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You are here: BAILII >> Databases >> Supreme Court of Ireland Decisions >> Law Society of Ireland -v- Malocco [2005] IESC 5 (15 February 2005)
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Cite as: [2005] IESC 5
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Judgment Title: Law Society of Ireland -v- Malocco Composition of Court: Murray C.J., Geoghegan J., Kearns J. Judgment by: Kearns J. Status of Judgment: Approved |
Judgments by | Result | Concurring | Dissenting | |
Kearns J. | Appeal dismissed - affirm High Court Order | Murray C.J., Geoghegan J. | ||
Outcome: Dismiss
31
Murray CJ.
Geoghegan J.
Kearns J.
THE SUPREME COURT
[Record No. 339/2003SC]
IN THE MATTER OF ELIO MALOCCO AND IN THE MATTER OF THE SOLICITORS ACTS, 1954 – 1994
BETWEEN
THE LAW SOCIETY OF IRELAND
APPLICANT/ RESPONDENT
AND
ELIO MALOCCO
ELIO MALOCCO
RESPONDENT/ APPELLANT
JUDGMENT of Mr. Justice Kearns delivered the 15th day of February, 2005
Background
The appellant is a solicitor who was enrolled in 1977 and who thereafter practised under the style “Malocco and Killeen” in partnership with Conor Killeen in Dublin.
In September, 1991, the Law Society, the respondent herein (and hereinafter referred to as “the Society”) received a complaint about the firm from Irish Press Newspapers who were, or had been, clients of the practice. At a meeting of the Compensation Fund Committee of the Society on the 26th September, 1991, a decision was made to refer the matter to the Disciplinary Committee of the Society. Mr. Tim Bolger, chartered accountant, was employed by the Society to investigate the said firm.
A special meeting of the Compensation Fund Committee of the Society took place on the 27th September, 1991. It directed that an application for a freezing order pursuant to s.20(1)(a) of the Solicitors (Amendment) Act, 1960, be made to the High Court.
The relevant portions of s.20 are as follows: -
- “(1) Where the Society are of the opinion that a solicitor or a clerk or servant of a solicitor has been guilty of dishonesty in connection with that solicitor’s practice as a solicitor or in connection with any trust of which that solicitor is a trustee, they may apply to the High Court, and the High Court may make an order directing either-
(b) That a specified banking company shall not, without leave of the High Court, make any payment out of a banking account kept by such company in the name of the solicitor or his firm.
- (3) Where the High Court make in relation to a solicitor an order under subsection (1) of this section, the High Court may at the same time order that his practising certificate be suspended until the certificate expires.”
On the 7th October, 1991, the High Court (Costello J.) by consent varied the order of the 30th September, 1991, to provide that no banking company should without leave of the High Court make any payment out of a banking account in the name of the solicitors or in the name of their firm, or in the name of either solicitor with any other person, firm or company.
A third order of the High Court (Flood J.) was made on the 15th October, 1991, in proceedings entitled The High Court (1991 No. 12910P). By that order, Flood J. received a consent from the same parties to be filed with and deemed to be part of the court’s order. Under the terms of the consent thus made a rule of court, Mr. Malocco consented, inter alia, to an order restraining him from giving any instructions in respect of the withdrawal of funds held in certain bank accounts in Spain. He also submitted to a variety of other orders restraining him from entering the offices of the firm or communicating with any member of the staff of the firm or giving any directions to such members.
All of these orders are still extant and are the subject matter of the appellants’ first motion herein which was ruled upon by the High Court (Finnegan P.) on the 31st July, 2003, and which now comes before this court on appeal.
In late September or early October 1991, the appellant fled the jurisdiction and did not return to Ireland until 1993. A criminal investigation of the appellant had commenced which resulted in a prosecution and trial following his return in that year. The trial resulted in the appellant’s conviction on the 28th March, 1993, on six counts in respect of charges relating to dishonesty in relation to his practice as a solicitor.
Thereafter, the appellant brought an appeal to the Court of Criminal Appeal in respect of the five-year sentence of imprisonment which had been imposed upon him following his conviction in the Circuit Court.
On the 18th August, 1993, the applicant’s solicitor, Mr. Peter Dempsey, wrote a letter to the Law Society in which he sought the Society’s confirmation that the initiation of disciplinary proceedings against the appellant should not take place “pending the outcome of the criminal proceedings.”
On the 23rd May, 1996, the Court of Criminal Appeal rejected the appellant’s appeal following which the appellant remained in custody until March/April, 1998. At no point up to the time of his release did the appellant seek to vary or discharge any of the three orders of the High Court made in September and October, 1991, nor did the appellant seek to withdraw or resile in any way from his demand that the Society stay its hand pending the conclusion of the criminal proceedings. In particular he did not seek that the Society proceed with its investigation, as distinct from any hearing, during this period. This was a contention which the appellant advanced in this appeal as a possibility which the Society might have considered.
On 12th March, 1998, the affidavit grounding an application to the Disciplinary Tribunal was sworn. The Society had no address for service of the disciplinary proceedings on the appellant and obtained an order for substituted service of same from the President of the High Court on the 2nd July, 1998. This order was made following a number of adjournments to ensure compliance with the requirements of the court. The appellant shortly thereafter confirmed receipt of the said proceedings.
On the 22nd October, 1998, the Disciplinary Tribunal determined that the Society’s application disclosed a prima facie case.
On the 4th February, 1999, the inquiry before the Disciplinary Tribunal commenced and hearings thereafter took place on the 2nd March, 1991, the 20th and 21st April, 1999, 26th and 27th April, 1999, 20th May, 1999, 9th June, 1999, and 1st December, 1999. It made findings of misconduct against the appellant on the 28th February, 2000. The report of the Disciplinary Tribunal was sent to the appellant on the 6th March, 2000.
On the 24th March, 2000, a notice of motion returnable for the 10th April, 2000, was brought pursuant to s.8(1)(a)(1) of the Solicitors (Amendment) Act, 1960, as substituted by s.18(1) of the Solicitors (Amendment) Act, 1994, to strike the appellant off the Roll of Solicitors.
Matters than came to a halt because the appellant at that point sought to bring judicial review proceedings in the High Court to challenge, inter alia, the procedures of the Disciplinary Tribunal. Included as a ground for seeking relief in these proceedings was a complaint of delay on the part of the Society in prosecuting the proceedings.
The application for leave was heard by the High Court (O’Caoimh J.) on the 22nd May, 2000, when leave was granted on some grounds and refused on others.
The appellant appealed the refusal to grant leave on certain grounds, but the Supreme Court dismissed this appeal following a hearing on the 18th May, 2001.
The judicial proceedings continued in the usual manner and came on for hearing before the High Court (Carroll J.) on the 22nd and 23rd March, 2002. Judgment was reserved by the trial judge who thereafter delivered judgment on the 16th October, 2002. Carroll J. dismissed the appellant’s claim. The appellant did not appeal this decision.
In the course of the hearing before this court, it was pointed out to the appellant that one of the grounds upon which leave to bring the judicial review proceedings had been granted in the High Court was the appellant’s complaint of delay. However, it appears to this court, and indeed was accepted by the appellant, that this ground was not argued before Carroll J. or pursued during those proceedings.
On the 24th February, 2003, the motion to strike off the appellant was again brought before the President of the High Court. He listed the matter for further mention on notice to the appellant on the 10th March, 2003. On various dates thereafter in May and June, 2003, various submissions were made to the court by the appellant.
The court then invited the appellant to formalise his submissions by way of three separate motions. The motions were heard by the President of the High Court on the 22nd July, 2003, and a written judgment was given by the President on the 31st July, 2003.
The motions had sought: -
(1) An order discharging the orders of the 30th September, 1991, the 7th October, 1991, and the 15th October, 1991.
(2) An order extending the time to appeal the finding of the Disciplinary Tribunal made in February, 2000, that the appellant was guilty of misconduct.
(3) An order striking out the motion of the Society dated 24th March, 2000, seeking to strike the appellant off the Roll of Solicitors.
All three motions were refused by the President, and it is from such refusal that the appellant brings this appeal before this court. The appeal was heard by this court on the 18th January, 2005. Prior thereto on the 14th January, 2005, the appellant brought an application before a differently constituted chamber of the Supreme Court requesting a payment out of funds, the subject matter of the freezing orders, for the provision of legal representation for his appeal. On the 14th January, 2005, the court refused the appellant’s request on the grounds of his delay in moving the application, the same not having been brought until a point in time when the hearing of his appeal was imminent.
For the purpose of the hearing before this court, the appellant himself prepared his own detailed legal submission of some 78 typewritten pages and conducted his appeal in person.
The High Court Judgment
In support of his application to discharge the orders referred to in the first motion, the appellant was noted by the President to have deposed that the investigation into the financial affairs of his practice concluded on the 28th March, 1994. However, he had been unable to open a bank account, obtain credit, start a business or obtain a mortgage from the date of the first of the three orders made in 1991. In particular the appellant sought to secure the release of funds standing to the credit of an account with Allied Irish Bank, Dame Street, Dublin 2, which had been opened in 1992 and into which rent payable from premises owned jointly by the appellant and his wife had been lodged. The appellant urged the President to consider that as the funds were not client funds they were not affected by the freezing order and that the sum standing to the credit of the account should be paid to him.
In refusing relief, the President stated as follows (at p.3): -
- “I am satisfied that correctly construed the Solicitors (Amendment) Act 1960 s. 20 is intended to secure clients’ money where the Society are of opinion that a solicitor has been guilty of dishonesty but it is not limited to this. Section 20 is contained within Part III of the Solicitors (Amendment) Act 1960 which contains provisions relating to the compensation fund required to be maintained by the Society. Section 21 (8) provides that the Society shall upon making a grant out of the funds be subrogated to the rights of the grantee against the solicitor. I am satisfied that the purpose of s. 20 is not alone to preserve the client account of the solicitor but the assets of the solicitor so that the claims of the clients who suffer by reason of his dishonesty may be satisfied out of his assets and insofar as the compensation fund maintained by the Society has made grants in respect of his dishonesty that they should likewise be secured. In the present case substantial sums have been paid by way of grant from the Compensation Fund and the Society’s statutory right to subrogation operates in respect of these.”
- “It seems to me that the Court should only make an order pursuant to s. 20 of the 1960 Act where it is satisfied on affidavit that the Society has the requisite belief and that there are reasonable grounds for that belief or the claims of clients and the Society have been satisfied in full or it is otherwise unnecessary that the order be continued. Accordingly an order pursuant to s. 20 should only be discharged where the Society no longer holds the requisite belief or there are no reasonable grounds for that belief. I am satisfied that the Society has paid out of the Compensation Fund the sum of £568,472.58 (€721,811.28) as losses accepted by the Society has having been incurred due to dishonesty on the part of the respondent solicitor. I understand that the respondent solicitor may wish to contend that some or all of the said payments were incorrectly made. Even if this is so I am satisfied that it was appropriate that the asset in question, the funds standing to the credit of the account, should be preserved pending determination of any issue as to the correctness of the payments made by the Society so that in the event of such issue being determined in favour of the Law Society the funds will be available to satisfy the claim of the Society against the respondent solicitor.”
- “1, The applicant must show that he had a bona fide intention to appeal formed within the permitted time.
2, He must show the existence of something like mistake and that mistake as to procedure and in particular the mistake of counsel or solicitor as to the meaning of the relevant rule was not sufficient.
Having considered the appellant’s affidavit and the correspondence therein exhibited, the President expressed himself satisfied that while the appellant did indeed contemplate bringing an appeal pursuant to s. 7 of the Solicitors (Amendment) Act 1960, he was at the same time contemplating as an alternative the bringing of proceedings by way of judicial review. At some date prior to or on the 5th April, 2000, the President noted that a decision had been made to opt for judicial review proceedings rather than an appeal. The President noted that if a decision to appeal had been extant at the date of application for leave to apply for judicial review it would have been appropriate to disclose the same on that application as a factor which would influence the court’s decision to grant or refuse leave. It had been conceded before him that this was not done. He thus concluded that no such decision was ever made (i.e. to appeal) or if it was, it had been abandoned. This being so, he was satisfied the appellant had failed to meet the first condition set out in Éire Continental Trading Company Ltd v. Clonmel Foods Ltd. [1955] I.R. 170.
The President was equally satisfied that there was not disclosed on the affidavits before him anything in the nature of a mistake as required by the second of the three conditions.
In relation to the third condition, the President noted that the affidavits before him did not disclose the grounds of appeal, but on enquiring of the respondent as to the grounds the same were listed for him. The President considered those grounds, along with the judgment of Carroll J. in the judicial review proceedings, and was satisfied that each of the grounds enumerated as grounds of appeal were raised in the judicial review proceedings. In respect of all grounds the appellant was either unsuccessful or did not pursue the same. The President thus felt able to apply the rule in Henderson v. Henderson [1843] 3 Hare 100 whereby a litigant may not in later proceedings make those contentions which might have been but were not brought forward in previous litigation.
On the third motion which sought an order striking out the Society’s motion on the grounds of (a) delay and (b) double jeopardy, the President proceeded to set out a full chronology of relevant occurrences, which is in terms similar to those contained in the opening portion of this judgment. Having noted the appellant’s assertion that, because of delay and lapse of time, a number of witnesses were no longer available, the President noted that he had been told nothing of efforts, if any, made to locate such witnesses, nor had he been told the nature of the evidence which each of the persons mentioned at para. 45 of the appellant’s affidavit could give, nor had any attempt been made to particularise the prejudice which the appellant might suffer from their non-availability.
In rejecting the appellant’s submissions on this ground, the President stated:-
- “The nature of the matters alleged against him are such that the circumstances are peculiarly within his own knowledge and having regard to the circumstance that they occurred within a solicitor’s office where it is to be expected that each and every transaction would be documented and recorded whether on the solicitor’s own file or in the solicitor’s books of account and the supporting documentation for the same. Accordingly I refuse to grant the relief sought on the grounds of lapse of time.”
In so far as the appellant’s contentions on double jeopardy were concerned, the President noted that the European Convention on Human Rights Act, 2003, had not at that time been commenced. Accordingly, the Convention was not at the time of the hearing before him part of the domestic law of the State. Accordingly, the court could not give effect to it where it was contrary to domestic law or purported to grant rights or impose obligations additional to those of domestic law. Nonetheless, the President stated that he had had regard to the detailed submissions of the appellant and considered the numerous cases to which he had referred. He concluded, however, that even if the Convention had application, it would not avail the appellant. In relation to Article 6(1) of the Convention, he noted that the European Court of Human Rights has regard to all the circumstances of a case before it, and in particular to the complexity of the issues, the conduct of the parties and what was at stake for the applicant. He concluded:-
- “I am satisfied having regard to the jurisprudence of the European Court of Human Rights, that the conduct of the respondent solicitor so contributed to the lapse of time as to disentitle him to relief. Insofar as Article 4 of Protocol 7 is concerned it is in its terms confined to criminal proceedings: the proceedings before me are not criminal.”
Grounds of Appeal
In the notice of appeal to this Court dated the 10th September, 2003, the appellant has set out the grounds of his appeal as follows:-
- “The learned President of the High Court erred in his consideration of the facts before him and/or in law in that inter alia:-
2. He failed to acknowledge the oppressive nature of such Orders and the fact that they should be discharged and/or varied given that the investigation into the firm of Malocco and Killeen ceased on the 28th March, 1994.
3. That by concluding that he could not interfere with the Orders “on the basis of the grounds that there had been dishonesty” on the part of the appellant the learned judge had pre-judged the case as he had yet to consider the second motion requesting leave to extend the time to appeal the findings of the Disciplinary Tribunal.
4. That in refusing leave to extend time to lodge an appeal the learned judge failed to acknowledge that the appellant had formed the intention to appeal the findings of the Disciplinary Tribunal within the 21 day period laid down by the Rules of the Superior Court.
5. That in refusing leave to extend the time to lodge an appeal against the findings of the Disciplinary Tribunal the learned judge failed to acknowledge that the appellant had an arguable case.
6. That in refusing leave to extend the time to lodge an appeal against the findings of the Disciplinary Tribunal the learned judge failed to acknowledge that there had been something akin to a mistake.
7. That in refusing leave to extend the time to lodge an appeal against the findings of the Disciplinary Tribunal the learned judge has denied the appellant his right under Bunreacht na hÉireann and his right under Article 6.1 of the Convention for the Protection of Human Rights and Fundamental Freedoms to a fair trial and a public hearing.
8. That in refusing an order to strike out and/or stay the proceedings by the Law Society of Ireland against the appellant by reason of delay the learned judge has denied the appellant his right under Bunreacht na hÉireann and under Article 6.1 of the Convention for the Protection of Human Rights and Fundamental Freedoms to a fair trial within a reasonable time.
9. That in refusing an order to strike out and/or stay the proceedings by the Law Society of Ireland against the appellant by reason of double jeopardy and/or res judicata and/or on the basis that the appellant was being tried and punished twice for substantially the same offence, the learned judge has denied the appellant his rights under Article 4 of Protocol 7 of the Convention for the Protection of Human Rights and Fundamental Freedoms.
The First Motion
In relation to the first motion, Mr. Malocco submitted that sums totalling approximately €55,000 standing to his credit in two bank accounts in his name in Allied Irish Banks, Dame Street, Dublin 2 should not be regarded as being caught by the freezing orders made in 1991. Firstly, Mr. Malocco submitted that the funds in question represented certain rents due from property owned by him and did not represent funds which are part of the practice of Malocco and Killeen. Secondly, he submitted that “future” accounts should not be regarded as caught by the freezing orders. The accounts in question were only opened on the 8th of June, 1992, some nine months after the freezing orders were made. Thirdly, Mr. Malocco submitted that the freezing orders were unduly oppressive and disproportionate in that they had for twelve years prevented the appellant from opening or operating a bank account.
In response, Mr. Hanratty, Senior Counsel for the Society, submitted that the terms of s.20 were clear and permitted freezing orders to be made in respect of banking accounts either in the name of the solicitor or his firm, thereby enabling the Society to apply to the High Court in respect of the solicitor’s personal funds in addition to those of the practice. Such an interpretation was necessary for the purposes of safeguarding the subrogation rights of the Society in respect of monies paid by it to clients of the solicitor’s former practice. In this case the Society had paid out the sum of £568,472.58 as losses accepted by the Society as having been incurred due to dishonesty on the part of the solicitor. While it had been suggested by the appellant that the President had been guilty of bias and prejudgment in finding that the appellant had been guilty of dishonesty, no such finding had been made by the President who had simply noted that the Society had reasonable grounds for such a belief.
Furthermore, the whole scheme of the Act was to protect client funds in circumstances such as those which had arisen in the instant case, so that s.20 necessarily required an interpretation which meant that future accounts were also covered by the terms of s.20(1)(a). Finally, any suggestions that the freezing orders were disproportionate or unduly oppressive were not sustainable. Mr. Hanratty submitted that the making and continuance of the orders amounted to a reasonable interference with the rights of the solicitor in the particular circumstances.
I am satisfied that the terms of s.20(1)(a) are clear and unambiguous and provide that the High Court may make a freezing order in respect of a banking account maintained either in the name of a solicitor or his firm. It would be a totally illogical interpretation of the Act to exclude from its application the personal funds of the solicitor where client funds had been lost in circumstances where the Society were bona fide of opinion that those losses had occurred because of dishonesty on the part of the solicitor in relation to his practice. I further note that this point does not appear to have ever been argued before the High Court in 1991, and indeed the appellant appears to have consented to the order freezing certain personal accounts in Spain under the terms of the consent received by Flood, J. in the High Court on the 15th October, 1991. I would totally reject the contention that the Act did not apply to personal funds.
The question as to whether the terms of s.20 (1) (a) may be taken as referring to future accounts is somewhat more problematic. However, it appears to this court that the whole statutory scheme could be frustrated if the interpretation contended for by the appellant was correct. It would, for example, permit a person under investigation to rehabilitate funds hidden or secreted overseas to newly opened accounts within the jurisdiction. Such accounts would then escape the application of a freezing order, even in the case of a bank with notice of the order, simply by virtue of the fact that the account in the name of the solicitor or his firm had been opened subsequent to the making of the freezing order. Having regard to the overriding requirement for the preservation of funds to meet any claims of the Society, such an interpretation is wholly inconsistent with the general policy of the Act.
As Bennion points out at p.809 of his text on Statutory Interpretation (4th edition, 2002): -
- “Parliament is presumed to intend that in construing an Act the court, by advancing the remedy which is indicated by the words of the Act for the mischief being dealt with, and the implications arising from those words, should aim to further every aspect of the legislative purpose.”
The court naturally recognises the oppressive nature of the freezing orders. The appellant submits it should not go on indefinitely for that reason. However, he has not suggested that it was not open to him to apply at any time to the High Court to vary the terms of the original freezing orders so as to permit a payment out of existing funds in respect of living expenses or other necessaries. The plain fact of the matter is that no such application has been made to the court by or on behalf of the appellant, other than the application made on the 14th January, 2005, on the eve of this appeal. The fact that the appellant realised that such an application could be brought completely undermines his contention that his financial predicament could only be addressed by altogether lifting or removing the freezing orders in question.
The Second Motion
By virtue of this motion, the appellant sought to extend the time for the purpose of bringing an appeal to the High Court against a finding of misconduct on his part by the Disciplinary Tribunal.
The relevant statutory provisions governing an appeal are set out in the Solicitors (Amendment) Act, 1994. Section 17 of that Act amended the Act of 1960 by the substitution of the following subsection:
- “(13) A respondent solicitor may appeal to the High Court against a finding of misconduct on his part by the Disciplinary Tribunal pursuant to subs (3) of this section, and the Court shall determine such appeal when it considers the report of the Disciplinary Tribunal in accordance with the provisions of s.8 (as substituted by the Solicitors (Amendment) Act, 1994) of this Act, or as part of its determination of any appeal under subs.(11) of this section, as the case may be.”
Part VIII (28) provides:
- “In the case of an appeal by a respondent solicitor pursuant to s.7 (13) of the Act of 1960 (as substituted by s.17 of the Act of 1994) the notice of motion shall be served within 21 days after the date of the delivery to the respondent solicitor of the Report of the Disciplinary Tribunal.”
- “The Court may, on application made to it by motion on notice to the Society and to any person who sought the said inquiry, extend the period for an appeal under s.7 (13) in any case where it appears just to do so.”
The appellant contended that he came within the three conditions set out in Éire Continental Trading Company Ltd v Clonmel Foods Ltd [1955] I.R. 170. Firstly, he had a bona fide intention to appeal formed within the permitted time. Secondly, the appellant contends that there was in the instant case something in the nature of a mistake in that the section (as distinct from the Regulation) did not set out a clear time frame within which to appeal, but instead allows for an appeal to be made only after the report has been considered by the court. The court had not yet considered the report as the matter had been adjourned generally due to the bringing of the judicial review proceedings. Further, the appellant contended that he had been advised that it would have been inappropriate and an abuse of process to file an appeal under s.7(13) and to apply for a judicial review at the same time. If that advice was erroneous, the error was not his. Furthermore, an appeal to the High Court would provide a public hearing, without which the appellant would be deprived of his fundamental right to a fair trial in a public forum which is guaranteed to him in the Constitution and under Article 6(1) of the European Convention of Human Rights. Finally, the appellant admitted that he had set out before the President all the grounds which the appellant said established an arguable case, such grounds being summarised at pp. 27-28 of his written submission.
In reply, counsel for the respondent drew the court’s attention to par. 13 of the appellant's affidavit in support of this motion, sworn on the 15th July, 2003, wherein he deposed:
- “13. I say that my legal team were concerned that the said Act did not provide the respondent with a full and proper appeal hearing in the sense of a re-hearing and as my instructions had been that the initial Tribunal hearing had been so obviously biased they advised the respondent to seek relief by way of judicial review.
14. I say that on 5 April 2000 following receipt of a notice of motion my solicitor wrote to the applicant’s solicitor advising her that he had previously been instructed by the respondent to make an application for judicial review. He asked her to confirm that she would have no objection to her own motion being adjourned for a period of approximately 4 to 8 weeks.
15. Accordingly, I say that as far back as 5 April 2000 the applicant was notified of the respondent’s intention to appeal the report in full.
16. I say that the matter came on before the then President of the High Court, Mr. Justice Morris on the Monday following 5 April 2000 when he was advised that the respondent was applying for a judicial review. I say that Mr. Justice Morris said that because of the intended judicial review proceedings he would list the matter on 29 May 2000 for mention only.”
Furthermore, counsel for the Society submitted, it was now abundantly obvious, and had been so confirmed by the appellant on the hearing of the present appeal, that all grounds which were now sought to be raised in the context of any proposed appeal, were before the court in the judicial review proceedings. That being so, the present case clearly came within the rule in Henderson v. Henderson [1843] 3 Hare 100, with the inevitable consequence that this court could only conclude that the third requirement of Éire Continental Trading Company v Clonmel Foods Ltd [1955] I.R. 170 had not been satisfied, namely that the appellant had an arguable case on his appeal.
I am satisfied that the President was entirely correct in holding, as he did, that the appellant had abandoned any intention of pursuing an appeal under s.7(13) to the High Court and had instead opted, on proper legal advice, to pursue what was perceived as a more comprehensive remedy available to him by way of judicial review. No other conclusion is open having regard to the grounding affidavit sworn by the appellant.
There may of course be cases where a litigant may pursue both the remedy of judicial review and an appeal to a higher court. Such an entitlement would clearly arise where a challenge to a ruling or decision was sought to be made on the merits, rather than on failures in the underlying procedures. A judicial review would not always be an appropriate remedy for an appeal on the merits. It is abundantly clear to us however that the appellant saw that his best opportunity lay in the judicial review remedy.
It is also clear in the instant case that all grounds of appeal which might be raised in any hearing before the High Court in the context of an appeal under s.7(13) were either raised before Carroll J. in the judicial review proceedings, or were capable of being argued in those proceedings, if the appellant was of a mind to do so.
The rule in Henderson v. Henderson [1843] 3 Hare 100, has been followed by this court in a number of recent cases, including Eamonn Carroll and other v. Chris Ryan and others [2003] I.R. 309 and in A (A) v. The Medical Council [2003] 4 IR 302 where Hardiman J. at p.315 quotes a passage from Wigram V.C. in Henderson at p.115:-
- “I believe I state the rule of the court correctly when I say that where a given matter becomes the subject of litigation in, and adjudication by, a court of competent jurisdiction, the court requires the parties to that litigation to bring forward their whole case, and will not (except under special circumstances) permit the same parties to open the same subject of litigation in respect of matters which might have been brought forward as part of the subject in contest, but which was not brought forward, only because they have, from negligence, inadvertence or even accident, omitted part of their case. The plea of res judiciata applies, except in special cases, not only to points upon which the court was actually required by the parties to form an opinion and pronounce a judgement, but to every point which properly belonged to the subject of litigation and which the parties exercising reasonable diligence might have brought forward at the time.”
“The issues in relation to legal aid are, therefore, to adapt the language of Henderson v Henderson [1843] 3 Hare 100 at p. 115, issues ‘which properly belonged to the subject of litigation and which the parties, exercising reasonable diligence, might have brought forward at the time’ of the first proceedings. In the language of Johnson v. Gore Wood [2002] 2 AC 1, there are issues which might ‘sensibly’ have been brought forward in the previous litigation. The present litigation in my view runs foul of the rule of public policy ‘based on the desirability, in the general interest as well as that of the parties themselves, that litigation should not drag on forever and that a defendant should not be oppressed by successive suits where one would do’ in the words of Brooke L.J. in the passage cited above.”
The reference to ‘the words of Brooke L.J.’ was a reference to that passage in Woodhouse v. Consignia plc. [2002] 2 AER 737; [2002] 1 WLR 2558 at p. 2575 where Brooke L.J. referred to the public interest in the efficient conduct of litigation and continued:
- “But at least as important is the general need, in the interests of justice, to protect the respondents to successive applications in such circumstances from oppression. The rationale of the rule in Henderson v. Henderson that, in the absence of special circumstances, parties should bring their whole case before the court so that all aspects of it may be decided (subject to appeal) once and for all, is a rule of public policy based upon the desirability, in the general interest as well that of the parties themselves, that litigation should not drag on forever and that a defendant should not be oppressed by successive suits where one would do…”
While I am thus clearly of the view that the first and third conditions of Éire Continental Trading Company v Clonmel Foods Ltd [1955] I.R. 170 have not been complied with, I am also of the view that no mistake of any sort, either by the appellant’s legal advisors or on his own part, impaired his ability to pursue the remedy of appeal had he been of a mind to do so. Moreover, it is clear that there was no other element or factor before the High Court which could have required the President to exercise his discretion other than to refuse the application for an extension of time
In relation to the assertion that the President by the terms of his judgment pre-judged his consideration of and findings in the second motion by virtue of his findings on the first motion, I am satisfied that this is a contention without any merit. By agreement of all parties the three motions were heard together with each party being heard on one occasion, subject to a right of reply, with all matters relevant to the three motions being ventilated at the one time. In those circumstances, the matters referred to by the President were properly before the court and in my view the President was entitled to hold in the manner he did.
For these various reasons, the court rejects all of the appellant’s submissions on this motion.
The Third Motion
The third motion seeks to strike out the application of the Society dated 24th March, 2000, which seeks an order striking the name of the appellant off the Roll of Solicitors.
It goes without saying that many of the considerations which informed the courts approach to the second motion apply also in relation to this third motion.
Essentially the appellant contends that by reason of delay on the part of the Society, he has been denied his rights under the Constitution and under Article 6(1) of the Convention for the Protection of Human Rights and Fundamental Freedoms. He also contends that he can rely upon the principle of double jeopardy to obtain the relief sought in the notice of motion.
The appellant submits that some thirteen years have passed since these proceedings commenced. He contends that certain important witnesses are now missing or dead. Insofar as his own contribution to delay is concerned, the appellant concedes only that the period of two years nine months during which he was imprisoned and had requested that no action be taken should be taken into account in determining any liability for delay on his part.
I would reject this submission as wholly untenable. Firstly, the appellant himself had demanded of the Society that they stay their hand with the disciplinary proceedings pending the completion of the criminal process. This concluded only on the 23rd May, 1996, when the Court of Criminal Appeal rejected the appellant’s appeal. Thereafter, the appellant commenced judicial review proceedings in the aftermath of the hearings before the Disciplinary Tribunal in 1999. As had already been noted, the appellant invoked, but did not argue, delay as a ground for seeking relief in those judicial proceedings which concluded with the judgment of High Court on the 16th October, 2002.
It seems to me, for the reasons already stated, that all complaints of culpable delay on the part of the respondent, the courts or any other authority, up to March, 2002, are, in the circumstances, completely groundless.
In my view, the analysis undertaken by the President on the issue of delay and potential prejudice represents a correct application of the legal principles which are applicable in this jurisdiction. The principles identified by the Supreme Court, as set out in O’Domhnaill v Merrick [1984] I.R.151; Toal v Duignan and others [1991] I.L.R.M. 135 and Primor PLC v Stokes Kennedy Crowley [1996] 2 I.R. 459, establish that, in considering the issue of delay, the court should, in general, consider the period starting with the accrual of the cause of action for the purpose of determining the issue of delay to the relevant date. The learned President identified the relevant date as the date of the hearing before the Disciplinary Tribunal. In then considering the issue of delay, he had regard to the particular facts of this case. He also considered whether or not any prejudice had been established by the appellant. In his judgment he found, correctly in our view, that the information provided by the appellant on affidavit to support the contention of prejudice lacked detail and made no genuine attempt to particularise any prejudice which the appellant might experience as a result of the alleged non-availability of specified persons.
Furthermore, as noted by the President, the nature of the matters alleged against the appellant are such that the circumstances were and are particularly within his own knowledge and the transactions and matters which would require to be considered arise out of his practice within a solicitor’s office where it is to be expected, as pointed out by the President:-
- “that each and every transaction will be documented and recorded whether on the solicitor’s own file or in the solicitors books of account and the supporting documentation for same.”
It is also clear that courts, in considering the issue of delay, recognise that one must look at the conduct of both sides. In Dowd v Kerry County Council [1970] I.R. 27 at 42, O’Dálaigh, C.J., in talking about civil litigation, recognised the fact that “Litigation is a two party operation, and the conduct of both parties should be looked at.” It is also apparent that in considering the issue of delay a court will look to identify the author of delay and, as Fennelly J. said in relation to the civil proceedings of Anglo Irish Beef Processors v Montgomery [2002] 3 IR 510 at p.519:-
- “…the author of delay which is found to be both inordinate and inexcusable will not be absolved of fault unless he can point to countervailing circumstances.”
- “I am satisfied that such delay is excusable having regard to the solicitor’s whereabouts being unknown, the difficulty in serving him and his request to defer the hearing pending his prosecution.”
The appellant further submits that he is entitled to relief in the context of this motion even without establishing prejudice. He claims this entitlement under and by virtue of Article 6(1) of the European Convention on Human Rights which reads as follows:-
- “In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.”
(a) The appellant has not obtained a fair hearing.
(b) The appellant has not obtained a public hearing.
(c) The appellant’s case has not been dealt with within a reasonable time.
(d) The tribunal has not been independent or impartial.
However, at page 42 of his own submissions, the appellant accepts that the question of a fair hearing and the independence and impartiality of the tribunal have already been raised and adjudicated upon in the judicial review. Furthermore, any suggestion that the appellant was or would be entitled to a public hearing is not an issue which arises in respect of the particular reliefs claimed in these motions.
The case ultimately therefore boils down to the proposition that his case has not been dealt with within a reasonable time.
However, as the jurisprudence of the European Court of Human Rights, so heavily relied upon by the appellant, makes abundantly clear, the assessment to be made in cases of this nature must invariably turn on the facts of the particular case. In König v Germany [1979-80] 2 E.H.R.R. 170 at par 99, the court stated:-
- “The reasonableness of the duration of proceedings covered by Article 6(1) of the Convention must be assessed in each case according to its circumstances. When enquiring into the reasonableness of the duration of criminal proceedings, the Court has had regard, inter alia, to the complexity of the case, to the applicant’s conduct and to the manner in which the matter was dealt with by the administrative and judicial authorities.”
The determination by the learned President was that, having regard to all the circumstances of the case and, in particular, the complexity of the issues, and the conduct of the parties in relation to what was at stake, he was satisfied that there was no breach of Article 6(1). He did so having of course noted that the Convention was not at the relevant time part of the domestic law of this State. Nevertheless he concluded:-
- “I am satisfied having regard to the jurisprudence of the European Court of Human Rights that the conduct of the respondent solicitor so contributed to the lapse of time as to disentitle him to relief.”
- “The Court reiterates at the outset that the reasonableness of the length of proceedings must be assessed in the light of the particular circumstances of the case and having regard to the criteria laid down in its case law, in particular the complexity of the case and the conduct of the applicant and the relevant authorities (see, among many other authorities the Kemmache v France (nos. 1 and 2) judgments of 27 November 1991series A No. 218, p. 27, para. 60. It is necessary among other things to take account of the importance of what is at stake for the applicant in the litigation (see, for instance, the Phocas v France judgment of 23 April 1996 Reports of Judgments and Decisions 1996 I.I., p.546, para. 71).”
Finally, the appellant submits that the principle of double jeopardy applies in this case and that “he cannot be convicted twice”. The appellant contends that he has already been convicted of certain criminal offences and cannot be punished again in respect of exactly the same offences.
In this regard, the appellant relies on Article 4 of protocol 7 to the Convention which reads as follows:-
- “No one shall be liable to be tried or punished again in criminal proceedings under the jurisdiction of the same State for an offence for which he has already been finally acquitted or convicted in accordance with the law and penal procedure of that State.”
I would therefore reject all of the appellant’s contentions in this case and would dismiss the appeals.