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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> Kirwan v O'Leary & Anor; Kirwan v O'Leary & Ors (Approved) [2025] IEHC 337 (16 June 2025)
URL: http://www.bailii.org/ie/cases/IEHC/2025/2025IEHC337.html
Cite as: [2025] IEHC 337

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THE HIGH COURT

 

[APPROVED]                                                                                                [2025] IEHC 337

 

 [2020 No. 78 S.A.]

 

 

 

IN THE MATTER OF THE SOLICITORS ACTS 1954 - 2015

AND IN THE MATTER OF JOHN O'LEARY AND BRIDGET O'LEARY

SOLICITORS

 

 

 

 

BETWEEN

 

BRENDAN KIRWAN

 

 

 

APPELLANT

 

 

 

AND

 

 

 

 

JOHN O'LEARY AND BRIDGET O'LEARY

 

 

 

RESPONDENTS

 

 

AND

 

 

 

 

 

SOLICITORS DISCIPLINARY TRIBUNAL

 

 

 

NOTICE PARTY

 

 

[2020 No. 79 S.A.]

 

 

IN THE MATTER OF THE SOLICITORS ACTS 1954 - 2015

AND IN THE MATTER OF JOHN O'LEARY, BRIDGET O'LEARY, SEAMUS TURNER, PETER REDMOND, CORMAC MULLEN, CATHERINE O'CONNOR, SEAN NOLAN, GERAINE O'LOUGHLIN AND WENDY SMITH SOLICITORS

 

 

BETWEEN

 

 

BRENDAN KIRWAN

 

 

APPELLANT

 

 

AND

 

 

 

 

JOHN O'LEARY, BRIDGET O'LEARY, SEAMUS TURNER, PETER REDMOND, CORMAC MULLEN, CATHERINE O'CONNOR, SEAN NOLAN, GERAINE O'LOUGHLIN AND WENDY SMITH

 

 

RESPONDENTS

 

 

AND

 

 

 

 

 

SOLICITORS DISCIPLINARY TRIBUNAL

 

 

 

 

NOTICE PARTY

 

 

JUDGMENT of Mr. Justice David Barniville, President of the High Court, delivered on the 16th day of June, 2025

Index

1. Introduction and Summary..........................................................................1

2. Relevant Factual Background.......................................................................2

3. The Appeals............................................................................................3

4. High Court Practice Direction HC90 and Order 117A RSC.................................4

5. Subsequent Developments..........................................................................5

6. Mr. Kirwan's Appeals to the Supreme Court...................................................6

7. The Decision of the Supreme Court...............................................................7

8. Developments After the Supreme Court Judgment and Order..............................8

9. Hearing on 19 February 2025......................................................................9

10. Decision on the Application.......................................................................10

 

 

 

1. Introduction and Summary

1.                  This is my judgment on an application by the Appellant, Brendan Kirwan ("Mr. Kirwan"), for an extension of time to appeal to the High Court against two decisions of the Solicitors Disciplinary Tribunal (the "Tribunal").  I am only dealing in this judgment with Mr. Kirwan's application to extend the time to appeal against those two decisions and not with any of the other reliefs he seeks in the various motions he has issued.

2.                  Mr. Kirwan has sought to appeal to the High Court under s. 7(12A) of the Solicitors (Amendment) Act 1960 (as amended) (the "1960 Act") from two decisions of the Tribunal made on 8 October 2020.  In those decisions, the Tribunal found that there was no prima facie case of misconduct on the part of the various solicitors against whom Mr. Kirwan had made complaints. 

3.                  Having received notification of the decisions on 9 October 2020, Mr. Kirwan sought to appeal to the High Court from the decisions by notices of motion which he sent by email to a Registrar of the High Court on 29 October 2020 and by prepaid registered post sent to the Central Office of the High Court on 29 October 2020, which was received by that office early on 30 October 2020. These events occurred at the height of the Covid-19 pandemic when certain special procedures were in place for the lodgement of documents in the Central Office.

4.                  Following receipt of Mr Kirwan's documents in the Central Office, there were some interactions between Mr. Kirwan and staff in the Central Office of the High Court in November and December 2020.  However, the motions by which Mr. Kirwan sought to appeal to the High Court from the two decisions were not in fact issued out of the Central Office of the High Court until 21 December 2020, when the then President of the High Court, Irvine P., made an order giving Mr. Kirwan leave to issue the motions. Those motions, which had been given Intended Action (IA) record numbers (2020 No.112 IA and 2020 No 113 IA), were assigned record numbers 2020 No. 78 SA and 2020 No. 79 SA, once they were issued. 

5.                  Following certain further orders and directions made by Irvine P., certain of the Respondents brought applications in the two cases in June 2021 to strike out Mr. Kirwan's appeals on the grounds that they were out of time, in circumstances where it was claimed that his motions were issued outside the 21-day period referred to in s. 7(12B) of the 1960 Act (as amended).  Following a hearing over a number of days in October and November 2021, Irvine P. held, in a judgment delivered in March 2022, that Mr. Kirwan's two motions were issued out of time and she granted the relief sought in the Respondents' two applications striking out Mr. Kirwan's appeals. 

6.                  Mr. Kirwan then sought and obtained leave to appeal from the judgment and order of Irvine P. to the Supreme Court. In a Determination made on 19 December 2022, and in a further ruling given, and order made, by the Supreme Court on 1 March 2023, the Supreme Court gave Mr. Kirwan leave to appeal from the judgment and order of Irvine P. to the Supreme Court in respect of three issues.  Those issues were:

(i)         Whether the delivery by registered post of documents constituted the making of an appeal under s. 7(12A) of the 1960 Act (as amended), whether pursuant to the provisions of High Court Practice Direction HC90 or otherwise;

(ii)        If not, whether on true interpretation, s. 7(12A) and (12B) of the 1960 Act (as amended) do not permit the bringing of an appeal from the decision of the Tribunal that no prima facie case has been established outside a 21-day period; and

(iii)       Whether, if so, the High Court has any power to extend time for the bringing of such an appeal. 

7.                  The Supreme Court heard and determined the appeal (by a 3:2 majority decision) in November 2023. The majority judgment of Murray J. (with whom Dunne J. and O'Malley J. agreed) and the minority judgment of Woulfe J. (with whom Charleton J. agreed) are found at [2023] IESC 27. By majority decision, the Court decided that Mr. Kirwan's appeals were outside the 21-day period prescribed by s. 7(12B) of the 1960 Act (as amended). However, the Court held that (i) s. 7(12B), when properly construed, did not preclude the possibility of the High Court having the power to extend the time for bringing an appeal from such a decision of the Tribunal; (ii) the section should be interpreted as enabling the High Court to grant such an extension of time in an appropriate case; (iii) the bringing of an application to extend time for bringing such an appeal is governed by O. 121, r. 4 RSC; (iv) the principles by reference to which the High Court would have to decide whether to grant such an extension of time were those (then) most recently set out by the Supreme Court in Seniors Money Mortgages (Ireland) DAC v. Gately [2020] IESC 3, [2020] 2 I.R. 441.  In those circumstances, the Supreme Court allowed the appeal from the decision of Irvine P. and set aside the orders that she had made in respect of both appeals. The Supreme Court remitted the matter to the High Court to be further determined in accordance with the decision of the Supreme Court. 

8.                  Following further correspondence and submissions, an order was made by the Supreme Court in respect of both appeals on 8 July 2024, giving effect to the decision of that court.

9.                  By two further motions issued on 10 October 2024, Mr. Kirwan sought to have both of his appeals relisted before the High Court. Those motions were listed before me on 21 October 2024. While various reliefs were sought by Mr. Kirwan in those motions, and while initially Mr. Kirwan and his son, Mr. Barry Kirwan, who has been assisting his father throughout, were under the impression that the Supreme Court had granted an extension of time to Mr. Kirwan in respect of both of his appeals to the High Court from the decisions of the Tribunal as opposed to remitting the matter to the High Court for this Court to hear and determine any application for such an extension of time, ultimately, following clarifications and further directions given by me, Mr. Kirwan issued two further motions on 23 January 2025, seeking (amongst other things) an extension of time in each case to appeal to the High Court from the decisions of the Tribunal which found that his complaints did not disclose a prima facie case of misconduct against any of the solicitors concerned. Mr. Kirwan again sought other reliefs in those motions apart from an extension of time. However, I decided that the Court would first of all hear and determine Mr. Kirwan's applications for an extension of time to appeal in both cases. 

10.              Those appeals were heard by me on 19 February 2025.  Only three of the respondent solicitors named in both of the appeals were represented and participated at that hearing. They were John O'Leary, Bridget O'Leary and Seamus Turner. Some of the other respondent solicitors had participated to various extents previously in the High Court and at the very early stages of Mr. Kirwan's appeals to the Supreme Court. However, they did not participate when the matter was remitted by the Supreme Court to the High Court. Nor did the Tribunal, which was a notice party to Mr. Kirwan's applications.

11.              The position adopted by the three Respondents who were represented and who did participate in Mr. Kirwan's extension of time applications, as conveyed to the Court by their counsel, was that they were neither consenting nor objecting to the extensions of time sought.  However, counsel on their behalf stressed that the allegations contained in the complaints against his clients were just that, allegations, and that they were strenuously disputed by his clients. Insofar as the Court might have to consider whether Mr. Kirwan had demonstrated arguable grounds of appeal, it was stressed by counsel for the three solicitors that the issue to determine on these applications was merely whether there were arguable grounds for an appeal against the Tribunal's finding in each case that no prima facie case arose and that nothing more than that was required to be determined at this stage. 

12.              For the reasons set out in greater detail in this judgment, I have concluded that, ultimately, the balance of justice (which the Supreme Court held in its majority decision in Mr. Kirwan's appeal was the "critical inquiry" which I have to conduct in the exercise of my discretion as to whether or not to grant the extensions sought) lies in favour of granting the extensions of time sought by Mr. Kirwan to appeal the two decisions of the Tribunal at issue which found that his complaints did not disclose a prima facie case of misconduct against any of the solicitors concerned. 

13.              In considering the manner in which I should exercise my discretion and in ultimately conducting the "critical inquiry" as to where the balance of justice lies, I have considered the specific statutory context, being the 1960 Act (as amended), and all of the circumstances of the case, including the following, that (i) Mr. Kirwan clearly formed a bona fide intention to appeal from the two decisions of the Tribunal within the 21-day period referred to in s. 7(12B) of the 1960 Act (as amended) and O. 53, r. 12(a) (which was the relevant provision at the time that Mr. Kirwan sought to bring his appeals) and attempted to bring his appeals within that period; (ii) Mr. Kirwan's failure to appeal within the 21-day period (as found by the Supreme Court) is explicable by reference to "some factor akin to a mistake" (in the words of Murray J. at para. 104 of his majority judgment in this case), namely, Mr. Kirwan's sending copies of the notices of motion and affidavits to the Registrar in the Central Office by email within the 21-day period and sending the documents themselves by registered post on the same day, albeit that they arrived on the following day, just outside the 21-day period; (iii) Mr. Kirwan has raised arguable grounds of appeal from the Tribunal's finding that there was no prima facie case in relation to the allegations of misconduct made, at least in respect of some of his complaints. I have, however, not applied a high threshold of arguability in respect of the grounds of appeal sought to be relied on by Mr. Kirwan, given (a) the very marginal nature of the delay, (b) the fact that what is at issue is whether Mr. Kirwan has raised arguable grounds of appeal from the Tribunal's findings that no prima facie case of misconduct was advanced by Mr. Kirwan and that the appeals will focus on that issue and not, at that stage, on whether any misconduct against any of the solicitors concerned has been established; (c) the Legislature clearly intended that a person who has made a complaint in respect of which the Tribunal finds no prima facie case established should be entitled to appeal against that finding; (d) the only three respondent solicitors who participated in the hearing of Mr. Kirwan's applications to extend time before me neither consented nor objected to the extensions of time sought and none of the other respondent solicitors participated or conveyed any objections to the Court; and (e) I can identify no other factors militating against the granting of the extensions of time sought in the particular circumstances of the case.

 

2. Relevant Factual Background

14.              In setting out the relevant factual background, I am very conscious of the fact that I am only deciding a very limited issue in this judgment, namely, whether Mr. Kirwan should be granted an extension of time to appeal to the High Court against the Tribunal's decisions that his complaints did not raise a prima facie case of misconduct against any of the solicitors concerned. I am also conscious of the fact that Mr. Kirwan's complaints form part of a series of disputes between Mr. Kirwan and the various solicitors concerned as well as other parties. Some of those disputes have been the subject of other proceedings. Indeed, Mr. Kirwan's civil proceedings against the solicitors were the subject of an appeal which was recently decided by the Supreme Court in Kirwan v. Connors & Ors [2025] IESC 21. I am not concerned with those proceedings albeit that it may be that certain issues addressed in the judgment of the members of the Supreme Court in that case may have a relevance to the issue as to whether Mr. Kirwan's complaints did give rise to a prima facie case of misconduct on the part of any of the solicitors concerned. However, that issue may only arise for consideration if I decide that Mr. Kirwan is entitled to the extensions of time which he seeks and, only then, by the judge who ultimately hears Mr. Kirwan's appeals from the two decisions at issue.

15.              Bearing all that in mind, I do not believe that I can improve on the summary of the relevant factual background to Mr. Kirwan's complaints which was set out by Murray J. in his judgment for the majority of the Supreme Court in Kirwan v. O'Leary & Ors [2023] IESC 27 (referred to for convenience as the "Time Bar Appeal").

16.              I set out that factual background below as found at paras. 3 to 18 of the judgment of Murray J. in the Time Bar Appeal:

"3.       The sequence of events begins in 2005. In the course of that year, the applicant and a Mr. Eamonn Buttle were engaged in discussions with a view to the sale by the applicant to Mr. Buttle of property owned by him in Wexford town. At a certain point in their discussions (according to the applicant, at a point after an agreement had been reached as to the essential terms of the proposed transaction) they consulted the firm of MJ O'Connor Solicitors, of whom both were long standing clients. Matters ended up with Mr. Buttle's interests being represented in connection with the transaction by the first respondent, a senior partner of the firm. The applicant's interests were handled by a legal executive employed by MJ O'Connor. The legal executive was not a qualified solicitor. The respondents say that she was a person who had many years of experience in dealing with conveyancing transactions, that she had been engaged in other commercial property transactions for the applicant in the past and that he knew that she was not a solicitor. The applicant disputes this and says that the respondents arranged matters in such a way that he would be represented and advised by a person who was - unbeknownst to him - not a solicitor and who was under the control of the first respondent. This, he says, resulted in his being given legal advice by a person who had no entitlement so to do and his being, in consequence, significantly disadvantaged by the transaction.

4.         As a result, he says, the legal documentation produced around the transaction (all relevant components of which purport to bear his signature) did not reflect the agreement he had actually reached with Mr. Buttle. He says that that agreement was to involve the acquisition by Mr. Buttle of the properties in question for a sum of €4M, with €1M to be paid from the outset. The written documentation, on the other hand, evidences an advance to the applicant of €1M, secured by a mortgage over some of the properties, and a contract of sale that was conditional upon the obtaining of certain planning permission. While the applicant does not in any affidavit before this Court deny that what purports to be his signature on some or all of these documents is in fact his signature, he does deny that he signed some of the documents on the dates on which they were purportedly signed, and he consistently asserts that he was at all relevant times acting under the influence of the legal executive and/or the first named respondent. In the course of oral submissions on this appeal, the Court was advised that the applicant signed various papers that were put before him, the suggestion being that he was not aware of what, precisely, he was signing.

5.         Ultimately, the property market entered a rapid decline in the course of 2008 and the transaction did not proceed. A number of legal actions followed. Mr. Buttle claimed to be entitled to recover from the applicant the sum of €1M which, Mr. Buttle said had been advanced to the applicant by way of loan.  Thereafter, that alleged debt was purportedly assigned to a company called Filbeck Limited ('Filbeck'), which proceeded to seek judgment against the applicant in that sum. On 15 November 2012, Filbeck obtained judgment in default of appearance in the amount of €1,056,936 against the applicant, the applicant subsequently moving to set this judgment aside.  The applicant thereafter sought judgment against Mr. Buttle in separate proceedings in the sum of €3M arising from the terms (as he alleged them to be) of the failed contract. Mr. Buttle brought an application to have these proceedings struck out in February 2013, that application being successfully resisted by the applicant on the basis that the determination thereof should await the outcome of another set of proceedings instituted by the applicant in May 2013 against Mr. Buttle, members of his family and Filbeck, together with the firm of MJ O'Connor Solicitors. His claim against MJ O'Connor Solicitors in that third action sought damages for negligence and breach of contract and contained a wide range of allegations against that firm arising from its representation of the applicant in connection with the transaction.

6.         Those latter proceedings were the subject of successful applications to the High Court by the defendants thereto to strike out for want of prosecution, the decision of that Court being upheld by the Court of Appeal. This has resulted in a separate appeal to this Court. The first and second named respondents swore affidavits in connection with these applications. The course of these proceedings is charted, and the facts elaborated upon further in the decisions of the High Court and Court of Appeal recorded at [2019] IEHC 954, and [2022] IECA 242, and in the Determination of this Court granting leave to appeal in that matter, [2023] IESCDET 34.[1]

The complaints

7.         On 16 and 19 September 2019 Mr. Kirwan delivered two applications to the SDT pursuant to s. 7 of the 1960 Act, as substituted by s. 17 of the Solicitors (Amendment) Act 1994 ('the 1994 Act') and as amended by s. 9(g) of the Solicitors (Amendment) Act 2002 ('the 2002 Act'). The second in time sought an inquiry into alleged misconduct of all of the respondents, who were identified as the partners at the relevant time of the firm of MJ O'Connor Solicitors ('the firm'). The first was against the first and second named respondents alone.

8.         Each application made wide ranging allegations against the respondents of various forms of illegality. Complaints were made of the fact that the respondents sought to recover fees from the applicant for work that, the applicant said, was done by a person lacking the necessary qualification. He says that he was deceived into thinking that the legal executive was a solicitor, that he thus instructed her to 'implement the €4 million sale' and that she personally undertook to do so.  He says that due to his chronic dyslexia, he was 100% reliant on the legal executive and that he trusted her.  However, he alleges that the legal executive was, in fact, working for the first respondent. He says that the first respondent facilitated her in acting as she did so that he could be in total control of both parties to the transaction.

9.         Mr. Buttle, the applicant contends, wanted the deal structured in a manner that was prejudicial to the applicant. He says that 'it is alleged that Brendan Kirwan granted a Mortgage in favour of Eamonn Buttle, which is disputed' and complains that the legal documentation used to record this alleged mortgage has never been put forward by Mr. Buttle or the firm. He says that no letter of instruction to the legal executive exists, and disputes that she had any authority to act in a manner that would bind him.  Later in his application he asserts that the legal executive was acting as Mr. Buttle's agent. He says that the first respondent was 'in control' of the legal executive and thus of both sides of the transaction. He lays considerable stress on the fact that various documents subsequently relied upon by Mr. Buttle were dated 5 July 2006 when, the applicant says, he was in France.

10.       In the course of his affidavit, the applicant says that the fact that what he describes as 'the alleged agreements' were witnessed by the first respondent and the legal executive confirms that the applicant had no solicitor present on 5 July 2006 and that the legal executive was acting 'as legal executive of Mr. John O'Leary, and not as solicitor for Brendan Kirwan'.  He describes the agreements as 'one sided agreements where they purport to be executed on a date when Brendan Kirwan was not in the country, and Mr. Buttle, and his Solicitor Mr. John O'Leary and his legal executive were all present yet none of them witnessed the signature of Brendan Kirwan on said agreements ...'.

11.       He alleges that these events disclose inter alia a conflict of interest, a breach of various provisions of the Solicitors Acts (and in particular ss. 55 and 56 of the Solicitors Act 1954), a failure to protect his interests, a failure to make disclosure to him and a failure to ensure that he received proper and adequate legal advice and representation. 

12.       The application pertaining to the first and second respondents listed eighteen complaints, said to arise from their actions in what is described as the aiding and abetting of what are characterised as false claims made by Mr. Buttle, members of Mr. Buttle's family and Filbeck. While the overall context is the same as that giving rise to the complaint against the firm as a whole of 19 September, complaints are also made relating to the various sets of legal proceedings to which I have earlier made reference (record numbers 2011 4998S, 2012 2995S and 2013 5514P respectively). The applicant says that in the course of the second and third of those proceedings it was falsely claimed by the first and second named respondents that documents were agreed, signed and witnessed on 5 July 2006 when, it is contended, the applicant was in France, and it is claimed that inconsistent accounts were given of relevant matters by the respondents in those proceedings, on the one hand, and before the SDT, on the other.   The applicant says that the alleged mortgage of that date was lodged to the Registry of Deeds, and that procuring the registration of false instruments is fraud and misconduct as well as a breach of s. 41 of the Registration of Title Act 1964.  He alleges that what he claims to be forged documents were used in these High Court proceedings in an attempt to avoid what he says is the €4 million payment to him, the alleged forgeries then being relied upon to seize all his properties.  

13.       All of this is said, in various ways, to represent breaches of the Solicitors Acts, perjury, and breach of various provisions of the Criminal Justice (Theft and Fraud Offences) Act 2001, the Criminal Justice Act 2011, the Non-Fatal Offences Against the Person Act 1997 and the Registration of Title Act 1964. Also included in his complaints are claims that by refusing to answer a notice for particulars and (as alleged) withholding true facts from the Court in case 2013 5514P, these respondents engaged in perjury, subornation and that they breached the Commissioners for Oaths Act 1889. The applicant demands the return of the fees paid by him, on the basis that they were paid for the services of a person who was not in fact a qualified solicitor.

14.       Those claims were disputed in affidavits delivered by and on behalf of the various respondents. The principal affidavits were sworn by the first respondent, in which he deposed on behalf of himself, the second respondent and the firm of MJ O'Connor.  He said that the applicant was an experienced businessman of long standing who had engaged in property investment and development ventures. He alleged that the applicant had over the years consented to act as director of several companies and said that the firm of MJ O'Connor had had many dealings with the applicant over a period of eleven years prior to the events of 2006. The first respondent averred that he had never understood the applicant to consider himself a vulnerable person: he described the applicant as 'competent and well capable of managing his affairs and of understanding, and discussing knowledgably, the concepts and dealings concerned'.  He said that from 2003 onwards the applicant's primary point of contact at the firm was the legal executive, who had also acted in connection with other property transactions to which the applicant had been party. She was, the first respondent says, a senior legal executive with a specialisation in conveyancing and was held out as such. Mr. O'Leary says that the first contact the firm had in relation to the transaction giving rise to the complaint was when he was contacted by Mr. Buttle at the end of 2005, at which point he says that Mr. Buttle advised him of an intended transaction between him and the applicant. The first respondent says that he was advised by Mr. Buttle that the legal executive would be acting for the applicant in connection with that transaction. The deal as explained to him involved, the first respondent says, the sale by the applicant of property in Wexford town in return for a cash consideration of €1M together with developed property comprising a commercial unit and several apartments. The first respondent says that Mr. Buttle instructed him that the deal was to be subject to planning permission.

15.       The first respondent refers to a meeting between the legal executive, the applicant, his son and his accountant, in which the respondents contend inter alia it was said that the applicant was adamant that he would not sell if planning permission for the proposed development was not forthcoming, that he was insistent on getting the €1M cash in advance, that the applicant would have to repay this sum in the event that planning permission was not obtained and that this repayment obligation would be secured by a mortgage over certain lands to be given by the applicant to Mr. Buttle.  The first respondent says that the documents were signed by the applicant in April 2006, were returned to him by the legal executive on the 20th of that month and were held 'in suspense' to allow for the resolution of an issue affecting the applicant's ability to grant the required first ranking mortgage to Mr. Buttle in circumstances in which National Irish Bank was a prior encumbrancer over the property in question.  He said that that issue was resolved in early July 2006, and the agreements were dated 5 July 2006 and 'came into effect'.  

16.       The first respondent's evidence is that the applicant is the author of his own misfortune, having been unable or unwilling to repay the €1M advance that he obtained from Mr. Buttle.  He says that when the deal with Mr. Buttle fell through the applicant could have repaid Mr. Buttle, retaining his own property (which, the first respondent says, the applicant retains to this day - unless he otherwise voluntarily disposed of it).  The first respondent exhibited letters dated 20 April 2009 and 21 July 2009 in which the applicant acknowledged rescission of the sale contract and his indebtedness to Mr. Buttle and offered property in discharge of his debt.   Separate affidavits were delivered in the second complaint by Messrs. Nolan, Mullen, Smith, Redmond, O'Loughlin and Ms. O'Connor. Effectively, these persons said that they had no familiarity or knowledge of the facts and circumstances referred to in the applicant's complaint.

17.       The applicant responded to these affidavits repeating many of his previous averments and assertions, claiming that in a variety of different respects the High Court judge in deciding the application to dismiss the third proceedings, had erred and failed to address submissions and claims made by him. He claims that the respondents failed to correct errors thus made by the judge.  He referred to the fact that he had been sued by MJ O'Connor for fees, and that all partners must have known of this, and of the fact that the legal executive was not a solicitor. He says that while Mr. Buttle in the course of the High Court proceedings had denied that there was any agreement to sell the properties to him for €4M, Mr. O'Leary's affidavits show that there was such an agreement. It is then alleged that the respondents withheld this information from the High Court. Similarly, he says that while Mr. Buttle claimed in affidavits sworn by him before the High Court that the contract was entered into in July 2006, Mr. O'Leary claimed before the SDT that the agreement was made in April. He emphasises the fact that there are two versions of a side letter purportedly signed by him and dated 23 March 2006 and claims that these disclose materially different considerations for the transaction (one, he says, shows a consideration of €4M and the other a consideration of €2M). He says that the first respondent was acting as his solicitor in connection with another matter as late as November 2009, and disputes claims by the first respondent that the second respondent was involved only in incidental dealings with the applicant some years after the firm's substantive role had come to an end. He questions the credibility of the claim that he would have entrusted as important a transaction as the agreement with Mr. Buttle to a person who was not a solicitor, claiming that there were other clients of the firm who were led to believe that the legal executive was a solicitor. Assertions by the first respondent that the legal executive was described on the firm's website throughout the relevant period as such, are disputed.  The applicant says that one of the developments which the first respondent said was handled by the legal executive in fact involved other members of his family.  He repeatedly draws attention to the fact that the papers appended by the respondent to their affidavits do not disclose any attendance recording the applicant as signing any documents in April 2006. He points to a number of issues arising from the National Irish Bank indenture and memorandum of partial release which, he says, were not executed until February 2008, and that this is long after it was (as he describes it) falsely claimed that the applicant had signed them on 23 June 2006 (when, he also says, he was in France). He claims that the letters of 20 April 2009 and 21 July 2009 are 'completely false and entirely disputed'.  He also disputes claims by the first respondent that once it became apparent that there was a controversy between the applicant and Mr. Buttle, he told Mr. Buttle that he could no longer act for him, pointing to a letter sent to the applicant's then solicitors on 7 July 2010 in which it was said that the firm had instructions to institute proceedings against the applicant. This letter also stated that the firm would not act for Mr. Buttle and Filbeck if the applicant objected to its so doing.

18.       In decisions issued on 8 October 2020, the SDT determined that neither of the complaints disclosed a prima facie case of misconduct.  Those decisions were based on the papers alone and were not proceeded by an oral hearing.  The SDT found that the allegation that the legal executive acted as a solicitor or held herself out as such had been sufficiently rebutted - she was, it said, an experienced legal executive providing legal services under the supervision and in the employment of a solicitor (the solicitor under whose supervision she was providing those services is not identified by the SDT).  It said that there was no evidence that the legal executive was held out as a solicitor, emphasising that the applicant had dealt with her for 'some years'. It found that the applicant was aware that the first respondent was the legal executive's 'boss'. Allegations of deception or concealment, lack of independence, and of forgery and perjury had, it said, been sufficiently rebutted.  It said that 'while it might have been imprudent for the firm to act for both sides in a transaction, that itself is not evidence of a lack of independent advice or misconduct'. Allegations that the High Court had been deceived by the respondents was a matter for that Court and that allegation had been sufficiently rebutted. The SDT noted that Meenan J. in the course of the High Court proceedings had expressed the view that those proceedings were based on a failed commercial venture for which the applicant sought to attribute blame to the respondent solicitors, and concluded that the complaints in this case, issued many years after the events, had the same basis."

 

 

 

3. The Appeals

17.                  Having made reference to the decisions of the Tribunal which found that Mr. Kirwan's complaints did not disclose a prima facie case of misconduct against any of the solicitors concerned, Murray J. then outlined the attempts by Mr. Kirwan to appeal to the High Court from those decisions under s. 7(12A) of the 1960 Act (as amended). The detail here is important to Mr. Kirwan's application for an extension of time to bring his appeals.

18.                  The Acting Registrar of the Tribunal communicated the Tribunal's decision in respect of each of the two complaints by letter dated 8 October 2020 sent to Mr. Kirwan by registered post that day. Those letters were received by Mr. Kirwan on 9 October 2020. At the end of each of those letters, it was stated that it was open to Mr. Kirwan to appeal to the High Court under s. 7 of the 1960 Act (as amended) against the decision of the Tribunal that there was no prima facie case for an inquiry "within 21 days of the receipt of notification, in writing, of the Tribunal's decision". It was further stated that enquiries in relation to the bringing of such an appeal should be directed to Ms. Angela Brennan, who was the Registrar to the Solicitors List in the High Court at the time. Her contact details were provided.

19.              An email was sent on Mr. Kirwan's behalf to the Registrar on 12 October 2020 making enquiries as to how Mr. Kirwan could appeal from the Tribunal's decisions to the High Court and whether there was a particular form for the appeal. The Registrar replied on the same day providing information as well as a sample motion and affidavit.

20.              Two separate notices of motion and affidavits were prepared by Mr. Kirwan in order to appeal the two decisions of the Tribunal to the High Court. As noted by Murray J. (at para 20 of his judgment), Mr. Kirwan's son, Mr. Barry Kirwan, swore two affidavits grounding those two motions at 8am on 29 October 2020. Those were the documents required at the time for an appeal to the High Court under s. 7 of the 1960 Act (as amended) by O. 53, r. 12(a)(i) RSC[2]. As the Supreme Court held in the Time Bar Appeal, the last day for Mr. Kirwan's appeals to have been brought or "made" under s. 7(12B) of the 1960 Act (as amended) was 29 October 2020 (the appeal being required to be made within 21 days of the receipt by Mr. Kirwan of written notification of the Tribunal's decisions, which was on 9 October 2020).

21.              Mr. Kirwan arranged for the two affidavits and notices of motion to be stamped on 29 October 2020. At 11:36 on 29 October 2020, Mr. Kirwan sent copies of the two motions and affidavits to the Registrar: "for filing 2 appeals of the Solicitors Disciplinary Tribunal on behalf of Brendan Kirwan". The cover email stated: "Originals and a copy of each for you to insert dates on and return to address below are being sent [by] registered post to you also".

22.              The Registrar responded by email sent at 12:42 on the same date (29 October 2020). In her email she requested Mr. Kirwan not to send originals to her. She then stated: "All documents are filed to the High Court, Central Office, Four Courts, Inns Quay, Dublin 7 either in person by scheduling an appointment with Dublincivillaw@courts.ie or by post - please note turn around time for post is approx. of 3–5 working days."

23.              Later that day, Mr. Kirwan sent a letter by registered post addressed to the Registrar and to the High Court Central Office. The letter was accepted by An Post at 2:30pm that day. In the letter, Mr. Kirwan enclosed the originals of the two stamped notices of motions and affidavits for filing for his two appeals from the decisions of the Tribunal. He also enclosed a copy of those documents so that the return date for the motions could be included and the copies sent back to him. A tracking report from An Post showed that the registered letter was delivered to the Central Office at 9:12am on 30 October 2020. As I have indicated, the Supreme Court in its decision on the Time Bar Appeal held that appeals were made outside the 21-day period provided for in s. 7(12B) of the 1960 Act (as amended).

4. High Court Practice Direction HC90 and Order 117A RSC

24.              As explained by Murray J. in his judgment in the Time Bar Appeal, when the Tribunal gave its decisions on Mr. Kirwan's two complaints and when Mr. Kirwan sought to make his appeals to the High Court from those two decisions, the State was in the middle of the Covid–19 pandemic. The then President of the High Court had issued Practice Direction HC90 ("HC90").[3]  That Practice Direction referred to O. 117A RSC and provided for the conditions by which a "court document" could be "lodged" in the High Court by "non-personal delivery". The term "court document" is defined in O.117A, r. 1 as including "any pleading, notice, affidavit, bill of costs or other document required by these Rules to be lodged with any officer or in any office or in connection with any proceedings". The term "lodge" in relation to any document is defined in O.117A, r. 1 as meaning "lodge, file, leave with or at, deliver or transmit or any analogous word or expression...". The term "non-personal delivery" of a court document is also defined in O.117A, r. 1 as meaning:

"(a)     delivery of that document at that office or to the officer specified in the provision of these Rules concerned:

  (i)    by prepaid registered post,

 (ii)    by prepaid ordinary post, or

  (iii)    through a document exchange service accepted by the officer for the time being managing the Central Office, or

(b)       post of that document in a box or at a facility maintained for the purpose by the office or officers so specified, in accordance with any conditions stipulated in the manner provided in rule 2;...".

 

25.              Order 117A, rule 2(1)(a) RSC provides that the "proper officer" , who in the case of the High Court is the officer for the time being managing the Central Office, could, with the approval of the President of the High Court (in respect of proceedings in the High Court),  stipulate conditions subject to which "non-personal delivery" of a court document could be effected and those conditions had to be published (in the case of the High Court) in such manner as the President of the High Court approved. HC90 contained the relevant conditions at the time which were approved by the President of the High Court subject to which "non-personal delivery" of court documents in the High Court was permitted.

26.              In HC90, the then President of the High Court approved the condition stipulated by the officer for the time being managing the Central Office that "due to restrictions in place for Covid-19 lodgment of a court document by non-personal delivery at the Central Office may be effected only by delivery of that document at the office or to the officer as specified in the provision of O. 117A concerned" in one of the following three ways:

 

"(i)    by prepaid registered post,

 (ii)    by prepaid ordinary post, or

(iii)      through a document exchange service accepted by the officer for the time being managing the Central Office."

 

27.              HC90 and O. 117A did not permit the lodgment of a court document by "non-– present delivery" of that document by email. They did permit the lodgment of such a document by "non-– present delivery" by pre-registered post. The difficulty for Mr. Kirwan, however, was that, as the Supreme Court subsequently found, his registered letter was received by the Central Office on 30 October 2020 which was just outside the 21-day period referred to in s. 7(12B) of the 1960 Act (as amended).

5. Subsequent Developments

28.              Mr. Kirwan's motions were not issued by the Central Office following their receipt on 30 October 2020. In her judgment on the applications brought by a number of the Respondents to strike out Mr. Kirwan's appeals as being time barred, Irvine P. noted that it was clear why the Central Office had likely refused to accept and issue the motions. That was on the basis that the reliefs claimed in the notices of motion were extensive and went well beyond the reliefs which could procedurally be advanced by originating notices of motion (Kirwan v. O'Leary & Ors [2022] IEHC 152, per Irvine P. at para. 36). In the Supreme Court, Murray J. noted that the motions sought orders rescinding the findings of the Tribunal and varying them so as to hold the respondent solicitors guilty of professional misconduct and sanctioning them accordingly as well as seeking 17 declaratory orders which purported to identify specific errors made by the Tribunal.

29.              It appears that queries were raised of Mr. Kirwan by the Central Office on various dates in November 2020 concerning Mr. Kirwan's request that he be represented and assisted in the proceedings by his son, Mr. Barry Kirwan. It appears also that Mr. Kirwan made a number of requests of the Central Office that the two notices of motion be filed in the Central Office. On 18 December 2020, Mr. Kirwan signed an ex parte docket seeking (a) leave of the court for his son, Mr. Barry Kirwan, to act as his next friend in the proceedings "due to [his] severe dyslexia" and (b) leave of the court to file the notices of motion and affidavits dated 29 October 2020. The two motions were given intended action numbers, 2020 No. 112 IA and 2020 No. 113 IA. They were then listed before the President on 21 December 2020. Irvine P. made an order that day giving Mr. Kirwan leave to issue the motions in the format in which they were presented and made clear that that was without prejudice to any arguments that the Respondents might raise as to Mr. Kirwan's entitlement to advance the claims contained in the notices of motion or as to the time within which appeals had been brought. The two notices of motion were then issued in the Central Office on 21 December 2020 and received record numbers 2020 No. 78 SA and 2020 No. 79 SA. They were then served on the Respondents on 31 December 2020.

30.              In due course, the President gave various directions and fixed a hearing date for the appeals. However, a number of the respondent solicitors brought motions seeking to strike out Mr. Kirwan's appeals on the basis that they were time barred pursuant to s. 7 (12B) of the 1960 Act (as amended). The motions were issued on 9 June 2021. In the appeal with record number 2020 No. 78 SA, the motion was issued by the two Respondents to that motion (John O'Leary and Bridget O'Leary). In the appeal with record number 2020 No. 79 SA, the motion was issued by the first three Respondents, John O'Leary, Bridget O'Leary and Seamus Turner. Motions were not issued by any of the other respondent solicitors in 2020 No. 79 SA. Affidavits were exchanged in respect of those motions which were ultimately heard by the President on 11 October 2021 and 15 November 2021. It appears that three of the other respondent solicitors in 2020 No. 79 SA, Cormac Mullen, Catherine O'Connor and Geraine O'Loughlin, were represented at and participated in the hearing of the motion brought in those proceedings, although they had not brought their own motions. Written submissions were also exchanged.

31.              Irvine P. delivered her judgment on 9 March 2022. The President held that Mr. Kirwan's appeals were brought outside the 21-day period prescribed by s. 7(12B) of the 1960 Act (as amended) and were, therefore, out of time. She also held that the Court had no jurisdiction to extend the time for appealing. The order made giving effect to her judgment ordered that the two appeals be struck out. In 2020 No. 79 SA, the Court ordered that the first, second and third respondents and the fifth, sixth and eighth respondents (that is, Mr. O'Leary, Ms. O'Leary, Mr. Turner, Mr. Mullen, Ms. O'Connor and Ms. O'Loughlin) recover their costs against Mr. Kirwan. The orders were stayed pending an appeal.

6. Mr. Kirwan's Appeals to the Supreme Court

32.              Mr. Kirwan sought and obtained leave to appeal from the judgment and orders of Irvine P. to the Supreme Court. His application for leave to appeal to the Supreme Court was resisted by both Respondents in 2020 No. 78 SA (which was given record number 2022/41 in the Supreme Court) and by the first, second and third Respondents and separately by the fifth and sixth Respondents in 2020 No. 79 SA (which was given record number 2022/40 in the Supreme Court). In a Determination issued on 19 December 2022 [2022] IESCDET 140, the Supreme Court granted Mr. Kirwan leave to appeal to that court in respect of two issues.  In a further ruling given on 1 March 2023 (which was reflected in the order made that day), the Supreme Court gave Mr. Kirwan liberty to argue a third issue. Therefore, the three issues on which Mr. Kirwan obtained leave to appeal to the Supreme Court were:

(i)        Whether the delivery by registered post of documents constituted the making of an appeal under s. 7(12A) of the 1960 Act (as amended), whether pursuant to the provisions of the High Court Practice Direction HC90 or otherwise;

(ii)       If not, whether on their true interpretation, s. 7(12A) and (12B) of the 1960 Act (as amended) do not permit the bringing of an appeal from a decision of the Disciplinary Tribunal that no prima facie case has been established outside a 21-day period;

(iii)      Whether, if so, the High Court has any power to extend time for the bringing of such an appeal.

33.              It appears that the only parties who participated at the hearing of the appeal were Mr. Kirwan, who was assisted by his son, Mr. Barry Kirwan, and John O'Leary, Bridget O'Leary and Seamus Turner. None of the other Respondents participated in the appeal.

7. The Decision of the Supreme Court

34.              By a 3:2 majority decision the Supreme Court held that Mr. Kirwan's appeals were made outside the 21-day period prescribed by s. 7(12B) of the 1960 Act (as amended). However, the Supreme Court also held that the High Court has the power to extend the time for the making of such an appeal under O. 122, r. 7 RSC: see the judgments of Murray J. (majority) and Woulfe J. (minority) at [2023] IESC 27. 

35.              Helpfully, Murray J. provided a summary of his conclusions at para. 105 of his judgment. I reproduce those conclusions below:

"(i)      An appeal under s. 7(12A) of the Act of 1960 is 'made' when the notice of motion and affidavit prescribed by O. 53 RSC for the bringing of such an application is issued by the Central Office of the High Court.

 (ii)      For as long as it was in force, High Court Practice Direction 90 enabled filing of such a motion to occur by inter alia pre-paid registered post.

(iii)      Having regard to the provisions of O. 117A RSC the earliest the notice of motion and affidavit grounding the applicant's appeal against the decision of the SDT could be deemed to have been made was 30 October 2020. It is not possible to construe that provision so that such an appeal is 'made' upon posting to the High Court Central Office of these papers.

(iv)       Nor, having regard to the terms of HC90, is it possible for the sending by the applicant of an e-mail to the Central Office of the High Court on 29 October 2020 to have constituted the making of an appeal for the purposes of s. 7(12A).

(v)        Therefore, this appeal was 'made' outside the 21 day period prescribed by s. 7(12B) of the Act of 1960. Properly construed ss. (12B) is not inconsistent with the High Court enjoying the power to extend the time for the making of an appeal.

(vi)       By granting a right of appeal against the decision of the SDT, the Oireachtas has engaged the applicant's constitutional right to litigate. The fact that the right to proceed to Court to appeal the decision in question is statutory does not affect this. Having conferred that right, a provision which restricts it must be strictly construed. Here, the language of s. 7(12B) does not preclude the possibility of an extension of time and, having regard in particular to the specific context in which that provision operates viz the regulation of the solicitors' profession, it is appropriate that the section should be interpreted as enabling the grant of an extension of time for the making of an appeal in an appropriate case.

(vii)     The bringing of an application to extend that time is governed by [O. 122 r. 7] [there is a typographical error in the summary which refers to O. 121 r. 4 rather than O. 122 r. 7] and the principles by reference to which the Court will decide whether to extend that time being as set forth in the decision in Seniors Money Mortgages construed in the light of the reason for the time limit.

(viii)    In these circumstances I would allow this appeal against the decision of Irvine P., I would set aside her order dismissing these proceedings and would remit this matter to the High Court for further determination in accordance with this judgment."

36.              In the course of his judgment, Murray J. noted that there was nothing in the 1960 Act (as amended) to preclude an extension of time for an appellant to appeal from a decision of the Tribunal to the High Court in accordance with the provisions of O. 122, r. 7 RSC. Murray J. explained that the jurisdiction to extend the time for making an appeal from such decisions falls to be exercised in light of the "guidance" reiterated by O'Malley J. in the Supreme Court in Seniors Money while also having regard to the "specific statutory landscape in issue" (per Murray J. at para. 104).  In commenting on Seniors Money, Murray J. observed:

"That decision stresses that the Court has a discretion in determining whether or not to grant an extension of time for an appeal, confirms that the critical inquiry in applying that discretion is directed to the balance of justice, and requires that the discretion must be exercised having regard to where that balance lies in all the circumstances of a particular case." (per Murray J. at para. 104).

37.              Murray J. noted that there are three questions or criteria that guide the exercise of the relevant discretion. They are:

"(a)     whether the applicant formed a bona fide intention to appeal within the prescribed time,

 (b)      whether the failure to appeal within that time is explicable by reference to some factor akin into a mistake, and

(c)        whether there are grounds of appeal." (at para. 104).

38.              While noting that those criteria were first stated in Éire Continental Trading Co. v. Clonmel Foods Limited [1955] I.R. 170 at p. 173, Murray J explained that they:

"...remain the essential principles by reference to which the grounds advocated and evidence adduced by the applicant here fall to be judged".

  However, Murray J. noted that they are:

"...no more than a guide to the exercise of the discretion which remains flexible and circumstance dependent: while one might expect the discretion to be exercised in favour of an applicant to had missed for good and explained reason the time for bringing an appeal, the court must also have regard in the exercise of its discretion [to] the clear preference of the legislature that appeals against decisions of the kind in issue here should be brought within a very short period of time after the determination to be appealed..." (per Murray J. at para. 104).

39.              Murray J. noted that he had elaborated further on those factors in a judgment which he delivered on the same date in Murphy v. Law Society of Ireland [2023] IESC 28.

40.              Ultimately, following some further correspondence and submissions, the Supreme Court made an order in respect of both appeals on 8 July 2024 (perfected on 11 July 2024).

41.              The Supreme Court allowed Mr. Kirwan's appeals, set aside the order of the High Court and directed that the matter be remitted to the High Court "for further determination in accordance with the judgment delivered herein".  The Supreme Court further ordered that Mr. Kirwan recover from the first, second and third Respondents (Mr. O'Leary, Ms. O'Leary and Mr. Turner), his outlay in respect of the appeal.  

8. Developments After the Supreme Court Judgment and Order

42.              On 10 October 2024, Mr. Kirwan issued a single notice of motion in 2020 No. 78 SA and 2020 No. 79 SA, seeking various orders. In that motion, which was returnable for 21 October 2024, Mr. Kirwan sought orders that both matters be relisted before the President of the High Court on foot of the order made by the Supreme Court. Mr. Kirwan also sought an order for discovery of certain documents, a declaratory order and an order for costs. Mr. Kirwan swore an affidavit in support of the motion on 8 October 2024, explaining the circumstances in which the matter was remitted to the High Court and outlining the basis on which he was seeking discovery. Mr. Kirwan's motion was directed to all of the Respondents in both 2020 No. 78 SA and 2020 No. 79 SA as well as to the Tribunal and "Eire", as notice parties.

43.              It appeared to me that Mr. Kirwan and his son, Mr. Barry Kirwan, may have been under the misapprehension that the Supreme Court had in fact granted an extension of time to Mr. Kirwan to bring both of the appeals to the High Court. I explained what the Supreme Court had decided and that it was open to Mr. Kirwan to bring an application to extend the time to appeal in both cases and that I would hear and determine those applications. I gave directions to that effect on 11 November 2024. The Tribunal was represented that day and confirmed that it would not be taking any active part in Mr. Kirwan's applications. Counsel for Mr. O'Leary, Ms. O'Leary and Mr. Turner was also present. The State did not appear or participate in the applications.

44.              On foot of those directions, Mr. Kirwan issued a fresh notice of motion in each case seeking (amongst other things) an order extending the time for him to appeal the relevant decisions of the Tribunal. He also sought various other orders.  Mr. Kirwan swore an affidavit grounding each of his two motions on 23 January 2025. In each of his affidavits, Mr. Kirwan stated that (a) his intention to appeal within the 21-day was evident from his correspondence with the Registrar in which he inquired as to the process of how to appeal from the decisions of the Tribunal to the High Court; (b) the Registrar to whom he was directed by the Tribunal was the correct person to contact in relation to the appeals, the appeals documents had been emailed to the Registrar within time and the documents themselves were received by the Registrar with instructions to file them less than 24 hours later; and (c) he had many arguable grounds of appeal which he then summarised.

45.              The matter was before me again on 27 January 2025. I made clear that the first matter that the Court would have to determine was whether to grant the extensions of time sought by Mr. Kirwan. I directed that that issue be heard by me on 19 February 2025.

9. Hearing on 19 February 2025

46.              The parties represented at the hearing on 19 February 2025 were Mr. Kirwan, who was assisted by his son, Mr. Barry Kirwan, and Mr. O'Leary, Ms. O'Leary and Mr. Turner (being the two Respondents in 2020 No. 78 SA and the first three Respondents in 2020 No. 79 SA, respectively.  Those Respondents were represented by solicitors and counsel at the hearing.

47.              It was made clear at the hearing that the issue which I had to determine was whether or not, in light of all of the circumstances, the Court should extend the time for Mr. Kirwan to appeal to the High Court from the decisions of the Tribunal which found that Mr. Kirwan's complaints against the various solicitors concerned had not disclosed any prima facie case of misconduct.

48.              Counsel for the Respondents represented at the hearing confirmed that their position was that they were neither consenting nor objecting to the extension of time sought by Mr. Kirwan to appeal those decisions to the High Court. It was, however, made very clear by counsel that those respondents disputed all of the allegations made by Mr. Kirwan.

49.              Mr. Barry Kirwan made submissions in reliance on several affidavits sworn in connection with his complaints and in relation to the various civil proceedings arising out of Mr. Kirwan's dispute with the respondent solicitors and with the other parties to the property transaction at issue. He submitted that the Court should grant the extensions of time sought on the basis that (a) Mr. Kirwan had formed a bona fide intention to appeal within the 21 day period from notification of the Tribunal's decisions, (b) the failure to appeal within that period (as found by the Supreme Court) was explained and was explicable by reference to something in the nature of a mistake, in circumstances where copies of the documents were sent to the Registrar by email on 29 October 2020 within the 21 day period and the document themselves were sent for filing by registered post which was sent that day (within the 21-day period) and received in the Central Office the following morning (30 October 2020); and (c) and there are several arguable grounds of appeal.

50.              Mr. Barry Kirwan outlined various grounds of appeal which Mr. Kirwan would wish to rely on in his appeals. It is unnecessary to outline those grounds of appeal here in circumstances where all Mr. Kirwan has to demonstrate is that there is an arguable ground (or grounds) of appeal that the material which he provided with his complaints to the Tribunal ought to have been sufficient for the Tribunal to conclude that there was a prima facie case of misconduct on the part of the respondent solicitors. In the event that the extension of time is granted to Mr. Kirwan, it will be a matter for the court that ultimately hears the appeals to determine whether the material relied on by Mr. Kirwan is sufficient to disclose a prima facie case of misconduct. It is sufficient, in my view, at this stage to record that Mr. Kirwan's complaints arise out of his legal representation in connection with the property transaction at issue, the alleged lack of proper and independent legal advice provided to him by reason of his representation in the transaction by a legal executive in the firm rather than by a qualified solicitor, alleged conflict of interests, alleged dishonesty, alleged concealment of material facts, alleged forgery in the execution of certain documents when he was out of the jurisdiction and the alleged extraction of legal fees from him for inadequate legal representation. It must be stressed that the respondents represented at the hearing have consistently and strenuously denied all of these allegations and it was confirmed by their counsel at the hearing before me that all of the allegations were disputed. In any event, Mr. Barry Kirwan submitted that the material was sufficient to disclose that Mr. Kirwan had arguable grounds of appeal and that the Tribunal was wrong in deciding that Mr. Kirwan's complaints did not disclose any prima facie case of misconduct. This was not contested by counsel for the three solicitors who were represented at the hearing.

10. Decision on the Application

51.              It is critical to stress the nature of the application which I am deciding in this judgment. The Tribunal decided that Mr. Kirwan's two complaints did not disclose a prima facie case of misconduct against any of the respondent solicitors. Mr. Kirwan attempted to appeal against those decisions to the High Court under s. 7(12B), as was his entitlement, and went so far as sending copies of the two stamped notices of motion and two stamped and sworn affidavits (being the documents required by O. 53 RSC at the time in order to bring an appeal to the Tribunal from decisions of the Tribunal of that type) by email to the relevant High Court Registrar on 29 October 2020, the last day of the 21-day period prescribed by s. 7(12B), and sending the documents themselves by registered post on the same date to the Registrar and the Central Office, albeit that the documents were not received by the Central Office until shortly after 9am the following day (30 October 2020), just outside the 21-day period. For reasons which are not entirely clear, although I have referred earlier to the fact that there were various exchanges between Mr. Kirwan and the Central Office, the motions were not issued in the Central Office until the then President gave leave to Mr. Kirwan to issue them on 21 December 2020, without prejudice to any arguments which the Respondents might wish to make in relation to the nature of the reliefs sought or the time within which the motions were issued.

52.              This is not a case in which Mr. Kirwan waited several months before seeking to bring his appeal from the relevant decisions to the High Court. It is also relevant, in terms of any requirement for Mr. Kirwan to demonstrate arguable grounds of appeal, that what Mr. Kirwan wishes to do by appealing the relevant decisions of the Tribunal to the High Court is to attempt to demonstrate that the Tribunal was wrong in holding that his complaints did not disclose any prima facie case of misconduct. In the event that I were to grant the extensions of time sought by Mr. Kirwan, all that will happen is that Mr. Kirwan will be afforded the opportunity of trying to demonstrate to the High Court that the complaints do in fact disclose a prima facie case of misconduct against the solicitors concerned and that, as a consequence, there should be an inquiry by the Tribunal into the conduct of those solicitors on the grounds of alleged misconduct. Any extension of time that I might grant to Mr. Kirwan does not mean that I am of the view that there is any prima facie case of misconduct on the part of any of the respondent solicitors, still less misconduct itself. If an extension of time is granted, the court hearing Mr. Kirwan's appeals will have to decide whether there is a prima facie case against any of the respondent solicitors and, if so, on what grounds. In the event that the court hearing the appeals decides that there is a prima facie case of misconduct on the part of any of the solicitors concerned, the matter will have to go back to the Tribunal for it to proceed to hold an inquiry in relation to the relevant allegations or allegations in respect of which a prima facie case exists. It is important to bear in mind this crucial point when considering the nature of the discretion which I am asked to exercise by granting the extensions of time to appeals sought by Mr. Kirwan.

53.              The majority judgment of the Supreme Court (delivered by Murray J.) in the Time Bar Appeal is extremely helpful in outlining the approach which I must adopt in deciding on Mr. Kirwan's applications for an extension of time to appeal in this case. The principles elaborated upon by Murray J. were derived from Seniors Money which in turn were derived from Goode Concrete v. CRH plc & Ors [2013] IESC 39 and in turn from Éire Continental.

54.              The following principles are clear from the judgment of Murray J. (and, in particular, from para. 104 of that judgment):

(i)         The court has a discretion as to whether to grant the extension of time sought by Mr. Kirwan under O. 122, r. 7 RSC.

(ii)       The discretion of the court is to be exercised in light of the "guidance" recently reiterated by the Supreme Court (O'Malley J.) in Seniors Money. 

(iii)      The "critical inquiry" in the exercise of that discretion is directed to the balance of justice.

(iv)       The discretion must be exercised by the court having regard to where the balance of justice lies, taking into account all the circumstances of the particular case.

(v)        There are three particular questions which must "guide" the exercise of the discretion by the court, being the three questions or criteria first stated in Eire Continental.  They are

(a)        whether the applicant for the extension of time formed a bona fide intention to appeal within the prescribed time period;

(b)       whether the failure to appeal within the prescribed time has been explained and is explicable by reference to something like a mistake; and

(c)        whether there are arguable grounds of appeal in respect of the relevant decision. 

(vi)      While these three questions or criteria are the "essential principles" by which the grounds advanced and the evidence adduced by a party seeking an extension of time must be assessed, they are nonetheless "no more than a guide to the exercise of the discretion, which remains flexible and circumstance dependent". 

(vii)     While one might expect that the discretion to extend the time to appeal would be exercised in favour of an applicant who is outside the prescribed time for bringing the appeal for good and explained reasons, it is also necessary for the court to have regard in exercising its discretion to the clear preference of the Legislature that appeals to the court against decisions (such as the decisions of the Tribunal at issue here) should be brought within a "very short time period" after the decisions were given.

55.              Murray J. noted that he had elaborated on these principles in a judgment delivered on the same date in Murphy. In his judgment in that case, Murray J. referred to a number of important passages from the judgment of O'Malley J. in Seniors Money which in turn cited with approval passages from the judgment of Clarke J. in Goode Concrete. Among the passages in those judgments to which Murray J. drew attention in his judgment in Murphy was the important point that a significant factor in determining where the balance of justice should lie in the exercise of the court's discretion is any prejudice to the successful parties who may have operated on the basis that the relevant proceedings were at an end when the time for appeal had expired.

56.              Taking all of these factors and considerations into account and adopting the approach identified by Murray J., I am satisfied that the balance of justice in the particular circumstance of this case requires that I exercise my discretion to extend the time for Mr. Kirwan to appeal both of the decisions of the Tribunal to the High Court. In exercising my discretion in that way, I have carefully taken into account the specific statutory context in which the issue arises and in which the Oireachtas envisaged that a dissatisfied complainant would be entitled to appeal to the High Court from a decision of the Tribunal that no prima facie case of misconduct was disclosed in the complaint and that such an appeal should be brought within 21 days. I regard it as being significant that the only Respondents who participated in the application before me, being Mr. O'Reilly, Ms. O'Leary and Mr. Turner, adopted the position that they were neither consenting nor objecting to Mr. Kirwan's application, while at the same time stating that they strenuously disputed all of his allegations. This was a reasonable and understandable position to adopt, given the nature of the application. No particular prejudice was advanced on their behalf at the hearing of the application before me. None of the other Respondents appeared to oppose the application. Nor is there evidence of any prejudice from any of the other Respondents or any indication that they have been proceeding on the basis that the issue was at an end in circumstances where the 21-day period for Mr. Kirwan's appeals expired in October 2020.

57.              Taking the three questions or criteria identified in Éire Continental as a "guide" to the exercise of my discretion, I have reached the following conclusions.

58.              First, it is clear that Mr. Kirwan did form a bona fide intention to appeal to the High Court from the two decisions of the Tribunal within the 21-day period prescribed by s. 7(12B) of the 1960 Act (as amended). I have referred earlier to the communications made on behalf of Mr. Kirwan and the Registrar prior to the expiry of the 21-day period. Mr. Kirwan enquired as to the procedure for bringing an appeal on 12 October 2020 and that information was provided to him by the Registrar on the same date. He attempted to appeal on 29 October 2020 by sending copies of the stamped notice of motion and stamped and sworn affidavits to the Registrar by email on 29 October 2020 to which the Registrar responded (confirming receipt) on the same date and sent the originals by registered post on the same day (albeit that the documents did not arrive in the Central Office until early the following morning). I have no doubt, therefore, that Mr. Kirwan formed a bona fide intention to appeal within the subscribed time period.

59.              Second, I am also satisfied that the failure to appeal within the 21-day period was fully explained by Mr. Kirwan and is explicable by reference to something like a mistake. The country was in the midst of the Covid-19 pandemic at the time. While special arrangements were made for documents to be lodged or filed in the Central Office by "non- personal delivery" under O. 117A RSC and Practice Direction HC90, sending copy documents by email was not permitted. Sending documents by registered post was permitted but in this case the documents arrived just outside the 21-day period. There was an explanation as to why Mr. Kirwan did not wish to travel in person to the Central Office during the Covid- 19 pandemic (as noted by Murray J. at para. 23 of his judgment). I have also referred earlier to the fact that various attempts were made by and on behalf of Mr. Kirwan for the Central Office to issue his motions after the documents were received by the Central Office. Ultimately, the two motions were given intended action (IA) record numbers and the President gave Mr. Kirwan leave to issue the motions on 21 December 2020. I am satisfied, in these very particular circumstances, that the failure to appeal within the 21-day period was due to "some factor akin to a mistake" (in the words of Murray J.). Even if the failure to appeal could not be so regarded, these events combined have persuaded me that the balance of justice clearly lies in favour of granting the extension of time sought by Mr. Kirwan. 

60.              Third, as regards the need to demonstrate arguable grounds of appeal, I must bear in mind the unusual context in which the application for the extension of time in this case arises, to enable Mr. Kirwan to appeal a finding of no prima facie case, and that if the extensions of time are granted, Mr. Kirwan will have to demonstrate to the court hearing his appeals that his complaints do demonstrate a prima facie case of misconduct and that no finding of misconduct is being made in this judgment nor will such a finding be made in the event Mr. Kirwan is permitted to bring his appeals. Bearing all this in mind, I have not applied a particularly high threshold of arguability in respect of the grounds of appeal sought to be relied on by Mr. Kirwan. I am, however, satisfied that he has raised arguable grounds of appeal arising from the circumstances in which he was represented in the property transaction at issue and by reason of the alleged execution of documents where it is alleged that he was outside the jurisdiction and did not execute those documents. I stress, however, that I am merely finding that Mr. Kirwan has demonstrated arguable grounds of appeal against the decision that no prima facie case of misconduct was disclosed in his complaints and no more than that. Furthermore, in light of the task which will face the court hearing the appeals against the findings of no prima facie case of misconduct, I do not believe it would be appropriate for me to outline in any greater detail the reasons why I believe that there are arguable grounds for Mr. Kirwan's appeals against the findings by the Tribunal of no prima facie case.

61.              For these reasons, I will grant the extensions of time sought by Mr. Kirwan in respect of his appeals from the two decisions of the Tribunal dated 8 October 2020. The two motions by which Mr. Kirwan attempted to appeal from those decisions to the High Court were issued on 21 December 2020, with leave of the then President. It seems to me, therefore, that I should formally extend the time for Mr. Kirwan's appeal in each case to 21 December 2020, which is when the motions were issued.

62.              I will give directions to the parties in relation to the hearing of Mr. Kirwan's appeals on 18 June 2025, following the delivery of this judgment. I will assign the appeals for hearing to a different judge of the High Court and will endeavour to find a judge to hear the appeals before the end of July 2025, subject to the availability of the parties and provided that court resources permit it. I will adjourn the balance of Mr. Kirwan's motions of 8 October 2024 and 23 January 2025 to the judge assigned to hear the appeals.

63.              My provisional view is that I should reserve the costs of these applications to extend time to appeal to the judge who hears those appeals. However, if any of the parties wishes to contest that provisional view, I will hear further arguments on the question.

 



[1] The Supreme Court decided this appeal on 30 May 2025.  In a series of judgments delivered that day in Kirwan v. Connors & Ors [2025] IESC 21, the Supreme Court dismissed Mr. Kirwan's appeal from the decision of the Court of Appeal dismissing Mr. Kirwan's various appeals from the High Court which dismissed his claims in the proceedings.

[2] That was the relevant provision of the Rules at the time. It ceased to have effect on 4 May 2021 following which (depending on the date on which the application is brought) the procedure is governed by O. 53B, O. 53C or O. 53D. 

[3] HC90 was revoked by High Court Practice Direction HC109.

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