O'Reilly -v- Lee
SUPREME COURT
Judgment delivered on Ms Justice Macken on April
23rd, 2008, Ms Justice Denham and Mr Justice Fennelly
concurring.
JUDGMENT
The Supreme Court dismissed an appeal from a
judgment of the High Court, which had rejected Mr O'Reilly's appeal
of a decision of the Solicitors' Disciplinary Tribunal, rejecting
his complaint against the respondent.
The tribunal had found no prima facie case had been established.
BACKGROUND
Under the Solicitors (Amendment) Act 1960, as
amended in 1994 and 2002, a person who complains about the
professional conduct of a solicitor, where the Solicitors'
Disciplinary Tribunal finds there is no prima facie case to inquire
into, can appeal this decision to the High Court.
Ms Justice Macken pointed out that therefore an appeal to the High Court was a hearing of the complaint de novo, and not an examination of the decision of the tribunal.
The complaint arose from matrimonial proceedings, and covered several matters where the applicant complained that the opposing solicitor had engaged in professional misconduct; that the proceedings were conducted in an oppressive manner with numerous unnecessary applications, involving considerable expense; that reports were obtained which were inappropriate; that the appellant's children were examined without his knowledge; that he was repeatedly given short notice of applications; that witnesses were called without advance notice to him; that his resignation letter from his former employer was improperly obtained; that improper use was made of his laptop computer; that he was subjected to inappropriate applications for discovery; that inappropriate inquiries were made of third parties, that his opponent's discovery was incomplete and that his discovery in relation to shares in a company was not accepted.
The appellant stated he was not trying to question the decisions of the Circuit Court relating to the matrimonial proceedings.
In the High Court, the then president of the court, Mr Justice Finnegan, said that all the matters raised should have been canvassed in a forum other than the Solicitors' Disciplinary Tribunal.
"It is a matter for the trial judge to determine most of the matters raised by way of complaint in the course of the hearing and this appears to have been done. If dissatisfied with the manner in which a trial is conducted, a party may appeal the same," Mr Justice Finnegan said.
"It is inappropriate to ask the Solicitors' Disciplinary Tribunal to second guess the trial judge in relation to such matters."
Mr OBrien challenged the decision of the President of the High Court on the basis that he did not give any reasons for concluding that no prima facie case existed, or that such reasons were inadequate, and that he did not consider the various professional codes of conduct or rules of court.
Counsel for the respondent, Mr Eoin McCullough SC, argued that all the issues raised were procedural matters that should have been dealt with by the trial judge.
Even if this were not exclusively so, he said that none of the behaviour complained of could constitute behaviour tending to bring the profession of solicitors into disrepute, and, at worst, was part of vigorous litigation.
DECISION
In rejecting the applicant's appeal, Mr Justice
Macken found that the president of the High Court was correct in
finding that the complaints were fundamentally procedural in
nature.
"I fully accept the disadvantage which a lay litigant is under when he or she is a party to proceedings in any court, including matrimonial proceedings, where there may be vigorous litigation going on, whether by an opposing party or by the legal representative of an opposing party.
"But it does not follow that any or every manifestation of such vigorous litigation constitutes, ipso facto, misconduct on the part of a solicitor," she said.
Turning to the reference to the codes of conduct, Ms Justice Macken said that the appellant did not refer to any breach of any particular code, but rather made general reference to the codes.
He had also alleged bias on the part of the president of the High Court, on the basis that under the provisions of the Solicitors Acts 1954-2002 one of the functions of the president is to appoint, from among a group nominated by the Law Society, certain solicitor members of the Solicitors' Disciplinary Tribunal.
Ms Justice Macken referred to the restatement of the law on objective bias in the recent case Kelly -v- TCD, which in turn quoted the Bula Ltd -v- Tara Mines judgment, and which said the test was "whether a reasonable person in the circumstances would have a reasonable apprehension that the applicants would not have a fair hearing from an impartial judge on the issues".
She said that the mere fact that the president appoints certain persons to the Solicitors' Disciplinary Tribunal could not and would not lead an reasonable person to have a reasonable apprehension that the appellant would not get a fair hearing.
No case of objective bias had been made.
She affirmed the order of the High Court.
The full text of this judgment is available on www.courts.ie
Applicant appeared in person; Eoin McCullough SC and Mark OMahoney BL, instructed by Patrick Groarke, Longford, Solicitors, for the respondent