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URL: http://www.bailii.org/ie/cases/IEHC/2002/161.html
Cite as: [2002] IEHC 161
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RECORD NO. 557 J.R. 2000
BETWEEN
APPLICANT
RESPONDENT
Judgment of Mr. Justice Herbert delivered the 30th day of May. 2002.
THE FACTS
By Order of the High Court made on 9th October, 2000 the Applicant was given leave to seek Judicial Review. The relief sought by the Applicant, as allowed by the Order of the High Court and set out in the Notice of Motion seeking Judicial Review is as follows, namely:-
1. An Order prohibiting the Respondent from conducting an examination of the following matters:
(i) The Applicant's alleged failure to exercise adequate personal supervision over each of his offices or place of business,
(ii) The Applicant's alleged failure to supervise his apprentice, Mr. Eamonn Carroll.
(iii) The Applicant's alleged permitting of his name to be made use of, in business carried on by him as a Solicitor on the account or for the profit of an unqualified person in breach of Section 59 subsection 1 (b) of the Solicitor's Act, 1954.
(iv) The Applicant's declaring the Statutory Declaration on the 2nd September, 1993 to the effect that he knew no reason why his apprentice Mr. Carroll, should not be admitted as a Solicitor.
(v) The Applicant's alleged permitting of his apprentice, Mr. Carroll, to keep inadequate books of accounts so as to conceal the transfer of substantial sums of money out of the Applicant's Rialto office to unqualified persons.
(vi) The Applicant's alleged failure to supervise his apprentice allowing him to mislead the Applicant's reporting Accountant as to the fee income of the said Rialto office.
2.A Declaration that any such examination or investigation would amount to a breach of fair procedures.
3.A Declaration that the Applicant would be unfairly prejudiced by any such investigation on the grounds of delay.
4.A Declaration that the Applicant would be unfairly prejudiced on the grounds of a finding of fact by the High Court.
5.A Declaration that the proposed examination of the Respondent constitutes a breach of Constitutional and Natural Justice.
6.A Declaration that the Compensation Fund Committee have no jurisdiction to consider the matters complained since their purported referral of the matter to the Disciplinary Committee on the 13th of May, 1993.
7.Costs.
The grounds upon which the Applicant was given leave to seek Judicial Review are as follows:-
1.That the Committee Compensation Fund Committee of the Respondent did on the 13th day of May, 1993 refer the Applicant to the Disciplinary Committee and that the said Disciplinary Committee has failed since that day to conduct any inquiry or investigation.
2.That the Respondent did in December, 1993 commence proceedings against the Applicant herein in the High Court claiming inter alia that the Applicant failed to honour the duties which were imposed upon him as Master in relation to his apprentice, that he permitted other persons, not being Solicitors, to act and be remunerated as qualified Solicitors and that he permitted his name to be made use of, for and on account and for the profit of other persons, not being Solicitors, in particular by permitting such other persons to utilise his name, letterhead, note paper, business cards and premises so as to enable such persons to act as qualified members of the Solicitors profession and to be remunerated as such.
3.That on the 24th day of January, 1995 the High Court held (Mr. Justice Murphy) that the Respondent's claim be dismissed since it was open to the Court to decline to exercise its jurisdiction where there was a more appropriate remedy available to the parties, since the appropriate remedy in the first instance was clearly an Adjudication by the Disciplinary Committee of the Respondent, the Court should not entertain the proceedings against the Applicant.
4.That the learned Trial Judge held that the Applicant had on the balance of probabilities contravened Section 59 of the Solicitors Act, 1954.
5.That the Respondent had appealed the decision of the High Court to Supreme Court. That the Supreme Court delivered Judgment on the 20th December, 1995, dismissing the Respondent's appeal.
6.That since December, 1995, the Respondent has failed to conduct any inquiry or investigation into the matters now sought to be examined. That the finding of the High Court in relation to a contravention by the Applicant of the Solicitors Act amounts to an undue and gross prejudice to any defence the Applicant may seek to advance at any investigation or inquiry to be conducted by the Respondent.
7. That the passage of time between the initial referral by the Respondent's Compensation Fund Committee to the Respondent's Disciplinary Committee and the passage of time from the conclusion of proceedings instituted by the Respondent prejudices the Applicant in as much as the Applicant cannot now be in a position to advance a full and comprehensive defence to the allegations being made against him.
8.That during the course of the period from December, 1993 to the present. The Respondent has never sought to refuse the Applicant a practising certificate and has permitted the Applicant to take an apprentice pursuant to the Solicitors Acts.
9.That the Respondent caused the Applicant to believe that the inquiry now sought to be re-commenced had concluded.
10.That the Applicant has in the seven years since 1993, continued to develop his practice as a Solicitor without hindrance and with the express authorisation of the Respondent.
11.That the intended investigation and/or inquiry to be held by the Respondent on the 29th June, 2000 would amount, if it where to be held, to a breach of fair procedures and a breach of the principles of Natural and Constitutional Justice.
12.That the intended inquiry amounts to an attempted breach of the Applicant's constitutional right to livelihood.
On the 5th December, 2000 the Respondent delivered a Statement of Opposition of 20 paragraphs extending over six pages. I believe the following to be a fair summary of this Statement of Opposition, namely:-
1.The Applicant was not at any time advised by the Respondent that the investigation was concluded. (This is accepted by the Applicant).
2.The Applicant never inquired as to the status of the investigation.
3.The finding by the Supreme Court on the 20th December, 1995 that the appropriate course for the Respondent to have taken was to have brought the complaint before the Disciplinary Committee could not have led the Applicant reasonably to infer that the matter was at an end.
4.The Applicant could not have reasonably inferred that the investigation was at an end because the Respondent, after the 20th December, 1995 opted to proceed against his apprentice, Mr. Eamonn Carroll first.
5.The sole reason for the delay between the 20th December, 1995 and the 12th October, 2000 in proceeding with the investigation was the conduct of an investigation by the Education Committee of the Respondent into the activities of the Applicant's apprentice, Mr. Eamonn Carroll. This investigation was in turn delayed by Judicial Review proceedings until the 19th January, 1999. The Committee hearings took place over seven days between the 30th of November, 1999 and the 13th January, 2000. The Committee made its report on the 23rd March, 2000.
5.After the Report of the Education Committee was furnished the Respondent considered it appropriate to resubmit the matter to the Compensation Fund Committee, having regard to the additional information then available.
7.The Respondent considered it appropriate to investigate the conduct of the apprentice before considering the conduct of the master. This gave the Respondent a much wider knowledge of pertinent events than it had in May, 1993. To have proceeded otherwise would have lent an air or unreality to the matter. The Respondent believed that its decision was rational, reasonable and in no manner arbitrary.
8.The Respondent believed that it should not proceed against the apprentice and the master simultaneously because each might be a key witness in the others case. (The Respondent accepts that Mr. Eamonn Carroll did not in fact call the Applicant as a witness). The Respondent believes that it was not unfair or unusual for it to have acted in this manner.
9.The Respondent considered that it was obliged to issue the Practising Certificates as the Applicant enjoyed the presumption of innocence until the Disciplinary Committee, or on appeal, the High Court, found to the contrary.
10.The Compensation Fund Committee exercised a purely administrative function. If it decided that a Solicitor had a case to answer it set out in an Affidavit the allegations of alleged misconduct, the grounds upon which they were based and exhibited in the Affidavit all relevant documents. This Affidavit was sent to the Disciplinary Committee which in turn send a copy to the Solicitor, who had a right to file an Affidavit in reply. If after an initial hearing the Disciplinary Committee decided that a prima facie case had been made out it then conducted a full hearing on sworn testimony. At this hearing the Solicitor was entitled to be represented by Solicitor and Counsel and to raise all defences available including unfairness in the procedure or prejudice due to delay.
11.The Compensation Fund Committee and the Disciplinary Committee, (should it become involved), would act in a fair and independent manner and would not be swayed by the findings of the High Court.
12.The Applicant had not identified any documents or witnesses which or who were no longer available to him in his defence. In the proceedings in the High Court, Orders and Cross-Orders for Discovery of Documents had been made and had been complied with. The Respondent would supply any document which had been mislaid by the Applicant or his advisors.
In his verifying Affidavit sworn on the 9th day of February, 2000, the Applicant deposed that he had been practising as a Solicitor since 1982. On the 13th May, 1993 the Compensation Fund Committee of the Respondent, following upon a series of investigations of his practice at various locations made a reference concerning him to the Disciplinary Committee. On the 29th of August, 2000 the Respondent informed the Applicant that the reference had not in fact ever come before the disciplinary Committee.
Towards the end of 1993 the Respondent commenced proceedings in the High Court seeking, inter alia, a Declaration that the Applicant had acted in contravention of Section 59 (1) of the Solicitors Act, 1954. The matter came on for hearing in December, 1994 and Judgment was delivered on 24th January, 1995. Against this decision the Respondent appealed to the Supreme Court which delivered Judgment on the 20th December, 1995. At paragraph 9 of this Affidavit, the Applicant reports part of that Judgment in the following terms:-
"... The learned Trial Judge, having come to the conclusion, that he ought not to entertain the claim against me, should have left the entire matter to the Disciplinary Committee. The Court further held that the findings of fact served no useful purpose since the High Court decided not to make any Declaration based on them and since the Disciplinary Committee will have to undertake a wholly, separate and independent investigation of the matter uninfluenced by these findings."
On the 16th day of June, 2000 the Applicant received a letter from the Registrar of Solicitors requiring him to attend at a special meeting of the Compensation Fund Committee on Thursday the 29th of June, 2000 for the purpose, " of reviewing its original decision to refer me to the Disciplinary Committee" and to examine him on the following matters:-
1.My failure to exercise adequate, personal supervision over each of my offices or place of business.
2.My failure to supervise my apprentice, Mr. Eamon Carroll.
3.My permitting my name to be made use of, in business carried on by me as a Solicitor upon the account or for the profit of an unqualified person in breach of Section 59 (1Mb) of the Solicitors Act, 1954.
4.My declaring a Statutory Declaration on the 2nd December, 1993 to the effect that I knew of no reason why my apprentice, Mr. Carroll should not be admitted as a Solicitor.
5.My permitting my apprentice, Mr. Carroll, to keep inadequate books of account so as to conceal the transfer of substantial sums of money out of my Rialto Office to unqualified persons.
6.My failure to supervise my apprentice, allowing him to mislead my reporting Accountant as to the fee income of the Rialto Office.
On the 22nd June, the Applicant sought an adjournment of the matter for the purpose of obtaining legal advice. An exchange of correspondence and documents ensued and the Respondent informed the Applicant that the Compensation Fund Committee intended to proceed with the matter on the 12th of October, 2000. The Applicant deposed that at all times since 1993 a Practising Certificate had been issued to him annually by the Respondent. He had been permitted to take an apprentice during the period 1993 to 2000 and he had successfully developed his practice at 18 North King Street, Dublin and at Kilcock, County Kildare.
An Affidavit verifying the Statement of the Opposition of the Respondent was swom on the 7th December, 2000 by Joan O'Neill, Solicitor, who averred that as the Solicitor with carriage of the matter she was familiar with the history and the nature of the proceedings between the Respondent and the Applicant. The following chronology may, I believe, be fairly derived from this Affidavit, namely: -
7th January, 1991 - Mr. Eamon Carroll becomes apprentice to the Applicant.
16th February, 1993 - the Respondent's Investigating Accountant carries out an inspection of the practice of the Applicant.
13th May, 1993 the Applicant and Mr. Eamon Carroll appear as requested before the Compensation Fund Committee.
9th June, 1993 - the Applicant makes serious allegations to officers of the Respondent regarding the conduct of Mr. Eamon Carroll as regards alleged unauthorised withdrawals from the office account of the Rialto Office of the Applicant's practice and non-payment of VAT on fees.
29th July, 1993 - letter from the Respondent to the Applicant recording these complaints.
23rd August, 1993 - letter from the Applicant to the Respondent stating that he was meeting with Mr. Eamon Carroll but the problem with respect to fees in the books of the office had yet to be resolved.
2nd September, 1993 - the Applicant executes a Statutory Declaration stating that he knew nothing which would suggest that his apprentice Mr. Eamon Carroll was not a fit and proper person to be admitted as a Solicitor.
October, 1993 - Meeting between the Investigating Accountant of the Respondent and the Reporting Accountant for the Applicant regarding the accounts of the Rialto office of the Applicant's practice.
15th October, 1993 - interview by the deponent and the Registrar of Solicitors with the Reporting Accountant of the Applicant concerning in particular large payments, inclusive of VAT, made from the Rialto office account to an entity called Accident Claims Service of which Mr. Godfrey Carroll, a brother of Mr. Eamon Carroll, was one of the proprietors.
October/November 1993 - The Respondent receives complaints from members of the public that Mr. Godfrey Carroll and Mr. Eamon Carroll were holding themselves out as Solicitors through the medium of the Applicant's practice.
3rd December, 1993 - Proceedings are instituted by the Respondent to injunct Godrey Carroll, Eamon Carroll, John Carroll and Anna-Maria Govern from holding themselves out as Solicitors, and against the Applicant for breach of Section 59 (1) of the Solicitors Act, 1954.
15th December, 1993 - The Director of Education of the Respondent makes a complaint of misconduct against Mr. Eamon Carroll to the Education Committee of the Respondent pursuant to Regulation 26 of the Solicitors Acts, 1954 -1960 (Apprenticeship and Education) Regulations, 1991.
December, 1994 - The aforementioned proceedings are heard and Judgment is reserved by the High Court.
24th January, 1995 - Judgment of the High Court delivered findings, as follows:-
1. that the Respondent lacked Locus Standi to take proceedings against the first four named defendants, and,
2. that the appropriate remedy to be pursued as regards the Applicant was a reference of the matter to the Disciplinary Committee.
Despite these rulings, the Court went on to find facts both favourable and unfavourable to the Applicant.
20th December, 1995 - The Supreme Court, (per Blayney J.), delivered Judgment dismissing the Respondent's Appeal and holding with regard to the findings of fact made by the High Court that they, "served no useful purpose since the High Court decided not to make any declaration based on them and since the Disciplinary Committee would have to make a wholly separate and independent investigation of the matter uninfluenced by these findings."
21st December, 1995 - Mr. Eamon Carroll applies to the Respondent to be admitted as a Solicitor, and is refused.
January, 1996 - The Education Committee appoints a quorum of three to hear the complaint against Mr. Eamon Carroll.
14th May, 1996 - Mr. Eamon Carroll through Counsel raises procedural issues before the Education Committee.
22nd July, 1996 - Mr. Eamon Carroll is given leave by the High Court to seek Judicial Review.
19th January, 1999 - Judgment is delivered on the Judicial Review application.
30th November, 1999 - Hearings by the Education Committee of the complaint against Mr. Eamon Carroll commence.
13th January, 2000 - Hearings conclude. During these hearings Mr. Eamon Carroll is throughout represented by Solicitor and Counsel.
13th March, 2000 - The Education Committee issues its Report advising the President of the High Court that Mr. Eamon Carroll was not in the opinion of the Committee a fit and proper person to be admitted as a Solicitor.
18th April, 2000 - Mr. Eamon Carroll issues a Notice of Application to review this decision.
29th May, 2000 - The matter is returned for mention before the President of the High Court.
16th June, 2000 - Letter from the Respondent to the Applicant requesting him to attend before the Compensation Fund Committee on the 29th June, 2000 to be examined on the matters set out in the letter.
26th June, 2000 - Counsel for Mr. Eamon Carroll informs the President of the High Court that Mr. Carroll has requested a full oral rehearing of the complaint.
31st October, 2000 - Matter is listed for hearing before the President of the High Court. Counsel for Mr. Eamon Carroll seeks and obtains an adjournment to the 11th December, 2000.
It is averred by Joan O'Neill that in May, 1993 the Respondent believed that only a small number of minor technical infringements of the Solicitors Legislation had been committed by the Applicant. She asserts that it was not until after the Report of the Education Committee had become available in March, 2000 that the Respondent became aware of the full extent of the possible professional misconduct on the part of the Applicant. She accepts that there will be some overlap between the matters now before the Compensation Fund Committee and those before it in May, 1993 and before the High Court in December, 1994 and January, 1995.
In my judgment the grounds upon which the Applicant was given leave to seek Judicial Review may be reduced to two issues, - both in my view matters of procedural fairness based on the rules of natural and of Constitutional justice which I am satisfied apply in this instance, - namely:-
(1) whether the lapse of time between the 13th May, 1993 and the 16th June, 2000 has prejudiced the Applicant in answering complaints if now made against him, and,
(2) whether there is a real likelihood of prejudice to the Applicant in the form of prejudgment bias as regards some or all of these complaints by reason of the findings of fact made by the High Court in the Judgment delivered on the 24th January, 1995.
THE LAW
DELAY
In the case of McNeill -v- Commissioner of An Garda Siochana, (1997) I.R. 469, Denham J., held that while the bulk of the case law on delay related to "due process" and was pertinent to criminal trials and issues arising from Article 38 subsection 1 of the Constitution, there was also a constitutional tenet of "reasonable expedition" in relation to other proceedings which was identified by O'Dalaigh, C.J., in the case of In Re Haughey (1971) I.R. 217 at 264. The learned Supreme Court Judge considered that unreasonable delay in a disciplinary hearing would be unjust and a denial of the constitutional right to fair procedures to which a person accused of misconduct was entitled. In considering whether delay, in itself, was so unreasonable and unjust as to be unconstitutional, Denham J., held that the Court must consider the following factors; namely, the type of hearing, the reasons for the delay, the nature of the wrong, whether the person accused of misconduct was taken by surprise or had suffered any impairment as a result of the accusation, the possible consequence of the inquiry, the complexity of the issues, any element of community interest, the length of the delay itself and whether the person affected had sought to expedite the hearing.
Speaking of the delay of seven years in that particular case the learned Supreme Court Judge said:-
"The delay in issue in this case is not so extensive as to take the case on to a special level for consideration. It is not a case of a proceedings being commenced, five, ten, or fifteen years after an event with no reasonable reason for the delay. It is not a case of proceedings of which the Applicant had no prior knowledge of the facts alleged against him. Delay is always undesirable. But to succeed, the Applicant has not only to prove delay but that it was unreasonable so as to be an unfair procedure and thus unjust and unconstitutional."
It seems to follow from what was held by the learned Supreme Court Judge that if the Applicant seeking Judicial Review proved the fact of the delay and satisfied the Court that the delay was excessive and unreasonable, it still remained open to the Respondent to satisfy the Court that there was a reasonable basis for the delay. In that particular case Hamilton C.J., (O'Flaherty J., concurring), held, that the matter fell to be considered only within the specific terms of the Garda Siochana Disciplinary Regulations, 1989, which provided in detail the procedure for dealing with the matter and contained expressions which indicated that the matter should be dealt with expeditiously and as a matter of urgency.
Counsel for the Applicant in this case adopted this Judgment by Denham J., as a correct statement of the law and directed his submissions accordingly.
I find the reasoning of Denham J., very persuasive and her conclusions seem to me to be in accord with logic and good sense. However, the weight of Judicial Authority in this Jurisdiction in my Judgment favours the principle that save where some Act of the Oireachtas or Rule of Procedure contains an express time frame or where an indication of urgency may properly be inferred from the language used, delay is not in itself a ground of invalidity in proceedings before domestic disciplinary tribunals and the Applicant must in addition to establishing delay be in a position to point to some specific prejudice flowing from it.
In the case of McGowan -v- Wren (1988) I.L.R.M. 744 at 745, Gannon J., held as follows:-
"The question of delay is also raised by both the Applicants and the Respondents. I am of the view that the question of delay is incidental rather than being of significance. The Applicant's have argued that to proceed to hold an inquiry after the length of time that has expired would be an injustice to them.
On Applications such as this, the party bringing a matter to the Court must expect that the Court requires evidence which will substantiate the matters alleged and to show if they can that some form of procedure would be unfair or oppressive. I would be prepared to consider whether there has been a failure on the part of the Garda Authorities to proceed expeditiously if I had evidence about the circumstances of the Applicant's and the unfairness alleged. However, the evidence does not go that far. They tell me the nature of the complaint made but to what extent they are disadvantaged or oppressed by the inquiry is not demonstrated. It is obvious that the burden of making a case is with the Applicants. There is no attempt to show that the Applicants are in any doubt about the nature of the evidence to be offered to substantiate the complaints nor any indication to show that they are lacking in an opportunity to challenge that evidence.... They are not suggesting that they are failing in recollection since the alleged events occurred. If there is any disadvantage in the delay, it must lie in the presentation of the investigation and not a disadvantage to the Applicants. I do not think that there are any grounds in delay upon which the Applicants may rely for the relief sought."
In my Judgment the decision of the Supreme Court in the case Flynn -v-An Post (1987) I.R. 68, in particular the Judgment of McCarthy J., for the majority of the Court, is consistent with the necessity for an Applicant relying upon delay to additionally show specific prejudice. The principle issue in that case was the suspension of the Plaintiff from work without pay pending the investigation of alleged serious misconduct in the course of his duty. A very important aspect of this Judgment is the finding by McCarthy J., that the Plaintiff in the case, "took every step open to him, save appealing from the decision of the High Court on the interlocutory application to bring matters to a head..." The learned Judge found that immediately after the suspension of the Plaintiff, his Solicitor wrote to the Defendant asking for details of the allegations made against him and seeking a full investigation including a hearing of the Plaintiff. McCarthy J., found that the, "request has never been met, but it has not been denied, rather postponed." In that case the Plaintiff had issued proceedings in the High Court seeking, inter alia, a mandatory injunction that the investigation be held pending the trial of the action. This relief was refused by the High Court. In the Supreme Court McCarthy J., went on to hold at pages 82 and 83 of the Report as follows:-
"There may be circumstances in which it would be proper to postpone an investigation pending a criminal trial; I am unable to prescribe them in a case where an employee is suspended without pay and wants the investigation to proceed; In so far as the observations of Woolf J., in Reg.-v-British Broadcasting Corporation, Ex Parte Lavelle (1983) 1 W.L.R. 23 atp.36 suggests that it is a matter of ordinary discretion, weighing in the balance of several relevant factors, I would not accept it as a correct statement of the law applicable in this country. In circumstances such as the present, the discretion in my view, can only be exercised one way - to proceed with the investigation where the employee has been suspended, as stated by Counsel for An Post where a charge of grave misconduct or grave irregularity was made and it appeared to the suspending authority that the charge warranted investigation - see S.13, subsection 1 (c) of the Act of 1956.... To construe S.13 of the Act of 1956 as authorising the holder of any one of the many offices set out in the nomination made by the Minister of State as a suspending authority to suspend without pay any employee of the company for a period of eighteen months does not appear to me to be a reasonable construction of the section nor one permissible within the constitutional framework.... It is clear from the pleadings in this action that, whatever its result, the enquiry or investigation must proceed if the company is seeking to dismiss the Plaintiff" or to discipline him in some other fashion. It matters not, in that regard, whether or not the Plaintiff wins this action in respect of any of the different forms of relief claimed. If the enquiry had proceeded and it resulted in the allegations of misconduct against the Plaintiff having been upheld, it could not have afforded the Plaintiff any relief in this action but it would not have prevented him contending, for instance, that the suspending officer did not have such a power or that there had been if a failure to comply with the principles of constitutional justice; if the allegations were not upheld, no more than not interfering with the right to make these two challenges to the suspension and that the temporary suspension was valid, leaving it for the appropriate authorities to make a determination in respect to pay during the interval. The real point was that the matters about which the enquiry would be concerned were, as was pointed out by the learned Trial Judge during the course of the evidence, wholly removed from the matters under consideration in the action itself In my view it formed no ground for not proceeding with the enquiry, no more than did the existence of an appeal from that decision."
In the case of Myers -v- Commissioner of An Garda Siochana (The High Court 22nd January, 1988 unreported) Costello J., (as he then was), held as follows at page 7 of the Judgment: -
"The difference between the facts in Flvnn and the instant case are obvious and I think crucial. In Flvnn the suspended employee demanded that the internal enquiry be held notwithstanding the existence of the pending criminal prosecution; here no such demand was made. I think I can properly infer that the Applicant must have been aware that it was very likely that he would have to face disciplinary charges and that he acquiesced in their postponement pending the outcome of the criminal prosecution. But even if acquiescence cannot be inferred in the absence of a request that an immediate disciplinary inquiry be held the Garda Authorities acted, in my Judgement, fairly in postponing the inquiry and suspending him on a suspension allowance, as to hold the enquiry (which would certainly have required him to give evidence so as to avoid dismissal) before the criminal charges were heard might well have been prejudicial to the Applicant....
Whilst the Supreme Court in Flynn was not required to decide that the postponed internal inquiry should be prohibited on the ground of delay. It is to be noted that notwithstanding the considerable time that had elapsed between the first suspension and the date on which the enquiry could have been held the Court contemplated that such an inquiry could with propriety take place. No arguments have been advanced to show that the delay in this case has caused such prejudice that a disciplinary enquiry now would be unfair or to establish that to hold an enquiry after three year delay would in itself amount to a breach of the Applicant's constitutional right to fair procedures. Nor have any submissions been advanced to support the claim in the Notice of Motion that the proposed enquiry is invalid because it would amount "to double jeopardy" -for good reason, because the Flynn case clearly shows that the dismissal of criminal charges against an employee is not in itself a bar to subsequent disciplinary proceedings arising out of the same set of facts and in no special circumstances creating such a bar have been shown to exist in this case."
In the case of Gallagher -v- Revenue Commissioners (1991) 21.R. 370 Blayney J., in the High Court, again dealt with this question of alledged delay in the context of a domestic disciplinary inquiry. It does not appear from the report whether the decision in McGowan -v- Wren (ante), was cited in argument. It is not mentioned in the Judgment and neither is the decision in Myers -v- Commissioner of An Garda Siochana (ante). At page 375 of the report Blayney J., held as follows:-
"I turn now the question of delay. It was submitted on behalf of the Plaintiff that as the charges related to things that had taken place between May, 1984 and June 1985, and as they had not been notified to the Plaintiff until January, 1989, the Plaintiff would be seriously prejudiced in defending himself against the charges and so the Defendant's should be restrained from bringing them against him at this stage. In support of this submission reliance was placed on two cases, The State (O'Connell) -v- Fawsitt [1986]I.R. 362 and Cuddy -v-Mansan [1988] I.L.R.M. 720 a decision of D'Arcy J. which, though reported after The State (O'Connell) -v-Fawsitt. was decided before it, Judgment have been given on the 1st July, 1988. But in my opinion, neither of these decisions is applicable in this case. Both were criminal cases. In Cuddy -v- Manean, the Plaintiff was being prosecuted for an offence under Section 49 of the Road Traffic Act, 1961, and in The State (O'Connell) -v- Fawsitt..." Finlay C.J. then commented as follows at page 378 of the report:-
"In my view, that is a correct short summary of the true legal and constitutional position that a person charged with a criminal offence is entitled as part of his right to be tried in due course of law to a trail with reasonable expedition."
This makes clear that the ratio decidendi or his Judgment, which was the unanimous Judgment of the Supreme Court, was that they were dealing with a criminal offence, and that a person charged with such an offence had he a constitutional right to be tried in due course of law, is entitled to a trial with reasonable expitition.
"In the instant case the Plaintiff is not been charged with a criminal offence. He is charged with grave misconduct and grave irregularity in the performance of his duties as a Civil Servant. What is at issue are matters appertaining to the law of master and servant, not matters appertaining to the criminal law. Because of this the two cases relied on do not support the submission being made, and as no other ground was put forward to support it, the submission must be rejected.... Nothing was done then [after the report dated 12th December, 1985] until Mr. Darcy and Mr. Cullen were asked in March or April, 1987 at least 16 months later, to complete the investigation. They did this in the months following and submitted a report on the 2nd December, 1987, setting out their findings. But it was not until a year later on the 23rd January, 1989, that they Plaintiff was informed of the charges against him. And since the events out of which they arose took place between May, 1984, and June, 1985 this meant that some of the charges related to happenings which had occurred 416years earlier. Such a delay will undoubtedly make it more difficult for the Plaintiff to deal with the charges and it is a delay for which the entire responsibility rests with the Revenue Commissioners. And while it is not a ground for the Court to restrain the holding of a oral hearing, it clearly will be a relevant consideration for Mr. O'Callaghan to take into account in assessing the Plaintiff's answer to the charges and also a relevant consideration for the Plaintiff's superiors if the charges, or any of them, are held to be established, in deciding what disciplinary measures should be imposed".
I do not consider that cases such as In The Matter of Matthew Kelly, A Bankrupt (The High Court 31st May, 2001 unreported), a case concerning the principles applicable as regards delay in proving a debt in bankruptcy; or Rainsford -v- Limerick Corporation (1995) 21.L.R.M. 561 and Primorv Plc -v- Stokes Kennedy Crowlev, (a firm) (1996) 21.R. 459, (Supreme Court) cases, setting out the principles pertaining to an Application to dismiss a claim for want of prosecution under Order 27 of the Rules of the Superior Courts, 1986, to be of any assistance in ascertaining the relevant law on this topic.
BIAS
In my Judgment the test for anticipatory bias in the context of domestic disciplinary bodies such as the Disciplinary Tribunal of the Law Society is an objective test derived from the following authorities:-
O'Neill -v- Beaumont Hospital (1990) I.L.R.M. 419 at 439 per Finlay CJ.
Dublin Well - Woman Centre -v- Ireland (1995) I.L.R.M. 408 at 420 per Denham J.
Bane -v- Garda Representative Association (1997) 21.R 449 per Kelly J.
Carroll -v- The Law Society (2000) 1 ILRM 161 at 183 per McGuinness J.
In my Judgment the correct test to be applied, is whether, a reasonable person in the position of the Applicant, who is neither over sensitive or careless of his position, might reasonably fear that he would not get a fair and independent hearing and determination of the issues.
No argument for bias based upon financial or personal interest, professional connection, predetermined beliefs or personal attitudes was raised in this case.
Speaking in the context of what some academic commentators have identified as a separate though very similar test but with differing emphasis, the so called "reasonable likelihood test", I consider the following remarks of Murphy J., in the case of Dublin County Broadcastine Limited -v- Independent Radio and Television Commission (The High Court 12th May, 1998 unreported) to be relevant also to the test which I propose to adopt in this case, the learned Judge stated:-
"The matter must be approached from the point of view of a right minded person and not on the basis of a suspicion which might dwell in the mind of a person who is ill-informed and did not seek to direct his mind properly to the facts."
This "reasonable person" must in my view be assumed to possess the Applicant's knowledge of the matters in issue as found on the evidence. I find it difficult to understand why in law or in reason there should be different tests for bias based upon a categorisation of the body concerned or for any other reason. If indeed a "reasonably likelihood" test exists as a distinct and separate test from that derived from the cases to which I have referred and which I believe I have correctly stated, it should in my view be considered as superseded by this latter test and be heard of no more.
CONCLUSIONS
I find that the Applicant has not established that he has suffered or will suffer any prejudice as a result of the lapse of time in this matter which would so impair his capacity to defend himself against the complaints set out in the letter from the Respondent's dated the 16th June, 2000 that it would be unjust and unconstitutional to allow any consideration of these complaints to proceed. The overall lapse of time in my Judgment is properly divisible into three distinct periods, as follows:-
13th May, 1993 to 3rd December, 1993. This period extends from the date of the first request to the Applicant to appear before the Compensation Fund Committee to the commencement by the Respondent of the High Court proceedings against Mr. Eamonn Carroll and others including the Applicant.
3rd December, 1993 to 20th December, 1995. This period extends from the date of the commencement of that action to the delivery of Judgment by the Supreme Court on the Appeal by the Respondent from the decision of the High Court in that action.
20th December, 1995 to 16th June, 2000. This period extends from the date of such Judgment of Supreme Court to the date of the letter from the Respondent requesting the Applicant to attend before the Compensation Fund Committee.
In my Judgment if an issue of delay and of an explanation and excuse for such delay needed to be considered in this Application, which in my Judgment it does not, it would only be concerned with the period from the 20th December, 1995 to the 16th June, 2000. In the first period, that is from the 13th May, 1993 to the 3rd December, 1993 the Respondent was actively and energetically pursuing such indications of possible professional misconduct in his supervision of his apprentice Mr. Eamonn Carroll by the Applicant as had then become apparent. So far as the second period from the 3rd December, 1993 to the 20th December, 1995 is concerned in my Judgment the Respondent was still actively prosecuting the investigation even thought it was subsequently held by the High Court that it had adopted an incorrect procedure. In this regard I adopt what was held in similar circumstances by Morris J., (as he then was), in the case of McNeill -v- Commissioner of An Garda Siochana (1994) 2I.R.429 at 435:
"The Commissioner considered it an appropriate case to move under Article 40 and it was only at the stage... [later in the investigation]... He found himself confronted by obstacles in the form of legal advice... that his remedy lay under a different regulation. In my view it would be unreal to suggest that the Commissioner was not moving towards a resolution of the case in this period..."
In my Judgment if there was delay on the part of the Respondent in this case and if it was relevant for the Court to consider that delay it could only be in respect of the period from the 20th December, 1995 to the 16th June, 2000. Joan O'Neill, Solicitor, in her Affidavit avers that the reason the Respondent did not pursue the investigation against the Applicant in this period was because it had decided that it was a more appropriate way of preceding that it should first carry out and complete an investigation of the activities of Mr. Eamonn Carroll during his period of apprenticeship with the Applicant, that is in the years 1991 to 1993 inclusive, before undertaking an investigation of possible professional misconduct on the part of the Applicant relating to that apprenticeship.
The Applicant has not established that he has suffered any prejudice in his ability to answer the complaints set out in the letter dated the 16th June, 2000 to which I have already made reference. In my Judgment it would be impossible for him so to do. It is abundantly clear from the Affidavit of Joan O'Neill, Solicitor, sworn on behalf of the Respondent on the 7th December, 2000 and also from the Judgment of the High Court delivered on the 24th January, 1995 in the case of The Incorporated Law Society of Ireland -v- Godfrey Carroll, Eamonn Carroll John Carroll, Anna-Marie Govern and Christopher Ryan, as reported at (1995) 31.R. 145 that this enquiry is above all else a matter relating to and based upon documents.
From these sources I find that the documents concerned are bank mandates, bank statements, the financial books and records relating to a specific part of the Applicant's professional practice, cheques, business cards and stationery, advertisements and advertising hand bills and a statutory declaration of fitness. From the Judgment of the High Court it appears that only the Applicant gave evidence on his behalf at the hearing. The only other witnesses to whom reference is made in the Judgment are a Mr. Morgan, the Manager of a branch of the Bank of Ireland in Ballsbridge and seven lay clients of the Applicant's practice. It was not contended before me that any of these or any other documents or witnesses were no longer available to the Applicant by reason of the passage of time. Joan O'Neill, Solicitor, has sworn in her Affidavit to which I have referred that all documents in the matter remain available and if the Applicant does not possess a copy of any document the Respondent will make it available to him. It was not urged upon me that there was any failing in the Applicant's memory of the events but I suggest that if any such failing existed it could readily be remedied by an examination of the documents, a reading of the Judgment of the High Court, and if necessary by referring to the full transcripts of the evidence before the High Court which Joan O'Neill has deposed are available.
Even if the Court was applying the test formulated by Denham J., in the case of McNeill -v- Commissioner of An Garda Siochana (ante), I am satisfied that the relevant delay of somewhat more than 4V& years in the present matter is not, in the words of the learned Supreme Court Judge, "so excessive as to take the case on to a special level for consideration." I also consider that the reasons offered by the Respondent for the delay are reasonable and the decision taken by the Respondent, even if it was not one that might have been taken by the Court, - as to which I make no finding - could not be said to have been irrational or arbitrary.
The Applicant claims that by continuing to issue to him an annual Practising Certificate, and by permitting him to take an apprentice, the Respondent had lead him to believe that the investigation was closed. He accepts that he received no express notice from the Respondent to this effect and that he made no enquiry as to the progress or future of the matter and had not pressed the Respondent to expedite the hearing. All this is in marked contrast to the facts in the case of Flynn -v-An Post (ante). In my Judgment the Respondent correctly continued to issue the Applicant with a Practising Certificate as it had no lawful basis for refusing so to do; nor had it any lawful reason for refusing to permit him to take another apprentice.
I am satisfied that the Court may infer that the Applicant as a member of the Law Society was well aware that the investigation had not been terminated and is not to be heard to say that he believed that it had in fact ended when a brief telephone call, a letter, or an electronic text message to the Respondent would have clarified the matter. For this reason I reject as totally without merit the proposition that the Applicant has suffered prejudice by being permitted to remain in practice as a Solicitor and to continue to develop his practice. There is a complete dichotomy between the issuance by the Respondent of an annual Practising Certificate to the Applicant and the situation where by reason of delay in the obtaining or in the execution of a warrant a person whose extradition is sought is permitted openly and freely and to the knowledge of the relevant authorities to establish a home, a family and a career in the country from whence his extradition is sought.
As regards prejudgment or anticipatory bias the issues which this Court must address on this application for Judicial Review are whether, as submitted by the Applicant, a reasonable person in his position would reasonably fear that the Disciplinary Tribunal of the Respondent would simply adopt the Judgment of the High Court as a basis for making findings against him or would be and remain so conscious of the conclusions reached by the High Court that despite every bona fide intention on the part of its members it would be incapable of arriving at a fully impartial and independent Judgment in the matter.
It was the held by the Supreme Court in the Judgment delivered by Blayney J., on the 20th December, 1995, to which I have already referred, that it was unnecessary for the High Court to have found facts as it did. However, having found those facts the mere possibility that the Disciplinary Tribunal, should the matter be again referred to it by the Compensation Fund Committee, might ultimately arrive at the same conclusions as the High Court cannot in my view be a relevant consideration in deciding the issue of prejudgment bias. The Court on this Application for Judicial Review is concerned with matters of procedure only and not with determining the substance of any such referral. The Court is not and may not be concerned with whether the findings of fact made by and the conclusions reached by the High Court were correct or incorrect or partly correct.
Objective reason is of the essence of the test which the Court has already found it must apply in considering this matter. As was held by Finlay C.J., and Murphy J., in the cases to which reference has already been made, there must be good grounds based upon a rational consideration of the known facts to justify the alleged fear. No grounds at all have been advanced by the Applicant save to point to the existence of the Judgment of the High Court. In my view this is simply not sufficient.
If the mere existence of a prior determination should in itself be a sufficient basis for a reasonable fear of prejudgment bias, the Appeals Procedure of the Courts could not survive. It seems to the Court that a fair inference may be drawn from the Judgment of Blayney J., that the Supreme Court did not perceive the findings of the High Court to constitute an impediment to a redetermination of the issues by the Disciplinary Tribunal. If the contrary were true it is scarcely likely that Blayney J., would have spoken of the Disciplinary Committee having to make a wholly separate and independent investigation of the matter uninfluenced by these findings.
The Compensation Fund Committee is not, except in a most peripheral way, concerned with the merits of the matter. Its sole function is to ensure that there is some substance in complaints made to the Respondent so as to protect the reputations of Solicitors from being harmed by and the resources of the Respondent from being wasted on baseless, frivolous, vexatious or malicious accusations howsoever arising.
The Applicant must be aware that proceedings before the Disciplinary Tribunal take the form of a complete rehearing of any complaints against him by two members of his own Profession and a lay person, (Section 6, Solicitors Act, 1954 as inserted by Section 16 Solicitors (Amendment) Act, 1994). The Applicant, if he so chooses, may be represented by Solicitor and Counsel, who I believe the Court may infer would ensure that the composition of the Disciplinary Tribunal and the conduct of its proceedings were in accordance with the dictates of natural and constitutional justice. In his Verifying Affidavit the Applicant states that by letter dated the 29th of August, 2000 he was advised by the Respondent that the initial reference by the Compensation Fund Committee on the 13th May, 1993 never in fact came before the Disciplinary Committee and this statement is not disputed by him.
No rational basis has been advanced by the Applicant upon which this Court could accept or even assume that a reasonable person in the position of the Applicant, - with his special advantages of legal training and experience, - would reasonably fear that members of the Disciplinary Tribunal who have not been shown to harbour any ill-will towards him, or to be partisan in favour of the Respondent, or to have expressed any fixed views relating to any aspect of the matters likely to be in issue having regard to the contents of the letter dated the 16th June, 2000 from the Respondent to the Applicant, or to hold any opinion as regards the Judgment of the High Court given on the 24th January, 1995, would fail to afford such person a fair, independent and lawful hearing and determination based solely on the law and the facts properly admitted into evidence before them. It has not been shown that members of the Disciplinary Tribunal are likely, as a matter of probability, to have been involved in any earlier proceedings of the Compensation Fund Committee or preliminary proceedings of the Disciplinary Tribunal or to have had a previous involvement in any prior investigations or proceedings concerning the Applicant or his former apprentice Mr. Eamon Carroll.
I consider it more appropriate that an argument, such as arose in the case of Moran -v-Lloyd's (a statutory body), (1981) 1 L.L.R. 423 (C. of A.), as to whether or not the rules of natural justice (and in this Jurisdiction, of Constitutional justice), apply to a body such as The Compensation Fund Committee in the discharge of its preliminary screening function should await consideration in a more pertinent case. Indeed it may well be that the matter has already been decided by the judgment of McCracken J., in O'Callaghan -v-Disciplinary Tribunal (High Court, 22/03/99, unreported). In the present case for this Court to reach a conclusion upon such a narrow basis, - that the only matter at issue is the determination of the Compensation Fund Committee whether or not to submit a case to the Disciplinary Tribunal because until then matters relating to a hearing before the Disciplinary Tribunal do not and may never become relevant, - would be to ignore the reality of this case. It is common case that the Compensation Fund Committee has previously sent forward for the consideration of the Disciplinary Tribunal some of the complaints contained in the letter of the 16th June, 2000 and is now, I believed the Court may infer only considering whether or not further complaints should be referred to that body. To so confine the issues would also be to ignore the fact that the Applicant's case is focused on a fear of lack of proper procedures before the Disciplinary Tribunal and proceeds upon the apparent acknowledgement that there is sufficient substance in all or some of the complaints contained in the letter dated the 29th June, 2000 for them to be referred by the Compensation Fund Committee to the Disciplinary Tribunal.
The Court will therefore refuse the relief sought by the Applicant in this Application.