High Court of Ireland Decisions

You are here: BAILII >> Databases >> High Court of Ireland Decisions >> Coleman v The Law Society of Ireland (Approved) [2020] IEHC 162 (07 April 2020)
URL: http://www.bailii.org/ie/cases/IEHC/2020/2020IEHC162.html
Cite as: [2020] IEHC 162

[New search] [Printable PDF version] [Help]

Page 1 ⇓

THE HIGH COURT

[2020] IEHC 162

2019 No. 51 SA

2019 No. 52 SA

IN THE MATTER OF SECTION 7(13) OF THE SOLICITORS (AMENDMENT) ACT 1960 (AS

AMENDED)

AND IN THE MATTER OF AN INTENDED APPEAL

BETWEEN

DANIEL COLEMAN

APPLICANT/APPELLANT

AND

THE LAW SOCIETY OF IRELAND

RESPONDENT

JUDGMENT of Mr. Justice Garrett Simons delivered on 7 April 2020

INTRODUCTION

1. This matter comes before the High Court by way of an application for an extension of time

within which to bring an appeal. The application is brought by a solicitor, Mr Daniel

Coleman (“the Solicitor”), against whom findings of professional misconduct were made

by the Solicitors Disciplinary Tribunal. The Solicitor now wishes to appeal those findings

to the High Court. The time-limit prescribed for the bringing of an appeal has long since

expired. The High Court does, however, have a discretion to extend time having regard

to all of the circumstances of the case.

2. The extraordinary feature of the present case is the inordinate length of time which has

elapsed since the making of the impugned decisions of the Disciplinary Tribunal. The two

decisions which the Solicitor seeks to appeal were made a decade ago, in the first quarter

of 2010. Yet, the motions seeking an extension of time only issued on 17 May 2019. It is

submitted on behalf of the Solicitor that most of the delay is referable to the period of

time which it took for a separate appeal, which the solicitor had taken to the Supreme

Court, to be heard and determined. This appeal was not finalised until 1 May 2019. It is

said that there has been no “culpable” delay on the part of the Solicitor.

3. It has been conceded that the Solicitor had not formed an intention to appeal within the

original twenty-one day period, and that the failure to bring an appeal within time had not

been the result of any mistake on the part of the Solicitor. Counsel submits, however,

that the principal consideration for the court in determining whether to grant an extension

of time should be the strength of the intended grounds of appeal. The very recent

judgment of the Supreme Court in Seniors Money Mortgages (Ireland) DAC v. Gately

[2020] IESC 3 is cited in this regard.

PROCEDURAL HISTORY

4. To assist the reader in understanding the issues which arise on this application for an

extension of time to appeal, it is necessary first to explain the nature of the appeal which

the Solicitor now wishes to pursue. (A fuller explanation will be provided at paragraphs

36 et seq. below). In brief outline, there are two options open to a solicitor against whom

findings of misconduct have been made, and in respect of whom the Law Society is

seeking a “strike off” order. First, the solicitor may choose simply to make submissions in

Page 2 ⇓

response to the formal application which the Law Society must make to the High Court

seeking an order striking the solicitor’s name off the Roll of Solicitors. Such submissions

will, generally, be confined to the question of whether a “strike off” order is an

appropriate and proportionate sanction, but, as will be explained presently, can also be

directed to the question of whether the findings of misconduct are legally sustainable.

Secondly, the solicitor may choose, instead, to invoke their statutory right of appeal

against the decision of the Disciplinary Tribunal. Such an appeal will be by way of a full

rehearing (unless the parties otherwise agree, and the High Court so directs).

5. On the facts of the present case, findings of misconduct were made against the Solicitor

by the Disciplinary Tribunal following two hearings in February 2010, and two reports

recommending that his name be struck off the Roll of Solicitors were then submitted to

the High Court in March 2010. The Solicitor did not exercise his statutory right of appeal

against the decisions of the Disciplinary Tribunal. The matter thus came before the High

Court solely on the basis of the Law Society’s application seeking inter alia an order

striking off the Solicitor, i.e. there was no parallel appeal by the Solicitor before the High

Court. The consequence of this is that the ambit of the submissions which the Solicitor

would have been entitled to make to the High Court were more limited than had he

brought an appeal.

6. When the matter appeared before the (then) President of the High Court (Kearns P.) on

26 July 2010, the Solicitor applied for an adjournment in order to instruct counsel. The

President refused the application for an adjournment, and, having heard submissions,

made an order striking the name of the Solicitor off the Roll of Solicitors. An order was

also made directing the Solicitor to pay the sum of €320,000 in restitution to St. Jarlath’s

Credit Union, Tuam.

7. The Solicitor then brought an appeal to the Supreme Court against the order striking him

off. This appeal was filed on 24 August 2010. (To avoid confusion, the reader should

bear in mind that the Supreme Court appeal is separate and distinct from the statutory

appeal which the Solicitor now wishes to bring to the High Court against the findings of

misconduct by the Disciplinary Tribunal).

8. The appeal to the Supreme Court had been made prior to the establishment of the Court

of Appeal, and at a time when the Supreme Court, being the only appellate court, had a

very heavy case load. The appeal was ultimately heard and determined in 2018. (The

order of the Supreme Court was perfected on 1 May 2019). The Solicitor has been

successful in his appeal, and the order striking his name from the Roll of Solicitors has

been vacated. The “strike off” application has been remitted to the High Court for

rehearing. See Law Society of Ireland v. Coleman [2018] IESC 80.

9. The Solicitor issued two notices of motion on 17 May 2019 seeking an extension of time

within which to bring an appeal to the High Court against the findings of misconduct of

the Disciplinary Tribunal. The application for an extension of time was listed for hearing

before the High Court together with the Law Society’s remitted application for an order

striking off the Solicitor.

Page 3 ⇓

10. Both matters came on for hearing before me in the first week of March 2020. It had been

agreed that the application for an extension of time would be heard first, and that the

court would deliver a written judgment on that application in advance of any judgment in

respect of the “strike off” application. It was further agreed that, to make efficient use of

court time, the two applications would be heard back-to-back in a single hearing

scheduled over three days. Put otherwise, rather than break off the hearing to prepare a

written judgment on the application for an extension of time to appeal, the court moved

directly to hearing the Law Society’s application. At the request of the parties, separate

judgments are to be delivered in respect of the two applications. This is to allow the

parties to consider their options following the delivery of the (first) judgment on the

application for an extension of time to appeal.

11. The intention had been that the hearing of both applications would be concluded before

the (first) judgment would be delivered. Unfortunately, matters were overtaken by

events, and, as a result of the restrictions on court sittings imposed as part of the

measures designed to contain the spread of the coronavirus disease, it was not possible

to complete the hearing of the second application. The parties subsequently agreed,

however, that the court should deliver its judgment on the extension of time application,

notwithstanding that the reply on behalf of the Solicitor has not yet been completed in the

“strike off” application.

DETAILED DISCUSSION

OVERVIEW OF DISCIPLINARY PROCEDURES

12. A decision to strike a solicitor’s name from the Roll of Solicitors involves the

administration of justice within the meaning of Article 34 of the Constitution of Ireland.

(See In re The Solicitors Act 1954 [1960] I.R. 239). For this reason, the final decision on

the imposition of such a sanction on a solicitor in disciplinary proceedings is exclusively a

matter for the High Court (rather than for the Disciplinary Tribunal). Save in

circumstances where the Disciplinary Tribunal propose to deal with a disciplinary breach

by the imposition of what might be described as “minor” sanctions under section 7(9) of

the Solicitors (Amendment) Act 1960, the Disciplinary Tribunal is required to bring the

matter before the High Court. More specifically, a report in prescribed form is to be

delivered to the President of the High Court by the Registrar of the Disciplinary Tribunal.

On the facts of the present case, the Disciplinary Tribunal had recommended that the

Solicitor’s name be struck off the Roll of Solicitors.

13. Thereafter, the Law Society is obliged to bring an application before the High Court

pursuant to section 8 of the Solicitors (Amendment) Act 1960. I will refer to this

application by the shorthand “the ‘strike off’ application”, in circumstances where that is

the actual order sought by the Law Society in this case. This shorthand would not be

appropriate in all cases, however, in that a section 8 application will not always seek a

“strike off” order, but might seek a lesser form of sanction instead.

14. The “strike off” application pursuant to section 8 of the Solicitors (Amendment) Act 1960

was the procedural mechanism by which the disciplinary proceedings against the Solicitor

had initially come before the High Court in July 2010.

Page 4 ⇓

15. There is, however, a second procedural mechanism by which disciplinary proceedings can

come before the High Court. More specifically, a respondent solicitor, against whom a

finding of misconduct has been made by the Disciplinary Tribunal, has a statutory right of

appeal to the High Court against that finding. The appeal is provided for under section

7(13) of the Solicitors (Amendment) Act 1960, as follows.

(13) A respondent solicitor may appeal to the High Court against a finding of misconduct

on his part by the Disciplinary Tribunal pursuant to subsection (3) of this section,

and the Court shall determine such appeal when it considers the report of the

Disciplinary Tribunal in accordance with the provisions of section 8 (as substituted

by the Solicitors (Amendment) Act, 1994) of this Act, or as part of its determination

of any appeal under subsection (11) of this section, as the case may be.

16. Such an appeal is to be by way of a full rehearing of the evidence laid before the

Disciplinary Tribunal. (This is so unless the respondent solicitor contends for, and the Law

Society concurs in, a less than full rehearing). The appeal is brought by notice of motion

returnable to the President of the High Court.

17. In practice, therefore, where a respondent solicitor has elected to exercise their right of

appeal, there will be two parallel motions before the High Court. First, a motion on behalf

of the Law Society seeking such order under section 8 of the Solicitors (Amendment) Act

1960 as may be deemed by the Law Society to be appropriate and reasonable having

regard to the report and recommendation of the Disciplinary Tribunal. Secondly, a

motion on behalf of the respondent solicitor grounding their appeal.

18. The sequencing of the two motions is regulated as follows by Order 53, rule 9(a) of the

Rules of the Superior Courts.

9.(a)(i) Where the respondent solicitor is appealing to the Court against such finding or

findings of misconduct on his or her part, the President shall not thereupon

enter upon a hearing of the motion of the Society but shall first direct that the

appeal shall proceed as a full rehearing of the evidence laid before the

Disciplinary Tribunal, unless a less than full rehearing is contended for by the

respondent solicitor and concurred in by the Society and (if applicable)

concurred in by any person other than the Society who made the application in

relation to the respondent solicitor to the Disciplinary Tribunal and unless

agreed to by the President.

(ii) Where an appeal before the President proceeds as provided for in sub-

paragraph (i) of this paragraph of this rule, the President shall thereafter

proceed to deal with the motion of the Society having regard to the outcome

of such appeal.

19. As appears, it is expressly provided that the respondent solicitor’s appeal shall proceed

first, ahead of the Law Society’s application. The Law Society’s application will then be

dealt with having regard to the outcome of the appeal.

Page 5 ⇓

20. The interaction between the two types of motions, i.e. the appeal and the section 8

application, has recently been considered by the Court of Appeal in Law Society of Ireland

v. O’Sullivan [2018] IECA 228. In particular, the Court of Appeal addressed the

implications of a respondent solicitor having failed to bring an appeal.

21. The issue is first addressed in the judgment as follows (at paragraph 10).

“At this stage, I should say that Mr O’Sullivan did not avail of his statutory right

of appeal to the High Court against the Tribunal’s findings, as provided for in s.

7(13) of the 1960 Act, as substituted by s. 17 of the Solicitors (Amendment) Act

1994. His failure to appeal against the findings of the Tribunal means that he

could not challenge them thereafter and, in particular, when the Society’s

application to the High Court for the imposition of the recommended sanctions

came before the High Court. In the event that Mr O’Sullivan had chosen to

lodge an appeal, that appeal would have been determined ahead of the

Society’s application for the imposition of the recommended sanctions.”

22. The judgment then turns to address the specific consequences of the failure to appeal (at

paragraphs 25 and 26). The gravamen of the respondent solicitor’s complaint had been

that it was incumbent upon the High Court to make its own findings of misconduct by

hearing oral evidence, rather than simply accepting the Disciplinary Tribunal’s findings of

professional misconduct. The Court of Appeal rejected this argument as fundamentally

flawed.

“There is a fundamental flaw in [the respondent solicitor’s] argument in this regard. It is

that he failed to avail of his entitlement to a statutory appeal against the findings of

misconduct by the Tribunal in accordance with s. 7(13) of the 1960 Act. His failure

to adopt that course means that the findings made by the Tribunal are final and

conclusive. They may not be challenged on the merits. Had [the solicitor] sought

to appeal the findings as he was entitled to do, that re-hearing before the High

Court would have taken place ahead of the Law Society’s present application. [The

solicitor] could on that appeal have cross-examined any witnesses called by the

Society. By not bringing such an appeal, [the solicitor] cannot now be heard to

complain that on the Society’s application to the High Court for an order imposing

sanctions, he had had no opportunity to cross-examine witnesses. […]”.

23. The Court of Appeal summarised the legal position as follows (at paragraph 28 of the

judgment).

“When the High Court hears the Society’s application for sanctions to be

imposed pursuant to s. 7(9) of the 1960 Act its function is limited to the

question of sanction. By that time, the merits of the complaint of misconduct

and the findings of the Tribunal or the High Court (in the event of an appeal)

have been determined. The High Court is not obliged to impose the sanctions

that the Tribunal has recommended in its Report, and may impose whatever

Page 6 ⇓

sanction available under the legislation that it considers appropriate to the

misconduct found.”

24. The nature of the High Court’s jurisdiction in disciplinary proceedings has been considered

even more recently by the Supreme Court in Law Society of Ireland v. Coleman

[2018] IESC 80. This judgment is directly relevant in that it has been delivered in the context of

these very proceedings. This is the judgment on the Solicitor’s successful appeal against

the order of the High Court (Kearns P.) of 26 July 2010 striking his name off the Roll of

Solicitors.

25. It should be reiterated that the Solicitor had still not indicated any intention to bring an

appeal against the Disciplinary Tribunal’s findings as of the date of the Supreme Court

hearing, and thus the Supreme Court’s judgment is addressed primarily to the Law

Society’s application under section 8 of the Solicitors (Amendment) Act 1960. See

paragraph 13 of the judgment as follows.

“It is important to note that the High Court became engaged with the findings of the

Disciplinary Tribunal in both cases via the Law Society’s application for the orders

above outlined: at no point did the appellant exercise his right to appeal either

decision made by the Tribunal. Those decisions therefore stand un-appealed to this

date.”

26. The Supreme Court, per McKechnie J. delivering the unanimous judgment, emphasised

that the decision to strike a solicitor’s name off the Roll of Solicitors involves the

administration of justice. It is essential, therefore, that the High Court must conduct an

independent adjudication of the application before it. The fundamental role of the High

Court is explained as follows, at paragraph 58 of the judgment.

“As noted above, the Law Society is obliged to bring before the High Court, the

report and order of the Tribunal, its findings and the entire material upon which

these were arrived at. The legislature so ordained in order to ensure that the

judicial arm and not the administrative agency would ultimately be responsible

for any findings of misconduct and the resulting sanction which followed.

Otherwise, as is evident from the decision in In Re Solicitors Act 1954

[1960] I.R. 239, the entire regime could be constitutionally impaired. Therefore, the

role of the court in this overall process is fundamental. This in my view applies,

at the level of principle, whether the court is simply considering the Society’s

application or is in addition adjudicating upon an appeal taken by the

respondent solicitor.”

27. The Supreme Court, at a later point in its judgment, rejected an argument on the part of

the Law Society that the absence of an appeal by a respondent solicitor relieved the High

Court of its obligation to ensure that the findings of misconduct have a “sustainable

basis”. See paragraph 90 of the judgment as follows.

Page 7 ⇓

“This submission in my view starts from an incorrect premise and fails to appreciate the

fundamental role which the court must play on a referral application by the Society.

Disregarding any question of appeal, the High Court, as pointed out, must satisfy

itself that the findings of misconduct have a sustainable basis and secondly, must

form an independent view as to what sanction is appropriate to such findings. In so

doing, particularly with sanction, regard will be had to the circumstances giving rise

to such findings, the factors offered in mitigation (if any) and the personal

circumstances of the subject solicitor (if known): all viewed within the background

of the court having to be satisfied that its decision will reflect public confidence in

the solicitor profession and overall will not negatively impact on the administration

of justice.”

28. McKechnie J. drew an analogy with a sentencing hearing in criminal proceedings (at

paragraph 90 of the judgment).

“[…] The overall disciplinary procedure is not one which can be looked at, as a single

process or event within which fair procedures at any stage are a sufficient

compliance with the requirement of justice. The situation at hand is much more

akin to a finding of guilt to be followed by a sentencing hearing. The subject

person is entitled to fairness on both occasions.”

29. The Supreme Court judgment, having referred to Fitzgibbon v. Law Society of Ireland

[2014] IESC 48; [2015] 1 I.R. 516, makes the following observations on the nature of a

respondent solicitor’s right of appeal (at paragraph 56).

“With regard to a solicitor’s right of appeal, as provided for in s. 7(13) of the 1960 Act

and as referred to in O. 53, r. 12 above, I expressed doubts as to whether in all

circumstances such was by way of a fully fledged ‘de novo’ hearing. This view was

formed against a statutory background within which a preliminary investigation of

the complaint would have already taken place by the CCRC, and would have been

followed by a full, unrestricted inquiry by the Disciplinary Tribunal. However, at

para. 66 of my judgment [in Fitzgibbon v. Law Society [2014] IESC 48] I made a

point of general application: -

‘I [am] perfectly satisfied that the High Court has full jurisdiction to regulate

the manner in which issues before it are dealt with: this must follow from the

mandatory obligation on every court to ensure that constitutional justice and

fair procedures are applied to any justiciable controversy determined by it.

This duty takes effect once the court has seisen of the issue and continues

until that court becomes functus officio … this means that in any given case

the court can and will respond to what is necessary to ensure the integrity of

a person’s rights.’

As can thus be seen, the obligation referred to applies almost irrespective of the precise

wording of the appeal provision in question, or the rule of court giving effect to it.”

Page 8 ⇓

30. There was some discussion at the hearing before me as to whether there is any

disharmony between the judgment of the Supreme Court in Coleman and that of the

Court of Appeal, some six months earlier, in O’Sullivan. In particular, the parties

addressed me on whether the latter judgment treated the failure of a respondent solicitor

to appeal as imposing much greater constraints on the arguments which could be raised

in opposition to the Law Society’s section 8 application.

31. Counsel on behalf of the Solicitor suggested that there was no disharmony between the

judgments in circumstances where the Court of Appeal judgment had been concerned

with findings of primary fact (which can only be set aside on appeal), whereas the

Supreme Court judgment is concerned with the separate question of whether findings are

legally sustainable.

32. Having carefully considered the judgments, I am satisfied that there is no inconsistency

between the two. Both judgments acknowledge that the High Court will have a wider

remit in cases where the respondent solicitor has brought an appeal against the findings

of misconduct. The Supreme Court in Coleman expressly refers to the wording of Order

53, rule 9 of the Rules of the Superior Courts, and to its own judgment in Fitzgibbon v.

Law Society of Ireland [2014] IESC 48; [2015] 1 I.R. 516. There is nothing in the

judgment in Coleman which seeks to assimilate an application by the Law Society with an

appeal by a respondent solicitor, nor to collapse the distinction between the two. Rather,

the import of the judgment in Coleman is that, even in the context of its more limited

function on an application by the Law Society, the High Court must satisfy itself that the

findings of misconduct have a “sustainable basis”. This language is indicative of a form of

judicial review, and one which falls far short of a full appeal of the type provided for under

section 7(13) of the Solicitors (Amendment) Act 1960 and Order 53, rule 9 of the Rules of

the Superior Courts.

33. The type of complaint which may only be raised by way of statutory appeal is illustrated

by the facts of O’Sullivan. The respondent solicitor there wished to cross-examine before

the High Court witnesses who had given evidence before the Disciplinary Tribunal. The

Court of Appeal held that this could only be done in the context of an appeal against

findings of misconduct made by the Disciplinary Tribunal.

34. A judgment delivered by the Court of Appeal last month, Sheehan v. Law Society of

Ireland [2020] IECA 77, confirms that the type of argument which may be advanced to

the High Court in solicitors disciplinary proceedings will depend on the precise procedure

invoked. On the facts of Sheehan, the Court of Appeal held that a challenge to the

jurisdiction of the Disciplinary Tribunal to entertain a complaint should have been brought

by judicial review, and not by way of appeal under section 7(11) of the Solicitors

(Amendment) Act 1960. This judgment is not directly on point, as it concerns a different

form of statutory appeal (an appeal against a minor sanction under section 7(11)), but it

is nevertheless indicative of the general principle that the manner in which a matter

comes before the High Court will influence the range of arguments which may be made.

Page 9 ⇓

35. Finally, for the sake of completeness, it should be noted that one possible distinction

between (i) an appeal under section 7(13), and (ii) a section 8 application, concerns the

status of admissions made by a respondent solicitor at a hearing before the Disciplinary

Tribunal. In particular, it has been suggested that an earlier admission may not

necessarily be binding in the context of a subsequent statutory appeal. See the judgment

of Clarke J. (as he then was) in Fitzgibbon, [106].

“Likewise, it is always possible to place before any adjudicative body evidence of previous

admissions made by any party against whom an adverse finding on appeal might

be made. In the law of evidence as applied in the courts, previous admissions

amount to a well recognised exception to the hearsay rule. It seems to me that the

default position, in the absence of any rule to the contrary, must be that an

admission, made by a party at a first instance hearing or otherwise made during

the first instance process, can be the subject of evidence at a de novo appeal. It is

not that the party concerned is, necessarily, bound by an admission previously

made. It is, on a de novo appeal, a matter for the appellate body to make its own

mind up based on the evidence and materials before it. However, just as an

admission made by a party against its own interest outside the context of hearings

altogether can be the subject of evidence, so also can a similar admission made at

first instance be the subject of evidence. The weight to be attached to that evidence

in the overall assessment of the issues before the appeal body will, of course, be a

matter for it.”

PRINCIPLES GOVERNING AN EXTENSION OF TIME

36. The principles governing an application for an extension of time have very recently been

reaffirmed by the Supreme Court in Seniors Money Mortgages (Ireland) DAC v. Gately

[2020] IESC 3 (“Seniors Money Mortgages”). The judgment reiterates that, in exercising

its discretion to extend time, the underlying obligation upon a court is to balance justice

on all sides, and that all the circumstances of the case must be taken into account.

37. Counsel on behalf of the Solicitor placed particular emphasis on what the Supreme Court

had to say about the criteria identified in the well-known case of Eire Continental Trading

Company Ltd v. Clonmel Foods Ltd [1955] I.R. 170 (“Eire Continental”). There, counsel

for the respondent had submitted that the following three conditions must be satisfied

before a court would allow an extension of time.

“1, The applicant must show that he had a bona fide intention to appeal formed within

the permitted time.

2, He must show the existence of something like mistake and that mistake as to

procedure and in particular the mistake of counsel or solicitor as to the meaning of

the relevant rule was not sufficient.

3, He must establish that an arguable ground of appeal exists.”

Page 10 ⇓

38. The Supreme Court, per Lavery J., accepted that these three conditions were proper

matters for the consideration of the court in determining whether time should be

extended, but went on to state that they must be considered in relation to all the

circumstances of the particular case.

39. In its recent judgment in Seniors Money Mortgages, the Supreme Court has reiterated

that the Eire Continental criteria are guidelines only, and do not purport to constitute a

check-list, according to which a litigant will pass or fail. The judgment goes on to

emphasise, however, that the rationale that underpins the guidelines will apply in the

great majority of cases. In this regard, the judgment in Seniors Money Mortgages

endorses the approach taken in Goode Concrete v. CRH plc [2013] IESC 39 (“Goode

Concrete”).

40. As explained by the Supreme Court in Goode Concrete, a court, in exercising its discretion

to grant or refuse an extension of time to appeal, must seek to balance a number of

competing interests.

“3.3. The reason why the Éire Continental test applies in the vast majority of cases is

clear. The underlying obligation of the Court (as identified in many of the relevant

judgments) is to balance justice on all sides. Failing to bring finality to proceedings

in a timely way is, in itself, a potential and significant injustice. Excluding parties

from potentially meritorious appeals also runs the risk of injustice. Prejudice to

successful parties who have operated on the basis that, once the time for appeal

has expired, the proceedings (or any relevant aspect of the proceedings) are at an

end, must also be a significant factor. The proper administration of justice in an

orderly fashion is also a factor of high weight. Precisely how all of those matters

will interact on the facts of an individual case may well require careful analysis.

However, the specific Eire Continental criteria will meet those requirements in the

vast majority of cases.”

41. The relevant legal principles have been summarised as follows in Seniors Money

Mortgages.

“62. The rationale for holding parties to the stipulated time limits for appeals is, as

Clarke J. observed [in Goode Concrete], that in most cases a party to litigation will

be aware of those limits and should not be allowed an extension unless the decision

to appeal was made within the time, and there is some good reason for not filing

within the time. Further, in most cases, the parties will be aware of all the

evidence called, the submissions made and the reasoning of the judge – they have,

therefore, all the information necessary for the purposes of making a decision.

Goode Concrete was an exception because the appeal was based on information

that had come to the attention of the appellants only after the conclusion of the

High Court process. It is notable that in granting an extension of time the Court did

not permit the appellants to appeal in respect of any aspect that was known to

them in the ordinary course.

Page 11 ⇓

63. While bearing in mind, therefore, that the Éire Continental guidelines do not purport

to constitute a check-list according to which a litigant will pass or fail, it is

necessary to emphasise that the rationale that underpins them will apply in the

great majority of cases.

64. It should also be borne in mind that, depending on the circumstances, the three

criteria referred to are not necessarily of equal importance inter se. As Clarke J.

pointed out in Goode Concrete it is difficult to envisage circumstances where it

could be in the interests of justice to allow an appeal to be brought outside the time

if the Court is not satisfied that there are arguable grounds, even if the intention

was formed and there was a very good reason for the delay. To extend time in the

absence of an arguable ground would simply waste the time of the litigants and the

court.

65. By the same token it seems to me that, given the importance of bringing an appeal

in good time – the desirability of finality in litigation, the avoidance of unfair

prejudice to the party in whose favour the original ruling was made, and the orderly

administration of justice – that the threshold of arguability may rise in accordance

with the length of the delay. It would not seem just to allow a litigant to proceed

with an appeal, after an inordinate delay, purely on the basis of an arguable or

stateable technical ground. Since the objective is to do justice between the parties,

long delays should, in my view, require to be counterbalanced by grounds that go

to the justice of the decision sought to be appealed. Not every error causes

injustice.”

42. The reason that counsel for the Solicitor has placed such reliance on the judgment in

Seniors Money Mortgages is that it has (belatedly) been conceded by the Solicitor that he

does not meet the first of the two criteria identified in Eire Continental. The application

for an extension of time is, instead, largely predicated on what is said to be the arguablity

of the grounds of appeal.

43. Counsel also relied on the judgment of the Supreme Court in Tracey v. McCarthy

[2017] IESC 7. On the facts of that case, the Supreme Court had granted an extension of time

to appeal an order of the High Court some eight to nine years after the order had been

made. To this extent, the judgment might appear at first blush to offer some support to

the Solicitor’s application, in that the scale of the delay is similar. In truth, however, the

two cases are entirely distinguishable. The proceedings in Tracey exhibited what are

described in the judgment as a number of “highly unusual features”. First, the formal

order of the High Court, as drawn up by a court registrar, was irregular in that its date of

perfection had been backdated. As a consequence, by the time the (putative) appellant

obtained a copy of the order, the time-limit for bringing an appeal had already expired.

The appellant was thus deprived of the opportunity of bringing an appeal in time, in a

manner which was not only completely outside of his control, but was outside of the

control of any person acting on his behalf. Secondly, the appellant was a litigant in

person, without the benefit of legal advice, and had been suffering from significant ill

Page 12 ⇓

health during much of the relevant period. Thirdly, the grant of an extension of time

would not cause any prejudice to the respondent to the intended appeal. The appeal

involved a net point of law, and the relevant facts had already been established on

affidavit. The judgment of the Supreme Court states that there was no reason to believe

that that court would be impaired, in any way, in coming to a fair and just resolution of

the appeal as a result of the delay.

44. The facts of the present case are very different. The intended appellant, the Solicitor, is

legally qualified; has conceded that he had not formed an intention to appeal within the

time-limit; there would have been no impediment to his bringing an appeal within time;

and the ability to conduct an appeal has been impaired by the delay. In particular, the

recollection of the witnesses of events which occurred some fifteen years ago in 2004 and

2005 will be diminished.

45. Clarke J. (as he then was) made the following general observation as to the risk of

prejudice arising after a lengthy delay (at paragraph 4.13 of the judgment in Tracey).

“In the main parties are entitled to assume, once the period for appeal has passed, that

the litigation is at an end. They are entitled to order their affairs accordingly. An

extension of time, and particularly an extension of time at a significant remove,

inevitably runs the risk of prejudice. I would suspect that very many respondents,

faced with an application for an extension of time at the remove of the eight years

which is present in this case (or even significantly lesser periods), would very easily

be able to persuade a court that it would be fundamentally unfair to allow

proceedings which had been allowed lie as if finished for such a period to be

reopened.”

46. The circumstances of the present case give rise to precisely the same type of concerns

identified in this passage.

CONSIDERATION OF ALL THE CIRCUMSTANCES OF THE PRESENT CASE

47. I turn next to apply the principles identified by the Supreme Court in the various

judgments discussed above to the present case. This requires consideration of all of the

circumstances of the case. For ease of exposition, I have broken down the relevant

considerations under a number of sub-headings.

(i). No intention to appeal formed within time

48. As explained by the Supreme Court in Goode Concrete v. CRH plc [2013] IESC 39

(“Goode Concrete”), the discretion to grant an extension of time to appeal will generally

only be exercised where a party had made a decision within time to bring an appeal, but

for some reason the appeal was not filed within time.

“3.5 Likewise, in most straightforward cases, a party will be aware of the time limit

within which an appeal should be brought (or if not, ought to be so aware) and

should not be allowed an extension of time unless a decision to appeal was made in

time and there is a good reason for the appeal not having been filed within the time

Page 13 ⇓

limit. In the vast majority of cases the only materials which any party will need to

consider in deciding whether to appeal will be the materials which were before the

judge deciding the case at first instance. A party who has participated in

proceedings before the High Court (or who ought to have so participated) will or

ought to be aware of all of the evidence called, of the legal submissions made and

of the reasoning of the trial judge in coming to whatever conclusion it might now be

sought to appeal against. Such a party has available to it all of the information

necessary to make its mind up as to whether it wishes to appeal. In that context it

is not unreasonable to require the party, in the interests of the overall

administration of justice and the balance of justice as and between the parties, to

come to a decision within the time specified and to bring the appeal either within

that time or such further period as the Court might, exceptionally, allow if there is

some excuse for the notice of appeal not being filed in time. Thus the specific Éire

Continental criteria will, in the vast majority of cases, be likely to be the only test

applied by the Court.”

49. This rationale has been expressly reaffirmed by the Supreme Court in Seniors Money

Mortgages (at paragraph 62 of the judgment).

50. In the present case, the Solicitor has, belatedly, conceded that as of 2010 he had not

intended to bring an appeal against the findings of misconduct. This position is confirmed

in an affidavit sworn during the course of the hearing before me in the first week of March

2020. See affidavit of Daniel Coleman sworn on 5 March 2020, as follows.

“2. I beg to refer to paragraph 4 and 34 of my grounding affidavit sworn on the 27th

day of May 2019 and say that the reference to my intention to file an appeal

against the findings of the Tribunal was in error and I retract the content of the

averments. I should say that the reference ought to have been to an intention to

challenge the findings of the Tribunal and I wish to clarify that I intended to do so

at the hearing of the Law Society’s application for strike off.”

51. The decision not to appeal is entirely consistent with the Solicitor’s approach to the

disciplinary proceedings in 2010. (This approach is set out in detail at paragraphs 94 et

seq. below). In brief, the Solicitor had instructed his (then) barrister to make a number

of admissions of fact at the hearing before the Disciplinary Tribunal in respect of the

conveyancing transactions the subject-matter of the first complaint, and then sought to

rely on his co-operation in support of a plea in mitigation. The Solicitor chose not to

attend the hearing before the Disciplinary Tribunal in respect of the second complaint, i.e.

the alleged breach of undertaking.

52. It is not unreasonable to require that a party, in the interests of the overall administration

of justice and the balance of justice as and between the parties, to come to a decision to

appeal within the time specified. This is especially so where, as in the present case, that

party had not only had the benefit of legal representation at the time of the first-instance

decision, but is actually qualified as a solicitor himself. No proper explanation has ever

been afforded as to why the appeal which the Solicitor now wishes to make could not

Page 14 ⇓

have been brought in 2010. Indeed, until the first week of March 2020, the position

adopted by the Solicitor is that he had, in fact, formed an intention to appeal in 2010.

This incorrect averment was only retracted during the course of the hearing before me. It

is a cause of concern to the court that such an incorrect averment should have been

made on an issue of central importance to the application for an extension of time.

(ii). Inordinate delay

53. The most striking feature of the present case is the sheer scale of the delay. The two

decisions of the Disciplinary Tribunal from which it is now sought to appeal were made in

February 2010, and the formal orders drawn up in March 2010. Yet, the notices of

motion seeking an extension of time within which to appeal were not filed until 17 May

2019.

54. Counsel on behalf of the Solicitor submits that, in analysing the delay, regard should be

had to the fact that almost all of the time is referable to the processing of the Supreme

Court appeal against the order of the High Court (Kearns P.) of 26 July 2010. The appeal

to the Supreme Court had been lodged on 24 August 2010, but was not heard and

determined until December 2018. The formal Supreme Court order was subsequently

drawn up on 1 May 2019.

55. Counsel draws an analogy with the analysis of delay which is carried out by a court in

determining whether criminal proceedings should be prohibited on the grounds of delay.

A distinction is drawn in that context between “culpable” and “systemic” delay. It is

submitted that, on the facts of the present case, the period of any “culpable” delay on the

part of the Solicitor ended on 26 July 2010 when the High Court (Kearns P.) made his

order. The lapse of time between that date and the order of the Supreme Court of 1 May

2019 allowing the appeal is characterised as “systemic” delay, for which the Solicitor

bears no blame.

56. Counsel further submits that it was not open to the Solicitor to seek an extension of time

to bring an appeal under section 7(13) of the Solicitors (Amendment) Act 1960 until such

time as the Supreme Court appeal had been heard and determined, and the “strike off”

order of 26 July 2010 had been vacated. This was said to follow from the prescribed

sequencing of the hearing of (i) an appeal against findings of misconduct pursuant to

section 7(13), and (ii) an application by the Law Society pursuant to section 8. (See

Order 53, rule 9 of the Rules of the Superior Courts, discussed at paragraph 18 above).

57. Counsel cites the ruling of the High Court (Kelly P.) on 10 June 2016 to the effect that the

order of 26 July 2010 could only be set aside by way of appeal. As discussed in more

detail at paragraph 65 et seq., the parties in the present case had sought a ruling from

the High Court as to whether the “strike off” order might be set aside on consent, and the

section 8 application re-entered for a fresh hearing. Kelly P. ruled that the High Court

does not have jurisdiction to set aside an earlier order of a different High Court judge

which had been made following an inter partes hearing. If a party is dissatisfied with

Page 15 ⇓

such an order of the High Court, then the appropriate remedy is by way of appeal to the

Court of Appeal or the Supreme Court.

58. More generally, counsel referred to the judgment of the Court of Appeal in Danske Bank

A.S. (t/a Danske Bank) v. Macken [2017] IECA 117, [11].

“There is a clear public interest in the finality of a judicial determination, subject only to

an appeal. It is, moreover, generally understood and accepted that where a High

Court judge has pronounced judgment in a given matter, that judgment is final and

the only remedy open to the disappointed litigant is to appeal. This point is so

firmly embedded in our system of civil procedure that it is actually difficult to find

direct authority on the point.”

59. The logic underlying this overall submission appears to be as follows. Order 53, rule 9(a)

of the Rules of the Superior Court stipulates that, where an appeal is brought by a

respondent solicitor, then that appeal is to be heard first. The hearing of the Law

Society’s application is deferred, pending the outcome of the respondent solicitor’s

appeal.

60. In the present case, the fact that no appeal was brought in 2010 meant that matters had

proceeded immediately to the Law Society’s “strike off” application, and an order was

made by the High Court on that application on 26 July 2010. The gist of the argument

now made on behalf of the Solicitor is that it had not been possible to rewind the process,

and to bring an appeal, for so long as the “strike off” order of 26 July 2010 remained in

existence. It was only when the Supreme Court vacated that order on 1 May 2019 that a

window opened which would allow for the possibility of an appeal against the findings of

misconduct being heard and determined first, ahead of any rehearing of the section 8

application. (The section 8 application had, it will be recalled, been remitted to the High

Court by the Supreme Court).

61. Put otherwise, the fact that matters had proceeded as far as the making of an order

pursuant to section 8 in July 2010 striking off the Solicitor was said to have foreclosed the

possibility of bringing an appeal against the findings of misconduct under section 7(13).

62. This analysis may, strictly speaking, be accurate. It does not, however, reflect the

entirety of the options which were open to the Solicitor. The first and most obvious point

to be made is that—had he chosen to do so—the Solicitor could have brought an appeal

against the findings of misconduct in 2010. As discussed under the previous heading, the

Solicitor has, in effect, conceded that the reason an appeal had not been brought at that

time is because, as of 2010, he did not intend to appeal.

63. This then leads to the second point, namely that, following on from his change of mind, it

would have been open to the Solicitor thereafter to alert the Law Society, and, indeed,

the Supreme Court, that his ultimate ambition was to seek to appeal against the findings

of misconduct. Put otherwise, even if the Solicitor is correct in saying that the continued

existence of the High Court order of 26 July 2010 precluded him from formally applying

Page 16 ⇓

for an extension of time, the Solicitor should nevertheless have articulated his new

intention.

64. Instead, the Supreme Court had been left with the clear impression that the findings of

misconduct were not being appealed. In this regard, it is worth repeating paragraph 13

of the Supreme Court’s judgment as follows.

“It is important to note that the High Court became engaged with the findings of the

Disciplinary Tribunal in both cases via the Law Society’s application for the orders

above outlined: at no point did the appellant exercise his right to appeal either

decision made by the Tribunal. Those decisions therefore stand un-appealed to this

date.”

65. Thereafter, the Supreme Court judgment is principally directed to explaining the function

of the High Court on an application by the Law Society pursuant to section 8 of the

Solicitors (Amendment) Act 1960. The Supreme Court’s approach may well have been

very different had the Solicitor made known to the court that he now wished to appeal the

findings of misconduct. In this regard, it is to be noted that the Supreme Court had

previously put it to the appellant, at a directions hearing on 4 June 2015, that there would

be a “real difficulty in allowing the Law Society’s proceedings against him to be heard on a

de novo basis, as he seemingly wished for”. (See paragraph 20 of the Supreme Court

judgment).

66. This led to an attempt by the parties to compromise the proceedings. This compromise

appears to have been contingent on the High Court allowing the “strike off” application to

be re-entered. On 10 June 2016, Kelly P. refused to re-enter the application in

circumstances where he regarded the High Court as functus officio. More specifically,

Kelly P. ruled that the High Court does not have jurisdiction to set aside an earlier order

of a different High Court judge which had been made following an inter partes hearing. If

a party is dissatisfied with such an order of the High Court, then the appropriate remedy

is by way of appeal to the Court of Appeal or the Supreme Court.

67. It is apparent from this procedural history that the Supreme Court had expressly drawn

the Solicitor’s attention to the limitations of a strike off application under section 8 of the

Solicitors (Amendment) Act 1960. In particular, it would not allow for a de novo hearing

of the disciplinary proceedings.

68. One of the values which the imposition of time-limits on the bringing of appeals seeks to

protect is the proper administration of justice in an orderly fashion (Goode Concrete,

[3.3]). It would be destructive of this value to allow a party to pursue litigation on a very

particular basis, only to change tack at the conclusion of the proceedings. Put bluntly, the

matter should not have been pursued all of the way to the Supreme Court without

informing that court that the Solicitor intended to seek to invoke the statutory right of

appeal under section 7(13) of the Solicitors (Amendment) Act 1960.

Page 17 ⇓

69. The third point to be made is that, notwithstanding his reticence to flag an intention to

invoke the statutory right of appeal, the Solicitor had no compunction in launching a

collateral attack on the Disciplinary Tribunal’s findings. Specifically, the Solicitor

instituted plenary proceedings against the Law Society and the Disciplinary Tribunal (High

Court 2014 No. 4143 P.). Relevantly, the following declaratory reliefs were sought in

those proceedings (as per the Statement of Claim).

“(l) A declaration that the hearing and recommendation of the Solicitors Disciplinary

Tribunal dated the 10th February 2010 in proceedings bearing reference number

8347/DT20/09 and consequent order of the Honourable President of the High Court

dated 26th July 2010 in proceedings bearing the record number 2010 65 SA are

invalid by reason of the failure of the Solicitor’s Disciplinary Tribunal to inter alia

discover documents in a timely manner, secure the attendance of witnesses

essential to the Plaintiff and/or adjourn the proceedings to allow for same to occur.

(m) An order directing that the proceedings bearing reference number 8347/DT20/09

be remitted to the Solicitors Disciplinary Tribunal for a full re-hearing.

(n) A declaration that the hearing and recommendation of the Solicitors Disciplinary

Tribunal dated the 25th February 2010 in proceedings bearing reference number

837/DT89/09 and consequent order of the Honourable President of the High Court

dated 26th July 2010 in proceedings bearing record number 2010 66 SA are invalid

by reason of the failure of the Solicitor’s Disciplinary Tribunal to afford due process

to the Plaintiff inter alia by its reliance on patently false evidence, failure to properly

or at all consider, relevant documentation provided to it and to otherwise conduct

the hearing in accordance with law.

(o) An order directing that the proceedings bearing reference number 8347/DT89/09

be remitted to the Solicitors Disciplinary Tribunal for a full re-hearing.

(p) A declaration that the plaintiff is entitled to be enrolled as a solicitor on the Roll of

Solicitors and is entitled to practice subject to statutory regulation.”

70. As appears, in the case of each of the two findings of misconduct, it is expressly pleaded

that the recommendation of the Disciplinary Tribunal and the “consequent order of the

Honourable President of the High Court dated 26th July 2010 … are invalid”.

71. These proceedings thus involved a collateral attack upon the findings of misconduct, and

upon the High Court’s order. (Such a collateral attack upon disciplinary decisions is

impermissible for the reasons set out in Murphy v. Law Society of Ireland [2019] IEHC 724).

72. No satisfactory explanation has ever been provided as to why the Solicitor did not take

the—much more obvious—step of seeking an extension of time within which to avail of

the statutory right of appeal against findings of misconduct provided for under section

7(13) of the Solicitors (Amendment) Act 1960. It cannot be an answer simply to say that

Page 18 ⇓

the making of a formal application for an extension of time would be inconsistent with the

continued existence of the “strike off” order of 26 July 2010. Precisely the same type of

inconsistency exists in the bringing of the plenary proceedings, which represent a

collateral attack upon the High Court order, but that did not stop the Solicitor from

purporting to institute those proceedings. If he was prepared to institute those

proceedings notwithstanding that they constituted an impermissible collateral attack, he

could and should have taken the lesser step of flagging an intention to seek an extension

of time within which to appeal.

73. The Solicitor also made a complaint against the solicitors employed by the Law Society

who had been involved in the processing of the disciplinary proceedings against him.

(This complaint has been dismissed). Further, the Solicitor instituted proceedings before

the European Court of Human Rights.

74. In summary, therefore, the suggestion that most of the inordinate delay of nine years can

be explained away as “systemic” delay, referable to the hearing and determination of the

Supreme Court appeal, is an oversimplification. The manner in which the Solicitor

prosecuted that appeal is not a neutral factor. Rather, as explained above, the Supreme

Court had been left with the clear impression that the findings of misconduct were not

being appealed. This is a factor which weighs heavily against the grant of an extension of

time to appeal those findings now.

(iii). Law Society’s application remains outstanding

75. Counsel on behalf of the Solicitor draws attention to the fact that, even if the application

for an extension of time to appeal is refused, it will still be necessary for the High Court to

hear and determine the Law Society’s “strike off” application. The refusal of an extension

of time will not, therefore, bring the disciplinary proceedings to an end. Irrespective of

whether an extension of time is granted or not, the High Court will have to consider

certain aspects of the disciplinary proceedings. This is so notwithstanding that a period of

almost ten years has elapsed since the original order of the High Court on 26 July 2010.

76. The implication here being that any prejudice caused to the orderly administration of

justice in granting an extension of time to appeal will be less in the present case than in

most other cases. The effect of a refusal of an extension of time in most cases will bring

the litigation to a complete halt. That will not happen here.

77. This submission is correct insofar as it goes. It does, however, tend to overlook the

distinction between the function of the High Court in determining a “strike off” application,

and the broader function it exercises when determining a statutory appeal against

findings of misconduct. The latter appeal entitles a respondent solicitor to a full

rehearing. The prejudice caused by delay in that context will, obviously, be greater. This

is because the recollection of witnesses of events—which, on the facts of the present

case, took place principally during the years 2004 and 2005—will be diminished by the

passage of time. This form of prejudice is less in the context of a “strike off” application,

wherein oral evidence will generally not be called.

Page 19 ⇓

78. Counsel is correct, however, to bring attention to the fact that the “strike off” application

will remain outstanding even if an extension of time to appeal is refused. This is

significant but not in the manner in which counsel suggests. Rather, the true significance

of the “strike off” application is that it mitigates the risk of an injustice being caused by

the refusal of an extension of time to appeal. The Supreme Court in Seniors Money

Mortgages emphasised that the objective is to do justice between the parties, and that

long delays require to be counterbalanced by grounds that go to the justice of the

decision sought to be appealed. In most cases, the court will be faced with a binary

choice: appeal or no appeal. The position is more nuanced in the present case because,

even in the absence of an appeal, the High Court will have to consider, in accordance with

the judgment of the Supreme Court in Coleman, whether there is a “sustainable basis” for

the findings of misconduct. This residual jurisdiction, which falls short of a full appeal,

allows for any injustice to be brought to the court’s attention even in the absence of an

appeal.

79. Moreover, and again as explained in Coleman, the High Court must conduct its own

independent adjudication of the appropriate sanction to be imposed. There is no question

of the High Court being bound by an opinion expressed, or by a recommendation made,

by the Disciplinary Tribunal. As discussed presently, many of the points raised on behalf

of the Solicitor are, in truth, directed to the gravity of the misconduct, rather than to a

refutation of the finding of misconduct. To take just one example, the Solicitor now

accepts that he did not comply with the express terms of an undertaking to hold a land

certificate to the order of a credit union, but seeks to characterise the breach as a

technical breach and asserts that no financial loss had been caused to the credit union.

These are factors which are more immediately relevant to the form of penalty or sanction

to be imposed.

80. In summary, as a result of the outstanding section 8 application, the Solicitor in the

present case enjoys a safeguard which is not available to intended appellants in other

statutory contexts who have been refused an extension of time to appeal.

(iv). Prejudice caused by delay

81. It has been submitted on behalf of the Solicitor that, by reason of its institutional status

and statutory function, there can be no prejudice to the Law Society if an extension of

time is granted. This is advanced as a factor in favour of the grant of an extension of

time. The implication here seems to be that, unlike most litigants, the Law Society has

no personal or proprietary interest in the outcome of the disciplinary proceedings.

82. This submission is not well-founded for the following reasons. First, as explained by the

Supreme Court in Tracey v. McCarthy [2017] IESC 7, [4.12], it is not necessary for a

respondent to establish prejudice in order to resist an application for an extension of time.

“[…] I should emphasise that, in mentioning this point, I do not seek in any way to depart

from the well established jurisprudence which makes clear that it is not necessary

for a respondent to establish prejudice in order to be able successfully to resist an

Page 20 ⇓

application for an extension of time. Ordinarily appeals should be brought in time

and if they are not, without good and sufficient reason, brought within the time

specified then the right to appeal will be lost irrespective of any question of

prejudice. However, the presence of prejudice can, in my view, make it unjust to

extend time even in a case where the broad criteria might suggest that an

extension should be granted. The presence of prejudice is not, therefore, a

necessary basis for opposing an extension of time. Prejudice may, however, quite

properly be relied on by a party to suggest that an extension of time, which might

otherwise be granted, should be refused.”

83. Secondly, the delay in the present case is so inordinate that prejudice can be assumed.

In this regard, the next passage from Tracey, [4.13] (which has been cited earlier at

paragraph 45 above) bears repeating.