AMENDMENT) ACT 1960 (AS AMENDED)

BETWEEN

THE LAW SOCIETY OF IRELAND

APPLICANT

AND

DANIEL COLEMAN

RESPONDENT

[2020] IEHC 381

Garrett Simons J.

2010 No. 65 SA

2010 No. 66 SA

THE HIGH COURT

Roll of Solicitors – Solicitors (Amendment) Act 1960 – “Strike off” application – Applicant seeking to strike the name of the respondent off the Roll of Solicitors – Whether there was a sustainable basis for the findings of the Disciplinary Tribunal of the applicant

Facts: The applicant, the Law Society of Ireland, applied to the High Court to strike the name of the respondent solicitor, Mr Coleman, off the Roll of Solicitors pursuant to s. 7(3)(c)(iv) of the Solicitors (Amendment) Act 1960 (as amended). The High Court’s jurisdiction is set out at s. 8 of the same Act. The “strike off” application was made on foot of two separate recommendations of the Disciplinary Tribunal of the Law Society. Those recommendations had been made in the first quarter of 2010. An earlier order of the High Court (Kearns P) striking off the solicitor in July 2010 had since been overturned by the Supreme Court by order dated 1 May 2019, and the “strike off” application had been remitted to the High Court. The application had been assigned to Simons J by the then President of the High Court (Kelly P) for hearing in March 2020. The hearing had been disrupted by the public health restrictions introduced in respect of the coronavirus disease pandemic. The “strike off” application had been heard immediately after a related application by the solicitor seeking an extension of time within which to bring a statutory appeal against the findings of the Disciplinary Tribunal. The application for an extension of time had been refused for the reasons set out in detail in a judgment delivered on 7 April 2020, Coleman v Law Society of Ireland [2020] IEHC 162.

Simons J considered the precise role of the High Court under s. 8 of the 1960 Act in circumstances where there was some disagreement between the parties as to the extent to which the High Court is required to review the findings of the Disciplinary Tribunal. This disagreement turned, to an extent, on the distinction between (i) a “strike off” application under s. 8, and (ii) a statutory appeal under s. 7(13) of the 1960 Act. Simons J also examined the question of whether there was a sustainable basis for the findings of the Disciplinary Tribunal. Finally, Simons J addressed the question of the appropriate sanction.

Simons J held that an order would be made in the first set of proceedings (2010 No. 65 S.A.) striking Mr Coleman’s name off the Roll of Solicitors, pursuant to s. 8 of the 1960 Act. Simons J dismissed the Law Society’s application in the second set of proceedings (2010 No. 66 S.A.).

Application in first proceedings granted. Application in second proceedings dismissed.

JUDGMENT of Mr. Justice Garrett Simons delivered on 7 September 2020

INTRODUCTION	3
PART I	5
PROCEDURAL HISTORY	5
PART II	8
ROLE OF THE HIGH COURT	8
OVERVIEW OF DISCIPLINARY PROCEDURES	8
SUBMISSIONS ON BEHALF OF THE SOLICITOR ON HIGH COURT'S ROLE	16
FINDINGS OF THE COURT: SECTION 8 JURISDICTION	19
PART III	23
CONVEYANCING TRANSACTION / FAIRVIEW CONSTRUCTION LTD	23
ADMISSIONS OF FACT	29
Volte face by Solicitor	33
FINDINGS OF THE COURT: FAIRVIEW CONSTRUCTION LTD	34
Solicitor bound by admissions of fact	34
Alleged failure to plead dishonesty	37
Submission that there had been procedural unfairness	41
Mr. Devaney as a witness	46
Hearing on 26 November 2009	48
Manuscript notes	49
RELIANCE ON ADDITIONAL AFFIDAVITS	50
Affidavit of Mr. Michael O'Donnell	51
Affidavit of Mr. Patrick Kelly (formerly of ACC Bank)	52
SUMMARY	53
UNDERTAKING TO CREDIT UNION	54
SOLICITOR'S POSITION	60
SOLICITOR'S CHALLENGE TO THE FINDINGS OF MISCONDUCT	63
(a). Failure to grant an adjournment	63
(b). Alleged failure to submit points of defence	63
(c). alleged failure to adequately investigate the complaint	63
(d). Alleged material non-disclosure led to errors of fact that became errors of law	64
(e). Alleged failure to apply any test for reliance on the undertaking	65
(f). Alleged failure to quantify the loss in making an order for restitution	65
FINDINGS OF THE COURT RE: UNDERTAKING TO CREDIT UNION	66
ADMISSION OF MR. KAVANAGH'S AFFIDAVIT	72
INCONSISTENCY WITH EARLIER JUDGMENT	73
SERVICE OF REPORT OF THE DISCIPLINARY TRIBUNAL	75
PART IV	77
APPROPRIATE SANCTION	77
FINDINGS OF THE COURT ON APPROPRIATE SANCTION	79
CONCLUSION AND PROPOSED FORM OF ORDER	82

INTRODUCTION

1 This matter comes before the High Court by way of an application to strike a solicitor's name off the Roll of Solicitors. The application is brought at the instance of the Law Society pursuant to section 7(3)(c)(iv) of the Solicitors (Amendment) Act 1960 (as amended). The High Court's jurisdiction is set out at section 8 of the same Act. The “strike off” application is made on foot of two separate recommendations of the Disciplinary Tribunal of the Law Society. These recommendations had been made in the first quarter of 2010. The explanation for the lapse of time between then and now is as follows. An earlier order of the High Court (Kearns P.) striking off the solicitor in July 2010 has since been overturned by the Supreme Court by order dated 1 May 2019, and the “strike off” application has been remitted to the High Court. The application had been assigned to me by the then President of the High Court (Kelly P.) for hearing in March 2020. The hearing had been disrupted by the public health restrictions introduced in respect of the coronavirus disease pandemic.

2 The “strike off” application had been heard immediately after a related application by the Solicitor seeking an extension of time within which to bring a statutory appeal against the findings of the Disciplinary Tribunal. The application for an extension of time has been refused for the reasons set out in detail in a judgment delivered on 7 April 2020, Coleman v. Law Society of Ireland [2020] IEHC 162. Given the significant overlap between the issues which fall for determination as part of the “strike off” application, and the earlier application for an extension of time, the present judgment should be read in conjunction with the earlier judgment of 7 April 2020.

3 The present judgment is structured as follows. First, the procedural history will be summarised. Secondly, the precise role of the High Court under section 8 of the Solicitors (Amendment) Act 1960 will be considered. Consideration of this issue is necessary in circumstances where there is some disagreement between the parties as to the extent to which the High Court is required to review the findings of the Disciplinary Tribunal. This disagreement turns, to an extent, on the distinction between (i) a “strike off” application under section 8, and (ii) a statutory appeal under section 7(13) of the Solicitors (Amendment) Act 1960. Thirdly, the question of whether there is a sustainable basis for the findings of the Disciplinary Tribunal will be examined. Finally, the question of the appropriate sanction will be addressed.

5

PART I

PROCEDURAL HISTORY

4 The procedural history has already been set out in detail in my judgment delivered on 7 April 2020, Coleman v. Law Society of Ireland [2020] IEHC 162. Insofar as relevant to the “strike off” application, the relevant procedural steps can be summarised as follows.

5 Findings of misconduct were made against Mr. Daniel Coleman ( “the Solicitor”) by the Disciplinary Tribunal following two hearings in February 2010. In each instance, the Disciplinary Tribunal recommended that the Solicitor's name be struck off the Roll of Solicitors. The Law Society made application to the High Court pursuant to section 7(3)(c)(iv) of the Solicitors (Amendment) Act 1960 in July 2010.

6 The Solicitor had not exercised his statutory right of appeal against the decisions of the Disciplinary Tribunal. The matter thus came before the High Court solely on the basis of the Law Society's application seeking inter alia an order striking off the Solicitor, i.e. there was no parallel appeal by the Solicitor before the High Court. The consequence of this is that the ambit of the submissions which the Solicitor would have been entitled to make to the High Court was more limited than had he brought an appeal.

7 When the matter appeared before the (then) President of the High Court (Kearns P.) on 26 July 2010, the Solicitor applied for an adjournment in order to instruct counsel. The President refused the application for an adjournment, and, having heard submissions, made an order striking the name of the Solicitor off the Roll of Solicitors. An order was also made directing the Solicitor to pay the sum of €320,000 in restitution to St. Jarlath's Credit Union, Tuam.

8 The Solicitor then brought an appeal to the Supreme Court against the order striking him off. This appeal was filed on 24 August 2010. (To avoid confusion, the reader should bear in mind that the Supreme Court appeal is separate and distinct from the statutory appeal against the findings of misconduct by the Disciplinary Tribunal in respect of which the Solicitor has since applied for—but has been refused—an extension of time).

9 The appeal to the Supreme Court had been made prior to the establishment of the Court of Appeal, and at a time when the Supreme Court, being the only appellate court, had a very heavy case load. The appeal was ultimately heard and determined in 2018. (The order of the Supreme Court was perfected on 1 May 2019). The Solicitor has been successful in his appeal, and the order striking his name from the Roll of Solicitors has been vacated. The “strike off” application has been remitted to the High Court for rehearing. See Law Society of Ireland v. Coleman [2018] IESC 80.

10 The...