Court of Appeal: No evidence to support ‘trifling and mundane’ professional misconduct complaint against solicitor

Delivering the judgment of the three-judge Court, Mr Justice Gerard Hogan stated there was simply no evidence to support the complaint, which arose in response to the “not uncommon phenomenon of confusion regarding the precise timing of adjourned motions”.

Backdrop to professional misconduct complaint

The Court heard that since 2005, Mr Eugene McCool, principal of an engineering firm, McCool Controls and Engineering Ltd. continued to be engaged in major litigation involving an alleged breach of a 1998 exclusive trading agreement for Ireland, with U.S. multi-national Honeywell Control Systems Inc.

In 2012 Mr McCool came to believe that there were serious irregularities and lapses of professional standards on the part of the legal professionals involved in this litigation and it was for this reason that he sought to make a complaint against the solicitors acting for Honeywell – namely Mr Colin Monaghan, a partner in Arthur Cox.

Order 56A motion

On Monday 30th July 2012, after a number of adjournments, representatives for McCools and Honeywell attended the High Court in relation to an Ord. 56A motion brought on behalf of McCools – i.e. to invite the parties to engage in mediation, conciliation or another dispute resolution process approved by the Court.

Mr Justice Gilligan was not available to hear the matter, and therefore the motion was again adjourned to 10.30 a.m. on the following day, Tuesday, 31st July 2012.

Unfortunately there was “some confusion as to what time the motion was due to be heard”, and the parties were under the impression that the motion was scheduled for 2pm when at all events, the motion was in fact scheduled to be heard at 10.30am.

As is commonly the case for last minute changes – this adjourned motion did not appear in the Legal Diary published on the Courts Service website. Mr. Monaghan directed a trainee solicitor, Mr Woods, to query the matter with the Chief Registrar’s Office; following which Mr Woods sent an email to his own counsel to advise him of the 2pm time.

McGeehin & Toale, representing McCools, were also under the impression that the motion was to be heard at 2pm.

When none of the legal professionals were present at 10.30am, the judge indicated that they should assemble as quickly as possible.

At some point thereafter Mr Monaghan contacted McGeehin & Toale to inform them of the correct time.

It was Mr McCool’s contention that Mr Monaghan, in seeking to explain his non-attendance when the matter was first called for hearing at 10.30am on the 31st July 2012, Mr Monaghan had (falsely) informed the Court that his office had been contacted by the Central Office to change the time from to 10.30am to 2pm.

Mr. Monaghan denied this and explained that he said that “his office had been in contact with the Courts Service that morning because the motion had not appeared in the Legal Diary and that he had been told that the matter would not be dealt with until 2pm”.

The motion went ahead around 12.30pm with both sides represented by Senior Counsel and there was no suggestion that there had been any prejudice or disadvantage to either side by reason of the confusion.

The High Court ultimately ruled against McCools essentially on the ground that he could not make an order under Ord. 56A where one of the parties did not wish to engage with the process.

False and misleading information

Mr McCool made a complaint of professional misconduct against Mr Monaghan, alleging that Mr Monaghan gave false and misleading information in an effort to prevent the case from going before the Court.

This complaint was rejected by the Solicitor’s Disciplinary Tribunal – in which it was found that there was no prima facie case of misconduct; and held that the events described in relation to the various adjournments of the motion were “not unusual in the operation of the High Court motion lists”. Accordingly there was no sustainable evidence of misconduct.

Similarly, the matter was dismissed on appeal to the High Court.

Court of Appeal

Justice Hogan stated that the present proceedings brought by Mr McCool arose in circumstances where Mr McCool was “gravely mistaken” and that he “allowed his – perhaps understandable – dismay and unhappiness with the slow progress of the 2005 proceedings to cloud his judgment and sense of perspective regarding certain events which occurred during the course of these few days in late July 2012”.

Justice Hogan explained that “all legal professionals and all involved in the administration of justice – solicitors, counsel, registrars, court ushers and court staff – have frequently encountered instances of confusion of this nature, whether it be the date, time or venue for the hearing of particular court business”.

Accordingly, Justice Hogan described it as “puzzling” why Mr. McCool should be so exercised by an issue which could not be regarded as anything other than “trifling and mundane”

Given that there was “simply no evidence” upon which a complaint of this seriousness could properly be grounded, Justice Hogan upheld the finding of the High Court that “there had been no error on the part of the Tribunal in dismissing the complaint against Mr Monaghan”.