Supreme Court of Ireland Decisions

Judgment Title: O'Reilly -v- Lee

Neutral Citation: [2008] IESC 21

Supreme Court Record Number: 330/06

High Court Record Number: 2006 No 24 SA

Date of Delivery: 23 April 2008

Court: Supreme Court

V
Rosario Lee

Judgment delivered on the 23rd day of April 2008 by Macken, J.

This is an appeal from the judgment and order of the High Court (Finnegan P.), delivered on the 26th July 2006. That judgment arose on an appeal by the appellant from a decision of the Solicitors Disciplinary Tribunal rejecting his complaint against the respondent, pursuant to the provisions of the Solicitors Act 1954-2002. The Solicitors Disciplinary Tribunal found that no prima facie case had been established.
The entitlement to appeal the decision of the Solicitors Disciplinary Tribunal is provided by legislation and specifically by the provisions of s.7 of the Solicitors (Amendment) Act 1960 as amended by s.17 of the Solicitors (Amendment) Act 1994, and as further amended by the provisions of s.9 of the Solicitors (Amendment) Act 2002. The consequence of these legislative provisions is that, in circumstances where the Solicitors Disciplinary Tribunal has found that there is no prima facie case for an inquiry into the conduct of the solicitor complained of, an applicant may appeal that decision to the High Court within a prescribed period of time. The provisions of the legislation as eventually amended to its final form reads in its relevant portion, as follows:
“12A The Society or any person who has made an application under subsection (1) of this section may appeal to the High Court within the period specified in subsection (12B) of this section –
(a) against a finding of the Disciplinary Tribunal that there is no prima facie case for an inquiry into the conduct of the respondent solicitor, or
…,
and the Court may –
(i) confirm the finding concerned
(ii) where the appeal is under (a) of this subsection, make a finding that there is a prima facie case in relation to the allegation of misconduct concerned, …
and require the Disciplinary Tribunal to proceed to hold an inquiry under subsection (3) of this section in relation to such allegation or allegations, or
… .”
Preliminary
I have set out the above statutory provision in some detail because it seems to me that the appellant is under a misapprehension as to the precise nature of an appeal from the Solicitors Disciplinary Tribunal to the High Court. He has, for example, drawn this Court’s attention to his concern that the Solicitors Disciplinary Tribunal is not itself the respondent to the appeal, as he believes would be the case in respect of the professional body regulating his profession. Rather it is the respondent solicitor. He submits that it is difficult to understand how the Solicitors Disciplinary Tribunal, against whose decision he has sought to appeal, is merely a Notice Party to the proceedings in the High Court, and that in reality this has precluded him from bringing the type of appeal which he would wish to bring. He suggests further that the members of the Tribunal could, for various reasons, be thought to be biased.
I am satisfied that the correct interpretation of the Solicitors Act 1954-2002 as amended in the manner referred to above, is that the appeal from a decision of the Solicitors Disciplinary Tribunal, in this case from its decision dated the 20th day of March 2006, is a hearing de novo in the High Court in which the matters contended for by the appellant as constituting grounds for the holding of an inquiry into the respondent’s alleged misconduct, and the respondent’s reply, may be exposed again and argued afresh before the High Court, which decides the appeal on the basis of the materials which were before the Disciplinary Tribunal, but having regard to the arguments made before it, the High Court, exercising an independent jurisdiction in the matter. It is for this reason that the respondent is the correct respondent, and equally, that the Solicitors Disciplinary Tribunal is a proper Notice Party to the proceedings, bound by any order which the High Court might make on the appeal.
A different situation would of course arise if the appellant sought to challenge the Solicitors Disciplinary Tribunal in respect of matters dealt with, or failed to be dealt with in an appropriate case, such as would lend themselves to an application for judicial review. In support of his contention that the Solicitors Disciplinary Tribunal should be a respondent to his appeal and not a mere notice party, the applicant invokes the decision of this Court in The State (Creedon) v The Criminal Injuries Compensation Tribunal [1988] IR 51 where that Tribunal was the respondent to the applicant’s claim. That was not however an appeal, but rather an application for judicial review, and it was both legally appropriate and in accordance with the applicable Rules of Court governing such proceedings, that the relevant Tribunal in that case would be the named respondent. The appellant invokes the same case for an additional purpose, namely, to support his contention that a tribunal against whose decision he is appealing is obliged to provide appropriate and adequate reasons for its decision and he argues that the Solicitors Disciplinary Tribunal did not do so.
Having regard to the fact that this is not a judicial review of the decision of the Solicitors Disciplinary Tribunal, the arguments and complaints of the above nature and those of an analogous type which the appellant makes on its findings, all fall, once there is a full appeal to the High Court, at which appeal both parties are heard again at an oral hearing in open court, where both can make legal and other relevant submissions on all matters, with a fresh determination of the issues, and where a judgment is delivered on that appeal.
The Appeal:
In light of the above, I propose now to deal with the applicant’s appeal insofar as it concerns the judgment of Finnegan P. Firstly, the grounds of appeal as contained in the Notice of Appeal of the 14th August 2006 are limited to four, namely, (a) that the judgment in Rondel v Worsley [1966] 3 All ER 657 had been overruled, and the High Court judge had therefore erred in law in relying on that judgment; (b) that there were matters in the appellant’s appeal from the decision of the Solicitors Disciplinary Tribunal which had not been addressed in the judgment; (c) two issues had been confused by the High Court judge, that is to say, professional misconduct and the conduct of the Circuit Court proceedings; and (d) the reasons given in the judgment were clearly inadequate.
It is appropriate, having regard to the nature of the appeal and the interrelated arguments made, to deal with these grounds together. The learned High Court judge set out at page five of the judgment his synopsis of the several categories of complaint raised by the appellant. These are stated to be (a) that the matrimonial proceedings were conducted in an oppressive manner in that there were numerous applications which were considered unnecessary, and caused excessive expense to the parties, (b) reports were obtained on behalf of the appellant which were inappropriate; (c) examination of his children were arranged without his knowledge; (d) he was repeatedly given short notice of applications being made to court; (e) witnesses were called at hearings without advance notice to him; (f) his resignation letter from his former employer may have been improperly obtained; (g) improper use was made of his laptop computer; (h) he was subjected to inappropriate applications for discovery and, in connection with the same, inappropriate inquires were made of third parties; (i) his opponents discovery was incomplete and claims made by her for maintenance lacked vouching; and (j) his discovery in relation to his shareholding in a company was not accepted, and this too was inappropriate.
The appellant has very properly and correctly accepted that this synopsis by the President of the High Court of the nature and extent of his complaints is a correct one. The appellant has also very helpfully admitted that he is not trying to question the decisions of the Circuit Court in respect of the matrimonial proceedings in relation to which these complaints arise and says he does not seek to re-litigate any such proceedings. In essence he submits that the several complaints which he makes, and these are very numerous, are all complaints of a nature which constitute professional misconduct, whether or not they arise in the course of, as a result of, or in connection with court proceedings occurring contemporaneously.
In the High Court the learned President stated in respect of these complaints made to the Solicitors Disciplinary Tribunal:
“All the matters raised are matters which could and ought properly to be canvassed in a forum other than the Solicitors Disciplinary Tribunal. It is a matter for the trial judge to determine most of the matters raised by way of complaint in the course of the hearing and this appears to have been done. If dissatisfied with the manner in which a trial is conducted a party may appeal the same. Matters such as inadequate notice or inadequate service or documents are dealt with by the trial judge. The adequacy or otherwise of discovery is a matter for the trial judge. If applications are unnecessary or otherwise oppressive this is something which the trial judge can deal with by way of orders for costs. It is inappropriate to ask the Solicitors Disciplinary Tribunal to second guess the trial judge in relation to such matters. Insofar as fees are concerned the amount of the same should his wife consider them excessive is a matter for the Taxing Master. In the circumstances I am satisfied that it is inappropriate to ask the Solicitors Disciplinary Tribunal to embark on an inquiry in relation to the many matter raised on this complaint.”
The appellant contends that the judgment of the President of the High Court does not disclose the reasons for his finding that there was no prima facie case for the respondent to meet, or, in the alternative, he claims that the reasons stated were inadequate. This is based predominantly on the appellant’s contention that the learned President of the High Court did not refer specifically to the affidavit dated the 10th April 2006 filed by the appellant for the High Court hearing and nor did his judgment refer specifically to the various Codes of Conduct or to the Rules of Court. The appellant submits that, absent such references, the President of the High Court could not conclude that there no prima facie case was established. He also argues that, having regard to these absences or failures, the judgment of the President of the High Court is unfair, incomplete and not based on the facts presented. He also mentions several similar or analogous matters listed in his affidavit submission to this Court as not having been dealt with in the High Court judgment, but for the reasons set out below, it is not necessary to set out all of these in this judgment.
It has long been established by courts in this jurisdiction, in the United Kingdom and elsewhere, including the European Court of Human Rights, that a court does not, in law, have to deal with every single issue raised by a party to proceedings and is not required to answer every single complaint or argument. Where representative complaints are considered sufficient for a court to dispose fairly of an action between parties, it cannot be said that the judgment is inadequate or unreasoned or otherwise open to attack on the basis that every other complaint or every other argument was not dealt with in detail or that reasons were not given in respect of each of the same. It is sufficient for this purpose to refer to the decision in Garcia Ruiz v Spain [1999] ECHR 1999-1 in which the European Court of Human Rights found that it is not required in law that a court should answer every point or every issue in every case. In fairness to the appellant, having regard to the reliance by the respondent on this and other case law, he accepted in the course of the hearing that it was not necessary for the learned President of the High Court to answer or deal with each and every complaint raised by him.
Although accepting that every complaint does not have to be canvassed in the judgment, the appellant submits nevertheless that the written judgment of the High Court makes no reference to the Solicitors Acts or to the Codes which he had referred to in his affidavit, either general codes or specific codes relating to family law practitioners, and he complains that no reference was made to the law relating to guardianship nor to Court Rules, nor to the role of the respondent solicitor as a court officer, nor as to any third party duty of care towards persons, including the appellant.
He further argues that the decision in Rondel v Worsley supra., having been overruled, the High Court judge was in error in relying on this case, and ought instead to have adopted the decisions in the case of Arthur J. S. Hall v Simons, and others [2002] 1 AC 615.
On behalf of the respondent, Mr McCullough, SC, argues that the issues before the President of the High Court, as before the Solicitors Disciplinary Tribunal, are all issues of a procedural nature within the remit of the judge hearing the family law proceedings. Certainly the summary in the judgment of the High Court, he argues, accepted by the appellant as being a correct representation of his complaints, all fall into this category. While Mr McCullough accepts that there may be certain circumstances in which a complaint can be made in respect of matters arising in the course of proceedings, such as, for example, a solicitor misleading a court, and that such an event is not outside the remit of the Solicitors Disciplinary Tribunal, there was no misleading of the Court in the present case, and nor does the appellant rely on any alleged misleading of the Court, as a central issue in the appeal.
It is argued further on behalf of the respondent that the procedural steps on which complaint was made were those peculiarly within the province of the Circuit Court proceedings and the presiding judge(s). There was a procedural response called for, an approach not adopted by the appellant. He submits that while the appellant states he does not wish to challenge the result of the Circuit Court proceedings, he wishes nevertheless to revisit the procedural consequences of actions taken by the respondent, on behalf of her then client, in those very proceedings. Mr McCullough argues that the President of the High Court correctly found this to be an impermissible collateral attack on the Circuit Court’s jurisdiction in the matrimonial proceedings in question. This finding he submits is a mere reflection of the general principle that a judge is the best arbitrator of matters of a procedural nature arising in the course of proceedings, and is also the person best placed to determine the appropriate steps which ought to be taken in that regard. Counsel for the respondent adds that it does not appear that such complaints as were made to the Circuit Court judges by or on behalf of the appellant were accepted by them as being serious in nature. That being so, he submits, the same conduct cannot constitute professional misconduct of the type into which the Solicitors Disciplinary Tribunal should enquire. The invocation by the President of the High Court of the principle in Rondel v Worsley, supra., was correct in the circumstances.
If the Court were nevertheless to consider that the merits of the appellant’s complaint are not to be determined exclusively at the appropriate Circuit Court level, counsel for the respondent submits that none of the complaints made, such as those relating to the giving of short notice of hearings of court applications, or such as a failure to give advance notice of the names or identities of witnesses, or as to the alleged inappropriateness of reports, could constitute behaviour tending to bring the profession of solicitors into disrepute. Such matters are, at worst, part of vigorous litigation, but do not breach any code of conduct and do not constitute prima facie evidence of any misconduct on the part of the respondent, qua solicitor.
Conclusion
I am satisfied that the appellant cannot succeed in this appeal. I have already found that the appeal to the High Court from the decision of the Solicitors Disciplinary Tribunal is an appeal de novo in which the parties are free to make all appropriate submissions for the purposes of persuading the High Court that a prima facie case of misconduct exists and that the Disciplinary Tribunal should be obliged to deal with such prima facie case.
I am satisfied that the judgment of the Finnegan P. (as he then was) correctly encapsulates or synopsises the various categories of complaint and their extent made by the appellant against the respondent to the Solicitors Disciplinary Tribunal, and on his appeal to the High Court, and the appellant very fairly now accepts the same. I find further that the learned High Court judge was correct in categorising these complaints as being fundamentally of a procedural nature, arising in the Circuit Court matrimonial proceedings between the appellant and his wife. I fully accept the disadvantage which a lay litigant is under when he or she is a party to proceedings in any court, including matrimonial proceedings, where there may be vigorous litigation carried on, whether by an opposing party or by the legal representative of an opposing party. But it does not follow that any or every manifestation of such vigorous litigation constitutes, ipso facto, misconduct on the part of a solicitor within the meaning of that term for the purposes of seeking an inquiry by the Solicitors Disciplinary Tribunal pursuant to the Solicitors Acts 1954 – 2002.
It is nevertheless the case, and counsel for the respondent accepts this, that certain activities or behaviour of a solicitor acting for a party, whether or not, as here, representing an opposing party in court proceedings, may be the proper subject of an inquiry before that Tribunal in respect of those activities or behaviour. The appellant complains, for example, that the respondent “misled” the Circuit Court in respect of certain matters, and if there were established in evidence before the High Court a prima facie case that a solicitor deliberately misled a court, or procured a judgment or an order by means of the same, that might well constitute an appropriate basis upon which to seek an enquiry by the Solicitors Disciplinary Tribunal.
Although the appellant complains that his allegations relating to misleading the Courts were not considered in the judgment, and although this is not listed as a separate ground of appeal, it is appropriate to point out that when one considers the actual allegations made, they do not constitute any form of misleading of the court. I take for example the statement contained at paragraph 12 of the applicant’s affidavit sworn on the 10th day of April 2006 in support of his High Court appeal, in which mention is made of a report being procured from a neuro-developmental technician, which the appellant was given on the morning of a hearing in the Circuit Court. The appellant clearly had little time for this report: he considers the report to have been “quackery” and had referred to this in detail in his affidavits to the Solicitors Disciplinary Tribunal. He believes and asserts that “the court was abused and misled by the production of this evidence”. There is however no basis in fact to support his description of the report or the contention that the respondent either knowingly or deliberately misled the court by either procuring or furnishing the same at the request of, or with the consent of her client, or otherwise. Nor is there any evidence that the Court was in fact misled in any way by the report. In his submission to this Court, the appellant claims that the court “must have been misled” but that is not, and cannot, be the standard to be applied in assessing whether or not there was a deliberate misleading of the Circuit Court, and still less as to whether or not the court was actually misled. Instead it would have to be clear from a judgment or an order made, upon evidence as to the circumstances of its making, that a Court was actually misled by the person against whom the allegation is made, or a judgment or order was actually procured by that means. The assertion by the appellant that the Court “must have been misled” does not in any way approach the necessary threshold for establishing the same.
Another matter which the appellant invokes is an allegation that neither the general Code of Conduct of solicitors, nor the specific Code of Conduct relating to family law solicitors, was mentioned in the judgment of Finnegan, P. However, it appears to me clear from a reading of the documents filed by the appellant in this matter, including all the affidavits, and all the written submissions which I have considered in detail, and from his oral submissions to this Court, that the appellant himself did not refer to a breach of any particular code but rather made general reference to the codes. It is always the case that a person making a complaint, such as the appellant in this appeal, has the burden of establishing, at least on a prima facie basis, (1) that there are specific code(s) upon which he relies, invoking them with particularity, and (2) that an identifiable action allegedly constitutes a breach of that particular code or codes. It is not sufficient to argue that the conduct complained of is “unacceptable” or “atrocious” for example, as the appellant did during the hearing, because these are subjective expressions having no clear or established significance in law. Nor is it either sufficient, as here, to make a general reference in affidavits to the existence of codes, and contend that the judgment is deficient in failing to refer specifically to them,
I am satisfied that the appellant did not establish before the High Court, that the matters set out by the President and accepted as being correct by the appellant constituted prima facie any form of misconduct, whether by reference to a Code of Conduct or otherwise on the part of the respondent. I am also satisfied that the invocation by the President of the High Court of the principle enunciated by the Denning, M.R. in Rondel v Worsley, supra., was a correct indication of the principle that, as a matter of public policy, there should not be a re-litigation of matters of the type arising in the Circuit Court matrimonial proceedings, by means of an application of this nature, notwithstanding that, in certain other respects, most notably on the question of immunity from suit of the legal profession for negligence in the course of court proceedings, the decision in the later case is no longer good law. I note, of course, that in some of the latter cases which reviewed the decision in Rondel v Worsley, supra., considerable emphasis is placed on the existence of later English legislation permitting courts there to dismiss, as being an abuse of the court process, applications of the type which would constitute or lead to a re-litigation of earlier proceedings, legislation which does not appear to have corresponding legislative provisions in this jurisdiction. In the present case the appellant failed to establish before the High Court that there were any matters which fall correctly to be enquired into pursuant to the provisions of the Solicitors Acts 1954-2002. Before this Court, the appellant has also failed to establish that the learned High Court judge failed to take into account any of the appropriate or relevant matters being complained of, or that he was wrong in classifying the complaints as matters properly to be disposed of as and when they arose within the Circuit Court proceedings.
The Bias Issue
Although also not forming a ground of appeal, in the course of his submissions to this Court, the appellant raised an issue of bias on the part of the President of the High Court. According to the well and long established jurisprudence that a matter not raised as a ground of appeal may not, without special leave, be raised in the course of submissions or at a hearing before this Court, if I had been required to make a formal finding on the issue of alleged bias on the part of the President of the High Court, I would have rejected the allegation as not being well founded, for the following brief reasons.
The basis for the allegation of bias is the following. According to the provisions of the Solicitors Acts 1954-2002 one of the functions of the President of the High Court, as part of the overriding supervision of certain matters concerning solicitors, is to appoint, from among a group formally nominated by The Law Society, certain solicitor members of the Solicitors Disciplinary Tribunal. This appears to be a mechanism established to ensure that appropriate representation on the Tribunal reflects solicitors male and female, from small as well as large practices, and from country practices as well as those from the cities. It is claimed by the appellant that since this statutory function exists, the President might readily be considered to be objectively biased in hearing an appeal from the decision of that Tribunal that a prima facie case had not been established, when that Tribunal is composed, inter alia, of persons so appointed.
The law relating to objective bias has been reviewed and restated in the recent decision of the Supreme Court in the case of Kelly v TCD, unreported, the Supreme Court, 14 December 2007. Since no new law has been pronounced, it is not in my view necessary to invite the parties to address this case, which was not cited by either party at the hearing. There the allegation was made that a Visitor, involved in the disciplinary mechanism within Trinity College Dublin, and who was a former professor in the College, could be considered to be objectively biased by virtue of having held that office. In the course of his judgment in that case, Fennelly, J. stated as follows:
“Denham J expressed the matter in very similar terms in her judgment in Bula Ltd. v Tara Mines Limited & Ors [2000] 4 I.R. 412, where, at page 441 of the report she said:
“……it is well established that the test to be applied is objective, it is whether a reasonable person in the circumstances would have a reasonable apprehension that the applicants would not have a fair hearing from an impartial judge on the issues. The test does not invoke the apprehension of the judge or judges. Nor does it invoke the apprehension of any party. It is an objective test - it invokes the apprehension of the reasonable person.”
I do not think that the applicant has established even an arguable case that Professor Sagara’s participation in the decision as one of the Visitors is infected or tainted by objective bias.”
I am equally of the view that the mere fact that the President of the High Court appoints certain persons to the Solicitors Disciplinary Tribunal in the manner described above, constitutes him, of itself, objectively biased. He carries out his function as the properly named appointing party pursuant to legislation, and on no other basis. The mere fact that he does so could not, and would not in my view, lead a reasonable person to have a reasonable apprehension that the appellant would not get a fair hearing on an appeal from the Solicitors Disciplinary Tribunal, and that is the test to be applied. The appellant made out no case of objective bias.
In the foregoing circumstances the appellant cannot succeed on this appeal and I reject it. I affirm the order of the High Court.