Sexton & another -v- Solicitors Acts HIGH COURTJudgment was given by Ms Justice Irvine on January 29th, 2008
JUDGMENT
The applicant, Dermot Connolly, had failed to establish that the Solicitors Disciplinary Tribunal was in error in finding that he had failed to establish a prima-facie case for an inquiry into the alleged professional misconduct of solicitors Sean Sexton and Jean Passi.
BACKGROUND
The case arose from events surrounding the sale of Mr Connolly's home in 1994. The need for the sale arose from the EBS building society receiving an order for possession of the property and eviction was scheduled to take place on March 14th, 1994. The eviction was deferred as Mr Connolly sought to sell the house, and he retained Mr Sexton to carry out the sale.
The property was advertised for sale by auctioneer Lawrence McCabe at £60,000. An initial offer of £61,050 was made, but this was later reduced and then the sale fell through. A quantity surveyor valued the property at this price. Mr Connolly then found a purchaser through his own efforts who offered £63,000 for the house. The closing date was set for November 14th, later revised to November 16th.
There was dispute about the events in the days leading up to the handover of the house. Mr Connolly claimed he had a verbal agreement with the purchaser that he would have five weeks to vacate the house, though this was not written down. He claimed that the solicitor working with Mr Sexton, Ms Passi, had bullied him and his wife into signing documents and took the keys of the house from them on November 16th and handed them over to the purchaser.
Mr Connolly complained about the conduct of Mr Sexton and Ms Passi to the Law Society, which referred the matter to the Solicitors Disciplinary Tribunal. This found that no prima-facie case of professional misconduct had been established.
Mr Connolly, through his nephew, Mr Jennings, appealed this decision to the High Court. During the proceedings fresh complaints were made against Mr Sexton. Ms Justice Irvine said that, because the applicant was a lay litigant, the court had taken upon itself to consider whether the tribunal fell into error in determining that no prima-facie case existed.
DECISION
In relation to Ms Passi, whose conduct on November 16th, 1994, was complained of, Ms Justice Irvine said that "none of the above actions, even if true, constitute the type of behaviour that could be considered to fall within the definition of professional misconduct, particularly when these complaints are placed against the backdrop of the undisputed facts pertaining to the sale".
She said there was no credible evidence that Ms Passi had forced Mr Connolly's sick wife to sign away their home. "The applicant himself found the purchaser for this premises as per his affidavits. He instructed his solicitors to prepare contracts to sell to Mr Walsh and agreed the date upon which the sale would be closed. Contracts were signed by Mr Walsh on the very date which had been fixed by the EBS for the eviction of the applicant and his wife." Two other complaints had nothing to do with Ms Passi whatsoever, she said.
In relation to Mr Sexton, six of the complaints concerned alleged collusion between the solicitor and Mr McCabe, the auctioneer, to sell the house below value. The tribunal had found there was no evidence to support this allegation. There was also an allegation concerning a booking deposit, and one that the solicitor did not take proper account of expert reports from two valuers. The tribunal found there was no evidence for the fraud alleged, and that the matter of the valuers' reports was not relevant to the role of solicitor.
Mr Jennings also made a number of allegations against Mr Sexton on behalf of Mr Connolly to the court that had not been made to the Law Society. These related to fees charged by Mr Sexton, and fees paid by him to Mr McCabe.
Ms Justice Irvine said it was not open to the court to hear complaints that were not dealt with by the tribunal. Nonetheless, the court had listened to Mr Jennings, and considered that it was highly unlikely that, had these matters been brought to the tribunal, they would have resulted in the tribunal finding a prima facie case against Mr Sexton.
In conclusion, she said: "It is regrettable that the sale of the applicant's house, which occurred over 13 years ago, is still causing immense distress to the applicant and that he has not found himself capable of relinquishing his belief that the loss or his home and/or the value of the same occurred by reason of professional wrong-doing on the part of those whom he retained to protect his interests.
"It is clear to this court that the applicant's problems are a direct consequence of his inability to meet the mortgage payments in respect of his family home and that this failure on his part led to the EBS obtaining an order for possession. This order for possession in turn brought about a forced sale of the family home."
She rejected the applicant's appeal. The full judgment is on www.courts.ie