The Law Society of Ireland v Coleman (Approved) [2020] IEHC 381 (07 September 2020)
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APPROVED
THE HIGH COURT
[2020] IEHC 381
2010 No. 65 SA
2010 No. 66 SA
IN THE MATTER OF SECTION 8 OF THE SOLICITORS (AMENDMENT) ACT 1960
(AS AMENDED)
BETWEEN
THE LAW SOCIETY OF IRELAND
AND
DANIEL COLEMAN
APPLICANT
RESPONDENT
JUDGMENT of Mr. Justice Garrett Simons delivered on 7 September 2020
INTRODUCTION .................................................................................................................................................. 3
PART I ................................................................................................................................................................... 5
PROCEDURAL HISTORY ................................................................................................................................... 5
PART II .................................................................................................................................................................. 8
ROLE OF THE HIGH COURT ............................................................................................................................. 8
OVERVIEW OF DISCIPLINARY PROCEDURES ............................................................................................. 8
SUBMISSIONS ON BEHALF OF THE SOLICITOR ON HIGH COURT’S ROLE ......................................... 16
FINDINGS OF THE COURT: SECTION 8 JURISDICTION............................................................................. 19
PART III............................................................................................................................................................... 23
CONVEYANCING TRANSACTION / FAIRVIEW CONSTRUCTION LTD .................................................. 23
ADMISSIONS OF FACT .................................................................................................................................... 29
VOLTE FACE BY SOLICITOR .............................................................................................................................. 33
FINDINGS OF THE COURT: FAIRVIEW CONSTRUCTION LTD ................................................................ 34
SOLICITOR BOUND BY ADMISSIONS OF FACT ..................................................................................................... 34
ALLEGED FAILURE TO PLEAD DISHONESTY ....................................................................................................... 37
SUBMISSION THAT THERE HAD BEEN PROCEDURAL UNFAIRNESS ...................................................................... 41
MR. DEVANEY AS A WITNESS ........................................................................................................................... 46
HEARING ON 26 NOVEMBER 2009 .................................................................................................................... 48
MANUSCRIPT NOTES ......................................................................................................................................... 49
NO REDACTION NEEDED
2
RELIANCE ON ADDITIONAL AFFIDAVITS.................................................................................................. 50
AFFIDAVIT OF MR. MICHAEL O’DONNELL ....................................................................................................... 51
AFFIDAVIT OF MR. PATRICK KELLY (FORMERLY OF ACC BANK) .................................................................... 52
SUMMARY ......................................................................................................................................................... 53
UNDERTAKING TO CREDIT UNION.............................................................................................................. 54
SOLICITOR’S POSITION................................................................................................................................... 60
SOLICITOR’S CHALLENGE TO THE FINDINGS OF MISCONDUCT ......................................................... 63
(A).
FAILURE TO GRANT AN ADJOURNMENT........................................................................................... 63
(B).
ALLEGED FAILURE TO SUBMIT POINTS OF DEFENCE ........................................................................ 63
(C).
ALLEGED FAILURE TO ADEQUATELY INVESTIGATE THE COMPLAINT ............................................... 63
(D).
ALLEGED MATERIAL NON-DISCLOSURE LED TO ERRORS OF FACT THAT BECAME ERRORS OF LAW .. 64
(E).
ALLEGED FAILURE TO APPLY ANY TEST FOR RELIANCE ON THE UNDERTAKING .............................. 65
(F).
ALLEGED FAILURE TO QUANTIFY THE LOSS IN MAKING AN ORDER FOR RESTITUTION ..................... 65
FINDINGS OF THE COURT RE: UNDERTAKING TO CREDIT UNION...................................................... 66
ADMISSION OF MR. KAVANAGH’S AFFIDAVIT ........................................................................................ 72
INCONSISTENCY WITH EARLIER JUDGMENT ........................................................................................... 73
SERVICE OF REPORT OF THE DISCIPLINARY TRIBUNAL....................................................................... 75
PART IV............................................................................................................................................................... 77
APPROPRIATE SANCTION .............................................................................................................................. 77
FINDINGS OF THE COURT ON APPROPRIATE SANCTION....................................................................... 79
CONCLUSION AND PROPOSED FORM OF ORDER..................................................................................... 82
3
INTRODUCTION
name off the Roll of Solicitors. The application is brought at the instance of the Law
Society pursuant to section 7(3)(c)(iv) of the Solicitors (Amendment) Act 1960 (as
amended). The High Court’s jurisdiction is set out at section 8 of the same Act. The
“strike off” application is made on foot of two separate recommendations of the
Disciplinary Tribunal of the Law Society. These recommendations had been made in the
first quarter of 2010. The explanation for the lapse of time between then and now is as
follows. An earlier order of the High Court (Kearns P.) striking off the solicitor in July
2010 has since been overturned by the Supreme Court by order dated 1 May 2019, and
the “strike off” application has been remitted to the High Court. The application had
been assigned to me by the then President of the High Court (Kelly P.) for hearing in
March 2020. The hearing had been disrupted by the public health restrictions introduced
in respect of the coronavirus disease pandemic.
Solicitor seeking an extension of time within which to bring a statutory appeal against
the findings of the Disciplinary Tribunal. The application for an extension of time has
been refused for the reasons set out in detail in a judgment delivered on 7 April 2020,
Coleman v. Law Society of Ireland [2020] IEHC 162. Given the significant overlap
between the issues which fall for determination as part of the “strike off” application, and
the earlier application for an extension of time, the present judgment should be read in
conjunction with the earlier judgment of 7 April 2020.
summarised. Secondly, the precise role of the High Court under section 8 of the
Solicitors (Amendment) Act 1960 will be considered. Consideration of this issue is
4
necessary in circumstances where there is some disagreement between the parties as to
the extent to which the High Court is required to review the findings of the Disciplinary
Tribunal. This disagreement turns, to an extent, on the distinction between (i) a “strike
off” application under section 8, and (ii) a statutory appeal under section 7(13) of the
Solicitors (Amendment) Act 1960. Thirdly, the question of whether there is a sustainable
basis for the findings of the Disciplinary Tribunal will be examined. Finally, the question
of the appropriate sanction will be addressed.
5
PART I
PROCEDURAL HISTORY
7 April 2020, Coleman v. Law Society of Ireland [2020] IEHC 162. Insofar as relevant
to the “strike off” application, the relevant procedural steps can be summarised as
follows.
Disciplinary Tribunal following two hearings in February 2010. In each instance, the
Disciplinary Tribunal recommended that the Solicitor’s name be struck off the Roll of
Solicitors. The Law Society made application to the High Court pursuant to
section 7(3)(c)(iv) of the Solicitors (Amendment) Act 1960 in July 2010.
Disciplinary Tribunal. The matter thus came before the High Court solely on the basis
of the Law Society’s application seeking inter alia an order striking off the Solicitor,
i.e. there was no parallel appeal by the Solicitor before the High Court. The consequence
of this is that the ambit of the submissions which the Solicitor would have been entitled
to make to the High Court was more limited than had he brought an appeal.
26 July 2010, the Solicitor applied for an adjournment in order to instruct counsel. The
President refused the application for an adjournment, and, having heard submissions,
made an order striking the name of the Solicitor off the Roll of Solicitors. An order was
also made directing the Solicitor to pay the sum of €320,000 in restitution to St. Jarlath’s
Credit Union, Tuam.
off. This appeal was filed on 24 August 2010. (To avoid confusion, the reader should
6
bear in mind that the Supreme Court appeal is separate and distinct from the statutory
appeal against the findings of misconduct by the Disciplinary Tribunal in respect of
which the Solicitor has since applied for—but has been refused—an extension of time).
of Appeal, and at a time when the Supreme Court, being the only appellate court, had a
very heavy case load. The appeal was ultimately heard and determined in 2018. (The
order of the Supreme Court was perfected on 1 May 2019). The Solicitor has been
successful in his appeal, and the order striking his name from the Roll of Solicitors has
been vacated. The “strike off” application has been remitted to the High Court for
within which to bring an appeal to the High Court against the findings of misconduct of
the Disciplinary Tribunal. The application for an extension of time was listed for hearing
before the High Court together with the Law Society’s remitted application for an order
striking off the Solicitor.
agreed that the application for an extension of time would be heard first, and that the
court would deliver a written judgment on that application in advance of any judgment
in respect of the “strike off” application. It was further agreed that, to make efficient use
of court time, the two applications would be heard back-to-back in a single hearing
scheduled over three days. Put otherwise, rather than break off the hearing to prepare a
written judgment on the application for an extension of time to appeal, the court moved
directly to hearing the Law Society’s application. At the request of the parties, separate
judgments are to be delivered in respect of the two applications. This is to allow the
7
parties to consider their options following the delivery of the (first) judgment on the
application for an extension of time to appeal.
the (first) judgment would be delivered. Unfortunately, matters were overtaken by
events, and, as a result of the restrictions on court sittings imposed as part of the measures
designed to contain the spread of coronavirus, it was not possible to complete the hearing
of the second application in March 2020. The parties subsequently agreed, however, that
the court should deliver its judgment on the extension of time application,
notwithstanding that the submissions had not yet been completed in the “strike off”
application.
refused for the reasons detailed in a written judgment delivered on 7 April 2020,
application could be addressed by way of supplemental written submissions. Both parties
agreed that there was no necessity for any further oral submissions. The court should,
instead, determine the application on the basis of the oral submissions made in March
2020, and the supplemental written submissions filed. The Solicitor filed his submissions
on 12 June 2020, and the Law Society filed its submissions on 3 July 2020.
8
PART II
ROLE OF THE HIGH COURT
the Solicitors (Amendment) Act 1960. In particular, it is necessary to consider the extent
to which the High Court is required to review the findings of misconduct made by the
Disciplinary Tribunal.
High Court in the context of a “strike off” application under section 8, and (ii) its role in
the context of a statutory appeal under section 7(13) of the Solicitors (Amendment) Act
roles. It may assist the reader in understanding this disagreement to pause here, and to
provide an overview of the disciplinary procedures.
OVERVIEW OF DISCIPLINARY PROCEDURES
administration of justice within the meaning of Article 34 of the Constitution of Ireland.
(See In re The Solicitors Act 1954 [1960] I.R. 239). For this reason, the final decision
on the imposition of such a sanction on a solicitor in disciplinary proceedings is
exclusively a matter for the High Court (rather than for the Disciplinary Tribunal). Save
in circumstances where the Disciplinary Tribunal proposes to deal with a disciplinary
breach by the imposition of what might be described as “minor” sanctions under
section 7(9) of the Solicitors (Amendment) Act 1960, the Disciplinary Tribunal is
required to bring the matter before the High Court. More specifically, a report in
prescribed form is to be delivered to the President of the High Court by the Registrar of
9
the Disciplinary Tribunal. On the facts of the present case, the Disciplinary Tribunal had
recommended that the Solicitor’s name be struck off the Roll of Solicitors.
application is brought pursuant to section 7(3)(c)(iv) of the Solicitors (Amendment) Act
1960. The High Court’s jurisdiction is prescribed under section 8 of the same Act. I will
refer to this application by the shorthand “the ‘strike off’ application” in circumstances
where that is the actual order sought by the Law Society in this case. This shorthand
would not be appropriate in all cases, however, in that an application pursuant to section
7(3)(c)(iv) will not always seek a “strike off” order, but might seek a lesser form of
sanction instead.
Act 1960 was the procedural mechanism by which the disciplinary proceedings against
the Solicitor had initially come before the High Court in July 2010.
can come before the High Court. More specifically, a respondent solicitor, against whom
a finding of misconduct has been made by the Disciplinary Tribunal, has a statutory right
of appeal to the High Court against that finding. The appeal is provided for under
section 7(13) of the Solicitors (Amendment) Act 1960, as follows.
(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.
Disciplinary Tribunal. (This is so unless the respondent solicitor contends for, and the
10
Law Society concurs in, a less than full rehearing). The appeal is brought by notice of
motion returnable to the President of the High Court.
appeal, there will be two parallel motions before the High Court. First, a motion on
behalf of the Law Society seeking such order under section 8 of the Solicitors
(Amendment) Act 1960 as may be deemed by the Law Society to be appropriate and
reasonable having regard to the report and recommendation of the Disciplinary Tribunal.
Secondly, a motion on behalf of the respondent solicitor grounding their appeal.
Rules of the Superior Courts.
9.(a)(i) Where the respondent solicitor is appealing to the Court against such
finding or findings of misconduct on his or her part, the President
shall not thereupon enter upon a hearing of the motion of the Society
but shall first direct that the appeal shall proceed as a full rehearing
of the evidence laid before the Disciplinary Tribunal, unless a less
than full rehearing 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.
(ii) Where an appeal before the President proceeds as provided for in sub-
paragraph (i) of this paragraph of this rule, the President shall
thereafter proceed to deal with the motion of the Society having
regard to the outcome of such appeal.
first, ahead of the Law Society’s application. The Law Society’s application will then be
dealt with having regard to the outcome of the appeal.
application, has recently been considered by the Court of Appeal in Law Society of
Ireland v. O’Sullivan [2018] IECA 228. In particular, the Court of Appeal addressed the
implications of a respondent solicitor having failed to bring an appeal.
11
“At this stage, I should say that Mr O’Sullivan did not avail of his
statutory right of appeal to the High Court against the Tribunal’s
findings, as provided for in s. 7(13) of the 1960 Act, as substituted by
s. 17 of the Solicitors (Amendment) Act 1994. His failure to appeal
against the findings of the Tribunal means that he could not challenge
them thereafter and, in particular, when the Society’s application to
the High Court for the imposition of the recommended sanctions
came before the High Court. In the event that Mr O’Sullivan had
chosen to lodge an appeal, that appeal would have been determined
ahead of the Society’s application for the imposition of the
recommended sanctions.”
paragraphs 25 and 26). The gravamen of the respondent solicitor’s complaint had been
that it was incumbent upon the High Court to make its own findings of misconduct by
hearing oral evidence, rather than simply accepting the Disciplinary Tribunal’s findings
of professional misconduct. The Court of Appeal rejected this argument as
fundamentally flawed.
“There is a fundamental flaw in [the respondent solicitor’s] argument
in this regard. It is that he failed to avail of his entitlement to a
statutory appeal against the findings of misconduct by the Tribunal
in accordance with s. 7(13) of the 1960 Act. His failure to adopt that
course means that the findings made by the Tribunal are final and
conclusive. They may not be challenged on the merits. Had [the
solicitor] sought to appeal the findings as he was entitled to do, that
re-hearing before the High Court would have taken place ahead of the
Law Society’s present application. [The solicitor] could on that
appeal have cross-examined any witnesses called by the Society. By
not bringing such an appeal, [the solicitor] cannot now be heard to
complain that on the Society’s application to the High Court for an
order imposing sanctions, he had had no opportunity to cross-
examine witnesses. […]”.
judgment).
“When the High Court hears the Society’s application for sanctions
to be imposed pursuant to s. 7(9) of the 1960 Act its function is
limited to the question of sanction. By that time, the merits of the
complaint of misconduct and the findings of the Tribunal or the High
Court (in the event of an appeal) have been determined. The High
12
Court is not obliged to impose the sanctions that the Tribunal has
recommended in its Report, and may impose whatever sanction
available under the legislation that it considers appropriate to the
misconduct found.”
considered even more recently by the Supreme Court in Law Society of Ireland v.
Coleman [2018] IESC 80. This judgment is directly relevant in that it has been delivered
in the context of these very proceedings. This is the judgment on the Solicitor’s
successful appeal against the order of the High Court (Kearns P.) of 26 July 2010 striking
his name off the Roll of Solicitors.
that the decision to strike a solicitor’s name off the Roll of Solicitors involves the
administration of justice. It is essential, therefore, that the High Court must conduct an
independent adjudication of the application before it. The fundamental role of the High
Court is explained as follows at paragraphs 58, and 60 to 61, of the judgment.
“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.
[…]
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
13
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.
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.”
the Law Society that the absence of an appeal by a respondent solicitor relieved the High
Court of its obligation to ensure that the findings of misconduct have a “sustainable
basis”. See paragraph 90 of the judgment as follows.
“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.”
paragraph 92 of the judgment).
“[…] 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.”
14
[2014] IESC 48; [2015] 1 I.R. 516, makes the following observations on the nature of a
respondent solicitor’s right of appeal (at paragraph 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 [in Fitzgibbon v. Law
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.”
disharmony between the judgment of the Supreme Court in Coleman and that of the Court
of Appeal, some six months earlier, in O’Sullivan. In particular, the parties addressed
me on whether the latter judgment treated the failure of a respondent solicitor to appeal
as imposing much greater constraints on the arguments which could be raised in
opposition to the Law Society’s section 8 application.
judgments in circumstances where the Court of Appeal judgment had been concerned
with findings of primary fact (which can only be set aside on appeal), whereas the
15
Supreme Court judgment is concerned with the separate question of whether findings are
legally sustainable.
between the two. Both judgments acknowledge that the High Court will have a wider
remit in cases where the respondent solicitor has brought an appeal against the findings
of misconduct. The Supreme Court in Coleman expressly refers to the wording of
Order 53, rule 9 of the Rules of the Superior Courts, and to its own judgment in
Fitzgibbon v. Law Society of Ireland [2014] IESC 48; [2015] 1 I.R. 516. There is
nothing in the judgment in Coleman which seeks to assimilate an application by the Law
Society with an appeal by a respondent solicitor, nor to collapse the distinction between
the two. Rather, the import of the judgment in Coleman is that, even in the context of its
more limited function on an application by the Law Society, the High Court must satisfy
itself that the findings of misconduct have a “sustainable basis”. This language is
indicative of a form of judicial review, and one which falls far short of a full appeal of
the type provided for under section 7(13) of the Solicitors (Amendment) Act 1960 and
Order 53, rule 9 of the Rules of the Superior Courts.
by the facts of O’Sullivan. The respondent solicitor there wished to cross-examine before
the High Court witnesses who had given evidence before the Disciplinary Tribunal. The
Court of Appeal held that this could only be done in the context of a statutory appeal
against findings of misconduct made by the Disciplinary Tribunal.
[2020] IECA 77 (unreported, 26 March 2020), confirms that the type of argument which
may be advanced to the High Court in solicitors disciplinary proceedings will depend on
the precise procedure invoked. On the facts of Sheehan, the Court of Appeal held that a
16
challenge to the jurisdiction of the Disciplinary Tribunal to entertain a complaint should
have been brought by judicial review, and not by way of appeal under section 7(11) of
the Solicitors (Amendment) Act 1960. This judgment is not directly on point, as it
concerns a different form of statutory appeal (an appeal against a minor sanction under
section 7(11)), but it is nevertheless indicative of the general principle that the manner in
which a matter comes before the High Court will influence the range of arguments which
may be made.
SUBMISSIONS ON BEHALF OF THE SOLICITOR ON HIGH COURT’S ROLE
on his behalf. The Solicitor does not seek a de novo hearing or a fresh adjudication on
the alleged misconduct. Nor does he seek to set aside any findings of primary fact.
Rather, he submits that the findings of misconduct have no “sustainable basis” by reason
of errors of law and/or fact.
of Ireland v. Coleman [2018] IESC 80. It is said that the appropriate test is whether the
findings of the Disciplinary Tribunal are sustainable in law. Counsel also draws attention
to passages in the Supreme Court judgment where McKechnie J. appears to envisage that
additional evidence can be adduced on a “strike off” application. (See, in particular,
paragraphs 58, 60 and 92 of the judgment).
particular, the following passages from the judgment of the English High Court in
“An appeal is by way of review, not a rehearing (CPR rule 52.21(1)):
it follows that the court will only allow an appeal where the decision
is shown to be ‘wrong’ (CPR rule 52.21(3)(a)). This can encompass
an error of law, an error of fact or an error in the exercise of
17
discretion; but it is by now well-established that an appellate court
must exercise particular caution and restraint in interfering with
findings of fact, particularly where the court or tribunal has seen and
evaluated the evidence of the witnesses and/or where such findings
have been made by a specialist tribunal (AH (Sudan) v Secretary of
at [30] per Baroness Hale of Richmond). Specifically in the context
of an appeal against a decision of the Solicitors Disciplinary Tribunal,
(Admin) at [64]-[68], this court recently reviewed many of the
relevant authorities, culminating in the citation of the following
passages in Henderson v Foxworth Investments Limited
support of the proposition that the court will only interfere with a
finding of fact where the court or tribunal below has gone ‘plainly
wrong’:
‘It does not matter, with whatever degree of certainty, that the
appellate court considers that it would have reached a
different conclusion. What matters is whether the decision
under appeal is one that no reasonable judge could have
reached….’
‘It follows that, in the absence of some other identifiable
error, such as (without attempting an exhaustive account) a
material error of law, or the making of a critical finding of
fact which has no basis in the evidence, or a demonstrable
misunderstanding of relevant evidence, or a demonstrable
failure to consider relevant evidence, an appellate court will
interfere with the findings of fact made by a trial judge only
if it is satisfied that his decision cannot reasonably be
explained or justified.’”
under section 8, between the setting aside of primary findings of fact, on the one hand,
and a challenge against errors, on the other. The Solicitor contends that the findings of
the Disciplinary Tribunal ought not to be upheld on the latter basis.
paragraph 15) as follows.
“The law reports and texts are replete with formulations and
manifestations of this right. For present purposes, and bearing in
mind the doctrine of precedent, we focus upon two of the leading
18
decisions of the superior courts. The first of these is R – v – Chief
Constable of Thames Valley Police, ex parte Cotton [1990] IRLR 344
It may be observed that, in both the reported cases and the
leading text books, this decision has not received the prominence it
plainly merits. This might be attributable to its appearance in one of
the minority series of law reports. Having said that, Cotton has been
recently quoted with approval and applied by Moses LJ in
McCarthy v Visitors to Inns of Court and Bar Standards Board
Cotton, the issue, in a nutshell, was whether the decision of the Chief
Constable to dismiss a police officer was vitiated by procedural
unfairness on account of inadequate disclosure to the officer of the
case against him. We distill the following principles from Cotton:
(i) The defect, or impropriety, must be procedural in nature.
Cases of this kind are not concerned with the merits of the
decision under review or appeal. Rather, the superior court’s
enquiry focuses on the process, or procedure, whereby the
impugned decision was reached.
(ii) It is doctrinally incorrect to adopt the two stage process of
asking whether there was a procedural irregularity or
impropriety giving rise to unfairness and, if so, whether this
had any material bearing on the outcome. These are, rather,
two elements of a single question, namely whether there was
procedural unfairness.
(iii) Thus, if the reviewing or appellate Court identifies a
procedural irregularity or impropriety which, in its view,
made no difference to the outcome, the appropriate
conclusion is that there was no unfairness to the party
concerned.
(iv) The reviewing or appellate Court should exercise caution in
concluding that the outcome would have been the same if the
diagnosed procedural irregularity or impropriety had not
occurred.”
(Admin) (at paragraph 55).
“This appeal proceeds by way of review, and not rehearing. The
Tribunal was a specialist tribunal, which had the particular advantage
of hearing and seeing all of the evidence over many days.
Interference with its findings will not be made lightly, and will be
justified only if those findings are ‘plainly wrong’, or there has been
some serious procedural irregularity – see Barnett v SRA
19
under section 8(1)(b) of the Solicitors (Amendment) Act 1960, as follows.
(b) the High Court may, if it thinks fit, remit the case to the
Disciplinary Tribunal to take further evidence for submission
to it and to make to it a supplementary report, and the Court
may adjourn the hearing of the matter pending the submission
to it of such further evidence and the making of such
supplementary report;
FINDINGS OF THE COURT: SECTION 8 JURISDICTION
detail at paragraphs 25 to 38 above—that there continues to be a distinction between the
High Court’s role under section 8 and its role in the context of a statutory appeal under
section 7(13) of the Solicitors (Amendment) Act 1960. There is nothing in the judgment
in Coleman which seeks to collapse the distinction between the two forms of procedure.
Rather, the import of the judgment in Coleman is that, even in the context of its more
limited function under section 8, the High Court must satisfy itself that the findings of
misconduct have a “sustainable basis”. This language is indicative of a form of judicial
review which falls short of a full appeal by way of rehearing.
as opposed to a statutory appeal, a respondent solicitor must demonstrate that the finding
does not have a sustainable basis. If and insofar as a respondent solicitor seeks to
question the merits of the decision of the Disciplinary Tribunal, it will be necessary to
satisfy the High Court that no tribunal, acting reasonably and applying the correct legal
principles, could have reached the finding on the basis of the materials before it. It is not
enough that the High Court, had it been determining the matter de novo, might have
20
reached a different decision. The actual findings of misconduct must be such that they
lie outside the range of reasonable or rational decisions which could have been reached
by the tribunal. The Disciplinary Tribunal will have had the benefit of hearing the oral
evidence of the witnesses and will have been in a position to assess their demeanour. It
will only be in exceptional cases that the High Court will set aside findings of primary
fact.
the basis of an alleged unfairness or on the basis of an error of law. This is the approach
adopted by the Solicitor in the present case. Counsel has disavowed any attempt to
challenge primary findings of fact. Rather, it is asserted that the Disciplinary Tribunal
erred in law in attaching too much weight to admissions made by the Solicitor, and failing
to reconcile these with what is said to be uncontroverted evidence to the opposite effect.
It is also asserted that the findings of misconduct in the second set of disciplinary
proceedings are vitiated by procedural unfairness, and, in particular, a failure to have
regard to all relevant documentation.
(Amendment) Act 1960 to set aside findings of misconduct if a respondent solicitor can
establish that the disciplinary proceedings had been unfair or that the tribunal misdirected
itself in law. This is subject to the caveat that the unfairness or error of law alleged must
have been material, i.e. such that it was capable of affecting the ultimate outcome of the
disciplinary proceedings. This does not mean that the respondent solicitor must prove
that the outcome would have been different but for the unfairness or error of law. Rather,
it means that a respondent solicitor cannot seek to set aside the findings on the basis of
procedural missteps or legal errors which are not likely to have affected the outcome.
This limitation on the section 8 jurisdiction does not cause any injustice to the respondent
21
solicitor: they have a full right of appeal against the findings pursuant to section 7(13)
and this provides a full remedy against any such procedural missteps or legal errors.
solicitor to introduce further evidence in the context of a “strike off” application. The
general rule is that if a respondent solicitor wishes to introduce evidence or to cross-
examine witnesses, then they should invoke their statutory right of appeal. (See, for
example, O’Sullivan). For the purposes of section 8 of the Solicitors (Amendment) Act
1960, the High Court’s review of the sustainability of findings of misconduct will
normally be carried out by reference solely to the materials which had been before the
Disciplinary Tribunal. This is one of the essential differences between a review and a
full appeal by rehearing.
further evidence in the context of its review, but only where that evidence goes to the
narrow issue of the sustainability of the findings of misconduct. One example of
circumstances where further evidence will be allowed is where relevant evidence, which
could not have been obtained by the respondent solicitor, exercising reasonable diligence,
prior to the hearing before the Disciplinary Tribunal, has emerged subsequently. By
contrast, it will rarely, if ever, be open to a respondent solicitor to adduce further evidence
from a witness who actually gave evidence before the Disciplinary Tribunal. All relevant
evidence should be adduced from the witness at the time, and a second bite at the cherry
will not normally be allowed. I will return to discuss the question of further evidence in
context. (See, in particular, paragraphs 145 to 153, and paragraphs 211 to 216, below).
certainly of interest, my conclusions above are premised on the detailed case law from
the Supreme Court and Court of Appeal. The statutory regime governing disciplinary
22
proceedings in the neighbouring jurisdiction is very different from that under the
Solicitors (Amendment) Act 1960. Given these very real differences, it is, I hope, not
unnecessarily jingoistic to say that it is preferable to rely on domestic case law.
23
PART III
CONVEYANCING TRANSACTION / FAIRVIEW CONSTRUCTION LTD
order of the Disciplinary Tribunal is dated 18 March 2010.
effect that the Solicitor had:
(a) Caused or allowed the name of Michael O’Donnell, solicitor, to be
written on a contract for sale dated 19 May 2004 without the authority
of Michael O’Donnell.
(b) Caused or allowed a fictitious contract dated 19 May 2004 to come
into existence and purportedly made between the Complainant’s
clients and Michael O’Donnell solicitor in trust for the purpose of
misleading ACC bank into advancing monies to Fairview
Construction Limited knowing that the sale of the land from Fairview
Construction Limited had not closed and that the dwelling units had
not been constructed.
(c) Destroyed a file, consisting of merely three contracts, relating to the
contested contract dated 19 May 2004 without the express or implied
instructions of both parties and in particular the Complainant’s
clients, Shaun Heffernan and Sean Rowlette.
(d) Acted for both the vendor/builder, Fairview Construction Limited,
and purchasers of thirteen newly constructed houses at Shramore,
Galway Road, Tuam, Co. Galway, 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.
above (the sub-paragraphs are lettered (b), (c), (d) and (g) in the formal order). The
formal order retains the original lettering as per the affidavit setting out the complaints,
and the “gaps” in the sequence of lettering reflects the fact that certain additional
complaints, which had been made against the Solicitor, were either withdrawn, or, in one
instance, dismissed).
24
in May 2004. The lands in sale had the benefit of planning permission for residential
development, and the purported sale related to thirteen units to be constructed on the
lands. The lands had recently been purchased by a company known as Fairview
Construction Ltd. The directors of this company were Shaun Heffernan and Sean
Rowlette (“the directors”). Fairview Construction Ltd had obtained a loan facility from
ACC Bank to allow it to complete its purchase of the lands. The Solicitor had been
providing legal assistance to the company in respect of its dealings with ACC Bank.
dated 26 April 2005 in the Solicitor’s affidavit of 12 June 2009, but this appears to be in
error and is inconsistent with the dates on the exhibited documents). The loan facility
was subject to a number of special conditions. Relevantly, special condition 11 provided
as follows.
“11. Prior to drawdown of any funds from Facility B (€27,000 for
Servicing i.e. 70% of total servicing cost and €340,000 to
build Block 1, comprising nine units i.e. 100% of build cost)
solicitor must confirm in writing that unconditional and
irrevocable contracts with deposits paid, are in place for
5 units totalling min. Net €665,000 for units in Block 1.”
ACC Bank on behalf of Fairview Construction Ltd confirming that five houses “have
been sold”.
had been entered into between Fairview Construction Ltd, as vendor, and a solicitor
acting on behalf of an undisclosed principal as purchaser. Three contracts for sale, in
accordance with the Law Society’s General Conditions of Sale, had purportedly been
entered into in respect of the lands on 19 May 2004. It appears that the original contracts
for sale have all been destroyed, but photocopies of two of the three contracts had been
25
retained by the directors of Fairview Developments Ltd., and had been exhibited before
the Disciplinary Tribunal.
identity of the purchaser is not disclosed. Instead, the contracts for sale had, purportedly,
been signed by another solicitor, Mr. Michael O’Donnell, as purchaser “in trust”.
Mr. Mark Devaney. However, Mr. Devaney’s involvement had not been disclosed to the
directors until much later. (Mr. Devaney had, in fact, been the person who had originally
sold the lands to Fairview Construction Ltd).
sale, namely Fairview Construction Ltd. The Solicitor had also been acting, for a time,
on behalf of the purported purchaser, Mr. Devaney. The Solicitor maintains that
thereafter he had arranged for Mr. O’Donnell to act on behalf of Mr. Devaney.
the Solicitor had initially explained his involvement in the signing of the contracts for
sale as follows.
“Mr. Coleman [the Solicitor] was questioned on the contract for the
sale of the property on behalf of Fairview Construction Limited. He
agreed that he had drawn up three contracts for sale relating to the
portion of the site itself, and two subsequent contracts relating to the
sale of the services and amenities. The solicitor was asked who were
the purchasers. Mr. Coleman replied that Behy Downs and Mr.
Devany together with other purchasers. Mr Coleman was asked in
connection with the contract which was signed by Michael
O’Donnell whether he witnessed the signature. He informed the
Committee that he had witnessed it. Mr Coleman then informed the
Committee that he had asked Mr O’Donnell if he would ask (sic) as
agent for Mr. Devany and the solicitor subsequently signed Mr
McDonald’s (sic) name with this gentleman’s consent which he
received over the phone. When Mr Coleman was asked why he had
asked Mr O’Donnell to sign the contract he said he did so because he
knew he could not act for both parties.”
26
sale. Nor did he authorise anybody to place or sign his signature on the contracts for
sale. Mr. O’Donnell gave evidence to this effect at the hearing before the Disciplinary
Tribunal. The transcript of the hearing before the Disciplinary Tribunal indicates that his
evidence was unequivocal, notwithstanding that he had been cross-examined on it at
length by the barrister then representing the Solicitor. (See transcript of hearing before
Disciplinary Tribunal on 10 February 2010, pages 59 to 84).
transaction without having had sight of the title.
“No, in fairness Mr. Coleman, he may have asked me, not in this
book, that if he was caught in a situation where he was acting for
developers would I act as agent or could he make a referral of clients
if there was a conflict of interest and, of course, I would have said yes
if there was no issues or any problems involved in. I didn’t know
anything at all got to do about this particular property or transaction
and I would never give permission to someone unless I had a Booklet
of Title or was doing my own investigation into what was going on.
In fact, I don’t think that I have ever given carte blanche authorisation
to anyone to do anything which would commit people to very serious
transactions.”
for sale had purportedly been signed by him, was so concerned about this that he
immediately wrote to the Solicitor by letter dated 6 April 2005 in the following terms.
“The above named has handed me copies of a purported contract with
my name appearing on it as purchaser in Trust and what purports to
be my signature appended to same. I have no knowledge whatsoever
of this transaction and it was quite a surprise to me when Mr Rowlett
attended at my office this morning in a very aggressive and abusive
manner.
He maintains that he is at a considerable financial loss arising from
these transactions. It appears from my meeting with Mr Rowlett that
he is going to take matters further on the issue regarding the contract
which was purportedly signed by me on Trust for a third party.
On reading the contract and comparison of the signatures I had no
involvement therein and did not sign on behalf of any third party or
27
on Trust for anybody. I explained to him I know nothing about what
was going on and that I did not sign the contracts.
It appears that all the contracts emanated from your office and bore
my name as purchaser in trust. This is most serious and it is a matter
of urgency. I will seek an explanation from you regarding the
contracts which were purported to be signed by me.”
signature on the contracts for sale. The Solicitor also accepts that he had no written
authority to do so.
under the loan agreement between Fairview Construction Ltd and ACC Bank that the
company’s solicitor must confirm in writing that “unconditional and irrevocable
contracts with deposits paid” were in place for five units.
Bank advising that the development had been sold. See paragraph 13 as follows.
“13. The loan offer required confirmation that pre sales were in
existence to enable drawdown of funds. I confirm that I sent
a letter to ACC Bank, Ballina, County Mayo advising that the
development had been sold which from Sean Heffernan and
Sean Rowlette point of view had been the position. Sean
Heffernan and Sean Roulette (sic) put your deponent herein
under pressure to create the contract of sale and to confirm to
ACC Bank that the sales were in place by means of
enforceable contract for sale.”
from the Solicitor dated 14 July 2004 which confirmed that five houses “have been sold.
There are enforceable contracts for Sale and Building Agreements in place”. (See
page 100 of the exhibit to Ms Helene Blayney’s affidavit of 27 February 2009).
this letter of 14 July 2004 had not been adduced in evidence at the hearing on 10 February
2010. The Solicitor also avers that there was no evidence that the letter existed or was
28
authored or signed by him or sent to ACC Bank. The Solicitor fails, however, to explain
how this averment is consistent with paragraph 13 of his affidavit of 12 June 2009
(above) where he expressly confirms that he had sent a letter to ACC Bank, Ballina,
County Mayo advising that the development had been sold.
lands as follows in his affidavit of 12 June 2009.
“14. I advised Sean Heffernan and Sean Roulette (sic) that it was
against Law Society Regulation that the one solicitor should
act for all parties in a development of houses such as this one.
I advised that another solicitor should be retained. At this
juncture, title was not in a manner which could be perfected
as the following remained outstanding, namely,
a) engineering certificates were outstanding,
b) Premier Guarantee Certificates
c) Bonds and Council levies
15. I say that I was advised by Sean Heffernan and Sean Roulette
(sic) that a purchaser was available and would purchase the
entire estate from the plans. Sean Heffernan and Sean
Rowlette were not made aware of the purchaser details but
was advised that the purchaser had come through Mark
Devaney.
16. In accordance to regulation, I advised that I could not act and
that a solicitor would have to be retained to act for the
purchaser. I was asked by Mark Devaney, to obtain a new
solicitor and one that would accept the title as it stood at that
time with a view to being perfected in the course of the
transaction.
17. I say that your deponent was put under pressure from Sean
Heffernan and Sean Rowlette to make such contracts.
18. In this regard, this writer asked a colleague, Mr Michael
O’Donnell of Rathkeal in the County of Limerick would he
be willing to act in the purchase of 13 units at Tuam in the
County of Galway. I advised Mr O’Donnell that title would
be perfected in due course but that it would take some time.
Mr O’Donnell gave his consent to act in the purchase and
authorised this writer to sign his name to the contract which I
duly did.
29
19. I say that Mr O’Donnell never obtained title from this office.
I say that Mr O’Donnell never met Sean Heffernan, Mr Sean
Rowlette or Mr Mark Devaney prior to the initial contract for
sale being entered into. I say that Mr Michael O’Donnell
never saw any contract or booklet of title.”
not be perfected because a number of matters remained outstanding. The Solicitor also
accepts that Mr. O’Donnell had neither met Mr. Devaney nor seen any contract or booklet
of title prior to his (Mr. O’Donnell) having allegedly authorised the Solicitor to sign the
contracts for sale. Against this factual background, it is impossible to understand how
Mr. Devaney could be said to have been bound by the purported contracts for sale of
19 May 2004. In particular, he could not be bound by the signature on the contracts for
sale. The Solicitor had no written authority to put Mr. O’Donnell’s signature on the
contracts, and, in any event, Mr. O’Donnell could not be said to be the lawfully
authorised agent of Mr. Devaney in circumstances where they had never even spoken to
each other, still less entered into a retainer.
ADMISSIONS OF FACT
Disciplinary Tribunal are legally unsustainable, it is necessary first to examine the
approach actually taken by the Solicitor at the hearing before the Disciplinary Tribunal
in February 2010. In particular, it is necessary to examine the admissions of fact made
by the Solicitor, through his then barrister, at the hearing.
of another witness (Helene Blayney from the Law Society), the barrister acting for the
Solicitor indicated that his client wanted to “deal with certain of the issues” but had a
difficulty with the language used in some of the complaints. The barrister further
30
explained that the Solicitor accepted where “responsibility rests” in this matter. It was
submitted that the language in the complaints was “poor”, and that the Solicitor would
be interested in taking a certain course. At a later point, the barrister states that the
Solicitor wanted to deal with the matter in “a particular way”, and did not want to be
“wasting” the Disciplinary Tribunal’s time.
between an admission of fact, and a finding of misconduct, which he described as the
responsibility of the Disciplinary Tribunal. The chairman also acknowledged that it is
the right or privilege of a respondent solicitor to dispute facts, but that certain things
could be agreed. (Transcript at page 106). At a later point, the chairman reiterated that
the Solicitor was not under any pressure to make admissions, and should not feel that the
Disciplinary Tribunal wanted to save time. The barrister responded by saying as follows.
Barrister:
No, we are not succumbing to pressure. What we are trying to
do is to limit it as much as possible what needs to be traversed.
that same constituted misconduct. See transcript at page 108, as follows.
Chairman:
You take the position that you accept the facts stated but you
deny that it is misconduct.
Barrister:
Absolutely.
Chairman:
That then removes the necessity for evidence and it is a question
of presentation of the Law Society’s view on it and your
perspective on it and our decision on it.
Barrister:
Yes.
each of the complaints which now represent the four findings of misconduct. In some
instances, the wording had first been modified from the complaint as originally
formulated. For example, the wording of the complaint that the Solicitor had “destroyed
31
a file relating to the contested contract” had been amended to add the qualifying words
“consisting of merely three contracts”. The amendment was to reflect the submission
that the only documents within the file were the contracts which had been destroyed. The
Solicitor himself is recorded on the transcript as having intervened to say that he would
accept that he “destroyed 4ft of paperwork”. (Transcript, page 113).
undertaking. (This is a different complaint than the credit union undertaking discussed
under the next heading). It was necessary, therefore, to hear evidence on this complaint,
and the Disciplinary Tribunal then made a ruling dismissing that complaint.
hear submissions on whether those admitted facts constituted professional misconduct.
(Transcript, pages 175 to 186).
Act 1960 as including conduct tending to bring the solicitors’ profession into disrepute.
(It also includes the contravention of a provision of regulations).
misericordiam plea. The plea began by conceding that the Solicitor had a “difficulty” in
persuading the Disciplinary Tribunal that the “very serious and significant” matters to be
adjudicated upon did not amount to misconduct. Attention was drawn to the personal
circumstances of the Solicitor, and that his prospects were bleak. It was submitted that
during the Celtic Tiger [years] the
“whole standard, the whole benchmark, the whole bar was lowered
in peoples’ desire and ambition to build properties and make
monies”.
operation in the disciplinary process.
32
“If Daniel Coleman [the Solicitor] had behaved at any point
throughout any of these proceedings whether it was before the
Committee or in his dealings with Ms. Blayney or in his dealings with
the High Court or anybody else that he had come in contact with if
he was to have behaved in a belligerent, difficult, arrogant, or
obstructive and unhelpful manner and fashion that, in my submission,
would amount to misconduct that would tend to bring the profession
into disrepute.
On the other hand what he has demonstrated out of the adversity that
he finds himself in is his true sense of integrity and honour and I think
that is to be applauded. […]”.
the other solicitor’s name on the contracts was acknowledged to be “the most serious of
offences” and “entirely improper”; and the destruction of the file or the destruction of the
contracts was referred to as “a matter to be properly frowned upon”.
deliver their ruling. The Solicitor was found guilty of misconduct.
addressing the Disciplinary Tribunal. The following extract from the transcript indicates
the nature of the approach taken on behalf of the Solicitor by his barrister. (See page 192
of the transcript).
“I am asking that some light, some comfort be given to him that falls
short of him being struck off. It is not for me I think to suggest and
if I did I would be very careful about how I did as to what you might
consider by way of alternative but it is open to you, Chairman,
notwithstanding what [counsel for the Law Society] has said.
To be honest there is no real basis on which I could refute the vast
majority of what he has said except ask you to say fine. Ordinarily,
yes, but there is a basis on which he can be distinguished and
differentiated.
If you accept that that is the case and you accept that, perhaps, in the
fullness of time, not immediately, but in time he is someone who
could be embarrassed [recte, embraced] again by the [Law Society]
and in the interim that he be restricted or hugely limited in what he
could or could not do so that, at least, that opportunity is open to him.
I would ask that that be considered because short of that I will go
33
back again to what I said at the start, what does he do. It is as simple
and straightforward as that. Thank you, Chairman.”
ultimately, made a recommendation that the Solicitor’s name should be struck off the
Roll of Solicitors.
Disciplinary Tribunal was, in effect, to make a series of admissions of fact; not to
seriously contest that the conduct admitted to constituted professional misconduct; and
to rely on his co-operation in the disciplinary process, and his personal and family
circumstances, in support of a plea for leniency.
Volte face by Solicitor
Solicitor now wishes to challenge each and every one of the four findings of misconduct.
The principal grounds on which he seeks to do so can be summarised as follows. First,
insofar as the contracts for sale are concerned, whereas it is still accepted that the other
solicitor’s signature was put on the contracts for sale without authority, it is now said that
this had been done in the honest—but mistaken—belief that the Solicitor had oral
authority from the other solicitor (Mr. O’Donnell) to sign his name. Secondly, it is denied
that the contracts for sale were “fictitious”. It is said that the contracts for sale were
ultimately completed, and that ACC Bank could not therefore have been misled.
Objection is made that the letter of 14 July 2004 to ACC Bank had never been adduced
in evidence before the Disciplinary Tribunal. Thirdly, it is said that the contracts for sale
had been destroyed by a solicitor employed by the Solicitor, on the clients’ instructions,
and replaced with a new contract for sale. Finally, it is said that the Solicitors
(Professional Practice, Conduct and Discipline) Regulations 1997 do not apply to sales
of property “off the plans”.
34
FINDINGS OF THE COURT: FAIRVIEW CONSTRUCTION LTD
Solicitor bound by admissions of fact
misconduct must be to consider the status of admissions which have been made
voluntarily and with the benefit of legal advice. More specifically, the issue which arises
in the context of the “strike off” application now before the court is whether the
sustainability of the findings of the Disciplinary Tribunal can be impugned by contending
that the tribunal was not entitled to rely on the admissions made.
determination in this judgment is because admissions might have a different status in the
context of a statutory appeal under section 7(13) of the Solicitors (Amendment) Act
1960. The judgment of Clarke J. (as he then was) in Fitzgibbon v. Law Society of Ireland
[2014] IESC 48; [2015] 1 I.R. 516 suggests that, in the context of a de novo appeal, a
party is not necessarily bound by an admission previously made. See paragraph 106 of
the judgment as follows.
“Likewise, it is always possible to place before any adjudicative body
evidence of previous admissions made by any party against whom an
adverse finding on appeal might be made. In the law of evidence as
applied in the courts, previous admissions amount to a well
recognised exception to the hearsay rule. It seems to me that the
default position, in the absence of any rule to the contrary, must be
that an admission, made by a party at a first instance hearing or
otherwise made during the first instance process, can be the subject
of evidence at a de novo appeal. It is not that the party concerned is,
necessarily, bound by an admission previously made. It is, on a de
novo appeal, a matter for the appellate body to make its own mind up
based on the evidence and materials before it. However, just as an
admission made by a party against its own interest outside the context
of hearings altogether can be the subject of evidence, so also can a
similar admission made at first instance be the subject of evidence.
The weight to be attached to that evidence in the overall assessment
of the issues before the appeal body will, of course, be a matter for
it.”
35
to a statutory appeal—and is exercising its narrower jurisdiction under section 8 of the
Solicitors (Amendment) Act 1960.
of fact.
Supreme Court in People (Director of Public Prosecutions) v. Redmond
The facts of Redmond were highly unusual. An accused had earlier entered a plea of
guilty to an offence. At the subsequent sentencing hearing, the judge had a concern as to
the capacity of the accused. The Circuit Court stated a case to the Supreme Court on
whether the Circuit Court should have declined to accept a plea of guilty, and should
instead have entered a plea of “not guilty” on behalf of the accused, and then sought to
ensure that the issue of the accused’s possible insanity be fully investigated in the course
of his trial. The Supreme Court by a majority (Denham J. dissenting) held that a judge
should not intervene to set aside a guilty plea unless there are quite exceptional
circumstances arising in the particular case.
liability in the High Court, should be entitled to amend its grounds of appeal to contest
liability for the first time before the Supreme Court. The Supreme Court held that, absent
fraud, or some fundamental issue of justice arising from the conduct of the proceedings,
it was difficult to contemplate circumstances in which a party would be permitted, in an
appeal or otherwise, to impugn a determination by the High Court of an issue, such as
liability, which had been expressly conceded by the party concerned.
36
consideration in this case law. The analogy is, therefore, far from perfect. Nevertheless,
the case law is of some assistance in that it highlights the autonomy of a party to
determine whether or not to make admissions, and the limited discretion of a decision-
maker to refuse to accept such an admission. The judgment in Keating also emphasises
the public interest in the finality of proceedings, which would be undermined if parties
were entitled to resile from earlier concessions.
upon admissions which have been made voluntarily and with the benefit of legal advice.
Save in the context of a statutory appeal by way of a rehearing, a party will only be
entitled to resile from such an admission in exceptional circumstances.
be determined by reference to the criminal standard of proof, i.e. beyond all reasonable
doubt. It is said to follow as a corollary that not only must the Law Society prove the
acts of the offence and that those acts constitute misconduct, but the Law Society must
also negative any defence of the respondent solicitor and to negative any reasonable
hypothesis consistent with the innocence of the solicitor. The judgment of the High Court
cited in this regard. The judgment in Walker, in turn, relied on the judgment of the High
Court in O’Laoire v. Medical Council, unreported, High Court, Keane J., 27 January
1995 (upheld on narrower grounds by the Supreme Court).
“For these reasons, I was satisfied that the onus lay upon the [Medical
Council] to prove beyond reasonable doubt every relevant averment
of fact which was not admitted by Mr. O’Laoire and to establish
beyond reasonable doubt that such facts, as so proved or admitted,
constituted professional misconduct.”
37
prove, to a criminal standard, facts which are admitted by a respondent solicitor.
obliged by law to disregard an admission of fact made by a party which has the effect of
saving time, and instead to invest itself in deciding whether that admission was well
made. Counsel draws an analogy with the criminal justice system, and, in particular, the
provision made under section 22 of the Criminal Justice Act 1984 for parties to make
formal admissions of facts. The prosecution, having been offered admissions by the
defence, is not then required to go through all the admitted facts in any event in order to
see whether the admissions can be undermined. It is said that this would be a completely
artificial and unrealistic view of the obligation upon the prosecution in a criminal trial.
Similar principles are said to apply, by analogy, to admissions of fact tendered in
disciplinary proceedings.
taken by the Solicitor to the hearing before the Disciplinary Tribunal was to rely on his
co-operation in support of a plea ad misericordiam. A central part of this approach was
to make the admissions of fact, and thereafter not to contest seriously that the admitted
facts disclosed professional misconduct. The Disciplinary Tribunal was entitled to take
these admissions at face value, and did not have to search out evidence which might
undermine those admissions.
Alleged failure to plead dishonesty
admissions by advancing the following two arguments. First, it is said that the
Disciplinary Tribunal did not properly observe the distinction between (i) an admission
of fact, and (ii) an admission of misconduct. Secondly, it is said that the complaints as
38
formulated by the Law Society did not allege “dishonesty”. A complaint of dishonesty
must, it is said, be pleaded with pitiless particularity. No one should be found to have
been dishonest on a side wind; rather, dishonesty is an issue that must be articulated,
addressed and adjudged head-on. A finding of dishonesty in the absence of a pleading
deprives that finding of a sustainable basis in law. The judgments of the High Court of
in support of these propositions. Counsel also relied on the judgment of Mostyn J. in
any test for dishonesty; did not apply any such test; and made no explicit finding of
dishonesty.
findings of misconduct. It is evident from the transcript of the hearing before the
Disciplinary Tribunal on 10 February 2010 that the Solicitor made a strategic decision,
with the benefit of legal advice, to make admissions of fact with a view to relying
thereafter on his co-operation as a mitigating factor in a plea for leniency.
fact (as opposed to admissions of misconduct). However, this distinction is wholly
artificial in the context of the wording of the complaints, and the submissions made by
his own barrister. By admitting to the conduct in the terms described in the complaints,
the Solicitor was, in effect, admitting misconduct. The conduct as set out in the
complaints could not be characterised as anything other than professional misconduct.
39
of another solicitor to be written on a contract for sale “without authority”; and that the
contract was a “fictitious contract” for the purpose of “misleading” a financial institution
into advancing monies to a development company. This was not contested by the
Solicitor at the time. His own barrister acknowledged at the hearing in February 2010
that the signing of the other solicitor’s name on the contracts was “the most serious of
offences” and “entirely improper”. This acknowledgment was well made.
transactions with integrity and probity. It would undermine faith and trust in the
solicitors profession were individual solicitors to engage in “fictitious” transactions for
the purpose of “misleading” financial institutions. Where conduct of this type is engaged
upon by a solicitor, it is self-evidently conduct which is likely to bring the profession into
disrepute.
contracts for sale without express or implied instructions. It had been clearly explained
by counsel then acting for the Law Society (the late Paul Anthony McDermott, SC) that
there is a difference between destroying a contract and destroying a file, and that the
allegation was that the file had been destroyed. (Transcript, page 49/50). The distinction
is reflected in the modified wording of the complaint as agreed to by the Solicitor. Again,
the destruction of a client’s file without instructions is self-evidently conduct which is
likely to bring the profession into disrepute. The Solicitor’s own barrister acknowledged
at the time that the destruction of the file or the destruction of the contracts was “a matter
to be properly frowned upon”.
by having acted for both vendor/builder and purchasers, as involving himself in a possible
40
conflict of interest contrary to the Solicitors (Professional Practice, Conduct and
Discipline) Regulations 1997. This admission is consistent with the approach which the
Solicitor had adopted in his affidavit of 12 June 2009. See paragraph 60(g) of the
affidavit as follows.
“(g) Acted for both the Vendor/Builder, Fairview Construction
Limited, and purchasers of thirteen newly constructed houses
at Shramore, Galway Road, Tuam, County Galway 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.
I admit that I acted contrary to the aforementioned regulation and
undertake to the Honourable Law Society not to breach the said
regulation in the future.”
(Amendment) Act 1960 includes the contravention of a provision of regulations.
on notice that it was being alleged that he had engaged in “dishonesty” is untenable. The
complaint which was put to the Solicitor, via the affidavit of Helene Blayney grounding
the section 7 inquiry, alleged inter alia that he had produced a “fictitious contract”, and
that this had been done for the purpose of “misleading” a financial institution. It is
obvious that such conduct on the part of a solicitor represents dishonest conduct. Indeed,
counsel at the hearing before me ultimately conceded that the use of the language
“fictitious contract” and “misleading” did, indeed, connote dishonesty.
thereof) that he was made aware of an allegation of dishonesty in relation to Mr.
O’Donnell’s signature by Helene Blayney’s affidavit (at paragraph 5 thereof).
lack of credibility to him by way of cross-examination, citing Browne v. Dunn (1893)
41
6 R 67. In that case, the House of Lords held that, if in the course of a case, it is intended
to suggest that a witness is not speaking the truth upon a particular point, his attention
must be directed to the fact by cross-examination showing that that imputation is intended
to be made, so that he may have an opportunity of making any explanation which is open
to him. This is so unless it is otherwise perfectly clear that the witness has had full notice
beforehand that there is an intention to impeach the credibility of his story, or the story
is of an incredible and romancing character.
“[…] Secondly, it is a cardinal principle of litigation that if serious
allegations, in particular allegations of dishonesty are to be made
against a party who is called as a witness they must be both fairly and
squarely pleaded, and fairly and squarely put to that witness in cross
examination.”
as in this case, a party to proceedings, who has the benefit of legal advice, makes a series
of admissions. These admissions were, with one exception, made through counsel. Other
than one intervention from the floor, the Solicitor himself did not give evidence and thus
there had been no cross-examination. It is difficult to understand how the Law Society
can be criticised for failing to put an allegation to the Solicitor on cross-examination
when the necessity for oral evidence had been obviated precisely because the Solicitor
had made admissions in respect of that allegation.
Submission that there had been procedural unfairness
made voluntarily, nor has the Solicitor pointed to any exceptional circumstances, such as
42
mistake, which explains why he now seeks to withdraw those admissions. Instead, the
most that the Solicitor does is to point to an alleged unfairness on the part of the
Disciplinary Tribunal at an earlier stage of the hearing.
instances of alleged unfairness cited is now conceded to have been factually incorrect.
More specifically, at numerous points in the written legal submissions filed on behalf of
the Solicitor, it had been incorrectly stated that the Disciplinary Tribunal had refused to
adjourn the hearing so as to allow a particular witness to attend. (See for example §15,
§16, §20, §38, §43, §69 and §70 of the written legal submissions). The written legal
submissions reflect an inaccurate averment in the Solicitor’s affidavit to the effect that
his then barrister had requested an adjournment such that necessary witnesses that would
establish his innocence would be called; and that the adjournment application was
summarily refused by the chairperson of the Disciplinary Tribunal. (See Mr. Coleman’s
affidavit of 23 May 2019, paragraphs 44 to 48).
transcript of the hearing before the Disciplinary Tribunal to an adjournment having been
sought or refused. (See High Court transcript, Day 2, 5 March 2020, at page 54; pages
85/86; and pages 199/200).
previously submitted a number of affidavits to the Law Society in response to the
complaints made against him. In particular, three affidavits were submitted under cover
of letter dated 27 February 2008. One of these affidavits had been sworn by a solicitor
who had been employed in his office, Hilary O’Connor (“the solicitor employee”). In
this affidavit, the solicitor employee had stated that she had destroyed the contracts for
sale in 2005, and that this had been done on the insistence of the directors of Fairview
43
Construction Ltd. Both directors had denied this in their joint affidavit of 14 January
2009.
called the solicitor employee as a witness at the hearing. The position adopted on behalf
of the Solicitor was to the effect that there was an obligation on the Law Society to call
oral evidence from the solicitor employee. The chairman of the Disciplinary Tribunal
indicated that it was open to the Solicitor to call the solicitor employee as a witness. The
barrister acting on behalf of the Solicitor indicated that it was not a matter for his client
to call witnesses. The upshot of this was that the solicitor employee was not ultimately
called to give oral evidence. Her affidavit remained before the Disciplinary Tribunal,
and could have been relied upon by the Solicitor had he wished to do so.
a refusal on the part of the Disciplinary Tribunal to grant an adjournment to allow the
solicitor employee to be called as a witness. It is evident from the transcript that this is
not what happened.
“causal link” between the making of the admissions, and the approach of the Disciplinary
Tribunal in not insisting that the Law Society call evidence from the deponents of the
affidavits filed on behalf of the Solicitor. (In addition to the solicitor employee’s
affidavit, two affidavits sworn by Mr. Devaney had also been filed). It had been
submitted that the (improper) effect of this ruling was to require the Solicitor to prove a
hypothesis which was consistent with his innocence. In support of this argument, counsel
had placed reliance on the judgment in M.M. v. Secretary of State of the Home
43 above). That judgment indicates that if the reviewing or appellate court identifies a
44
procedural irregularity or impropriety which, in its view, made no difference to the
outcome of the proceedings, then the appropriate conclusion is that there was no
unfairness to the party concerned. Applying this logic, if the alleged unfairness on the
part of the Disciplinary Tribunal had been overtaken by events, i.e. the making of
admissions by the Solicitor, then the alleged procedural irregularity or impropriety did
not affect the outcome. It is only if the earlier ruling had been causative of the subsequent
admissions that the analogy with the principles in M.M. v. Secretary of State of the Home
Department relied upon would hold good.
of 12 June 2020. Having again cited the passage from M.M. v. Secretary of State of the
Home Department, it is then submitted at §12 that there is no requirement to prove
causality between the unfairness and the admissions made by the Solicitor.
the (original) submission that there was a causal link between the ruling on the calling of
witnesses, and the subsequent admissions. In particular, the Solicitor has not stated that
his decision to make admissions had been informed by the earlier exchange. Moreover,
the logic of the submission is that, as a consequence of the Law Society not calling the
witness and of the Solicitor declining to call the witness himself, the Solicitor decided to
make a series of factual admissions which were untrue. In this regard, it will be recalled
that the Solicitor himself actually intervened at the hearing to make an admission himself,
i.e. as opposed to leaving it to his barrister to do so. The barrister also expressly
confirmed to the Disciplinary Tribunal that his side did not feel under pressure to make
admissions.
knowing this to be an untruth, would have been an extraordinary thing to have done. If
45
this argument were to be pursued before the High Court, then the Solicitor should have
set all of this out on affidavit. This has not been done. There is nothing in his affidavit
which even hints at his will having been overborne, or that he made a false admission.
The Solicitor has not averred that the admissions were other than voluntary.
express admission that he had destroyed the file. In making this admission, he implicitly
accepted the distinction, which had been drawn from the very outset of the hearing by
counsel then acting for the Law Society, between the destruction of a client’s file and the
destruction of a contract. Indeed, the wording of the complaint was specifically amended
so as to reflect this distinction between the destruction of a client’s file and the destruction
of a contract for sale. (See transcript at pages 112 to 114).
Complaints and Client Relations Committee had served a statutory notice under
section 10 of the Solicitors (Amendment) Act 1994 seeking documents. As appears from
the note of the meeting of the Complaints and Client Relations Committee on 17 October
2007, the Committee had specifically requested that any attendance memorandums
which supported the assertion that Mr. O’Donnell had consented to the Solicitor signing
his name on the contracts be provided. By letter dated 11 December 2007, it was
confirmed to the Law Society that the file had been destroyed.
The Solicitor chose not to call evidence from the solicitor employee. Further, during the
course of the hearing on 10 February 2010, the Solicitor expressly accepted that he bore
responsibility for the destruction of the client file. More recently, as part of his
submissions to the High Court on the appropriate sanction, the Solicitor now says that he
46
accepts responsibility for the destruction of the file as principal of the firm. (See §20(xiii)
of the supplemental written submissions).
evidence” exists which contradicts the solicitor employee’s affidavit is incorrect: the
directors of Fairview Construction Ltd have denied in their joint affidavit of 14 January
2009 that they had instructed her to destroy the contracts for sale. Ms O’Connor’s
evidence did not, therefore, represent “uncontested evidence” as suggested in the written
legal submissions.
Mr. Devaney as a witness
hearing before the Disciplinary Tribunal in order to call Mr. Devaney as a witness. Mr.
Devaney had sworn two affidavits on behalf of the Solicitor as part of the disciplinary
proceedings, on 15 October 2007, and 25 February 2008, respectively. As explained
earlier, Mr. Devaney is purported to be the undisclosed principal for whom Mr.
O’Donnell had allegedly been acting. The Solicitor has admitted to having acted, for a
period of time, on behalf of Mr. Devaney, and has admitted that this had represented a
conflict of interest in circumstances where his existing client, Fairview Construction Ltd,
was to be the vendor of the lands.
hearing of the Disciplinary Tribunal, it is not at all clear what exculpatory evidence it is
now being suggested that Mr. Devaney would have been in a position to give. The
Solicitor made an express admission that the purported contracts for sale had been
“fictitious” and for the purpose of “misleading” a financial institution into advancing
monies to a development company, i.e. Fairview Construction Ltd. The condition
precedent to the drawdown of part of the funds from ACC Bank had been that the
47
company’s solicitor must confirm in writing that “unconditional and irrevocable”
contracts with deposits paid were in place for five of the units. The Solicitor, in his
affidavit of 12 June 2009, expressly confirms that he had sent a letter to ACC Bank,
Ballina, County Mayo advising that the development had been sold. In the same
affidavit, the Solicitor explains that, as of May 2004, the title to the lands in sale could
not be perfected because a number of matters remained outstanding. The Solicitor has
also explained that Mr. O’Donnell had neither met Mr. Devaney nor seen any contract or
booklet of title prior to his (Mr. O’Donnell) having allegedly authorised the Solicitor to
sign the contracts for sale. Mr. O’Donnell did not authorise anybody to place or sign his
signature on the contracts for sale. The Solicitor has also averred that he had been “under
pressure” from the directors of Fairview Construction Ltd to make such contracts.
be said to have been bound by the purported contracts for sale of 19 May 2004. In
particular, he could not be bound by the signature on the contracts. The Solicitor had no
authority to put Mr. O’Donnell’s signature on the contracts, and, in any event, Mr.
O’Donnell could not be said to be the lawful agent of Mr. Devaney in circumstances
where they had never even spoken to each other, still less entered into a retainer. The
fact—if fact it be—that Fairview Construction Ltd subsequently entered into a different
contract for the sale of the lands a year later cannot affect the legal position as of May
2004. The letter to ACC Bank had been sent on 14 July 2004, that is, at the very earliest,
eleven months prior to the new contract for sale. (The new contract for sale is said to
have been entered into in October 2005, but possibly backdated to June 2005). As of
14 July 2004, therefore, there was no “unconditional and irrevocable” contract for the
sale of the lands.
48
Hearing on 26 November 2009
be adjourned in circumstances where the Solicitor did not attend personally. The
application for the adjournment had been moved on behalf of the Solicitor by another
solicitor, Mr. Sean Sexton. Mr. Sexton had been on record but had to withdraw during
the course of the hearing in circumstances where the Solicitor had sent a fax to the Law
Society stating that he did not now have instructions. (For the avoidance of any doubt,
it should be noted that the Disciplinary Tribunal accepted that Mr. Sexton had acted
entirely properly in appearing before it). Mr. Sexton was then permitted to come off
record.
Tribunal that afternoon and make an application for an adjournment on behalf of the
Solicitor. Rather than delay further and await this application, the Disciplinary Tribunal
instead decided that, in circumstances where as a result of the delay in its starting, the
hearing would not finish within the day as scheduled, the interests of justice would be
best served by adjourning the hearing there and then. The chairman indicated that the
events of that day, including the confusion about representation, might have to be dealt
with at the resumed hearing.
comments would cause a reasonable bystander some concern that the Disciplinary
Tribunal would fetter its discretion at the resumed hearing.
nothing in the transcript which supports such a concern. The Disciplinary Tribunal had
adjourned the hearing in ease of the Solicitor. The reference to the events of the day
being dealt with again would be understood by the reasonable bystander as referring to
the issue of costs. It would clearly be relevant in any application for costs to have regard
49
to the chaotic circumstances in which the hearing on 26 November 2009 had had to be
adjourned. Indeed, the barrister then acting for the Law Society took the sensible
precaution of asking that the details of the witnesses who had travelled on behalf of the
Law Society be formally recorded in anticipation of a subsequent costs application. (See
pages 43/44 of the transcript of the hearing on 26 November 2009). In the event, an order
was made on 10 February 2010 directing that the Solicitor pay both the costs of the
adjourned hearing and the substantive hearing on 10 February 2010.
adjourned with a “jaundiced view”. Again, this is not borne out by the transcript. As
appears at page 43, the chairman, in response to an application by the Law Society to fix
the resumed hearing date on a peremptory basis, had expressed a “jaundiced view” about
fixing hearings on a peremptory basis.
“I always have a jaundiced view about preemptory (sic), because
preemptory (sic) is final until somebody gets hit by a train or loses a
close relative or get struck by illness, and sometimes it puts a hex on
things, I think. You can take it, however, that this Tribunal sits the
next time to hear this case.”
had taken a “jaundiced view” of the merits of the case. Rather, the chairman was simply
indicating that there are practical difficulties in fixing a hearing date on an absolutist
basis, which rules out the possibility of a further adjournment in any circumstances.
Manuscript notes
notes apparently taken by a member of the Disciplinary Tribunal at the hearing on
10 February 2010. These manuscript notes have been exhibited as part of Mr. Coleman’s
affidavit of 10 December 2019. The relevant extract appears at internal page 107.
50
made on behalf of the Solicitor on the question of whether the facts as admitted
constituted misconduct. Counsel for the Solicitor had just invited the Disciplinary
Tribunal to acknowledge that the Solicitor had acted with integrity. The words “What
about his false Affidavits?” then appear in the notes, seemingly by way of comment on
the submission.
Solicitor had sworn false affidavits should have been put to him by way of cross-
examination.
Tribunal made no finding against the Solicitor to the effect that he had sworn any false
affidavit. It simply does not feature as part of the findings of misconduct. As correctly
submitted by counsel on behalf of the Law Society, in the absence of such a finding, no
evidential weight can be attached to this part of the manuscript notes. They could, as
counsel suggests, simply be musings or jottings. For this court to rely on these notes to
make a finding of unfairness would be to engage in unwarranted speculation.
RELIANCE ON ADDITIONAL AFFIDAVITS
under section 8 of the Solicitors (Amendment) Act 1960, for a respondent solicitor to
introduce additional evidence which goes to the issue of whether findings of misconduct
are sustainable. I have decided, having regard to the very particular circumstances of this
case, to consider the content of these affidavits de bene esse. The fact that this case has
already involved an appeal to the Supreme Court has had the practical consequence that
these disciplinary proceedings have been delayed and remain unresolved some ten years
51
after the findings of the Disciplinary Tribunal were first made. Rather than run the risk
of the additional delay which would be caused were there to be a further appeal and
remittal to the High Court on the procedural issue of whether the affidavit evidence is
admissible, it seems more sensible to admit the affidavit evidence de bene esse and to
consider the implications, if any, of same for the outcome of the case.
Affidavit of Mr. Michael O’Donnell
in support of an argument that the Solicitor may have had an honest but mistaken belief
that he had Mr. O’Donnell’s spoken authority to sign the contracts.
Solicitor’s actual belief, and states that only the Solicitor can do that. The most that Mr.
O’Donnell says is that he cannot dispute that the Solicitor may have formed an honest,
but mistaken, genuine belief that he (Mr. O’Donnell) had given him consent. The matter
is put as follows at paragraph 9 of Mr. O’Donnell’s affidavit.
“I cannot and did not dispute that we had a telephone conversation
about a transaction in Tuam. I cannot dispute that Mr. Coleman may
have formed an honest but mistaken genuine belief that I had given
him consent. I say this having regard to the fact, which I cannot
dispute, that we discussed the transaction the subject of the complaint
and that I agreed to act on behalf of the purchaser together with the
general tenor of the discussion about the contract.”
finding of misconduct to the effect that the Solicitor had caused the name of another
solicitor to be written on a contract for sale “without authority”; and that the contract was
a “fictitious contract” for the purpose of “misleading” a financial institution into
advancing monies to a development company. In particular, Mr. O’Donnell has not
disavowed his sworn evidence to the Disciplinary Tribunal which, it will be recalled, had
been that he did not authorise any one to place his signature on the contracts for sale.
52
Court’s jurisdiction to review the sustainability of findings of misconduct, a respondent
solicitor could be entitled to rely on additional affidavit evidence from a person who had
actually appeared as a witness before the Disciplinary Tribunal. The Solicitor had been
legally represented at the hearing in February 2010, and his barrister had cross-examined
Mr. O’Donnell at length. The Solicitor, accordingly, had every opportunity to elicit such
evidence as he wished to rely upon from Mr. O’Donnell.
excusable because he had an honestly held belief that he had authority to sign Mr.
O’Donnell’s signature on the purported contracts for sale. Rather, the Solicitor made an
express admission that the contracts had been “fictitious”, and his own barrister
acknowledged at the hearing in February 2010 that the signing of the other solicitor’s
name on the contracts was “the most serious of offences” and “entirely improper”.
the Solicitor at the hearing before this court in March 2020 was unable to identify any
case law which suggested that one solicitor would be entitled to sign the name of another
solicitor on a contract for sale without written authority and without giving any indication
that the signature was not that of the second solicitor. Given the requirement that a
contract for sale be evidenced in writing and signed by the person or their authorised
agent, it must be doubtful whether this can be done.
Affidavit of Mr. Patrick Kelly (formerly of ACC Bank)
2018 in support of an argument that ACC Bank had not been misled by the Solicitor
arising out of his dealings with Fairview Construction Ltd.
53
he has no recollection of a letter confirming presales from Coleman and Company to
ACC Bank, and that he cannot, for the purpose of his affidavit, confirm or deny that the
letter was so issued or received by ACC Bank. In the circumstances, Mr. Kelly’s
evidence is of no assistance to the Solicitor. This is especially so where the Solicitor has
averred in his affidavit of 12 June 2009 that he sent a letter to ACC Bank advising that
the development had been sold.
SUMMARY
the conveyancing transaction are legally sustainable in the sense that that phrase is used
54
UNDERTAKING TO CREDIT UNION
made by a credit union to the effect that the Solicitor had failed to comply with an
undertaking which he had given to it. More specifically, Tuam Credit Union had
complained that the Solicitor had allowed certain lands to be sold in breach of an
undertaking to hold the title deeds in trust to the order of the credit union.
and the Disciplinary Tribunal, respectively, have been set out in detail in affidavits sworn
on behalf of the Law Society by Mr. David Irwin and Mr. John Eliot on 7 July 2010 and
2 July 2019, respectively. Mr. Irwin has exhibited an earlier affidavit of Ms Linda
Kirwan which had been before the Disciplinary Tribunal at its hearing on 25 February
2010.
findings of professional misconduct made by the Disciplinary Tribunal were as follows.
(a) Failed in a timely fashion or at all to comply with an undertaking
given by him in a letter dated 16th February, 2004 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 Complainant’s correspondence
and in particular the Complainant’s letters dated 31st January 2008
and 1st September 2008.
(c) Failed to reply adequately to the Society’s correspondence in
particular letters dated 30th January 2009, 3rd March 2009 and 6th
April, 2009.
compensation. Notwithstanding this, the Law Society in its application to the High Court
in July 2010 expressly sought an order requiring the Solicitor to pay the sum of €320,000
in restitution to the credit union. The explanation for seeking this relief is stated as
55
follows in the affidavit of Mr. David Irwin of 7 July 2010 grounding the application to
the High Court.
“9. I beg to refer to the evidence given by the Complainant, Mr. Mick
Culkeen, Chief Executive Officer, of St. Jarlath’s Credit Union
Limited, Hermitage, Dublin Road, Tuam, Co. Galway. At the
hearing of this matter, the Complainant gave evidence as to the effect
of the Respondent Solicitor’s misconduct on the Credit Union. I
specifically refer to page 22 of the transcript in which the
Complainant stated that the Credit Union had lost approximately
€320,000.00 as a result of the Respondent Solicitor’s conduct. The
Society respectfully submits that the Tribunal should have made
allowance for this and made a recommendation in its report for
restitution in the sum of €320,000.00 against the Respondent
Solicitor and in favour of St. Jarlath’s Credit Union Limited. I
respectfully request that this relief be granted by the Court as set out
in the accompanying Notice of Motion.”
Solicitor to the credit union. The letter bears the reference “Patrick Kavanagh and
Michael Kavanagh Folio 63100F County Galway”, and it reads as follows.
“We act for the above named and further to our telephone
conversation we hereby undertake to hold the title deeds in respect of
folio 63100F, County of Galway in trust to the order of Tuam Credit
Union Limited. Kindly note that registration is being completed in
the Land Registry.”
undertaken to hold the title deeds, i.e. the land certificate, of certain lands “to the order
of” the credit union. The undertaking is given on behalf of two named individuals,
Patrick Kavanagh and Michael Kavanagh. The undertaking is not referable to any
particular loan or borrowings on the part of either of those two individuals.
the undertaking. Although not entirely clear from the papers before the Disciplinary
Tribunal, it appears to have been accepted by the Solicitor in correspondence that the
contract for the sale of the lands had been completed on 30 September 2005. The change
in registered ownership of the lands had subsequently been recorded on the folio in
56
February or March 2006. (See Mr. Flanagan’s evidence to the Disciplinary Tribunal on
25 February 2010, at page 27 of the transcript).
complaint was made by Mr. Michael Culkeen. Thereafter, during the period February
2009 to February 2010, the Solicitor offered various explanations as to what had occurred
in respect of the undertaking.
confined to the net proceeds of the sale of the relevant lands, but that there had been no
net proceeds.
“In any event, from this writers recollection, and from clarification
from Mr. Patrick Kavanagh it appears that there were no net proceeds
from this transaction.
The reason being, the Kavanagh’s loan with their principal lending
institution had been called in and therefore to obtain a discharge from
the primary charge holder, all monies from the sale had were remit to
the bank.
Therefore whilst this writer gave an undertaking over the net
proceeds, we confirm there were none.”
Complaints and Client Relations Committee that he thought that he had transferred the
undertaking to another firm of solicitors, namely Chambers & Flanagan Solicitors. This
proved to be incorrect, and the principal of that firm, Mr. Brendan Flanagan, gave
evidence confirming this to the Disciplinary Tribunal on 25 February 2010.
confirmed that he had “now obtained the relevant information to answer the complaint
of Saint Jarlath’s Credit Union”. The second letter stated that he was now in “a position
to fully respond to the allegation” that he was in breach of the undertaking.
57
the payment of a policy of life insurance. More specifically, it seems that Mr. Michael
Kavanagh had died as a result of a tragic accident in October 2005, and that certain
monies were paid out pursuant to a death gratuity. This explanation is set out in the first
letter of 9 July 2009 as follows.
“The sale of the property in Folio 63100F County Galway was
completed. The Contract for the Sale was dated the 30th of
September, 2005 and all closing documents were executed by Mr
Michael Kavanagh on that date. The purchasers John and Kelly
Swinhoe went into possession and they were represented by Daniel
McGrath and Company Solicitors, Tuam. At that point monies were
outstanding to St. Jarlath’s Credit Union Limited. It is acknowledged
that we did not hand over the sales monies to St. Jarlath’s Credit
Union Limited. We explain this by the fact that Michael Kavanagh
died tragically in October, 2005 and a death gratuity was in place.
Part of the loan was covered by a death gratuity to an amount of what
I believe €120,000. The balance was subsequently paid by his estate
to the Credit Union. Therefore no monies are due and owing to
St. Jarlath’s Credit Union Limited by Michael Kavanagh or his estate.
We would contend that the Undertaking related to the property in
folio GY 63100F only and all monies payable thereon were payable
by Michael Kavanagh. The reference to Pat Kavanagh was
inadvertent. Further, it was disclosed to Mr. Creaven that Mr. Pat
Kavanagh had no legal interest in the property.
Pat Kavanagh never owned lands of 63100F County of Galway. I
therefore respectfully submit that I cannot be in breach of an
undertaking over title documents where the money raised on foot of
the undertaking has been discharged. The undertaking has been
discharged by funds from the estate of Michael Kavanagh.
Secondly, I cannot be held to account for title documents to a third
party who does not own the property.
I have not dealt with the title of 63100F in any way inconsistent with
the undertaking.
Patrick Kavanagh never owned the property. I understand however
that he is indebted to St. Jarlath’s Credit Union Limited and has made
an application to the High Court for Protection under the Bankruptcy
Act 1988.”
58
to any debt incurred by Mr. Patrick Kavanagh.
letters would be exhibited by the Law Society, and, further, that the Solicitor would have
an opportunity to put his view fully on record in a replying affidavit to the Society’s
application to the Disciplinary Tribunal.
the hearing of the Disciplinary Tribunal on 25 February 2010. The sequence of events
in the immediate lead up to that hearing are as follows. The Solicitor wrote to the Law
Society on 22 February 2010. The Solicitor made complaint that monies from his
practice were being withheld from him. The letter then stated as follows.
“In the interest of natural justice, I have the right to be heard and
represented, which right has been taken away from me in the method
and manner in which you, your servants or agents have withheld my
money.
I cannot be expect (sic) to travel to Dublin and attend a hearing, let
alone instruct legal representation without sufficient funds to do so.
In this regard, I would ask that you would confirm that you will move
an application for an adjournment on consent in the interest of natural
justice such that I may be afforded the right to defend myself and
further, have the right to be heard. You may remember that such
rights are Constitutional Rights.”
letter reads as follows.
“I would point out that the Society varied the Freezing Order on 7th
December 2009 and since that time, you have been permitted to go
back into your practice for the purpose of winding down your
practice. I also note that you had ample notice of the hearing of this
matter. The Society received the Form DT5 with notification of the
original hearing date of 28th January 2010 on 10th December 2009
and you would have received notification at the same time. You will
recall that that date was not suitable for the Society’s deponent, Ms.
Kirwan, and that I wrote to you on 16th December 2009 advising you
of the need to obtain a different hearing date. An application was
59
made by the Society on 28th January 2010 (recte 12 January 2010)
and the matter was relisted for hearing on 25th February 2010. The
Society was notified of the new hearing date by letter dated
14th January 2010 and you would also have been notified at the same
time. It is the case that you have known of the hearing of this matter
since in or around 10th December 2009 (some ten weeks) and the
current hearing date since in or around 14th January 2010 (five
weeks). Hence, you have had a total period of ten weeks in which to
prepare for the above hearing.
I put you on notice that the Society will be calling both the
Complainant, Mr. Mick Culkeen, and also a professional witness and
subpoenas have been issued and served for this purpose. I recall that
you attended Dublin on 11th February 2010 and you were represented
by Mr. Alan Toal B.L. in the Society’s first application to the
Tribunal against you. I am therefore surprised at your statement that
you cannot be expected to travel to Dublin and attend a hearing or
instruct legal representation without sufficient funds to do so.
If you wish to seek to adjourn this matter, please note that the Society
will strenuously oppose such an application. It is also not the
Society’s place to make an application for an adjournment. It is up
to you to make an application for an adjournment and if you wish to
do so, you should do this ideally before the actual hearing date. It is
up to you to move the application and if you wish to do so, this should
be done before the hearing date i.e. today or tomorrow. If you intend
to make such an application, then the Society will need to be put on
notice so that it can oppose that application.
Please note that in the absence of the application to adjourn the
matter, the Society intends to proceed with the hearing on Thursday
25th February 2010.”
reads as follows.
“Whilst Mr. Irwin is correct, he fails to detail the fact that his nominee
holds all my funds.
I am not in a position to retain legal representation and would be at
an unfairly disadvantage in this regard. Further, I wish to maintain
my right to be heard and call witness, to defend the matter in full.
This cannot happen when any and indeed all limited funds available
are required to maintain my wife and two children.
I therefore seek an adjournment so that I may defend the matter in
full in accordance with natural and constitutional justice.”
60
adjournment and did not attend at the hearing on 25 February 2010. The transcript of the
hearing has been exhibited in these proceedings. As appears from the transcript, at the
commencement of the hearing, counsel acting on behalf of the Law Society expressly
referenced the relevant correspondence. The chairman of the Disciplinary Tribunal
confirmed that the members of the tribunal had been furnished with copies of the
correspondence. Counsel for the Law Society made a detailed submission as to why the
proceedings should not be adjourned. Counsel referred, in particular, to the history of
the disciplinary process to date; to the fact that the Solicitor had not filed a replying
affidavit; and to the fact that the Solicitor had, in his correspondence of 9 July 2009,
expressly confirmed that he was now in “a position to fully respond to the allegation”
that he was in breach of the undertaking.
of the Law Society were accepted, and ruled that the matter should proceed.
that the credit union never received the title deeds or value in place of them.
been instructed by Mr. Michael Kavanagh’s widow, but had not received a file or
undertaking in respect of the lands under folio 63100F.
SOLICITOR’S POSITION
obtained by way of discovery in High Court proceedings taken against him by the credit
union (St. Jarlath’s Credit Union Ltd v. Coleman; High Court 2009 No. 8378 P.), and
(ii) having located his original files, he is now in a position to establish that the
61
undertaking in respect of Mr. Patrick Kavanagh had been discharged at the date of the
complaint. (See, in particular, Mr. Coleman’s affidavit sworn herein on 23 May 2019).
concerned, the undertaking of 16 February 2004 had been confined to a single loan in the
sum of €50,000. It is said that Mr. Kavanagh subsequently drew down two loans from
Irish Nationwide Building Society in April 2005 for the express purpose of refinancing
his loans with the credit union and to release equity on a principal private residence. Two
payments, in the sum of €270,000 and €109,000, respectively, were then made on behalf
of Mr. Patrick Kavanagh by the Solicitor. A copy of the relevant covering letters dated
10 May 2005, and 29 July 2005, have been exhibited. The letter of 10 May 2005 reads
as follows.
“We enclose herewith cheque in the sum of €270,000.00 to clear
account no. 21126 on behalf of our client Patrick Kavanagh.
You might kindly acknowledge safe receipt and confirm that our
Undertaking is discharged.”
credit union (Member No. 21126) has been exhibited. As appears therefrom, the account
is, in effect, a rolling account, whereby loan repayments and advances are all recorded
on the one ledger, with the cumulative balance being shown after each transaction. This
is to be contrasted with the approach taken by other financial institutions which tend to
assign separate account numbers to different loans.
been credited to Mr. Kavanagh’s account, there was a cumulative balance of €341,532.65
outstanding as of 4 August 2005.
is exhibited at “DC13” of Mr. Coleman’s affidavit of 10 October 2019 sworn in
62
proceedings 2010 No. 65 SA). Mr. Kavanagh sets out his understanding of the
circumstances leading up to the issuing of the undertaking on 16 February 2004 as
follows.
“6. I required working capital for the two building projects and I
attended with Tom Creaven, Manager of St. Jarlath’s Credit
Union Limited on the 16th day of February 2004. I told Tom
Creaven that I was building two house, one for myself in
Kilcoona and one for my brother in Kilbannon and that both
houses were in the course of construction. I asked for a loan
of €50,000.
7. Tom Creaven asked for security for the loan of €50,000. I
telephoned Daniel Coleman and asked him to fax over an
undertaking to Tom Creaven over the house at Kilbannon
which was folio 63100F County Galway. I was due €120,000
from the building works and it was usual practice for us to
sell properties by way of a contract for sale for the site and
building agreement for the house. Daniel Coleman faxed
over the undertaking for the attention of Tom Creaven which
referred to folio 63100F County Galway which was Michael
Kavanagh’s site.”
had not been relied upon by the credit union in respect of further borrowings.
“12. The undertaking of the 16th February 2004 was never relied
upon by Tom Creaven or St. Jarlath’s Credit Union Limited
in the application for or approval of any of my eight
subsequent loans detailed at paragraph 11. Tom Creaven
approved each of the eight subsequent loans which were
granted without any discussion, mention or reliance on the
undertaking of 16th February 2004. For the avoidance of any
doubt, the 8 subsequent loans were approved without any
reliance on the lands of folio 63100F County Galway or in
the alternative without reliance on a property known as
Kilbannon, Tuam, County Galway.”
63
SOLICITOR’S CHALLENGE TO THE FINDINGS OF MISCONDUCT
(a). Failure to grant an adjournment
acted in breach of fair procedures and constitutional justice in “summarily” refusing his
application to adjourn the hearing scheduled for 25 February 2010.
(b). Alleged failure to submit points of defence
his failure to attend the hearing, this did not excuse the due process obligations of the
Disciplinary Tribunal. Rather, it is said, it enhanced them. In particular, it is submitted
that the Disciplinary Tribunal should have put the content of the Solicitor’s letter dated
19 November 2008 to the witness from the credit union, Mr Culkeen. This is a reference
to a letter written by the Solicitor to the credit union in response to the latter’s ongoing
enquiries in respect of the undertaking. The Solicitor had requested that the credit union
furnish the following documents by return: (1) a copy of the undertaking; (2) a copy of
the loan agreement duly signed; (3) the amount of monies advanced; (4) the amount of
repayments made (if any); and (5) details of any special conditions. It does not appear
that this letter was ever replied to.
(c). Alleged failure to adequately investigate the complaint
investigation of the complaint included consideration of a matter as “rudimentary” as the
loan account statements, then the Complaints and Client Relations Committee would
have been put on enquiry as to the repayments.
64
(d). Alleged material non-disclosure led to errors of fact that became errors of law
25 February 2010. The statement of account, which has since been exhibited as part of
these proceedings, records the crediting of the payments of €270,000 and €109,000 on
12 May 2005, and 4 August 2005, respectively. It is also alleged that the credit union
failed to disclose a previous complaint which had been made by it to the Law Society.
This complaint had been made in respect of the account of the late Michael Kavanagh,
and bore the reference “S8347/27/C/3/2”.
stamped as having been received on 6 December 2006). This is a letter from Concannon
and Meagher Solicitors on behalf of the credit union to the Law Society, and the relevant
part reads as follows.
“We can confirm that the monies owing to our Client, St. Jarlath’s
Credit Union Ltd., Tuam have now finally been paid on foot of the
Life Policy paid out on the Late Mr. Michael Kavanagh. We are now
in the process of clearing up related issues so that our files can be
closed on same.
Insofar as the amounts owing have been paid, our Client no longer
wishes to pursue the Complaint against Mr Coleman on foot of his
Undertakings to our Client.”
“39. Also when going through what was discovered by St Jarlath’s Credit
Union I saw that the file copy of the letter of the 6th December 2006
had been altered to conceal the release of all undertakings on behalf
of Michael Kavanagh. This had the effect that anybody looking at
the file would not realise that the alleged undertaking that I stood
accused of breaching (and actually at this stage had been convicted
and struck off the Roll of Solicitors for so breaching) had in fact been
discharged. I beg to refer to a copy of the altered letter from
Concannon and Meagher (the then solicitors for the Credit Union)
dated 6th December 2006 […]. I can only presume that the letter was
altered to hide the payment and the compliance with the undertakings.
40. It can be seen from the foregoing that all undertakings granted to St.
Jarlath’s Credit Union by my office for Patrick Kavanagh were
discharged on 10th May 2005. All undertakings granted to St.
65
Jarlath’s Credit Union for Michael Kavanagh had been discharged by
6th December 2006. This was confirmed by the (unaltered) letter of
6th December 2006 from Concannon and Meagher to the Law Society
releasing all undertakings found at DC 14. For completeness, I
confirm that a separate loan of Patrick Kavanagh was paid off by my
office. Therefore there can be no doubt that any possible liability of
my office to St Jarlath’s Credit Union in respect of Michael and
Patrick Kavanagh and the undertaking of 16th February 2004 had all
been discharged by 6th December 2006.”
(e). Alleged failure to apply any test for reliance on the undertaking
tribunal in determining whether there has been a breach of an undertaking must be
satisfied beyond a reasonable doubt (a) that the undertaking was granted by the solicitor
concerned, and (b) that the undertaking was relied upon by the relevant financial
institution. Whereas it is accepted that the Solicitor granted the undertaking, it is disputed
that the undertaking had been relied upon by the credit union. The Solicitor also
maintains that the undertaking had been discharged. It is submitted that the relevant
records, e.g. the loan promissory notes, demonstrate clearly that there had been no
reliance on nor requirement for security in the form of an undertaking save for the loan
of €50,000 granted on 16 February 2004.
(f). Alleged failure to quantify the loss in making an order for restitution
obtained—an order that the sum of €320,000 be paid in restitution to the credit union.
No equivalent order is sought as part of the remitted application to the High Court.
pursues before the High Court, and further suggests that the Law Society might not be
pursuing the application for restitution from a “tactical perspective”, and to avoid cross-
examination of Mr. Culkeen.
66
part of the Disciplinary Tribunal to search out and obtain this correspondence as part of
its inquiry in February 2010. The Disciplinary Tribunal is said to have been under an
obligation to do so notwithstanding that the Solicitor chose not to participate at the
hearing, and had indicated in correspondence that he had “now obtained the relevant
information to answer the complaint of Saint Jarlath’s Credit Union”, and that he was in
“a position to fully respond to the allegation”. (See paragraph 165 above).
FINDINGS OF THE COURT RE: UNDERTAKING TO CREDIT UNION
credit union are not sustainable, in the sense that that term is used in Law Society of
that the members of the Disciplinary Tribunal had not been provided with all relevant
documentation. The case presented to the Disciplinary Tribunal by the Law Society—
and reprised before this court—is superficially attractive. The undertaking is said to be
in very straightforward and simple terms: the Solicitor was to hold the title deeds on trust
to the order of the credit union. The fact that the lands were sold on 30 September 2005
is said to represent a breach of these terms.
has been made available to the Solicitor subsequently, as part of the discovery process in
the proceedings taken as between the credit union and the Solicitor (St. Jarlath’s Credit
Union Ltd v. Coleman; High Court 2009 No. 8378 P.) that the Solicitor had, in fact,
written to the credit union seeking to be discharged from the undertaking. More
67
specifically, the Solicitor had written to the credit union on 10 May 2005 in the following
terms.
“We enclose herewith cheque in the sum of €270,000.00 to clear
account no. 21126 on behalf of our client Patrick Kavanagh.
You might kindly acknowledge safe receipt and confirm that our
Undertaking is discharged.”
he had not come across any documentary evidence to demonstrate that the undertaking
had been released. Mr. Culkeen expressed his “opinion” that whoever had dealt with the
letter of 10 May 2005 may have said that, as Mr. Kavanagh’s account was not being
cleared in full by the payment of €270,000, there was no question of the undertaking
being discharged.
the relevant time, and only took up his position as chief executive some years later in
2007. The witness was thus not in a position to give direct evidence as to the events of
2005).
that he could not say with certainty that a document which released the Solicitor from the
undertaking might not exist. The witness had earlier confirmed that there was no copy
of a reply to the letter of 10 May 2005 on the credit union’s file.
payment in the sum of €109,000 had been put before the Disciplinary Tribunal at its
hearing on 25 February 2010. The witness on behalf of the credit union had been asked
whether there was anything on the file to suggest that the Solicitor had been released.
His reply was as follows.
“Q. And from your knowledge of the Credit Union file was there
anything there to suggest the Credit Union had ever released
68
Mr. Coleman from the undertaking or consented to anybody
else stepping in?
A. No, we would formally deal with both. If there was such
request, there would be a letter there either discharging it or
giving permission for someone else to take it over.”
July 2005 between the Solicitor and the credit union had not been put before the
Disciplinary Tribunal. The correspondence was relevant and should have been made
available. The correspondence must, presumably, have been in the possession of the
credit union in that it has subsequently been made available by the credit union to the
Solicitor by way of discovery in proceedings taken by the credit union to seek to enforce
the undertaking.
appropriateness of relying on discovery from other proceedings by either the Law Society
or the credit union (who held a watching brief on the hearing before me). I propose to
have regard to this documentation, by reference to the principles in Cork Plastics
It has since been confirmed by the Solicitor in his supplemental written submissions of
12 June 2020 that the parties had reached express agreement as to the admissibility of the
discovery documentation).
to the letter of 10 May 2005. In particular, the credit union cannot say with certainty
whether the undertaking might, in fact, have been released. This is not a fanciful
possibility. As set out earlier, Mr. Patrick Kavanagh has averred, in his affidavit of
30 August 2019, that the credit union had granted each of the eight subsequent loans
without any discussion, mention or reliance on the undertaking of 16 February 2004. Mr.
69
Kavanagh has also averred that the payment of 10 May 2005 had been preceded by a
telephone call between the Solicitor’s office and Mr. Creaven in which it was stated that
the proposed payment of €270,000 was to clear the loan of €50,000 and to release the
undertaking. (See paragraph 16 of the affidavit). If all of this be correct, then the credit
union might well have released the undertaking once the initial borrowings of €50,000
had been paid off, as is now asserted on behalf of the Solicitor.
complaint against the Solicitor in respect of an alleged breach of an undertaking in respect
of Mr. Michael Kavanagh. See the letter of 5 December 2006 cited at paragraph 186
above. The fact that no reference is made in the letter to an alleged breach of the
undertaking insofar as Mr. Patrick Kavanagh is concerned is consistent with a decision
having been taken by the then management of the credit union that all issues in respect
of the undertaking had been resolved. In this regard, it will be recalled that the alleged
breach of the undertaking, i.e. the sale of the lands under folio 63100F, had occurred
more than a year earlier in September 2005, and was relevant to both of the Kavanagh
brothers. If, as now maintained by the credit union, there was an outstanding breach,
then it is surprising that it is not mentioned in the letter of 5 December 2006, and that the
complaint only surfaced in January 2009, i.e. some two years later.
This is because this court’s function, on this application, is confined to assessing whether
the findings of misconduct have a sustainable basis. It is sufficient for this purpose to
hold that the allegation that the Solicitor breached the undertaking has not been
established beyond a reasonable doubt. The state of the evidence is such that it cannot
reasonably be excluded that the credit union did, in fact, release him from his undertaking
in response to the letter and payment of 10 May 2005.
70
release of the undertaking, only to a request to be released. It is said that this is a central
gap in the proofs to be put forward on behalf of the Solicitor.
issued or that the Solicitor has failed to “proof” his case, this is inconsistent with the
burden of proof which lies on the Law Society. The onus is upon the Law Society to
establish beyond a reasonable doubt that the alleged misconduct occurred. For the
reasons detailed above, the state of the evidence admits of a reasonable interpretation
which is consistent with the Solicitor’s innocence.
sustainable basis for same. The position can also be analysed from the perspective of
procedural fairness. The hearing on 25 February 2010 was unfair in that not all relevant
material had been put before the Disciplinary Tribunal. In particular, the details of (i) the
correspondence and payments of May and July 2005, and (ii) the withdrawal of the
previous complaint on 5 December 2006, should all have been put before the members
of the Disciplinary Tribunal.
in circumstances where the Law Society subsequently sought—and initially obtained—
an order requiring the Solicitor to make restitution in the sum of €320,000. The factual
basis for this order was never properly established. There was, for example, no evidence
as to the value of the lands the subject of the undertaking. Mr. Kavanagh has averred
that the lands were sold for €160,000 in September 2005. On the authority of Allied Irish
Banks plc v. Maguire [2016] IESC 57; [2016] 3 I.R. 85, it is difficult to understand how
the credit union could have been entitled to compensation greater than the market value
of the lands. It may also be the case that the credit union had already received value for
71
the undertaking insofar as it recovered monies in respect of Mr. Michael Kavanagh’s
insurance policy.
difficulties in this case could have been avoided had the Solicitor attended at the hearing
on 25 February 2010. The Solicitor should have attended at the hearing, and it was
wrongheaded of him not to do so, if even only for the purpose of seeking an adjournment.
Given his failure to attend, the Disciplinary Tribunal acted within its jurisdiction in
refusing to adjourn the proceedings for the reasons detailed by counsel for the Law
Society and cited with approval by the chairman of the Disciplinary Tribunal. The
Solicitor had been on notice of the hearing date for a number of weeks. More
importantly, the Solicitor had, in his correspondence of 9 July 2009, expressly confirmed
that he was now in “a position to fully respond to the allegation” that he was in breach
of the undertaking. The Solicitor had also been in a position to obtain legal representation
at the hearing in respect of the first complaint less than two weeks earlier. No proper
explanation had been provided as to why it was that he now claimed to be unable to
obtain representation. Insofar as the Solicitor has sought to criticise the decision not to
adjourn, I reject that submission.
were obliged to ensure that all relevant material was put before the Disciplinary Tribunal.
The Law Society should have sought out more information in respect of the payments on
the credit union account. It should also have put the withdrawal of the previous complaint
before the Disciplinary Tribunal.
72
ADMISSION OF MR. KAVANAGH’S AFFIDAVIT
findings of misconduct, I have had regard to the affidavit evidence of Mr. Kavanagh and
to other material which had not been before the Disciplinary Tribunal. Counsel had been
allowed to refer to this evidence de bene esse at the hearing before me in March 2020,
with a ruling on its admissibility to be made as part of the reserved judgment on the
application.
appeal as set out by the Supreme Court in Murphy v. Minister for Defence
[1991] 2 I.R. 161. Counsel for the Solicitor, however, emphasised that the principles
apply by analogy only, in that the application currently before the court is not an appeal
as such. Counsel also draws attention to passages in Law Society of Ireland v. Coleman
[2018] IESC 80 where McKechnie J. appears to envisage that additional evidence can be
adduced on a “strike off” application.
reported judgment).
“1. The evidence sought to be adduced must have been in existence at
the time of the trial and must have been such that it could not have
been obtained with reasonable diligence for use at the trial;
2. The evidence must be such that if given it would probably have an
important influence on the result of the case, though it need not be
decisive;
3. The evidence must be such as is presumably to be believed or, in
other words, it must be apparently credible, though it need not be
incontrovertible.”
exercised by the court under section 8 of the Solicitors (Amendment) Act 1960, they
nevertheless provide useful guidance as to the type of considerations to be taken into
73
account. I am satisfied that it is in the interests of justice to admit the new evidence in
this case. The Solicitor had been at a significant disadvantage in defending the
allegations against him given that, by the time the complaint came to be made, the
relevant client files had been transferred to other law firms. The Solicitor did not have
access to the files. Moreover, he did not have access to the files held by the credit union,
including copies of the accounts, recording the payments made in the summer of 2005,
and the copy correspondence. It does not appear that the credit union ever responded to
his letter of 19 November 2008 requesting copies of the relevant documentation.
The complaint was submitted to the Law Society in January 2009, which is some four
and a half years after the undertaking had been given, and more than three years after the
event said to constitute the breach, i.e. the sale of the lands in September 2005, had
occurred. The Solicitor cannot be criticised for not having an immediate recollection of
events of such a vintage, without sight of the documentation. For this reason, the findings
that he failed to adequately respond to correspondence from the Law Society and the
credit union are not sustainable.
by the Solicitor prior to the hearing in February 2010. The Law Society should have used
its statutory powers to secure the evidence. The two other criteria under Murphy are also
met: the evidence would have had an important influence on the outcome of the case, and
is credible.
INCONSISTENCY WITH EARLIER JUDGMENT
undertaking to the credit union are unsustainable, has the consequence that there is some
74
inconsistency between this judgment and the earlier judgment delivered in respect of the
application for an extension of time to appeal. More specifically, in determining whether
or not to grant an extension of time to appeal, this court had to assess the strength of the
proposed grounds of appeal. As set out at paragraphs 152 to 158 of the judgment of
7 April 2020, this court concluded that arguable grounds of appeal, within the meaning
of Seniors Money Mortgages (Ireland) DAC v. Gately [2020] IESC 3, had not been made
out.
threshold for setting aside findings of misconduct as unsustainable is higher than that for
an appeal. (See discussion at paragraphs 46 et seq. above). It must follow, therefore,
that had the arguments advanced on behalf of the Solicitor in the context of the “strike
off” application been made instead in the context of a statutory appeal under section 7(13)
of the Solicitors (Amendment) Act 1960, then such an appeal would inevitably have been
successful. The conclusion in the earlier judgment that there were not strong grounds of
appeal has thus transpired to be incorrect.
affidavit of Mr. Patrick Kavanagh of August 2019, which is central to this court’s
determination, had been submitted in the context of the “strike off” application as
opposed to the application for an extension of time. Moreover, different functions were
being exercised by the court upon the two applications. It does not automatically follow
that a more positive assessment of the strength of the appeal would have resulted in the
grant of an extension of time. As discussed in detail in the judgment of 7 April 2020, the
judgment of the Supreme Court in Seniors Money Mortgages (Ireland) DAC v. Gately
[2020] IESC 3 requires a number of other considerations to be taken into account.
75
delivered a single omnibus judgment on both applications. This would have ensured that
the was an appropriate crossover between the matters considered in each of the
applications. As noted earlier, however, the parties’ preference had been that two
separate judgments would be delivered.
the Solicitor. This is because the Solicitor has achieved his objective in having the
findings of misconduct in respect of the credit union undertaking set aside. The fact that,
procedurally, this has been achieved in the context of the “strike off” application, rather
than in the context of a statutory appeal, does not make any substantive difference. The
same result has eventuated. Of course, the Solicitor will be entitled to make submissions,
if he so wishes, in respect of the consequence of this in terms of the appropriate costs
order to be made.
SERVICE OF REPORT OF THE DISCIPLINARY TRIBUNAL
issue the question of whether the motion papers in respect of the “strike off” application
had been properly served upon him in July 2010.
off” application in March 2020. As the Law Society correctly point out in their written
submission, the oral hearing in respect of the Fairview Construction Ltd matter had been
concluded without any reference to the issue of service.
for an extension of time to appeal, Coleman v. Law Society of Ireland [2020] IEHC 162.
See paragraphs 159 to 172 of the judgment. This finding applies mutatis mutandis. In
76
particular, it is entirely artificial to suggest that the Solicitor had not been served with the
motion papers in circumstances where he had actually appeared before the then President
of the High Court on 26 July 2010. Moreover, the Solicitor has since filed detailed
affidavits in response to the Law Society’s application, and participated fully in the
hearing under section 8 of the Solicitors (Amendment) Act 1960. Having done so, the
Solicitor must be taken to have acquiesced in any alleged failure to serve the papers
within time.
77
PART IV
APPROPRIATE SANCTION
(Amendment) Act 1994 and as further amended by the Solicitors (Amendment) Act
2002) provides as follows.
(a) the High Court, after consideration of the report—
(i) may by order do one or more of the following things, namely—
(I) strike the name of the solicitor off the roll;
(II) suspend the solicitor from practice for such specified period
and on such terms as the Court thinks fit;
(III) prohibit the solicitor from practising on his own account as a
sole practitioner or in partnership for such period, and subject
to such further limitation as to the nature of his employment,
as the Court may provide;
(IV) restrict the solicitor practising in a particular area of work for
such period as the Court may provide;
(V) censure the solicitor or censure him and require him to pay a
money penalty;
and, in making any such order, the Court shall take account of any
finding of misconduct on the part of the respondent solicitor
previously made by the Disciplinary Tribunal (or by their
predecessor, the Disciplinary Committee) and not rescinded by the
Court, and of any order made by the Court under the Solicitors Acts,
1954 to 2002, in respect of the respondent solicitor;
all cases the ultimate arbiter of the appropriate sanction to be imposed is the High Court.
There is no question of the High Court being bound by the recommendation made by the
Disciplinary Tribunal or by the submissions of the Law Society.
of the judgment).
78
“[…] 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.”
is to be found in the judgment of the Supreme Court in Carroll v. Law Society of Ireland
[2016] IESC 49; [2016] 1 I.R. 676. McKechnie J. had summarised the principles
governing admission to the Roll of Solicitors towards the end of his judgment. The
following observations are relevant, by analogy, to an application to strike a solicitor’s
name from the Roll. (See paragraph 71, page 705 of the reported judgment).
“From the foregoing it appears:–
[…]
(vi) that one common strand permeates all levels of the
profession: it is trust, integrity, probity and, in a nutshell,
honesty; violations of these principles will differ as to degree
and seriousness, as will the sanction imposed in response;
(vii) that substandard behaviour not reaching the misconduct level,
such as moments of neglect or carelessness, can be
differentiated from that which does. The former can attract a
range of sanction options, up to and including suspension and
conditionality of further practice. The latter, when
established, may well involve a consideration of dismissal
from the profession. Where proven dishonesty is involved,
with or without the oft associated features of
misrepresentation, concealment and deceit, such misconduct
will almost always feature at the highest level of the scale
which I have referred to: therefore, in such circumstances, the
sanction of dismissal will be a front line consideration;
(viii)
O’Laoire v. The Medical Council (Unreported, High Court,
Keane J., 27 January 1995) and so many other cases show
how established misconduct of a serious nature is regarded
both by the professional body and by the courts: despite the
personal devastation which a strike off may have for most
79
individuals and their families, the same must be regarded as
a likely result of such a finding;
(ix) however, such an outcome should not be regarded as a
certainty and should not be applied in some mathematical or
formulistic way. The sanction imposed may, if appropriate,
have a punitive and dissuasive element to it; it will always be
influenced by the necessity to maintain the public policy
considerations underpinning the regulatory and judicial
approach to the solicitors’ profession. In addition, however,
given the constitutional dimension involved, the penalty must
be proportionate both to the misconduct as established and to
the considerations as mentioned;”
dishonesty is established on the part of a solicitor, then no matter how strong the
mitigation is, a strike off will almost invariably follow. The President emphasised the
need to maintain trust in the solicitors profession.
submissions of 12 June 2020, on the judgment of the High Court (Kelly P.) in Law
Society of Ireland v. D’Alton [2019] IEHC 177. In that judgment, particular weight had
been attached to the respondent solicitor’s chronic health condition at the time the
disciplinary offences occurred. It is submitted on behalf of the Solicitor, by analogy, that
the “strike off” recommendation should not be followed having regard to the Solicitor’s
personal circumstances as disclosed in his replying affidavit.
FINDINGS OF THE COURT ON APPROPRIATE SANCTION
admitted to causing or allowing a “fictitious contract” to come into existence for the
purpose of “misleading” a financial institution into advancing monies to a development
company. The circumstances of the offence have been set out in detail earlier, and can
be summarised as follows. It had been a condition precedent to the release of part of the
80
funds under a loan agreement that the borrower’s solicitor confirm in writing that
“unconditional and irrevocable” contracts with deposits paid were in place. The
Solicitor has admitted, in his affidavit of 12 June 2009, that he sent a letter to ACC Bank
advising that the development had been sold.
The contracts for sale which had purportedly been signed in trust by another solicitor
could not have been enforced against the purchaser. The signature of the other solicitor
had been improperly placed on the contracts for sale by the Solicitor. This was done
without the authority of the other solicitor, Mr. O’Donnell. There are no circumstances
in which it would be proper for one solicitor to place another solicitor’s name on a
contract without the written authority of the latter, and without indicating on the contract
that the signature was not that of the other solicitor.
financial institutions, can have the utmost trust in the integrity and probity of solicitors.
A solicitor’s word is his or her bond. If a solicitor confirms that a particular state of
affairs exists, then the recipient is entitled to rely on that confirmation. (Although not
directly relevant to this case given my conclusions on the second set of disciplinary
proceedings, the beneficiary of a solicitor’s undertaking is similarly entitled to rely on
the express terms of that undertaking).
was dishonest, rather than merely negligent or careless. In the circumstances, the
sanction of dismissal will be a front line consideration (Law Society of Ireland v.
Coleman).
alleged that the conduct of the Solicitor resulted in any loss being incurred by the
81
financial institution. It seems that an agreement for the sale of the lands was subsequently
reached between the parties some eleven months later, and that the loan to ACC Bank
has been paid off. Secondly, this is a first offence by the Solicitor. Thirdly, the Solicitor
had, initially, co-operated in the disciplinary proceedings, and had made a number of
admissions of fact at the hearing on 10 February 2010. Of course, the weight to be
attached to this mitigating factor is greatly reduced by the subsequent conduct of the
Solicitor in attempting to resile from these admissions. Finally, as noted earlier, reliance
is placed on the Solicitor’s personal circumstances as disclosed in his replying affidavit,
that the appropriate sanction in this case is an order striking the name of the Solicitor off
the Roll of Solicitors. There is a public interest in ensuring that the integrity of the
solicitors profession is maintained. This is especially so in respect of conveyancing
transactions. Here, the making of a strike off order is necessary to advance this public
interest. It would undermine trust in the profession were a solicitor, who has been found
guilty of dishonesty in a conveyancing transaction, to be allowed to continue in practice.
The sanction imposed may, if appropriate, have a punitive and dissuasive element
(Carroll v. Law Society of Ireland).
the imposition of restrictions on the right to practice, might be imposed instead. I am
satisfied that such a lesser sanction would not be proportionate to the gravity of the
misconduct in this case. The misconduct involved a cavalier disregard of the importance
of ensuring that contracts for sale are properly executed and can be relied upon by all
parties. The admitted purpose had been to mislead a financial institution into advancing
funds to the clients of the Solicitor. If unchecked, conduct of this type runs the risk of
82
undermining the efficacy of lending in respect of development projects. More generally,
it undermines confidence in the role of a solicitor in conveyancing transactions.
justify the imposition of a lesser sanction. Whereas the Solicitor had been faced with
difficult personal circumstances, including serious health issues affecting close family
members, this does not ameliorate the gravity of his misconduct. Difficult personal
circumstances might, at most, provide context for misconduct consisting of inattention
to the detail of practice management, but such difficulties cannot excuse dishonest
behaviour of the type at issue here. Further, it is to be noted that the health issues arose
at a date subsequent to the key events (which it will be recalled, occurred during the
period April 2004 to July 2004). This distinguishes the facts of the present case from
CONCLUSION AND PROPOSED FORM OF ORDER
Daniel Coleman’s name off the Roll of Solicitors, pursuant to section 8 of the Solicitors
(Amendment) Act 1960 (as substituted by the Solicitors (Amendment) Act 1994 and as
further amended by the Solicitors (Amendment) Act 2002).
be dismissed.
of the delivery of judgments electronically, as follows.
“The parties will be invited to communicate electronically with the
Court on issues arising (if any) out of the judgment such as the precise
form of order which requires to be made or questions concerning
costs. If there are such issues and the parties do not agree in this
regard concise written submissions should be filed electronically with
the Office of the Court within 14 days of delivery subject to any other
83
direction given in the judgment. Unless the interests of justice require
an oral hearing to resolve such matters then any issues thereby arising
will be dealt with remotely and any ruling which the Court is required
to make will also be published on the website and will include a
synopsis of the relevant submissions made, where appropriate.”
form of order, and on the question of legal costs. In default of agreement between the
parties on these issues, short written submissions should be filed in the Central Office.
The first set of submissions should be filed by the Law Society by 9 October 2020; the
Solicitor is then to file his replying submissions by 30 October 2020. A copy of the
submissions is to be uploaded to the designated ShareFile folder.
Appearances
Shane Murphy, SC and Neasa Bird for the Law Society instructed by A & L Goodbody
Paul Comiskey O’Keeffe for the respondent solicitor instructed by John P. O’Donohoe
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