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Court of Appeal in Northern Ireland Decisions
You are here: BAILII >> Databases >> Court of Appeal in Northern Ireland Decisions >> Law Society of Northern Ireland v Monteith [2012] NICA 15 (6 June 2012)
URL: http://www.bailii.org/nie/cases/NICA/2012/15.html
Cite as: [2012] NICA 15
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| Neutral Citation No [2012] NICA 15 |
Ref: | MOR8492 |
| Judgment: approved by the Court for handing down | Delivered: | 06/06/12 |
| (subject to editorial corrections) |
BETWEEN:
Plaintiff/Respondent;
Defendant/Appellant;
Applicant/Appellant;
Respondent/Respondent.
MORGAN LCJ
[1] The appellant formerly practised as a solicitor under the style of Albert J Monteith & Co. He has been engaged in disputes with the Law Society of Northern Ireland since 1999 and these have culminated in proceedings determined by Deeny J in 2011. In December 2010 he launched judicial review proceedings challenging some of the orders made by Deeny J, a decision of the Northern Ireland Legal Services Commission dated 30 November 2010 in relation to legal aid, a decision of Master Napier made on a date unknown and earlier decisions made by High Court Judges in November 1999 and March 2000. He is appealing the orders made by Deeny J and seeks leave to extend time to appeal the decision made by Master Napier on an unknown date and the Orders made in 1999 and 2000. He also appeals against the orders made in the judicial review proceedings. Finally he seeks to appeal decisions made by unknown judges on unknown dates.
The disputes with the Law Society
[2] On 12 October 1999 the Law Society accountant visited the appellant's office and carried out an investigation. As a result of that visit the Law Society applied Schedule 1 of the Solicitors (Northern Ireland) Order 1976 (the 1976 Order) to the appellant's practice. On 15 November 1999 Campbell J made an order appointing the Society as attorney of the appellant's affairs. It appears that a forensic accountancy firm, Goldblatt McGuigan, was instructed by the Society on 18 November 1999 to take charge of all financial records maintained by the appellant. In a report to the Society dated 20 December 1999 the accountant stated that there was concern as to the completeness of the accounting records and that the analysis revealed clearly a number of breaches of the Solicitors' Accounts Regulations. The forensic accountant expressed the opinion that the records maintained were not sufficient to allow the reporting accountants and the Law Society accountant to understand and confirm the balances within the accounts and that the books contained a number of errors relating to transfers. The accountant indicated that he required access to further records and would need to carry out further work before being able to report that client funds were intact. He stated that his work to date had not identified any loss to clients.
[3] On 12 April 2000 the Society made an application before Carswell LCJ pursuant to Paragraphs 22A and 23 of Schedule 1 to the Solicitors (Northern Ireland) Order 1976 as a result of which he ordered that the Society was entitled to wind up, transfer, sell or otherwise dispose of the appellant's practice and take possession of his property. The appellant now wishes to appeal both of these orders. He asserts that there were errors in the balances of at least four client accounts which explain why it may have appeared that clients' money was missing. He says that this was the fault of the accountants from the Society and those acting on their behalf. He asserts that the Society and its representatives were guilty of fraud but agrees that he has no evidence whatsoever to support that claim. In addition he has no evidence by way of books of account or otherwise to support the assertions that he makes.
[4] Order 59 Rule 4(1) sets out the relevant time limits for appeals.
"Subject to the provisions of this rule, every notice of appeal must be served under rule 3(4) within the following period (calculated from the date on which the judgment or order of the court below is filed), that is to say:-
(a) in the case of an appeal from an interlocutory order or from a judgment or order given or made under Order 14 or Order 86, 21 days;
(b) in the case of an appeal from an order or decision made or given in the matter of any proceedings under the Bankruptcy Act (Northern Ireland) 1857 to 1990, Part XX and Part XXI of the Companies (Northern Ireland) Order 1986 or the Insolvency (Northern Ireland) Order 1989, 28 days;
(c) in any other case, 6 weeks."
Where as in this case the time period has expired the principles which the courts will adopt were set out by Lowry LCJ in Davis v Northern Ireland Carriers (1979) NI 19.
"Where a time limit is imposed by statue it cannot be extended unless that or another statute contains a dispensing power. Where the time is imposed by rules of court which embody a dispensing power such as is that found in Order 64 rule 7 the court must exercise its discretion in each case and for that purpose the relevant principles are –
(1) whether the time is sped: a court will, where the reason is a good one, look more favourably on an application made before the time is up;
(2) when the time-limit has expired, the extent to which the party applying is in default;
(3) the effect on the opposite party of granting the application and, in particular, whether he can be compensated by costs;
(4) whether a hearing of the merits has taken place or would be denied by refusing an extension;
(5) whether there is a point of substance (which in effect means a legal point of substance when dealing with cases stated) which could not otherwise be put forward; and
(6) whether the point is of general and not merely particular, significance.
To these I add the important principle;
(7) that the rules of court are there to be observed."
[5] There was correspondence between the Society and the appellant in late 2006 in which the Society provided the appellant with copies of the relevant Orders. The Society continued the attorneyship of the appellant's affairs as a result of which it concluded that there were substantial monies due to the appellant which it wished to pay over to him. There was correspondence in relation to this in 2008 and 2009. No notice of appeal in relation to the orders of 1999 and 2000 was issued until 4 March 2011.
[6] The application to appeal in respect of both of these orders is hopelessly out of time. Under Schedule 1 of the 1976 Order the Society is required to keep any relevant books and records for a period of six years but thereafter may dispose of or destroy them. The Society has made disclosure of its records to the appellant in accordance with the Orders of Deeny J but he argues that they are incomplete. If, at this stage, the information available to the Society in order to defend these matters is incomplete the Society is inevitably likely to be prejudiced in dealing with any late appeal. The appellant has had a hearing on the merits. He has been unable to adduce any evidence to support his central allegations of fraud or bias. He claims that this is because the Society has hidden relevant documents from him. He asserts that there were original accounting papers which would have come into the possession of the Society which would have assisted him in demonstrating wrongdoing on its part. The accountants who dealt with the appellant's affairs at the time must also have had these documents. The appellant has not, however, been able to trace these documents.
[7] This is not a case in which there is a point of general significance. The application is very late. The Society is prejudiced. We do not accept the submission that we should infer dishonesty or impropriety because of the absence of documents allegedly provided to the Society. The appellant has had a hearing. The only explanation advanced for his delay was that he felt overwhelmed by the investigation and related court proceedings. In our view there is no merit in the application to extend the time to appeal either of these decisions and we accordingly refuse those applications.
[8] On 26 March 2010 the Society issued proceedings in relation to lands contained in Folio No. 9276 County Tyrone. The Society had been advised that these lands were part of the appellant's estate and in light of the fact that they were informed by a neighbour that they were occupied and no rent had been paid the proceedings were intended to protect the estate's interest. Deeny J ordered replying affidavits on 4 May 2010, Girvan LJ gave directions in relation to the adding of a defendant on 1 June 2010 and on 29 June 2010 Deeny J ordered that the Matthews family deliver up possession of the premises but stayed proceedings until November 2010 to allow them to have the rent assessed, to pay it to the plaintiff if they wished and to put in place satisfactory insurance. The appellant seeks to appeal all of these orders. The first two orders are clearly interlocutory and no application for leave was made to the learned trial judge. In light of the fact that the final order is the subject of appeal no such application could have succeeded. In relation to the final order the essential complaint made by the appellant was that since the attorneyship ought to have been set aside he should have been a party to the proceedings. We have already concluded that the order granting the Society a power of attorney and giving it possession of the appellant's property was not now capable of being appealed. That ground must, therefore, fall. No application was made by the appellant to determine the Order which is why the Society felt compelled to take proceedings. The appellant asserted that four other folios ought to have been made the subject of the proceedings but apart from this assertion no evidence was adduced to support it. We conclude, therefore, that this appeal, to which the appellant was not a party, must be dismissed.
[9] By an interpleader summons issued on 8 September 2010 the Society sought an order permitting it to pay into court the monies due to the appellant under the attorneyship. On 29 September 2010 Deeny J directed the Society to provide the appellant with an up-to-date account of money held on his behalf for the past six years and listed the case for review on 1 December 2010. The appellant contends that the hearing was not impartial because the disclosure was restricted to the six year period during which the Society is obliged by the 1976 Order to retain documents. The judge did not pursue his allegations of fraud. As we have already set out the appellant has no evidence whatsoever to support these allegations. His submission that the learned judge was promoting and inciting crime is entirely without foundation. On 13 December 2010 Deeny J gave further directions requiring the Society to serve an account within four days and setting a further timetable for replying affidavits and a rejoinder. The appellant contends that his solicitor and counsel refused to follow his instructions and concluded that they were acting against him. He seeks to appeal both of these orders but has not obtained leave from the judge in respect of these interlocutory rulings. He has produced no evidence to support his assertions in relation to either of these matters and there are no circumstances in our view where leave could have been granted.
[10] On 28 February 2011 Deeny J ordered the Society to provide bank statements to the appellant but the appellant again concluded that the court and his legal advisors were now acting against him. The appellant subsequently issued a notice of motion seeking the accounts which had been ordered and committal of Law Society personnel for failure to comply with the judge's order. On 11 May 2011 the appellant's solicitors were allowed to come off record and on 15 May 2011 the Society's solicitor provided the appellant with an account of his affairs which the appellant says is not full. By this stage the Society had issued injunction proceedings in relation to the appellant's attendance at its premises. On 23 June 2011 Deeny J ordered the Society on foot of the interpleader summons to pay £365,417.89 into court with interest after deducting the costs owed to the appellant's previous solicitors. He made a civil restraint order debarring the appellant from issuing any further proceedings against the Society arising out of its attorneyship. The appellant appeals against the final order and purports to appeal against the earlier interlocutory orders. No leave was granted in relation to the earlier orders and for the reasons already given it seems to us that leave could not at this stage be granted. The only criticism which is made of the order made by Deeny J is that there has been a failure of disclosure. In fact the Society has made available to the appellant the documents which it holds and on enquiry with him in the course of this case it appears that his principal concern is with documents originally held by his former practice accountants. He has been unable to obtain those documents from those who have succeeded to that practice. There is nothing to indicate that the Society is in default in relation to these documents which are now no longer available if they ever existed. The Order appointing the Society as the holder of the appellant's estate was valid as was the order appointing the Society attorney of the appellant's estate. The Society now properly wishes to reimburse the appellant. The only additional matter raised by the appellant is that some of this money may be clients' money. If so it is for him to deal with it appropriately. The Society has done what it can. We consider that there is no basis upon which the appellant can point to any error in the Orders made by Deeny J. We dismiss the appeals in those cases.
[11] There remain applications in relation to Master Napier and unknown judges at unknown times. Despite the paucity of information it was possible to identify one of the cases as Moore v Monteith [1998] NIJB 103. The plaintiff sought an order requiring the appellant to deliver up a cash account and the title deeds to the plaintiff's property and an order for taxation of the appellant's bill of costs. It is clear that the appellant was dissatisfied with the outcome of those proceedings as the learned trial judge recorded the expressed intention of the appellant to appeal. The decision was given on 12 May 1998. No satisfactory explanation has been given for the failure to pursue an appeal until now. We refuse leave to extend time in that case. The other cases are also out of time and we have no basis upon which to conclude that time should be extended. Those appeals must also fail.
The judicial review appeal
[12] The extent of the appellant's application for judicial review was identified by McCloskey J as follows.
(a) Various "decisions" of the President of the Law Society.
(b) Two decisions "of unknown judge made on date unknown".
(c) A decision of Master Napier "made on date unknown".
(d) "A decision of Judge Campbell made on 15th November 1999".
(e) "A decision of Judge Carswell made on 31st March 2000".
(f) "A decision of Judge Deeny made on 29th September 2010".
(g) "A decision made by the Legal Services Commission refusing appeal on 30th November 2010".
The appellant sought separately to appeal the decision of the Legal Services Commission to refuse legal aid but the Court of Appeal has no jurisdiction to hear any such appeal.
[13] The applications for leave to apply for judicial review of the decisions of judges of the Court of Judicature were dismissed on the basis that such courts are not subject to the supervisory jurisdiction of the High Court as they are courts of co-ordinate jurisdiction. The unknown decision of Master Napier was out of time and in any event should have been pursued by way of appeal. Such an appeal would inevitably have failed on the basis of delay. McCloskey J found no arguable case in relation to the President of the Law Society and again the complaints were out of time. We find no reason to take issue with those conclusions and accordingly dismiss the appeals on those issues.
[14] The final matter concerns the application for leave to judicially review the decision of the Legal Services Commission to refuse legal aid for the chancery proceedings referred to above. The Commission was aware of an offer from the Society on 23 October 2008 to make £50,000 available to the appellant and on that date the Society enclosed a cheque for £10,000. The acceptance of that money was not made conditional. The grounds of refusal were:
"…(i) You had not shown reasonable grounds for taking steps to assert or dispute the claim and (ii) that it appeared unreasonable, in the particular circumstances of the case, that you should receive legal aid".
The appellant challenged the inadequate provision of reasons but we consider that this material sets out those reasons. The remaining grounds upon which the appellant pursued the application were:
"(a) A failure to take into consideration the background facts.
(b) A failure to take into consideration his representations to the Committee.
(c) Unreasonableness."
[15] The onus to raise an arguable case on these matters lies on the appellant (see Re SOS Application [2003] NICA 15). There is no evidence to suggest that the Appeal Committee failed to take into account the background facts or the appellant's representations. We agree with the learned trial judge that the decision of the Appeal Committee did not disclose the semblance of irrationality. The appeals were being pursued essentially on the basis of bias and fraud for which there was no evidential basis. This appeal must also fail.
Conclusion
[16] For the reasons given we conclude that these appeals must be dismissed.