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Cite as: [2019] IEHC 859

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THE HIGH COURT

[2019] IEHC 859

[No. 137. S.A/2015]

IN THE MATTER OF

EDWARD MCGARR SOLICITORS PRACTISING UNDER THE STYLE AND TITLE OF

MCGARR SOLICITORS, 12 CITY GATE, LOWER BRIDGE STREET, DUBLIN 8

AND

IN THE MATTER OF

BETWEEN

THE SOLICITOR’S ACTS 1954-2011

EDWARD MCGARR

AND

LAW SOCIETY OF IRELAND

AND

APPLICANT

RESPONDENT

[No. 138. S.A/2015]

IN THE MATTER OF

EDWARD MCGARR SOLICITOR PRACTISING UNDER THE STYLE AND TITLE OF MCGARR

SOLICITORS, 12 CITY GATE, LOWER BRIDGE STREET, DUBLIN 8

AND

IN THE MATTER OF

THE SOLICITOR’S ACTS 1954-2011

BETWEEN

EDWARD MCGARR

APPLICANT

AND

LAW SOCIETY OF IRELAND

RESPONDENT

JUDGMENT of Ms. Justice Murphy delivered on the 17th day of December 2019

Introduction

1. The above applications, four in number, arise from an investigation being conducted by

the Law Society into two complaints of misconduct made against the applicant Edward

McGarr by two fellow solicitors. Both complaints relate to a failure by Edward McGarr to

account for costs due to the respective solicitors in respect of work done by them, on

litigation cases which were ultimately settled by Mr. McGarr.

2. In the course of its investigation the Law Society’s Complaints and Client Relations

Section considered it necessary to issue a notice pursuant to s.10 of the Solicitor’s

(Amendment) Act 1994. In each case, the s. 10 notice sought “all documents in your

possession, under your control or within the procurement of you or your firm in

connection with the matters relating to the complaint of (name of solicitor) (whether or

not they relate also to other matters).”

3. In each case the applicant Mr. McGarr has issued a motion pursuant to s.11(1) of the

Solicitor’s (Amendment) Act 1994 seeking an Order directing the Law Society to vary or

withdraw its s.10 notice. In each case the Law Society has countered with an application

pursuant to s.11(4) of the Solicitor’s (Amendment) Act 1994 seeking an Order directing

the applicant to produce the documents sought pursuant to s.10(1) of the Act.

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Law Society of Ireland Complaints Process and Relevant Law

4. It is not disputed that the respondent is the body statutorily charged with dealing with the

complaints at issue herein.

5. The Law Society's "Resolving Complaints" information booklet details the complaints

process: -

"How the Complaints System works

Under the provisions of the Solicitors Acts, 1954 to 2002, the Society may deal with

complaints alleging misconduct, inadequate professional services and complaints of

excessive fees. Complaints about services and fees must be made within 5 years [S

8(7) and S 9(6), Solicitors Amendment Act 1994].

Virtually all of these complaints are dealt with by the solicitors in the Society's

Complaints and Client Relations Section, usually through an exchange of

correspondence. It is by means of this correspondence that most complaints are

concluded. The balance may be referred to the Complaints and Client Relations

Committee, and of these a small number will be the subject of an application to the

Disciplinary Tribunal.

If a client is dissatisfied with the outcome of his complaint to the Society, he may

approach the Independent Adjudicator of the Law Society, or, in a case of alleged

misconduct, apply to the Disciplinary Tribunal.

The Independent Adjudicator of the Law Society

A complainant who is dissatisfied with the outcome of his complaint to the society

can refer the matter to the Independent Adjudicator of the Law Society. The

adjudicator calls for the society's file and, based on his/her inspection of the file,

decides whether the society has dealt fairly and impartially with the complaint.

Further information on the role of the adjudicator is available on request from the

Society.

The Complaints Procedure

On receipt of a complaint, the Complaints and Client Relations Section copies the

letter of complaint to the solicitor involved and asks for his/ her views. Where

appropriate, this correspondence is copied to the managing partner of the solicitor’s

firm. If you receive a letter from the Complaints and Client Relations Section

informing you that you are the subject of a complaint, and asking for your

comments, it is in your own interest to respond promptly to the Society's

correspondence, as in all likelihood the matter can be resolved to the satisfaction of

all concerned at this point. You should be as frank as possible with the Society, and

co-operate with the Society's staff to have the matter resolved. If you believe the

complaint is totally unfounded, you are fully justified in setting out the reasons why

you believe your client has no cause for complaint. Whatever the circumstances,

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reply as quickly as possible, bearing in mind that delays in responding to the

Society's enquiries can exacerbate the position and make it more difficult to effect a

resolution.

When preparing a response, please remember that the Society will forward a copy

to the complainant. In this regard, it is important to note that the Society claims

privilege on the correspondence relating to complaints. This is to protect both the

complainant and the solicitor, so that both parties can communicate freely with the

society.

The Complaints and Client Relations Committee has made it clear that it will not

tolerate any failure by a solicitor to respond to the Society's correspondence. If a

solicitor ignores the Society's enquiries, the committee may refer the solicitor to the

Disciplinary Tribunal, notwithstanding the fact that it ultimately transpires that the

complaint has no substance.

If you have any difficulty about responding to a particular complaint, consult a

colleague. If you have particularly heavy commitments which make it impossible to

reply to the Society within the time requested, telephone the Complaints and Client

Relations Section and advise them of your difficulty.

If the Society's correspondence is totally ignored, the following can occur:-

•

The service of a statutory notice under section 10 of the Solicitors

(Amendment) Act, 1994 requiring the production of your file.

•

A direct application to the President of the High Court under section 13 of the

Solicitors (Amendment) Act, 2002.

•

A direction to make contribution towards the costs incurred by the Society as

a result of failure to respond to the Society's correspondence.

•

A referral to the Disciplinary Tribunal, which could result in a finding of

professional misconduct.

•

The attendance at your office of an authorised person under S. 14 of the

Solicitors (Amendment) Act 1994. "

s. 10 of the Solicitors (Amendment) Act 1994 & definition of "misconduct"

6. s. 10(1) of the Solicitors (Amendment) Act 1994 provides: -

"Where it appears to the Society that it is necessary to do so for purpose of

investigating any complaint made to the Society —

(a) alleging misconduct, or

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(b) alleging that the provision of legal services by a solicitor was inadequate in any

material respect and was not of the quality that could reasonably be expected of

him as a solicitor, or

give notice in writing to the solicitor or his firm requiring the production or delivery

to any person appointed by the Society, at a time and place to be fixed by the

Society, of all documents in the possession or under the control or within the

procurement of the solicitor or his firm in connection with the matters to which the

complaint relates (whether or not they related also to other matters).”

7. s. 13 of the Solicitors (Amendment) Act 2002 inserted s. 10A following s. 10 in the Act of

1994 as follows: -

“(1) Where, in relation to a complaint made to the Society alleging misconduct by a

solicitor or a complaint under section 8(1) or 9(1) of this Act, it appears to the

Society that the solicitor concerned is obstructing the investigation of the complaint

by the Society by refusing, neglecting or otherwise failing, without reasonable

cause-

(a) to respond appropriately in a timely manner, or at all, to the correspondence

from the Society in relation to the complaint, or

(b) to attend a meeting convened by the Society at which the complaint would

be considered, the Society may apply to the High Court for an order

compelling the solicitor to respond appropriately within a specified time to

such correspondence or to attend such a meeting.

(2) An order under subsection (1) of this section may provide for censuring the solicitor

and requiring the solicitor to pay a money penalty and for such matters of a

consequential nature as the Court considers appropriate.

(3) Where an order under subsection (1) of this section requires a solicitor to pay a

money penalty, the order shall operate as a judgment against the solicitor in favour

of the Society, and the money penalty, when recovered, shall be paid into the

Compensation Fund.

(4) In subsection (1) of this section, 'meeting convened by the Society' includes a

meeting convened by a committee to which functions of the Society which may be

performed by the Council have been delegated pursuant to section 73 (as amended

by the Act of 1960 and this Act) of the Principal Act."

8. The complaints herein are of "misconduct" as per s.10(l)(a) of the act. s. 3 of the

Solicitors (Amendment) Act 1960 (as amended by s.24 of the Solicitors (Amendment) Act

1994 Act and s. 7 of the Solicitors (Amendment) Act 2002) states the following:

"Misconduct' includes-

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a. the commission of treason or a felony or a misdemeanour

b. the commission, outside the State, of a crime or an offence which would be a felony

or misdemeanour if committed in the State,

c. the contravention of a provision of the Solicitors Acts, 1954 to 2002, or any order

or regulation made thereunder,

d. in the course of practice as a solicitor

i. having any direct or indirect connection, association or arrangement with any

person (other than a client) whom the solicitor knows, or upon reasonably

enquiry should have known, is a person who is acting or has acted in

contravention of section 55 or 56 or section 58 (which prohibits an

unqualified person from drawing or preparing certain documents), as

amended by the Act of 1994, of the Principal Act, or section 5 of the

Solicitors (Amendment) Act, 2002, or

ii. accepting instructions to provide legal services to a person from another

person whom the solicitor knows, or upon reasonable enquiry should have

known, is a person who is acting or has acted in contravention of those

enactments,

iii. any other conduct tending to bring the solicitors' profession into disrepute.”

9. The respondent's "Complaints about Solicitors" information booklet describes misconduct

in this context as:-

"Misconduct is defined in the Solicitors Acts. Examples of misconduct include

conflict of interest, breach of an undertaking and failure to communicate.”

s. 11 of the Solicitors (Amendment) Act, 1994

10. s. 11 of the Solicitors (Amendment) Act, 1994 provides:-

(1) A solicitor in respect of whom a determination or direction has been made or given

by the Society under section 8(1) 9(1) or 12(1) of this Act or who has received

notice for production or delivery of documents from the Society under section 10(1)

of this Act may, within a period of 21 days of the notification of such determination

or direction to him, or the receipt of such notice by him, apply to the High Court for

an order directing the Society to rescind or to vary such determination or direction,

or to vary or withdraw such notice, and on hearing such application the Court may

make such order as it thinks fit.

(2) Where a solicitor in respect of whom a determination or direction has been made or

given by the Society under the provisions of section 8(1), 9(1) or 12(1) of this Act

has not applied within the period provided to the High Court under subsection (1) of

this section, such determination or direction shall become absolutely binding on the

solicitor immediately upon the expiration of such period.

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(3) Where the Society have given notice in writing to a solicitor or his firm under the

provisions of section 10(1) of this Act and where an application has not been made

by the solicitor within the period provided under subsection (1) of this section, the

Society may apply to the High Court for an order directing the solicitor to produce

or deliver to any person authorised by the Society all documents in respect of which

such notice is given.

(4) Where an application has been made by a solicitor under subsection (1) of this

section, the Society may apply to the High Court and the Court may dismiss the

application of the solicitor if it is satisfied that such application has no merits and

has been made purely for the purposes of delay, and, where applicable and if the

Court thinks fit, shall order the solicitor to produce or deliver to any person

appointed by the Society all documents in respect of which a notice has been given

to the solicitor or his firm under section 10(1) of this Act.

(5) If a solicitor, in respect of whom a determination or a direction has been made or

given by the Society under the provisions of section 8 (1) or 9(1) of this Act or who

has received a notice for production or delivery of documents from the Society

under the provisions of section 10(1) of this Act (to the extent that it has not been

rescinded or varied by the High Court pursuant to an application under subsection

(1) of this section), refuses, neglects or otherwise fails to comply with such

determination or direction or notice without reasonable excuse, he shall be guilty of

an offence and be liable on summary conviction thereof to a fine not exceeding

11,500. ["£1,500" substituted with "€3,000" by s.22(1)(i) of the Act of 2002]

Complaint One – Record no. 137 S.A._2015

11. The court proposes to use initials to identify the clients, the settlement of whose claims,

gave rise to the complaints of misconduct in relation to costs in each case.

12. By letter dated the 29th day of July, 2015, Mr. Thomas Madden, solicitor of Thomas K.

Madden & Co. Solicitors, made a complaint to the Law Society of Mr. McGarr’s failure to

account to Mr. Madden for fees and outlay, due to Mr Madden, on a file which Mr. McGarr

had taken over from Mr. Madden. The complaint reads as follows: -

“Dear Sirs,

We represented AB in a High Court action. This matter was dealt with by the

Society previously in an application by McGarr Solicitors of 12 City Gate, Lower

Bridge Street, Dublin 8, who obtained the file under data protection legislation.

Mr. Madden personally delivered the file to the offices of McGarr Solicitors and did

not receive the courtesy of an acknowledgement.

The sum of €3,283.18 was paid by my office in respect of outlay in relation to this

case.

Page 7 ⇓

Mr. McGarr gave no undertaking in relation to costs: presumably on the basis that

he could not predict the outcome, nevertheless I learned that he subsequently

settled his case and failed to notify my office so that I could pursue my costs and

outlays.

I enclose herewith an exchange of correspondence with Mr. McGarr’s office. The

replies which I received are wholly unsatisfactory, evasive and disingenuous. It is

quite clear that Mr. McGarr has not made provision for our costs and outlay.

He has not produced nothing (sic) tangible in relation to the costs nor indeed the

settlement.

In the event that he recovered costs, a substantial portion of those costs are due to

this office in relation to the work carried out by myself and those entire costs surely

cannot be retained by Mr. McGarr.

He also only be (sic) entitled to costs in respect of the ultimate settlement. My

understanding is that the matter did not go to a hearing. The case was already set

down for hearing when he took over the file.

Furthermore, in the event that Mr. McGarr recovered outlay – that outlay is also

due to this office. It would be unconscionable and improper if those outlays were

not handed over. I enclose herewith a copy of the Bill of Costs which we sent to

Mr. McGarr.

I would be obliged if you would treat this as a formal complaint against Mr. McGarr

insofar as he used the Data Protection Act to obtain a file from a colleague in

circumstances where the case was set down for hearing and that the only aspect of

the case that needed to be determined was quantum. I had already received a

significant offer and my client had met with his barrister at the Law Library.

Mr. McGarr has failed, refused and neglected to hand over evidence of the costs

recovered and his engagement/correspondence is wholly unsatisfactory. I wrote to

Mr. S. but suffice to say that I received no response.

I was not kept up-to-date: Nor was I informed of the settlement. Mr. McGarr’s

letter, particularly of the 31st of October, 2014, is unsatisfactory. He is seeking to

shift responsibility onto the client in circumstances where the costs and outlay

would have come directly to Mr. McGarr.

I spoke with Mr. McGarr on the 23rd of December 2014, and he requested a copy of

the costs – notwithstanding that same had been sent previously.

We would be obliged if you would investigate the matter and call upon Mr. McGarr

to account properly and professionally to this office in respect of fees and outlays.

Yours faithfully,

Page 8 ⇓

Thomas K. Madden.”

13. Mr. Madden furnished a copy of the Bill of Costs which had been sent to Edward McGarr,

totalling €35,806.70 which included an instruction fee of €19,750 plus VAT.

14. On the 5th of August, 2015, Eleanor Carmody, solicitor of the Complaints and Client

Relations Section of the Law Society acknowledged Mr. Madden’s complaint and on the

same date, also wrote to the applicant Edward McGarr. She enclosed Mr. Madden’s letter

of complaint and a copy of the Society’s information booklet “Resolving Complaints”. She

advised him that the Society is empowered by statute to investigate complaints of

excessive fees and inadequate professional services and misconduct. She asked for Mr.

McGarr’s written observations on the correspondence, any necessary explanation of the

matters arising and where appropriate his proposals for resolving the matter.

15. He was advised of the potential relevance of the Data Protection Act, 1988-2003 and was

further advised that the Law Society’s policy governing the investigation of complaints,

requires the Society to give the complainant copies of any relevant letters and documents

that he might submit to the Society in response to the complaint, and vice versa. On the

12th of August, 2015, the complainant Mr. Madden forwarded to the Law Society an

unpaid medical bill in respect of reports and treatment given to Mr. AB in respect of his

claim. On the 13th of August, 2015 McGarr Solicitors replied to Ms. Carmody indicating

that the applicant was out of the country and advising that he would return and deal with

the matter in the week commencing the 25th of August, 2015.

16. The applicant’s first position was that the complainant Mr. Madden “has no admissible

complaint to make concerning me”. He enclosed a copy of correspondence between his

office and Mr. Madden. He stated that he had tried to agree the transfer of the file under

the Society’s recommended procedure but contended that Mr. Madden had failed to

engage with his office on that point. He stated that these difficulties had been overcome

in due course. He stated that he had acted exclusively for Mr. AB and that his obligations

to the client were limited to his personal injury claim. He entirely ignored the fact that

Mr. Madden had made a complaint against him Mr. McGarr, not his client, and stated: -

“Mr. Madden’s dispute with Mr. AB is not something we wish to take up for Mr. AB.

That said we have invited Mr. Madden to put his proposals to resolve his difficulties

and we will use our best endeavours to conclude matters sensibly. As solicitors we

have sympathy with Mr. Madden but cannot offer him advice or go beyond such

instructions as Mr. AB. may give and we are willing to accept.”

17. Ms. Carmody replied on the 28th of August, 2015. She acknowledged receipt of Mr.

McGarr’s letter dated the 26th of August, 2015. She referred him to p. 61 of the Guide to

Good Professional Conduct for Solicitors, Third Edition. Chapter 7 of the Guide relates to

the solicitor and his relationship with other solicitors. It provides: -

“At the conclusion of a litigation case if a second solicitor recovers costs which

include the cost of work done by the first solicitor, he is accountable to the first

Page 9 ⇓

solicitor for the appropriate portion of those costs. This is the case even if there

are solicitor/client costs properly payable to him and these exceed the total amount

of the party costs recovered. This applies where the first solicitor was not paid

when his instructions were terminated. Ms. Carmody asked two direct questions of

Mr. McGarr as follows:

“(1) Did you recover costs in the matter?

(2) If you did recover costs did those costs include the work done by Mr. Madden

and if so what happened to those costs?”

18. On the 1st of September, 2015, the applicant Mr. McGarr sent a letter to Ms. Carmody

which, contrary to the ‘Resolving Complaints Procedure’, he was unwilling to have her

disclose to the complainant Mr. Madden. Ms. Carmody pointed out that she was unable to

retain the letter on file, in those circumstances, and returned it to Mr. McGarr. She asked

him once again to answer the two questions that she had raised in her letter of the 28th

of August.

19. On the 9th of September 2015, the applicant Mr. McGarr sent a further letter to the Law

Society in which he failed to answer the two very clear questions asked in the Law

Society’s letter of the 28th of August 2015, nor did he address the clear complaint of Mr.

Madden that he had failed to account for costs recovered. He professed in his letter to

have “difficulty understanding the complaint made by Mr. Madden. He has simply copied

correspondence and failed to state his complaint, that I can see.” He ignored the fact

that Mr. Madden had made a complaint against him and in effect, suggested that any

issue that Mr. Madden had was with his client Mr. AB.

20. In circumstances in which the applicant’s initial reaction to the complaint was that it was

inadmissible, and his next reaction was a professed difficulty in understanding the

complaint, matters then took a rather strange turn. On the 11th of September, 2015, the

applicant, without prejudice to his earlier positions, served what he termed ‘a Notice for

Information’. The notice seeking information is a remarkable document in the context of

an investigation of a complaint by the Law Society. It is headed the Law Society of

Ireland Thomas Madden complainant and Edward McGarr respondent.

Notice Seeking Information: -

“Take notice that as the respondent herein, pursuant to the provisions of Directive

2012/13/EU of the European Parliament and of the Council, I apply to you for

information on the following matters arising in relation to the applicant’s letter of

the 29th of July, 2015, to the Law Society of Ireland.”

21. The court presumes that the reference is to the complainant’s letter of the 29th of July, as

there is no applicant named in the notice. The notice for information is a combination of

a notice for particulars and an application for discovery. In addition, it seeks details of

legal protections put in place by the Law Society to secure the rights of the defence as

provided for in Directive 2012/13/EU. There are 8 separate queries with a total of 20

Page 10 ⇓

subheadings. Throughout the body of the notice reference is repeatedly made to the

applicant. It is not clear whether Mr McGarr expects his ‘notice’ to be answered by the

complainant, Mr. Madden, or by the Law Society. In any event, an application to the High

Court is threatened in default of the information being furnished.

22. The court rejects ad limine Mr.McGarr’s assertion that he is entitled to seek or receive the

information sought in his ‘notice’ The court is quite satisfied that Directive 2012/13/EU of

the European Parliament and of the Counsel of the 22nd of May, 2012, on the Right to

Information in Criminal Proceedings has absolutely no application to preliminary

investigations being conducted pursuant to a statutory power, by the Law Society, in

respect of complaints of misconduct made against a solicitor.

23. Article 1 of the Directive, which the court accepts, is and has been of direct effect for a

number of years, specifies the subject matter of the Directive and states:

“this Directive lays down rules concerning the right to information of suspects or

accused persons relating to their rights in criminal proceedings and to the

accusation against them”.

24. Article 2 dealing with the scope of the Directive provides at 2.1: -

“This Directive applies from the time persons are made aware by the competent

authorities of a member state that they are suspected or accused of having

committed a criminal offence until the conclusion of the proceedings which is

understood to mean the final determination of the question whether the suspect or

the accused person has committed the criminal offence, including where applicable,

sentencing and the resolution of any appeal.”

25. Article 3 of the Directive provides for right to information about rights and provides at

3.1: -

“Member States shall ensure the suspects or accused persons are provided

promptly with information concerning at least the following procedural rights, as

they apply under national law in order to allow for those rights to be exercised

effectively.

(a) The right of access to a lawyer.

(b) Any entitlement to free legal advice and the conditions for obtaining such

advice.

(d) The right to interpretation and translation.

(e) the right to remain silent.” (emphasis added)

Page 11 ⇓

26. Thus, even a preliminary consideration of the Directive makes it clear that it has no

application to Mr. McGarr who does not at present, stand suspected nor accused of a

criminal offence. The court observes however that the very fact that Mr. McGarr chose to

serve such a notice would seem to suggest that from the outset, despite his protestation

to the contrary, he fully understood the nature of the complaint made against him by Mr.

Madden.

27. On the 16th of September, 2015, the Law Society wrote to the applicant acknowledging

receipt of his letters of the 9th and 11th of September, 2015, and advising him that

Directive 2012/13/EU had no application to investigations being conducted by the Law

Society. The Law Society attached a notice pursuant to s.10 of the Solicitor’s

(Amendment) Act 1994 seeking the production of “all documents in your possession,

under your control or within the procurement of you or your firm in connection with the

matters relating to the complaint of Thomas Madden (whether or not they relate also to

other matters).” In addition, pursuant to the applicant’s request for copies of documents,

the Law Society enclosed a copy of the Society’s file in the matter.

28. On the 2nd of October, 2015 the Law Society received a response from Mr. McGarr

through P.J. McMahon Solicitors. They asserted that the “applicability of Directive

2012/13/EU is clear from the provisions of the Directive itself and it is not for his client to

explain to the Society why it applies to its investigations. Rather the Society should

explain why the Directive does not apply to it.”

29. He also complained that the s.10 notice was defective in that it only allowed ten days for

compliance when s. 11 of the Act allowed his client 21 days in which to apply to the High

Court for an Order in respect of a s.10 direction. He also alleged that the service of the

s.10 notice was premature and “it quite clearly represents an attempt by the Society to

go on a fishing expedition.”

30. He called on the Society to withdraw the s.10 notice and sought a response to his notice

for information. Again, no reference is made to the two direct questions raised in the Law

Society’s letter of the 28th of August, 2015, in which Mr. McGarr was asked, (1) did he

recover costs in the matter; and (2) if he recovered costs did those costs include the work

done by Mr. Madden and if so what happened to those costs. Four days later on the 6th

October, 2015, P.G. McMahon Solicitors issued a notice of motion seeking an Order

pursuant to s. 11(1) of the Act, directing the respondent to vary or withdraw its notice

issued pursuant to s.10 of the Solicitor’s (Amendment) Act 1994 dated the 16th of

September, 2015, relating to the file of AB.

31. Pursuant to O.53 r, 16(c) the notice of motion is required to state the grounds of the

appeal or application, and the Order sought by the appellant or applicant on such appeal

or application. The notice of motion does not set out the grounds upon which the

application is made. However, the grounds are set out in the grounding affidavit sworn by

Edward McGarr.

32. He contends that he requires a reply to his ‘Notice for Information’ to allow him: -

Page 12 ⇓

a. Consider whether I had a reasonable chance of succeeding in appealing or judicially

reviewing the Respondent’s decision;

b. Identify the relevant legal issues and prepare my legal submissions for hearing or

review;

c. Know if the respondent had directed its mind adequately to the issues which it had

considered or was obliged to consider;

d. Examine the legal basis for the allegation of misconduct or the facts upon which the

said allegation of misconduct rested;

e. Enable the Court to review the decision.

33.

This entire argument and the ‘Notice for Information’ which preceded it, are based on

two false premises. The first is that the Law Society had reached a ‘decision’. There is no

evidence that any decision had been reached by the Law Society. It had received a

‘complaint’ and in accordance with its published procedures sought Mr. McGarr’s response

to that complaint. Second, the Law Society had not ‘alleged’ misconduct against Mr

McGarr. It had received a complaint of misconduct and merely sought, again in

accordance with its published procedures, his response to that complaint. If following its

investigation of the ‘complaint’ the Law Society concluded that there was prima facie

evidence of misconduct, then an allegation of misconduct might be laid, which would be

dealt with by either the Complaints and Client Relations Committee or the Disciplinary

Committee. In that event, Mr McGarr would be entitled to the full panoply of rights to fair

procedures enshrined in domestic and European law. On the other hand, upon receipt of

Mr. McGarr’s response, the Law Society could well conclude that the complaint was

unfounded and there the matter would end.

34.

Next, the grounding affidavit asserts that the complainant, Mr. Madden is

using/abusing the Law society’s regulatory powers to advance his civil dispute against his

former client AB for fees. Tied to this is the invocation by Mr. McGarr of the privacy rights

of AB. Mr McGarr suggests that the documents sought in the S.10 notice must include

the file of the client AB, with whom Mr. Madden is in dispute, and therefore the s10 notice

undermines the client’s property rights and his rights to privacy of his correspondence.

He claims that this is exacerbated by the Law Society’s failure to join AB as a notice party

to the production notice. The s.10 notice does not in fact seek production of the file of

AB, nor, in the court’s view, must it be construed as doing so. (see further below).

35.

Finally, the affidavit objects that the Notice is not in conformity with the Solicitors

(Amendment) Act1994 or Irish Law generally because:

a. The Respondent is not investigating a complaint of misconduct within the meaning

of s. 8(1) and the production notice is not a notice within the meaning of s. 10.

Page 13 ⇓

b. The production notice imposes a deadline to comply with it of 10 days, thereby

impermissibly curtailing the time provided for applying to the Court for relief under

s. 11.

c. The production notice impermissibly fails to address or provide for the rights of AB

by omitting to make him a notice party thereto.

36. The court immediately rejects the objection at a. above, because the Law Society never

purported to investigate a complaint, pursuant to S. 8 of the Act, which deals with

complaints by clients of solicitors. It was always clear that the complaints of misconduct

in this case came from other solicitors. S.10(1)(a) specifically empowers the Law Society

to investigate complaints of misconduct, howsoever arising.

37. The ground at ‘b’ is a purely technical defence and is without merit. The applicant

contends that the deadline of 10 days for compliance with the s.10 notice is impermissible

in circumstances where s.11 of the act permits 21 days to apply to court to vary or

withdraw the notice. There might be some substance to this objection had the Law

Society acted to enforce its notice within the 21-day period. They did not do so. Nor did

the Law Society take any steps to curtail the applicant’s right to invoke relief pursuant to

s.11(1). The s.10 Notice was served on the 16th September 2015. The applicant issued a

motion to set it aside 20 days later, on the 6th October 2015. The first suggestion that

the Law Society might apply to Court to enforce its notice came on the 23rd October

2015, 37 days after the service of the Notice. It seems to the court that, depending on

the circumstances, it is open to the Law Society to specify a time less than 21 days for

compliance with its s.10 notice. However, by reason of the provision of s11(1), it cannot

seek to enforce its notice until the 21 days within which the person subject to the notice

may apply to the court to vary it, have elapsed.

38. On the 6th November 2015, the Law Society issued a motion seeking Orders pursuant to

s.11(4) of the Solicitors (Amendment) Act 1994, dismissing the application to vary or

withdraw the notice issued by the Society pursuant to S.10 of the Act of 1994 dated the

16th September 2015 requiring production of all documents in his possession, under his

control or within the procurement of the Applicant or his firm in connection with the

matters relating to the complaint of Thomas Madden (whether or not they relate also to

other matters) and an Order directing the applicant to produce the documents aforesaid

in accordance with the terms of the s. 10 Notice.

39. The grounds of the application were:

i. The application by the Applicant directing the Society to vary or withdraw its S.10

Notice is without merit and has been made purely for the purposes of delay;

ii. The application is, in particular, without merit in circumstances where the nature

and basis of the complaint of misconduct on the part of the Applicant, and the

Society’s investigation thereof, has been fully and properly disclosed to the

Applicant.

Page 14 ⇓

40. The Application was grounded on the affidavit of Eleanor Carmody, in which she sets out

in extensive detail the society’s engagement with the applicant in relation to the

complaint of Mr. Madden. She sets out the Law Society’s response to each of the

arguments raised by the applicant, some of which have found favour with the court, as

set out in its findings above. In relation to Mr McGarr’s assertion that the regulatory

powers of the Law Society were being used to assist his competitor in his civil dispute

with his former client, and his invocation of his clients’ privacy and property rights and in

particular his client’s entitlement to be made a notice party to the Law Society’s s.10

notice, Ms. Carmody replies at paragraphs 28 and 30 of her affidavit as follows: -

“28. The Society is not……. engaged in, or offering, any assistance to the Complainant in

order to pursue a civil dispute – it is solely investigating the complaint in relation to

the Applicant’s conduct.”

30. I say that the Section 10 Notice was served in the context of the Society’s

investigation of a complaint by Mr Madden in respect of the Applicant’s conduct – a

matter which the Applicant consistently purports to overlook by seeking to

characterise the complaint as being by Mr Madden against his former client – a

matter which would not be within the remit of the Society to investigate. The

Society has statutory powers to give notice for the delivery of the file and is not

required, nor would it be appropriate, in exercising those powers to join Mr. AB to

the complaint or to the Notice. Mr AB ‘rights’ are not involved or compromised in

any way in circumstances where the complaint is not in respect of him but is in

respect of the conduct of the Applicant – and specifically as to whether he failed to

properly account to Mr Madden for costs recovered or which might have been

recovered. There can be no “disadvantages to Mr. AB.” as alleged by the Applicant

at para. 21 of his affidavit in production of the file – the matter at issue being

whether Mr. Madden’s complaint against the Applicant is well founded.”

41. Having set out the basis of the Law Society’s opposition to Mr. McGarr’s application, Ms.

Carmody then sets out the grounds on which the Law Society seeks an order pursuant to

S. 11(4).

42. While the Law Society maintains in its affidavit, an entitlement to call for production of

Mr. AB’s file, the court notes that in fact, the s. 10 Notice does not call for production of

the file, but merely seeks all documents in your possession, under your control or within

the procurement of you or your firm in connection with the matters relating to the

complaint of Thomas Madden (whether or not they relate also to other matters).” Since

Mr Madden’s complaint concerns Mr. McGarr’s failure to account to him for costs claimed

and/or received by Mr.McGarr, it is clear that the documents sought in the s. 10Notice are

directed to Mr. McGarr’s actions in respect of costs, and not to any action of his client. In

this context, Mr McGarr’s assertion that, as a matter of law, costs recovered are the

property of the client, is an irrelevant red herring, which is not in issue in the

investigation of the complaint, in respect of Mr. McGarr’s conduct.

Page 15 ⇓

43. The type of documents which one might expect to be produced in compliance with the

S.10 notice, are Mr. McGarr’s own Bill of Costs; any claim made for those costs from a

third party or the client; any payment made on foot of that Bill; any taxation of costs

which may have occurred and the outcome of such taxation; any payment in respect of

taxed costs made to Mr.McGarr.

44. As of the 6th November 2015, the issues between the parties were joined. The motions

were thereafter listed for hearing on the 7th of April 2016.

45. More than three months later, out of the blue, on the 25th February 2016, a detailed

response to Mr. Madden’s complaint was sent to the Law Society, on behalf of Mr.McGarr.

It is stated to be without prejudice to the pending High Court application. It addresses

each of the issues raised in the complaint of Mr. Madden. The court is at a loss to

understand why this detailed response could not have been furnished by Mr McGarr when

first requested on 5th August 2015.

Complaint Two 138S.A 2015

46. Mr. Niall O’Reilly, solicitor of Lawlor O’Reilly & Co. Solicitors, acted for Mr. CD in High

Court proceedings relating to a road traffic accident (2008/3209P). In or around July,

2012, Lawlor O’Reilly & Co. received correspondence from McGarr Solicitors, enclosing

notification from Mr. H., informing them that its retainer was discontinued and that

McGarr Solicitors were now acting for Mr. H.

47. On or about 12th July, 2012, Lawlor O’Reilly & Co. furnished a solicitor/client bill to Mr. H.

through McGarr Solicitors.

48. Following correspondence and intense negotiation between the parties, Mr. O’Reilly

released Mr. H's file to the applicant on foot of an undertaking from McGarr Solicitors,

dated 18th July, 2012. The undertaking provided as follows:-

"We are instructed by J H to again write to you seeking the transfer of his file in the

above matter to this office forthwith.

In consideration of you doing so we undertake as follows:

1. To refund to you outlay of €4,129 made on the plaintiff’s behalf

2. We formally confirm that we will preserve your lien and return the files to you

(to advance any taxation of costs application that you may wish to

commence) upon the termination of the proceedings (including any party-

party taxation).

3. To hold on the anticipated successful conclusion of the matter the sum of

€10,000 as security for your claim against J H for costs in the proceedings to

the date he discontinued your retainer.

Page 16 ⇓

4. We will hold the said money in our client A/C pending the resolution of your

claim, for the period of six months, commencing from the date of the signing

of the Requisition to Tax [or a Court order to like effect] but not longer.

5. To disburse all or some of the said sum of €10,000 to pay your claim for

costs when vouched, ascertained and agreed or taxed in default of

agreement.

6. Paragraphs 3, 4 and 5 are subject to our success in negotiating the

settlement cheque by payment into our client A/C of same. In default of

achieving this we will hold the settlement cheque on our file until J H puts us

in funds of €10,000. Thereafter we will hold that sum of €10,000 in our client

A/C pending the resolution of your claim, for the period of six months of the

signing of the Requisition to Tax [or a Court order to like effect] but not

longer.

7. This undertaking supersedes all earlier proffered undertakings in this matter

and is in substitution for same.”

49. The claim was settled by McGarr Solicitors, four months later, in November, 2012. McGarr

Solicitors gave several assurances that they would keep Lawlor O’Reilly & Co. informed

regarding the receipt of the party/party costs.

50. Following several telephone calls to the offices of McGarr Solicitors, Mr. O’Reilly spoke

with Mr. Simon McGarr, solicitor, on 28th July, 2014. Mr. Simon McGarr informed Mr.

O'Reilly that he had intended to write to Lawlor O’Reilly & Co. to inform them that all of

the party/party costs recovered had been paid directly to the client together with the

€10,000 retained, because the time in respect of the undertaking had passed.

51. By letter dated 13th August, 2014, Lawlor O’Reilly & Co. wrote to McGarr solicitors

referring to the telephone call of 28th July, 2014, expressing surprise and concern at the

lack of compliance with the undertaking and Mr. Simon McGarr’s failure to send any

correspondence in relation to the matter, despite his indication of his intention to do so.

Lawlor O’Reilly & Co. advised that it was passing the matter over to the Law Society to

seek its assistance. Lawlor O’Reilly & Co. further sought the return of the file in part

compliance with the undertaking.

52. By letter dated 15th August, 2014, McGarr Solicitors replied to Lawlor O'Reilly & Co.

expressing confusion. It requested that Lawlor O’Reilly & Co. specify the terms of the

undertaking which it was now saying subsisted.

53. By letter dated 1st September, 2014, Lawlor O’Reilly & Co. outlined to Mr. Edward McGarr

the grounds upon which it maintained that the undertaking had not been complied with. It

advised Mr. McGarr that in the absence of receipt of proposals for resolving the matter

amicably within three weeks, it would refer the matter to the Law Society.

The complaint

Page 17 ⇓

54. By letter dated 21st October, 2014, Mr. Niall O'Reilly made a complaint to the respondent

about the applicant’s non-compliance with his undertaking of 18th July, 2012. Mr. O'Reilly

advised the respondent that the firm had requested the applicant to comply with

paragraph 2 of the undertaking (return of the file) and that the applicant had not replied.

He further advised the respondent that his firm believed that paragraph 3 of the

undertaking had not been complied with. He stated:-

“...we further wish to make a complaint of misconduct against McGarr Solicitors

arising out of their failure at the conclusion of this Litigation Case to discharge to us

an appropriate portion of the Party/Party costs which we believe were agreed and

paid".

55. Mr. O’Reilly confirmed that the applicant had complied with paragraph I of the

undertaking to discharge the outlay of €4,129 which sum had been paid upon receipt of

the file.

56. By letter dated 24th October, 2014, Ms. Eleanor Carmody, for the respondent, replied to

Mr. O’Reilly acknowledging receipt of his letter of complaint. She informed him that

inquiries were being made in relation to the complaint and she explained the investigation

process.

57. On the same date, Ms. Carmody wrote to the applicant. She enclosed a copy of Mr.

O'Reilly's letter of complaint, a copy of the Society's information booklet "Resolving

Complaints" and advised him that the Society was empowered by statute to investigate

complaints of excessive fees, inadequate professional services and misconduct. She

requested the applicant to furnish within 10 working days his written observations on the

correspondence, any necessary explanation of the matters arising and where appropriate,

his proposals for resolving the matter.

58. By letter dated 31 October, 2014, the applicant advised Ms. Carmody that the relevant

file was being taken up from archiving.

59. In a further letter dated 5th November, 2014, the applicant enclosed a copy of an

intended letter to Mr. O’Reilly dated 7th November, 2014 which referred to delivery of the

file and apologised for the failure to deliver it promptly on request. It further stated "We

hold €10,000 to the credit of J H in our client a/c" and stated that the firm would write to

Mr. O'Reilly further shortly.

60. By letter dated 18th November, 2014, Ms. Carmody responded to the applicant advising

that the respondent considered the complaint closed unless it heard to the contrary from

Mr. O'Reilly. By letter of the same date, Ms. Carmody wrote to Mr. O’Reilly seeking

confirmation that intervention by the Society was no longer required.

61. In a letter to Ms. Carmody dated 24th November, 2014, Mr. O'Reilly enclosed

correspondence with the applicant dated 21st November, 2014. He advised that as the

files had now been furnished, paragraph 2 of the undertaking had been complied with. He

Page 18 ⇓

stated that paragraph 3(relating to the undertaking to retain €10,000) remained in issue

as did the associated paragraphs 4, 5 and 6. He confirmed that a requisition to tax had

been received. He stated that “The complaint in relation to the retention by Edward

McGarr of our portion of the Party/Party costs on an ethical basis remains extant".

62. By letter dated 28th November, 2014, Ms. Carmody advised the applicant that the file

was being kept on review.

63. Following receipt of the file, Lawlor O’Reilly taxed their costs and issued Circuit Court

proceedings against CD for the sum awarded on taxation. Judgment for the sum of

€29,243.11, plus costs was awarded in the Circuit Court in July 2015.

64. By letter dated 29th July, 2015, Ms. Carmody wrote to Mr. O’Reilly inquiring whether he

continued to require the intervention of the Society.

65. By letter to Ms. Carmody dated 27th August, 2015, Mr. O'Reilly enclosed a copy of a

Circuit Court judgment (dated 31st July, 2015) for €29,243.11, together with costs

against Mr. CD, in favour of Lawlor O’Reilly & Co. Mr. O’Reilly informed Ms. Carmody that

the matters of the complaint against the applicant continued. The applicant refers to this

letter as the "second complaint". On the facts, the court is satisfied that it is a

continuation of the original complaint made the 21st October 2014, which seeks to have

the outstanding complaints resolved.

66. By letter dated 7th September, 2015, Ms. Carmody wrote to the applicant enclosing a

copy of Mr. O'Reilly's letter dated 27th August, 2015. She sought a response to the issues

raised by Mr. O'Reilly within ten working days.

67. By letter dated 9th September, 2015, the applicant informed Ms. Carmody that he had

difficulty understanding the complaint. He asked for a summary of the complaint and for

confirmation whether the respondent endorsed the complaints and whether the applicant

was required to answer the complaints. The applicant asked that the Law Society cite the

basis upon which it deemed the complaint admissible. This response echoes the approach

taken by the applicant to the Madden complaint, set out above. As in the Madden

complaint, the applicant provided no substantive response to the complaints made

against him.

68. By letter dated 11th September, 2015, the applicant served a "Notice for Information", in

precisely the same terms and on precisely the same basis, as that which he served in

response to the Madden complaint. The court rejects his entitlement to the information

sought, in the context of the investigation of a complaint, for the reasons set out in the

Madden complaint. The provisions of Directive 2012/13/EU of the European Parliament

and of the Council of 22nd May, 2012 on the right to information in criminal proceedings,

have no relevance or application to the preliminary investigation of a complaint made to

the Law Society.

S. 10 Notice

Page 19 ⇓

69. By letter dated 16 September, 2015, Ms. Carmody acknowledged receipt of the

applicant's letters of 9th and 11th September, 2015 and advised the applicant that she

did not believe that Directive 2012/13/EU applied to the respondent's investigations and

asked him if he disagreed to set out the legal basis for that belief. Ms. Carmody attached

a notice pursuant to s. 10 of the Solicitors (Amendment) Act: -

"YOU ARE HEREBY REQUIRED pursuant to Section 10 of the Solicitors'

(Amendment) Act, 1994, within 10 days of the date of service of this Notice, to

deliver to Eleanor Carmody Solicitor at the Law Society of Ireland, Blackhall Place,

Dublin 7 the following documents:

all documents in your possession, under your control or within the procurement of

you or your firm in connection with the matters relating to the complaint of Niall

O'Reilly (whether or not they relate also to other matters).”

70. Ms, Carmody enclosed a copy of the Law Society file in relation to the matter, pursuant to

the applicant's request for copies of documents.

71. On the 1st October 2015, the applicant filed a complaint on behalf of his client CD against

Mr. O’Reilly with the Law Society. That complaint was rejected for stated reasons on the

13th October 2015.

72. There are some factual differences in the progress of the investigation of Mr. O’Reilly’s

complaint to that of Mr. Madden, but none of those differences affect the issues of law

which arise in these complaints. Lawyers for Mr. McGarr deployed exactly the same

strategy in resisting the Law Society’s s. 10 Notice in Mr. O’Reilly’s complaint as they did

in Mr. Madden’s. They challenged the admissibility of the complaint; they professed

confusion as to the content of the complaint; they claimed entitlement to responses to a

list of complex questions pursuant to Directive 2012/13/EC to allow them consider judicial

review of a ‘decision’ to ‘allege’ misconduct; they alleged misuse of the complaint

procedure to advance a solicitor’s claims against his former client; they invoked the

client’s privacy and property rights and they contended that the s. 10 Notice was not in

conformity with the statute. .

73. As in the complaint of Mr. Madden, on 6th October, 2015, the applicant issued a notice of

motion seeking an order directing the respondent to vary or withdraw its s. 10 notice

relating to the file of Mr. CD.

74. On 6th November, 2015, the respondent countered with a motion seeking an order

pursuant to s. 11(4) dismissing the applicant's application to vary or withdraw the s.10

notice and seeking an Order compelling the applicant to comply with the s. 10 Notice.

The issues were joined and the applications were listed for hearing on the 7th April 2016.

2016

75. On the 30th March 2016, a week before the scheduled hearings, the applicant sent to the

respondent a substantive and detailed response to the complaint of misconduct. The

letter identifies the misconduct complained of and responds to them under headings

Page 20 ⇓

‘Failure to comply with paragraph 2 of the undertaking’, ‘Failure to comply with paragraph

3 of the undertaking ,‘ ‘Failure to account for costs’ In addition, the applicant provided

some further information which he considered relevant to the complaint. There is no

information in the letter of the 30th March 2016, which was not available to the applicant

on the 7th September 2015, when he was first invited to respond to the complaint of Mr.

O’Reilly. Had he chosen to do so, he could have responded in those terms in September

2015. Instead, he embarked on a series of misconceived legal stratagems to avoid

responding to the complaints in accordance with the process set out in the ‘Resolving

Complaints’ Procedure adopted by the Law Society. At the time of the hearing, the

belated response of the applicant had been sent to the complainant and his response was

awaited

Submissions on behalf of the applicant

76. For the reasons set out above and below, the court is not persuaded of the merits of the

applicant’s arguments and submissions. However, for the sake of completeness, the

court sets out hereunder the main submissions of the applicant.

1. Respondent’s Awareness of the Applicant’s response to the complaints

77. In respect of the Madden complaint, the applicant submits that the Law Society asked if

costs had been recovered in the case of Mr. AB. and it was informed that they had not

been. The applicant therefore submits that Ms. Carmody and the Law Society knew the

answer to what they professed to be investigating as of 25th February, 2016, when a

detailed response was furnished in a letter from the solicitors for the applicant.

78. In relation to the O’Reilly complaint, the applicant submits that he delivered a detailed

written complaint on behalf of Mr. CD to Ms. Eleanor Carmody on 1st October, 2015. That

complaint recited the history of the applicant's role and actions particularly with regard to

party/party costs recovered in Mr. H's personal injury action. The applicant submits that

the letter of P.G. McMahon Solicitors dated 30th March, 2016, is a compressed or

summarised version of that complaint of Mr. H. The applicant submits that consequently,

the respondent knew the import, in great detail, of the response set out in the P.G.

McMahon letter dated 30th March, 2016, as of 1st October, 2015. The applicant submits

that he requested that the respondent withdraw its s. 10 notice after receiving all

pertinent information and/or replies under s.11 of the applicant's motions of 6th October,

2015, and before the respondent's "retaliatory motions" were served on the 6th

November 2015.

2. Costs belong to the client.

79. The applicant submits that costs received by solicitors are 'client moneys". I-le refers to

Statutory Instrument No. 516/2014 — Solicitors Account Regulations 2014 which also

reiterates the obligation on a solicitor to lodge a client's moneys into the solicitors client

account. The applicant further refers to s68(3) of the Solicitors (Amendment) Act 1994

which provides as follows:-

"A solicitor shall not deduct or appropriate any amount in respect of all or any part

of his charges from the amount of any damages or other moneys that become

Page 21 ⇓

payable to a client of that solicitor arising out of any contentious business carried

out on behalf of that client by that solicitor.

80. In relation to the payment of solicitors' costs, the applicant submits that fees may be

settled between the client and the solicitor and paid to the solicitor by the client or, in

default of agreement, be taxed and the sums due under the Certificate of Taxation may

then be paid to the solicitor.

81. The applicant submits, referring to O’Callaghan, The Law on Solicitors in Ireland [2000] at

p. 169, that a solicitor has a common law lien in respect of his costs over client's funds in

the solicitor's possession. Referring to M’Cormack v. Ross [1894] 2 QB 545; Ex p Bryant

(1815) Ch. 49, the applicant submits that the lien accrues in respect of the solicitor's

costs. The applicant submits that s.68(3) of the Solicitors (Amendment) Act 1994 has no

effect on the solicitor's particular lien; that s.68(3) refers to "appropriation" and not to

the existence of a lien. The applicant submits that a solicitor did not have a right to seek

immediate payment from funds in the solicitor's possession prior to s.3 of the Solicitors

(Amendment) Act 1994. The applicant further submits that without the agreement of a

client, a solicitor has no right to pay client's moneys to another solicitor or to use those

moneys as security for the claims of that other solicitor.

3. Directive 2012/13/EC

82. The applicant submits that as the time for transposition by Ireland of Directive

2012/13/EC into domestic law has expired, the Directive consequently now has direct

effect against Ireland and emanations of the State. The applicant submits that the Law

Society at least insofar as it acts under a power granted to it by statute, is an emanation

of the state. The applicant submits that Article 2(2) of Directive 2012/13/EC defines

"criminal" to the effect that a matter is criminal if it implies the consideration of the

imposition of a sanction. The applicant further submits that a solicitor who is found guilty

of misconduct is open to sanctions of considerable weight either imposed by the Law

Society, Solicitors Disciplinary Tribunal or the Court; that a solicitor who fails to comply in

a timely fashion with a s.10 notice from the Law Society commits a criminal offence. The

applicant therefore submits that Directive 2012/13/EU applies to the circumstances

prevailing on the service of the applicants notice for information and that the Law Society

wrongfully declined to entertain the notice for information.

4. S. 10 is limited to Client complaints

83. The applicant submits that s.10(1) of the Solicitors (Amendment) Act 1994 can produce

more than one meaning depending on whether it is read in context or not. The applicant

submits that the phrase "any complaint" is conditioned by three conditions in

subparagraphs (a), (b) and (c) of s. 10(1) (and the terms of s.24 of the Solicitors

(Amendment) Act 1994). The applicant submits that (b) and (c) imply that the phrase

"complaint" connotes a complaint by or on behalf of a client of the solicitor the subject of

the complaint; condition (a) does not, with the exception of its context, carry the same

connotation. The applicant submits that the context includes conditions (b) and (c) but it

also includes s.8 and s.9 of the Act, each of which commences with the words "Where the

Page 22 ⇓

Society receives a complaint from a client of a solicitor...”. The applicant submits that the

context also includes the provisions of s. 10(2) (referring to s.8(l)(e) which reads:-

"direct the solicitor to transfer any documents relating to the subject matter of the

complaint (but not otherwise) to another solicitor nominated by the client or by the

Society with the consent of the client, subject to such terms and conditions as the

Society may deem appropriate having regard to the circumstances, including the

existence of any right to possession or retention of such documents or any of them

vested in the first-mentioned solicitor or in any other person.”

84. The applicant submits that the phrase "nominated by the client" indicates that the

documents in issue belong to the client, albeit there may be claims (from others) extant

in relation to such documents. The applicant submits that ss.8 and 9 of the Solicitors

(Amendment) Act 1994 arguably connote at least an implied consent, by the complainant

client to the Law Society taking possession of the client's document under s.10(1) of the

Act. The applicant submits that s. 10(1) on its express terms does not imply any such

consent, or even knowledge, on the part of the client whose document it is.

5. Interference with clients’ rights to privacy

85. The applicant submits that the s. 10 notice is undoubtedly an interference with the right

to respect for a person's private life provided by Article 8 of the European Convention of

Human Rights (as applied by the European Convention on Human Rights Act 2003) due to

the sensitivity of clients' files in solicitors' offices. The applicant further submits that most

likely preceding steps, such as the decision to serve a s. 10 notice and its actual service

also constitute such an interference. Article 8 states as follows:-

"ARTICLE 8

Right to respect for private and family life

l. Everyone has the right to respect for his private and family life, his home and

his correspondence.

2. There shall be no interference by a public authority with the exercise of this

right except such as is in accordance with the law and is necessary in a

democratic society in the interests of national security, public safety or the

economic wellbeing of the country, for the prevention o/ disorder or crime,

for the protection of health or morals, or for the protection of the rights and

freedoms of others.”

86. The applicant submits that when a s.10 notice is issued, it is issued in accordance with

law; that the objective of issuing such a notice must be shown to be within the scope of

the legitimate aims referred to in para.2 of Article 8, and that the burden of proof lies on

the respondent in this regard; and that the phrase "necessary in a democratic society" is

understood to mean that such will be satisfied if it answers a “pressing social need" and if

the interference is proportionate to the aim pursued (the applicant cites Meadows v.

Minister for Justice, Equality and Law Reform [2010] IESC 3 at para.51).

Page 23 ⇓

87. The applicant submits that with reference to the constituent elements in Article 8, those

referable to necessity and proportionality are relevant in the instant case. In determining

whether there has been interference, the applicant submits that the regulatory framework

within which the measure has been established and operates will be assessed by asking

questions such as: is the framework procedure sufficient to afford true respect to the

interests safeguarded by the Article?; is the decision making process fair in such a way as

to respect that right?; has the affected person an opportunity to have any relevant and

weighty arguable issues tested before an independent tribunal?; has that person an

opportunity to have such an issue considered against the measure to determine its

proportionality? Where any of these requirements are absent, the applicant submits that

it may be considered that the safeguards necessarily attendant on Article 8 for the

purposes of its vindication have not been satisfied and a finding of violation should be

follow.

88. The applicant submits that the suggested procedural safeguard applying is the issuing, by

the affected solicitor, of a motion under s.11 and this alone indicates that it is intended to

address procedural and factual matters, including the compliance or otherwise of the

procedural framework.

89. The applicant submits that the issuing of the s. 10 notice took no account of the fact

that:-

a. that the subject of the notice were the documents of a client;

b. the client was not on notice of the decision to issue the notice or of its issue;

c. the client had not given an express or implied consent to the issue of the notice;

d. the notice followed on complaints from a former solicitor of the client with whom

the client had been and was in dispute about fees etc. (in both complaint cases).

e. the notice was calculated to advance the interests of that solicitor and not the

client;

the Law Society has no jurisdiction over clients of solicitors or over the property of

those clients;

90. The applicant submits that the decision of the Law Society to issue the s. 10 notice is a

violation of Article 8 and a breach of s. 3 (l) of the European Convention on Human Rights

Act 2003.

91. The applicant submits that client documents are the property of clients and consequently,

the respondent's decision was a breach of Article I of Protocol I of the European

Convention on Human Rights (as applied by the European Convention on Human Rights

Act 2003).

Page 24 ⇓

92. In addition, the applicant submits that pursuant to the right to privacy under Article

40.3.1 of the Constitution, any administrative action, even based on a statutory provision,

must take into account the constitutional rights of the clients whose documents are the

subject of a s. 10 request. The applicant submits that the Law Society failed to do this,

evidenced by its failure to make the clients notice parties to the respective requests. The

applicant refers to Denham C.J. in Meadows v. Minister for Justice, Equality and Law

Reform [2010] IESC 3 at para.40:-

"The term "unreasonable" is the key, it is broader and essentially the basis of this

type of scrutiny. A decision which interferes with constitutional rights, if it is to be

considered reasonable, should be proportionate. If such an approach is not taken

then the remedy may not be effective. This is relevant especially when access to

the courts has been limited by the legislature."

93. The applicant refers to the judgment of Fennelly J. in the same case:-

"Most recently, Geoghegan J. , writing for a unanimous Supreme Court in Clinton v.

An Bord Pleanála [2007] 4 1.R. 701 at 723, a case concerning [he compulsory

acquisition of land said:

"It is axiomatic that the making and confirming of a compulsory purchase

order (CPO) to acquire a person's land entails an invasion of his

constitutionally protected property rights. The power conferred on an

administrative body such as a local authority or An Bord Pleanála to

compulsorily acquire land must be exercised in accordance with the

requirements of the Constitution, including respecting the property rights of

the affected landowner (East Donegal Co-Operative v. The Attorney General

[1970] I.R. 317). Any decisions of such bodies are subject to judicial review.

It would insufficiently protect constitutional rights if the court, hearing the

judicial review application, merely had to be satisfied that the decision was

not irrational or was not contrary to fundamental reason and common sense.

94. The applicant submits that these authorities show that the respondent, in taking no

account of the constitutional and Convention rights to privacy and property of the

respective clients, breached those rights, and the decision to issue the s. 10 notice was

not in accordance with the Constitution or Convention.

95. The applicant submits that the European Convention on Human Rights Act 2003 requires

the courts shall "in so far as is possible" interpret and apply any legislative measure or

rule of law in a manner compatible with the State's obligations under the Convention

provisions. The applicant refers to Barrett J. in CRH v. ICPC [2016] IEHC 162 at p.27:-

"the Court needs to be careful not to be induced into arriving at a Convention

inspired interpretation of legislation that is contra legem, i.e. an interpretation that

would contradict or defy what the Act of 2014 provides"

Page 25 ⇓

96. The applicant submits that the Charter of Fundamental Rights of the EU, although similar

in content to the ECHR, places a more onerous duty on domestic courts as there is no "in

so far as is possible" proviso. The applicant submits, therefore, that where a domestic law

is incapable of being interpreted in line with the Charter, it must be disapplied. The

applicant submits that accordingly, Barrett J.'s concerns in respect of a contra legem

application of the ECHR are not applicable to Charter rights. The applicant further submits

that this requirement to the Charter applies, in principle at least, even to provisions of

Bunreacht na h Eireann, referring to Melk & Abdeli C-188/10 & C-189/10 in support of

this:-

"The Court has already held that a national court which is called upon, within the

exercise of its jurisdiction, to apply provisions of EU law is under a duty to give full

effect to those provisions, if necessary refusing of its own motion to apply any

conflicting provision of national legislation, even if adopted subsequently, and it is

not necessary for the court to request or await the prior setting aside of such

provision by legislative or other constitutional means

97. The applicant submits that the Charter is an instrument of EU law, and therefore does not

apply in all domestic cases, only those which are within the scope of EU law. The

applicant submits that the Court of Justice has interpreted this scope more widely than

simply the implementation of EU legislation; that it is settled jurisprudent that a member

state is "implementing" EU law even where it is availing of an exception provided for by

EU law (Familiapress C-368/95, ERT C-260/89). The applicant submits that it follows that

even when departing from EU law (providing such departure is mandated by EU law) a

member state must respect the requirements of such general principles of EU law and in

particular the Charter, citing Pfleger C390/12 as an example:-

"The use by a Member State of exceptions provided for by EU law in order to justify

an obstruction of a fundamental freedom guaranteed by the Treaty must, therefore,

be regarded, as the Advocate General states in point 46 of her Opinion, as

'implementing Union law' within the meaning of Article 51 (l) of the Charter."

98. The applicant submits that although s. 10 is not an implementation of EU law in the sense

that it does not owe its existence to a "parent" EU directive, it is nonetheless within the

scope of EU law insofar as it derogates from a Directive of the EU, namely 95/46/EC on

Data Protection. Article 13 of the Directive provides:-

"1. Member States may adopt legislative measures to restrict the scope of the

obligations and rights provided for in Articles 6(1), 10, Il (l), 12 and 21 when such

a restriction constitutes a necessary measure to safeguard:

(a) national security;

(b) defence;

Page 26 ⇓

(d) the prevention, investigation, detection and prosecution of criminal offences,

or of breaches of ethics for regulated professions;

(e) an important economic or financial interest of a Member State or of the

European Union, including monetary, budgetary and taxation matters;

(f) a monitoring, inspection or regulatory function connected, even occasionally,

with the exercise of official authority in cases referred to in (c), (d) and (e);

(g) the protection of the data subject or of the rights and freedoms of others. "

99. Article 6(1) provides as follows:

"Member States shall provide that personal data must be:

a. Processed fairly and lawfully;

b. collected for specified, explicit and legitimate purposes and not further processed in

a way incompatible with those purposes. Further processing of data for historical,

statistical or scientific purposes shall not be considered as incompatible provided

that Member States provided appropriate safeguards;

c. adequate, relevant and not excessive in relation to the purposes for which they are

collected and/or further processed;

d. accurate and, where necessary, kept up to date; every reasonable step must be

taken to ensure that data which are inaccurate or incomplete, having regard to the

purposes for which they were collected or for which they are further processed, are

erased or rectified;

e. kept in a form which permits identification of data subjects for no longer than is

necessary for the purposes for which the data were collected or for which they are

further processed. Member States shall lay down appropriate safeguards for

personal data stored for longer periods for historical, statistical or scientific use. "

100. The applicant submits that the Court of Justice has held (C 201/14) that (subject to the

exceptions permitted under Article 13) all processing of personal data must comply, not

only with Article 6 but also with one of the criteria for making data processing legitimate

listed in Article 7:-

"Member States shall provide that personal data may be processed only if:

(a) the data subject has unambiguously given his consent, or

(b) processing is necessary for the performance of a contract to which the data subject

is party or in order to lake steps at the request of the data subject prior to entering

into a contract, or

Page 27 ⇓

controller is subject, or

(d) processing is necessary in order to protect the vital interests of the data subject, or

(e) processing is necessary for the performance o/ a (ask carried out in the public

interest or in the exercise of official authority vested in the controller or in a third

party to whom the data are disclosed, or

(f) processing is necessary for the purposes of the legitimate interests pursued by the

controller or by the third party or parties to whom the data are disclosed, except

where such interests are overridden by the interests or fundamental rights and

freedoms of the data subject which require protection under Article 1(1). "

101. The applicant submits that a solicitor's file is the personal data of a client; the solicitor, in

holding the file, is a "data controller"; the client is the "data subject" and the act of

handing over or providing a copy of the file to the Law Society is an act of data

processing. The applicant submits that under the terms of the Directive, the transfer of

documents envisaged by the s. 10 procedure would not be permitted were it not for the

derogations allowed under Article 13.1.

102. The applicant submits that accordingly, s. 10 is measure within the meaning of Article

13.1(d) and is therefore a Pfleger implementation of the Directive. The applicant further

submits that s. 10 comes within the measures contemplated by Article 7 which provides

that Member States shall provide that personal data may be processed only if, inter alia,

“processing is necessary for compliance with a legal obligation to which the controller is

subject".

103. The applicant submits that s. 10 is a clear instance of a legal obligation on a controller

(here, Mr. McGarr) to process personal data (his client's file) and that it follows, under the

principle outlined above, in Pfleger and other cases, that s. 10 comes within the scope of

EU law.

104. The applicant submits that this very question came before the Court of Justice in 2014, in

Bara v. Romania C 201/14 where a domestic legislative measure which allowed the

transfer of data between state agencies was challenged. The applicant submits that the

Court of Justice had no difficulty in treating the domestic measure as being within the

scope of EU law, holding that:-

"Directive 95/46 must be interpreted as precluding national measures, such as

those at issue in the main proceedings, which allow a public administrative body of

a Member State to Iransfer personal dala 10 another public administrative body and

their subsequent processing, without the data subjects having been informed of

that transfer or processing"

105. The applicant submits that the sole distinction between Bara and the operation of s. 10 is

that while Bara applied to the transfer of data between two public bodies, s. 10 involves a

Page 28 ⇓

transfer between a private body and a body acting on foot of a statutory power. The

applicant submits that the underlying principle is that the mere existence of a statutory

requirement cannot suffice to permit the transfer of data without, at the very least, the

data subjects having been informed of that transfer or processing.

106. The applicant submits that the Court of Justice might have gone further, the questions

submitted to the Court being related solely to the question of informing the data subject

prior to processing. Accordingly, the applicant submits that Bara was decided solely on

that basis, without regard having been had to the Charter; however, by coming within the

scope of EU law, the Romanian law in Bara was clearly within the scope of the Charter (as

was repeatedly emphasised in Pfleger) and accordingly, it follows that any law which

purports to require a processing of data must do so in a manner that respects the

Charter.

107. The applicant submits that the EU Charter, unlike the ECHR, contains a standalone right

to data protection. At Article 8:-

"1. Everyone has the right to protection of personal data concerning him or her

2. Such data must be processed fair for specified purposes and on the basis of the

consent of the person concerned or some other legitimate basis laid down by law.

Everyone has [he right of access to data which has been collected concerning him

or her, and the right to have it rectified.

3. Compliance with these rules shall be subject to control by an independent

authority.”

108. The applicant submits that it is clear that s. 10 purports to require the processing of

personal data and that under Bara, any such provision must require that a data subject

be informed of that transfer or processing, which s. 10 fails to do. The applicant submits

that in addition, s. 10 requires the processing of data which are "excessive in relation to

the purposes for which they are collected and/or further processed", as prohibited by

Article 6.1 (a) and by doing so infringes the data protection rights under Article 8.

109. The applicant submits that the privacy rights provided for under the Charter largely

mirror the ECR rights, with two distinctions. First, there is no discretion available to

national courts in applying it. Secondly, member states have no "margin of appreciation"

in compliance with its principles. Article 7 of the Charter provides:-

"Everyone has the right to respect for his or her private and family life, home and

communications.”

110. The applicant argues that this almost identically mirrors para.l of Article 8 of the ECHR

which reads:-

"1. Everyone has the right to respect for his private and family life, his home and

correspondence.”

Page 29 ⇓

111. The applicant submits that given this similarity and the fact that the ECHR already forms

a significant part of the "General Principles" of EU law, it is likely that any relevant ECHR

case law would be adopted by the Court of Justice in considering an Article 7 question.

112. In considering any legal measure in light of Charter rights, the applicant submits that the

Charter requires, at Article 52(1), that: -

"Any limitation on the exercise of the rights and freedoms recognised by this

Charter must be provided for by law and respect the essence of those rights and

freedoms. Subject to the principle of proportionality, limitations may be made only

if they are necessary and genuinely meet objectives of general interest recognised

by the Union or the need to protect the rights and freedoms of others".

113. The applicant submits that the "provided for by law" requirement applies to all Charter

rights and can be read in a similar manner to the "in accordance with the law"

requirement in respect of interference with Article 8 of the ECHR. The applicant refers to

Sunday Times v. UK 6538/74 European Court of Human Rights where it was held:-

"Firstly, the law must be adequately accessible: the citizen must be able to have an

indication that is adequate in the circumstances of the legal rules applicable to a

given case. Secondly, a norm cannot be regarded as a "law " unless it is formulated

with sufficient precision to enable the citizen to regulate his conduct: he must be

able — if need be with appropriate advice — to foresee, to a degree that is

reasonable in the circumstances, the consequences which a given action may

entail.”

6. Insufficiently defined offence

114. The applicant submits that the infringements of a client's privacy and data protection

rights envisaged by s. 10 are insufficiently provided for by law, in that their purpose is the

investigation of an insufficiently defined offence. The applicant submits that the definition

of "misconduct" in the 1960 Act is inadequate to the requirement of precision in that it

merely "includes" within its ambit the listed categories of conduct but does not limit itself

to them. The applicant further submits that subsection (d) [actually ("conduct tending to

bring the solicitors' profession into disrepute") which the applicant presumes is the

subsection under which the Society purports to act in this case is itself insufficiently

precise; "disrepute" is no more defined than "misconduct", it may even be less so.

115. The applicant further submits that the Law Society procedures in its investigations failed

to remedy this want of precision; the complaints were either vague and unparticularised

(Mr. O’Reilly) or unsustainable (Mr. Madden) and in each case the Law Society failed to

express to the applicant what it considered was the misconduct it was investigating. The

applicant argues that it was not sufficient for the Law Society to send on the unstructured

material of the complaining solicitor and that it was confusing in the absence of a

statement from the Law Society. In the case of Mr. Madden, Ms. Carmody enclosed a

copy of a page from "A Guide to Good Professional Conduct for Solicitors". The applicant

submits that it is not open to the Society to rely on this as a basis for fulfilment of the

Page 30 ⇓

Charter and Convention "provided for by/in accordance with the law" requirements, the

guide not being, under even the widest definitions, a law.

116. The applicant points the fact that s. 10(1) explicitly provides that a s. 10 notice may only

be issued where it appears to the Society that it is "necessary" to do so for the purpose of

investigating a complaint. The applicant submits that "necessity", particularly when read

in light of EU or ECHR law, means that the action in question is something more than

merely a desirable or convenient means to the relevant objective. Rather, to show

necessity, it must be shown that there was no other means of achieving the objective

sought, not merely that there was no other convenient means.

117. The applicant argues that the Society did not limit the documents sought by category but

rather made the most extensive demand permitted by the scope of s. 10, and that this

would not be permitted in, for example, a discovery request. The applicant further argues

that even if a s. 10 notice was necessary (which the applicant denies), the notice went

beyond what was necessary and no attempt was made to limit their terms to that which

was necessary.

118. The applicant refers CRH v. Competition and Consumer Protection Commission where

Barrett J. notes, at p.51, that had the Commission harvested a large amount of data, only

later sifting through it to determine what was relevant to its investigation and what was

not, that it would have acted in contravention of the ECHR Act and of Article 40.3 of the

Constitution: -

"when a warranted search occurs and information happens to be taken by the party

doing the search, here the Commission, 10 which it is not entitled by law, and when

the answer from the Commission 10 a person who complains that material has

been seized that ought never to have been seized is ‘We'll have a look at it anyway

and get back to you’, this Court must admit that it struggles to imagine a greater

invasion of privacy in the situation arising

[…]

the Commission appears to contend that... it is best placed to determine what

material is, to borrow from s. 37(1), 'information which may be required in relation

to a matter under investigation.’ But that is no answer to the complaint that what

the Commission holds in its hands, and wants to see, is material that it ought never

to have held and thus has no right to see "

7. Necessity for S.10 notice

The applicant submits that the Solicitor's Act clearly grants to the Law Society a number

of powers to obtain information from solicitors, that these powers are tiered and that a

more invasive procedure should not be used where a less invasive one would suffice. The

applicant submits that even if he did not adequately cooperate with the Society, which he

denies, neither the s. 10 notice of 16th September, 2015 nor any s.10 notice was

necessary.

Page 31 ⇓

119. The applicant states that in oral argument counsel for the Society sought to justify the

decision to issue a s. 10 notice by alleging that he would not abide by a s. 10A notice. The

applicant states that in response, he submits that this can be no means of assessing

necessity as a s. 10A notice is enforceable by the same means as a s. 10 notice and that

in any choice between tools having similar enforcement procedures, the Society must

choose the tool which is less invasive of the client's rights in his file. The applicant

submits that by choosing the more invasive of the two procedures, the Society went

beyond what was necessary to its purposes.

120. The applicant states that he understood that the Law Society was seeking the client's file

and not merely such documents which relate to costs, citing Mr. Carmody's letter of 7th

October, 2015 in which she wrote "I await receipt of your client's file" and the

respondent's outline submissions in support of this understanding. He alleges the Law

Society then resiled from that position in oral argument. The applicant submits that this

change of position is an acknowledgement that the s. 10 notices as originally formulated

went beyond that which was necessary for the investigation of the complaints at hand.

121. The applicant argues that certain privacy, data protection and privilege rights attach to a

solicitor's file given that it contains the private and personal information of a client and in

the case, as here, of a personal injury plaintiff, the file will include at least one medical

report. The applicant submits that the materials come within the definition of sensitive

personal data and therefore avail of a higher level of protection under data protection law,

although even at the ordinary standard, the obligation that no unnecessary processing

occurs applies.

122. Accordingly, the applicant submits that any statutory provision which purports to allow for

the infringement of these rights must be applied sparingly in order to ensure that the

rights of innocent third parties are not infringed beyond what is absolutely necessary in

pursuit of the relevant objective and that further, that objective must be a legitimate one

and the infringement of the rights must be proportionate to the relevant objective. The

applicant identifies that the aim here appears to be to aid a solicitor in the recovery of his

fees.

123. The applicant questions whether this is a legitimate aim which would justify the

infringement of a client's privacy and data protection rights. He expresses his doubt that

the power to demand access to a file is necessary or proportionate to the aim. He submits

that necessity and proportionality imply a minimalist approach to the infringement of

rights; that an infringement which is merely convenient may not be necessary and where

any other means to an objective is available, even where it is less convenient, it must be

preferred over a means which involves infringement of a fundamental right. The applicant

submits that, at the very least, a balancing exercise is required prior to choosing a means

to the relevant end and it is not clear if this ever took place. The applicant alleges that

Ms. Carmody states that the client has no rights which he says is an extraordinary

position for the respondent to take in respect of the clients of its members and that while

Page 32 ⇓

the Society may now seek to modify it, it is clear that it was the Society's position both at

the time of the issuing of the s. 10 notices and afterwards.

124. The applicant submits that any ruling in which a domestic court declines to apply EU law,

or in which a litigant is placed at a disadvantage or subjected to a costs penalty to which

he would not be subjected had he relied solely on domestic law must offend against both

the principle of procedural autonomy and the principle of equivalence and effectiveness.

Submissions on behalf of the respondent

125. The respondent submits that the applicant must show that the decision to issue a s. 10

notice was "vitiated by a serious and significant error or a series of such errors" per

Finnegan P. in Ulster Bank Investment Funds Ltd v. Financial Services Ombudsman

[2006] IESC 323.

126. The respondent submits that this test was endorsed by the High Court under s.11(1) of

the Act of 1994 in Fitzgibbon v. Law Society in the context of applications seeking to

rescind or vary determinations by the Society of inadequate professional services and

excessive fees under s.8 and s.9 of the Act of 1994 respectively. The decision of the High

Court was affirmed by the Supreme Court (Fitzgibbon v. Law Society [2014] IESC 48).

Denham C.J. (at pp.5-7) reviewed the authorities including Ulster Bank Investment Funds

Limited v. Financial Services Ombudsman in which

Finnegan P. held that:-

"To succeed on this appeal the Plaintiff must establish as a matter of probability

that, taking the adjudicative process as a whole, the decision reached was vitiated

by a serious and significant error or a series of such errors. In applying the test the

Court will have regard to the degree of expertise and specialist knowledge of the

Defendant. The deferential standard is that applied by Keane C,J. in Orange v. The

Director of Telecommunication Regulation & Anor...”

127. In his decision in Fitzgibbon, Clarke J. provided general observations on different forms of

appeals. In the case of an appeal against error he observed that:-

"6.1 The critical distinction between an appeal against error and either a de novo appeal

or an appeal on the record is that the appellate body does have regard to the

determination of the first instance body and must, in order for (he appeal to be

allowed, be satisfied that the first instance body was in some way in error.

6.2 The default position is, therefore, that appellate body considers the record of the

proceedings at first instance (and in the absence of any rules permitting further

evidence or materials to be produced only that record) and considers whether the

first instance body came to a correct or sustainable decision on the basis of that

record. So far as facts involving an assessment of credibility of witnesses are

concerned, then the role of the appellate body is to decide whether there was a

sufficient basis disclosed on the record for such findings of fact ..

Page 33 ⇓

6.3 In addition, and depending on the level of expertise in the area concerned which is

brought to bear by the first instance body (and indeed having regard to the extent

to which the appellate body may itself have expertise), the appellate body may

accord appropriate weight to any expert determinations of the first instance body.”

128. McKechnie J. also dismissed the appeal against the High Court ruling but reserved his

position as to whether the Ulster Bank test was the appropriate test in respect of the

statutory appeals in question. He was further of the view that the concept of affording

curial deference to statutory decision makers might on occasion require an inquiry into

the extent of deference to be given (to ascertain the existence and quality of the

expertise). He was however, as with the other judges of the Supreme Court, satisfied that

the Complaints and Client Relation Committee which had made the determinations in

question was due deference (which he found to be "a degree of appreciation").

129. The respondent distinguishes this application from Fitzgibbon, saying that no decision or

determination has yet been made on the complaint by the Complaints and Client

Relations Committee; the matter is still at initial investigatory stages by a solicitor in the

Complaints and Clients Section. The respondent submits that the investigation is at an

early information gathering stage without any adverse finding or determination having

been reached and that the Court consider only whether it was correct or sustainable for

the respondent to decide to issue a s. 10 notice; in particular that it ought not to vary or

rescind the notice in the absence of a finding that there was a serious and significant

error sufficient to vitiate the decision to issue a s. 10 notice.

130. The respondent submits that it is unnecessary and inappropriate for the Court to seek to

come to a conclusion on the substantive merits of the complaint by Mr. O’Reilly, no

decision or determination having been arrived at by the Society, provided that it is

satisfied that there was a sufficient basis from the information available to it for the

Society to take initial steps to investigate the matter. The respondent further submits that

there was clearly sufficient material in the complaint received for the Society to form the

view that such initial steps were required.

131. The respondent submits that its decision to issue a s. 10 notice was properly and correctly

made and that the applicant will be unable to show that the respondent acted in error, to

the standard posited in Fitzgibbon or at all.

132. The respondent notes that the applicant has not set out the grounds of his application in

his notice of motion as required by O.53 r. 16 of the Rules of the Superior Courts:

"(g) The evidence upon the hearing of any such appeal or application shall be given by

affidavit, except insofar as the President may direct oral evidence to be given. "

but responds to grounds raised in the applicant's affidavit of 6th October, 2015.

133. The respondent submits that the applicant's assertion that the complaint against him was

vague or not expressed with sufficient precision to enable him to respond cannot be

Page 34 ⇓

reasonably maintained. The respondent avers that the applicant was able to identify the

complaints in his letter of 2nd October, 2015 and that Mr. O’Reilly made the grounds of

his complaint perfectly clear. If there was any doubt, the respondent avers that the letter

of 27th August, 2015 specifically particularised the allegation that the applicant was

responsible to Lawlor O'Reilly & Co. for the appropriate share of party/party costs and

quoted the Society's Guide to Good Professional Conduct.

134. The respondent submits that the applicant's assertion that the Society is not investigating

a complaint of misconduct within the meaning of s.8(l) and that therefore the Respondent

cannot serve a production notice in relation to something which is not such a complaint"

,cannot be sustained. The respondent submits that the applicant appears to suggest that

the complaint was not of misconduct and that he mistakenly and incorrectly refers to

s.8(l) which relates to complaints of inadequate professional services.

135. The respondent submits that Mr. O’Reilly was clear that he was making a complaint of

misconduct and that the matters raised were clearly sufficient and proper grounds for the

Society to conduct an investigation; in circumstances where the applicant refused to

provide any substantive response to the complaint, it was necessary to issue a s. 10

notice. The respondent submits that it is patently incorrect to state that this was a

complaint under s.8 — which refers to complaints of inadequate professional services. The

respondent submits that Mr. O'Reilly evidently was neither a client complaining about the

provision of inadequate professional services nor someone complaining on behalf of a

client about professional services.

136. In response to the applicant's allegation that the s.10 notice imposed an impermissible

deadline as it demanded compliance within 10 days in circumstances where s. 11 permits

21 days to apply to court to vary or withdraw the notice, the respondent submits that

there is no merit to this ground nor error on the part of the Society. If the Court was to

find that it did amount to an error, the respondent submits that it could not reasonably be

suggested to be a serious or significant error sufficient to vitiate the issuing of the notice

and must be regarded as de minimis. The respondent submits that the Society did not

purport to curtail the applicant's right to apply to court and did not make any suggestion

that it would apply to court seeking to enforce the order until 23rd October, 2015, long

after the expiry of 21 days.

137. In relation to the applicant's contention that all the evidence which may be required to

support and investigate the complaint must be in the possession of Mr. O'Reilly and

available to the Society upon requesting same, the respondent submits that it is not clear

how this assertion can be made in circumstances where the complaint made is in relation

to the recovery of party/party costs (which Mr. O’Reilly would not have been involved in)

and an alleged failure on the part of the applicant to account to Mr. O’Reilly for those

costs and further is made in relation to an alleged breach on the part of the applicant of

his undertaking and his misleading the applicant in relation to the recovery of costs. The

respondent submits that these are matters which could only be responded to and

addressed by the applicant.

Page 35 ⇓

138. The respondent responds to the applicant's contention that the production notice

"impermissibly fails to address or provide for the rights of J H by omitting to make him a

notice party thereto", stating that Mr. O'Reilly's complaint was very clearly related to the

conduct of the applicant. Furthermore, the respondent states that no error whatsoever

can be identified by the applicant in the alleged failure of the Society to join Mr. H to the

notice - the Society having no statutory remit whatsoever to investigate complaints by

solicitors against clients (if one had been made, which it was not).

139. The respondent submits that privacy rights are not absolute and here any breach is

proportionate in the regulation of an important public interest, analogous to the

inspection of solicitors' accounts or medical institutions.

140. The respondent notes that although it is not specifically enumerated as one of the

grounds upon which relief is sought, the applicant also appears to rely on the fact that the

Society did not provide him with information sought by him on foot of his "Notice Seeking

Information" purportedly pursuant to the provisions of Directive 2012/13/EU on the right

to information in criminal proceedings.

141. The respondent submits that the Directive has not yet been transposed into Irish law. It

further submits that even if the Directive does have direct effect, its application, as is

apparent from the title and provisions of the Directive, is clearly restricted to criminal

proceedings and there is not provision for its application to regulatory and disciplinary

proceedings, and less still to the initial investigatory stage of regulatory proceedings. The

respondent refers to Article I which expressly states that the Directive lays down rules

concerning the right to information of suspects or accused persons "relating to their rights

in criminal proceedings and to the accusation against them". Article 2 provides that the

Directive applies from the time a person is “suspected or accused of having committed a

criminal offence". The respondent submits that even where an authority in a member

state which is not a court can impose a sanction for a minor offence, the Directive does

not apply to that authority but to proceedings before a court following an appeal of such

sanction (Article 2(2)). If the applicant were to be exposed to criminal proceedings, in

respect of an offence under s. 11(5) of the Act of 1994, proceedings would be instituted

in the District Court and it would be at that stage (in the context of a criminal

prosecution) that the possibility of invoking the Directive, if applicable, might arise.

142. The respondent submits that in any event there is no basis or reality to the applicant's

suggestion that he required more information from the Society as to the nature and detail

of the complaint or the investigation. The respondent states that the applicant had been

fully apprised of all information received by the Society in respect of the complaint and all

steps taken by the Society in its investigation. To the extent therefore that the applicant

may seek to suggest that there had been some absence of fairness by the Society in its

investigation, which had a bearing or could possibly have had any bearing on his decision

not to comply with the s. 10 notice, the respondent submits that there is no reasonable

basis for such argument.

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143. The respondent refers to O'Sullivan v. Law Society [2012] IESC 21, where the Supreme

Court in judicial review proceedings, considered and did not uphold various arguments as

to the absence of fair procedures in the Society's investigation of a complaint of

misconduct, ultimately, referred for inquiry before the Solicitors Disciplinary Tribunal, the

Society having formed the view that there was a prima facie case of misconduct. The

respondent refers to the observations of McKechnie J, at p.43 following a detailed review

of authorities:-

“74 ... Having considered these and other authorities, what can be said, at least with

some confidence, is that when determining if a right to fair procedures exists and (if

so) its scope, whether within a process which may have no direct legal effect or one

which is multi-tiered with some effect, a court is not bound by any rigid set of rules

but rather must apply fairness to an extent which is both appropriate and

responsive, to the individual occasion.”

144. The respondent submits that the applicant was properly and fairly treated as appropriate

to the very initial stages which the investigation was at, and should the investigation

proceed to a stage where the Complaints and Client Relations Committee might exercise

further powers available to the Society, he will have the fair procedures and protections

afforded him as are necessary, to ensure that the investigation continues to remain fair.

The respondent further submits that to impose a burden on the Society to respond to the

minutely detailed "Notice for Information" as served by the applicant in respect of the

complaints herein and in the form and manner specified would impose an impossibly

onerous burden on the Society in the discharge of its statutory functions to investigate

complaints and, more importantly, is neither required by law nor necessitated by the

requirements of fair procedures.

145. The respondent submits that the applicant's very belated substantive response to the

complaint, just over a week prior to the hearing date herein, without any explanation or

acknowledgement of the delay, clearly underlines that the applicant did understand and

did have sufficient information available to him to provide such a response, contrary to

his previous assertions. The respondent submits that that it also clearly demonstrates as

contended by Society, that the proceedings issued by the applicant seeking the variation

or withdrawal of the s. 10 notice were without merit and are purely for the purpose of

delay. The respondent submits that although this response has enabled the Society to

progress the investigation, it does not detract from the fact that the s. 10 notice was

properly and correctly issued due to the lack of engagement by the applicant.

146. The respondent submits that to allow the applicant avoid compliance with the s.10 notice

more than six months later would amount to a clear abuse of s. 11.

147. The respondent submits that the Court should dismiss the applicant's application.

Furthermore, in circumstances where the Society cannot yet say, contrary to what the

applicant asserts following his inordinately delayed response, that it will not require the

production of the documents, the Society seeks an order requiring the production of the

documents sought.

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Decision of the court

148. At all material times, the respondent Law Society, was the body statutorily charged with

the investigation and where appropriate the prosecution of complaints of misconduct

made against solicitors. s. 14 A of the Solicitors Amendment Act, as inserted by s. 40 of

the Civil Law (Miscellaneous) Act 2008 provides: -

“For the avoidance of doubt it is hereby declared that the power of the Society to

investigate alleged misconduct by a solicitor may be exercised whether or not the

Society receive a complaint in relation to the solicitor”.

149. The definition of misconduct provided for in the Solicitors (Amendment) Act 2002 includes

at s. 7 (e) “any other conduct tending to bring the solicitors' profession into disrepute”.

150. The respondents (Complaints about Solicitors) information booklet describes misconduct

in this context as: -

“Misconduct is defined in the Solicitors Acts. Examples of misconduct includeconflict of

interest, breach of an undertaking and failure to communicate”.

151. As we have seen the Law Society received two complaints of misconduct against Mr.

McGarr made by two separate solicitors. Both complaints relate to a failure to properly

account for fees potentially recovered by Mr. McGarr in respect of work done by the two

solicitors, on files which had been taken over by Mr. McGarr’s office, shortly prior to the

settlement of the client’s claims.

152. The complaints procedure at the material time was set out in the Law Society’s “Resolving

complaints” information booklet and it provides in relation to the complaints procedure as

follows: -

“On receipt of a complaint, the Complaints and Client Relations Section copies the

letter of complaint to the solicitor involved and asks for his/her views. Where

appropriate, this correspondence is copied to the managing partner of the solicitor’s

firm. If you receive a letter from the Complaints and Client Relations Section

informing you that you are the subject of a complaint, and asking for your

comments, it is in your own interest to respond promptly to the Society’s

correspondence, as in all likelihood the matter can be resolved to the satisfaction of

all concerned at this point. You should be as frank as possible with the Society, and

co-operate with the Society’s staff to have the matter resolved. If you believe the

complaint is totally unfounded, you are fully justified in setting out the reasons why

you believe your client has no cause for complaint. Whatever the circumstances,

reply as quickly as possible, bearing in mind that delays in responding to the

Society’s enquiries can exacerbate the position and make it more difficult to effect a

resolution.

When preparing a response, please remember that the Society will forward a copy

to the complainant. In this regard, it is important to note that the Society claims

privilege on correspondence relating to complaints. This is to protect both the

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complainant and the solicitor, so that both parties can communicate freely with the

society.

The Complaints and Client Relations Committee has made it clear that it will not

tolerate any failure by a solicitor to respond to the Society’s correspondence. If a

solicitor ignores the Society’s enquiries, the committee may refer the solicitor to the

Disciplinary Tribunal, notwithstanding the fact that it ultimately transpires that the

complaint has no substance.

If you have any difficulty about responding to a particular complaint, consult a

colleague. If you have particularly heavy commitments which make it impossible to

reply to the Society within the time requested, telephone the Complaints and Client

Relations Section and advise them of your difficulty.

If the Society’s correspondence is totally ignored, the following can occur:

– The service of a statutory notice under section 10 of the Solicitors

(Amendment) Act,1994 requiring the production of your file.

– A direct application to the President of the High Court under section 13 of the

Solicitors (Amendment) Act, 2002.

– A direction to make a contribution towards the costs incurred by the Society

as a result of failure to respond to the Society’s correspondence.

– A referral to the Disciplinary Tribunal, which could result in a finding of

professional misconduct.

– The attendance at your office of an authorised person under S.14 of the

Solicitors (Amendment) Act 1994”.

153. The one thing a solicitor must do upon receipt of a complaint, is to respond to that

complaint. That obligation arises both from the statute and the procedures adopted by the

Law Society to give effect to the statute. The response must be in a format that can be

published to the complainant. In the initial stages of the investigation of a complaint, the

Law Society acts as a ‘Go Between’ who facilitates the parties in communicating with each

other in an environment in which their communications are privileged. The process

encourages early resolution of complaints.

154. In purportedly responding to the complaint of Mr. Madden, the applicant sent a letter to

the Law Society in early September 2015, which he would not permit them to release to

the complainant. In the complaint of Mr. O’Reilly, he contends that the Law Society

already had all pertinent information because it was contained in a complaint that he had

lodged with the Law Society on behalf of his client, CD against Mr. O’Reilly. In neither

case, did he comply with the requirements of the complaints procedure, to respond to the

complaint in a format which could be forwarded to the complainant. That he was in a

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position to do so, is evidenced by the fact that shortly before the hearing of these

applications, he forwarded to the Law Society a detailed response to each complaint.

155. The fundamental error in Mr. McGarr’s approach to these complaints is his contention

that, what might be described as’ fair trial rights’, apply to the Law Society’s investigative

process. That is simply not so. While an investigation must of course be fair, and must be

conducted in accordance with any applicable procedures, it is not constrained by the rules

which apply to a trial. If fair trial rights were to be applied to all investigations, then the

Gardai could never ask for the assistance of the public in solving crime. We are all aware

of the existence of Confidential Garda Helplines. Undoubtedly, much of the information

passed to the Gardai on those Helplines would not be admissible in a trial because it is

hearsay. However, that hearsay can give rise to enquiries which do produce admissible

evidence which can be used at the trial of an accused. ‘Fair trial rights’ come into play

when a person is suspected or accused of an offence. Mr. McGarr does not currently have

that status. The process adopted by the Law Society in the initial investigation of a

complaint is to forward the complaint and any accompanying correspondence to the

person complained of and request a response. The court cannot discern any unfairness in

that approach. In the instant cases, two solicitors complained of misconduct by Mr.

McGarr in failing to account for costs in one case, and in failing to honour undertakings in

another. The complaints called for a response. Under the Law Society procedures Mr.

McGarr had a duty and obligation to respond and he declined to do so.

156. On receipt of the complaints from the Law Society, instead of responding, Mr. McGarr

adopted the position of an accused. He maintained a failure to understand the complaints

being made and challenged their admissibility. He made no response to the substance of

either complaint. When pressed in September 2015 for a substantive reply, he served

what he termed a’ notice for information’ in respect of each complaint. This notice was

purportedly issued pursuant to the provisions of Directive 2012/13/EC. This Directive has

no application to investigations being conducted by the Law Society into complaints of

misconduct, which may or may not, ultimately lead to proceedings before the Complaints

and Client Relations Committee of the Law Society. Mr. McGarr is not at present,

suspected, accused nor charged with any criminal offence. If, and when he is so

suspected, accused or charged with a criminal offence, he will be entitled, if necessary, to

avail of the provisions of the Directive. While the court is satisfied that the provisions of

the Directive are of direct effect, they have absolutely no application to Mr. McGarr’s

current position as a person subject to a complaint of misconduct, before the Law Society.

157. The service in each case, of a detailed and complex ‘notice for information’ which runs to

two pages and contains in total, 8 queries with 20 sub-headings, was a powerful indicator

of Mr. McGarr’s unwillingness to engage with the Law Society’s complaint process. Faced

with such an approach, and having regard to Mr McGarr’s earlier positions of challenging

the admissibility of the complaints and professing confusion as to the complaints being

made against him, the Complaints and Client Relation Section of the Law Society were

perfectly entitled to deploy their statutory powers to obtain the information necessary to

allow for an adjudication on the complaints made.

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158. The statute confers a number of investigative powers to ensure the cooperation of a

solicitor in the investigation of a complaint. In addition to serving a notice under s. 10,

these include application to the President of the High Court for an order compelling the

solicitor to respond appropriately, within a specified time, to the Law Society’s

correspondence, or to attend a meeting convened by the Society at which the complaint

could be considered; or the attendance at his office of an authorised person appointed

pursuant to s. 14 of the Solicitors (Amendment) Act 1994 for the purpose of inspection of

specified documents or categories of documents in the possession of, or under the control

of the solicitor.

159. The Law Society, in the court’s view, used the least invasive of its investigative powers

and served in each case, a statutory notice under s. 10 of the Solicitors (Amendment)

Act, 1994. The behaviour and attitude of Mr. McGarr in failing to respond to the

complaints made, rendered the service of such a notice necessary. In each case the

Notice required Mr McGarr to deliver to the Law Society “all documents in your

possession, under your control or within the procurement of you or your firm in

connection with the matters relating to the complaint of Thomas Madden/Niall O’Reilly

(whether or not they relate also to other matters).” Neither notice required the production

of the relevant clients’ file. The conduct complained of was Mr McGarr’s. The documents

sought were Mr. McGarr’s documents in respect of costs claimed and/or received by him.

While costs recovered may be the property of the client, the Bill of Costs and any

correspondence relating to that Bill, are Mr. McGarr’s. Rather than providing a substantive

response to the complaints or furnishing documents in relation to the issue of costs, Mr.

McGarr brought these two motions pursuant to s. 11(1) of the Solicitors (Amendment) Act

1994.

160. The court finds that the applicant’s argument that the S.10 Notice infringes his clients’

privacy rights, and that as a minimum, each of them should be made a notice party to the

S.10 notice, is contrived and, in common with other arguments identified earlier in this

judgment, is based on a false premise. In order to set up the argument, the applicant

averred in each case that the documents sought in the S.10 Notice ‘must include the file

of A.B./CD (which is his property)’. As the court has already held, that is not so. The

documents sought are the applicant’s documents in relation to costs, not his clients’ files.

Unfortunately, the respondent gave some air to this argument by referring in subsequent

correspondence and in its affidavits to ‘production of the file’. This may have arisen

because the preponderance of complaints coming before the Complaint and Client

Relations Section of the Law Society are from solicitor’s clients, and indeed the procedure

set out at para. 147 above, specifically refers to a complaint from ‘your client’, so that in

those cases where a client is the complainant, it would be normal that a S.10 would seek

production of the client’s file and, as a consequence, that term may have slipped into the

correspondence and the affidavits. Alternatively, the reference to ‘file’ in the

correspondence and affidavits may in fact refer to the applicant’s file in relation to his

costs. Whatever the explanation, the court is clear that the actual S. 10 notice does not

seek production of either client’s file. Whether, and to what extent, (if any), the Law

Society’s statutory power to require the production of client’s files, is affected by

Page 41 ⇓

European law and in particular GDPR, falls to be decided in an appropriate case. This is

not that case. Finally, on this aspect of the application, the court observes that while

purportedly protecting his clients’ privacy rights, the applicant repeatedly identified and

named them throughout his application. It is the court which has decided to anonymise

them.

Conclusion

161. The Applicant, Mr. McGarr, as a solicitor, has a duty and obligation to respond to

complaints sent to him by the Complaint and Client Relations Section of the Law Society.

Furthermore, his obligation is, to do so in a format which can be furnished to the

complainant. Mr. McGarr failed to do this. Instead, he deployed various misconceived

legal stratagems, to avoid his obligation. The court is satisfied, for the reasons set out in

this judgment, that his application for an order, directing the respondent to vary or

withdraw its S. 10 notice, is also misconceived and must fail.

If necessary, the court will make an order pursuant to S. 11(4) of the Solicitors

(Amendment) Act 1994, directing the applicant to produce to any person appointed by

the Law Society all documents relating to the complaints under investigation by the Law

Society.

Result: The applicant's claim was adjudged to be misconceived