THE SUPREME COURT
[Appeal No. 2010/318 66 SA]
[Appeal No. 2010/319 65 SA]
McKechnie J.
MacMenamin J.
Dunne J.
THE LAW SOCIETY OF IRELAND
Applicants/Respondents
Respondent/Appellant
JUDGMENT of Mr. Justice William M. McKechnie delivered on the 21st day of December, 2018
Introduction:
1. Arising out of the circumstances more fully described in a moment, there were two substantive appeals still pending in this case, at the most recent hearing before the court: these arose out of separate allegations of misconduct made by former clients against the appellant, who at the time was practising as the principal in the firm of Coleman & Company, Solicitors, Main Street, Ballinrobe, Co. Mayo. Both complaints, following an initial assessment as to merit, were referred by the relevant Committee of the Society to the Solicitors Disciplinary Tribunal for further inquiry. As a result of the Tribunal's investigations, a total of seven findings of professional misconduct were made against the appellant, arising out of both complaints. The statutory reports of that body were then put before the High Court where an order was sought in each case, inter alia , striking Mr. Coleman from the Roll of Solicitors: other reliefs, including the making of restitution in the sum of €320,000 were also claimed. On 26th July, 2010, Kearns P. granted the orders sought. Therefrom the appellant served a Notice of Appeal in each case in August, 2010. In addition, he subsequently issued a number of motions, made returnable directly before this Court, in which he sought first to adduce new and further evidence and second, to enlarge the grounds of appeal as originally filed. These are therefore the issues which form the subject matter of this judgment.
Background:
The Insurance Issue:
2. Prior to the commencement of any formal proceedings in this case and unrelated to any of the events giving rise thereto, there was an order made by the High Court on the 9th November, 2009, suspending the appellant's practising certificate from that date onwards. This order was made on the basis of and following a decision of the Professional Indemnity Insurance Committee of the Society ("the PII Committee") on 28th September, 2009, to refuse to admit Mr. Coleman to the Assigned Risk Pool, so that insurance cover was denied (2009/101 SA). The decision itself as such, is of no ongoing relevance to the current proceedings, save that it prevented the solicitor from directly instructing counsel to act on his behalf which he says placed him in considerable difficulty and secondly, that as the matter was still ongoing, it was due to further appear in the High Court's list on 26th July, 2010. This scheduled listing explains quite an important phone call which was had between the parties on the preceding Friday of that week. This is later referred to and dealt with in the judgment (paras. 14 & 83 infra ).
3. In order to make chronological sense of this lengthy and protracted litigation it is necessary to separately outline the background of each complaint and how such proceeded before the regulating body, before dealing with the High Court proceedings and the events which subsequently followed.
Complaint No. 1: St. Jarlath's Credit Union:
4. On the 22nd January, 2009, the Society received a complaint from a Mr. Michael Culkeen, the Chief Executive Officer of St. Jarlath's Credit Union in Tuam, Co. Galway ("the Complainant"). Enclosed was a letter of undertaking from the appellant, dated 16th February, 2004, to the effect that he would hold the title deeds of hereditaments in Folio 63100F Co. Galway to the order of the Credit Union in respect of certain advances made by it to one Patrick and Michael Kavanagh, who were then clients of his firm. On occasions the date is given as the 6th February, 2004: nothing turns on this. Mr. Coleman failed to honour that undertaking, with the lands being sold to a third party without the knowledge, consent or approval of the Union. The resulting loss was in the sum of €320,000 (para. 1 above).
5. As part of its investigation the Society sent several pieces of correspondence to the appellant over the following three months: whilst he did reply on occasions, he did not substantively or adequately deal with the complaint. Accordingly, the matter was referred to the Complaints and Client Relations Committee ("the Committee" or "the CCRC") of that body which, at its meeting on 24th April, 2009, decided to refer the matter to the Solicitors Disciplinary Tribunal ("the Disciplinary Tribunal" or "the Tribunal") for further inquiry. The Committee however placed a stay of fourteen days on that order so as to afford Mr. Coleman an opportunity of producing evidence that the Credit Union had consented to the transfer of his undertaking, which on his behalf, counsel had asserted at that meeting. No such evidence either within the timeframe as provided or at all, was over produced.
6. The Law Society, on 21st September, 2009, made application to the Disciplinary Tribunal for an inquiry into the matters alleged against Mr. Coleman: he did not attend and was not represented at the follow-on substantive hearing, which took place on 25th February, 2010. Three findings of misconduct were made against him. These were: -
(a) "Failed in a timely fashion or at all to comply with an undertaking given by him in letter dated the 6th February, 2004, (sic) to the Complainant whereby he undertook to hold the title deeds in respect of Folio 63100F Co. Galway in trust to the order of Tuam Credit Union Limited:
(b) Failed to adequately respond to the Complainants correspondence, and in particular…letters dated the 31st January, 2008 and the 1st September, 2008.
(c) Failed to reply adequately to the Society's correspondence, in particular to letters dated the 30th January, 2009, 3rd March, 2009, and the 6th April, 2009."
These findings were reflected in an order made by the Chairperson of the Tribunal, on the 16th March, 2010, and were again set out in the report next mentioned.
7. As is statutorily required, a motion in each complaint issued on 9th July, 2010: these were supported by separate affidavits sworn on the same day by one Mr. David Irwin, a Solicitor in the Regulation Department of the Society. In the case of the Credit Union, that referred inter alia to the Tribunal's Order and Report to the High Court and sought the following reliefs:
(i) An order striking the name of the appellant, Daniel Coleman from the Roll of Solicitors;
(ii) An order that the appellant pay the sum of €320,000 in restitution to St. Jarlath's Credit Union Tuam, Co. Galway;
(iii) An order that the appellant pay all the costs of the Law Society of Ireland for the Solicitors Disciplinary Tribunal proceedings including those of the witnesses who attended, with the same to be taxed in default of agreement;
(iv) An order for the costs of the within proceedings;
(v) Such further and other reliefs as this Honourable Court shall deem meet and just.
What occurred between the issue date of that motion and the hearing date of 26th July, 2010, is common to both complaints, and can be found at paras.14 - 15 and 82 - 85 infra.
Complaint No. 2: Fairview Construction Limited:
8. On 15th May, 2007, the Society received a complaint from Mr. Damien Tansey, Solicitor, of Damien Tansey & Associates who at that time were acting for a company known as Fairview Construction Ltd ("Fairview Construction"). This company, which was effectively in the ownership of Mr. Shaun Heffernan and Mr. Sean Rowlette, had previously retained the appellant as its solicitor. There were several allegations made against Mr. Coleman, in a very lengthy letter to the Society, which also added considerable detail as to context. In very brief terms, it was claimed that whilst acting on behalf of the Company, as a vendor/builder, he also represented the true purchasers in a transaction involving 13 units at Shramore, Tuam, Co. Galway: thus he acted in breach of trust and had a clear conflict of interest in this arrangement.
9. It was further claimed that as part of the above transaction, he had inserted the name of a third party solicitor on contracts for sale without the authority of that person and secondly, had caused a fictitious contract to come into existence which was purportedly made between Fairview Constructions Ltd on the one hand and the said third party solicitor, acting in trust, on the other. There was a further complaint that he had destroyed a file without the instructions of the clients. Other matters were also alleged, but those outlined can be considered as representative of the more serious ones.
10. After an exchange of correspondence this complaint was first considered by the Committee on 12th September, 2007: it was adjourned on at least three occasions thereafter, with Mr. Coleman attending and/or being represented on all such occasions. Ultimately at its meeting held on 1st April, 2008, the Committee decided to refer the matter to the Solicitors Disciplinary Tribunal. An application was made for that purpose on 27th February, 2009.
11. The Tribunal having satisfied itself as to the existence of a prima facie case formally opened its inquiry on 26th November, 2009, but adjourned the matter on that occasion as the solicitor then on record for Mr. Coleman, had no up to date instructions from his client. It resumed on 10th February, 2010, with Mr. Coleman being represented by Mr. Alan Toal, B.L.. In all, the appellant faced seven charges of misconduct: two were withdrawn at the outset and a further one was not established to the required level. On the remaining four, he was found guilty. Those charges, which are reflected in the Tribunal's order of 18th March, 2010, were as follows: -
a) Caused or allowed the name of Michael O'Donnell, solicitor, to be written on contracts for sale dated the 19th May, 2004 without the authority of Mr. O'Donnell;
b) Caused or allowed a fictitious contract dated the 19th May, 2004, to come into existence purportedly made between Mr. O'Donnell, in trust, and Fairview Construction, for the purposes of misleading a financial institution to advance monies in circumstances which he knew were untrue.
c) Destroyed a file consisting of three contracts relating to the aforesaid contract dated the 19th May, 2004 without the express or implied instructions of both parties and in particular, the appellant's clients.
d) Acted for both the vendor/builder, Fairview Construction, and the purchasers of thirteen newly constructed houses at Shramore, Tuam, Co. Galway thus involving himself in a possible conflict of interest contrary to the provisions of Article 4 (a) of the Solicitors (Professional Practice, Conduct and Discipline) Regulations 1997 S.I No. 85 of 1997.
12. As previously stated, the Society, as it did in respect of the Credit Union complaint moved to the High Court, on foot of the Tribunal's Order and Report, by way of motion, again dated the 9th day of July, 2010: such being grounded on the affidavit of the said Mr. David Irwin, Solicitor (para. 7 above). Therein, he exhibited all of the relevant and necessary material which had been generated as part of the process. Based thereon, the Society sought the following orders against Mr. Coleman: -
(i) That the appellant is not a fit person to be a member of the solicitor's profession;
(ii) That the name of the appellant be struck off the Roll of Solicitors; and
(iii) That the appellant pay the whole of the costs of the Law Society (to include the costs of the hearings on the 26th November, 2009, and the 10th February, 2010, as well as witnesses expenses) to be taxed in default of agreement.
13. It is important to note that the High Court became engaged with the findings of the Disciplinary Tribunal in both cases via the Law Society's application for the orders above outlined: at no point did the appellant exercise his right to appeal either decision made by the Tribunal. Those decisions therefore stand un-appealed to this date.
High Court Proceedings:
14. The motions above referred to, had each a return date of 19th July, 2010. On that day the Society indicated to Kearns P. that they had served the required documents by registered post but that the same had been returned by An Post. On foot of this they sought and obtained an order for substituted service, with the new return date, being one week later. On the 23rd July, Mr. David Irwin, Solicitor, spoke with the appellant and told him that two of the three motions (paras. 2 & 83 herein) before the court on the 26th were referable to the misconduct proceedings. At all times, the appellant maintained that he did not receive the papers in those motions until late in the evening of the 23rd July.
15. At the hearing before the President on the 26th July, 2010, the appellant, representing himself, applied for an adjournment on the basis that he had not been given enough time to adequately prepare for the hearing. His application was refused: the President was satisfied that he had had a full and adequate opportunity to instruct solicitor and counsel, if he so wished. As Mr. Coleman did not advance any grounds to suggest that the Tribunal's findings were inaccurate or unwarranted, Kearns P. made the orders as sought.
16. The appellant lodged Notices of Appeal to this Court on 24th August, 2010. The grounds common to both can be summarised as follows: -
(1) that he was not served with the documents grounding the Society's application to the High Court either in accordance with the general rules of court, or those applying when an order for substituted service had been made,
(2) that he was denied fair procedures and constitutional justice in that,
(i) he should have been granted the adjournment which he applied for on 26th July, 2010,
(ii) he was not given an reasonable opportunity to properly prepare for the hearing, and
(iii) he was not listened to and his case was effectively disregarded.
On any one or all of those grounds he has submitted that both appeals should be allowed.
Subsequent Events:
17. Following the events above described, the appellant instituted several sets of proceedings against various individuals and bodies.
18. First on the 30th April, 2014, Mr. Coleman issued a plenary summons claiming a variety of reliefs against the Law Society: in essence he sought to re-open the PII decision and the consequential High Court order of the 9th November, 2009, in respect of same: the findings of the Disciplinary Tribunal in respect of both complaints and the orders of the High Court made on 26th July, 2010. However, before that action had progressed in any significant way, the President of the High Court, on the application of the Society, ruled on 12th January, 2015, that such proceedings be stayed pending the outcome of the appellant's two appeals to this Court.
19. The appellant also lodged an application with the European Court of Human Rights (ECHR) on 23rd October, 2014, seeking a variety of declarations against the President of the High Court, the Law Society, the Disciplinary Tribunal, the Minister for Justice, Equality and Law Reform and the Garda Commissioner. In the midst of this he also made a number of complaints alleging misconduct against various professionals who had acted on behalf of the Society in its proceedings against him. These were investigated by the Disciplinary Tribunal, which found each of them to be entirely unmeritorious and without foundation.
20. The appeals above mentioned and the two further motions which were issued in February and April, 2015 respectively (para. 1 supra ) came before the Supreme Court for the first time on 4th June, 2015, at which point it was put to the appellant that there would be a real difficulty in allowing the Law Society's proceedings against him to be heard on a de novo basis, as he seemingly wished for. This court was then informed, some short time thereafter, that a settlement agreement had been reached by the parties whereby the appellant would withdraw the appeals and related motions, and would have the plenary summons and his application to the ECHR discontinued, if the President of the High Court would allow both matters to be re-entered. That however did not happen. On 20th May, 2016, Kelly P. ruled that the disciplinary proceedings were res judicata and that he had no jurisdiction to interfere with final orders which had been made by his immediate predecessor of the same court.
21. Following the refusal by the High Court to permit the re-entering of the Law Society's proceedings, the appeals and the appellant's outstanding motions returned to this Court on 14th June, 2017, for case management. Clarke J., as he then was, ruled that the motions ought to be adjourned to the full hearing of the substantive appeals as the court would have a fuller understanding of the issues at that time, and would therefore be best positioned to find a just resolution as to outcome. The other members of the court so agreed.
22. The learned judge however issued certain directions so that the issues could be efficiently progressed: he directed that submissions from each of the parties should be filed under three separate headings:
a) The appeals based on the original grounds and original materials then properly before the Court;
b) The arguments which would be advanced on the additional grounds and new material in the event that the motions were successful; and thirdly
c) Whether it would be appropriate to allow the additional grounds to be advanced and/or new evidence to be admitted.
Accordingly, the instant hearing before this Court proceeded "roughly", although not exactly, on that basis.
Appellant's Submissions:
Lack of fair procedures
23. The appellant alleges that there was a lack of fair procedures right throughout these proceedings and offers several examples in support of this submission. However, as such are numerous, it would be impractical to detail each instance as listed: accordingly, I shall mention those only which are material to the appeals as originally lodged.
24. While the appellant does not deny that he was expecting the motions which came before Kearns P. on the 26th July, 2010, he says that he could not possibly have known when either or both would issue: it was therefore reasonable for him to await the service of such proceedings before preparing his response thereto. That being so, he says that given the time scale involved, that is between service and the hearing date, he simply could not adequately have defended himself. Thus, he submits that the failure to grant an adjournment was in breach of constitutional fairness, natural justice and due process. He cites authorities such as Dellway Investments v. National Asset Management [2011] IESC 14, [2011] 4 I.R. 1, in order to illustrate the correct standards of fairness which ought to be adhered to by administrative bodies. He submits that by extension, these standards apply to an adjournment application, particularly where the claim for restitution was being advanced for the first time.
25. As part of the point last made the appellant claims that as both motions were served only on the 23rd July, 2010, he had no opportunity to instruct solicitor and counsel, to consider any defence or response which he may have and if necessary, to prepare and file a replying affidavit. The authority relied upon in this respect is that of Hardiman J. in Oates v. District Judge Brown [2016] IESC 7, [2016] 1 I.R. 481.
26. Mr. Coleman further claims that the court is under a duty to give reasons for its decisions, in order to maintain transparency and to allow any aggrieved party to assess whether or not an appeal might be successful. He strongly argues that, as the judgment of Kearns P. is devoid of such reasons, the same fails to satisfy this important requirement of law.
27. In relation to the sanction imposed, the appellant submits that it is an accepted fact that a strike off is the ultimate penalty against a solicitor and that even if the findings of the Tribunal were correct as a matter of fact, this lifetime prohibition is disproportionate in its effects.
Grounds upon which additional evidence should be admitted and the appeal grounds enlarged.
28. The appellant seeks to rely on Kelly v. University College Dublin [2009] IEHC 484, [2009] 4 IR 163, where McKechnie J. said that "a judgment which is obtained through fraud is a mere nullity". He contends that the High Court in the instant case was deliberately misled in a material way, which as a result brings his application within the "exception rule", for the admissibility of new evidence: he cites Meek v. Fleming [1961] 2 Q.B. 366 as later affirmed by McMullen v. Giles Kennedy [2012] IESC 56. In this regard, he says that the respondents failed to seek out, preserve and adduce evidence which would have been central to the Tribunal's enquiry and that such failure, coupled with their statutory duty to investigate and resolve complaints, should be sufficient reason to admit new evidence.
29. In relation to adding further grounds of appeal, it is submitted on behalf of the appellant that this Court has inherent jurisdiction to make such an order, and that frequently it does so on a discretionary basis. Relying on the ratio of Fennelly J. in Andrew Keegan v. Garda Síochana Ombudsman [2012] IESC 29, [2012] 2 IR 570 the appellant says that what this Court should consider, when exercising such a power is the importance and gravity of what is asserted and the consequences which a refusal would have, for the unsuccessful claimant. He says that the decision making process in his case was grounded on a partial investigation only and that the manner of how he was dealt with has been so flawed that it would be "contrary to the tenets of fairness" not to grant the relief sought.
The appeal as it would be argued, in the event that both motions were permitted.
30. If new evidence and the enlarged grounds of appeal are accepted by the court, the appellant suggests that in the case of the Credit Union, such evidence would disclose, that at the date of the complaint, the undertaking dated the 16th February, 2004 had been discharged and further, that the complainant knew that this was so. Finally, he claims that had he been allowed to access the relevant materials earlier, he would have been in a position to establish those facts.
31. In respect of the Fairview appeal, the main point which Mr. Coleman would seek to argue would be that the refusal to grant an adjournment prior to the hearing of the Tribunal on the 10th February, 2010 meant that three key witnesses were unable to attend that day and thus the Tribunal did not consider their evidence. Such he claims, would have had a material effect on outcome.
Respondents' Submissions:
Fair Procedures:
32. Firstly, the respondents emphasise the fact that no appeal was brought against either Tribunal decision. Quoting from the judgment of Fitzgibbon v. Law Society [2014] IESC 48, [2015] I.R. 516 which says, "…to recognise the seriousness of misconduct proceedings, there is an express rule that any appeal from a finding of the Disciplinary Tribunal, shall be by way of a full rehearing, to include all of the evidence unless otherwise agreed" (para. 38: emphasis added), they note the failure by the appellant to engage with the relevant process, in contrast with the multiple and random nature of the proceedings which were issued after the event. As this failure was a decision freely made, he must now suffer the consequences of it.
33. The respondents submit that the initial Notice of Appeal in both cases raises only procedural issues, namely that the appellant was not served in a timely manner with the High Court proceedings and that as a result he was not afforded the opportunity to make his case before the learned President. Neither appeal challenged the merits of the decision made by Kearns P. or those of the decisions made by the Tribunal.
34. With regard to the alleged lateness of service and the limited time available to prepare for the hearing, the Society contend, that they followed the procedural rules of court, firstly when they attempted to effect service by way of registered post on 19th July, 2010, and secondly when they sought directions from the President for substituted service; this step they say was purely a fall-back position, taken "just in case" the registered post had not in fact been received. Accordingly, in adopting this approach, there was no breach of the rules of court.
35. The next issue dealt with relates to the appellant's request for an adjournment which was refused by Kearns P. on the 26th July, 2010. The Society point to the discretionary nature of an adjournment application and the fact that this Court is most reluctant to second guess decisions of such type, which almost always have been made by trial judges for good and sufficient reason.
36. In response to the appellant's reliance on Dellway Investments v. National Asset Management Agency [2011] IESC 14, [2010] 4 IR 1, to establish his right to be part of a decision making process that might impact upon his future, the respondents say that Mr. Coleman was afforded every opportunity to participate at numerous stages, from complaint to final decision, but failed to do so. In fact, he engaged with the proceedings in what the Society described as an "a la carte" manner.
37. The respondents deny that the appellant was "summarily struck off the roll" during the call over of the list as he alleges: rather, the true position was that such order was made following a hearing in which the President of the High Court had been furnished, in advance, with all the necessary papers, which quite evidently he had carefully read and considered. There was therefore nothing unusual about the manner in which this case was dealt with.
38. On the requirement to give reasons, the Law Society argue that such a duty does not apply to a situation where the President is merely endorsing a recommendation made by the Tribunal and where the appellant has not advanced a detailed rebuttal of that body's decision. Relying on the dicta of Peart J in The Law Society of Ireland v. Callanan [2017] IECA 217 (para. 106 below), it is their submission that the situation would be different only if the order made by the President had departed radically from the Tribunal's recommendation. They also argue that in any event a lack of reasons is immaterial as the purpose of giving reasons is to allow a party to appeal some substantive finding, which is not the situation at hand: rather, this current appeal before the court is based on the adjournment refusal and should not be seen as being any wider than that. Therefore, a lack of reasons is irrelevant.
Significance of Admissions
39. The respondents make the point that only in exceptional circumstances can a party who has made admissions, subsequently advance a position that is inconsistent with those admissions. It is their contention that the appellant had either pleaded guilty to or elected not to contest the findings made against him which formed the basis of the hearing before Kearns P.. Several cases were cited to support the view that courts dealing with judicial review, attach fundamental importance to such admissions ( S.A v DPP [2007] IESC 42, McFarlane (No 2) [2008] 4 IR 117)
Finality of Litigation
40. Unsurprisingly, the respondents also advance an argument that the need for litigation finality is such that it would go against public policy to allow either appeal and thus permit the proceedings to be taken any further. Cases such as McCauley v. McDermott [1997] I.L.R.M 486 illustrate this point, where the court cited two important principles:
(a) The general interest of the community is in the termination of disputes and in the finality and conclusiveness of judicial decisions, and secondly that;
(b) Every individual has the right to be protected from a vexatious multiplication of suits at the instance of his or her opponent.
It is claimed that Mr. Coleman has abused the process and that this litigation should now be ended.
The penalty imposed
41. The respondents question how an appellate court ought to approach the discretionary power vested in the High Court in relation to the penalty imposed. Relying on the judgment of Geoghegan J in The Law Society v. Carroll & Colley [2009] IESC 41, they submit that judges of this court cannot substitute their own views for those of a trial judge exercising such power. Only in cases where that judge has clearly applied the law incorrectly can such a decision be reversed.
42. Bingham M.R's statements from the well-known case of Bolton v. Law Society [1994] 2 All ER 486 are quoted to emphasise the high standard to which those on the Roll of Solicitors are held and the importance of sustaining public confidence and trust in the profession as a whole. As such, these statements are relied upon to demonstrate that the penalty imposed in this case was appropriate: which submission is made entirely without prejudice, as in the respondents view the appellant has no right to appeal the sanction as the same was not included in either notice of appeal.
The grounds upon which new evidence and enlarged grounds of appeal should not be allowed
43. The Society relies in both respects on many of the same arguments as outlined above. They hotly contest the suggestion that this Court should take the place of the Tribunal and make a de novo ruling on factual matters based on new evidence which was not before that body in 2010.
44. The respondents contend that the appellant has done nothing to satisfy the necessary criteria for the admission of new evidence as identified by Finlay C.J. in Murphy v. Minister for Defence [1991] 2 I.R. 161. Amongst other things, the appellant wishes to introduce a report done by an expert in relation to the Professional Indemnity Insurance decision of 2009. It is submitted that the insurance issue is res judicata , given that a final order was made by the President of the High Court on the 9th November, 2009, with no appeal taken therefrom. The same point applies with equal force to the underlying decision of the Professional Indemnity Insurance Committee, taken on the 29th of September that year.
45. In relation to the other pieces of proposed evidence identified by the appellant, the respondents argue that they have no relevance to the narrow scope of this appeal but rather are directed to having a full de novo hearing before this Court. Finally, the Society objects to the second motion, which would enlarge the grounds of appeal, on the basis that there is no valid reason to do so and that in any event, there are compelling reasons as to why this litigation should now be finalised. In all of the above circumstances the appeals should be dismissed and the motions refused.
Decision:
The Law:
Jurisdiction of the Tribunal and of the High Court
46. There is an inherent jurisdiction in the courts to discipline solicitors: this by reason of the fact that they are officers of the court: that power however is not in issue, and may be regarded generally but not in all respects as residual to the legislative regime then in place. That, in the context of disciplinary control and overview is set out in the Solicitors Acts 1954-2002. Although this code has subsequently been amended by Part III of the Civil (Miscellaneous Provisions) Act 2008, s. 58 of the Civil (Miscellaneous Provisions) Act 2011, and Part XIII of the Legal Services Regulations Act 2015, I will retain the citation as stated. For the purposes of our discussion in the instant case, it is relevant to mention those provisions which relate to the High Court's powers, once an inquiry of the Tribunal has been held and their findings referred to it: even more to the point however, is the legislative where the subject solicitor has not appealed against such findings.
47. On referral, the Disciplinary Tribunal itself decides whether or not a prima facie case of misconduct has been established against the solicitor in question: if it decides not, then subject to an appeal that is an end to the matter. If it is so satisfied, the Tribunal then proceeds to hold an inquiry into the matters alleged. In doing so, it is obliged to consider all of the allegations before it, and to make individual findings in respect of each such allegation. If it finds no misconduct, it should inform the respondent solicitor, the Law Society and if different, the person who has made the complaint in the first instance. The Society, and if different the applicant, may appeal against a finding that there was no prima facie case to answer or that upon inquiry there was no misconduct on the part of the solicitor. On such a hearing the High Court, may confirm the decision of the Tribunal, may substitute a finding as to the existence of a prima facie case on any one or more of the allegations made, or may rescind or vary any finding that there has been no misconduct and in that respect may do any one or more of the things specified in s. 8(1)(a) of the 1960 Act, as amended. All of these steps are provided for by s. 7 of the Solicitors (Amendment) Act 1960, as substituted in its entirety by s. 17 of the Solicitors (Amendment) Act 1994 ("the 1994 Act"), and as further amended by s. 9 of the Solicitors (Amendment) Act 2002 ("the 2002 Act"): in its applicable form I will simply refer to this provision as "s. 7 of the 1960 Act".
48. If the Tribunal should find misconduct, it has the power itself to impose what can be described as "summary sanctions" under s. 7(9) of the 1960 Act. These may include advising and admonishing, or censuring the solicitor as well as directing him or her to pay a sum to the Compensation Fund, or to make restitution to an aggrieved party, in each case up to an amount not exceeding €15,000. It may also impose a cost obligation. The solicitor, the applicant for the inquiry and the Society may appeal a subs (9) order to the High Court which, on the hearing thereof, may rescind or vary the order or confirm that it was proper for the Disciplinary Tribunal to make such order (Section 7(11) of the 1960 Act). In addition, under subs (12) the parties mentioned, save obviously for the solicitor, may appeal against the alleged inadequacy of the sanction imposed by that order, and if acceded to, the High Court has the same powers in that situation as are specified in s. 8(1)(a) of the 1960 Act.
49. If, however, the Tribunal is not satisfied that the findings of misconduct can be adequately addressed under s. 7(9) of the 1960 Act, then it must refer the matter to the High Court: this is done by way of a statutory report, which outlines the nature of the allegations made, the evidence tendered at the hearing, the findings arrived at and the reasons therefor. Further, under s. 7(3)(c)(iv) of the 1960 Act, the Tribunal must, in the report include:-
"(I) their opinion as to the fitness or otherwise of the respondent solicitor to be a member of the solicitors profession, having regard to their findings, and
(II) their recommendations as to the sanction which in their opinion should be imposed, having regard to their findings, to any finding of misconduct on the part of the respondent solicitor previously made by them…and not rescinded by the court, and to any other order made by the court under the Solicitors Acts 1954 - 2002, in respect of the respondent solicitor."
Whilst the Tribunal's Registrar delivers the report to the High Court, it is the Law Society's responsibility to formally move the report before that Court.
50. Following the findings of the Tribunal and the publication of its report, the respondent solicitor has a right of appeal: this is provided for in s. 7(13) of the 1960 Act, which reads: -.
"(13) A respondent solicitor may appeal to the High Court against a finding of misconduct on his part by the Disciplinary Tribunal pursuant to subsection (3) of this section, and the Court shall determine such appeal when it considers the report of the Disciplinary Tribunal in accordance with the provisions of section 8 (as substituted by the Solicitors (Amendment) Act, 1994) of this Act, or as part of its determination of any appeal under subsection (11) of this section, as the case may be."
51. Section 8 of the 1960 Act is headed "Proceedings before the High Court", and sets out the powers of that court when considering a report of the Disciplinary Tribunal. Such powers are extensive in nature and include: -
(i)
• Strike the solicitor off;
• Suspend him from practise;
• Prohibit practise in his own name or in partnership;
• Restrict practise in a particular area or areas;
• Censure or impose a monetary sanction;
Apart from the strike off, the other sanctions are said to be as the court "thinks fit" or "may provide".
(ii)
(iii)
• Make an order for restitution in favour of the aggrieved party;
• Direct the solicitor to swear an affidavit of means;
• Direct his attendance before the court for oral examination as part of this means investigation;
No monetary limit is specified in respect of the restitution order.
(iv) • Freeze his assets, including all bank accounts, where they may possibly exist a claim on a compensation fund.
This section was substituted in its entirety by s. 18 of the 1994 Act, was further amended by s. 10 of the 2002 Act, and also by s. 37 of the Civil Law (Miscellaneous Provisions) Act 2008: in the version applicable, I will simply refer to it as s. 8 of the 1960 Act.
52. It is not altogether clear from either s. 7(13) or s. 8 of the 1960 Act as to whether the powers contained in the latter provision are equally exercisable when the court is determining an appeal from the respondent solicitor. On one reading, s. 7(13) would appear to so suggest, but on another it might relate only to having the appeal and the consideration of the report dealt with in one hearing. As it happens, the Rules of the Superior Courts (R.S.C.) provide some guidance on this point.
53. Order 53, r. 9(a)(i) (R.S.C.) (S.I. No. 701/2004) sets out the sequence for the hearing before the High Court where a solicitor is appealing against the findings of the Disciplinary Tribunal. The appeal should firstly be determined before any consideration is given to the Society's motion, which obviously will be based on the Tribunal's report: only then should the motion be dealt with (r. 9(a)(ii)). The rule then provides what should happen on the hearing of the appeal or the motion, or both. Disregarding an appeal for a moment and concentrating on the Law Society's motion, the court: -
(i) may look for any document not before it, but which was in evidence before the Tribunal (r. 9(b)),
(ii) may remit the matter so that a supplemental report can be made (r. 9(c)), and
(iii) may, at the conclusion of the hearing, "give any decision or make any order as the President thinks fit", subject however to the provisions of the Acts (r. 9(d)).
54. It is however also interesting to note how an appeal should proceed: r. 12(h)(i), provides that:
"Where the respondent solicitor is appealing to the court against a finding or findings of misconduct…the President shall direct that the appeal shall proceed as a full re-hearing of the evidence laid before the Disciplinary Tribunal, unless a less than full re-hearing is contended for by the respondent solicitor and concurred in by the Society and (if applicable) concurred in by any person other than the Society who made the application in relation to the respondent solicitor to the Disciplinary Tribunal and unless agreed to by the President."
At subpara. (i) of r. 12, it is said that following the hearing of such an appeal, the President may "…subject to the provisions of the Acts give any direction or make any order as [he] thinks fits".
55. This very rule and what it intends a re-hearing should be, were considered at length in Fitzgibbon v. the Law Society of Ireland [2014] IESC 48, [2015] I.R. 516. In the judgments of Clarke J. and myself, we both looked at a variety of statutory appeals which exists and what, at a general level they may entail. Helpfully, Clarke J. (as he then was) identified four broad categories in this area as being, an appeal de novo , an appeal on the record, an appeal against error and an appeal on a point of law. Whilst each have common characteristics, each also have unique features.
56. With regard to a solicitor's right of appeal, as provided for in s. 7(13) of the 1960 Act and as referred to in O. 53, r. 12 above, I expressed doubts as to whether in all circumstances such was by way of a fully fledged " de novo " hearing. This view was formed against a statutory background within which a preliminary investigation of the complaint would have already taken place by the CCRC, and would have been followed by a full, unrestricted inquiry by the Disciplinary Tribunal. However, at para. 66 of my judgment I made a point of general application: -
"I [am] perfectly satisfied that the High Court has full jurisdiction to regulate the manner in which issues before it are dealt with: this must follow from the mandatory obligation on every court to ensure that constitutional justice and fair procedures are applied to any justiciable controversy determined by it. This duty takes effect once the court has seisen of the issue and continues until that court becomes functus officio …this means that in any given case the court can and will respond to what is necessary to ensure the integrity of a person's rights."
As can thus be seen, the obligation referred to applies almost irrespective of the precise wording of the appeal provision in question, or the rule of court giving effect to it.
57. The system in place in our jurisdiction therefore for dealing with allegations of wrongdoing against a solicitor, including the most serious complaints of professional misconduct, can be described as being hybrid in nature: one within which on the administrative side, the Law Society and the Disciplinary Tribunal participate, albeit with separate but interlinked roles, and on the judicial side the courts of justice on whom the ultimate responsibility rests. The demarcation line between roles is well established and readily understood: complaint is made, is procedurally assessed, is evaluated as having merit or not, if it has, how it should be dealt with: can ss. 8 & 9 of the 1994 Act be appropriately utilised: or is the complaint such that a referral to the Tribunal is necessary and if it is, a substantive hearing before that independent body follows. In some jurisdictions, subject only to an appeal in whatever form that might take, that would be the end of the inquiry. Not so however in our system.
58. As noted above, the Law Society is obliged to bring before the High Court, the report and order of the Tribunal, its findings and the entire material upon which these were arrived at. The legislature so ordained in order to ensure that the judicial arm and not the administrative agency would ultimately be responsible for any findings of misconduct and the resulting sanction which followed. Otherwise, as is evident from the decision in In Re Solicitors Act 1954 [1960 I.R. 239], the entire regime could be constitutionally impaired. Therefore, the role of the court in this overall process is fundamental. This in my view applies, at the level of principle, whether the court is simply considering the Society's application or is in addition adjudicating upon an appeal taken by the respondent solicitor.
59. No one would suggest that fair procedures should apply only to that part of the process which solely involves the Law Society and the Disciplinary Tribunal. On that aspect of the inquiry, natural and constitutional justice are in play and given effect to, without pause or hesitation: such are applied as a matter of course. The same must inevitably also happen in respect of the judicial function. This view requires no authority. Accordingly, a respondent solicitor appearing before the High Court on a referral by the Society from the Disciplinary Tribunal must be accorded fairness, being that appropriate to the occasion, to the issues involved and to the context in which they arise.
60. It is not necessary for the purposes of this decision to review the precise parameters of the High Court's powers or function when determining the Society's application. It is sufficient to say that on the material which it ultimately has, it must be satisfied that the Tribunal was entitled, as a matter of law to reach the findings which it did. Precisely how and in what way it conducts this evaluation is not germane to this appeal. When it comes to sanction or penalty however, the Tribunal has no power to make any findings: it simply makes a recommendation. Similarly so, with a person's fitness to practice as a solicitor: in which case it simply offers an opinion. Arguably therefore the court's scrutiny must be even greater when exercising this aspect of its role.
61. As set out at paras. 51 and 53 above, the court, having considered the matter may give any decision or make any order it thinks fit, including of course exercising the powers contained in s. 8 of the 1960 Act. There is no question of being bound by an opinion expressed or by a recommendation made by the Tribunal. In addition, of course, the Law Society is expressly entitled to make submissions as to what its position is on the sanction front as is the respondent solicitor. As the case law shows, the High Court has on several occasions departed from the recommendations made and/or have refused to endorse the reliefs sought, by the Society. Even where granting such relief however, it is clear that in all cases the ultimate arbiter is the court.
62. In the Law Society v. Carroll & Colley [2009] IESC 41, [2009] 2 ILRM 77 (" Carroll & Colley "), both the High Court and Supreme Court rejected the relief sought by the Society and instead agreed with the recommendations of the Disciplinary Tribunal. In the Law Society v. Callanan (ex-tempore , 13th April, 2015), Kearns P. rejected both the Tribunal's findings and the Law Society's submissions, even if his decision was later set aside on appeal. Further, when that case was subsequently reassessed by Kelly P., having been remitted by the Court of Appeal, he declined to follow the Tribunal and instead, accepting the Law Society's submission, struck the solicitor from the Roll. He did so in a thirty-two-page judgment even though it was the Society's motion only before him ([2018] IEHC 160). As is self evident, none of these decisions could have been arrived at lawfully unless the High Court had conducted an independent adjudication of the application before it. This in my view it must do. There can be no question of a rubber stamp type approach. Whilst the views of the Tribunal carry considerable weight, as indeed do those of the Society, nonetheless the High Court itself is obliged to embark upon an examination of the issues arising and after due consideration declare its own position. When one considers what is at stake, this conclusion is inescapable.
63. Even where the findings of the Tribunal are not appealed, it cannot be doubted but that by any standard, the power so conferred on the High Court under s. 8 of the 1960 Act, can be career ending or at least career threatening, and where exercised via a strike off, can have a devastating impact on one's professional, personal and social life, to name but some consequences which invariably follow. Kingsmill Moore J., in , In Re Solicitor 1954 [1960] I.R. 239 described it thus: - "the power to strike a solicitor off the Roll is a "disciplinary" and "punitive" power, to adopt the languages of the judges in In Re Gray [1892] 2 K.B. 441. It is a sanction of such severity that in its consequences it may be much more serious than a term of imprisonment". Mr. Justice Peart, a distinguished solicitor before becoming a judge, said in his Court of Appeal decision in The Law Society of Ireland v. John Tobin ([2017] IECA 215), that such must be regarded as the ultimate sanction. Mr. Callanan (para. 62) despite giving an undertaking never to seek a practising certificate again in any circumstances, still pleaded passionately not to have the stigma of being a "struck off solicitor". The dishonour and disgrace would forever have lasting consequences for him. These sentiments are not simply the words of miscreant solicitors seeking clemency, but are also the acknowledged views of many observers in this area of professional regulation, who say that such an order is effectively of lifelong duration. Whether this is or is not so can be tested, at least somewhat, by looking inter alia at s. 10 of the 1960 Act.
64. Before doing so however, could I make it absolutely clear that in making this point, I am not in any way suggesting that such powers are not warranted or justified to remedy the wrongdoing so found, to restore or preserve the integrity of the solicitor profession as a whole and to underpin public confidence in that profession, which is vital to all society. Rather, I make the point for a different reason.
65. The statutory provision for the restoration of a solicitor's name to the Roll is s. 10 of the 1960 Act, as amended by s. 19 of the Solicitors (Amendment) Act 1994 ("S. 10 of the 1960 Act"). In its current form it reads as follows: -
"10(i) The High Court shall have power to order that the name of a solicitor, whose name has been struck off the Roll by an order made by the High Court under section 8 of this Act…shall be restored to the Roll.
(ii) A person seeking to have his name restored…shall give notice of his intended application…,
(iii) On hearing of any application under this section the High Court may refuse the application or may order that the name of the applicant be restored to the Roll and may order the payment of the applicant of the costs and expenses of the Society in relation to the application,
(iv) Where on the hearing of an application under the section it is shown that the circumstances which gave rise to the striking off the Roll of the applicant's name involved an act or acts of dishonesty on the part of the applicant arising from his former practise as a solicitor or that he applicant is convicted of a criminal offence, the High Court shall not restore the applicant's name to the Roll, either conditionally or unconditionally, unless it is satisfied that having regard to all of the evidence, the applicant is a fit and proper person to practise as a solicitor and that the restoration of the applicant to the Roll would not adversely affect public confidence in the solicitors profession as a whole or in the administration of justice."
There have been very few such cases in this jurisdiction where those provisions have been utilised: to my knowledge virtually none have been successful: however, it is not necessary to refer to more than one, namely In Re Burke [2001] 4 IR 445 so as to give a flavour of what is involved. In addition, although not a restoration case but a strike off one, the case involving Patrick Enright, Solicitor , (High Court, 4th April, 2016) fits well into this context as does Carroll v. Law Society of Ireland [2016] IESC 49, [2016]1 I.R. 679, a case where an apprentice solicitor sought to have his name admitted to the Roll.
66. On 13th May, 1991, Mr. Burke was struck from the Roll having breached the accounts regulations in several ways, and also having had a deficit of over IR£120,000 in the client account. He also had, so to speak, "form" with the Society. Some six years later he applied for a conditional restoration: the restriction being that he would have no access to or control over clients' money. In his supporting affidavit he was entirely candid about all of his wrongdoing and took full responsibility for his actions: further, he admitted several attempts to frustrate the Society's investigation into his conduct. In mitigation it was accepted that in respect of his liabilities he had paid the Society a sum of over IR£140,000. There were also 29 further affidavits from other solicitors practising in the area who vouched for his character and who expressed full confidence in him.
67. Having reviewed the evidence, Morris P., was not satisfied that restoration would adversely affect public confidence in the solicitors profession or in the administration of justice as a whole, but did hold that Mr. Burke was not a fit and proper person for readmission. He did so on a somewhat paradoxical basis, being that founded on the application itself. By acknowledging that he should not have access to the client account, it was clear that neither Mr. Burke himself nor any of the solicitors who supported him, had confidence in his integrity when dealing with money. Therefore, it could not be said that he satisfied the "fit and proper" aspect of the restoration requirements (s. 10(iv) of the 1960 Act). On appeal, the Supreme Court in its judgment made some general remarks about the process of restoration, but on the facts of the case upheld the decision of the learned President.
68. Having pointed out that since both legal professions enjoy rights and privileges in representing clients which are denied to other members of the public, the latter is entitled to expect the highest level of trust and integrity from those who practise law. Particularly solicitors, as distinct from barristers, because it is they who have access to clients' money. Viewed as such, it was said that the number of solicitors who can expect restoration to the Roll will of necessity be significantly limited. Keane C.J. then continued: -
"In a case where the acts of dishonesty appear to have been wholly out of character and were committed when the solicitor was under severe pressures of some kind, the exercise of the discretion vested in the court in his or her favour may be justifiable. The fact, if it be fact, that in his or her subsequent career the solicitor has been entrusted with positions of trust and responsibility without any further lapses would be an additional factor in enabling the court to exercise the jurisdiction in his or her favour. However, it would be inappropriate to attempt an exhaustive definition of the circumstances in which a solicitor might properly be restored to the Rolls in cases to subs (iv) apply: it is sufficient to emphasise again that the category of cases in which readmission to the profession is permissible will inevitably be limited." (pp. 451 - 452)
As Mr. Burke could not bring himself within this class of exceptionality, his appeal was dismissed.
69. Despite what the then Chief Justice had favourably said about those who successfully rehabilitated themselves in positions of trust, authority and even control, the case of The Law Society of Ireland v. Patrick Enright , [2016] IEHC 151, is a keen illustration of how difficult it is for a solicitor to retain that status, even after an impeccable period of rectitude and even with unconditional client respect, following the lapse in question.
70. Mr. Enright, having been admitted in 1986, commenced practice as a sole practitioner in Castleisland, Co. Kerry, in 1994. In that year he forged a series of documents on 10 occasions which he used to make false insurance claims: in the process he obtained the sum of IR£12,000. On being challenged by the gardaí later that year, he immediately admitted his crime and undertook to make full recompense to the company in question, which he did. In August, 1996 he faced 10 charges of forgery. Before the hearing commenced however, he issued judicial review proceedings which, when the appeal is taken into account, did not conclude until July, 2008: he was unsuccessful in both courts. There then followed an application to the European Court of Human Rights which ended in a friendly settlement sometime in late 2012 or early 2013. His trial recommenced in the Circuit Criminal Court in June, 2013 when on re-arraignment he pleaded guilty. He was sentenced to one year in prison, which he served. His brother, the co-accused, obtained the same sentence but had the entirety of it suspended. This brought the criminal proceedings to an end.
71. The Law Society proceedings against Mr. Enright were heard in April, 2015, when he was found by the Disciplinary Tribunal to have been guilty of misconduct involving serious dishonesty: on the sanction side they recommended that his name should be removed. At the hearing before the President of the High Court, the evidence showed that he had continued to practise in the intervening period, a total of about 20 years, that is from 1994 until his sentence by Judge Moran in June, 2013. During this time he had acted with complete propriety: had not come to the notice of either the Law Society or the gardaí or any other state agency, and had the support of over a 100 testimonials from former clients attesting to his good conduct. Yet the learned President, (i) citing inter alia, Carroll & Colley , both of the High Court and the Supreme Court, and Carroll v. The Law Society [2005] IEHC 199, (ii) having acknowledged his good character in the intervening period of time, and (iii) having accepted that there was no danger of any repeat offence or any further acts of dishonesty, nonetheless ultimately held that "…anything less than a strike off would [not] be sufficient…" to maintain the reputation of the solicitor's profession "as one in which every member, of whatever standing may be trusted to the ends of the earth", Bolton v. The Law Society [1994] 1 WLR 512.
72. Kelly P. went on to deal with a submission that by making the order which he proposed he would in effect be consigning Mr. Enright to un-employability in his chosen profession, for life. This was the President's answer: -
"This is not necessarily so. In some circumstances, it is possible for a solicitor who has been struck off to successfully apply for restoration of his name to the Roll. It would be unwise to indicate the circumstances in which such an order might be made, but normally a passage of time would occur subsequent to the strike off order and other conditions would have to be met. A strike off order is not in all cases one which continues in perpetuity."
Despite the seriousness of Mr. Enright's offending conduct, it is not unfair to say that if his subsequent unblemished career of almost 20 years was insufficient to prevent a strike off, it is difficult to see how the same propriety if occurring subsequent to a strike off and lasting for the same period would have been sufficient to merit a restoration to the Roll.
73. The last case in this context is Carroll v. Law Society [2016] IESC 49, [2016] 1 I.R. 679. The background to this matter is complicated and is fully set out in my judgment reported as cited. It is sufficient to say that Mr. Carroll, then as an apprentice solicitor, made an application to the Society for admission to the Roll. Under s. 24(1)(e) of the 1954 Act, as amended, inter alia , by s. 40 of the 1994 Act ("s. 24 of the 1954 Act"), one must satisfy the Society as part of the necessary proofs, that he/she is a fit and proper person to be so admitted. As there were allegations of misconduct still pending against him, the Society refused his application.
74. Such allegations in the case of an apprentice, are dealt with by the Society's Education Committee. That Committee was satisfied that Mr. Carroll had operated a business in a manner which unlawfully deprived a client of monies by providing her with false and misleading information. It came to the view that as a result, he was not a fit and proper person to be admitted to the Roll, and as is required reported this opinion to the President of the High Court. The applicant moved to review the Committee's decision. Finnegan P., in his judgment, found the allegation to be factually correct and one amounting to misconduct: as a result and by reason thereof, Mr. Carroll was not a fit and proper person to be admitted as a solicitor. This Court upheld the decision of the learned President.
75. Whilst there are obvious differences within the three cases last mentioned and between those and the instant case, and whilst noting that dishonesty was involved in all three, nonetheless it is I think correct to say that overall, there can be no doubt but that following a finding of serious misconduct, a solicitor's chances of remaining within or returning to the profession, are very slim indeed.
Lack of Fair Procedures: the events of 26th July, 2010:
76. It is of course common case, that no appeal was moved by Mr. Coleman against either finding by the Tribunal (paras. 11 - 13 above): that however is not determinative of this matter. The question remains whether the hearing conducted by the High Court of the Society's motions, can be legally sustained?
77. One of the two essential grounds upon which this appeal has been argued relates to the fairness of what transpired on the morning of 26th July, 2010, when the Society's applications, on both complaints, came before the President of the High Court. Although briefly referred to above, it is helpful to remind ourselves of some of the more salient features which inform the context of that hearing.
78. With regard to the Credit Union complaint, Mr. Coleman did engage in correspondence with the CCRC but not to its satisfaction either as to frequency of reply or in the explanation offered. When that Committee decided on 24th April, 2009, to refer the matter to the Disciplinary Tribunal, counsel on behalf of the appellant sought an adjournment of that pending decision, which was refused. However, as noted earlier, a stay of fourteen days was put on the referral order so as to allow certain documentation to be made available by the appellant: such was never produced. That would appear to have been the last engagement by the solicitor with the Society during this part of the process, as he did not attend and was not represented before the Tribunal when the substantive inquiry took place on 25th February, 2010.
79. In respect of the Fairview Construction complaint, the participation of the appellant was much greater. On at least four occasions the CCRC met to consider the complaint made and to give directions as to its future course. Between September, 2007 and February, 2008 Mr. Coleman attended or was represented on all such occasions. Likewise, on 1st April, 2008, when that Committee decided to refer the matter to the Disciplinary Tribunal. At the substantive hearing of that body, held on 10th February, 2010, he was represented by Mr. Toal, B.L, who, as the transcript discloses, made certain submissions on behalf of his client. Evidently, in view of the findings made those submissions were not accepted: indeed it is exceedingly difficult to understand how they could be, as they had neither relevance or significance to the misconduct charges, the subject matter of the hearing.
80. In any event, as and from mid to late February 2010, that part of the disciplinary process, in respect of both complaints had completed its course.
81. In the Credit Union case, the Tribunal's decision was made on the 25th February, 2010, with the resulting Order and Statutory Report of that body being both dated 16th March, 2010: the corresponding dates in respect of the Fairview Construction determination were the 10th February, 2010, and 18th March, 2010, respectively. Self evidently, as Mr. Coleman admits, it was inevitable that a motion would issue in both cases within which the Law Society would seek certain orders from the High Court. Again, it seems abundantly obvious that as the Tribunal made a recommendation to strike off, which in fact the Society had argued for during the February hearings, the same would form part of its application to the court. However, whilst the Society is not prevented from seeking orders in addition to or in variation to what they suggested before the Tribunal, no indication existed at the time that such was their intention. Further, there was of course no reference to or direction in either the Orders or the Reports of the Tribunal as to when the Society might issue the required motions. (emphasis added)
82. As above set out, the notices in respect of both complaints were in fact issued on 9th July, 2010, with a return date of 19th July. An order for substituted service was duly made on that date, with Monday, 26th July being the new return date for both motions.
83. As part of the order made by the High Court on 9th November, 2009, suspending Mr. Coleman's practising certificate, (para. 2 supra ), he was also directed to distribute the files which he then held, to other solicitors nominated by his former clients. Issues of compliance continued to arise in that regard, so much so that the Society by motion had entered or re-entered the matter before the High Court for 26th July, 2010: the service and receipt of such motion was never disputed. In that context, the appellant phoned the Society on the previous Friday and during the course of the resulting conversation, inter alia , with Mr. David Irwin, Solicitor, he was informed that two further motions, being those in the instant cases, were also before the court on that occasion. As part of this conversation he was also told of the order for substituted service which had been obtained on 19th July. Following that conversation, the appellant, sometime during that afternoon filed an affidavit in the Central Office dealing not only with the file distribution issue, but also with the further motions which had been referred to and in particular with the question of the service thereof.
84. In dealing with the issue of service, Mr. Coleman in his affidavit of the 23rd July, 2010 says: -
(i) that the relevant documentation was served at an address, which he names, but at which he never resided,
(ii) that he had surrendered his family home during the course of a bankruptcy hearing at which Mr. Irwin was present and had made submissions on behalf of the Law Society, and
(iii) that at least one section of the Society knew, of his then current address as he had received the motion regarding the distribution of files:
If these averments had been accepted, they would explain why he had not received the motions in the subject cases. In any event, having returned to Castlebar that evening, the appellant acknowledges that both motions were at his address: he claims that the delivery showed a postal date of 22nd July, 2010.
85. Another issue of significance is that although the reliefs sought by the Law Society in the Fairview Construction motion, were in accordance with the recommendations of the Disciplinary Tribunal, that was not the situation in respect of the Credit Union. In that case the motion had one significant addition, namely an order directing Mr. Coleman to make restitution in the sum of €320,000 to the Union for the loss suffered by it. That had not previously been notified or even flagged. There, matters stood, with the above being the immediate lead in, to the appellant's attendance before the President on the following Monday the 26th July, 2010.
86. At the call over Mr. Coleman, who appeared in person, sought an adjournment and in so doing endeavoured to deal with the question of service and the difficulties which the shortness of notice had posed for him. He claimed as a result that he did not have sufficient time to file, in response, a full affidavit or to instruct a solicitor who in turn would have instructed counsel, both of whom would have appeared on his behalf. He also outlined some of the arguments which he would wish to make and if given the opportunity, would very much elaborate on. The President however was not impressed, saying that "you have known about these cases long enough". With that, and having refused an adjournment, the learned President at that point delivered his ruling, a record of which he subsequently approved.
87. In its essential terms it is quite short. In the Fairview Construction complaint, he recited the four charges on which the appellant had been found guilty and did likewise, though in a more abbreviated form, with the Credit Union complaint. In the latter context he referred to the loss suffered as being €320,000. The substantive part of the combined decision then reads: -
"Having regard to the fact that these complaints were processed through the Solicitors Disciplinary Tribunal and that the respondent was fully aware of the conclusions and finding of the Tribunal, I was satisfied that the respondent had had full and adequate opportunity to instruct solicitor and counsel in advance of the hearing before me.
When the matter was heard before me on 26th July, the respondent did not advance any grounds to suggest that the Tribunal's findings were inaccurate and unwarranted and I accordingly made the orders sought."
The resulting order of the High Court, which was perfected on 4th August, 2010, shows that the appellant: -
(i) had been struck from the Roll of Solicitors,
(ii) had been directed to pay €320,000 in restitution to the Credit Union, and
(iii) had an order for the cost in respect of the hearings before the Disciplinary Tribunal, and the High Court proceedings made against him.
The grounds of appeal from that order and as originally filed are referred to at para. 16 above.
88. The challenge to the fairness of what occurred has both a procedural and a substantive dimension to it. On the former side the appellant alleges that he was not given the required notice as specified in O. 52, r. 6 of the R.S.C.. In support he also refers to O. 52, r. 8 and O. 122 of those rules. On the substantive side he claims that, given the lateness of the notification he did not have an adequate opportunity to consider his position, to make submissions or to instruct lawyers on his behalf. Furthermore, he highlights the unfairness of what occurred by referring inter alia to the fact that the demand for restitution first appeared only on the Notice of Motion. In an overall context, he places particular emphasis on the severity of the strike off sanction which he was facing, which in its own right and without more he says would have merited the opportunity which he sought.
89. The Law Society's response is firstly to cast some shadow on the service/notification controversy. It is not of course for this Court to resolve that issue but two comments are perhaps worthwhile: first, Mr. Coleman openly acknowledges having received the third motion in a timely manner (paras. 2 and 83 above) and second, if the Society had been satisfied that it had effected proper service of the motions in the first instance, and could have established that by appropriate affidavit evidence, it is difficult to see why it would have sought an order for substituted service on the original return date. It did, and did so successfully, though on what precise grounds and on what precise evidence, remains somewhat obscure. In any event, given the significance of the reliefs sought, it is difficult to understand how the appellant's sworn evidence on that issue could have been disregarded, at least without the issue having been explored to a conclusion. One can only assume that the matter proceeded as it did, on the basis of the President's view, as recorded at para. 86 above.
90. The Law Society goes on to claim that, even if one accepts Mr. Coleman's assertions on the service issue, he was still fully aware of the findings of the Disciplinary Tribunal and must have known that inevitably the respondent was obliged to move to the High Court as it did: in addition, the restitution order must be considered as coming within the foreseeable realm of achieving a full remedy for the wrongdoings so found. They also point out that the appellant passed up several opportunities to engage with the Society and to make representations, which might have had a dissuasive affect on the Tribunal's finding. Furthermore, when he did appear at the hearing of the Fairview Construction complaint, he made, through his counsel, several admissions which could only have led to one outcome, namely that as ultimately determined. It is said that the case law on disassociation from admissions, show how very difficult it is to successfully do so. Finally, the Society strongly disputes the characterisation that he was struck off at the "call over" stage: such a suggestion entirely fails to appreciate that the President had considered the entire papers in advance and was therefore very familiar with the issues and the entire circumstances. All of these factors must be seen in the context of the fact that he never appealed against the misconduct findings. Accordingly, Mr. Coleman cannot now be heard to complain as he does.
91. This submission in my view starts from an incorrect premise and fails to appreciate the fundamental role which the court must play on a referral application by the Society. Disregarding any question of appeal, the High Court, as pointed out, must satisfy itself that the findings of misconduct have a sustainable basis and secondly, must form an independent view as to what sanction is appropriate to such findings. In so doing, particularly with sanction, regard will be had to the circumstances giving rise to such findings, the factors offered in mitigation (if any) and the personal circumstances of the subject solicitor (if known): all viewed within the background of the court having to be satisfied that its decision will reflect public confidence in the solicitor profession and overall will not negatively impact on the administration of justice.
92. In this case it is of course true that Mr. Coleman must have expected the applications which the Law Society brought. However, he did not know and had no way of finding out precisely when those might be moved. In fact as the dates show, more than four months elapsed from the end of the administrative process before the motions issued. Secondly, he had no forewarning that in the Credit Union case a restitution order would be specifically sought: the sum of €320,000 was not insignificant. To suggest that such an order was incidental only to the strike off request, cannot be accepted. It is far more than that. In any event, he was entitled to sufficient notice so as to give him an opportunity of considering the documentation, of getting advice and representation if he wished, and having had such opportunity, of offering whatever evidence and submissions he thought fit. These basic entitlements apply even if he had never participated in the prior activities of the CCRC, the Law Society, or the Disciplinary Tribunal. If he appeared for the first time only on the return date, he would have been entitled to such fair procedures, and entitled to at least argue that the sanction recommendation should not be followed. The overall disciplinary procedure is not one which can be looked at, as a single process or event within which fair procedures at any stage are a sufficient compliance with the requirement of justice. The situation at hand is much more akin to a finding of guilt to be followed by a sentencing hearing. The subject person is entitled to fairness on both occasions.
93. Disregarding the requirement for two clear days in respect of the motions, and looking at the totality of what occurred, I am satisfied that given the consequences which a strike off inevitably involves, including the substantial difficulty in ever being reinstated, it was incumbent on the court, in the interest of fairness to facilitate an adjournment on 26th July, 2010. No immediacy as a counterbalance was suggested. The appellant's practising certificate had previously been suspended. Therefore, he could offer no threat to members of the public, or be at risk of creating further reputational damage to the profession as a whole or of further jeopardising the compensation fund. Accordingly, I cannot see any valid reason which would have justified the course adopted on the morning in question. For how long such a deferral was required would have been a matter for the court. Even a short and brief period may well have sufficed given the previous history. But to force the matter on, without compelling reason, was in my view erroneous. There was therefore a deprivation of fair procedures on the occasion in question.
Lack of Fair Procedures: Duty to give Reasons:
94. The second ground upon which Mr. Coleman alleges a breach of fair procedures relates to the quality of the ruling as delivered on 26th July, 2010. In that regard, he claims that the President failed to give any proper or adequate reasons for the decision arrived at. As such, it is impossible for him to know, as the affected party, why the court considered that a strike off was proportionate: that being so, it also makes any worthwhile review by way of appeal very difficult, if not impossible.
95. At the outset it must be noted that neither Notice of Appeal as originally filed, contained any such complaint. As such, unless the dictates of justice seriously demand, this Court should not now entertain such objection. No substantive reasons which would meet the strict threshold as set out in the case law have been so advanced I would therefore refuse to allow this point to be raised as an aspect of the appeal before this Court: in any event, it is unnecessary from Mr. Coleman's point of view to do so, in light of the finding above made.
96. However, I am concerned that by remaining mute on this issue, my silence might be taken as acquiescing in the Society's response, which was to submit that the High Court when dealing with such an application is under no obligation to give reasons if the judge was merely giving effect to the Disciplinary Tribunal. Furthermore, it is the respondent's contention that the duty to explain would only arise if the President was to differ dramatically from that which the Tribunal had suggested (paras. 38 and 106 herein). As this is a far reaching proposition and one of general application, I feel compelled to respond to it.
97. Can I immediately say, with respect, that I reject this submission, not only on the basis of general principles, but also because, if accepted, it would intrinsically follow that in the absence of cause shown and where the Society supports the Tribunal's findings and recommendations, the only function of the court is to approve both. Such approach, for the reasons above given, would entirely deprive the disciplinary regime of the legal and constitutional efficacy which is in place.
98. This requirement, or duty to give reasons has been the subject of many decisions, on the administrative side, in recent years. The application of the principle and crucially, where in play the extent thereof, have not always been clearly defined. Mallak v. Minister for Justice, Equality and Law Reform [2012] IESC 59 is a recent decision of this Court which provides a good starting point for setting out what the current position is, in this regard.
99. Mr. Mallak made an application for a certificate of naturalisation, which was refused by the Minister, who also refused a request seeking an explanation as to the reasons why. This court reversed the finding of the High Court and quashed the Minister's decision. The conclusion regarding reasons was simply put - people have a right to know why, so that they may understand the decision made against them. Further, in the context of that type of case, an applicant who had been unsuccessful may wish to apply again, and in so doing will naturally desire to reshape his application, if possible, in a manner which optimises his or her chances of success. It follows from this that reasons for the decision are crucial, otherwise a second application or a judicial review may be rather pointless.
100. It was the Minister's submission that since he had an "absolute discretion" in this decision-making process, there was no duty to give reasons and furthermore, that he was not obliged to have any reason at all. The court did not agree and it was held by Fennelly J (Denham C.J., Murray, O'Donnell and McKechnie JJ. all concurring) that the rule of law is such that all decision makers must act fairly and rationally: specifically they must not make decisions without having some reasons for so doing. The learned judge went on:
"The developing jurisprudence of our own courts provides compelling evidence that, at this point, it must be unusual for a decision maker to be permitted to refuse to give reasons. The reason is obvious. In the absence of any reasons, it is simply not possible for the applicant to make a judgment as to whether he has a ground for applying for a judicial review of the substance of the decision and, for the same reason, for the court to exercise its power. At the very least, the decision maker must be able to justify the refusal." (para. 74)
101. It is worthwhile to point out however, that Fennelly J. was careful in his decision not to create a formal rule, one which would oblige all decision-makers to give reasons in every situation. He stated that the underlying objective would be the attainment of fairness in the process. On occasions, provided that the process was fair, open and the affected person had been given a chance to respond, then the reasons for the decision may be obvious, Unless so however, the basis of any such decision must be set out, so that the reasons therefor are both apparent and manifest.
It follows from this also, that a decision-maker should not in principle have any issue with giving reasons for their decision, if the decision was made rationally, fairly and with cause, which is now a requirement of our law. These observations would appear self-evident, but it remains necessary to expressly state them: otherwise confidence in the public administration may suffer.
102. Subsequent to Mallak but applying much the same principles was McEnery v. An Garda Commissioner [2016] IESC 66. Following a summary dismissal from An Garda Síochana, Sgt. McEnery brought judicial review proceedings in the High Court. The reason for the dismissal was her conviction for a s. 2(1) assault under the Non-Fatal Offences Against the Person Act 1997, with the power of the Garda Commissioner to do so, being found in Regulation 39 of An Garda Síochana (Discipline) Regulations 2007 (S.I. No. 214/2007). Having issued a notice of intent to dismiss her under that regulation, one which contained a summary of the evidence as to her assault conviction, the Commissioner went on to invite her to make submissions on what he proposed to do. Subsequently he informed her that having considered the submissions made, his decision was not altered and that he would be recommending to the Minister for Justice, Equality and Law Reform that she be dismissed from the force.
103. In the High Court, Kearns P. refused the reliefs sought by the applicant. It is not necessary to detail all three of the complaints so made by her in those proceedings and dealt with by the court: it is sufficient to say that the President did not accept her contention that the Commissioner had failed to give adequate reasons. He held that by setting out the material facts in his initial letter, of his intention to dismiss, he had discharged the duty to give reasons. Sgt. McEnery's appeal to the Court of Appeal, was successful. The Court held that the decision of the Commissioner ought to be quashed because he had conflated two separate facets of the decision - the material facts and the relevant breach of discipline. Kelly J. when giving judgment, said that,
"By treating the material facts and the breach of discipline as one and the same he blinkered himself from a consideration of material facts. That was in breach of the requirements of Regulation 39 and of [Sgt. McEnery's] right to have the material facts which gave rise to the breach of discipline fully considered.' (para. 43)
104. Following the decision of the Court of Appeal, a further appeal was permitted to this Court where Laffoy J. wrote the judgment dismissing the appeal. A focal point in her decision was the inadequacy of reasons given by the Commissioner at a crucial stage in the process, which was that directly before his final decision was made and before he asked the Minister for consent to give effect to it. The learned judge held that this was the point in time at which the Commissioner ought to have given reasons, as he had then received submissions from the Sergeant and had considered them. He was obliged to say why in his view (i) the breach of discipline was of such gravity that it justified her dismissal, (ii) the sanction imposed after an inquiry under the 2007 Regulations would be no different to that suggested by him and (iii), she was unfit to be a member of the force. Citing also the decision in Kelly v. Commissioner of An Garda Síochana [2013] IESC 47, and having stated that it could not be said that the issue in the case was so narrow that the reasons for the decision were self-evident, Laffoy J. continued:-
"The Commissioner did not rationalise any of those conclusions in the letter of 25th March, 2013. He merely reiterated his conclusion that her conduct merited dismissal in accordance with the provisions of Regulation 39. However, as is clear, none of the bases which had led to the proposal to dismiss Sgt. McEnery was rationalised either in the Regulation 39 Notice." (para 64.)
105. In the solicitor context, this issue also arose in the Court of Appeal's judgments in The Law Society of Ireland v. Callanan , [2017] IECA 217, 21st July, 2017, which should not be confused with the subsequent decision of Kelly P. ([2018] IEHC 160) (para. 62 above), given when the matter was referred back to the High Court. In that case the appellant solicitor, Mr. Callanan, had been found guilty of serious misconduct by the Disciplinary Tribunal: however, it did not propose to the President of the High Court that his name should be struck off. On the basis of what it suggested it was satisfied that the relevant interests, from both the public and profession's point of view could be achieved without that step. When the Society brought the report to the High Court, it submitted that a sanction recommendation was inadequate and in its place should be a strike off. Kearns J. disagreed and made an order which neither the Disciplinary Tribunal had suggested nor the Law Society had wanted (paras. 39 & 63 above). However, it is not that finding but rather the second ground of complaint dealing with the absence of reasons, which I wish to refer to.
106. In the Court of Appeal, Peart J. in one of two judgments delivered, dealt with this ground of complaint at para. 43 where he said: -
"Whilst not strictly necessary to do so, I shall go on to express my view also that where the President was departing so radically from the recommendations of the Disciplinary Tribunal, by the orders made at 1 and 2 of his order, it was necessary for him to explain his reasons for doing so. In my view the solicitor is entitled to know the reasons for such a radical departure from the Tribunal's recommended sanctions as a matter of fair procedures, and so that he or she may consider and be advised as to any appeal against the decision made."
It seems evident that it was this passage which formed the basis, at least in part, for the submission made by the Society referred to at para. 97 above. However, in my view this statement merely reflected the particular issue before the court in that case and could not in any way be taken as suggesting that only in such circumstances were reasons necessary.
107. In a concurring judgment Hogan J., also dealt with the duty to give reasons. He recorded the relevant exchanges at the hearing before the President, and the order so made by him. The learned judge then stated that the contemporary case law made it clear that a judge must give sufficient reasons for his decision so that the parties will understand the basis therefor. Having cited from the decision which I am about to refer to, Hogan J. then continued: -
"…this Court is, just like Kelly J., in Heron , sympathetic to the difficulties which doubtless confronted the President when facing a heavy list of professional disciplinary cases on a Monday afternoon. But the obligation to give reasons…is fundamental to the proper and fair administration of justice. This is perhaps especially so where, as here, the court was not only departing in a material way from the considered approach which had been embodied in a careful, report from the Tribunal, but was also making an order which in itself was an unusual order (quite independently of its jurisdiction to do so). All of this called for the court to give at least some reasons however brief and succinct of his decision."
I interpret this as firstly reiterating what the general requirement is and secondly, as dealing specifically with the submissions which he was addressing. In dealing with the latter he was not in any way in my view intending to narrow the basis on which the requirement to give reasons exist.
108. Finally, a composite summary of this point can be found in what Kelly J. said in Bank of Ireland Mortgage Bank v. Heron [2015] IECA 66:
"For many years the superior courts have held that administrative bodies making judicial or quasi judicial decisions must give reasons for so doing. Such bodies must satisfy the criteria identified by Murphy J. in O'Donoghue v. An Bord Pleanala [1991] I.L.R.M. 750, where he said in the context of a decision given by the Planning Board that it: - ‘…must be sufficient first to enable the courts to review it and secondly, to satisfy the person having recourse to the Tribunal that it had directed its mind adequately to the issue before it.'
…given that administrative bodies are required to give reasons for their decisions, no lesser standard can be expected or can be required of courts exercise and judicial functions. In English v. Emery Reimbold & Strict Ltd [2002] EWCA Civ 605 [2002] 1 WLR 2409, Lord Phillips put it succinctly when he said: - ‘The essential requirement is that the terms of the judgment should enable the parties and any appellate tribunal readily to analyse the reasoning that was essential to the judge's function.'
The majority of judgments in the High Court are delivered ex-tempore . Such judgments cannot be expected to include anything like the same degree of detail as might be expected in a reserve judgment. They do not have to discursive. But even an ex-tempore judgment must comply with the essential requirement identified by Lord Phillips namely, that it should enable the parties in any appellate tribunal readily to analyse the reasoning that was essential to the judge's decision. The court is sympathetic to the predicament of a High Court judge faced with a lengthy motion list on every Monday of the legal term. The present case was just such a motion list on Monday 1st December, 2014. But a judge cannot be relieved of the obligation to set out briefly the principal reasons underlying a decision on that account. If a judge is unable to deliver a judgment ex-tempore because of the complexity of the facts or legal issues, then judgment should be reserved. But it is never sufficient to do as was done in the present case and merely announce a decision without giving any reasons for it."
May I respectfully endorse what was stated in this judgment.
109. It can be no answer to the absence of reasons in the instant case to suggest that as a matter of routine the President is given copies of all the documents in advance and that prior to the hearing, he reads and considers them. Such is of little comfort to the affected solicitor and sheds no further light on the judge's reasoning when reviewed by an appellate court. Again, like Kelly J., I too have much sympathy for trial judges with multiple lists, typically on a Monday morning, which include a variety of motions, involving ever more complex and difficult questions of law. However, and notwithstanding the onerous workload involved, where a person's good name and livelihood are seriously in jeopardy, such pressures cannot trump the requirement of justice.
110. Finally, it is no harm to occasionally remind ourselves of what McMahon J. said in Khan v. Health Service Executive [2008] IEHC 234: -
"To those involved in administration, adherence to fair procedural standards may appear cumbersome, irritating and even irksome on some occasions. Undoubtedly the necessary endurance may slow down the administrators and may not be conducive to efficiency. But that is the way it is. The battle between fair procedures and efficiency has long since been fought and fair procedures have won out. Insistence on fair procedures governs all decision makers in public administration. The same in my view applies with equal justification to the judicial function."
Whilst I fully appreciate the necessity to dispatch the court list, nevertheless to all issues, particularly those with severe consequences, an appropriate response is called for: it does not necessarily have to be either lengthy or analytical: a short and succinct statement may be sufficient: but such issues must be addressed, as otherwise justice will not prevail.
111. The relevant part of the ruling delivered in this case appears at para. 87 above, but because of its brevity could I quote it once again: -
"Having regard to the fact that these complaints were processed through the Solicitors Disciplinary Tribunal and that the respondent was fully aware of the conclusions and finding of the Tribunal, I was satisfied that the respondent had had full and adequate opportunity to instruct solicitor and counsel in advance of the hearing before me."
When the matter was heard before me on 26th July, the respondent did not advance any grounds to suggest that the Tribunal's findings were inaccurate and unwarranted and I accordingly made the orders sought."
112. With great respect the first part of this ruling fails to address the adjournment application: as pointed out, even if Mr. Coleman had never previously appeared, he was entitled to proper notice of the Society's application. Of more significance however is the approach adopted, namely, that in the absence of submissions from the solicitor, to the effect that the Tribunal was wrong, the orders sought would follow. Since my views on the role of the court in such circumstances are set out above, I will not repeat them here. In addition, however, the question of penalty is not dealt with at all. Perhaps that was in part the consequence of not granting the adjournment but whichever, what the President said does not disclose any consideration, independent or otherwise, of the strike off which was imposed. As such, there is no way of knowing why he felt that such an order was the appropriate one to make. Furthermore, apart from reciting the claim for €320,000 there is no further reference to it. It must also be remembered that having refused the adjournment, the learned President gave immediate effect to the findings and recommendations so made. In the circumstances prevailing, I cannot regard this as being adequate. By reference to the authorities above quoted, I regretfully have to conclude that in this respect there was also a lack of fairness.
113. In light of the above findings, it is unnecessary to deal with the other issues raised, as part of the substantive appeal, by either the appellant or the Law Society.
The Two Motions: Amend the Grounds of Appeal and Admit New Evidence:
114. The two motions which accompany the main appeals relate to the enlargement of the grounds of appeal and the admission of new evidence. The jurisdiction of the court to allow such an enlargement has a foundation in the rules of court, in particular in O. 58, RSC, and has also been the subject matter of several decisions of both the High Court and this Court. At a general level the court has power to permit an amendment on such terms as it thinks fit. However, that discretion must be exercised judicially and at all times sparingly. In Carlton v. Director of Public Prosecutions [2000] IESC 6 (" Carlton "), Geoghegan J. made it clear that leave to amend a Notice of Appeal will not be granted where it would be unfair to a party, or where the proposed amendments are very substantial and will change the nature of the appeal. In D.K. v. Crowley [2010] IESC 29 [2011] ILRM 309, the Supreme Court, via Murray C.J., stated that as the intention behind the application to amend in that case, was to re-open the issue of liability, which had been conceded in the High Court, it would be an abuse of process to so allow. In coming to this conclusion, reference was also made to the earlier case of In Re Vantive Holdings [2009] IESC 69, where the Chief Justice had referred to "the inherent jurisdiction of the court to protect the integrity of the due process of the administration of justice and the finality, in principle, of a judicial decision". Accordingly, these were very much constraining factors in the exercise of such jurisdiction.
115. There are several other cases dealing with this broad issue, such as McCormack v. Garda Síochana Complaints Board [1997] 2 IR 489, and more recently the case of Andrew Keegan v. An Garda Síochana Ombudsman Commission [2012] IESC 29, [2012] 2 IR 570. However, both of those cases were on the judicial review side and may not be quite as representative of the general position, as some might suggest.
116. There are several documents relating to both appeals which the appellant seeks to have admitted, all of which he avers are material to the facts, asserting in the process that it would be unjust for this Court not to so permit. The Supreme Court, again under Order 58 of the RSC, has the power to admit new evidence provided there are "special grounds" and provided leave is granted by the court in this respect.
117. As the appellant himself correctly says, Murphy v. Minister for Defence [1991] 2 I.R. 161, and before that Lynagh v. Mackin [1970] I.R. 180, set out the relevant considerations for a court when dealing with a motion to admit new evidence. Finlay CJ. in Murphy , held that in deciding whether such evidence should be admitted on appeal, the Court must consider whether the evidence sought to be adduced was in existence at the time of the trial but could not have been discovered with the exercise of reasonable diligence; whether the suggested evidence would probably have had an important influence on the outcome of the trial and finally whether such evidence is credible.
118. These criteria were considered in numerous subsequent cases such as McMullen v. Clancy (No.2) [2005] 2 I.R. 145 and again in McMullen v. Kennedy practicing under the style and title of Giles J. Kennedy and Company Solicitors [2012] IESC 56, where the Court refused to admit new evidence on the basis that the evidence was not new and was not sufficiently pertinent to the facts of the case, such that the trial judge would have reached a different conclusion had it been included at first instance. The evidence related not to the facts of the case but instead to the credibility of a witness, which, according to Denham CJ., was not enough to qualify it.
119. In this case, I am satisfied beyond question that the criteria specified in Murphy v. Minister for Defence has not been established, and that otherwise there are no compelling reasons to create an exception to the general rule so as to facilitate what Mr. Coleman seeks. Accordingly, I would refuse to admit such evidence.
120. Denham CJ. also referred to the "stricter test" set out in Meek v. Fleming [1961] 2 Q.B. 366, wherein new evidence could only be admitted if the court had been deliberately misled in relation to a material matter. It is of course the contention of the appellant in the present case that this is indeed what happened but the reasons set out by him are wholly inadequate to establish either a deliberate or even an inadvertent misleading by the respondents. In fact, such a contention must be firmly rejected.
121. As above pointed out the jurisdiction to enlarge grounds of appeal must be exercised judicially: that is, the court must have regard, amongst other things, to the nature of the proceedings and the issues so raised, the conduct of the parties and any delay in moving the application, and of particular importance are the reasons advanced so as to explain in the first instance why such grounds were not included in the original draft. In addition, the application must show why it is in the interests of justice that an amendment should now be permitted.
122. As the chronology above shows, Mr. Coleman did not appear at the Tribunal hearing into the Credit Union complaint, but he did regarding the Fairview Construction complaint. Whilst I do not wish to prejudice what might further occur in this case, it is nonetheless fair to say that not much, if any, of the grounds and material upon which the findings of misconduct were made, were challenged by counsel on his behalf. Rather, the submission was focused on explaining what had occurred by reason of extraneous events. It may well be that this accurately reflected the position of Mr. Coleman at the time. In any event, in the Notices of Appeal, drafted after the High Court decision, no complaint is made in terms of such misconduct findings.
123. Given the entirety of the circumstances, and applying the statements of principle as set out in Carlton, and in both D.K. v. Crowley and In Re Vantive Holdings , and in particular in light of the fact that if permitted the amendments would very radically change the nature and complexion of this appeal, I do not feel that the reasons given are of such a nature as would justify this Court in exercising the discretion vested in it. Accordingly, I would likewise refuse the relief sought in this motion.
Conclusion:
124. Whilst I am acutely conscious that these proceedings have now been ongoing for a very long period, and that it is most certainly time that a position of finality be reached, it must however follow from the findings above made that the hearing before the High Court on 26th July, 2010, lacked the essential features of fairness and thus, the resulting orders cannot stand. I would therefore remit this matter back to the High Court, so as to adjudicate afresh on the applications which the Society issued on the 9th of July, 2010. Subject to any order which the that Court might make, I would envisage that the appellant should be given an opportunity of responding to the motions. Save for that. I do not wish to foreclose on how the High Court may deal with any application made or submission advanced. It will be entirely up to that court to decide on how the case should further proceed
125. I would therefore allow the appeal in the manner above indicated, but dismiss both motions which the appellant issued on the 10th day of February, 2015, and the 24th day of April, 2015, respectively.
