The Law Society of Ireland v Coleman
| Jurisdiction | Ireland |
| Judge | Mr. Justice Garrett Simons |
| Judgment Date | 31 December 2020 |
| Neutral Citation | [2020] IEHC 674 |
| Court | High Court |
| Docket Number | 2010 No. 65 SA |
IN THE MATTER OF SECTION 8 OF THE SOLICITORS (AMENDMENT) ACT 1960 (AS AMENDED)
[2020] IEHC 674
Garrett Simons
2010 No. 65 SA
2010 No. 66 SA
THE HIGH COURT
This judgment addresses the allocation of costs in disciplinary proceedings taken by the Law Society of Ireland against a solicitor. The central issue for determination is whether what is said to have been the previous practice, whereby costs were not normally awarded against a regulator in professional disciplinary proceedings, has survived the introduction of a new costs regime under the Legal Services Regulation Act 2015.
These disciplinary proceedings have a complex history (involving an appeal to the Supreme Court and remittal to the High Court), and have been in existence now for some ten years.
The proceedings have their origin in two complaints of professional misconduct made against a solicitor, Mr. Daniel Coleman (“ the respondent solicitor”). The detail of the complaints has been set out exhaustively in two earlier judgments delivered by me in these proceedings, Coleman v. Law Society of Ireland [2020] IEHC 162 and Law Society of Ireland v. Coleman [2020] IEHC 381. It is sufficient for the purposes of this costs ruling to summarise the complaints as follows. The first complaint concerned the conduct of the respondent solicitor in respect of the (alleged) sale of a number of residential units, and, in particular, the provision of confirmation to a lending institution that sales had been completed. The second complaint concerned whether there had been non-compliance with an undertaking to hold the title deeds of certain lands to the order of a lending institution.
The Disciplinary Tribunal made findings of misconduct against the respondent solicitor in respect of both complaints in the first quarter of 2010. The Law Society, as it is obliged to do so, subsequently brought the matter before the then President of the High Court (Kearns P.) on 26 July 2010. The respondent 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.
The respondent solicitor then brought an appeal to the Supreme Court against the order striking him off. This appeal was filed on 24 August 2010. 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 had been successful in his appeal, and the order striking his name from the Roll of Solicitors had been vacated. The “strike off” application had been remitted to the High Court for rehearing. See Law Society of Ireland v. Coleman [2018] IESC 80.
(The shorthand “ the ‘strike off’ application” will be used to describe the remitted application in circumstances where that had been the actual order sought by the Law Society in this case. This shorthand would not be appropriate in all cases, however, in that an application pursuant to section 7(3)(c)(iv) of the Solicitors (Amendment) Act 1960 (as amended) will not always seek a “strike off” order, but might seek a lesser form of sanction instead).
The respondent solicitor issued two notices of motion on 17 May 2019 seeking an extension of time within which to bring an appeal to the High Court against the findings of misconduct of the Disciplinary Tribunal. The application for an extension of time was listed for hearing before the High Court together with the Law Society's remitted application for an order striking off the respondent solicitor.
Both matters came on for hearing before me in the first week of March 2020. It had been agreed that the application for an extension of time would be heard first, and that the court would deliver a written judgment on that application in advance of any judgment in respect of the “strike off” application. It was further agreed that, to make efficient use of court time, the two applications would be heard back-to-back in a single hearing scheduled over three days. Put otherwise, rather than break off the hearing to prepare a written judgment on the application for an extension of time to appeal, the court moved directly to hearing the Law Society's application. At the request of the parties, separate judgments were to be delivered in respect of the two applications.
The intention had been that the hearing of both applications would be concluded before the (first) judgment would be delivered. Unfortunately, matters were overtaken by events, and, as a result of the restrictions on court sittings imposed as part of the public health measures designed to contain the spread of coronavirus, it was not possible to complete the hearing of the second application in March 2020. The parties subsequently agreed, however, that the court should deliver its judgment on the extension of time application, notwithstanding that the submissions had not yet been completed in the “strike off” application.
The application for an extension of time within which to bring a statutory appeal was refused for the reasons detailed in a written judgment delivered on 7 April 2020, Coleman v. Law Society of Ireland [2020] IEHC 162.
Thereafter, the parties agreed that the outstanding issues in respect of the “strike off” application could be addressed by way of supplemental written submissions. Both parties agreed that there was no necessity for any further oral submissions. The respondent solicitor filed his submissions on 12 June 2020, and the Law Society filed its submissions on 3 July 2020.
Judgment was delivered on the “strike off” application on 7 September 2020, Law Society of Ireland v. Coleman [2020] IEHC 381. The findings in respect of the first complaint were found to have a “sustainable basis” (in accordance with the principles laid down by the Supreme Court in Law Society of Ireland v. Coleman [2018] IESC 80), and an order was made directing that the respondent solicitor's name be struck off the Roll of Solicitors, pursuant to section 8 of the Solicitors (Amendment) Act 1960 (as substituted and amended).
By contrast, the findings of misconduct in respect of the second complaint were found not to have a “sustainable basis”, and the Law Society's application was dismissed. As acknowledged at paragraphs 217 to 221 of the judgment on the “strike off” application, my conclusion that the findings of misconduct were unsustainable had the consequence that there is some inconsistency between that judgment and my earlier judgment delivered in respect of the application for an extension of time to appeal. Specifically, the conclusion in the earlier judgment that there were not strong grounds of appeal has transpired to be incorrect.
The explanation for, and implications of, this discrepancy were set out as follows at paragraphs 219 to 221 of the judgment on the “strike off” application.
“The explanation for the discrepancy between the two judgements lies in the fact that the affidavit of Mr. Patrick Kavanagh of August 2019, which is central to this court's determination, had been submitted in the context of the ‘strike off’ application as opposed to the application for an extension of time. Moreover, different functions were being exercised by the court upon the two applications. It does not automatically follow that a more positive assessment of the strength of the appeal would have resulted in the grant of an extension of time. As discussed in detail in the judgment of 7 April 2020, the judgment of the Supreme Court in Seniors Money Mortgages (Ireland) DAC v. Gately [2020] IESC 3 requires a number of other considerations to be taken into account.
Nevertheless, and with the benefit of hindsight, it would have been preferable had I delivered a single omnibus judgment on both applications. This would have ensured that the was an appropriate crossover between the matters considered in each of the applications. As noted earlier, however, the parties' preference had been that two separate judgments would be delivered.
Crucially, the discrepancy between the two judgements does not cause any injustice to the Solicitor. This is because the Solicitor has achieved his objective in having the findings of misconduct in respect of the credit union undertaking set aside. The fact that, procedurally, this has been achieved in the context of the ‘strike off’ application, rather than in the context of a statutory appeal, does not make any substantive difference. The same result has eventuated. Of course, the Solicitor will be entitled to make submissions, if he so wishes, in respect of the consequence of this in terms of the appropriate costs order to be made.”
As discussed presently, one of the primary matters to be considered in allocating the costs of civil proceedings is the extent to which a party can be said to have been “entirely” or “partially” successful in the proceedings. The tally in this regard as between the Law Society and the respondent solicitor is as follows.
The Law Society succeeded in one of its two “strike off” applications, and successfully resisted the respondent solicitor's two applications for an extension of time within which to bring a statutory appeal to the High Court. The soundness of one of these latter victories is, however, open to doubt given the discrepancy identified above.
The respondent solicitor succeeded in resisting the second of the Law Society's two “strike off” applications.
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Law Society of Ireland v Coleman
...of leave. Discussion 4 As appears from the notices filed and the judgment of the High Court (see, The Law Society of Ireland v. Coleman [2020] IEHC 674), the applicant (“Mr. Coleman”) seeks to appeal directly to this Court from a decision of the High Court to the effect that he be struck of......