THE HIGH COURT
JUDICIAL REVIEW
			1996 No. 260 JR
BETWEEN
MAURICE O'CALLAGHAN
			APPLICANT
AND
THE DISCIPLINARY TRIBUNAL AND IRELAND 
AND THE ATTORNEY GENERAL
			RESPONDENTS 

JUDGMENT of Mr Justice McCracken delivered the 22nd day of March 1999.
	The Applicant is a solicitor against whom a complaint was made to the first named Respondent (hereinafter called "the Tribunal"), by a former client.  A further complaint had been made to the Tribunal arising out of a report of the Incorporated Law Society's investigating accountant, and both complaints were listed for hearing before the Tribunal on 6th June, 1996.  The latter matter was in fact adjourned because of a case pending in the High Court which challenged the status of the Law Society's investigating accountant, but the former case proceeded to a hearing.  At this hearing, the Applicant was initially represented by solicitor and Counsel, and the arguments addressed to me on behalf of the Applicant in these proceedings were to a large extent made by Counsel before the Tribunal as a preliminary objection to the hearing of the proceedings.  The Tribunal rejected the Applicant's submissions, at which stage Counsel and solicitor for the Applicant withdrew, indicating that Judicial Review proceedings would be brought, but the Tribunal continued with the hearing in the absence of the Applicant and ultimately made a recommendation that the Applicant's name should be struck off the Roll of Solicitors.  The Applicant seeks to set aside this decision in these proceedings.
	I am not concerned with the merits or otherwise of the complaint made against the Applicant, or with the correctness or otherwise of the decision of the Tribunal.  I am solely concerned with the procedures which were followed by the Tribunal.  
	At this stage it is necessary to consider the statutory powers and functions of the Tribunal.  
	Section 6 of the Solicitors (Amendment) Act, 1960, as inserted by Section 16 of the Solicitors (Amendment) Act, 1994, provides for the appointment by the President of the High Court of members of the Tribunal.  Under the section the Tribunal is to consist of not more than ten persons who are practising Solicitors of not less than ten years standing and not more than five persons who are not Solicitors or Barristers and who shall be nominated by the Minister for Justice to represent the interests of the general public.  Such persons are appointed for a period not exceeding five years and are eligible for re-appointment.  Subsection 5 of this section reads as follows:-

	"For the purpose of hearing and determining any application under Section 7 (as substituted by the Solicitors (Amendment) Act, 1994) of this Act, the disciplinary tribunal shall sit in divisions, each of which shall comprise three members of whom one shall be a lay member and two shall be Solicitor members."

	Section 7 of the 1960 Act, as amended by Section 17 of the 1994 Act, then sets out the procedures to be followed by the Tribunal where there has been an allegation of misconduct.  The relevant subsections are as follows:-

	"(1)	An application by a person ..... or by the society for an enquiry into the conduct of a solicitor on the ground of alleged misconduct shall, subject to the provisions of this Act, be made to and heard by the disciplinary tribunal in accordance with rules made under Section 16 of this Act.
	(2)	Where an application in relation to a solicitor is duly made under this section and the disciplinary tribunal, after consideration of the application, are of opinion that there is no prima facie case for inquiry, they shall so inform the Applicant in writing and shall take no further action in relation to the application.
	(3)	Where an application in relation to a solicitor is duly made under this section and the disciplinary tribunal, after consideration of the application, are of opinion that there is a prima facie case for inquiry, the following provisions shall have effect:-
		(a)	they shall proceed to hold an inquiry;
		(b)	on the completion of the inquiry the disciplinary tribunal shall:-
			(i)	embody their findings in a report to the High Court, specifying therein the nature of the application and the evidence laid before them and any other matters in relation to the solicitor (hereinafter referred to in this section as the "respondent solicitor") which they may think fit to report;
			(ii)	in a case where the disciplinary tribunal find that there has been misconduct on the part of the respondent solicitor and they have not made, and do not intend to make, an order under subsection (9) of this section, the disciplinary tribunal shall include in their report their opinion as to the fitness or otherwise of the respondent solicitor to be a member of the Solicitors' profession having regard to the contents of the report and their recommendations as to the sanction which in their opinion should be imposed, and the Society shall bring the report before the High Court.
	(9)	Where, on completion of an inquiry under subsection (3) of this section, the disciplinary tribunal find that there has been misconduct on the part of the respondent solicitor, they shall have power, by order, to do one or more of the following things, namely:-
		(a)	to advise and admonish or censure the respondent solicitor;
		(b)	to direct payment of a sum, not exceeding £5,000, to be paid by the respondent solicitor to the compensation fund;
		(c)	to direct that the respondent solicitor shall pay a sum, not exceeding £5,000, as restitution or part restitution to any aggrieved party, without prejudice to any legal right of such party;
		(d)	to direct that the whole or part of the costs of the society or of any person appearing before them, as taxed by a Taxing Master of the High Court, in default of agreement, shall be paid by the respondent solicitor."
			
The section also contains provisions whereby either the respondent solicitor or the complainant or the Law Society may appeal to the High Court in relation to any sanction imposed under subsection (9)
	More detailed rules in relation to the conduct of an inquiry are set out in the Solicitors (Disciplinary Committee) Rules 1961 (S.I. No. 30 of 1961), which were the rules in force at the relevant time.  These rules provide, inter alia, that if the Tribunal considers that there has been a prima facie case for an inquiry, copies of the application for the inquiry and of the grounding affidavit by the Applicant, and a list of all documents lodged by the Applicant, are to be sent to the solicitor.  The solicitor may then file a replying affidavit and file such documents as he considers relevant.  Rule 7 then provides:-

	"Every such inquiry as is mentioned in the preceding rules shall in the first instance proceed upon the application and the affidavit filed by the Applicant in support thereof and any documents lodged by him and any affidavit which may have been filed and any documents lodged by the solicitor respectively, but at any such inquiry the committee may receive further documentary or oral evidence tendered by either party on such terms as they shall think fit, and may consider any matters referred to in such evidence ..."

	Rule 29 then provides that any party may serve a notice to admit documents or facts on any other party.
	By order dated 31st July, 1996 Mr Justice Kelly gave leave to the Applicant to apply for Judicial Review for an order of certiorari quashing and setting aside the decision of the Tribunal of 6th June, 1996 on the following grounds:-

	"(a)	By reason of the fact that same was made in breach of the requirement that the disciplinary tribunal acted in a judicial manner thereby protecting the Applicant's right to constitutional justice.
	(b)	On the grounds of the procedure of the disciplinary tribunal whereby members of the tribunal may be provided in advance of a hearing with documents and evidence which may be given by the complainant against the solicitor/respondent by reason of the fact that such procedure is not provided for by the provisions of the Solicitors Acts, 1954 to 1994 and the Solicitors (Disciplinary Committee) Rules, 1961 or in the alternative if such procedure is deemed to be provided for by the said Acts and the said rules same is in breach of the requirement for the disciplinary tribunal to act in a judicial manner in order to protect the solicitor/respondent's right to constitutional justice.
	(c)	On the ground that there was no prima facie case to answer by reason of the procedure provided for by Section 7(3) of the Solicitors Act, 1960 ... whereby the Disciplinary Tribunal holds an inquiry in the absence of the solicitor/respondent to decide whether there is a prima facie complaint to answer thereby depriving the solicitor/respondent from challenging the veracity or admissibility of any evidence that may be offered by the complainant against him, the said procedure not being in accordance with the principles of constitutional justice and in particular the principle of audi alteram partem.
	(d)	By reason of the fact that the tribunal had the opportunity to consider documents without reference to and without the consent of the solicitor/respondent and without there having been served pursuant to Rule 29 of the said S.I. 30/1961 any notice to admit documents or facts thereby depriving the Applicant herein from notifying that he had an objection to a document or fact."

	Leave was also given to challenge the constitutionality of Section 7 of the Solicitors Act, 1960 as amended, but this was not proceeded with before me, and accordingly I must assume that the section is in fact constitutional.  Of course, notwithstanding this, the Applicant is entitled to have the procedures provided for in Section 7 conducted in accordance with his constitutional rights.  This was clearly set out by Walsh J. in East Donegal Co-operative Livestock Mart Limited -v- Attorney General [1970] IR 317 at page 341 where he stated:-

	"At the same time, however, the presumption of constitutionality carries with it not only the presumption that the constitutional interpretation or construction is the one intended by the Oireachtas but also that the Oireachtas intended that proceedings, procedures, discretions and adjudications which are permitted, provided for, or prescribed by an Act of the Oireachtas are to be conducted in accordance with the principles of constitutional justice."

	The first matter to be considered is the nature of the procedure provided for in Section 7(2) of the Act of 1960.  This involves the consideration by the Tribunal of each application made to it in relation to a solicitor, and the determination by the Tribunal as to whether there is or is not a prima facie case for an inquiry.  It is quite clear that this procedure is not in itself an inquiry, and I think it is also clear that it is not intended that the solicitor concerned should have any input whatever into the Tribunal's consideration.  It is, in effect a weeding out process to prevent frivolous or vexatious complaints having to be investigated in a full inquiry.  
	There are several similar procedures provided for in the Rules of Court.  Indeed, the primary example is that of proceedings of the very nature of this application, namely Judicial Review proceedings, where, other than in certain cases dealing with planning matters, the Applicant must make an ex parte application to the High Court for leave to issue the proceedings.  This application is made without notice to or knowledge of the proposed respondent.  If the Court decides not to grant leave, the proposed respondent will probably never know the application had been made.  
	I cannot see how this in itself could in any way constitute a breach of natural or constitutional justice.  It is in ease of Solicitors that they do not have to face an inquiry which could be both worrying and time consuming for them where in reality they would have no case to answer.  If the Tribunal finds that there is a prima facie case, then the solicitor is served with all relevant documents, obviously including all documents which the Tribunal had before it when it decided there was a prima facie case.  
	The next point to consider is whether, the Tribunal having considered there was a prima facie case, the procedure which followed was in accordance with constitutional and natural justice.  That procedure is set out in part II of the Solicitors (Disciplinary Committee) Rules, 1961.  It is conceded that the procedure set out in the rules was followed, and the case being made by the Applicant is that this procedure denies him constitutional justice.  
	The procedure is that when the Tribunal is of opinion that a prima facie case has been shown, it fixes a date for an inquiry, and both the Applicant for the inquiry and the solicitor are given not less than fourteen days notice of the date fixed.  The solicitor is then sent copies of the application for the inquiry and of the affidavit and a list of any documents lodged by the Applicant.  He then has ten days in which to file an affidavit in reply, together with such documents as he may wish to rely upon.  In the present case, the solicitor concerned, that is the Applicant in these proceedings, did not file any affidavit in reply or lodge any documents with the Tribunal, but it is acknowledged that he did receive all documents lodged by the Applicant for the inquiry.
	Rule 7 then provides that every inquiry shall in the first instance proceed on foot of the documents which have been filed by both the Applicant for the inquiry and by the solicitor, but further provides that at any inquiry the Tribunal may receive further documentary or oral evidence from either party on such terms as it thinks fit.  Therefore, notwithstanding the fact that the Applicant had not filed any reply, it was still open to him at the hearing to tender evidence.
	The primary objection taken by the Applicant in this case is that, under these provisions, the Tribunal has in fact received, and presumably read, all of the documents relating to the case against him.  This is undoubtedly true, but of course they will also have received and presumably read all documents which he wished to put before the Tribunal.  In relation to the documents which the Tribunal had in deciding the preliminary point, the Applicant complains that some of those documents or the affidavit evidence may not have been strictly admissible, and, as he was not aware that the documents were being considered, he was not able to object to their admissibility.   This is not a case which can be made by the Applicant in relation to the inquiry as opposed to the preliminary consideration by the Tribunal.  Before the inquiry takes place he has seen all the documents and evidence, and has had an opportunity to file a replying affidavit, in which of course he can make whatever points as to the admissibility of the evidence against him as he wishes.  It is noticeable in the present case that the Applicant did not challenge any of the documents or evidence against him in this way.  
	The Applicant's complaint is that the members of the Tribunal who actually conduct the inquiry will have seen all of these documents in advance, and this is not provided for in either the Act or the rules.  I am not at all clear that this actually happened, and Mr Walter Beatty, the chairman of the Tribunal, has stated in his replying affidavit that this was not an accurate description of what happened.  However, there is no doubt that these documents were in the hands of the Tribunal, whether they were read by the three individuals who conducted this inquiry or not.  
	I think that the Applicant has made his arguments in this regard under somewhat of a misapprehension.  The claim appears to be made that all facts and documents to be considered by the Tribunal conducting the inquiry must be proved in oral evidence.  This is not in fact the case, but on the contrary rule 7 of the Solicitors (Disciplinary Committee) Rules, 1961 expressly provides as follows:-

	"Every such inquiry as is mentioned in the preceding rules shall in the first instance proceed upon the application and the affidavit filed by the Applicant in support thereof and any documents lodged by him and any affidavit which may have been filed and any documents lodged by the solicitor respectively, but at any such inquiry the committee may receive further documentary or oral evidence tendered by either party on such terms as they shall think fit, and may consider any matters referred to in such evidence ..."

	 Thus the rules expressly provide that the inquiry is initially to proceed on the basis of the documents which have been lodged.  The validity of this rule has not in any way been challenged in these proceedings.  What is in fact sought is an order of Certiorari based on the grounds that the rules do not provide that members of the Tribunal may be provided in advance of the hearing with documents at evidence.  In my view it is implicit in the rules that the members of the Tribunal will have had these documents in advance, as they have been filed with the Tribunal, and they are the documents on the basis of which the Tribunal initially proceeds.  I certainly think that there is nothing in the rules which could be considered as precluding the members of the Tribunal from having seen these documents in advance.  
	Having said that, in the present case in fact the proceedings were heard on oral evidence, and the applicant was informed that this would be the case, and that there would be an opportunity to cross-examine the complainant.  What actually occurred was that the Applicant's counsel made submissions to the Tribunal similar to those which have been made to me, and which were rejected by the Tribunal, at which stage the Applicant's solicitor and counsel withdrew, but the Tribunal continued to sit and did hear oral evidence from the complainant.  There was, therefore, ample opportunity given to the Applicant to have his counsel cross-examine the complainant.
	I should also say that, in a situation where a Tribunal is to proceed initially on foot of written documentation already submitted to it, with the members of the Tribunal having seen these documents in advance, this would undoubtedly speed up the proceedings, and it is a procedure which at times is certainly followed in the Courts.  Where Court proceedings are to be heard on affidavit, or initially on affidavit, the judge will frequently have seen and read the affidavits and exhibits in advance, but there is never any suggestion that this would prevent him from hearing the case in a judicial manner or that it would in any way prejudice the constitutional rights of any of the parties.  In the present case the Applicant had ample opportunity to make whatever submissions he wished to make and chose not to so. Had he made submissions based on the documents which had been filed, I have no doubt but that the Tribunal would have considered those submissions in a judicial manner and would have ruled on any such submissions with due regard to the Applicant's rights.  What the Applicant is entitled to as a matter of natural or constitutional justice is an opportunity to put forward his case, an opportunity to challenge the case being made against him by the complainant, an opportunity to adduce such evidence as he may wish to adduce.  He had an opportunity to do all of these things.  
	Finally, the Applicant complains that one member of the committee of the Tribunal which decided there was a prima facie case, namely Mr Walter Beatty, also sat on the committee of the Tribunal which held the inquiry.  He says that this was improper and a violation of his rights in that Mr Beatty had already made a decision against him.  It should be said in fairness to everybody that the Applicant is not suggesting any form of wrongdoing or partiality on the part of Mr Beatty, but is attacking the principle that the same person can partake in both decisions.  Again, I think this case is made under a misapprehension of the nature of the preliminary procedure.  It is not an inquiry and it does not in any way decide upon the validity of the complaint made against the Applicant.  It simply decides that there is a serious case put forward by the complainant.  At that stage the Tribunal is not aware of the attitude of the solicitor against whom the complaint is made, and all that it is doing is directing that inquiries should be made into the complaint.  As I said earlier, this is very similar to the situation where a Court gives leave to an Applicant to bring Judicial Review proceedings.  
	It is suggested in the documents on behalf of the Applicant that where a Court decides there is a prima facie case, the same judge should not hear the ultimate case.  There is in fact no such rule, and it frequently happens that a judge who gives leave to bring Judicial Review proceedings may later hear those proceedings, or that a judge who grants an interim injunction may later hear the interlocutory injunction.  When the substantive matter is heard, a very different decision has to be made from the decision on the preliminary matter.  The judge or Tribunal determining the substantive matter decides on all the evidence and the submissions of both parties, and the fact that the same person may have decide there was a prima facie case or serious case to be tried,  only having heard one party's evidence, does not mean that that person is in any way prejudiced or precluded from making what is a different decision on having heard all the evidence.  As a matter of practice it might be best if the preliminary matter and the ultimate hearing were conducted or determined by an entirely different committee of the Tribunal but I certainly do not think that what occurred in this case was in any way an infringement of the Applicant's rights, or that it prejudiced his case in any way.  
	In this regard, the Applicant cited the case of O'Neill -v- Beaumont Hospital Board [1990] ILRM 419.  In that case the Plaintiff sought an injunction restraining the hearing of an inquiry as to whether his service had been satisfactory on the basis that, in the light of their earlier actions, some or all of the defendants holding the inquiry might be biased.  In that case the chairman and two members of the board had already made statements at board meetings, and in relation to these Finlay C.J. said at page 438:-

	"I am satisfied that the statements of opinion made by the chairman of the board in the course of that meeting and recorded in the minutes on any interpretation of them, and I am satisfied I should take the interpretation more favourable where there is ambiguity to the plaintiff than to the defendant, but on any interpretation of those minutes the chairman of the board in the course of that meeting went significantly further than merely endorsing his belief which I have absolutely no doubt was completely honest, as to the appropriate procedure, or his belief as to the rectitude or correctness in the sense of propriety of the action of the Chief Executive Officer, but that it also went as far as to express in a very definite fashion the exercise of a judgment on the merits of the contested questions of fact which will go to determine the appropriate certificate to be issued."

	And on page 439 he said:-

	"In addition, I am satisfied on a consideration of the minutes that there are two other persons whose statements recorded in the minutes are such that they too could be construed, though it may be somewhat more ambiguous than the position of the chairman, as having committed themselves to a firm judgment on the actual facts as distinct from the correctness of the procedure or even the correctness of the Chief Executive Officer and what he believed to be the facts."

	The Chief Justice expressed his views as to the test to be applied as follows:

	 "I am satisfied that the proper standard to be applied by this Court which does not appear to be wholly different, though it may be subtly different, from the standard which was applied in the High Court, is the question as to whether a person in the position of the Plaintiff, Mr O'Neill, in this case, who is a reasonable man, should apprehend that his chance of a fair and independent hearing of the question as to whether his services should be continued or terminated does not exist by reason of the pre-judgment of the issues which are involved in that by the members of the board.  That in my view is the proper test to be applied in this case, and it fulfils what I understand from the authorities to be the test which has been accepted in this country and by this Court in relation to a case of this description."

	I do not consider that the Applicant in this case, looked at objectively, which appears to be the correct test, should apprehend that his chance of a fair and independent hearing before the Tribunal does not exist because there has been pre-judgment of the issues involved by members of the Tribunal.  Even assuming that all the members were the same as those that took part in the preliminary procedure, there is no evidence to suggest that the Applicant would not get a fair and independent hearing, or to suggest that there has been a pre-judgment of the issues, other than as to whether there was a prima facie case.  It is to be noted in the O'Neill case that the outcome was that an injunction was granted restraining the three named persons from sitting on the board to consider the plaintiff's case, but that it was granted by reason of the expressed views of those three members of the board as to the position of the plaintiff, in other words there was evidence of facts in the particular case which could give rise to the fear that there would not be fair and independent hearing.  There is no such evidence in this case, and I would emphasise that it was never suggested that Mr Beatty might in any way be consciously biased.
	Finally, for completeness sake, I should deal with the reference which has been made on behalf of the Applicant to the fact that the Solicitors (Disciplinary Committee) Rules, 1961 provide for the service of a notice to admit documents or facts, and that no such notice was served in the present case.  I confess I find any argument based on this extremely difficult to follow.  The rule is very similar to that contained in the Superior Court Rules, which allows for service of a notice to admit facts or documents, but certainly does not make it mandatory.  The purpose of such a notice is to encourage parties to try to shorten disputes by having admissions made which would avoid formal evidence being given.  The suggestion seems to be being made by the Applicant that this procedure is designed in some way to put him on notice of facts or documents, which is not the case.  In any event, the Applicant was in fact put on notice of all relevant facts and documents, which were served on him in accordance with the rules, and I cannot see what difference a service of a notice to admit would have made.  If the Applicant wished to challenge the admissibility of any of this evidence or documents, he was perfectly free to do so by filing an affidavit and other documents on his own behalf, which he chose not to do.  
	Accordingly, I would dismiss this application.