About this case:

• Citation:
  [2022] IEHC 13
• Judgment:
  External link
• Court:
  High Court
• Judge:
  Mr Justice Anthony Barr

It had been argued by the solicitor that the Tribunal should have proceeded with the case on the day and should have dismissed the inquiry because the company was not properly represented. Further, it was argued that there was no jurisdiction for the court to hear the case.

Background

In 2010, Nirvana Property Holdings Limited made an application to the Solicitors Disciplinary Tribunal for an inquiry into certain actions undertaken by its previous solicitor, known as O’C. The application related to claims of professional negligence and was made by a director of Nirvana.

The inquiry was adjourned from time to time due to outstanding negligence proceedings which were also taken by the company against the solicitor. The proceedings settled in 2019 and the inquiry was listed for February 2020.

O’C was represented by a barrister and solicitor at the hearing, but the company was represented by the director who had made the application and sworn an affidavit. A preliminary point was made on behalf of O’C that the director was not entitled as a matter of law to represent Nirvana, and that this could only be done by solicitor and counsel in a substantive hearing (Battle v Irish Art Promotion Centre Limited [1968] IR 252).

It was argued that the Tribunal erred by granting an adjournment to the director in circumstances where he was not entitled to represent the company.

After considering the position, the Tribunal ultimately acceded to a request by the director to adjourn the proceedings to allow him to instruct a solicitor. It appeared that the Tribunal was previously under the impression that the director had made the complaint rather than the company.

The solicitor took judicial review proceedings against the Tribunal, arguing that the Tribunal erred by granting the adjournment to the director. Further, it was submitted that the Tribunal should have continued with the substantive hearing on the date in question, meaning that the proceedings should have been dismissed because nobody was validly representing the company.

It was also submitted that the Tribunal erred by failing to accept that it did not have jurisdiction where there was no evidence before it of any resolution having been either by the board of directors, or by the members in general meeting, authorising the directors to make the application for an inquiry on behalf of the company. The solicitor relied on Re Aston Colour Print Ltd [1997] IEHC 33 in this respect.

As such, the solicitor sought an order quashing the decision to adjourn the February hearing and for an order prohibiting the further inquiry into the complaint.

High Court

Delivering judgment in the case, Mr Justice Anthony Barr held that a disciplinary body, such as the Tribunal, had “an inherent jurisdiction to conduct its procedures in the way that it regards as being fair to the parties before it.” As such, the court was satisfied that the Tribunal had jurisdiction to adjourn the proceedings to allow the company to obtain representation.

It was noted that the Tribunal’s rules of procedure clearly provided for the adjournment of proceedings. In particular, the court referred to Rule 47, which provided that the Tribunal may strike out an application or adjourn an inquiry on such terms as the Tribunal thinks fit if an applicant does not appear.

As such, the court held that the rules granted the Tribunal a “wide degree of flexibility” for regulating the procedure of an inquiry. The court was also satisfied that the Tribunal was correct when it cited Rule 21 to ground its decision to adjourn the proceedings and that it acted in a rational and fair way.

The court went on to consider the issue as to jurisdiction. It was noted that there had been no ruling by the Tribunal on the issue of jurisdiction and that the company did not have the chance to make submissions on the issue.

The court rejected the submission that there was no jurisdiction to make the adjournment. It was held that the provisions of the Solicitors (Amendment) Act 1960 provided that an application for an inquiry can be made on behalf of another person. As such, there was nothing wrong with the director of Nirvana making the application on behalf of the company.

The court held that there was an “air of unreality” to the submission that the Tribunal should have inquired to see if the director was authorised to make the application. This was particularly so where the director was an officer of the company and had appeared at numerous procedural hearings.

Mr Justice Barr noted that, where third parties are dealing with officers of a company, they are entitled to assume that those officers have been properly authorised to enter into the contract or transaction on behalf of the company (Royal British Bank v Turquand [1856] 6 E&B 327). The court was satisfied that this principle extended to other actions taken by the officers of the company.

As such, the Tribunal was entitled to assume that the director had the appropriate authority to make the initial application on behalf of the company.

The court also refused to grant the order of prohibition, noting that it would only be appropriate to grant such an order where it was very clear that there was no jurisdiction to hear the case. In the present scenario, it was not appropriate for the court to make any assumption about that proof of necessary authority would not be established by the company/directors.

Finally, it was held that it would have been unfair for the Tribunal to have determined the jurisdictional issue after it had already held that the director did not have a right of audience before it. As such, the Tribunal was correct not to consider the jurisdiction issue.

Conclusion

The court dismissed the application and refused to grant the reliefs sought.