High Court: Tribunal’s finding that there was no case against solicitor cannot be challenged outside 21-day time limit

About this case:

• Judgment:
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The tribunal found that there was no prima facie case against the solicitor, and the man failed to lodge an appeal against this decision within the 21-day time limit.

In the High Court, it was decided that it was not the Court’s role to extend the time limit; and that in any event, the man had failed to demonstrate any arguable ground of appeal against the tribunal’s decision.

The important issue before Mr Justice Eager was whether it was permissible for the Court to extend the time limit within which Mr Brian Curran could appeal against the finding of the Disciplinary Tribunal where there has been a finding that there is no prima facie case for inquiry into the conduct of a solicitor having regard to the provisions of s. 7(12)(B) of the Solicitors (Amendment) Act 1960.

Background

In relation to a failed property transaction in 2008, Mr Curran made a complaint to the Law Society about Mr James Binchy, alleging:

1. fraud in the sale of the property;

2. fraud in breaches of trust (case );

3. alleged absence of deposit;

4. tampering with sales contract;

5. multiple irregularities (case ) subsequently complained to the Law Society;

6. the matter was referred to the Solicitors’ Disciplinary Tribunal of the Law Society.

The matter was referred to the Solicitors’ Disciplinary Tribunal of the Law Society. The complaints of Mr. Curran were divided into two:

On 4th January 2016 Mr Binchy’s solicitor received Mr Curran’s sworn affidavits; and on 5th January 2016 the Central Office advised Mr Curran that the documents received by the office on the 4th January, 2016 were received out of time and where irregular insofar as they did not include a notice of motion.

At this point, Mr Curran was advised to take legal advice and expressly informed him that there was no provision for accepting the documents outside the 21-day time limit.

The High Court

The question before the High Court was whether it was permissible for the Court to extend the time limit within which to appeal against a finding of the Disciplinary Tribunal that there is no prima facie case for inquiry into the conduct of a solicitor having regard to the provisions of s. 7(12)(B) of the Solicitors Act 1960 as amended.

Order 53, rule 12(a) of the Superior Courts Rules states that “Appeals to the Supreme Court under section 7 (as substituted by s. 17 of the Act of 1994 and as amended by s. 9 of the Act of 2002) of the Act of 1960 states… Every appeal to the court against a finding of the Disciplinary Tribunal…brought within the period of 21 days of the receipt by Mr Curran of written notification from the Tribunal Registrar of such finding”.

Justice Eager was satisfied that the wording of the provision was clear, as it allowed for a period of 21 days beginning on the date of notification of the decision in writing – and did not provide for the extension of a 21-day period of time to appeal.

Distinguishing The Law Society v. Tobin and The Law Society v. Callinan; Mr Justice Eager followed the authority of Walsh v. Garda Síochána Complaints Board 1 I.R. 400 and Browne v. Kerry County Council 3 I.R. 514. In Browne it was stated that “As to the first of Lowry L.C.J.’s principles, it is evident that no power to extend time exists, nor is there any provision to indicate what is to happen if time is exceeded.”

As a consequence, Justice Eager found that the High Court had no permission to extend the time limit within which to appeal against the finding of the Disciplinary Tribunal.

In addition, the paperwork submitted by Mr Curran was irregular and could not be lodged, and this issue was not resolved until 31 May 2016 – some 6 months after the 21-day period had expired.

The Court considered the fact that Mr Curran was representing himself but considering the Supreme Court decision in the Permanent TSB v. Patrick McMahon IESC DET 56 which stated that “while it is impractical of the courts to give a degree of leeway to unrepresented litigants, a court may not go as far as to disregard the rules of law for their benefit”.

Thus concluded that this issue could not be considered in Mr Curran’s favour.

Finally, Justice Eager emphasised that Mr Curran had “not come close to demonstrating… any arguable ground of appeal in respect of the ultimate finding”.

Considering all of the above, Justice Eager stated that it was not the role of the High Court to review the findings of the Disciplinary Tribunal, and that he would not exercise the Court’s discretion to extend the time to enable Mr Curran to appeal.