Kiran P O'Duffy (applicant) and The Law Society of Ireland (respondent).
Judicial Review - Application for certiori - Orders made in High Court in respect of the applicant - Respondents subsequently invoked and pursued disciplinary process in respect of the applicant - Whether or not the power conferred on the respondents to make application under s.18 of the 2002 Act is to be construed as additional to or as an alternative to the powers of the respondents - Whether s.18(2) gives jurisdiction to the High Court to deal with disciplinary matters arising out of the same facts as necessarily had to be proved for S. 18(1) - Whether, having invoked the jurisdiction of the High Court under s. 18 of the 2002 Act and pursued the remedies thereto to judgment and orders, the respondent was functus officio - Whether the matter is res judicata - Whether a hearing before the disciplinary tribunal would subject the applicant to double jeopardy - The Solicitors Act 1954 (No. 36 ), s. 14(3) - The Solicitors (Amendment) Act 1960 (No. 37 ), s.7 - The Solicitors (Amendment) Act 1994 (No. 27 ), s.17 - The Solicitors (Amendment) Act 2002 (No. 19 ), ss. 9, 18 - Solicitors Accounts Regulations 2001 (SI 421/2001), r. 7(2)a
The High Court, judgment of Mr Justice O'Neill delivered on March 4th,2005.
The power given to the respondents in section18 is additional to the other statutory powers available to them under the Solicitors Acts and was never intended to be an alternative to the invoking of the normal disciplinary process as provided for in those acts. The jurisdiction conferred on the High Court in section 18(2) does not include a jurisdiction to hear and determine disciplinary issues arising out of the facts proved for the purposes of section 18(1), where those disciplinary matters are amenable to the disciplinary procedures set out in the Solicitors Acts. The court should not in judicial review proceedings, or indeed in any other proceedings, seek to restrain in advance the admissibility of material to be offered in evidence before the Disciplinary Tribunal. The principle of double jeopardy concerns itself with identical or similar charges not with identical evidence. The proceedings under s.18 and the proceedings before the disciplinary tribunal are of a wholly different character and could not be said at all to be the presentation of the same charge in both cases.
The High Court so held in refusing the reliefs sought.
James Gilhooly SC. and Deirdre Byrne BL for the applicant; Paul Anthony Mc Dermott BL for the respondent.
Mr Justice O'Neill began his judgment by stating that the applicant was a solicitor. In his application the applicant sought an order of certiorari quashing the decision of the respondents made on July 22nd, 2004, to refer the applicant to the Disciplinary Tribunal.
He also sought an order of prohibition restraining the respondent by its Compensation Fund Committee, officers, servants or agents or any other persons acting on its behalf from acting further, proceeding with, relying on or otherwise making any use whatsoever in furtherance of any disciplinary action against the applicant before the Disciplinary Tribunal of the purported findings detailed in the reports dated May 12th, and June 17th, 2004 and/or the pleadings and proceedings in the matter entitled "The High Court Special Summons The Law Society of Ireland, applicant and Kiran P O'Duffy, respondent bearing record no. 2004/198 SP".
The grounds on which those reliefs and other ancillary reliefs were sought were that in referring the reports dated May 12th and June 17th, 2004, to the President of the High Court the respondent no longer retained seisin of the purported complaints contained within the reports and was functus officio in this regard. A further ground was that the President of the High Court in making an order dated June 14th, 2004, made a finding of fact on the basis of the report dated May 17th, 2004, and any breaches by the applicant of the Regulations of 2001 and, accordingly, the respondent had no jurisdiction to embark on a hearing to consider whether the applicant is in breach of the said regulations as detailed in the said reports.
Mr Justice O'Neill then looked at the background to the matter. On May 20th, 2004, the applicant attended before the Compensation Fund Committee of the respondent in relation to an investigating accountants report dated May 12th, 2004, of his practice pursuant to the Regulations of 2001. The committee decided that the respondent should issue proceedings under section 18 of the 2002 Act against the applicant and the respondent issued proceedings by way of special summons. These came on before the President of the High Court on June 14th, 2004. In those proceedings the respondent sought inter alia an order pursuant to section 18 of the 2002 Act prohibiting the applicant from breaching the Regulations of 2001 and, particular orders sought under section 18 in the circumstances and for costs.
The special summons proceedings were grounded on three affidavits - two by the investigating accountants detailing their findings, the third sworn by the Register of Solicitors and Director of Regulations of the Law Society and Secretary of the Compensation Committee of the society.
On June 14th, 2004, the President of the High Court determined and ordered:
1. That the applicant herein be prohibited from continuing his breach of regulations 7(2)a of the Solicitors Accounts Regulations 2001 by clearing all debit balances identified on its client account as at April 28th, 2004, as set out in the schedule to the order.
2. That the applicant be prohibited from continuing his breaches of the regulations by prohibiting him from creating future debit balances.
The case was adjourned to June 21st, 2004, with costs reserved. By agreement, accountants attended at the applicant's practice to ascertain that the debit balance in the client account had cleared.
A supplementary report by the accountants alleged a portion of the debit balance remained unclear, and on June 21st the case was adjourned again to July 12th, 2004, on which date it was confirmed that all debits in the client account had been cleared.
Subsequently, on July 26th, the proceedings were struck out with costs to the Law Society. On July 22nd, 2004, the Compensation Fund Committee was convened to review matters arising from the accountants' reports of May 12th and June 17th, 2004, and the special summons proceedings.
The applicant was requested to attend by letter dated July 9th, 2004. The letter set out what was to be reviewed, and emphasised the importance of attending the meeting as a decision might be made by the committee to refer the applicant to the Disciplinary Tribunal, together with any other act which might be deemed appropriate.
The applicant attended the meeting on July 22nd, 2004, with his solicitor and senior counsel.
Counsel submitted at the outset, that the committee was functus officio with respect to the complaints of breaches of Regulations of 2001 and as detailed in the reports of May 12th and June 17th, 2004, and, therefore, had no jurisdiction to consider the said reports or to make a decision with respect to same, including a decision to refer the applicant to the Disciplinary Tribunal.
Counsel submitted that complaints of breaches of the regulations by the applicant had already been referred to the President of the High Court under section 18 of the 2002 Act by the special summons proceedings and the President had made a finding of fact with respect to same as evidenced by his order of June 14th, 2004.The Compensation Fund Committee rejected the submissions, considered the reports and the special summons pleadings and proceedings and determined that the complaints made against the applicant should be referred to the Disciplinary Tribunal.
Mr Justice O'Neill said that the issue to be resolved in this case was, whether in circumstances where the respondents make anapplication to the High Court under s.18 of the 2002 Act, are they then precluded from invoking and pursuing the disciplinary process as contained in section 7 of the Solicitors (Amendment) Act 1960 as inserted by s. 17 of the Solicitors (Amendment) Act 1994, and as amended by section 9 of the 2002 Act where the complaint, which was the subject matter of the application to the High Court under section 18 of the 2002 Act, is the same as, or similar to, the subject matter of the complaint sought to be referred to the Disciplinary Tribunal for inquiry.
Mr Justice O'Neill said an alternative way of expressing the issue was whether or not the power conferred on the respondents to make application under section 18 of the 2002 Act is to be construed as additional to the powers the respondents already had, or whether that power is to be construed as an alternative to the powers of the respondent and, specifically, to the power of the Compensation Fund Committee to refer a matter to the Disciplinary Tribunal for inquiry. Section 18 provides:
"18. (1) Where, on the application of the Society, it is shown to the satisfaction of the High Court:
(a) that a solicitor or any other person has contravened, is contravening or is likely to contravene any provision of the Solicitors Acts, 1954 to 2002,or
(b) that a solicitor has contravened, is contravening or is likely to contravene any provision of regulations under those Acts,
(c) the Court may by order prohibit the solicitor or other person concerned from contravening that provision, notwithstanding that such contravention may constitute an offence and notwithstanding section 77 of the Principal Act
(2) An Order under subsection (1) of this section may contain such provisions of a consequential nature as the Court considers appropriate."
Counsel for the applicant submitted that section 18 was enacted in order to provide the respondent with a necessary and clear locus standi to seek conjunctive relief in respect of contraventions or future contraventions of the Solicitors Act and thus to provide them with a rapid and efficacious weapon for the protection of the public. Counsel further submitted that in this case the learned President was on June 14th, 2004, satisfied and made a finding of fact that the applicant had breached regulation 7(a) of the Regulations of 2001. Having made a finding, the learned President made an order under section 18(1) prohibiting the applicant from continuing his breach of regulation 7(2)(a). The learned President then made consequential orders within the terms of section 18(2). Counsel submitted that the findings of fact necessarily made by the learned President amounted to findings of "misconduct" on the part of the applicant, having regard to the definition of "misconduct" as contained in section 3 of the 1960 Act, the relevant portion of which was amended by section 7 of the 2002 Act which provides as follows:
"the contravention of a provision of the Solicitors Acts, 1954 to 2002, or any order or regulation made thereunder."
Counsel for the applicant submitted that the purpose and intent of section 18(2) is that the court should grant relief against the solicitor, and any further or other orders as it sees fit in the circumstances, on the basis of the finding of fact already made by it under section 18(1)(a) or (b), and the court's exercise of its jurisdiction should be viewed in the context, not only of section 18 of the 2002 Act, but also having regard to the provision of section 14(3) of the 1954 Act which refers to the inherent jurisdiction of the High Court, and is in the following terms:
"14(3) The Chief Justice or any judge of the High Court may, notwithstanding anything contained in this Act, exercise any jurisdiction over solicitors which he might have exercised if this Act had not been passed."
It was submitted that the respondents having chosen to invoke the jurisdiction of the High Court under section 18, or on the inherent jurisdiction as preserved in section 14(3), to have raised any disciplinary issues arising out of the complaints made against the applicant as set out in the two accountant reports. In addition, it was submitted that as the disciplinary charge now sought to be pursued, was based upon the same facts and allegations prosecuted by the respondent and considered and adjudged upon by the High Court, the civil standard of proof, if the respondent was permitted to proceed with the hearing before the Disciplinary Tribunal then the applicant would be subjected to a double jeopardy. When the matter would be ultimately before the High Court again for the second time, the court would be required to consider again, the matters referred to in section 7(3) of the 1960 Act together with the sanction suggested by the respondent, with respect to the same conduct which was the subject matter of the earlier application under section 18 of the 2002 Act.
It was submitted that having opted to invoke the jurisdiction of the High Court under section 18, and having pursued the remedies available there to judgment and order, the respondents were now functus officio insofar as the matters complained about in the two accountants' reports and could not seek to relitigate these matters through the process of a disciplinary inquiry.
To do so would be to offend the res judicata principle.
Counsel for the respondents submitted that the power conferred upon the society to invoke the jurisdiction of the High Court under section 18 is an additional power, rather than an alternative to the powers which the respondents already had. It was submitted that the section 18 jurisdiction was entirely different to the disciplinary jurisdiction of the Disciplinary Tribunal. The purpose of section 18 was to prevent or restrain conduct which was in breach of the Solicitors Acts or regulations. In essence, the relief was directed towards the future.
The focus of the disciplinary inquiry was directed to past conduct. The essential purpose of section 18 was to protect the public, probably on an emergency basis, by enabling the respondents to invoke the jurisdiction under section 18. The standard of proof required for the purposes of section 18 relief is markedly different to that which would be required in a disciplinary hearing to establish misconduct. In the former case, all that is required is that the matters set out in section 18(1)(a) or (b) are "shown to the satisfaction" of the High Court, a low standard of proof, whereas in an inquiry before the Disciplinary Tribunal in order to establish misconduct, that misconduct would have to be proved at the very least on the balance of probability or, arguably, to a much higher standard of proof. It was submitted that it could not be said that in invoking section 18, that the respondents could be in any way be inhibited from pursuing the disciplinary process as provided for under the Solicitors Acts. It was submitted that the second relief sought, namely an order preventing the respondents from using in furtherance of disciplinary action the findings in the reports of the two accountants, is a relief which the court could not on the authorities grant.
It was submitted that issues as to the admissibility of evidence in proceedings is a matter which is peculiarly within the jurisdiction of the tribunal in question, and it is only when the particular material is tendered as evidence that a tribunal can hear and determine the question of whether or not it is admissible.
Mr Justice O'Neill was satisfied that section 18 of the 2002 Act was enacted for the purpose of giving the respondents a power to apply to the High Court for injunctive type relief to prevent ongoing breaches of the Solicitors Acts and/or Regulations and was enacted to fill the lacuna in the law exposed in the case of The Law Society of Ireland v Carroll (1995) 3 IR 145.
Mr Justice O'Neill was quite satisfied that the power given to the respondents in section 18 was additional to the other statutory powers available to the respondents under the Solicitors Acts and was never intended to be an alternative to the invoking of the normal disciplinary process as provided for in those acts.
Mr Justice O'Neill was of the view that to construe this body of legislation as a whole so as to make these powers alternative to each other, would be to produce absurdity, in that if the respondents decided to invoke section 18 they would then be precluded from pursuing disciplinary proceedings against the offending solicitors regardless of the seriousness of the allegation of misconduct; on the other hand, if the respondents wished to preserve recourse to the disciplinary process, they would be inhibited from invoking section 18 and thereby perhaps exposing members of the public to continuing wrongdoing by an offending solicitor or unqualified person. It was Mr Justice O'Neill's view that it could not be seriously suggested that the Oireachtas intended the powers to so operate.
Mr Justice O'Neill was satisfied that the range of order contemplated by section 18(2) was never intended to include in effect, disciplinary proceedings, particularly having regard to the elaborate statutory scheme that is in place for dealing with theses matters.
Hence, the jurisdiction conferred on the High Court in section 18(2) does not include a jurisdiction to hear and determine disciplinary issues arising out of the facts proved for the purposes of section 18(1) where those disciplinary matters are amenable to the disciplinary procedures set out in the Solicitors Acts.
It was Mr Justice O'Neill's view that whilst section 14(3) of the Solicitors Act 1954 preserves the jurisdiction of the High Court to directly discipline solicitors, that only in extraordinary circumstances would the court exercise that jurisdiction. He said that should a client and a solicitor, or indeed the respondents, invoke that jurisdiction, the High Court should, except in the rarest of circumstances, decline that jurisdiction having regard to the fact that the Solicitors Acts provide a procedure for dealing with these disciplinary matters, which culminates in proceedings before the President of the High Court. Mr Justice O'Neill said that there was no unusual feature in this case such as to warrant a departure from the normal disciplinary jurisdiction of the respondents as provided for under the Solicitors Acts to resort to the jurisdiction of the High Court preserved under section 14(3) of the Solicitors Act 1954, and neither party asked the President when the matter was before him or since to exercise that jurisdiction.
Mr Justice O'Neill said that whilst it may be the case that the culmination of the disciplinary procedure is a report from the Disciplinary Tribunal to the High Court, other material not the subject matter of the section 18 application could legitimately have to be considered by the Disciplinary Tribunal and have to be included in the report. The tribunal could be obliged to give its opinion as to the fitness, or otherwise, of the solicitor to be a member of the solicitors profession having regard to their findings and their recommendations as to the sanction that should be imposed having regard to their findings and any findings of misconduct.
Mr Justice O'Neill said that clearly these are matters that are outside the ambit of the jurisdiction conferred by section 18.
Mr Justice O'Neill therefore concluded that there was no legal basis for asserting the respondents were functus officio because they invoked the section 18 jurisdiction and had heard and determined complaints arising out of the two accountants' reports, and orders made under section 18. That conclusion resulted clearly in a refusal of the order of certiorari sought and, in the opinion of Mr Justice O'Neill, also to a refusal of the order of prohibition sought restraining the respondent from relying, or otherwise making use of, the accountants' report in any disciplinary action against the applicant.
Mr Justice O'Neill went on to set out further reasons for refusal of prohibition. He accepted the submission that the court should not in judicial review proceedings, or indeed in any other proceedings, seek to restrain in advance the admissibility of material to be offered in evidence before the Disciplinary Tribunal, or indeed to regulate in advance the procedures to be followed. So far as the latter was concerned, Mr Justice O'Neill stated that no difficulty arose as no complaint was made about the procedures to be followed and, in any event, these were well regulated by statute. So far as the contents of the accountants' reports were concerned, the admissibility into evidence of these reports or the contents thereof was a matter which ought to be left for determination to the Disciplinary Tribunal. Admissibility could be argued before the tribunal and it was entirely within their competence to make a determination on it. Mr Justice O'Neill was of the opinion that this conclusion was entirely in accordance with the well settled line of authority consisting of the cases of Byrne v Grey IR 31, Berkley v Edwards IR 217, DPP v Windle 4 IR 280 and Blanchfield v Hartnett 1 ILRM 193.
Turning then to the issue of double jeopardy, Mr Justice O'Neill stated that the proceedings under section 18 sought injunctive type relief to compel the applicant into full compliance with the 2001 regulations and did no more than that. The purpose of any disciplinary inquiry would initially be to determine whether there was a prima facie case of misconduct and following upon that, after a full hearing, to determine whether or not on the evidence, the applicant had been guilty of misconduct.
In Mr Justice O'Neill's view these were two entirely different kinds of proceedings, with entirely separate and distinct results, and for that reason alone double jeopardy did not arise.
Mr Justice O'Neill stated that the law in relation to double jeopardy was reviewed by Mr Justice Kelly in Re National Irish Bank Ltd (No 2) 3 IR 190, wherein it held that the principle of double jeopardy "concerns itself with identical or similar charges not with identical evidence". Mr Justice O'Neill then stated that whilst it is a legal possibility for double jeopardy to arise as between proceedings before the Disciplinary Tribunal, it being the second tribunal and an earlier proceeding, in this case it was quite clear that the proceedings under s.18 and the proceedings before the disciplinary tribunal were of a wholly different character and could not be said at all to be the presentation of the same charge in both cases. Mr Justice O'Neill stated that it was quite clear from the authorities that as between criminal proceedings and subsequent disciplinary hearings it is extremely difficult to establish the applicability of the principle of double jeopardy, a fortiori, it would appear to Mr Justice O'Neill that as between civil proceedings such as those involving section 18 and later disciplinary proceedings, such as are provided for under the Solicitors Act, that the application of the principle would appear for all practical purposes and, arguably, even as a theoretical legal prospect, to be entirely excluded.
Mr Justice O'Neill then turned to the question of res judicata and stated that an essential aspect of the application of that doctrine was that in the later proceeding it is sought to litigate the same question or issue that has been litigated between the same parties in earlier proceedings to a final determination. Having regard to what he said above in relation to the different nature of the section 18 jurisdiction and of the disciplinary jurisdiction of the respondents under the Solicitors Acts, Mr Justice O'Neill stated it necessarily followed that in the disciplinary proceedings the same issue was not being litigated.
The issue, which would be litigated in disciplinary proceedings, was whether or not there has been misconduct on the part of the applicant. Mr Justice O'Neill stated that whilst that would involve consideration of the material in the accountants' reports, other material which was not all the subject of the section 18 material might also be legitimately considered and other issues apart altogether from those considered under s.18 could legitimately arise. Mr Justice O'Neill stated that being so, it would appear, to him that an essential ingredient of res judicata was missing, and hence res judicata did not arise in this case.
For all of the foregoing reasons therefore Mr Justice O'Neill came to the conclusion that he must refuse the reliefs sought in these proceedings.
Solicitors: Giles J. Kennedy & Co. (Dublin) for the applicant; Mary Fenelon (The Law Society) for the respondent.
Joan Kelly, barrister