High Court: Solicitor found guilty of misconduct loses appeal against Solicitors Disciplinary Tribunal

The Solicitors Disciplinary Tribunal (SDT) and the Law Society of Ireland successfully raised preliminary objections as to jurisdiction in respect of issues sought to be litigated by a solicitor as part of his appeal from a finding of misconduct by the SDT.

Dismissing the solicitor’s appeal, Mr Justice Kelly, President of the High Court agreed with the objections, and stated that even if there was such jurisdiction, the solicitor “precluded himself by acquiescence and waiver from raising such issues now”.

Background

President Kelly explained that the present proceedings arose on foot of a complaint lodged by former clients of the appellant solicitor, Mr Barry Sheehan.

There had been “a long tortuous history of bitter relations” between the parties: and from the outset President Kelly advocated the view of the Chairman of the SDT who said that “both parties had been fixated about vindicating their respective positions against the other”.

In 2002, Mr Bernard Bingham and Mrs Viola Bingham commenced medical negligence proceedings in the High Court, and “retained several firms of solicitors to act on their behalf parting company with each of them in turn”.

In 2006, Mr Sheehan came on record for the Bingham’s in that litigation, coming off record in 2008 following a contested hearing before Feeney J.

In 2009 the Bingham’s were unsuccessful in a complaint to the Law Society concerning Mr Sheehan, which was rejected on appeal.

In June 2009 Mr Sheehan decided to sue the Bingham’s for €37,725.44 costs allegedly due to him. The Bingham’s counterclaimed for damages for professional negligence and breach of contract. Both the claim and counterclaims were dismissed.

In 2014, the Bingham’s applied for an inquiry into the conduct of Mr Sheehan on the grounds of alleged misconduct. Out of the “27 allegations of misconduct” made, the SDT took the view that a prima facie case of misconduct had been made out in respect of just two:

  1. Mr Sheehan was “abusing his position by threatening to destroy the entire file” unless the Bingham’s “settled his bill of costs despite a Circuit Court order dismissing his claim” and
  2. “was refusing to return the file or grant access to it to Mr & Mrs Bingham”.

In respect of the first allegation, the SDT found Mr Sheehan guilty of misconduct; it directed that he be censured and pay a sum of €5,000 to the Solicitors Compensation Fund together with €750 to the Bingham’s in respect of their attendance before that tribunal.

It is from that decision of the SDT that Mr Sheehan brought the present appeal.

In the notice of motion Mr Sheehan named the SDT as a respondent and the Bingham’s as mere notice parties.

Appeal of SDT decision

Mr Sheehan argued that:

  1. The SDT acted ultra vires the statutory powers conferred upon it by the applicable provisions of the Solicitors Acts 1954-2011 and/or the various orders and regulations made thereunder in proceeding to embark upon the Inquiry;
  2. The SDT breached the twin precepts of constitutional and natural justice namo iudex in sua causa and audi alteram partem during the course of the Inquiry;
  3. The SDT abused the discretionary powers conferred upon it by the Solicitors Acts 1954-2011 and/or the various orders and regulations made thereunder;
  4. The SDT failed to vindicate, or properly vindicate, Mr Sheehan’s unenumerated personal right to fair procedures in decision making under Article 40.3 of the Constitution of Ireland 1937;
  5. The SDT failed to vindicate, or properly vindicate, Mr Sheehan’s right to a fair trial under Article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms done at Rome on 4th November, 1950 and ratified in this jurisdiction by the European Convention on Human Rights Act 2003;
  6. Mr Sheehan reserves the right to plead further grounds of appeal and to amend the within notice of motion.

Jurisdiction

The SDT and the Law Society contended that complaints about the jurisdiction of the SDT could not be pursued in these proceedings which constitute an appeal contemplated by the relevant provisions of the Solicitors Acts and regulated by the provisions of Order 53 of the Rules of the Superior Courts.

These envisage a de novo hearing between complainant and respondent but do not accommodate challenges to jurisdiction of the SDT.

Considering O’Reilly v. Lee [2008] 4 I.R. 269 and Mallon v. Law Society of Ireland [2017] IEHC 547, President Kelly stated that “the jurisdictional issues ought to have been litigated by means of judicial review” and were “not accommodated in the statutory mechanism invoked by Mr Sheehan when he was dissatisfied with the finding of the SDT”.

As such, President Kelly concluded that the SDT and the Law Society were correct in their argument that there is no jurisdiction on this appeal to entertain Mr Sheehan’s contention as to a lack of jurisdiction on the part of the SDT to have dealt with the Bingham’s complaints

Acquiescence and waiver

From the evidence provided, President Kelly was satisfied that “from the very outset” Mr Sheehan was “alive to the argument” which he now sought to make concerning an alleged lack of jurisdiction on the part of the SDT. Mr Sheehan “fully realised that judicial review was the appropriate way to ventilate his complaint”, having “first adumbrated that proposition in correspondence going back to October 2014”.

Having failed to embark upon the course which he self-identified, President Kelly stated that he could not “now be heard on that topic.”

President Kelly held that the preliminary objections of both the SDT and the Law Society were well founded: there was no jurisdiction to accommodate judicial review type jurisdictional arguments in the context of the statutory appeal created by the Solicitors Acts – in any event even if there was such jurisdiction Mr Sheehan “precluded himself by acquiescence and waiver from raising such issues now”.

  • by Seosamh Gráinséir for Irish Legal News