SUPREME COURT
Appeal No. 88/2010
O’Donnell J.
MacMenamin J.
Laffoy J.
IN THE MATTER OF THE SOLICITORS ACTS 1954-2002,
AND IN THE MATTER OF M.J .CARTER, A SOLICITOR
M.J. Carter
Solicitor/Respondent
And
Elizabeth Shannon
Applicant/Appellant
Judgment of O’Donnell J. delivered on the 24th of May, 2017
1 This case is an appeal against the judgment and order of Kearns P. delivered on the 22nd of February 2010, in which he dismissed the appellant’s appeal against the finding of the Solicitors’ Disciplinary Tribunal of the 25th of November 2009 that there was no misconduct on the part of the respondent solicitor. The appellant is qualified as a solicitor but does not practice. The appellant initiated a complaint in it appears 2006, in respect of the conduct of the respondent solicitor while acting for the appellant and her sister, it appears, during a period from June 1994 until March 1996.
2 The hearing of this appeal has been complicated by a number of factors. In particular the respondent solicitor unfortunately died on the 3rd September 2015. It appears that his daughter is the executrix of the estate. It is not clear if a grant of representation has however been extracted. A firm of solicitors have indicated that they were acting for the unnamed executrix. That firm wrote to the assistant registrar of the Supreme Court by letter of the 20th of January 2017, expressing their view that any possible finding on appeal from the decision of the High Court to uphold the disciplinary tribunal’s finding were personal to the late Michael Carter, and accordingly, such personal issue died with him and an appeal would be moot. They expressed the view that they did not wish to involve the estate unnecessarily in additional costs and expense in an appeal which would appear to be moot and on that basis would not be formally appearing unless directed by the Court to do so. The appellant for her part brought an application returnable for the hearing date of the 9th of February 2017 seeking an order substituting “the daughter and personal representative of the late Mr. J Carter as respondent in the appeal or in the alternative in the event that this appeal is not allowed to proceed because of Mr. Carter’s death, then I apply that all matters, right across the board will be dismissed, which matters include all Mr. Carter’s costs against me and my sister”. At the hearing of the appeal, there was no appearance on behalf of the proposed respondent or indeed the Law Society. The appellant did not have an affidavit of service but produced a certificate of posting of a letter of the 6th of February 2017 which she said was addressed to the solicitors demonstrated that the motion had been served on the firm of solicitors. In the normal course of events, the Court would not consider that this was sufficient proof of service to establish conclusively that the firm was on notice of both the hearing of the appeal and the application to substitute the unnamed executrix as a respondent to the appeal. In the normal course of events, the Court would consider adjourning the matter to give the solicitors or their client an opportunity to be heard. However, in the light of the correspondence set out above and the fact that the Court is familiar with the papers, and the view the Court has formed, and moreover the fact that the appellant is representing herself and has travelled to attend court, the Court decided to proceed to hear the appellant’s submissions and to consider how matters should proceed in the light of the matters submitted by the appellant.
3 The order of the President of the High Court of the 22nd of February 2010 dismissed the appellant’s appeal from the decision of the Disciplinary Tribunal, awarded the costs of the appeal to the solicitor and furthermore made an order commonly known as an Isaac Wunder Order which provided that:
“The applicant will take no proceedings of whatever nature or kind (including leave to seek Judicial Review) arising out the facts contained in these proceedings without first obtaining the prior leave of a Judge of the High Court such leave to be obtained by way of application in writing to be made to the Chief Registrar of the High Court.”
The appellant appeals against the entirety of this order and further seeks to substitute a party for the late Mr. Carter.
4 This Court cannot accede to the appellant’s application to substitute the unnamed and unidentified “daughter and personal representatives of the late Mr. J. Carter” as a respondent in the appeal. First, this person has not been identified. Second, there is no evidence that she has been put on notice of the application. Even assuming in the appellant’s favour that it had been demonstrated that the firm of solicitors had been put on notice of the application, there is no evidence that they had appropriate instructions to accept service of any application, and accordingly, proof of service on the solicitor (even if established) would not itself suffice. However, while these technical matters might be capable of being surmounted by an appropriate adjournment and further applications if necessary, there is the further and fundamental problem, that the substance of the appeal is clearly moot. If the appellant were to succeed, it would in all probability involve a rehearing for either the High Court, or the Disciplinary Tribunal, or both. Such a rehearing is of course impossible now. Furthermore, the Disciplinary Tribunal is no longer in a position to exercise disciplinary functions in respect of a deceased solicitor. Accordingly the substance of the appeal is plainly moot.
5 Normally the fact that substance of the appeal is moot will also mean that the no issue could arise in respect of costs. However, in this case, in ease of the appellant it should also be said that on the information submitted, the Court could not conclude that the order of the President was incorrect. Accordingly, it cannot be said that even if the Court were to entertain the appeal for the purposes of determining the issue in relation to costs, that the order would be set aside.
6 The Isaac Wunder Order is however a separate matter. The appellant contends that notwithstanding the terms of the order, she was not present in Court on the date the judgment was delivered because of difficulties created by the weather in attending in Dublin. It is normally the case that a party against whom such an order is made should be put on notice of the application, and given an opportunity to make submissions as to why such an order should not be made. In any event, the Court does not consider that the fact that the appellant made a complaint to the Disciplinary Tribunal about the conduct of her solicitor, and then appealed the dismissal of such complaint to the High Court, would in itself be sufficient to justify treating the appellant as a vexatious litigant and making an order retraining her from bringing proceedings against the solicitor without leave of a judge of the High Court. While it might be said that the order of the High Court has little real effect in that the solicitor is now deceased, and the events of which the appellant complains took place more than 20 years ago, nevertheless I accept that a person such as the plaintiff may well consider that the existence of such an order reflects upon her and may adversely affect her reputation. In those circumstances, I would propose to allow the appeal against the Isaac Wunder Order but otherwise I would dismiss the appellant’s appeal.
7 As set out above, in truth it is doubtful that there is a properly constituted appeal before this Court in the absence of a respondent or a notice party. Nevertheless, given the length of time these proceedings have been in being, and the fact that the matters complained of go back even further, I consider that the Court should attempt to do what it can to bring finality to these proceedings, particularly when it has formed a clear view that the appellant’s appeal could not succeed, even in the absence of responding submissions. Nevertheless, I would propose that the order of the Court, dismissing the appeal subject only to allowing the appeal against the Isaac Wunder Order, would be stayed for a period of 21 days. I also direct that the judgment and order of the Court be sent by the Registrar to Rochford Gallagher & Company of Tubbercurry, County Sligo, and that they should be informed that they may within the period of 21 days from the making of the order apply to this court to hear the appeal or any limited aspect of it, should they wish to make any argument in relation to the order which the Court has made. In the event that no such application is made, the order will be final.
