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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> O'Callaghan v Nirvanna Property Holdings Ltd & Anor (Approved) (Rev1) [2025] IEHC 312 (30 May 2025)
URL: http://www.bailii.org/ie/cases/IEHC/2025/2025IEHC312.html
Cite as: [2025] IEHC 312

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THE HIGH COURT

[APPROVED]                                                                                                  (H SA 2024 115)                           

[2025] IEHC 312

 

 

IN THE MATTER OF THE SOLICITORS ACTS 1954 - 2008

 

AND IN THE MATTER OF DECLAN O'CALLAGHAN, A SOLICITOR FORMERLY PRACTISING AS PRINCIPAL OF KILRANE O'CALLAGHAN & CO., SOLICITORS, BALLAGHDERREEN, CO. ROSCOMMON

 

AND IN THE MATTER OF AN APPLICATION BY NIRVANNA PROPERTY HOLDINGS LIMITED TO THE SOLICITORS DISCIPLINARY TRIBUNAL

 

BETWEEN

DECLAN O'CALLAGHAN

APPLICANT/APPELLANT

 

 

AND

 

NIRVANNA PROPERTY HOLDINGS LIMITED

RESPONDENT

 

 

AND

LAW SOCIETY OF IRELAND

NOTICE PARTY

 

JUDGMENT of Mr. Justice David Barniville, President of the High Court, delivered on the 30th day of May, 2025

Index

1. Introduction...........................................................................................3

2. Factual Background.................................................................................3

3. The Inquiry: Hearings..............................................................................5

4. Mr O'Callaghan's Appeal...........................................................................7

5. Relevant Statutory Provisions.....................................................................13

6. Brief Summary of Submissions of Parties on Nature and Scope of Appeal..............19

7. Analysis and Decision...............................................................................26

8. Conclusions.............................................................................................35

9. Preliminary View on Costs..........................................................................36

10. Further Listing......................................................................................36

1. Introduction

1.                  This is my judgment on a preliminary issue which has arisen in the course of an appeal by the Applicant/Appellant, Mr. Declan O'Callaghan, a solicitor, to the High Court under s. 7 of the Solicitors (Amendment) Act 1960 (as amended) (the "1960 Act (as amended)" from the decision of the Solicitor Disciplinary Tribunal (the "Tribunal") dated 21 August 2024.

2.                   The issue is whether it is open to Mr. O'Callaghan to confine his appeal to certain grounds and to something less than a full rehearing, which is the default position under the Rules of the Superior Courts (the "RSC"), in circumstances where the Respondent to the appeal, Nirvanna Property Holdings Limited ("Nirvanna"), does not agree with that proposed course and wishes the appeal to proceed on the basis of a full rehearing.

3.                  At the conclusion of the hearing on 22 May 2025, I informed the parties that I had decided that it was not open to Mr. O'Callaghan to proceed on the proposed basis and that the appeal, if it is to proceed before the High Court, must proceed as a full rehearing as provided for in O. 53B, r. 9 (h)(I) RSC. I agreed to provide the reasons for my decision in writing and I now do so in this judgment.

 

2. Factual Background

4.                  The case has a very lengthy history which it is necessary for me to briefly sketch out in this judgment in order to explain how the issue has arisen.

5.                  In May 2010, Nirvanna made a complaint about Mr. O'Callaghan to the Tribunal and applied under s. 7(1) of 1960 Act (as amended) for an inquiry into the conduct of Mr. O'Callaghan on the grounds of alleged misconduct in connection with a property transaction concerning a property in Co. Roscommon in 2006/2007. In February 2011, the Tribunal decided there was a prima facie case of misconduct on the part of Mr. O'Callaghan and directed an inquiry into four grounds of alleged misconduct against him. Those grounds were that Mr. O'Callaghan:

(a)        purported to act for both the vendor and the purchaser in a transaction where there was a clear conflict of interest;

(b)        failed to ensure that the relevant consideration passed to the vendor company before title in the property passed to the purchaser;

(c)        provided inadequate professional services and was in breach of his duty of care to Nirvanna; and

(d)        continued to act for the purchaser in proceedings against him for recovery of the relevant consideration.

6.                  The proceedings before the Tribunal were very long drawn out. Several affidavits were sworn by Mr. O'Callaghan and by Mr. Tom Fleming on behalf of Nirvanna. Mr. O'Callaghan denied, and continues to deny, the allegations of misconduct made against him. 

7.                  The inquiry was initially listed for hearing by the Tribunal in May 2011 but was adjourned to allow certain High Court proceedings in relation to the same transaction to proceed, in circumstances where the existence of those proceedings allegedly prevented a witness from attending and giving evidence at the inquiry. 

8.                  Various further dates for the inquiry were fixed in 2018 - 2019, with the hearing of the inquiry ultimately listed to proceed on 11 February 2020. Mr. O'Callaghan was represented by a solicitor and counsel that day.  However, Nirvanna was purported represented by one of its directors, Mr. Tom Fleming. At the outset of the hearing that day, an objection was made on behalf of Mr. O'Callaghan to Mr. Tom Fleming representing Nirvanna. It was contended that Nirvanna had to be represented by a solicitor or by a solicitor and counsel. The Tribunal accepted that objection and then acceded to an application by Mr. Tom Fleming to adjourn the hearing notwithstanding that Mr. O'Callaghan opposed the adjournment. The adjournment was initially to 29 April 2020.  However, in the meantime, the Covid-19 pandemic struck and the hearing was deferred.

9.                  On 30 April 2020, Mr. O'Callaghan sought and was granted leave to seek judicial review of the Tribunal's decision to adjourn the hearing. Mr. O'Callaghan challenged the decision to adjourn the hearing as well as the jurisdiction of the Tribunal to accept Nirvanna's complaint in circumstances where it was suggested that the authority of Mr. Tom Fleming and Mr. Seán Fleming to make the complaint on behalf of Nirvanna had not been established. Mr. O'Callaghan was unsuccessful in his judicial review in the High Court. Barr J. delivered a judgment on 14 January 2022, refusing the reliefs sought (that judgment is at [2022] IEHC 13). Mr. O'Callaghan was unsuccessful in his appeal to the Court of Appeal. Butler J. delivered judgment on behalf of the Court of Appeal on 17 January 2023 in which she rejected all of Mr. O'Callaghan's claims (that judgment is at [2023] IECA 3). The Court of Appeal held that the issue as to the authority of Mr. Tom Fleming and Mr. Seán Fleming to make the complaint on behalf of Nirvanna was a matter that could be determined by the Tribunal in the course of the inquiry itself. 

 

3. The Inquiry: Hearings

10.              The inquiry before the Tribunal finally proceeded on 13 June 2024. Mr. Tom Fleming gave evidence and was then cross examined by counsel for Mr. O'Callaghan. It is contended on behalf of Mr. O'Callaghan that his counsel's cross examination of Mr. Tom Fleming was improperly and unfairly constrained and curtailed by the Tribunal. Mr. O'Callaghan also gave evidence that day and was cross examined by counsel on behalf of Nirvanna. At the conclusion of the hearing that day, the Tribunal retired to consider its decision. It returned later in the day with its findings. The Tribunal found in respect of each of the allegations that Mr. O'Callaghan was guilty of professional misconduct. Very brief reasons were provided in respect of the Tribunal's findings.

11.              In respect of the allegations at grounds (a), (c) and (d), the reason given by the Tribunal for finding Mr. O'Callaghan guilty of professional misconduct was stated to be:

"The evidence provided by Mr. Thomas Fleming, the submissions provided on behalf of the applicant and the absence of adequate or any evidence provided by the respondent."

12.              In respect of the allegation at ground (b), concerning the alleged failure to ensure that the consideration passed to the vendor company before title passed to the purchaser, the same reason was given but was supplemented by the additional words which referred to "the absence of a signed form of receipt or acknowledgment".

13.              Mr. O'Callaghan takes issue with the adequacy of the reasons given by the Tribunal for its decision in respect of each of the allegations. Those reasons were subsequently reproduced in the Report of the Tribunal to the High Court provided under s. 7(3)(c) of the 1960 Act (as amended). The Tribunal also heard evidence that day from its Registrar as to Mr. O'Callaghan's disciplinary record and heard evidence of previous findings of misconduct made against him by the Disciplinary Committee of the Law Society in February 1990 and by the Tribunal in November 2019. 

14.              The Tribunal sat again on 2 July 2024 to hear submissions in relation to sanction.  At the conclusion of the hearing, the Tribunal adjourned briefly to consider what it would do in relation to sanction. It decided that it would not be appropriate for it to make any order imposing a sanction under s. 7(9) of the 1960 Act (as amended) but instead directed the Law Society to bring the Report of the Tribunal before the High Court. In accordance with s. 7(3)(c)(iv)(I) and (II), the Tribunal gave its recommendations as to the sanctions which in its opinion should it be imposed on Mr. O'Callaghan. It recommended that Mr. O'Callaghan's name be struck off the Roll of Solicitors and that there should be an order for costs made against him.

 

4. Mr. O'Callaghan's Appeal

15.              In a Notice of Motion issued pursuant to O. 53B, r. 9 RSC on 13 September 2024, Mr. O'Callaghan sought to appeal the decision of the Tribunal to the High Court. In that motion he sought an order pursuant to s. 7(11) of the 1960 Act (as amended) rescinding the order and report of the Tribunal. As required by O. 53B, r. 9(c), the motion set out the grounds of Mr. O'Callaghan's appeal. It was contented in the motion that the hearings before the Tribunal on 13 June 2024 and 2 July 2024 and the order made by the Tribunal on 21 August 2024 were:

" ... In breach of the appellant's right to a fair hearing, the principles of natural justice, the appellant's rights under Bunreacht na hÉireann, the Convention for the Protection of Human Rights and Fundamental Freedoms (as incorporated into Irish law by the European Convention on Human Rights Act 2003), and the European Union Charter of Fundamental Rights; further, same were made ultra vires and/or in excess of jurisdiction, in breach of fair procedures and were biased and/or appeared to be biased."

16.              The motion then set out further particulars of those grounds at paras. (a) - (l). In those particulars, Mr. O'Callaghan claimed that the Tribunal:

"(a)     Failed to afford [Mr O'Callaghan] a fair hearing in accordance with natural and constitutional justice. 

(b)       Refused to permit cross examination on behalf of [Mr. O'Callaghan] of Tom Fleming, the witness for the complainant, Nirvanna... on all evidence, including affidavits, adduced and tendered to on its behalf and before the [Tribunal].  

(c)        Conducted the hearing in a manner which was not in accordance with the relevant rules of the [Tribunal] – the Solicitors Disciplinary Rules 2003.

(d)       Conducted the hearings in a manner which breached Articles 6 and 13 of the Convention for the Protection of Human Rights and Fundamental Freedoms (as incorporated into Irish law by the European Convention of Human Rights Act 2003).

(e)        Conducted the hearings in a manner which breached Articles 47 and 48 of the European Union Charter of Fundamental Rights. 

(f)        Failed to allow [Mr. O'Callaghan] refer to and rely on all evidence including affidavits, tendered by him to the [Tribunal].  

(g)       Conducted itself in such a manner as would give rise to a reasonable apprehension of bias and pre-determination of the issues before it.

(h)       Failed to have regard to and vindicate the presumption of innocence applicable to [Mr. O'Callaghan]. 

(i)        Failed to study and properly set out, consider and apply the appropriate standard of proof and burden of proof.

(j)        Made an order absent due and proper consideration of [Mr. O'Callaghan's] oral evidence and affidavits submitted by him.

(k)        Failed to provide any analysis and/or discussion concerning the evidence and submissions adduced and furnished on behalf of the parties before it, or to provide... any adequate reasoning, discursive, deductive or otherwise, for its findings and Order.

(l)        Acted ultra vires and/or in excess of jurisdiction, without any or any adequate proof in evidence that the complaint before it in the name of Nirvanna was validly made ab initio or otherwise on behalf of Nirvanna, in accordance with law and its own Rules."

17.              It can be seen, therefore, from these particulars that all but one of the grounds of appeal advanced by Mr. O'Callaghan were essentially directed to the procedures adopted by the Tribunal which Mr. O'Callaghan contended were unfair both in terms of his ability to make his case effectively before the Tribunal and by reason of alleged apparent bias on the part of, and pre-determination by, the Tribunal. In furtherance to his challenge to the fairness of the procedures adopted by the Tribunal, Mr. O'Callaghan contended that the Tribunal had failed to adopt and apply the correct standard and burden of proof and that it had failed to provide adequate reasons for the findings contained in its order and in its report. The one ground which was not directed to the procedures adopted by the Tribunal was ground (l) where Mr. O'Callaghan contended that the Tribunal ought not to have accepted and proceeded to deal with the complaint on the basis that it was not shown that it had been properly authorised by Nirvanna (this was the point that the Court of Appeal had held should be determined by the Tribunal in the course of the inquiry).

18.              It can be seen, therefore, that the vast majority of the grounds of appeal and the particulars advanced in support of those grounds were all judicial review type grounds (although Mr. O'Callaghan chose initially to proceed by way of appeal under s. 7(11) of the 1960 Act (as amended) and not by way of judicial review).

19.              The Tribunal was named as a respondent to Mr. O'Callaghan's motion. Nirvanna was named as a notice party. The motion was returnable before me on 21 October 2024.

20.              Prior to the return date, solicitors for the Tribunal wrote to Mr. O'Callaghan's solicitors on 18 October 2024 seeking the removal of the Tribunal from the proceedings. In that letter it was contended that in light of the fact that the appeal provided for under s. 7(11) of the 1960 Act (as amended) and by O. 53B, r. 9 was a de novo appeal in which it was not envisaged that the Tribunal would be a respondent, it should be removed from the proceedings. Reliance was placed on certain provisions of O. 53B, r. 9, including r. 9(h)(I). It was contended that Mr. O'Callaghan's appeal would be a full rehearing before the High Court in which Nirvanna and the Law Society would be the appropriate other parties to the appeal. The Tribunal's solicitors requested that Mr. O'Callaghan apply to the Court to amend the title to the proceedings and to remove the Tribunal as the respondent, failing which an application would be made by the Tribunal for orders to that effect.  

21.              Mr. O'Callaghan's solicitors replied on the same date (18 October 2024) seeking time to consider the points raised on behalf of the Tribunal and the matter was adjourned by me from 21 October 2024 to 18 November 2024.  

22.              In the meantime, Mr. O'Callaghan's solicitors wrote to Tribunal's solicitor on 29 October 2024. In that letter, they pointed out that Mr. O'Callaghan was appealing under s. 7(11) of the 1960 Act (as amended) and not under s. 7(13). They asserted that the grounds on which the relief was being sought in the appeal "clearly relate to the manner in which the hearings constituting the inquiry were conducted by [the Tribunal], and the unfairness thereof, as particularised".  They further contended that the transcript of the hearings "reflecting the evidence given and the conduct thereof, comprises what is required to deal with that appeal, and a full rehearing of that evidence is neither relevant nor necessary in that regard". While disputing that the provisions of O. 53B, r. 9(h)(I) applied to the appeal, they contended that even if that provision did apply, the Court had discretion to deal with the appeal other than by way of a full rehearing and that, in the particular circumstances of the case, a full rehearing was not necessary. They maintained that it was necessary to include the Tribunal as a party to the appeal.

23.              The Tribunal's solicitors replied on 8 November 2024. In that letter, the Tribunal's solicitors referred to various relevant subsections of s. 7 of the 1960 Act (as amended) and to O. 53B. They contended that it was not contemplated in any of those provisions that the Tribunal would be an appropriate party or respondent to appeals under s. 7(11) or s. 7(13). Nor was it envisaged under O. 53B that the Tribunal would be a respondent. They contended that the relevant parties were the solicitor the subject of the proceedings, namely, Mr. O'Callaghan, the party which made the complaint, namely, Nirvanna, and the Law Society. They further maintained that Mr. O'Callaghan had a de novo appeal in which Mr. O'Callaghan would be entitled to seek to cross examine witnesses "in the fresh rehearsal of the matter that will occur before the High Court". Accordingly, they contended, even if Mr. O'Callaghan was wrongly denied by the Tribunal the opportunity to cross examine during the course of the inquiry (which they denied), any such unlawful denial would be cured by Mr. O'Callaghan's invocation of his statutory appeal and by the availability of cross examination to Mr. O'Callaghan in the course of the de novo appeal before the High Court. The Tribunal's solicitors repeated their request for Mr. O'Callaghan to release it from the proceedings.

24.              Mr. O'Callaghan's solicitors replied on 12 November 2024. Having contended that both ss. 7(11) and 7(13) were relevant to the appeal and that the Tribunal was an appropriate party to the appeal, the stated that Mr. O'Callaghan had no objection to the Tribunal's wish to be released from the proceedings subject to the approval of the Court and on the basis that his appeal proceeded on the grounds already advanced by him. They repeated the contention that a full rehearing of the evidence was not necessary and that the appeal could be dealt with on the basis of the transcript of the hearings before the inquiry. In that letter, Mr. O'Callaghan's solicitors noted that Mr. O'Callaghan had the option of separate judicial review proceedings but that they would have involved duplication and additional costs and would likely have been met with the issue as to whether Mr. O'Callaghan had exhausted his statutory remedies under the 1960 Act (as amended).

25.              At the hearing on 18 November 2024, I noted the correspondence and Mr. O'Callaghan's agreement that the Tribunal could be discharged as a respondent to the proceedings and permitted Mr. O'Callaghan to bring an application to effectively constitute his appeal to appeal his motion.

26.              Mr. O'Callaghan brought a motion to reconstitute and amend the title to the proceedings by naming Nirvanna as respondent in place of the Tribunal and the Law Society as a Notice Party. He also sought an order amending and extending the reliefs sought in his appeal motion so as to seek an order under s. 7(13) of the 1960 Act (as amended) by way of appeal against the findings of misconduct made against him by the Tribunal. That motion was grounded on a further affidavit sworn by Mr. O'Callaghan.

27.              On 16 December 2024, I made orders substituting Nirvanna as Respondent in place of the Tribunal and joining the Law Society as a Notice Party. I also gave Mr. O'Callaghan liberty to amend his motion so as to rely on s. 7(13) of the 1960 Act (as amended) in his appeal. I made directions for the exchange of replying affidavits and adjourned the matter to 20 January 2025. I also directed the Law Society to bring the Tribunal's report before the High Court on 20 January 2025 in accordance with its obligations under s. 7(3). However, I made clear that the Court's consideration of the report would have to await further the consideration and determination of Mr. O'Callaghan's appeal. An amended Notice of Motion was then served on behalf of Mr. O'Callaghan making it clear that he wished to appeal to the High Court under both s. 7(11) and 7(13) of the 1960 Act (as amended). The amended motion named Nirvanna as Respondent and the Law Society as Notice Party and relied on precisely the same grounds and particulars as were set out in the original appeal motion.

28.              The Law Society's motion bringing the Tribunal's Report before the High Court pursuant to s. 7(3) was returnable before me on 17 February 2025.  It was agreed that the Law Society's motion would be held over pending the determination of Mr. O'Callaghan's appeal, as required by O.53B, r. 6(a)(i).

29.               A fundamental issue arose in the context of Mr O' Callaghan's appeal. He wished to proceed on the basis of the transcript of the hearing before the Tribunal and on the basis of the evidence before the Tribunal in order to advance the grounds set out in his appeal motion.  He did not wish there to be a full rehearing with witnesses being called and cross examined. However, Nirvanna's position was that a full rehearing was necessary. It was concerned with  ensuring finality in circumstances where the complaint dated back to 2010 and concerned alleged misconduct in 2006/2007. It did not want any further delay in the conclusion of the matter and felt that the best way to achieve this was by directing a full rehearing of Mr. O'Callaghan's appeal as soon as possible. The Law Society adopted a neutral position on the issue of the precise nature and scope of the appeal but did agree to provide written submissions to assist the court in determining the issue. I directed the exchange of submissions and ultimately listed for hearing on 22 May 2025 the issue of the scope and nature of the appeal. I received very helpful submissions on that issue from Mr. O'Callaghan, from Nirvanna and from the Law Society.

 

5. Relevant Statutory Provisions

A. The 1960 Act (as amended)

30.              It is appropriate here to sketch out briefly the relevant statutory provisions. They are in the main to be found in s. 7 of the 1960 Act (as amended). There have been numerous amendments to section 7.  Section 7 contains provisions governing the inquiry by the Tribunal into the conduct of a solicitor on the grounds of alleged misconduct, the obligations on the Tribunal in relation to any such inquiry and the steps open to a respondent solicitor in the case of orders or findings made by the Tribunal following any such inquiry.  

31.              Under s. 7(3), where the Tribunal finds that there is a prima facie case for an inquiry, it is required to hold an inquiry, to consider each allegation of misconduct made against the respondent solicitor and to make a separate finding in respect of each such allocation. On completion of the inquiry, the Tribunal is required to produce a report to the High Court setting out various matters including the nature of the application and the evidence before the Tribunal, finding made on each allegation of misconduct and the reasons for that finding, any other relevant matters and, where the Tribunal has found misconduct on the part of the respondent solicitor but has not made and does not intend to make any order under s. 7(9), the Tribunal must set out its opinion as to the fitness or otherwise of the respondent solicitor to be a member of the solicitor profession and its recommendations as to the sanction which, in its opinion, should be imposed having regard to the findings and to any previous findings of misconduct against the respondent solicitor.  The Law Society is required to bring the Tribunal's report before the court.

32.              Under s. 7(4) where the Tribunal has found misconduct on the part of the respondent solicitor and has decided to make an order under s. 7(9), it must include in its report the reasons for its opinion that it is appropriate to make an order under that subsection.

33.              Under s. 7(9), where the Tribunal has found following completion of an inquiry, that there has been misconduct in the part of the respondent solicitor, the Tribunal has the power to impose certain sanctions by order.  The Tribunal in this case was not of the opinion that it was appropriate to make any of the orders set out s. 7(9).  Rather, it gave its opinion on the fitness or otherwise of Mr. O'Callaghan to be a member of the solicitors' profession and its recommendations as to sanction, namely, that Mr. O'Callaghan's name should be struck off the Roll of Solicitors and that an order for costs should be made against him.

34.              Section 7(11) is one of the subsections of s. 7 under which solicitor may appeal to the High Court. This is the provision under which Mr. O'Callaghan initially sought to appeal to the High Court in this case. Section 7(11) provides as follows:

"(a)     a respondent solicitor in respect of whom an order has been made by the Disciplinary Tribunal under subsection (9) of this section, or

(b)       without prejudice to subsection (12) of this section, the Society or any person other than the Society who has made an application under subsection (1) of this section, may, within the period of 21 days beginning on the date of the service of a copy of the order or of the report, whichever date is the later, appeal to the High Court to rescind or vary the order in whole or in part, and the Court, on hearing the appeal, may -

(i)        rescind or vary the order, or

(ii)       confirm that it was proper for the Disciplinary Tribunal to make the order."

35.              The difficulty for Mr. O'Callaghan in relying on this provision to appeal the decision of the Tribunal to the High Court is that the Tribunal did not make any order in respect of Mr. O'Callaghan under s. 7(9). The Tribunal expressly declined to make such an order and instead, as just noted, provided its opinion and recommendations as to sanction to the Court.

36.              The next subsection of s. 7 on which Mr. O'Callaghan has sought to rely on in his appeal, by way of an amendment to his original motion, is s. 7(13). That is the provision under which a solicitor who is the subject of a finding of misconduct made by the Tribunal may appeal against that finding to the High Court. Section 7(13) provides:

"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."

37.               Where, having made a finding of misconduct against a solicitor, the Tribunal decides to impose a sanction on the solicitor by making an order under s. 7(9), the solicitor can appeal that sanction under s. 7(11) and can also appeal the finding of misconduct under s. 7(13). However, as noted by Dunne J. in the Supreme Court in Sheehan v. Solicitors Disciplinary Tribunal [2022] 1 I.R. 78, in practice the statutory distinction between the two types of appeal is not always observed and an appeal under s. 7(11) is often treated as an appeal not just against the sanction imposed on the solicitor but also as an appeal against the finding of misconduct made.  In fact, in this case, the blurring in practice of the distinction between the two types of appeal does not arise as the Tribunal did not impose any sanction or make any order in respect of Mr. O'Callaghan under s. 7(9).  

38.              While Mr. O'Callaghan's counsel sought to argue at the hearing before me that the Tribunal's recommendation that Mr. O'Callaghan's name be struck off the Roll of Solicitors was itself a very serious sanction and should be treated as such for the purposes of permitting Mr. O'Callaghan to appeal under s. 7(13), I cannot accept that submission. Section 7(9) specifies the orders which the Tribunal can make by way of sanction against a solicitor who is the subject of a finding of misconduct. A recommendation to the Court as to the appropriate sanction to be imposed by the Court is not one of the sanctions or orders identified in s. 7(9).  Furthermore, s. 7(3)(iv) makes clear that a recommendation as to sanction is only made by the Tribunal where it is not making any order under s. 7(9).

39.              Mr. O'Callaghan's appeal to the High Court must therefore be treated as an appeal under s. 7(13) against the finding of misconduct made by the Tribunal and not an appeal under s. 7(11) against the imposition of any sanction by the Tribunal.  Nonetheless, Mr. O'Callaghan must be entitled to maintain as as part of his appeal under s. 7(13) against the findings of misconduct made by the Tribunal against him that the Court should not adopt the recommendations as to sanction provided by the Tribunal (even if I were to uphold the findings of misconduct made by the Tribunal). It goes without saying also that if Mr. O'Callaghan succeeds in his appeal against the findings of misconduct, the question of sanctions will not arise.  

40.              The powers of the court when a report of the Tribunal finding misconduct against a solicitor is brought before it by the Law Society are set out in s. 8 of the 1960 Act (as amended). It is unnecessary for me to consider the provisions of that section for the purpose of the issue which I have had to decide concerning the nature and scope of Mr. O'Callaghan appeal.

 

B. The provisions of the RSC

41.              Order 53B, rule 9 is the relevant provision of the RSC applicable to appeals to the High Court under s. 7 of the 1960 Act (as amended).  It sets out the formal requirements in respect of such appeals, including the formal requirements in respect of the notice of motion containing the appeal, the evidence grounding the appeal and the parties on whom the motion must be served.

42.              Order 53B, rule 9(g) provides that the President of the High Court has the power, on hearing an appeal under s. 7, to add other parties to the motion before the court where it appears "just" to do so. That provision is potentially relevant to the issue I have to decide as to the nature and scope of Mr. O'Callaghan's appeal.

43.              Of particular relevance are the provisions of O. 53B, r. 9(h). It provides:   

"(I)      Where the respondent solicitor is appealing to the Court against finding or findings of misconduct on his or her part, the President shall 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 Law Society and (if applicable) concurred by any person other than the Law Society who made the application in relation to the respondent solicitor to the Disciplinary Tribunal and unless agreed to by the President.

(II)       Upon the hearing of the appeal of the respondent solicitor, the President may require that any notice, affidavit, or other document not then before the court that was delivered to and produced in evidence before the Disciplinary Tribunal or transcript or other record of any oral evidence given before the Disciplinary Tribunal be made available by the Law Society or by the Disciplinary Tribunal to the Court in such manner as the President may direct.

(III)     Subject as provided in subparagraph (I) of this paragraph of this rule, the President may remit the matter to the Disciplinary Tribunal to take further evidence for submission to the court and to make a supplementary report there on to the court."

44.              Subparagraph (I) of O. 53B, r. 9(h) makes clear that in the case of an appeal by a solicitor against a finding or findings of misconduct made by the Tribunal, the President is required to direct that the appeal to proceeds as a "full rehearing of the evidence laid before the...Tribunal" unless certain conditions are satisfied. Those conditions are, first of all, the relevant solicitor must be contending for a "less than full rehearing". Second, that proposed course must be "concurred in", that is, agreed to, by the Law Society.  Third, where, as in this case, someone other than the Law Society made the complaint and application for an inquiry into the solicitor's conduct, that person must also have agreed to that proposed course.  And, finally, the President of the High Court must also agree.

45.              As is clear from O. 53B, r. 9(h)(I), the default position is that an appeal by a solicitor against a finding or findings of misconduct which has been made by the Tribunal will proceed by way of a "full re-hearing" of the evidence which was before the Tribunal. That will be the position unless the four conditions to which I just preferred are satisfied. If one or more of those conditions is or are not satisfied, the default position applies and the appeal must proceed as a full rehearing.

46.              That analysis of the position is also supported by O.53B, r. 6(a). Under that provision, where a solicitor is appealing to the court against a finding or findings of misconduct, and where the Law Society has brought the report of the Tribunal before the court pursuant to s. 7(3)(c) of the 1960 Act (as amended), the President of the High Court is required not to enter upon a hearing of the Law Society's application but must first direct that this solicitor's appeal "shall proceed as a full rehearing of the evidence laid before the Disciplinary Tribunal" unless a "less than full rehearing" is sought by the solicitor and concurred in by the Law Society and by the relevant complainant and agreed to by the President. In other words, O. 53B, r. 6(a) confirms that the default position is a "full rehearing" of the evidence before the Tribunal unless the same conditions as are referred to in O. 53B, r. 9(h)(I) are satisfied.

 

6. Brief Summary of Submissions of Parties on Nature and Scope of Appeal

A.        Mr. O'Callaghan

47.              In his written and oral submissions to the Court, Mr. O'Callaghan contended that he was entitled to maintain an appeal from the decision of the Tribunal under both s. 7(11) and 7(13) of the 1960 Act (as amended). He relied on the judgment of Dunne J. in the Supreme Court in Sheehan in support of that claimed entitlement. However, as noted above, s. 7(11) simply does not apply as the Tribunal did not make any order or impose any sanction on Mr. O'Callaghan under s. 7(9). Further, Sheehan is of no direct assistance to Mr. O'Callaghan on this issue. The solicitor's appeal in that case was under s. 7(11). The Tribunal in that case had made an order under s. 7(9) imposing sanctions on the solicitor. He was, therefore, clearly entitled to appeal under s. 7(11). For the reasons already given, Mr. O'Callaghan can have no entitlement to appeal on s. 7(11) and his appeal is one which arises only under s. 7(13).

48.              While Mr. O'Callaghan did not necessarily dispute that all of the grounds of appeal which he has sought  raise by way of challenge to the Tribunal's decision or points which could have been raised by way of judicial review, he submitted that he was not required to bring judicial review proceedings and could rely on those points in his statutory appeal. He described his appeal (albeit by reference to s. 7(11) as being one which could be determined "in a manner analogous to a judicial review, rather than by a full rehearing" (para. 13 of Mr. O'Callaghan's written submissions).  He relied in support of his entitlement to bring a statutory appeal rather than a judicial review on the judgment of Dunne J. in the Supreme Court in Sheehan.  He also relied on a passage from the judgment of Clarke J in the Supreme Court in EMI Records (Ireland) v. Data Protection Commissioner [2013] 2 I.R. 669, where he referred to the "default position" as being that a party should pursue a statutory appeal rather than initiate judicial review proceedings (although there were certain caveats to that general statement) (per Clarke J. at para. 41, p. 728).  In further support of his entitlement to pursue a statutory appeal rather than to initiate judicial review proceedings, Mr. O'Callaghan relied on the fact that judicial review was a discretionary remedy and depended on the Court exercising its discretion in his favour.

49.              Mr. O'Callaghan also relied on various parts of the judgment of Clarke J. in the Supreme Court in Fitzgibbon v. Law Society of Ireland [2015] 1 IR 516. He submitted that the Court should treat the appeal in this case in the same way as it treated the appeal in Fitzgibbon.  However, it should be noted that the appeal in Fitzgibbon was brought by the solicitor under s. 11(1) of the Solicitors (Amendment) Act 1994 (the "1994 Act"). The High Court (Kearns P.) had held as a preliminary issue that the nature of the appeal in that case was not a de novo rehearing but was rather a review of the decision of a specialist tribunal in which the findings of that tribunal would be reviewed and oral evidence would be called only if necessary. That conclusion as to the nature of the appeal under s. 11 of the 1994 Act was endorsed by the Supreme Court on appeal.  The appeal in that case was, therefore, fundamentally different to the appeal in the present case (whether under s. 7(11) or s. 7(13)).

50.              With respect to O. 53B, Mr. O'Callaghan submitted that that provision was only intended to apply to appeals under s. 7(13) and not to appeals under s. 7(11).  Even if he was wrong about that, he submitted that he should nonetheless be permitted to run his appeal on the basis of a "less than full rehearing" where the President of the High Court permitted that course to be adopted.  He sought to argue that in addition to the jurisdiction which the President has under O. 53B, r. 9(h)(I), the Court also has an inherent jurisdiction to direct a "less than full rehearing". He submitted that all of the grounds on which he wishes to appeal can be dealt with without the need for a full rehearing.  He maintained that the Court could exercise that inherent jurisdiction even in circumstances where the complainant/respondent to the appeal, in this case, Nirvanna, did not agree.

51.              Mr. O'Callaghan further submitted that he would be prejudiced by a full rehearing. That prejudice would arise, he submitted, by reason of the principle upheld by the Supreme Court in O'Reilly v. Lee [2008] 4 IR 269. On the basis of the principles stated and applied by Macken J. in her judgment for the Supreme Court in that case, both of the allegations which Mr. O'Callaghan was making against the Tribunal would "all fall" in the case of a full rehearing by the High Court. He would be deprived of the opportunity of making his best points by way of challenge to the proceedings before and the decision of the Tribunal.

52.              In the event that the Court were to permit Mr. O'Callaghan to run his appeal on the basis of a less than full rehearing, Mr. O'Callaghan acknowledged that the Tribunal would have to be given an opportunity of being heard, notwithstanding that he had previously agreed to the Tribunal being removed as a party to the appeal and an order in those terms was made by me 16 December 2024.  He made clear that he was not applying for the Tribunal to be rejoined as a party to the appeal, but he submitted that if the Court was of the view that the Tribunal should be brought back into the proceedings, he would not object to that course being taken, and submitted that I would have the power to do so under O. 53B, r. 9(g).   

53.              Finally, Mr. O'Callaghan submitted it would be a much more efficient and expeditious way of dealing with his appeal in terms of costs and court time to proceed on the basis proposed by him.  He pointed out that the relevant documentation, including the transcripts of the hearings before the tribunal, had already been provided to the Court. It would not be necessary for witnesses to attend and give evidence or to be cross examined if his proposed course was adopted. Further, any additional documentation or information which the Court might require, could be provided in a timely cost-effective manner in written form.

 

B.        Nirvanna

54.              In its written and oral submissions, Nirvanna contended that the only appeal open to Mr. O'Callaghan in the circumstances is an appeal under s. 7(13) of the 1960 Act (as amended).  It correctly submitted that it was not open to Mr. O'Callaghan to appeal under s. 7(11), for the reasons I have already outlined.

55.              Nirvanna queried why Mr. O'Callaghan did not commence judicial review proceedings rather than a statutory appeal in circumstances where all of the grounds of appeal are judicial review type grounds and where Mr. O'Callaghan described the appeal for which he was contending as "analogous to a judicial review" (para. 13 of Mr O'Callaghan's written submissions)

56.              Nirvanna's position was that Mr. O'Callaghan's appeal under s. 7(13) must be by way of a full de novo appeal. In those circumstances, where the appeal would involve a full rehearing, all (or almost all) of the grounds relied on by Mr. O'Callaghan would fall away since the High Court would be conducting a full rehearing (albeit on the evidence laid before the Tribunal) to which fair procedures would be applied and in which the judge would not be biased or have the appearance of bias and would not act ultra vires. The High Court would have the opportunity of hearing the witnesses and would have to determine the extent to which cross examination of those witnesses should be allowed. In that respect, Nirvanna relied on the judgment of Macken J. for the Supreme Court in O'Reilly and on dicta to the same effect by Dunne J. in the Supreme Court in Sheehan.

57.              If Mr. O'Callaghan were permitted to run his appeal in the manner proposed by him, it would be unfair on Nirvanna in circumstances where Mr. O'Callaghan previously agreed to the Tribunal being released from the proceedings.  It would be unfair to expect Nirvanna to try to meet the grounds of appeal made by Mr. O'Callaghan where those grounds are essentially directed to the procedures adopted by the Tribunal. It would also be unfair on the Tribunal were Mr. O'Callaghan permitted to advance those grounds of appeal in the absence of the Tribunal.  In this regard, Nirvanna relied on dicta of Hogan J. in the High Court in Koczan v. Financial Services Ombudsman [2010] IEHC 407 (and, in particular, para. 19).  Justice would require the Tribunal, as the relevant decision maker, to be afforded the opportunity of defending its position. However, the Tribunal is no longer a party to the proceedings, having been released from the proceedings with the agreement of Mr O'Callaghan.

58.              Nirvanna submitted that the default position under O. 53B, r. 9(h)(I) is that there would be a full rehearing of Mr. O'Callaghan's appeal. Something less than a full hearing would only be permitted if Nirvanna, the Law Society and, ultimately, the Court agreed. Since Nirvanna has not agreed to anything less than a full rehearing, it submitted that the default position must apply. In this regard, Nirvanna relied on dicta of Dunne J. in the Supreme Court in Sheehan where she stressed (in connection with the predecessor to O. 53B, r. 9(h), namely, O. 53, r. 9) that the agreement of the complainant and the President of the High Court to a "less than full hearing" would be necessary in order to proceed in that manner. The "default position" is that the appeal must be a full rehearing.  In the absence of agreement by Nirvanna, it submitted that the appeal must proceed by way of a full rehearing. 

59.              Nirvanna disputed Mr. O'Callaghan's contention that to proceed in the manner he proposed would be more efficient in terms of court time and costs and would give rise to finality in the context of a complaint dating back to 2010 arising out of events dating back to 2006/2007. Nirvanna submitted that the approach for Mr. O'Callaghan contended would be likely to lead to greater costs and court time as, if Mr. O'Callaghan were to succeed in his appeal on the basis of the grounds advanced by him, the likely outcome would be a remittal of the matter to the Tribunal with a rehearing before the Tribunal and a possible return thereafter to the High Court by way of a further appeal. A full de novo appeal by way of a full rehearing in the High Court on the evidence laid out before the Tribunal would bring the matter to conclusion and achieve finality. That approach would not prejudice Mr. O'Callaghan in circumstances where he would have his full appeal in the High Court. 

 

C.        The Law Society

60.              The Law Society was not a party to the proceedings before the Tribunal. The complaint of misconduct against Mr O'Callaghan was made by Nirvanna and not by the Law Society.  The Law Society is, however, a notice party to Mr. O'Callaghan's appeal, having been joined as such by the order I made on 16 December 2024.  It is also the applicant in the application by which it has brought the Report of the Tribunal before the Court pursuant to s. 7(3)(c) the 1960 Act (as amended) and in which it seeks the various orders from the Court giving effect to the sanctions recommended by the Tribunal.

61.              The Law Society took a neutral position on the application before the Court, leaving it to the parties to advocate for their respective positions. However, the Law Society did make helpful written and oral submissions by way of assistance to the Court.

62.              The Law Society contended that since no order was made by the Tribunal under s. 7(9), it was not open to Mr. O'Callaghan to bring an appeal pursuant to s. 7(11) is only route of appeal is under s. 7(13). As indicated earlier, I agree with that.

63.              The Law Society helpfully drew to my attention some important passages in the judgment of Dunne J. in Sheehan, some of which I will refer to below.

64.              The Law Society acknowledged that most, if not all, of the grounds of appeal raised by Mr. O'Callaghan could have been brought by way of judicial review albeit that that did not necessarily mean that Mr. O'Callaghan was not entitled to maintain his statutory appeal on those grounds. However, relying on the judgment of Macken J. in the Supreme Court in O'Reilly and that Hogan J. in the High Court in a Koczan, the Law Society contended that the Tribunal would have to have an entitlement to respond to the grounds of appeal advanced by Mr. O'Callaghan which are directed to the procedures adopted by the Tribunal and which allege that those procedures were unfair and breached Mr. O'Callaghan's rights in several respects. The Law Society contended that it would be problematic for an appeal to proceed on the grounds contended for by Mr. O'Callaghan without the participation of the Tribunal and in circumstances where Mr. O'Callaghan previously consented to the release of the Tribunal from the proceedings.

65.              The Law Society further submitted that as most if not all of the grounds of appeal advanced by Mr. O'Callaghan are in the nature of judicial review type grounds of appeal, directed to the lawfulness of the decision-making process and the procedures adopted by the Tribunal as opposed to the merits or correctness of the findings of the Tribunal, the Court may well consider that those grounds of appeal would fall away in the event of a full rehearing/de novo appeal, in accordance with the principle identified by Macken J. in O'Reilly.

66.              The Law Society did not disagree that the default position is as set out in O. 53B, r. 9(h)(I), namely, that the default position is that the appeal would proceed as a "full rehearing" of the evidence before the Tribunal unless it, Nirvanna and the Court agreed to a "less than full rehearing".  While the Law Society was prepared to abide by whatever decision the Court were to make on the nature and scope of the appeal, it noted that Nirvanna was not agreeable to a lesser form of appeal.

 

7. Analysis and Decision

67.              I have concluded that there are a number of fundamental problems with the approach taken by Mr. O'Callaghan to his statutory appeal from the decision of the Tribunal under s. 7 of the 1960 Act (as amended). His attempt to seek to run what are essentially judicial review - type points in a procedure which he describes as "analysis to a judicial review" (para. 13 of his written submissions) as part of a statutory appeal under s. 7 of the 1960 Act (as amended) is fraught with difficulties for him. I will come to those difficulties in a moment.  While those problems and difficulties are bad enough for Mr. O'Callaghan, even worse for him, and in my view, fatal to the approach to the appeal for which he contended is the fact that the default position for his appeal mandated by the RSC in O. 53B, r. 9(h)(I) and also seen in O. 53B, r. 6(a)(i) is that the appeal must be conducted on the basis of a "full rehearing" of the evidence before the Tribunal unless something less than that is agreed to by Nirvanna, and also by the Law Society and by the Court. Nirvanna does not agree to a "less than full rehearing", and, in particular, does not agree with Mr. O'Callaghan's contention that his appeal on essentially judicial review type grounds can proceed by way of a statutory appeal under s. 7 of the 1960 Act (as amended).

68.              As we shall see, the Supreme Court in Sheehan made clear that the predecessor to O. 53B, r. 9(i)(I) provided for that default position which applied in the absence of agreement to something else by the relevant parties and by the court. In the absence of such agreement from Nirvanna, Mr. O'Callaghan's appeal cannot proceed other than by way of a full rehearing as required under O. 53B, r. 9(h)(I). In circumstances where the RSC make provision for the form of appeal and where something less than the full rehearing provided for as the default position is sought, there is in my view no scope for the Court to exercise an inherent jurisdiction to depart from the provisions of the rules. While the Court might be entitled to depart from the rules where some injustice would be suffered by Mr. O'Callaghan, it cannot credibly be argued that it would be an injustice to him to be required to run his appeal on the basis of the full rehearing mandated as the default position under the rules. There is in my view, therefore, no basis for exercising any inherent jurisdiction in this case to direct a less than full rehearing of the appeal, in circumstances where a critical party, namely, Nirvanna, does not, for good and valid reasons, agree to such a course being adopted. In the absence of agreement by Nirvanna to the approach to the appeal for which Mr. O'Callaghan contends, there is no basis for departing from the default position provided for in O.53B, r. 9(h)(I).

69.              While Mr. O'Callaghan purported to bring his appeal under s. 7(11) and under s. 7(13), as I indicated earlier, it is not open to him to maintain the appeal under s. 7(11) in circumstances where the Tribunal did not make any order under s. 7(9) and in fact expressly declined to do so and left the matter to the Court under s. 8 of the 1960 Act (as amended). The statutory appeal which Mr. O'Callaghan is entitled to bring is the appeal provided for s. 7(13), being an appeal from the findings of misconduct made by the Tribunal (which must encompass as part of that appeal an entitlement to dispute the recommendations as to sanction made by the Tribunal in the event that the findings of misconduct are upheld by the Court).

70.              While the parties referred to several authorities, I found the comprehensive judgment of Dunne J. in the Supreme Court in Sheehan to be of most assistance. In her judgment, Dunne J. refers to all of the other authorities relevant to the issue which I have to determine.

71.              Sheehan was an appeal by a solicitor to the High Court under s. 7(11) of the 1960 Act (as amended) from the decision of the Tribunal which made a finding of misconduct against the solicitor and imposed sanctions on the solicitor by orders made under s. 7(9). Although the solicitor's appeal was brought under s. 7(11), the Supreme Court proceeded on the basis that appeal was intended and understood by all to be an appeal from the finding of misconduct and from the sanctions imposed by the Tribunal.  The option of appealing under s. 7(11) was open to the solicitor in that case because, unlike this case, the Tribunal had made orders under s. 7(9).

72.              On his appeal to the High Court, the solicitor sought to raise two preliminary points. Both the High Court and the Court of Appeal decided that it was not open to him to raise those points in his statutory appeal. The two points were (i) whether certain issues were res judicata on the basis of a decision made by the Complaints and Client Relation Section of the Regulation Department of the Law Society on foot of an earlier complaint; and (ii) whether the Tribunal had jurisdiction to entertain the complaint in circumstances where the complaint had previously been referred to an independent adjudicator and whether, in those circumstances, the complaint was inadmissible under s. 7(1) of the 1960 Act (as amended).

73.              Both the High Court and the Court of Appeal decided that those two points could not be raised in the solicitor's statutory appeal. However, the Supreme Court disagreed. With respect to point (i), the Supreme Court held that was not a matter which went to the jurisdiction of the Tribunal but was a matter which the Tribunal could consider and which could equally be considered by the High Court on appeal. With respect to point (ii), the Supreme Court accepted that that was a point which went to the jurisdiction of the Tribunal and was an issue, therefore, that could properly be dealt with by way of judicial review.  However, the Court held that the fact that that point could have been dealt with by way of judicial review did not mean that it had to be dealt with in that way.  In certain cases, a party may have a choice of proceeding by way of statutory appeal or by way of judicial review. The Supreme Court held that this point was one which was suitable to be considered in the statutory appeal and that the solicitor was not obliged to bring judicial review proceedings in respect of that point. The Supreme Court reached that conclusion by carefully analysing two points that issue and concluding that they could be dealt with in the statutory appeal.

74.              However, the conclusion reached by the Supreme Court in Sheehan does not, in my view, provide any assistance to, or any support for, the approach to the hearing of the statutory appeal advocated for by, Mr. O'Callaghan. That is so for a number of reasons.

75.              First, the Supreme Court in Sheehan made clear that the default position under the predecessor rule to O. 53B, r. 9(h)(I) (which was O. 53B, r. 9(a)(i)) was that the statutory appeal under s. 7 (11) and/or s. 7(13) would proceed as a "full rehearing" of the evidence before the Tribunal unless a "less than full hearing" was agreed to by the other relevant parties. The default position, in such an appeal was, therefore, a full rehearing of the matter on the basis of that evidence (per Dunne J. at para. 57, p. 104). That is the default position here and in the absence of an agreement by one of the critical parties, namely, Nirvanna to something less than such a full hearing, the appeal must proceed by way of a full hearing.

76.              Second, it is clear from the judgment of Dunne J. that some points which might be sought to be raised in a statutory appeal under s. 7(11) and/or s. 7(13) may more properly be required to be made by way of judicial review. Dunne J. explained that a person dissatisfied with the outcome of a first instance hearing might, depending on the circumstances, have the option of pursuing a statutory appeal or initiating judicial review proceedings. She noted that since judicial review is available in order to examine the process by which a first instance decision was reached, it might not be the preferred remedy to seek when the merits of the issue before the first instance decision-maker are at issue. Dunne J. continued:

"It would, I think be fair to say that the narrower the scope of appeal, the more likely it is that judicial review would be the favoured remedy, whereas the broader the scope of appeal, the more likely that the statutory appeal would be to preferred option. That is a general observation but, of course, the choice of remedy will, in truth, be dictated by the circumstances of the case. Even if the statutory appeal involves a de novo hearing, judicial review may, in some circumstances, be the appropriate remedy, if the first instance hearing was conducted in a way that was in breach of fair procedures, for example, such that one could say that there was, in reality, no first instance hearing." (per Dunne J. at para. 63, pp. 107-108)

77.               That is precisely what Mr. O'Callaghan has alleged in all but one of the grounds of appeal on which he relies. Arguably, the only exception is ground (l), concerning the authority of Mr. Tom Fleming and Mr. Seán Fleming to make the complaint on behalf of Nirvanna (a matter which the Court of Appeal in the judicial review proceedings brought by Mr. O'Callaghan in this case found was a matter for the Tribunal to determine at the inquiry).

78.              In Koczan, Hogan J. in the High Court, in considering whether judicial review or a statutory appeal might be appropriate in a particular case, observed that:

"judicial review might also be appropriate where the complaint relates to the integrity or basic fairness of the decision-making process..." (per Hogan J. at para 19).

79.              In commenting on that passage, Dunne J. in Sheehan said that:

"...there are types of cases where the challenge to the decision that issue is one properly made by judicial review and that there are some types of cases where the challenge to a decision is best accommodated in the appeal process provided for [in] the particular statutory code." (per Dunne J. at para. 91, p.  119).

80.              However, as noted earlier, later in her judgment for the Supreme Court, Dunne J. found the fact that an issue could have been dealt with by judicial review did not mean that it was required to have been dealt with in that way. Much will depend on the particular issue raised and the circumstances of the case. The two points at issue in Sheehan could be dealt with by way of statutory appeal and did not have to be raised in by way of judicial review proceedings. However, all but one of the grounds of appeal in this case (and arguably also the last ground) are, as accepted by Mr. O'Callaghan, essentially judicial review type points. It is unnecessary, however, for me to reach a concluded view on whether Mr. O'Callaghan was required to proceed by way of judicial review in this case. It was not suggested by any of the parties that he was so required and that his failure to do so meant that he could not bring a statutory appeal. However, his reliance on those grounds of appeal (with the possible exception of the last ground) creates more fundamental difficulties for him as will shortly be apparent.

81.              Third, while it may be open to an appellant (and this case Mr. O'Callaghan) to raise judicial review type points by way of grounds of appeal in a statutory appeal, that does give rise to another fundamental problem.  That is the problem which was identified by the Supreme Court in O'Reilly and referred to and discussed by Dunne J. in her judgment for the Supreme Court in Sheehan.

82.              In O'Reilly, the Supreme Court had to consider the nature of an appeal by a person who had made a complaint of misconduct to the Tribunal as against a solicitor where the Tribunal found that there was no prima facie case of misconduct. The Supreme Court held that that appeal involved a hearing de novo (in other words a full rehearing) in the High Court where the arguments advanced by the appellant before the Tribunal and the respondent solicitor's response could be "exposed again and argued afresh" before the High Court which would decide the appeal on the basis of the materials which were before the Tribunal but having regard to the arguments made before the High Court which would be exercising an independent jurisdiction in the matter. Among the grounds of appeal raised by the appellant in that case was that members of the Tribunal could, for various reasons, be thought to be biased. He also sought to argue that the Tribunal had not provided appropriate and adequate reasons for its decision. In her judgment for the Supreme Court, Macken J. held that as the appeal was not a judicial review of the decision of the Tribunal, the arguments and complaints which the appellant sought to make and those of an analogous type "all fall" since there is a full appeal to the High Court "at which appeal both parties are heard again at an oral hearing in open court, where both can make legal and other relevance submissions on all matters, with a fresh determination of the issues and where a judgment is delivered on that appeal" (per Macken J. at para. 8, p.  273).

83.              That principle, where grounds of appeal of a procedural nature, such as in the present case, are considered to "fall" or to "fall away" on a statutory appeal involving a full rehearing, was again considered and approved by the Supreme Court in Sheehan. Having referred to that passage from the judgment of Macken J. in O'Reilly, Dunne J. in Sheehan commented:

"What was also made clear [in O'Reilly] is that certain matters which would be appropriately dealt with by way of judicial review all fall where the appellant pursues an appeal to the High Court. In other words, the Tribunal could deal with the matter before it in such a way as to give rise to an application for judicial review, but the party concerned may choose to pursue the statutory appeal instead, in which case all evidence, arguments and submissions can be heard again, and a new decision can be made in the circumstances by the High Court, and the issues that could have given rise to an application for judicial review 'fall away', or, to put another way, have no further relevance." (per Dunne J. at para. 68, p. 109)

84.              Dunne J. further observed, by reference to the principle in O'Reilly, that in the case of an allegation of bias on the part of the decision-maker at first instance, that issue would no longer be relevant in the case of a full appeal to the High Court. Dunne J. noted that "... what may be appropriate grounds for an application to a judicial review may not arise for consideration in the course of an appeal" (para. 85, p.  115).

85.              In my view, that principle applies to all but one of the grounds of appeal which Mr. O'Callaghan relies in his amended notice of motion. The only possible exception is ground (l). This is a fundamental problem for Mr. O'Callaghan in seeking to pursue a statutory appeal on a less than full rehearing basis and on the ground set out in his amended notice of motion.

86.              Fourth, another fundamental problem for Mr. O'Callaghan in seeking to pursue these grounds of appeal in a less than full rehearing is that (with the possible exception of ground (l)) the grounds are all directed to the process and procedure adopted by the Tribunal in the course of the inquiry and in producing its Report. Mr. O'Callaghan's case is that the proceedings before the Tribunal were unfair and in breach of his rights under the Constitution, under the European Convention of Human Rights and under the European Union Charter. The appropriate party to respond to those types of allegations would be the Tribunal itself and not Nirvanna. Macken J. in O'Reilly stated that in such a situation the relevant decision-maker or tribunal whose procedures and proceedings were being impugned would have to be named as a respondent to the proceedings (per Macken J. in O'Reilly at para. 7, p. 273). Hogan J. made a similar point in Koczan, where, having referred to the appropriateness of judicial review as opposed to a statutory appeal where the relevant complaint relates to the "integrity or basic fairness of the decision-making process", he stated that "in justice the decision-maker ought to be afforded an adequate opportunity of defending his or her position in judicial review proceedings which admit of the possibility of cross examination and oral evidence". (per Hogan J. at para. 19). That passage was cited with approval by Dunne J. in Sheehan.

87.              This is a major problem for Mr. O'Callaghan since he agreed to let the Tribunal out of the proceedings in November 2024. An order giving effect to that agreement was made by me on 16 December 2024. While the Court does have the power under O. 53B, r. 9(g) to add other parties to the appeal where it considers it "just" to do so, I would not be disposed to exercise the power to re-join the Tribunal to the proceedings in the particular circumstances of this case for the following reasons. First, Mr. O'Callaghan's solicitors and solicitors for the Tribunal engaged in a course of correspondence following which Mr. O'Callaghan agreed to release the Tribunal from the proceedings in November 2024 and it was formally released from the proceedings by order made on 16 December 2024.  Second, Mr. O'Callaghan has an entitlement to a full rehearing in his appeal under s. 7(13) of the 1960 Act (as amended). In those circumstances I do not believe that justice requires the rejoinder of the Tribunal as a party to the appeal as Mr. O'Callaghan will have the benefit of a full rehearing in his appeal before the High Court as provided for in O. 53B, r. 9(h)(I). He would suffer no prejudice by being required to follow the default position in the rules in circumstances where there is no agreement from Nirvanna to depart from that position. Third, most if not all of the grounds of appeal advanced by Mr. O'Callaghan will fall away or have no further relevance on a statutory appeal involving a full rehearing, in accordance with the principle in O'Reilly. Fourth, the re-joinder of the Tribunal to the appeal proceedings is likely to delay the achievement of finality in relation to the proceedings as it opens up the possibility of the matter being potentially referred back to the Tribunal with the possibility of further appeals from the Tribunal back to the High Court. All of that would be most unsatisfactory in the context of a complaint dating back to 2010 in respect of a property transaction dating back to 2006/2007.

88.              In these particular circumstances, I believe that it would not be unjust to require Mr. O'Callaghan to pursue his appeal by way of the full rehearing referred to in the RSC and that it would not be necessary in those circumstances to rejoin the Tribunal as a party to the appeal. Nor do I believe that justice would require the Tribunal to be re-joined to the proceedings.

89.              Fifth, the facts of this case are very different to the facts of the case as relied on by Mr. O'Callaghan including Fitzgibbon and Sheehan. The statutory provision at issue in Fitzgibbon, which arose under s. 11(1) of the 1994 Act, did not provide for a de novo rehearing on the appeal. That is completely different to the appeal at issue here, under s. 7(11) of the 1960 Act (as amended). Further, as explained earlier, Sheehan is also very different to this case. The two preliminary grounds which the Supreme Court held could be considered in the statutory appeal are very different to the grounds raised by Mr. O'Callaghan in his notice of appeal. Mr. O'Callaghan's grounds are essentially judicial review type grounds. Mr. O'Callaghan faces the various fundamental problems with advancing those grounds discussed earlier.

 

Conclusions

90.              For these reasons, I have concluded that Mr. O'Callaghan's appeal is one which arises only under s. 7(13) of the 1960 Act and must proceed on the basis of the default position set out in O. 53B, r. 9(h)(I) RSC i.e. by way of a full rehearing of the evidence before the Tribunal.

91.              As I indicated when giving my decision at the conclusion of the hearing, it will be necessary for Mr. O'Callaghan to serve an amended notice of motion setting out amended grounds of appeal if he wishes to challenge the substantive findings of misconduct made by the Tribunal as part of his appeal. It will also be necessary, in order for his appeal to survive, for Mr. O'Callaghan to frame his grounds of appeal in order to avoid the consequences of the application of the principle applied in O'Reilly and in Sheehan whereby his judicial review - type points would all "fall away" in the case of a full rehearing.

92.              At the conclusion of the hearing, I suggested that a draft amended notice of motion setting out amended grounds appeal to address these issues would be provided on behalf of Mr. O'Callaghan and that engagement would take place between the parties so that further directions can be made for the hearing of Mr. O'Callaghan's appeal as soon as possible.

93.              Having regard to the antiquity of the complaint it is essential that the appeal is brought on for hearing as soon as possible. I will ensure that the necessary resources of the court are made available to enable that to happen.

 

9. Preliminary View on Costs

94.              Since Mr. O'Callaghan has been entirely unsuccessful in advocating for a more limited form of appeal than that provided for in the RSC, and since Nirvanna has been entirely successful in opposing the position adopted by Mr. O'Callaghan, it is my preliminary and provisional view that, having regard in particular to the provisions of ss. 168 and 169 of the Legal Services Regulation Act 2015, Mr. O'Callaghan should be responsible for Nirvanna's costs of the determination of the preliminary issue as to the nature and scope of Mr. O'Callaghan's appeal. It is my preliminary view, therefore, that there should be an order for costs in favour of Nirvanna as against Mr. O'Callaghan in respect of the determination of that issue. However, it is also my preliminary view that there should be a stay of execution and enforcement on that order for costs pending the determination of Mr. O'Callaghan's appeal in the High Court. It is also my preliminary view that the Law Society should bear its own costs.

95.              These are merely preliminary views and I retain an open mind on these issues should any of the parties wish to advocate for a different order for costs.

 

10. Further Listing

96.              I will list the matter for mention at 10:30am on Thursday 5 June 2025 for final orders and for further direction for the hearing of Mr. O'Callaghan's appeal.

 

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