Supreme Court of Ireland Decisions

1. The particular circumstances in which those issues arose were pleaded in detail in the points of claim in which pleadings in the various proceedings herein culminated; they were explored in the evidence taken in the High Court; they were analysed fully in the judgment of Mr Justice Kearns and they were repeated in the detailed written submissions to this Court. In those circumstances and having regard to the fact that the issue is largely one of construction the factual matrix to the issues need only be set out briefly as follows.

2. The Applicant/Appellant (Mr Kennedy) qualified as a solicitor on the 31st April, 1978 and has carried on practice in private under the style of “Giles J. Kennedy & Co.” at 81, Eccles Street, Dublin 1, since the 1st February 1981. In 1983 an investigation of Mr Kennedy’s practice identified a deficit of £37,000 in the account of the practice. That deficit was resolved to the satisfaction of the Compensation Fund Committee of the Society in November, 1983. Further investigation took place in 1985 against the background where Mr Kennedy was in breach of the accounts regulations requiring the production of accountants certificates. No significant deficit or irregularity was uncovered by that investigation.

3. It appears that in 1991 Mr Kennedy’s firm acted for Mr David Lillicrap who, with John Burke, instituted proceedings against Lydia Glass and Avis Rentacar (Ireland) Limited claiming damages for personal injuries. At the conclusion of the evidence in that case the trial Judge dismissed the claims of both plaintiffs with costs and referred the papers to the Director of Public Prosecutions to investigate whether there had been a criminal conspiracy or fraud involved in the case. The Court made no criticism of Mr Kennedy’s firm in relation to the conduct of those proceedings.

4. On the 15th April, 1993, the Compensation Fund Committee (the CFC) of the Society decided to investigate the professional practice of six solicitors (including that of Mr Kennedy) pursuant to the provisions of Regulation 29 of the 1984 Regulations. On the 24th May, 1993, Mr PJ Connolly, Registrar of the Society assigned Ms Ashling Foley, one of a numbered of chartered accountants in the employment of the Society, to carry out that investigation. By letter dated the 24th May, 1993, Mr Connolly wrote informing Mr Kennedy of the fact that Ms Foley had been appointed to carry out the investigation and drawing the attention of Mr Kennedy to his obligations under the accounts regulations. It is clear (and the learned trial Judge has so found) that Ms Foley was specifically instructed by the Society that in addition to inspecting the books of account she was to look for evidence of fraudulent claims passing through the practice and, secondly, that these instructions were not disclosed to Mr Kennedy at the commencement of the investigation or prior thereto. Ms Foley was aware of the Lillicrap case and was further informed by Mr Connolly of his suspicions in relation to other fraudulent claims which might have been processed by Mr Kennedy’s office. Ms Foley was required to investigate whether Mr Kennedy’s firm had complied with the Accounts Regulations and whether his firm was involved in spurious claims. It was, as the learned trial Judge held, a two-pronged investigation.

5. The investigations carried out by Ms Foley appear to have been challenged by Mr Kennedy at every stage and on a variety of grounds. Initially it was the Society that instituted plenary proceedings against Mr Kennedy on the 29th July, 1993, claiming (amongst other things) a mandatory injunction directing Mr Kennedy to produce to the Society’s agents certain documents required for the purposes of the investigations being carried out by Ms Foley. The Society’s claim was disputed in the defence delivered by Mr Kennedy which went on to counter claim for damages then estimated at a sum in excess of £250,000 on grounds which included the allegation that the investigation had “exceeded its lawful remit”. By motion dated the 29th day of April, 1996, Mr Kennedy sought and obtained leave to apply for orders for judicial review by way of certiorari to quash (among other things) the appointment of Ms Foley to carry out the inspection aforesaid and for an order quashing a purported decision of the Society communicated to Mr Kennedy on the 12th February, 1996, to seek an inquiry by the Disciplinary Tribunal of the High Court into his professional conduct. These proceedings were pursued vigorously and gave rise to a variety of interlocutory applications and the preparation and exchange of voluminous documentation. Ultimately the plenary proceedings and the judicial review matter were consolidated by order of the High Court made on the 5th day of March, 1998, and in pursuance of that order points of claim were delivered by Mr Kennedy on the 26th day of March 1998, and points of defence on behalf of the Society and the other Respondents on the 24th of April, 1998. Those pleadings set out the issues which were heard by Mr Justice Kearns and determined by him in his judgment delivered herein on the 5th October, 1999. It is from that judgment and the order made thereon that Mr Kennedy appeals to this Court.

6. What are the powers, duties and functions of an accountant (to whom I shall refer as “ an investigating accountant” ) under regulation 29 of the 1984 Regulations.

7. The Act of 1954 empowered the Law Society to make regulations for the execution of the provisions of that Act. In particular Section 66 of the Act required regulations to be made in relation to the matters specified therein. Subsections 1 and 2 of that Section - insofar as material - provide as follows:-

8. The 1984 Regulations reflect faithfully but not fully the requirements of s.66 aforesaid. Part I of those regulations contains the appropriate definitions. Part II is entitled “Client Account” and imposes the obligation on solicitors to maintain one or more client accounts into which clients’ monies are required to be paid in accordance with the regulations contained in that part. That Part also contains (at paragraph 10 thereof) a provision requiring every solicitor to keep proper books of account showing his dealing with clients’ monies received, held or paid by him. Subparagraph (3) of paragraph 10 imposes a special obligation on the solicitor to cause the balance between the client bank lodged and drawn columns of his cashbook or the balance on his client bank ledger account, as the case may be, to be agreed with his clients bank statements and, as at the same date or dates extract from his clients ledger a list of balances due by him to clients and prepare a statement comparing the total of the said balances with the reconciled balance in the client bank account and the other reconciliations required by that subparagraph.

9. Part III imposes on solicitors the obligation to maintain solicitor/trustee bank accounts as required by s.66 aforesaid.

10. Part IV of the 1984 Regulations is entitled “Books of Account” and describes the minimum books which a solicitor is required to keep in the following terms:-

11. In addition to that modest requirement subparagraph (2) of paragraph 19 requires that:-

12. Part V of the 1984 Regulations entitled “ Accountants Report” mirrors the requirements imposed by s.31 of the Solicitors’ Act, 1960. Subsection 1 of that Section provides as follows:-

13. Part V requires that the accountant by whom the report is made should be a member of one or other of the professional bodies specified therein or alternatively that he should be a person “approved by the Society” as being one who is considered by the Council of the Society to have adequate qualifications or experience in the auditing of accounts.

14. Paragraph 22 specifies in considerable detail the extent - and the limits - of the documentation to be examined by the reporting accountant and the checks and the tests to be made by him for the purpose of ascertaining and confirming that the financial transactions evidenced by the documentation are in accordance with Part II of the regulations. Importance was attached to paragraph 23 which, having imposed an obligation on the solicitor to produce all relevant documents to the accountant, went on to provide:-

15. Part VI of the 1984 Regulations enables the Council itself to appoint an accountant to inspect or investigate the practice of a solicitor in accordance with the terms of paragraph 29(2) which are as follows:-

16. As the Society pointed out in its submissions - by reference to particular statements made by Mr Kennedy in the course of his evidence - the Appellant contends that “the role of the investigating accountant is identical to that of the reporting accountant and should be a simple and almost arithmetical exercise to consider whether the figures tally and the client receives the amount due to him”.

17. The argument of the Society was to the contrary. It was summed up in the judgment of the learned trial Judge (at page 4 of the “Summary and Conclusions”) in the following terms:-

18. The learned trial Judge accepted the submissions of the Society in that regard. I believe he erred in so doing.

19. The Society maintained that the investigating accountant was given access to a wider range of documentation than the reporting accountant: that it would be meaningless to appoint an investigating accountant who would merely duplicate the work carried out by the reporting accountant: that an investigating accountant by the very nature of the duties imposed on a person so described was bound to investigate not merely entries made in records maintained by a solicitor but the propriety of the transactions to which they relate: that the expert evidence tendered to and accepted by the High Court established that where spurious transactions were unearthed that the “investigating” accountant had a professional obligation “to get to the bottom of the matter”: that if the investigating accountant did not have the power to explore suspect transactions to which he had been alerted or to report upon unprofessional conduct which he uncovered that the Society would be unable to carry out its statutory duties in its own interests and in those of the public.

20. Whilst it is true - as I have already noted - that there is a specific provision entitling a solicitor to restrict the access of the reporting accountant to those parts of a client’s file not relating to payments and/or receipts and that provision is not repeated in relation to the investigating accountant both categories of accountant appear to have access to substantially the same documentation. However, what is even more important, as I see it, is that each accountant appears to have precisely the same task. It appears from both the provisions of s.31(1)(b) of the Solicitors' Act 1960 (and the form attached to the 1984 Regulations) that the reporting accountant is required to provide a certificate stating:-

21. The functions of the investigating accountant are set out clearly in the introductory words of paragraph 29(1) of the 1984 Regulations which identify the purpose of his appointment in the following terms:-

22. The legislative history of the Solicitors' Acts and the regulations made thereunder would appear to confirm that the appointment of what is described as “an investigating accountant” is no more than a method - and at one stage the only method - of establishing that the Solicitors' Accounts Regulations had been complied with. The Solicitors' Accounts Regulations 1955 (SI 218 of 1955) - the original Solicitors' Accounts Regulations - contained at paragraph 14 thereof provision for the appointment of an accountant who might be nominated by the solicitor and approved by the Council or, in default of nomination, appointed by the Council of the Society, in terms which, subject to that variation, are virtually identical with paragraph 29 of the 1984 Regulations.

23. The 1955 Regulations, paragraph 14 provide as follows:-

24. The power of the Society under paragraph 14 of the 1955 Regulations was, and under paragraph 29 of the 1984 Regulations, is exercised on an ad hoc basis. Clearly it would take many years before that procedure could be invoked sufficiently widely to satisfy the Society that there was a universal compliance with the Accounts Regulations.

25. It was the Solicitors' Act 1960 which introduced the requirement for the appointment by the solicitor of an accountant, that is to say, the accountant who is described in the 1984 Regulations as a “reporting” accountant, who would provide on an annual basis the appropriate certificate of compliance. In addition the 1960 Act s.31(6) tied in the delivery by the solicitor of the accountant’s certificate with the obligation on the Society to issue to that solicitor a practising certificate. This provision no doubt was an appropriate means of “ enforcing compliance with the regulations” as envisaged by the 1954 Act itself.

26. I would attach little or no importance to the description of the accountant selected by the solicitor as a “reporting” accountant or the reference - perhaps unwarranted - to the accountant appointed by the Council as an “investigating” accountant. The 1984 Regulations do not so designate an accountant so appointed but they do speak of a report on the result of “the investigation” but the use of that word could hardly extend or limit the task to be undertaken by him any more than the use - twice as it happens - of the word “inspection” in describing the work to be done by him. In relation to what have been referred to as “the reporting accountant” and “the investigating accountant” the documents to be examined by them have been identified with clarity and the task assigned to each is identical. In each case their certificate or report is expressly required to satisfy the Society that the solicitor concerned has during a particular period or at a particular time complied with the Solicitors' Accounts Regulations for the time being.

27. The rejection of the finding that the task of the so called investigating accountant is significantly different from the accountant appointed by the solicitor may also involve the rejection of the Society’s argument that the powers and duties of an investigating accountant are extended still further where the accountant discovers spurious or fraudulent transactions recorded in the documents presented to him for inspection. As the functions of both categories of accountant are, in my view, substantially the same this alteration or extension would apply to both categories or neither.

28. The evidence and the argument in the High Court reaffirmed a proposition of law and a principle of professional practice, namely, that where an accountant is appointed as auditor of a company pursuant to the provisions of the Companies Acts 1963-1990 or engaged by a taxpayer to ascertain his profits for tax purposes that he will be bound in certain circumstances to investigate dubious transactions. Lawyers

29. Whilst this principle is of the utmost importance in determining how an accountant should carry out a particular task entrusted to him it does not and is not intended to throw any light on the nature, character or extent of the function he is retained to discharge. If, for example, a reporting or investigating accountant had reason to suspect that a receipt furnished to him vouching a payment by a solicitor to his client was a forgery the accountant would be bound to investigate the matter thoroughly. He could not permit his suspicions to be dispelled by assurances given by anyone who might be a party to the questionable transaction. But the purpose of his inquiry would be to ensure that the documents presented to him for inspection were what they purported to be. It could never be suggested that the accountant has any function in determining the profitability of the practice or the competence of the solicitor by whom it is carried on. Neither the statutory provisions nor the regulations made thereunder authorise any such function. Nor can I find anything in those provisions which would require or authorise the accountant to investigate the compliance with any disciplinary obligation other than the maintenance of the accounts required by the Solicitors' Accounts Regulations.

30. The argument of the Society, again accepted by the learned trial Judge, was that the use of the word “proper” - indeed the repeated use of the word “proper” - in connection with the accounts required to be maintained by the solicitor would justify the Society appointing an accountant to investigate the suspicion that a particular solicitor was processing legal proceedings in pursuance of what were fraudulent claims or alternatively that an accountant validly engaged in an investigation had implied authority to explore such matters. In my view this argument was based on the transposition of the word “proper” from the accounts to the transactions which they recorded. Where a client is awarded damages in proceedings, however unmeritorious the claim and dishonest the evidence on which it is based, the propriety of the accounts of the solicitor would require to be tested and the nature of the records made of the monies received and the distribution thereof: monies received by a solicitor on foot of an unmeritorious claim or even a fraudulent one would still require to be recorded in accordance with the Solicitors' Accounts Regulations. Indeed in such cases a proper record might be of particular value if and when investigations were undertaken by other persons and for other purposes.

31. Finally, the argument that the existence of a power in the accountant to investigate fraudulent transactions is essential for the protection of the Society and the public is, in my view, unsound. First, it would seem to me that the Society does possess a very wide range of powers and, secondly, if it did not possess a particular power its necessity would not be a good reason for inferring it.

32. The conclusion of the written submissions on behalf of the Society contains the following sentence:-

33. That was the submission accepted - I believe wrongly - by the learned trial Judge. In my view the investigation of the possibility of fraudulent claims is not an authorised purpose under the Solicitors' Accounts Regulations, 1984.

34. As an investigating accountant is not empowered by the Regulations to investigate fraudulent claims processed by a solicitor he or she may not be appointed for that purpose. In the present case it would seem that Ms Foley was appointed for a duality of purposes or on the basis of an ulterior motive. As the learned trial Judge held, Ms Foley was required to undertake a “two-pronged investigation”. One prong of the investigation, that is to say, the ascertainment by her of whether Mr Kennedy had complied with the Accounts Regulations was fully and properly disclosed: the other prong, the investigation of suspect litigation processed by Mr Kennedy’s firm, was concealed initially though quickly became apparent.

35. Both investigations proceeded and were completed in spite of the objection by Mr Kennedy to the production of certain confidential documents which, ultimately, he was required to produce by the order of Costello J made on the 29th day of July, 1993. The report of Ms Foley formed the basis of the decision of the Society to seek an inquiry (in February 1996) by the Disciplinary Tribunal of the High Court into the conduct of Mr Kennedy. Whether in reaching that decision the Society was entitled to rely on all or any part of Ms Foley’s report is a matter which would require further consideration but before taking up that matter it would be convenient to dispose of the other issues which arose on the appeal.

36. First, it was contended that Ms Foley did not possess the requisite qualifications or obtain the appropriate approvals which were a necessary precondition to her appointment as an accountant pursuant to Article 29 aforesaid. It was argued on behalf of Mr Kennedy that the word “accountant” had been defined in Part I of the 1984 Regulations as being an accountant identified by Part V 21(3) of those Regulations. That sub-clause defined an accountant “qualified to give an accountant’s report on behalf of a solicitor” as one:-

37. Ms Foley had undergone her professional training with the leading accountancy firm of Craig Gardner and completed her final examinations in autumn 1990. She continued to work with Craig Gardner’s until 1991 when she took up positions in various industries. She became a member of the Institute of Chartered Accountants in December, 1992, and after her employment with the Law Society carried out investigations into twenty-seven firms of solicitors. There is nothing in the Regulations which preclude an investigating accountant being in the employment of the Law Society and there was ample evidence to justify the conclusion of the learned trial Judge that Ms Foley carried out her work with a high degree of competence and a sufficient level of impartiality and objectivity at all material times. That finding supports the decision of the Society to engage her for the purposes of carrying out accounting investigations and justified the approval of her appointment to carry out the investigation in the present case.

38. The argument as to the manner of the appointment or the body by which it should be made involves a consideration of the structures within the Law Society and the bodies or committees by which its functions are discharged. The Solicitors’ Act, 1954, Section 4 provides that the functions of the Society should be performed by the Council which is an elected body created originally pursuant to the charter granted to the Society on the 14th December, 1888. Section 73 (1) of the Act of 1954 expressly provides:-

39. It appears that on the 16th October, 1992, the Council delegated to the Compensation Fund Committee its functions under the Solicitors Accounts Regulations. It was not disputed that the CFC could initiate an appropriate investigation under Article 29 of the 1984 Regulations. Rather the challenge was addressed to the failure of the CFC to approve Ms Foley or her qualifications for that purpose. As Ms Foley had been employed as an accountant for the purpose of undertaking investigations and had, as already pointed out, carried out numerous investigations before the appointments in question this would seem a highly technical point but one which is in any event disposed of by the fact that the Council itself did confirm by letter dated the 22nd January, 1993, the appointment of Ms Foley for the purpose of the investigation. In my view there is no substance in either of those points.

40. There remains the question as to what legal consequences flow from the appointment by the Society for two purposes one of which was ultra vires and the other intra vires. The matter must be remitted to the High Court for the purposes of assessing damages (if any) to be awarded to Mr Kennedy but it would seem appropriate for this Court to determine, first, whether the appointment of Ms Foley was defective in whole or in part and, secondly, whether the report prepared by her or any part of it can be relied upon by the Society for any purpose. It will be necessary also to consider the nature of the order to

41. In the circumstances the matter should be re-entered before this Court at a convenient date for further argument in relation to these outstanding issues.