High Court: Solicitor denied extension of time to appeal tribunal findings nine years ago

About this case:

• Citation:
  [2020] IEHC 162
• Judgment:
  External link
• Court:
  High Court
• Judge:
  Mr Justice Garrett Simons

Background

The case came before Mr Justice Garrett Simons by way of an application for an extension of time to bring an appeal. The application was brought by solicitor Daniel Coleman against whom findings of professional misconduct were made by the Solicitors Disciplinary Tribunal in 2010. He wished to appeal those findings to the High Court, but the time-limit prescribed for the bringing of an appeal had long since expired. The High Court has a discretion to extend time having regard to all of the circumstances of the case.

Disciplinary Tribunal

Mr Coleman sought to appeal two decisions made at the start of 2010. His motions seeking an extension of time only issued on 17 May 2019. He said that most of the delay related to the time it took for a separate appeal, taken to the Supreme Court, to be heard and determined. That appeal was not finalised until 1 May 2019. He argued that there was no culpable delay.

When a striking off order is sought, a solicitor has two options. They may make submissions in response to the Law Society’s formal application, which it must make to the High Court, seeking an order striking them off the role. Such submissions will be confined to the question of whether a “strike off” order is an appropriate and proportionate sanction. The submissions may also deal with whether the findings of misconduct are legally sustainable. Alternatively, they may invoke their statutory right of appeal against the decision of the Disciplinary Tribunal. Such an appeal will be by way of a full rehearing, unless otherwise agreed.

The Disciplinary Tribunal made findings of misconduct against Mr Coleman following two hearings in February 2010 and submitted reports to the High Court in March 2010 requesting that he be struck off the Roll of Solicitors. The first decision found that he had engaged in “fictitious” contracts, having signed the name of another solicitor without his consent. The second decision was in respect of a complaint that he had failed to comply with an undertaking which he had given to St Jarlath’s Credit Union in Tuam.

He did not exercise his statutory right of appeal against the findings. The matter came before the High Court solely on the basis of the Law Society’s application, and there was no parallel appeal by Mr Coleman before the court.

The matter came before the then President of the High Court, Mr Justice Nicholas Kearns in July 2010. Mr Coleman applied for an adjournment in order to instruct counsel. The president refused his application for an adjournment, and made an order striking Mr Coleman off the Roll of Solicitors after hearing submissions. An order was also made directing him to pay €320,000 in restitution to St Jarlath’s Credit Union, Tuam.

Mr Coleman appealed to the Supreme Court, filed on 24 August 2010. Due to long waiting times predating the establishment of the Court of Appeal, the appeal was ultimately heard and determined in 2018. The perfected order was given in May 2019. He was successful in his appeal (Law Society of Ireland v Coleman [2018] IESC 80) and the order striking his name from the Roll of Solicitors was vacated. The strike off application was remitted to the High Court for rehearing.

Extension of Time

Mr Coleman issued two notices of motion on 17 May 2019 seeking an extension of time 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 to be heard with the Law Society’s remitted application for an order striking off his name from the roll.

Both matters came on for hearing before Mr Justice Simons in the first week of March 2020. It was 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.

Mr Justice Simons noted that decision to strike a solicitor’s name from the Roll of Solicitors involves the administration of justice within the meaning of Article 34 of the Constitution of Ireland. (In re The Solicitors Act 1954 [1960] I.R. 239). 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 the Disciplinary Tribunal. The judge cited the judgment, in Mr Coleman’s Supreme Court appeal, of Mr Justice William McKechnie who emphasised that as the decision to strike a solicitor’s name off the Roll of Solicitors involves the administration of justice, it is essential that the High Court must conduct an “independent adjudication” of the application before it.

The High Court noted that the principles governing an application for an extension of time were recently reaffirmed by the Supreme Court in Seniors Money Mortgages (Ireland) DAC v Gately [2020] IESC 3. The judgment states that the underlying obligation upon a court in exercising its discretion to extend time is to balance justice on all sides, and that all the circumstances of the case must be taken into account.

Conclusion

The court held that no intention to bring an appeal was formed within the allowed 21-day period, and there had been no mistake on the part of the intended appellant. The court said that the interests of the administration of justice require that a decision to appeal is made within the time specified: “This is especially so where, as in the present case, that party not only had the benefit of legal representation at the time of the first-instance decision, but is actually qualified as a solicitor himself.” Mr Justice Simons said: “No proper explanation has ever been afforded as to why the appeal which the solicitor now wishes to make could not have been brought in 2010.”

Admissions of fact were made that Mr Coleman 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. Mr Justice Simons noted: “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.”

The judge said that by admitting to the conduct in the terms described in the complaints, Mr Coleman “was, in effect, admitting misconduct. The conduct as set out in the complaints could not be characterised as other than professional misconduct. There is a vital public interest in ensuring that solicitors carry out conveyancing transactions with integrity and probity.”

Mr Justice Simons stated that the most striking feature of the present case was the “sheer scale” of the delay, amounting to a nine-year delay. He said that this could not be explained away by the excuse of “systemic” delay of the Supreme Court hearing: “The manner in which the solicitor prosecuted that appeal is not a neutral factor. Rather, as explained earlier, the Supreme Court had been left with the clear impression that the findings of misconduct were not being appealed. This is a factor which weighs heavily against the grant of an extension of time to appeal those findings now.”

The inordinate delay would “impair the ability of the High Court to conduct a proper appeal hearing”, as Mr Coleman is seeking a rehearing of the disciplinary proceedings. “Were this to be done, it would be at a remove of some fifteen years from the key events. It is inevitable that the recollection of witnesses of events which, on the facts of the present case, took place principally during the years 2004 and 2005 will be diminished by the passage of time.” The High Court will have to consider the Coleman judgment in deciding whether there is a “sustainable basis” for the findings of misconduct. “This residual jurisdiction, which falls short of a full appeal, allows for any injustice to be brought to the court’s attention even in the absence of an appeal.”

The application for extension of time was dismissed.