The Law Society of Ireland v Colm Murphy

• Jurisdiction: Ireland
• Judge: Mr. Justice MacGrath
• Judgment Date: 16 November 2022
• Neutral Citation: [2022] IEHC 742
• Court: High Court
• Docket Number: [Record No. 2006/371 SP] [SOLICITORS DISCIPLINARY TRIBUNAL 5306 DT 464 04] [Record No. 2009/14 SA] [THE DISCIPLINARY TRIBUNAL 5306 DT 464 04]

In the Matter of Colm Murphy a Solicitor Formerly Practising as Colm Murphy and Company Solicitors at Market Street, Kenmare, County Kerry and as Murphys at 1 Chapel Street, Killarney, County Kerry and

In the Matter of the Solicitors Act, 1954 to 2002

Between

The Law Society of Ireland

Applicant

and

Colm Murphy

Respondent

In the Matter of John Colm Murphy Formerly Practising as Colm Murphy and Company Solicitors at Market Street, Kenmare, County Kerry and as Murphys at 1 Chapel Street, Killarney, County Kerry and

In the Matter of the Solicitors Act, 1954 to 2002

Between

The Law Society of Ireland

Applicant

and

John Colm Murphy

Respondent Solicitor

In the Matter of John Colm Murphy, a Solicitor Practising as Colm Murphy and Company Solicitors at Market Street, Kenmare, County Kerry and as Murphys at 1 Chapel Street, Killarney, County Kerry and

In the Matter of an Application of the Law Society of Ireland to the SDT and

In the Matter of the Solicitors Act, 1954 to 2002

Between

Colm Murphy

Appellant

and

The Law Society of Ireland

Respondent

[2022] IEHC 742

[Record No. 2006/371 SP]

[Record No. 2009 12 SA]

[SOLICITORS DISCIPLINARY TRIBUNAL 5306 DT 464 04]

[Record No. 2009/14 SA]

[THE DISCIPLINARY TRIBUNAL 5306 DT 464 04]

THE HIGH COURT

Leave to re-enter – Strike off – Solicitors (Amendment) Act 1994 s. 18 – Applicant seeking leave to re-enter orders – Whether there had been a fundamental breach of fair procedures and constitutional justice

Facts: The applicant, Mr Murphy, applied to the High Court seeking leave to re-enter, for the purposes of setting aside, orders made in the following proceedings: (a) Law Society of Ireland v Murphy, High Court record number 2009/14 SA (the strike off proceedings); and (b) Law Society of Ireland v Murphy, High Court record number 2006/371 SP (the s. 18 proceedings). The applicant was enrolled as a solicitor in 1986. He held a practising certificate until December 2004. It was not renewed in 2005 in circumstances which were disputed. On 10th August 2006, the respondent, the Law Society of Ireland (the Society), instituted proceedings pursuant to s. 18 of the Solicitors (Amendment) Act 1994 seeking to restrain the applicant from practising as a solicitor without a certificate, to take certain actions in relation to the closure of his practice and to comply with orders of the Solicitors Disciplinary Tribunal (the SDT). An application for substituted service of those proceedings was made by the Society on 21st October 2006, the necessity and basis for which was much disputed by the applicant. On 31st January 2007, substantive orders were made, mostly on consent, with the applicant also undertaking not to practice, or to hold himself out as a solicitor entitled to practice when not so entitled. An application for attachment and committal was made by the Society by motion issued on 22nd February 2007. While no attachment or committal orders were made, ultimately the costs of the application were awarded against the applicant on 17th June 2008. Prior to the conclusion of the attachment and committal application, the applicant attempted, by affidavit, to revisit the order/orders made in the s. 18 proceedings. He also sought extensions of time within which to appeal three disciplinary findings of the SDT. The applications for extensions of time were also refused on 17th June 2008. No formal order was made in relation to the application to re-visit the order/orders in the s. 18 proceedings. On 18th May 2009 the applicant’s name was struck from the Roll of Solicitors by Johnson P, application having been brought by the Society pursuant to a recommendation of the SDT made in January 2009 at the conclusion of disciplinary proceedings.

Held by MacGrath J that he was not satisfied that the applicant had discharged the burden of proof which lay on him to establish an evidential basis for his contention that this was an exceptional case in which, in all the circumstances, the court ought to intervene and re-enter the s. 18 proceedings; or to support the contention that there had been a fundamental breach of fair procedures and constitutional justice in the manner in which the orders in those proceedings were obtained. MacGrath J held that the application must therefore be refused.

MacGrath J held that, regarding the strike off proceedings, he was not satisfied that it had been established that there was evidence which supported the contention that a fraud had been perpetrated either on the court or the SDT or that, otherwise, special and unusual circumstances existed which pointed to a fundamental denial of justice and breach of constitutional rights such as to warrant the intervention of the court. In the circumstances, MacGrath J was not satisfied that the applicant had discharged the onus of proof and therefore the application must be refused.

Application refused.

JUDGMENT of Mr. Justice MacGrath delivered on the 16 ^th day of November, 2022 .

INDEX

1. Introduction	Para.1–2
2. Litigation history	Para.3–9
3. Two distinct applications	Para.10–11
4. The test for re-entry	Para.12–18
5. Additional submissions	Para.19–28
6. Discussion and conclusion on test	Para.29–30
7. General observations	Para.31
8. Overlapping issues – revisiting issues addressed in the civil proceedings	Para.32–33
Part I – The Section 18 proceedings
9. Reliefs sought in the s.18 proceedings	Para.34
10. The Order for Substituted Service – 11 th October 2006	Para.35
11. Orders made in the s.18 proceedings on 31 st January 2007	Para.36–38
12. The Notice of Motion dated 1 st June 2016 to re-enter the s.18 proceedings	Para.39–41
13. (a) Orders sought to be re-entered	Para.42
13.1 Attachment and Committal – the order of the 28 th February 2007	Para.43–44
13.2 The Order of the 9 th May 2007	Para.45
The Order of 11 th June 2007	Para.46
The Order of 16 th July 2007	Para.47
The Order of 8 th October 2007	Para.48
The Order of 19 th November 2007	Para.49
Further court appearances	Para.50
14. (b) Grounding Affidavit of 27 th May 2006	Para.51–53
(i) The auction and the application for substituted service
(ii) The letters/letterheads allegedly used
(iii) The operation of accounts – writing cheques on client account
(iv) The need for the private investigator
(v) The [REDACTED] document was a forgery
(vi) The reference to a telephone bill by Solicitor X in support of the contention that Mr. Murphy was practising
(vii) Miscellaneous matters
15. Proceedings before the President of the High Court on 31 st January 2007	Para.54
16. Transcript of proceedings of 31 st January 2007	Para.55
17. Attachment and Committal	Para.56–57
18. Decision not to appeal the s.18 orders/attachment and committal costs order	Para.58
19. Matters arising since the making of the orders in the s.18 and the order for costs in the attachment and committal proceedings	Para.59
20. The Society's response	Para.60–61
i. Delay
ii. Failure to comply with directions, representation at hearing and consent to orders
iii. No choice but to give undertakings not to practice
iv. Points already before the court on 31 st January 2007
v. No application to set aside and no appeal
vi. The lawful basis for the s.18 proceedings
vii. Failure to comply with s.18 orders
viii. Headed notepaper
21. Previous attempt to set aside the order for substituted service, the s.18 orders made and to dismiss the special summons
a) Mr. Murphy's affidavits of 31 st January 2008	Para.62–63
b) Solicitor X's replying affidavit of 22 nd February 2008	Para.64
c) Mr. Murphy's affidavit of 26 th March 2008	Para.65–67
d) Solicitor X's affidavit of 8 th April 2008	Para.68–69
22. Ex tempore judgment of 17 th June 2008	Para.70
23. The perfected orders of the rulings delivered on 17 th June 2008	Para.71
24. Discussion
a) Status and legal effect of ruling of Johnson P. on this application	Para.72–77
25. Why is this an exceptional case?
a) The Auction	Para.78–88
26. Discussion and conclusions
a) The order for substituted service and the Vodafone letter	Para.89–99
b) The [REDACTED] issue(s)	Para.100–111
27. The reasons advanced for not appealing the orders of Johnson P	Para.112
28. Medical evidence and state of mind	Para.113–115
29. What has come to light since the making of the orders that might justify intervention?	Para.116
30. Alleged misleading of Hanna J. in 2012	Para.117–126
31. The admission in evidence in the civil proceedings of certain documents without formal proof	Para.127–131
32. Documents revealing that the Society wished to make some application before the court and impermissible use of s.18	Para.132–133
33. Writing of client account cheque-new matters	Para.134
34. Headed notepaper-new matters?	Para.135–140
35. Miscellaneous other matters	Para.141–143
36. Summary and conclusions	Para.144–147
37. Significance otherwise of the s.18 proceedings	Para.148–149
Part II — The Strike Off Application
38. Introduction	Para.150
39. Special or unusual circumstances	Para.151–155
40. Application to re-enter the Strike Off proceedings – affidavits	Para.156–166
41. The Notice of Motion and the breadth of the application	Para.167–168
42. Principles applicable	Para.169–170
43. The [REDACTED] complaints	Para.171–181
44. Schedules	Para.182
45. The SDT findings	Para.183–186
46. SDT penalty hearing – 13 th January 2009	Para.187–188
47. Submissions by Counsel for the Society to the SDT	Para.189–190
48. Submissions by Counsel for Mr. Murphy to the SDT	Para.191–201
49. The SDT...