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Cite as: [1998] IEHC 177

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Carroll v. Disciplinary Tribunal of the Law Society of Ireland [1998] IEHC 177 (15th December, 1998)

THE HIGH COURT

No. 104 of 1997

BETWEEN

EAMONN CARROLL

APPLICANT

AND

THE DISCIPLINARY TRIBUNAL OF THE LAW SOCIETY OF IRELAND

RESPONDENT

AND

CHRISTOPHER RYAN

NOTICE PARTY

JUDGMENT of Mr. Justice O'Higgins delivered the 15th day of December 1998 .

1. The Applicant seeks a declaration that, in his Affidavit of complaint to the Law Society's Disciplinary Tribunal sworn on the 3rd December, 1996, he has made out a prima facie case of misconduct against Christopher Ryan; alternatively, an Order of Mandamus and/or an Order quashing the decision that there was no prima facie case, further and other relief and costs. The Applicant has withdrawn his claim for an Order of Mandamus and seeks merely a declaration.

2. The grounds for relief were that the decision of the Tribunal was such that no reasonable Tribunal properly directed could have arrived at the same conclusion and, secondly, the Applicant complains of unlawful discrimination. At the hearing, the Applicant sought to argue the case on some procedural grounds but I refused to allow this.

3. The second grounds, i.e., those alleging unlawful discrimination, can be briefly dealt with. There was no evidence at all before me which could sustain a claim of unlawful discrimination and I have no hesitation in refusing relief on these grounds.

4. On the 15th November, 1995 the Applicant made a complaint in a letter to the Law Society concerning one of its members, the Notice Party.

5. Following the complaint, a reply was received from the Disciplinary Tribunal which read as follows:-

"Dear Mr Carroll

Thank you for your letter dated the 13th November 1996.

The Disciplinary Tribunal is an independent Tribunal appointed by the President of the High Court and its procedures are regulated by statute and rules. Before a case is investigated by the Tribunal a sworn Affidavit, together with all necessary documentation, should be submitted specifying the allegations of misconduct by the solicitor charged and properly disclosing all necessary evidence. This Affidavit must show to the Tribunal that there is a case for enquiry. I enclose Forms DT1 and DT3 which you should complete and have sworn before a Commissioner for Oaths or practising solicitor if you wish to pursue your complaint before the Tribunal. I also enclose an information leaflet in relation to the Tribunal and if you have any queries in regard to your application please do not hesitate to contact me.

Yours sincerely"

6. On the 3rd December the Applicant gave the Society a completed form setting out the details of his complaints and an Affidavit of the same date setting out the facts upon which he relied to seek the enquiry. By letter dated the 21st February 1997, he was informed that the Tribunal of the Law Society did not find a prima facie case of misconduct and dismissed the matter.

7. In essence the complaint against the Notice Party was one of perjury in respect of certain answers given during a case at the Employment Appeals Tribunal. The Applicant swore in the Affidavit that the answers given by the Third Party were completely untrue, and referred to a memorandum signed by an Aisling Foley, and to an extract from the transcript of a tape recording made in his presence relating to the matters in respect of which he claimed perjury. In his Affidavit he said "I am happy to make available the original tape recording for copying if required" and at paragraph 7 of the Affidavit he said " if needs be, my Counsel and Solicitors will confirm that the above questions were put to Mr. Ryan and that he answered as outlined above and presumably the three members of the Appeals Tribunal and its Registrar would confirm this exchange if so requested by this Tribunal" . The net issue in the case is whether the decision made by the Tribunal was irrational in the sense laid down in The State (Keegan) v. Stardust (1986) IR 642.

8. An Affidavit was filed on behalf of the Respondent by Mr. Dixon, an experienced Solicitor. He said, inter alia, having set out the facts of the case:-

"In view of the seriousness of the allegation made against the Notice Party and in light of the extremely poor probative force of the evidence adduced by the Applicant, its lack of completeness and failure of the Applicant to furnish any supporting Affidavit from the aforesaid Aisling Foley or from his Solicitors or Counsel, or any transcript or copy of the aforesaid tape recording or Employment Appeals Tribunal proceedings, we found that the Applicant had failed to make out a prima facie case for an inquiry. The Applicant was so informed by the Disciplinary Tribunal by letter dated the 21st February, 1997".

9. In paragraph 12 he says:-

"The division of the Disciplinary Tribunal of which I was a member took the view that the Applicant had, amongst other things, failed to comply with that part of the Rules governing the conduct of the Disciplinary Tribunal which requires an Applicant to send with his application and Affidavit all such documents or copies thereof as he may rely on in support of his application. I and my fellow members further took the view that the Disciplinary Tribunal did not have the power or function to seek further or better particulars of a person's application for an enquiry into the conduct of any solicitor, nor go outside the matters expressly set out in such person's application".

10. Mr. Dixon was cross-examined. He said the result was unanimous. He was not aware of the background of dispute between some members of the Applicant's family and the Law Society. He said that the standard of proof required was proof beyond reasonable doubt to establish a prima facie case. He said the practice at the time was that the person in respect of whom the complaint was made, was not notified, and that in those circumstances, the Tribunal did not feel it would be fair to advise the Applicant about the defect in the documentation supplied, since he had been informed by letter that all necessary documentation should be supplied.

11. I have been referred to a passage from the decision of Mr. Justice Costello in the case of Anheuser-Busch Inc. (1996) 2 I.R. 242 as giving support to the decision of the Tribunal:

"There can be no hard and fast rule as to what is required by way of evidence to establish non-use. I am satisfied on the authorities that in the ordinary case detailed particulars of evidence to support a case of non-use should be given. In the ordinary case it was not sufficient for the declarant to swear a bald statement as to non-use, but evidence should be given as to what established this, what enquiries were made, by whom they were made and to whom they were made. But there is no hard and fast rule that an applicant who fails to do so will have the case dismissed as every case must depend on its own facts".

12. That is of limited assistance in the present case. In this case there were allegations of perjury. There were details of the date and the circumstances of the perjury alleged and of the precise words alleged to constitute the perjury. More importantly they were (at that stage) uncontested, and they were not disbelieved.

13. In cross-examination Mr. Dixon said we did not believe that the Applicant was telling lies and the decision was not based on the grounds of disbelieving the Applicant.

14. A prima facie case in a criminal case has been defined by Blayney J. in DPP v. Smyth (1987) ILRM 570 at page 574 as follows:-

"What is in issue is whether the prosecution has established a prima facie case, in other words whether it has proved facts on the strength of which, if this were a jury trial the jury would be entitled to convict".

15. I am accepting that, for the purposes of this application, that is the correct statement of the proof required. I have also been referred to the decision of the Supreme Court in O'Laoire -v- The Medical Council (Judgment delivered 25th day of July 1997 in which the standard of proof as being beyond reasonable doubt appears to have been accepted by the majority of the Court.

16. It is understandable, given the procedures in use at the time, where the person complained of was not notified, that the Tribunal would be reluctant to point out the inadequacies of the documentation supplied, as it might be regarded as an advice on proofs. In that regard, however, it is noteworthy that the letter of 29 November did not refer to 'all documentation' but to 'all necessary documentation' . This Affidavit must show that there is a case for inquiry. I am also convinced on the evidence before me that the Tribunal acted with integrity and independence. However, in my view it was simply irrational to come to the conclusion that the sworn Affidavit of the Applicant (albeit not supported by other Affidavits, which he merely said could be made available if required) did not constitute a prima facie case. If the Applicant swore that there was perjury as set out in his Affidavit, and if he was not disbelieved (and the evidence is that he was not), I consider that no reasonable Tribunal could hold that there was not a prima facie case. In my view, for information to be acted on at this very early stage - being prior to the instigation of any inquiry - it was not necessary for such information to be given in a form which would be necessarily in compliance with the rules of evidence. I will discuss the form of Order with Counsel.