An appeal brought to the High Court by a solicitor facing allegations of misconduct before the Solicitors Disciplinary Tribunal (SDT) has had his appeal struck out in limine.
Acceding to the application by the Law Society of Ireland, Mr Justice Kelly, President of the High Court, found that the appeal against the SDT’s determination that he could not rely on a defence of estoppel, brought by the man under section 7 of the Solicitors Act, lacked jurisdiction in the High Court.
Mr Ian Mallon of Ian Mallon Solicitors (Dublin and Newry) was accused of misconduct by the Law Society of Ireland. The SDT commenced an inquiry in respect of those accusations, which remain pending.
Two complaints were made against Mr Mallon by the Law Society:
- That he had a connection, association or arrangement with Claims.ie, whom he knew, or upon reasonable inquiry should have known, was acting or had acted in contravention of s.5 of the Solicitors (Amendment) Act 2002, which amounts to misconduct.
- That he accepted instructions to provide legal services to persons including the complainant which came via Claims.ie, whom he knew, or upon reasonable inquiry should have known, was acting or had acted in contravention of s.5 of the Solicitors (Amendment) Act 2002, which amounts to misconduct
Mr Mallon denied these allegations of misconduct.
The instant appeal
Mr Mallon brought an appeal in respect of a “decision/finding of the respondent made on 16th day of February, 2017 that the appellant is not entitled to rely on a defence of estoppel against the Law Society in an application bearing the record no. S10478/DT157/14, before the Solicitors Disciplinary Tribunal”.
President Kelly explained that there was no such decision or finding of the Law Society.
Mr Mallon sought to refer to a determination made by the SDT whereby he had raised an estoppel argument as a preliminary objection. The SDT concluded that the estoppel argument was without merit, and the inquiry was adjourned. The Law Society contended that no appeal could be brought against that determination, and therefore Mr Mallon’s appeal should be struck out for want of jurisdiction.
The right of appeal to the High Court from the SDT is regulated by s.7 of the Solicitors (Amendment) Act 1960 as substituted by s.17 of the Solicitors (Amendment) Act 1994 as amended by s.9 of the Solicitors (Amendment) Act 2002.
Mr Ian Mallon invoked the provisions of s.7 of the Solicitors (Amendment) Act 1960 as the basis for his appeal – however none of the statutory preconditions to trigger such right of appeal were met in Mr Mallon’s case.
The SDT had not considered each allegation of misconduct made against Mr Mallon; it had not made any findings against him; no report had been prepared by the SDT; and no order had been made by the SDT pursuant to s.7 of the Solicitors (Amendment) Act 1960. Consequently none of the statutory preconditions to the exercise of the right of appeal had been met.
President Kelly also noted that Mr. Mallon was not able to identify which subsection he relied upon in bringing the appeal. That is hardly surprising in circumstances where the SDT has not made any order or finding against him and still less has it served on him an order or report of the Tribunal which could give rise to a right of appeal to this court.
Rejecting Mr Mallon’s argument that s.7 created an appellate jurisdiction concerning what he describes as “unenumerated appeals”, President Kelly stated that the only appeals created by the Act are those which arise on foot of the steps prescribed by the Act; i.e. the completion by the SDT of its statutory obligation to consider each allegation of misconduct and to make findings and prepare a report or order in respect of them.
While the High Court has jurisdiction to regularise the conduct of an ongoing inquiry if there is a breach of natural justice or some misbehaviour on the part of the SDT, President Kelly explained that such remedy was within the purview of the judicial review jurisdiction of the High Court, not one arising under the structure of the appellate mechanism of the Solicitors Acts.
President Kelly also rejected the contention that the provisions of R.S.C., O.53, r.12 (b) support the notion of an “unenumerated” appellate jurisdiction; and agreed with the Law Society that Stephens v. Orange (President Finnegan, unreported) did not support the notion of the existence of some overarching appellate jurisdiction being exercised by the President of the High Court and accommodated as an appeal under s.7 of the legislation.
Stephens could not be read as creating a form of general right of appeal in respect of a preliminary determination of the SDT in circumstances where it has not exhausted its statutory obligation. A challenge to the jurisdiction, behaviour or conduct of the SDT prior to the completion of its statutory mandate cannot be made by means of a purported appeal under s.7 but only by way of judicial review.
Striking out the purported appeal in limine, President Kelly noted that “during the course of the hearing… it appeared that both solicitor and counsel acting on behalf of Mr Mallon failed in obligations of disclosure and candour both to the Disciplinary Tribunal and to this court”, and that this would be the subject of a separate ruling.
- by Seosamh Gráinséir for Irish Legal News