The Law Society of Ireland v Coleman
| Jurisdiction | Ireland |
| Court | Court of Appeal (Ireland) |
| Judge | Mr. Justice Binchy |
| Judgment Date | 11 July 2022 |
| Neutral Citation | [2022] IECA 158 |
| Docket Number | Court of Appeal Record No.: 2021/13 |
[2022] IECA 158
Whelan J.
Faherty J.
Binchy J.
Court of Appeal Record No.: 2021/13
THE COURT OF APPEAL
Roll of Solicitors – Struck off – Procedural unfairness – Applicants appealing from an order whereby it was ordered that the appellant’s name be struck off the Roll of Solicitors – Whether the proceedings were contaminated by a procedural unfairness
Facts: The appellant, Mr Coleman, appealed to the Court of Appeal from an order of the High Court (Simons J) of 31st December 2020 whereby it was ordered that the appellant’s name be struck off the Roll of Solicitors pursuant to s. 8 of the Solicitors (Amendment) Act 1960 (as amended), and whereby it was further ordered that the respondent, the Law Society of Ireland, should recover its costs of the application. The appellant advanced two core arguments. The first of these was that the proceedings before the Solicitors’ Disciplinary Tribunal were contaminated by a procedural unfairness such that the admissions made by the appellant were unreliable and/or unsafe, and therefore that the findings of the Tribunal were unsustainable. The trial judge, it was submitted, erred in his approach to this argument by failing to consider the fairness of the disciplinary process up to the point of the admissions and in proceeding instead on the basis that the starting point for the court in assessing the sustainability of the findings of the Tribunal was the admissions themselves. The trial judge, it was submitted, failed to have due regard to the relevant authorities of the United Kingdom to which he was referred, and in particular M.M. v Secretary of State of the Home Department [2014] UKUT 105 (IAC). The second core argument relied upon by the appellant related to the finding of dishonesty, on the part of the appellant, by the Tribunal and by the High Court, which the appellant claimed was flawed on three grounds: firstly, the pleading of dishonesty was inadequate, secondly, the Tribunal and the High Court made a finding of dishonesty without identifying any test for dishonesty, and thirdly, in finding dishonesty, the trial judge did so on the basis of strict liability.
Held by Binchy J that the trial judge was correct in his findings that there was no procedural infirmity or unfairness of any kind in the procedures followed by the Tribunal, and that the Tribunal was entitled to rely as it did, on the admissions as to fact made by the appellant. Binchy J held that the conduct admitted by the appellant as particularised in allegations 33(b), (c), (d) and (g) of the affidavit of Ms Blayney was plainly conduct that would be likely to bring the solicitors’ profession into disrepute, and the findings of the Tribunal to that effect were, as found by the trial judge, sustainable. In Binchy J’s view it was clear that the finding of dishonesty related to allegations 33(b) and (c) in respect of which the appellant accepted that the allegations connoted dishonesty; that being so, the argument that dishonesty was not adequately pleaded was rejected. It was, in Binchy J’s view, incorrect to characterise any of the findings of the trial judge as having been made on the basis of imposition of strict liability, and he rejected that argument. Binchy J held that the trial judge was entitled to conclude that by admitting to allegations 33 (b) and (c), the appellant engaged in dishonest conduct, without applying any test for dishonesty.
Binchy J dismissed the appeal. As the respondent had been entirely successful in the appeal, Binchy J’s preliminary view was that the appellant should pay the costs of the respondent, to be adjudicated in default of agreement.
Appeal dismissed.
JUDGMENT of Mr. Justice Binchy delivered on the 11 th day of July 2022
| 1. Background | 2 |
| 2. The alleged misconduct | 6 |
| 3. Proceedings before the Tribunal, 10th January 2010 | 11 |
| Conclusion of the Tribunal | 16 |
| 4. Application to the High Court | 17 |
| Judgment of the High Court | 17 |
| 5. Grounds of Appeal | 27 |
| 6. Submissions of the Solicitor | 29 |
| 7. Submissions of the Society | 32 |
| 8. Discussion and Conclusions | 35 |
| a. The procedural unfairness argument | 35 |
| b. Finding of misconduct by the Tribunal | 40 |
| c. Dishonesty | 43 |
| d. Strict liability argument | 45 |
| e. Failure to apply a test for dishonesty | 47 |
| f. Appropriate sanction | 49 |
. This is an appeal from an order of the High Court (Simons J.) of 31 st December 2020 whereby it was ordered that the appellant's name be struck off the Roll of Solicitors pursuant to s. 8 of the Solicitors (Amendment) Act, 1960 (as amended), and whereby it was further ordered that the respondent should recover its costs of the application. That order followed from a detailed judgment of Simons J. handed down on 7 th September 2020. That judgment was the latest development in proceedings with a very long history.
. The appellant (whom I shall hereafter refer to as the “Solicitor”) was admitted to the Roll of Solicitors on 17 th September 1998 and established his own practice in November 1999 in Ballinrobe, County Mayo. According to an affidavit sworn in these proceedings by the Solicitor on 23 rd May 2019, his practice grew, at one point employing up to nine staff including associate solicitors, apprentice solicitors, legal executives, secretaries and accounting personnel.
. In May 2007, the respondent (hereafter the “Society”) received a letter of complaint from a firm of solicitors (Damien Tansey & Co., hereafter referred to as the “Complainants”) acting on behalf of a client of the Solicitor, namely Fairview Construction Limited (“Fairview”). The complaint arose out of an alleged conflict of interest on the part of the Solicitor in acting on behalf of both the vendor (Fairview) and the purchaser (Mr. Mark Devaney) in the sale and purchase of lands owned by Fairview, contrary to Article 4(a) of the Solicitors (Professional Practice, Conduct and Discipline) Regulations 1997 (S.I. No. 85/1997) (the “1997 Regulations”). It was alleged that this conflict arose in circumstances where the identity of Mr. Devaney as purchaser was concealed by the Solicitor from Fairview and its directors, Mr. Shaun Heffernan and Mr. Sean Rowlette. It was further alleged that the Solicitor acted dishonestly and to the detriment and prejudice of the Fairview. The matters complained of were alleged to have occurred in 2004.
. These complaints led to an investigation by the Society. That investigation was initially commenced by a solicitor in the Complaints and Client Relations section of the Society, namely Ms. Helene Blayney, who in due course referred the matter to the Complaints and Client Relations Committee (the “CCRC”) of the Society. The matter was before the CCRC on five occasions between 12 th September 2007 and 1 st April 2008. From 17 th October 2007, the Solicitor was represented by a solicitor experienced in the handling of such complaints, namely Mr. Sean Sexton of P.J. Walsh and Company, solicitors. During the course of the investigation of the complaint, both before and after the involvement of the CCRC, the Solicitor was afforded the opportunity to respond to the complaints made against him, and the Complainants in turn were afforded the opportunity to respond to the responses of the Solicitor. The Solicitor was required to produce all relevant files and documents to the Society.
. As well as providing his responses by way of correspondence to the complaints against him, the Solicitor, in the course of the investigation process, delivered a statutory declaration made by him on 25 th February 2008 and also procured and produced to the Society two affidavits from Mr. Devaney (dated 16 th October 2007 and 25 th February 2008) as well as an affidavit from a Ms. Hilary O'Connor, solicitor, dated 25 th February 2008. Ms. O'Connor was employed by the Solicitor during the relevant period and had also worked during that period on the matters giving rise to the complaints, although it must be stressed that neither her conduct nor her professionalism was in any way impugned. Ultimately, the CCRC at its meeting of 1 st April 2008 concluded that the Solicitor's conduct warranted further enquiry by the Solicitors' Disciplinary Tribunal (the “Tribunal”) and accordingly referred the matter to the Tribunal for that purpose.
. The formal application to the Tribunal, dated 27 th February 2009, was made by the Society pursuant to s. 7(3)(c)(iv) of the Solicitors (Amendment) Act, 1960 (as amended) and was grounded upon the affidavit of Ms. Blayney of the same date. In the concluding paragraph of her affidavit, Ms. Blayney states:
“33. It is submitted that the respondent solicitor has been guilty of misconduct in his practice as a solicitor in that he:
(a) Failed to provide a copy of the deposit cheque in the sum of approximately €85,000 paid by the purchaser to the complainant's clients;
(b) Caused or allowed the name of Michael O'Donnell, solicitor, to be written on contracts for sale dated 19 th May 2004 without the authority of Michael O'Donnell;
(c) Caused or allowed a fictitious contract dated 19 th May 2004 to come into existence and purportedly made between the Complainant's clients and Michael O'Donnell solicitor, in trust, for the purpose of misleading ACC Bank into advancing monies to Fairview Construction Limited knowing that the sale of the land to Fairview Construction Limited had not closed and that the dwelling units had not been constructed;
(d) Destroyed a file relating to the contested contract dated 19 th May 2004 without the express or implied instructions of both parties and in particular, the complainant's clients, Shaun Heffernan and Sean...
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