JUDGMENT delivered on the 23rd day of February, 2012, by McKechnie J.
Introduction:
1. The appellant is a solicitor and as a sole practitioner carries on a general business from offices at Baggot Street in the City of Dublin. Arising out a road traffic accident which occurred in September, 1997 he was asked by one J.F. (“the client”) to represent him in the subsequent civil action seeking damages for personal injuries. The case settled on the 19th February, 2004. The client was dissatisfied with the claim for solicitor/client costs, and so informed the appellant in writing. The response was ill considered. On the 18th May, 2004, the client took the matter to the Law Society of Ireland (“the Law Society” or “the Society”). After about two and half years, during which a great deal of correspondence and certain other events took place, the Law Society, through one of its established committees, made a decision to apply to the Solicitors Disciplinary Tribunal (“the Tribunal”) for an inquiry on the basis that there existed prima facie evidence of misconduct against the appellant. It was not until September, 2007 that the application itself was made.
2. Leave was given to the appellant to seek judicial review on the 18th January, 2008: therein he sought to quash the decision to refer as well as the actual application made to the Tribunal itself. No further step has been taken in this process. Pleadings closed and submissions exchanged, Edwards J. delivered a very detailed and lengthy judgment on the 31st July, 2009. The appellant was unsuccessful in all aspects of his challenge. It is his appeal from that decision which this judgment addresses.
3. The notice of appeal contains 19 grounds of complaint which can be condensed in the manner following. All allege that the learned trial judge misdirected himself:-
* in his interpretation of s. 9 of the Solicitors (Amendment) Act 1994 (“the Act of 1994”) and in his application of its provisions to the facts so found;
* in his application of s. 7 of the Solicitors (Amendment) Act 1960 (“the Act of 1960”), as amended and substituted by s. 17 of the Act of 2004;
* in holding that neither the provisions of natural nor constitutional justice applied to the type of inquiry conducted by the Law Society under s. 7 of the Act of 2004, as amended and substituted;
* in failing to distinguish the roles of the Society under s. 9 of the Act on the one hand as against s. 17 of the Act on the other hand, and;
* in failing to hold:-
(i) that the Society had indicated to the appellant an intention to deal with the complaint under s. 9 of the Act;
(ii) that it, in fact, embarked upon such an inquiry;
(iii) that it was in breach of these provisions by not continuing the inquiry in the manner as provided;
(iv) in holding that two parallel inquiries were ongoing simultaneously as part of this investigation and, finally;
(v) in failing to apply the judgment in O’Driscoll v. The Law Society of Ireland [2007] IEHC 352 (unreported, High Court, McKechnie J., 27th July, 2007), to the interpretation of the relevant provisions of the Act.
4. When these grounds are considered in conjunction with the submissions as made, it will be seen that the principal issues for determination are:-
(a) whether, following the receipt of the complaint above mentioned, the appellant has been denied fair procedures in the Society’s engagement with him, and secondly;
(b) whether the Society was compelled to dispose of this complaint, and all matters arising out of their investigation into it, within and solely by reference to the provisions of s. 9 of the Act of 1994: and if so, what are the consequences of any breach of this obligation?
The Respondents:
5. The Law Society of Ireland is governed by a Council, comprised of elected and nominated members of the profession. The statutory functions of the Society are exercised by the Council or by committees established by it and to whom such functions are delegated. This practice is authorised by s. 73(1) of the Solicitors Act 1954. One such committee is the Complaints and Client Relations Committee (the “CCR Committee” or “the Committee”), which formerly was known as the “Registrar’s Committee”, the change of name occurring during the period of this case. The powers and functions of the CCR Committee, which principally deals with the investigation of complaints against solicitors, are set out in Regulations 53 and 54 of the Annual Council Regulations 2004/2005 (the “Council Regulations”). Regulation 53 includes, inter alia, the powers/functions as set out in ss. 8, 9 and 10 of the Act of 1994 which may be performed by the Committee without reference to the Council. Regulation 54 covers, inter alia, the powers/functions under s. 7 of the Act of 1960, as substituted and amended by s. 17 of the Act of 1994: such may only be performed by the CCR Committee “subject to a report being furnished by the Committee to the Council in every instance of the function having been performed or the power having been exercised as appropriate”. In this judgment no distinction is made between the CCR Committee and the Law Society unless the context so requires, and nothing turns on the Committee’s change of name or the timing of it.
6. The second named respondent (“the Tribunal”), is a statutory body, independent in its functions from the Law Society, and is appointed by the President of the High Court under s. 6 of the Act of 1960 as subsequently amended by s. 16 of the Act of 1994, s. 8 of the Solicitors (Amendment) Act 2002 (“the Act of 2002”) and s. 35 of the Civil Law (Miscellaneous Provisions) Act 2008. The functions/powers of this Tribunal, insofar as relevant, are referred to at para. 9 of this judgment where its inquiry role is noted. Given the stage at which the within judicial review proceedings were instituted and the fact that nothing further has occurred on the disciplinary side, the Tribunal has played no active part in these proceedings.
The Statutory Provisions:
7. Section 9 of the Act of 1994, insofar as is relevant, reads as follows:-
“9.- (1) Where the Society receive a complaint from a client of a solicitor…that a solicitor has issued a bill of costs that is excessive, in respect of legal services provided or purported to have been provided by that solicitor, the Society, unless they are satisfied that the complaint is frivolous or vexatious, shall investigate the complaint and shall take all appropriate steps to resolve the matter by agreement between the parties concerned and may, if they are satisfied that the bill of costs is excessive, direct the solicitor to comply or to secure compliance with one or both of the following requirements, namely –
(a) a requirement to refund without delay, whether wholly or to any specified extent, any amount already paid by or on behalf of the client in respect of the solicitor’s costs in connection with the said legal services;
(b) a requirement to waive, whether wholly or to any specified extent, the right to recover those costs.
(2) Nothing in subsection (1) of this section shall prevent any person from exercising any existing right in law to require a solicitor to submit a bill of costs to a Taxing Master of the High Court for taxation on a solicitor and own client basis.
(3) Where the Society have received the complaint under subsection (1) of the this section and the client concerned…has duly requested the solicitor concerned to submit his bill of costs to a Taxing Master of the High Court for taxation on a solicitor and own client basis, the Society shall not make a direction under subsection (1) of this section unless, after due notice to that solicitor, they are of the opinion that the solicitor or his agent in that regard is unreasonably delaying in submitting such bill of costs to a Taxing Master of the High Court for such taxation.
(4) Where a bill of costs, which has been the subject of a complaint under subsection (1) of this section has been subsequently taxed, then –
(a) if the Society have given a direction under subsection (1) of this section, such direction shall cease to have effect, or
(b) if the Society have not given a direction under subsection (1) of this section, the Society shall not enter upon or proceed with the investigation of such complaint or otherwise apply the provisions of this section.”
Similar, although not identical provisions, are made in s. 8 of the Act of 1994, where the complaint refers to the provision of inadequate services.
8. Section 2 of the Act of 1994 describes a “bill of costs” as including “any statement of account sent, or demand made, by a solicitor to a client for fees, charges, outlay, disbursements or expenses”. Section 11 should also be mentioned in that any solicitor, in respect of whom a direction has issued under s. 9 may, within a certain period, apply to the High Court for an order effectively rescinding or varying such direction in the manner so requested. If however, such an application is not made or is unsuccessful, then s. 11 of the Act of 1994, as amended by s. 22 of the Act of 2002, provides that any subsequent failure or neglect to comply with such direction is a criminal offence where on summary conviction a fine not exceeding €3,000 may be imposed.
9. Section 7 of the Act of 1960, as subsequently substituted and amended by s. 17 of the Act of 1994, and by s. 9 of the Act of 2002, makes provision whereby any person, or the Society, may make an application to the Disciplinary Tribunal for an inquiry into the conduct of the solicitor on the grounds of alleged misconduct. This will be referred to as “the s. 7 inquiry” or “the misconduct inquiry”, although both in the High Court judgment and in the submissions, it is sometimes termed “the s. 17 inquiry”, which reflects the amendment made to the original section in the Act of 1994. On receipt of such an application, the Tribunal, before deciding on whether there is a case to answer, must send a copy of the application and any supporting documentation to the solicitor and invite observations thereon. On the establishment of a prima facie case, a full inquiry takes place at which, it is common case, recourse to natural justice and fair procedures is a matter of right. On the conclusion of such inquiry, the Tribunal must report to the High Court. Where a finding a misconduct has been made, which is not intended to be dealt with under s. 7(9) of the Act of 1960, as inserted by s. 17 of the Act of 1994 and amended by s. 9 of the Act of 2002, they shall, within the report, offer their opinion on the fitness of the solicitor to practise and their recommendation as to penalty or sanction. Whilst the ultimate power in this regard is vested in the High Court, the range of sanctions available include censure, restrictions in area of work and nature of practice, supervision and striking one’s name off the role of solicitors.
Background:
10. The background to this matter has been traced in great depth by the learned trial judge who in his judgment refers to most, if not all, of the correspondence which passed between each of the interested parties. It is therefore not necessary to repeat such detail. Unfortunately, however, it is required to give some background so as to contextualise this judgment.
11. On the 19th February, 2004, the client’s personal injury action commenced: during the course of its hearing he was offered €100,000 and party and party costs. In his consideration of such offer, he asked the appellant about “his fee”. He was told it could be up to €20,000 but it was impossible to know; however, in the interests of promoting a settlement the appellant agreed to limit the amount to €15,000. Some short time thereafter the case settled and was ruled accordingly. There is no doubt but that the client always had very high expectations as to value: in earlier negotiations he looked for €500,000. As later correspondence demonstrates, he was evidently greatly dissatisfied with the ultimate figure agreed upon. Whether, and to what extent this may have provoked his actions, it is difficult to know. However, it must be clearly stated that he was fully entitled to pursue any issues which he had with the appellant arising out of his retainer for the purposes of such action, and accordingly, he cannot be criticised for what subsequently occurred.
12. The appellant wrote to his client on the 1st March, 2004, and told him that from the settlement cheque, which he had received, there would be deducted the €15,000 mentioned and VAT. In addition, an undertaking previously given to a bank would be discharged and he was alerted that there may be some hospital charges due. The client’s response, which made no attempt to disguise his dissatisfaction at the amount of the settlement, alleged that he was put under enormous pressure to settle the case and to accept the solicitor and client charge. The client complained that such charge was excessive and sought the basis of its calculation. He said that he never received a copy of the list of special damages and was not told about the possibility of hospital charges still being outstanding. He sought reassurance that outlay previously paid by him would be reimbursed.
13. It must immediately be said that whilst the appellant may have felt that this complaint was the product of a discontented, disgruntled and evidently an ungrateful client, nonetheless he was professionally obliged to deal with the issue in a courteous, conscientious and business like manner. The greater the sense of grievance, the greater control one must have. If his response had even partially approached this standard, I am convinced that most, if not all, of the succeeding events would never have taken place. Unfortunately the appellant’s reaction was to go on the offensive and to do so in quite a challenging and intemperate way. If such had been avoided, matters could and should have been resolved at that stage, to the satisfaction of all parties.
14. Be that as it may, by the time the client had first complained to the Law Society the appellant had further written, to the effect that the allegations made were most objectionable and saw them as an attempt to bring his professional conduct into disrepute, that he together with the barristers who had been instructed, denied bringing any pressure to bear on the client so as to settle the action, and that the complaint regarding the list of special damages was an allegation of falsity. In respect of all such matters he sought a retraction, an apology and compensation for defamation: pending the client’s response it would be better if the monies were retained. On the 1st April, 2004, he offered an alternative option to the client: if the solicitor/client fee was agreed, the balance of the settlement figure would be released and thereafter, he would seek reimbursement from the client in respect of the outstanding fees. Failing that, however, he would get a full bill of costs taxed and pending the completion of that undertaking, would exercise a lien on so much of the settlement monies as would be required to discharge the ultimate sum found due. The balance in such circumstances would be handed over to the client who himself would then have the responsibility of pursuing the outstanding party and party costs with the appellant. The client did not agree to this suggestion. Notwithstanding instructions to the contrary, the appellant went on to retain €49,000 of the settlement sum on a basis which he described as being “a lien on unpaid costs”.
15. The letter of complaint is dated the 18th May, 2004, and having given some background, the client says that he had not received a bill of costs, that no explanation had been offered in respect of the €15,000 and that the sum of €49,000 was being withheld from his settlement cheque. In addition, he inquired about the position regarding outlay previously paid by him and asked once again for a copy list of the special damages. He sought the assistance of the Society in having this matter resolved as quickly as possible.
16. On the 10th June, 2004, the client was furnished with a drawn bill of costs. From the cover sheet of that bill, a false impression may have been given that it related to party and party costs. In fact it was a solicitor and own client bill, a point made clear in subsequent correspondence. In that letter of the 16th July, 2004, the client was informed of his right to have the bill taxed. He did not take up this option. Accordingly, the retained portion of the fund was distributed in accordance with the bill in September, 2004 which resulted, when some other minor adjustments were accounted for, in the client getting a further sum of €4,140.09.
17. Between the 25th May, 2004, when the Law Society copied the complaint letter to the appellant, and the end of that year, there was much correspondence between the appellant and the Society and some between the Society and the client. In summary, the essential features of these exchanges are set out in the following paragraphs of this judgment.
18. The Society by letters dated the 8th June, 2004, 23rd June, 2004 and 30th August, 2004, gave its understanding of what the complaint related to, namely; the absence of a bill of costs, the excessive nature of the solicitor and client demand, concern whether previously discharged outlay would be reimbursed and the failure to furnish a copy of the list of special damages. In addition, the Society made reference to ss. 8 and 9 of the Act of 1994, and to a document entitled “Resolving Complaints”. It also sought information that s. 68 of the Act of 1994 had been complied with. Moreover, the appellant was asked if the bill, then understood to be one of a party and party nature, had been sent to the client, if the settlement cheque had been endorsed by the client before being negotiated and if he would retain the €49,000 sum, above mentioned, in his client’s account pro tem.
19. The appellant’s engagement with the complaint, in the period following its making, could on the one hand, be described as one of challenge, but on the other, as asserting what he felt were his rights in the circumstances. Whilst giving some information on certain issues, his principled approach was to seek whether the Society was treating the complaint as one made under the Solicitors Acts, and if so, under what statutory provision such complaint came within and what statutory provision it is alleged he was in breach of. He insisted that he was entitled to this information before he was required to properly respond. He rejected the request to hold the monies in his client’s account, as having complied with all relevant statutory requirements, in particular s. 2 of the Attorneys and Solicitors (Ireland) Act 1849, he felt that he was entitled to pay the monies out in the manner in which he did.
20. By letters dated the 29th June, 2004, and the 28th July, 2004, the Law Society pointed out that not all complaints related to “statutory breaches” and gave an example in that context of a solicitor breaching an undertaking, which it would investigate as a conduct complaint. As the appellant persisted in treating this type of answer as an incomplete and unacceptable one, the Society notified him of their intention to seek the assistance of the Committee as to whether his concerns in this regard had been sufficiently addressed and also, as to how the investigation should proceed from that point onwards. It was intended to place this item on that Committee’s agenda for its meeting on the 29th September, 2004. He was invited to attend if he so wished.
21. The Committee duly considered the matter on that date and arising out of its deliberations, a letter dated the 7th October, 2004, was sent to the appellant. Its principal features read as follows:-
“On the basis of their review of the correspondence, the Committee intend to consider the following issues:-
1) The allegation made by Mr. Nolan that, at the time of the settlement, you requested payment of a fee of €15,000.
2) The reasonableness or otherwise of your insistence on receiving from Mr. Nolan a “proposal for the payment of financial compensation for defamation”.
3) Your response to your client’s request for a breakdown of the amounts which he was entitled to be reimbursed.
4) The circumstances in which the solicitor/client relationship was terminated.
5) Confirmation that you have complied with the obligations imposed by Section 68(1), (3), (4) and (5), Section 68(8)(a)(b)(ii) and Section 76(17) of the Solicitors (Amendment) Act 1994.
6) The reasonableness or otherwise of your Bill of Costs.
7) Your response to the Society’s correspondence to date.”
The letter continued:-
He was informed that the matters listed would be considered at its next meeting on the 3rd November, 2004, and his attendance was requested thereat.
22. On the 8th October, 2004, the appellant joined issue with the Society and asked which of these matters arose out of the client’s complaint and again sought the statutory basis under which such complaints were made and in accordance with which they would be considered. In response it was stated that not all were relative to the client’s complaint but that did not prevent the Registrar’s Committee from looking into them, if they so considered.
23. On the 26th October, 2004, having again been requested to attend the forthcoming meeting on the 3rd November, 2004, a leaflet containing the Committee’s powers and functions was enclosed to the appellant which states as follows at p. 176:-
“Powers of Committee
The Committee attempts (in suitable cases) to seek the resolution of a complaint, but where this is not appropriate, it may uphold a complaint and impose a sanction. Sanctions vary according to the type of complaint, and may include one or more of the following:-
A direction to waive/refund some or all of the solicitor’s professional fees.
A direction to hand over a file.
A direction to secure rectification at the solicitor’s expense.
A direction to take such other action as the Committee may specify.
The imposition of a formal reprimand.
A referral to the Disciplinary Committee.
Costs of Investigation
In addition to the above, the Committee may levy any costs incurred by the Society as a result of a solicitor’s failure to reply to correspondence from the Society in a timely manner (up to a maximum of 3,000) even where the substantive complaint is ultimately rejected.
Adjournments
Adjournments will only be granted in exceptional circumstances and solicitors are required to produce evidence of the reason for non-attendance. A solicitor who has been invited (or requested) to attend, who chooses not to do so and does not arrange to be represented, should be aware that the manner may be dealt with in his absence which could result in the imposition of one or more of the Sanctions listed above.
Multiple complaints
The Committee may have regard to the number and nature of complaints made against a solicitor within the preceding two years and this can result in a direction to refuse an application for, or the imposition of conditions on, a practising certificate.
Appeals
Appeals against directions made by the Committee in cases involving inadequate professional services or excessive fees may be lodged pursuant to s. 11 of the 1994 Solicitors Act. There are 21 days (from date of notification) to appeal, after which the direction becomes “absolutely binding”.”
24. On his attendance, on a “without prejudice” basis, before the Committee on the 3rd November, 2004, the appellant handed in a letter which, after consideration, the Committee decided should be sent to the client for his observations. The letter reiterated much of what previously had been agitated, questioning the statutory breaches which had allegedly been committed, why the list of complaints had grown, and which of the complaints had emanated from the client. In addition however, and notwithstanding the without prejudice basis of his attendance, the appellant supplied information on the s. 68 issue, information on the client’s authority to negotiate the settlement cheque and he furnished a copy of the special damages list. Before the matter was adjourned the Chairman indicated to the appellant that the Committee was not obliged to connect each complaint to a breach of the statutory code.
25. Having received further correspondence from the client and noting matters which occurred at the Committee’s following meeting at which the appellant was present, the Law Society wrote to the appellant on the 20th December, 2004, indicating that the Committee proposed to consider the following issues which arose out of the correspondence:-
“(1) your advice to your client during the settlement negotiations of your proposal to charge a solicitor/client fee of €15,000.00,
(2) clarification of the basis upon which the proposed fee of €15,000.00 was measured,
(3) your client’s request for a (i) copy of the schedule of special damages and, (ii) details of the outlay expended by him which are recoverable from the other side,
(4) compliance with the relevant provisions of s. 68 and s. 76(17) of the 1994 Act,
(5) the whereabouts of the monies retained by you, and
(6) your demand for the payment of financial compensation by your client and your decision to cease representing him.”
He was requested to make submissions on these matters and invited to attend the next meeting of the Committee.
26. In 2005 the correspondence abated somewhat, largely because of the Society’s decision, communicated by letter dated the 14th February, 2005, to the effect that before matters could be concluded, the party and party costs would have to be calculated, to which end the Society proposed to instruct a cost drawer. In addition, under cover of the same letter, a notice under s. 10 of the Act of 1994 was served on the appellant requesting delivery to the Society of his file, and in respect of a further request to identify “what breaches of a statute and non-statutory code have allegedly taken place” it was stated that “the Committee are considering the issues in the context of a solicitor’s overall obligation not to engage in conduct which brings the profession into disrepute”.
27. In the period which followed, steps were taken by the Society to have the party and party costs established: these were eventually agreed in July, 2005. Also, during this period the appellant took issue with the validity of the notice requesting production of documents under s. 10 of the Act of 1994: reliance upon which was later abandoned. However, the Society’s request for the file continued. Eventually the appellant sent the file to the client who furnished it to the Society, previous to which the appellant had been threatened with a High Court application for the return of the file. On the 4th September, 2006, he was copied all correspondence from the client since March, 2005: previously he had received the correspondence from the earlier period. He was also copied the minutes of each Committee meeting at which this matter was considered. He was informed that the issue would be considered by the Committee at its meeting on the 20th September, 2006, and was invited, on two occasions, to attend. By way of response, on the 19th September, 2006, the appellant claimed that despite multiple requests the Society had refused to confirm that the complaint would be dealt with under s. 8 of the Act of 1994 and went on to allege that in respect of “any disciplinary aspect” of the complaint, the Committee lacked jurisdiction.
28. By letter dated the 22nd September, 2006, the appellant was advised that the Committee at its meeting on the 20th September, 2006, which he did not attend, took the view that the correspondence disclosed prima facie evidence of misconduct which would warrant an application to the Disciplinary Tribunal for a sworn inquiry.
29. The correspondence and events subsequent to this letter are not material, save of course for the Society’s application to the Tribunal which was made on the 17th September, 2007.
The High Court Judgment:
The Issue of Fair Procedures
30. In the judge’s view, the level of fair procedures demanded in this case depended on the nature of the investigation in issue. If there existed a potential for adverse findings or the imposition of sanctions, the same requirements apply as they would to a formal disciplinary hearing. This assignment of rights was related by the judge to a process which had or had the potential to result “directly” in the consequences mentioned. It appears from the context that he was not speaking of a situation where the vehicle involved was utilised to gather and sift information and where the agent has no fact finding function or penalising power. In essence, such was but the carrying out of a preparatory step, and where followed by a more formal structure, with standard safeguards are available, then “less formal procedures may be quite adequate and appropriate to it”. This distinction remains valid even where the investigator at first instance has the power to initiate or trigger the subsequent process.
31. Having obtained much assistance from Doupe v. Limerick County Council & O’Connor [1981] ILRM 456, O’Ceallaigh v. An Bord Altranais [2000] 4 IR 54 and Miley v. Flood and The Law Society of Ireland [2001] 2 IR 50, the trial judge distinguished between investigations conducted under ss. 8 and 9 of the Act of 1994 on the one hand, and an investigation which may result in the Society seeking a s. 7 inquiry, on the other hand. In respect of the former he had no hesitation in saying that the subject in question “is entitled to the benefit of manifestly fair procedures including respect for and application of the principles of natural justice and in particular audi alteram partem”. In the broadest of terms, s. 8 deals with a complaint regarding the provision of inadequate services whilst, as we have seen, s. 9 relates to the charging of excessive fees. However, as above stated the judge felt that any inquiry into other aspects of the solicitor’s conduct involved but a “preliminary investigation” only: preliminary to a possible formal inquiry being applied for and later to be held, if at all, under s. 7 of the Act of 1960, as amended. Moreover, such an investigation, which could be conducted in parallel to a s. 8/9 inquiry, had no “significant impact at this stage for the reputation or good name of the applicant”.
32. In the instant case the inquiry into conduct was but a process of gathering and sifting information: it could not make findings or impose sanctions. At most, at the end of its involvement, the Committee formed a subjective view, yet to be tested, that the appellant may have been guilty of misconduct. Once an application to the Disciplinary Tribunal is made, the situation changes, albeit, even at that stage, the extent of fair procedures may differ between the filter process i.e., is there a case to answer, and if so, the hearing proper. The judge’s conclusion on the point was that, leaving aside a s. 8/9 investigation, the full panoply of rights does not attach to an inquiry by the CCR Committee into conduct: however, he went on to hold that there was an obligation to treat the appellant fairly, although not specifying the nature or extent of what this might involve. Given his conclusion on the point (para. 35 infra), such an exercise, presumably, was not thought necessary.
33. The learned judge then dealt with the position or role undertaken by the Society in the case at hand, holding that they were possibly engaged in two different processes of investigation, one of a preliminary nature in the manner above described with the second being an inquiry under s. 9 of the Act of 1994: although that could not have commenced before the 10th June, 2004, when a formal bill of costs was served (see para. 36 infra). Within the former investigation of overcharging, it was also permissible to examine the way in which the appellant dealt with the complaint, including the manner and content of his communication with both the client and the Law Society.
34. If the Society was to be criticised, it was for their failure to inform the appellant, “at every stage” of the process, as to what type of investigation they were conducting, that is, whether it was a s. 8/9 inquiry or a potential misconduct inquiry or some combination of both. Indeed, the learned trial judge felt that the Society themselves were unsure of the framework within which they were operating.
35. On the critical point however, the judge was entirely satisfied that the appellant had access to all relevant material and correspondence (para. 63 infra) and that otherwise he had been treated fairly throughout. Therefore, under no heading of complaint could his agitation be justified.
Ultra Vires Issue:
36. The learned judge then considered the appellant’s submission that once an inquiry was embarked upon under s. 9 of the Act of 1994, such inquiry had to be conducted and concluded in accordance with its terms, as, save in circumstances where the complaint was either frivolous or vexatious, which the instant complaint was not, its provisions were mandatory. Whilst agreeing with this submission regarding the nature of the section, the judge pointed out that the subject matter of such inquiry could only relate to a bill of costs as defined by s. 2 of the Attorneys’ and Solicitors’ (Ireland) Act 1849: in this regard no reference was made to s. 2 of the Act of 1994. In his view such a bill did not exist at the time of the initial complaint: consequently the investigation which opened at that time could only be a general conduct inquiry. Later, when a bill of costs, as so understood, issued, a s. 9 inquiry may have commenced, although it was by no means clear to him that this in fact was so. If however such had taken place, it could not displace the more general parallel inquiry into conduct. It was as a consequence of the latter inquiry that a decision was made to refer matters to the Disciplinary Tribunal and subsequently to make an application to that body. Since none of the grounds relied upon by the Society in alleging misconduct, relate expressly to the bill of costs as so described, its failure to follow through on the s. 9 procedure was irrelevant. Even if such failure was ultra vires the section, the same did not impact either on the decision or on the application which are impugned in this case. Having distinguished O’Driscoll (para. 39 and paras. 50 infra et. seq.), he dismissed the applicant’s arguments on what loosely can be described as the ultra vires issue.
37. The judgment went on to deal with a number of other issues which do not appear to be the subject of continuing controversy between the parties.
The Submissions to this Court:
The Appellant:
38. It was submitted on behalf of the appellant that the correct interpretation and application of ss. 2 and 9 of the Act of 1994 together with s. 7 of the Act of 1960 as amended, were pivotal to a resolution of both the fair procedures issue and the ultra vires point. Both of these matters, it was asserted, are inter-related, with a considerable overlay in the founding material supporting each of them.
39. With regard to the statutory point it is said that the complaint from the client was one of overcharging, that the Law Society so understood and treated it as such, and that they conveyed this understanding to the appellant: moreover, they encouraged him to focus his attention and address his mind to resolving the complaint in this way. In essence therefore, the complaint fell to be dealt with under s. 9 of the Act of 1994 and the appellant was informed as much. As the provisions of this section are mandatory and as they constitute a self contained unit when read, as they should be, in conjunction with the provisions of ss. 8, 10 and 11 of the Act, the Society, in commencing but not concluding the process, acted ultra vires the section with the result that the decision to refer and the application made to the Tribunal, in that regard are both null and void and of no effect. It is said that the full operation of the section is a pre-condition to making any request for a misconduct inquiry. O’Driscoll and McMahon v. The Law Society of Ireland (unreported, High Court, Herbert J., 10th July, 2009) are relied upon in support of both the mandatory and conditional nature of s. 9, in addition to Duffy v. Dublin Corporation [1974] I.R. 33 and O’Reilly v. Limerick County Council [2007] 1 IR 593.
40. As is clear from the section it is accepted that a bill of costs must exist before its provisions can apply. Contrary to the judge’s findings however, it is submitted that this pre-condition must be addressed by reference to s. 2 of the Act of 1994 and not by reference to s. 2 of the Attorneys’ and Solicitors’ (Ireland) Act 1849, which was the section solely relied upon by the judge. In this regard he misdirected himself. If this be correct, it is said that the demand made by the appellant on the 19th February, 2004, when the case was settled, was sufficient to constitute such a bill. That being so, there was no impediment to a s. 9 inquiry commencing immediately on receipt by the Society of the client’s complaint. Therefore, in such circumstances the reliefs sought should be granted.
41. Under the heading of fair procedures, two separate set of circumstances were addressed, first an allegation that for the several reasons, outlined at para. 63 of this judgment, the CCR Committee did not afford the appellant an appropriate level of protection during the period of its investigation into the complaint and also by concluding matters at its meeting on the 20th September, 2006, without first having specifically informing him of its intention to do so. The second aspect of this matter must be referred to in some more depth and can be described in the manner following.
42. Whilst it is acknowledged by the appellant that the Society, when conducting a s. 9 investigation, would also have been entitled to consider matters of alleged misconduct should evidence emerge during the inquiry to that effect, nonetheless if such occurred, the appellant should have been informed that matters thereafter were also being considered within the general framework of s. 7 of the Act of 1960. At that point there would have existed two parallel inquiries, which would be unobjectionable, provided such was stated clearly. This is particularly important given the fact that a misconduct inquiry carries with it, a far more serious set of consequences for a solicitor, than those which might follow from a s. 9 inquiry.
43. Prior to the letter of the 22nd September, 2006, informing the appellant of the Committee’s decision to refer, no suggestion had been made or indication given, that what was said to be an excessive fee inquiry had been converted into a s. 7 inquiry. On making such a decision, the Society was obliged to so inform the appellant as his position was altered as a result. McMahon was again referred to in this regard. The Society however did not do so. Instead it suspended the s. 9 inquiry for more than two years. It is no answer to refer to procedures which are available at the full inquiry. As a result of the Society’s operation of Part III of the Act of 1994, the required fair procedures were not adhered to.
44. Finally, for a number of reasons which were outlined in detail, it was submitted that the trial judge was incorrect in the way in which he distinguished the instant case from O’Driscoll.
The Law Society:
45. On the ultra vires point, the Law Society does not seem to take issue with the general analysis of an inquiry under s. 9 of the Act of 1994, as outlined in O’Driscoll. Its criticism of that decision is in a different respect and is one which I will revert to in a moment. Accordingly, once invoked the process provided for in that section is mandatory. However, what is said in this regard is that it is not exclusive; therefore, a complaint referable to an issue of overcharging may also give rise to a conduct inquiry. There is no contradiction in this as the Society’s concern is wider than the narrower focus of a client who, in the context instanced, may have no interest other than retrieving monies paid or being released of an obligation to further pay. Therefore, the client’s concerns may not be entirely symmetrical with that of the Society’s.
46. The Society’s principal submission on this issue is that there was but one inquiry, namely a general conduct inquiry. If however, they are incorrect in this regard then, as the trial judge found, there were parallel inquires, one under s. 9 of the Act of 1994 and the other referable to conduct. The mere fact that the requirements of s. 9 were not complied with, is irrelevant to the Society’s entitlement to make the decision which it did on the 20th September, 2006. Such compliance is not a pre-condition to making an application under s. 7 of the Act of 1960, as amended. If this proposition is accepted, such is sufficient to dispose of the case.
47. On what constitutes a bill of costs for the purposes of s. 9 of the Act of 1994, the first named respondents rely fully upon the judgment of the High Court.
48. On the fair procedures issue the Law Society firstly submit that as a matter of fact there is no substance in the complaints made by the appellant, being those addressed in this judgment at para. 63 infra. They say that on any view of the correspondence, the basis for such complaints simply does not exist. Likewise, from a legal point of view, they say that irrespective of what the strict position might be, the Society accorded to the appellant a level of fairness in respect of which he cannot legitimately complain.
49. Of more significance from the Society’s point of view is the alternative complaint regarding fair procedures. They respond to this by drawing on what they say is the law where a “multi step process” is involved: in support they extensively quote from Re National Irish Bank Limited (No.1) [1999] 3 IR 145, Re National Irish Bank Limited (No.2) [1999] 3 IR 190 and Miley. Headline emphasis, as emphasised by the frequency of repetition, is placed by the Society on their characterisation of what the CCR Committee was engaged in: its role being simply to determine “whether or not there are grounds to refer someone to the Tribunal” (see Doupe at 463, in this regard). The Society claim that the CCR Committee operates at the earliest stage of a more elaborate process and was simply investigative in its operation. They endorsed it as being in accordance with “the pre-existing jurisprudence”, in line the following passage from the judgment of the trial judge:-
“What the Committee is engaged in, at the preliminary investigation stage, is no more than a process of gathering and sifting information at the end of which they may or may not form a view that there are grounds for applying to the second named respondent under s. 17 of the Act of 1994 for an inquiry into the solicitor’s conduct. The Committee has no power to make or impose, and in the present case has not purported to make or impose, adverse findings or sanctions against the applicant. Rather it has merely formed the subjective view, the soundness of which is as yet unproven or untested, and which enjoys no special status, and which gives rise to no presumption one way or the other, that the applicant has been guilty of misconduct.”
50. O’Driscoll (cited at para. 3 supra), it is said represents a “sea change” in how the Irish courts have viewed the early stages of an investigation. Historically such stages did not attract a “high level” of rights: these came at a later stage. O’Driscoll was “particularly far reaching” in that the judge’s observations were made, not simply in the context of a two step process but rather were made at step one in the context of a four step process (see para. 60 infra).
51. It is not quite clear what passage in O’Driscoll this submission relates to but most probably it is that quoted at para. 34 of the judgment. It is claimed that, based on such passage, O’Driscoll went on to effectively hold that “the full panoply of rights and procedures must be afforded as and from day one of every investigation or process.”
It invites a review of the statement.
52. The Society also asks this Court to pronounce on several other issues which they find discomfort with, arising out of a variety of circumstances such as the lack of specificity in the grounds relied upon to seek judicial review, the manner in which that review was sought, the delay in applying for leave, etc.
53. In conclusion, the Society of course supports the ultimate finding of the trial judge.
Conclusion:
54. The issue of fair procedures has loomed large on this appeal as it did in the High Court. It seems to me that in regard to an inquiry under s. 9 of the Act of 1994, there is no room for argument on this point. As appears from its provisions, when s. 9 has been invoked, the Society must take certain steps to address the complaint of a bill of costs being excessive. Such steps and the obligations of the Society under the section have been analysed in O’Driscoll (paras. 38 – 43 of the judgment), which assessment I am satisfied to also adopt in this case (paras. 84 – 94 infra). That the section has a discrete application is further evidenced by the manner in which the Committee can exercise its powers under Regulation 53 as distinct from Regulation 54 of the Council Regulations, and by the type of sanction which may attract publication and that which may not. In any event quite clearly as part of a s. 9 investigation, the Society can make findings, such as that the bill is excessive, and if so, can specify conditions as a corrective measure: such as directing a refund of the whole or part of the monies already paid by the client or, imposing a requirement to waive in whole or in part any right to recover costs. Evidently, therefore, if a solicitor attracts this provision his underlying conduct may reflect badly on him and on his reputation: he or she will have been the subject of a finding against him and if directions issue, will suffer the consequences of their effect.
55. To underpin the seriousness of the powers conferred by this section, a solicitor is given the right to appeal to the High Court, to seek an order directing the Society to rescind any direction given or to vary it, in the manner requested. If such an appeal is not availed of or is unsuccessful, a refusal, failure or neglect to comply with such direction, is a criminal offence punishable of summary conviction by fine not exceeding €3,000. (s. 11 of the Act of 1994, as amended by s. 22 of the Act of 2002). Therefore, it is not in the least surprising to find agreement that a solicitor, who is subject to this statutory process, is entitled to the appropriate rights of fair procedures.
56. Similar observations can be said to apply to an investigation under s. 8 of the Act of 1994.
57. Equally so there cannot be any controversy where, what is under scrutiny, is the manner in which the Disciplinary Tribunal conducts its business. Where an application has been made to hold a misconduct inquiry, there is no doubt but that after deciding on the existence of a prima facie case, the subject individual is entitled to what has been referred to as “the full panoply of rights”, which I take to mean a full engagement with natural and constitutional justice. This follows from the nature of the body, the seriousness of the complaints within its competence, its powers of investigation, adjudication and decision making, as well as the importance of their opinion and recommendation with regard to practice suitability and sanction (see s. 7(3) of the Act of 1960, as amended by s. 9 of the Act of 2002): albeit even if the latter are subject to court application.
58. With regard to determining the existence, or otherwise, of a case to answer, the Tribunal must send a copy of the complaint and any accompanying documents to the solicitor and request his observations on them. (s. 7(2) of the 1960 Act, as amended by s. 9 of the Act of 2002). A similar obligation and corresponding right was established by the majority judgment of the Supreme Court in O’Ceallaigh, as applying to members of the nursing profession. In addition, the Tribunal’s workings are governed by an extensive set of rules, as set out in the Solicitors Disciplinary Tribunal Rules 2003. Consequently, as the manner in which the Tribunal conducts its business is regulated in quite a detailed and structural way, further analysis of its procedures would not greatly help in resolving the issues in this case, although of course if must be noted that in accordance with what I have stated, all persons appearing before it are entitled to fair procedures and natural justice.
59. It must also be noted that unlike O’Ceallaigh (paras. 72 infra et. seq.), this case is not one where the complaint was made directly to the Tribunal: in that as previously described in this judgment, the application by the Society was preceded by a series of events, which in all expanded a period of at least two and a half years. These included the exercise by the Society of its general power to compel the solicitor to co-operate as well as the use of its specific power, regarding the production of documents, under s. 10 of the Act of 1994, although this was later abandoned as not being required. This procedure is clearly of benefit to the Society, a benefit which it would forego on direct application. In these circumstances, it seems to me that the fair procedures issue must be decided by reference to the actual facts of this case as these have occurred and that such issue would not be significantly asserted by a consideration of what the position would be, were the Society to make an application for a s. 7 inquiry, without any of the antecedents as happened in this case.
60. In any event such a situation would apparently be quite unusual as it is not the practice of the Law Society to act in this way. According to the evidence of Ms. Linda Kirwin, in her affidavit of the 26th March, 2008, there is a set procedure to follow in the investigation of complaints. The first step is described as the “preliminary information gathering stage”, where information may be obtained from a variety of sources, such as receiving a specific complaint or from a routine inspection of a solicitor’s practice. The second stage is termed “the Committee stage”, during which the Society will seek information from the solicitor in question: to this end it may invoke the assistance of the CCR Committee on an ongoing basis, as it did in this case, and may or may not call upon him or her to appear before that Committee. The final event of this step is the Committee’s decision to seek a referral to the Tribunal, if it so decides. The remainder of the stages, in the overall process, relate to the Tribunal’s functions and the powers of the High Court. As can therefore be seen, unless the complaint is pretty much disposed of at the outset, the Society’s own practice requires an engagement with the Committee before any question of a referral takes place.
61. There is no doubt but that there is good reason for this practice, for it would be unthinkable, unworkable and hopefully utterly unnecessary, for every complaint to be referred to the Tribunal. Moreover, such a practice if it became routine, would entirely stultify ss. 8 and 9 of the Act of 1994 without either cause or good effect. Therefore, where appropriate, resolution without recourse to the ultimate step must be desirable. Clearly the Society is of a similar view as evidenced by what generally happens: this accords fully with the position as outlined in O’Driscoll. That being so, what the situation might be if the above steps had not been taken and a direct application made, does not call for consideration: it did not occur in this case and it is not the general practice of the Society to do so.
62. In order to determine therefore what precisely is in issue under this heading, one must look at what in fact the Law Society was engaged in, what level of fair procedures such a process(es) attract and whether their interaction with the solicitor breached such procedures. Before doing this however, the following complaint of the appellant can conveniently be dealt with.
Fair Procedures: First Issue:
63. It is submitted on the appellant’s behalf by way of a specific complaint:-
(i) that he did not get copies of the material which the CCR Committee had before it, when making its decision;
(ii) that he did not get a copy of the full correspondence relating to the matters under investigation;
(iii) that the Committee failed to identify the complaints referable to the client;
(iv) that the Committee failed to identify each statutory provision in respect of which he was alleged to have been in breach of;
(v) that he had no opportunity to be heard in his own defence, and;
(vi) that he was not notified that the Committee would in fact dispose of this matter, at its meeting on the 20th September, 2006.
64. In summary, therefore, as can be seen he claims that he was deprived of relevant material, including some, or much, of what the referring decision was based on, although he does not say in what way he has been disadvantaged as a result. He says that the Society failed to individualise those complaints which emanated from the client and failed to distinguish them from others which the Society themselves initiated. He claims that he was not told of the statutory provisions which may have been breached and was not given an opportunity to defend himself. He also says that the Society failed to inform him of the Committee’s intention to dispose of this issue at its meeting on the 20th September, 2006. He claims that by reason of all such matters, there has been a breach of natural justice and fair procedures.
65. A review of the correspondence demonstrates conclusively and incontrovertibly the following:-
(a) that the appellant was furnished with:-
(i) copies of the original complaint;
(ii) copies of all of the correspondence passing between the client and the Society, and;
(iii) copies of the relevant minutes of each Committee meeting at which any aspect of the complaint/investigation was mentioned, discussed or in respect of which directions issued.
(b) that he was informed:-
(i) of the Society’s understanding of the original complaint (para. 18 supra);
(ii) on, at least two specific occasions (7th October, 2004 and 20th December, 2004), that the matters which the Society were concerned with, had expanded to cover the specific items identified in each of these said letters;
(iii) that the Society was considering the issues in the context of conduct, which if inappropriate might bring the profession into disrepute (para. 26 supra), that not all complaints can or need be related to a particular statutory breach of the Solicitors Acts (para. 20 supra) and that, some under investigation did not emanate from the client, (para. 22 supra);
(iv) of the date of each meeting at which any aspect of the matter was to be discussed and was invited and/or requested to attend, and;
(v) of the date of the decision meeting well in advance of its actual date.
66. It therefore seems to me that the evidential foundation necessary to advance any argument along the lines as suggested, is simply not there. The appellant received all of the correspondence; was informed by the Society from time to time as to the matters then currently under investigation; was afforded multiple opportunities to respond, either with or without supporting documentation; was invited to and did attend at several Committee meetings, and on at least some of those occasions, addressed or otherwise engaged with Committee members. He was told that conduct disparaging of the profession was in issue: recourse to s. 3 of the Act of 1960, as amended, would have alerted him to the statutory definition of “misconduct”. He was informed that all complaints did not depend on statutory breaches, which in my view, is correct. In addition, it must have been clear to the appellant that the reason giving rise to the hiatus which occurred in the early part of 2005, related to the Society’s desire to have the party and party costs settled, which occurred in July, 2005. It therefore could have come as no surprise that when such impediment had been dealt with, steps would then be taken by the Society to have the outstanding matters finally disposed of. In addition, on the 3rd August, 2006, and on the 4th September, 2006, he was specifically informed of the forthcoming meeting then scheduled for the 20th September, 2006, and, as previously stated, was invited to attend. He did not do so and neither was he represented. The fact that a decision was made to conclude matters could not in any way have unjustly taken him by surprise or otherwise unfairly jeopardise his position. Consequently, the complaint made by him in this regard is without substance and cannot be sustained. Therefore, I would dismiss this ground of appeal.
Fair Procedures: Second Issue:
67. As appears above, the Law Society, in answer to the appellant’s submission that the process was unfair, and leaving aside the s. 9 investigation for a moment, suggest that the general conduct investigation undertaken, was but a step, of simply gathering and sifting information, which of itself does not attract any rights. It was exploratory to the possibility of a referral only. It had no other function. The fact that such a referral took place is immaterial, save to note that throughout the subsequent process, yet to take place, the appellant will be entitled to the full range of natural justice rights. In particular, the Society highlights the infancy stage at which the investigation is still at: there are at least three further steps in the process to come and in this regard they repeat much of what Ms. Kirwin has said in her affidavit, which is referred to at para. 60 supra. Drawing on the case law cited, they say that the criticism of the Society is at best premature: at a principal level it is also unstateable.
68. This case is not concerned with any allegation of bias and it is therefore the second limb of natural justice which applies: in fact it is more appropriate to consider the issues within the wider context of fair procedures. At its most general level, fair procedures demand fairness: he who is obligated must treat an affected person fairly. The circumstances in which such a requirement exist and the level of protection which is necessary to satisfy it are issues that are case specific. Since the circumstances which potentially might engage this principle are infinite, any meaningful discussion on the topic must be more focused. As applied to this case therefore, one must consider the issue, as the Society urges, by reference to a tiered process, which from inception to conclusion, involves more than one step.
69. A number of cases were cited in this context. In National Irish Bank (No.1), inspectors, who had been appointed under s. 8(1) of the Companies Act 1990 to investigate and report on the affairs of the company in relation to certain specified matters, decided on a two stage procedure for their investigation. The first was an information gathering exercise by way of informal interview: the second, which would only arise where the first stage indicated a possibility that adverse conclusions could be drawn, consisted of a hearing at which such individuals could have legal representation, could cross examine witnesses and could give evidence themselves. Shanley J. faced a submission that stage one was not simply investigative but accusatorial: thus as a result, before a former manager of the bank could be examined, he was entitled, (i) to all of the material in the inspectors possession which reflected on him; (ii) to cross examine his accusers; (iii) to give relevant evidence, and; (iv) to make submissions. The learned judge held that:-
“There is no entitlement to invoke the panoply of rights identified by the Supreme Court at the information gathering stage of the Inspectors’ work. The procedures identified by the inspectors following the outcome of the first stage accord in my view with the requirements of fairness and justice and guarantee, where appropriate, the exercise of the rights identified in Re Haughey [1971] I.R. 217.”
70. In a second case arising out of the same statutory appointment, namely National Irish Bank (No.2), Kelly J. endorsed the above passage. The learned judge likewise took this view, as the issue in contention arose at a stage when the inspectors were still only engaged in information gathering. They had not been called upon to exercise any quasi judicial function. This would arise only at stage two. Therefore, the applicant had misunderstood the role of the inspector. Citing with approval Maxwell v. Department of Trade [1974] 1 Q.B. 523, where Lord Denning M.R. clearly distinguished an engagement by and with inspectors under the Companies Act from several other situations including, where a committee decides on the existence of a prima facie case against a person, the learned trial judge was satisfied to conclude at p. 215 that “there is no entitlement to invoke the rights established in Re Haughey [1971] I.R. 217, at the information gathering stage of the inspectors’ work.”
71. The above passages were reaffirmed by Kelly J. in Miley.
72. A case referred to by both parties was O’Ceallaigh (cited at para. 31 supra), where the profession was nursing, which is regulated by the Nursing Act 1985. Four complaints were made by the then Master and Matron of two Dublin maternity hospitals, against the appellant who was a registered nurse and domiciliary midwife in private practice. All touched upon her professional competence. Before the Fitness to Practise Committee made a decision that a prima facie case existed with regard to complaint No. 1, copies of the relevant correspondence were sent to Ms. O’Ceallaigh with an invitation to respond, if she so wished. However, with regard to the other three complaints, she was not made aware of their existence or given a chance to comment on them, before the Committee made a similar decision in respect of each one. She took no issue with regard to complaint No.1, but alleged a lack of fairness in respect of the other three. For the purpose of this reference to O’Ceallaigh, no relevant distinction is made between the role of the Board in referring the complaints on and the role of the Fitness to Practise Committee in deciding on a “case to answer”. The crucial event being whether she was entitled to notice of the complaints and to be given a chance to respond, before that decision was made.
73. Hardiman J., who gave the majority judgment on behalf of the Supreme Court, reviewed several cases:-
(a) in Scariff v. Taylor [1996] 1 I.R. 242, the Supreme Court held that, other than for legal representation, “the full panoply of procedural justice”, applied to an informal investigation, conducted by a commanding officer of the defence forces, the only effect of which was that, if the complaint was not disposed of, the accused person could be sent forward for trial, by a limited court martial, at which full rights would be afforded to him,
(b) reflecting on the discussion in State (Shannon Atlantic Fisheries Limited) v. McPolin [1976] I.R. 93, Hardiman J. said at p. 127 that “on any view however the case is authority for the proposition that, in some circumstances at least, a preliminary inquiry without direct legal effect may give rise to an obligation to apply principles of procedural justice”,
(c) from Rees v. Crane [1994] 2 A.C. 173, it could be seen, that even where full safeguards are available at a later stage of a composite process, it may still be necessary to afford natural justice at an earlier stage, and
(d) from Murray v. Legal Services Commissioner (1999) 46 N.S.W.L.R. 224, a similar conclusion was arrived at.
74. It should immediately be stated that each of these cases have their own individual facts and legal matrix, the details of which should be referenced so as to put into context and achieve a full understanding of the reasoning behind the conclusions, which only in the broadest of senses, have I just outlined. Having considered these and other authorities, what can be said, at least with some confidence, is that when determining if a right to fair procedures exists and (if so) its scope, whether within a process which may have no direct legal effect or one which is multi-tiered with some effect, a court is not bound by any rigid set of rules but rather must apply fairness to an extent which is both appropriate and responsive, to the individual occasion. The old distinction between administrative and quasi judicial decisions no longer carries the force it once had. In essence, it seems that certainty must yield to flexibility.
75. In this context, the passage most frequently cited as supporting the type of strict approach argued for by the Law Society in this case, is that from de Smith, Judicial Review of Administrative Action (London: Stevens, 4th ed., 1980) at p. 199:-
“Where an act of proposal is only the first step in a sequence of measures which may culminate in a decision detrimental to a persons interests, the courts will generally decline to accede to that person’s submission that he is entitled to be heard in opposition to this initial act, particularly, if he is entitled to be heard at a later stage.”
To read this passage in the manner suggested by the Society is, I believe, to over-read it: whilst it outlines what the general rule is, it does not purport to be determinative on any one specific approach.
76. As was pointed out in O’Ceallaigh, at least one other eminent academic favours a more broad based approach where this type of process is involved. In a passage which has appeared in several editions of the book over many years, including that published in 2010, Wade and Forsyth, Administrative Law (Oxford: University, 10th ed., 2009), offers this view on the issue at p. 466:-
“Natural justice is concerned with the exercise of power, that is to say, with acts or orders which produce legal results and in some way alter someone’s legal position to his disadvantage. But preliminary steps, which in themselves may not involve immediate legal consequences, may lead to acts or orders which do so. In this case the protection of fair procedures may be needed throughout, and the successive steps must be considered not only separately but also as a whole. The question must always be whether, looking at the statutory procedure as a whole, each separate step is fair to the persons affected.”
This statement in my opinion correctly elevates the requirement of fairness to the pivotal position where it should be, in the type of situation as here, where at a certain level the decision maker has the power to conclude, and thus close, the inquiry or else continue its existence by referral to the next phase of the investigation. It is saying no more than that there may exist circumstances where, in a stepped process, fair procedures may be in play at any or all levels of its operation, depending on circumstances and consequences. I can find no reason why such approach could be considered objectionable. Evidently it is not so rigid as would dis-apply fairness by decision class; on the other hand it is sufficiently flexible to embrace exceptions such as necessity, urgency, impracticality or other circumstances to which such procedures may have to yield. I would therefore adopt this view as correctly representing the law on the question of fairness in the context under review and within the parameters as noted.
77. So what type of investigation was the Law Society conducting? The answer to this rather difficult question is facilitated by excluding from the analysis what undoubtedly was not happening: contrary to what has been said, this was not and could not be described as a pure information gathering exercise. This suggestion, which is the core of the principal submission made by the Law Society, is entirely divorced from the facts, as the evidence given on their behalf, ably demonstrates. In addition to Ms. Kirwin’s affidavit (para. 60 supra), reference should be made to letters such as those of the 7th October, 2004, and the 20th December, 2004, which clearly show the breadth of the ongoing investigation. Of even more significance however, is the document sent by the Society to the appellant on the 26th October, 2004, which sets out the Committee’s powers and functions (para. 23 supra). Under the heading “Powers of Committee”, it is said that if a complaint cannot be or is unsuitable for resolution, the Committee may “uphold a complaint and impose a sanction”. The range of sanctions, any one or more of which may be imposed, are then listed as being:-
“* a direction to waive/refund some or all of the solicitor’s professional fees,
* a direction to hand over a file,
* a direction to secure rectification at the solicitor’s expense,
* a direction to take such other action as the Committee may specify,
* the imposition of a formal reprimand,
* a referral to the Disciplinary Committee.”
In addition, the document proclaims an entitlement to levy costs up to a sum of €3,000 and warns of the potentially grave consequences of its power, when reviewing the complaints history of the solicitor, to issue directions to refuse an application for or to impose conditions on the obtaining of a practising certificate.
78. Consequently, and as is undoubtedly self evident, the CCR Committee was much more heavily involved than simply information gathering. Whilst it is true to say that its powers included a referral to the Tribunal, nonetheless this option was but one of many capable of being imposed by it. To any interested observer it was deep rooted in decision making and sanction imposition. In all but one situation, it was, subject to an appeal, an end in itself. Therefore, the process undertaken by the Committee cannot be treated as being in any way equivalent to step one of a multi-tiered system in which it has no fact finding function or penalising power. Consequently, in my view the Society’s submission in this regard must be rejected.
79. This still leaves the question of what type of investigation the Society was involved in. The trial judge took the view that it was a general conduct inquiry with perhaps a parallel inquiry being carried on, at the same time, under s. 9 of the Act of 1994. In this latter respect, it is fair to say that he was by no means certain of this conclusion. I can fully sympathise with him in this regard. In addition, he criticised the Society for not clarifying the position and believes, rather damagingly, that even the Society themselves were unsure of the framework within which they were operating. That may very well be so. Surely it cannot be too onerous for the Society to avoid attracting this level of criticism in the future.
80. In any event, it seems obvious that neither the nature of the complaint nor the views of the complainant can, of themselves, determine how the complaint should be investigated. Many such complaints emanate from lay members of the public, the vast majority of whom would not be familiar with the statutory code or with the standards of the profession which a solicitor is expected to adhere to. In addition, the Society’s position may not be equivalent to that of a client in that the scope and purpose of their interest, has a much wider focus to it. Nor of course, can the solicitor dictate how the matter should be progressed. Moreover, it must be borne in mind that further information either relative to the original complaint or independent of it, may come to light after the Society has engaged with the issue. It had not been suggested that, where appropriate, such information cannot also be inquired into. In such circumstances and noting the statutory function of the Society, it seems to me that it is a matter for the Society themselves to determine the nature of the inquiry or inquiries which they intend to embark upon or continue with. Once that is clear the parameters of such investigation and the range of potential consequences for a solicitor are also clear. Such can only be achieved however, if the Society make their position known. They should so inform a solicitor in that regard (see para. 93 infra)
81. In this case it is clear to me that the Law Society never committed themselves to having an inquiry under s. 9 of the Act of 1994 or for that matter, under s. 8 of the same Act. Notwithstanding a reference to these sections in early correspondence and the furnishing of a document entitled “Resolving Complaints”, it is evident that the inquiry continued to evolve and that as time progressed and as further information was obtained, the area of concern to the Society expanded. During this period the solicitor made certain judicial decisions and took certain further steps which created additional unease for the Society. From their understanding of the original complaint, the Society in later correspondence specified many further and other issues which they proposed to consider. In those letters, examples of which are dated the 7th October, 2004, and the 20th December, 2004, no reference is made to either s. 8 or 9 of the Act of 1994. Moreover, and of critical importance is the clear cut statement made to the appellant on the 14th February, 2005, that “the Committee are considering the issues in the context of a solicitor’s overall obligation not to engage in conduct which brings the profession into disrepute.” That statement, together with the other evidence referred to, leads inescapably to the conclusion that the essence of the Society’s focus was on conduct. That an excessive bill of costs may constitute misconduct was always understood to be the situation: it is now a statutorily confirmed (s. 14B of the 1994 Act, as amended by s. 41 of the Civil Law (Miscellaneous Provisions) Act 2008). Therefore, I am quite satisfied that no s. 9 inquiry was undertaken or was so represented as having been undertaken: in fact one of the appellant’s complaints (letter of the 19th September, 2006) was that the Society had refused to confirm that they were dealing with the issue under s. 8 of the Act of 1994, which can be taken as referring to s. 9 of the Act. Consequently, in my view there was but a general conduct inquiry only. To that extent I would disagree with the trial judge who it must be said had grave misgivings in this regard himself.
82. By reason of this conclusion it is not necessary to determine what constitutes a bill of costs for the purposes of s. 9 of the Act of 1994, or what effect a breach of non-compliance of that section would have on what has been referred to as “a parallel conduct inquiry”. I would reserve any view on these matters until their resolution becomes necessary.
83. The resulting issue therefore, is whether in these circumstances the appellant has been denied fair procedures. In this regard it is claimed on his behalf that he should have been, but was never, informed of the existence of a conduct inquiry. This assertion cannot be sustained when scrutinised against the evidence as outlined above. There can be no doubt but that he was expressly informed, certainly not later than February 2005, that conduct was the issue. Moreover, a similar conclusion could only be drawn from the nature of the matters which the CCR Committee intended to consider. Therefore, there is no factual basis for this submission.
84. In addition however, I am perfectly satisfied that the Society, in the overall manner in which it engaged with the appellant, afforded him a level of protection in respect of which he cannot be seen to complain. Notwithstanding the lack of clarity on their part and irrespective of the strict legal position as advanced by them, the Society, as previously stated, copied the appellant with all of the correspondence and minutes of the meetings at which the issue was considered, invited him to attend each such meeting, afforded him the possibility at every phase of the investigation to respond, and when he did, considered each of such responses. Moreover, by attending before the CCR Committee he had the opportunity of augmenting the written position as adopted by him. He had ample time to defend and fully protect his position. In such circumstances I cannot see any basis for his complaint in this regard.
O’Driscoll v. The Law Society of Ireland [2007] IEHC 352 (unreported, High Court, McKechnie J., 27th July, 2007):
85. Much was said, on both sides, about the O’Driscoll decision. The appellant claims that his position is much the same as the applicant in that case: accordingly, the impugned decisions must be set aside as the Law Society have failed to fully operate the provision of s. 9 of the Act of 1994, which is a mandatory pre-condition to communicating with the Disciplinary Tribunal. The Law Society has criticised the decision in the manner explained earlier in this judgment: in particular, it reads the decision as deciding that “the full panoply of rights and procedures must be afforded as and from day one of every investigational process”. It would have appealed the decision but for the pre-judgment issue, which had no real prospect of appellate success.
86. The learned trial judge thought the passage from the judgment, subsequently quoted hereunder, was not apposite to the Committee’s role in the instant case, which he was satisfied was one purely of gathering and sifting information and where it had no power to make adverse findings or impose sanctions against the applicant. Such observations would be appropriate but only to the process after referral to the Disciplinary Tribunal.
87. In view of the above, it is only appropriate that I should have reviewed in some careful detail the O’Driscoll decision. This I have done. From that further analysis, I am quite satisfied that the submissions, above quoted, do not in any way accurately represent what O’Driscoll decided or how that decision followed from the findings made in that case. It would therefore be helpful if I outlined firstly what findings specific to that case were made and secondly, what views of a general nature were expressed on the fair procedure issues.
88. There were two complainants in O’Driscoll, both of whom had obtained compensation from the Residential Institution Redress Board. In respect of each, the applicants sought and obtained a solicitor and client charge. More than eighteen months later word got into the public domain of some solicitors seeking such a charge, in addition to what they had received from the Redress Board. The story was carried widely and aggressively in all forms of media presentation. As a result the Law Society put an advertisement in the national papers: they invited disappointed clients to contact them and set up a help line for this purpose. That is how the complaints in O’Driscoll came to be made. In circumstances not immediately relevant, judicial review proceedings were instituted and on the substantive hearing two issues arose, the first concerned the type of inquiry conducted by the Society with regard to such complaints and the second consisted of an allegation of pre-judgment on the part of the CCR Committee by reason of the public statements of one of its members on the issues. The applicants were successful on both grounds. There was no appeal from that decision.
89. By reference to the facts of the case O’Driscoll decided:-
1. that the complaints made were considered by the Law Society as attracting the provisions of s. 9 of the Act of 1994;
2. that the investigation of such complaints was conducted by the Law Society under that section;
3. that the Law Society led the applicants to believe, which they did, that such complaints were being considered and would be disposed of only by reference to s. 9;
4. that the solicitors, in this context, had taken certain steps to resolve matters, including the repayment of the monies in question together with interest thereon as well as offering an unconditional apology to their clients;
5. that the solicitors urged the Committee to resolve the matters within the section or to permit them an opportunity of doing so;
6. that the Committee had not responded to this request;
7. that the Committee, at their relevant meetings, considered such complaint in the context of s. 9, made findings of overcharging and issued directions in each case, and;
8. that the applicants were never informed that their ‘conduct’ giving rise to the complaints would be considered other than, in accordance with the provisions of the section: in fact, as stated, the contrary was the position.
90. The court then analysed the provisions of ss. 8, 9, 10 and 11 of the Act, in the manner appearing at paras. 33 to 41 of its judgment. That analysis led to the conclusion that the provisions of s. 9 were mandatory and together with the other sections mentioned in that context, were quite different in nature, structure and purpose than s. 7 of the Act of 1960 as amended, which dealt with a misconduct inquiry. Given the accepted fact that the section was not complied with, the court set aside the Committee’s directions and as these were inextricably linked with and used as a basis for the referral to the Disciplinary Tribunal, also set out the decision to refer and the subsequent application to that body in that regard.
91. The assessment so conducted was one, which on careful review, I am satisfied is completely accurate. What appears to have been missed in this regard and what is made quite clear at para. 43 of the judgment, is that such an analysis is premised on the provisions of s. 9 of the Act of 1994 being invoked; indeed, as they were exclusively, in O’Driscoll. That decision did not consider the relationship of the section with any overlapping inquiry into conduct or what effect non-compliance with its provision would have on such inquiry. Such issues simply did not arise as there was no finding that such an inquiry existed in that case. Consequently, O’Driscoll can be of no benefit to the appellant even on the view taken by the trial judge: evidently, and even more so, on the view which I have taken on the issue. Therefore, I cannot see how O’Driscoll is relevant in either circumstance.
92. In the context of discussing whether a parallel inquiry existed in O’Driscoll, the following was stated at para. 34 of the judgment:-
“It seems to me that the commencement of an investigation by the Society into allegations of misconduct is potentially a most serious matter for the solicitor in question. From carrying on his professional business, in many instances supporting other colleagues and staff, he may find himself being summoned, within an acute timeframe, to appear before the CCR or other Committee, and suddenly in a most concentrated way he may be fighting for his practice and indeed even his career. His very livelihood may be in jeopardy and may be even eliminated in extreme cases. It is because of these potentially devastating consequences that the legislature has laid down firm and definite rules which are designed to protect and safeguard, not only members of the public, but also members of the Law Society itself. It therefore seems to me that, at a minimum, fair procedures must demand that the Law Society informs a solicitor of its intention to conduct a misconduct investigation and of the statutory provision(s) under which it proposes to do so. Otherwise there is a grave risk to justice.”
93. In marked contrast to the timeline in the instant case, where the relevant periods stretch from May, 2004 to September, 2007, the solicitors in O’Driscoll were notified by the Law Society of the first complaint on the 25th October, 2005, and the second on the 24th November, 2005. Within two weeks the CCR Committee had determined complaint No. 1 and within three weeks had dealt with complaint No. 2. If the referral to the Disciplinary Tribunal had not been set aside by the court, the solicitors therefore, within a period of about six weeks, would have found themselves the subject matter of a formal disciplinary process involving the Tribunal. This would have occurred in circumstances where they were led to believe that the process in question was solely within the provisions of s. 9 of the Act of 1994.
94. It hardly needs stating that for a solicitor to face an allegation of misconduct, with all of what that might entail, as distinct from an overcharging complaint per se, is a critically more important matter for him, involving as it might the consequences above described. Whilst there is no doubt but that fair procedures would apply before the Disciplinary Tribunal, the passage reproduced from O’Driscoll was intended to reflect what I believe the law to be, namely that one must consider the question of fair procedures at all stages of a tiered process (see para. 70 supra). In considering such issue O’Driscoll found unacceptable an submission that the CCR Committee could carry out an investigation into conduct, even when all known indicators were to the contrary. That could not be fair by reference to any standard, notwithstanding what rights might arise at a later stage to prevent that situation from occurring. O’Driscoll held that the Society must inform a solicitor of the existence of a misconduct inquiry if that is what the Law Society intends or is pursuing. This can be done by any means as stated by way of an example that a reference to a particular statutory provision may well be adequate to satisfy such requirement. However, such would not be the only way of conveying the information. Once a solicitor was so informed, the means and method of so doing was entirely secondary.
95. That, in my view, is what O’Driscoll decided. It is an entire misunderstanding of the decision to suggest that it laid down any general rule which would require what has been described as “the full panoply of natural justice rights” to be applied at every phase of an investigative process. It made no such decision and any reading of it in that regard, is incorrect.
96. McMahon v. The Law Society of Ireland (para. 39 supra) has been referred to in the submissions made on behalf of the appellant, but curiously enough no mention is made of that decision in the submissions filed on behalf of the Law Society. In any event, as the facts in the instant case are materially different from those found to exist in McMahon, it is not necessary to consider that judgment in any detail. It is sufficient to say that the focus of the decision rested on an express finding that there was but one inquiry, namely an inquiry under s. 9 of the Act of 1994, to which the trial judge declined to apply O’Driscoll. In rejecting the Society’s submission that the inquiry was conduct related the judge held that a solicitor is entitled to be notified of that fact if such is the intention of the Society. I agree with such conclusion. Insofar as the decision may be read as laying down any further principles not covered in this judgment, I would reserve my views on them.
97. In light of the aforegoing, I do not consider it necessary to comment on any further issues raised in this case.
98. For the reasons given, I would dismiss the appeal.
