Supreme Court: Appeal allowed for solicitor challenging the scope of statutory appeals in Disciplinary Tribunal cases

The solicitor previously had appeals rejected in the High Court and Court of Appeal, where it was held that the matters which the solicitor wished to raise were more properly the subject for judicial review.

However, the Supreme Court held that the solicitor was entitled to raise the issues before the courts in his statutory appeal and therefore overturned the High Court and Court of Appeal decisions.

Background

The case had a long and complicated history. The solicitor, Mr Barry Sheehan, had previously acted for a couple, Mr and Mrs Bingham, in a medical negligence action relating to the death of their son. It was originally agreed that Mr Sheehan would act on a contingency basis, but he later sought to work on a fixed hourly rate. The Binghams disagreed and Mr Sheehan successfully came off record in the case.

Subsequently, the solicitor claimed to have a lien over the Binghams’ file and refused to transfer the file until he was paid. He later issued Circuit Court proceedings for debt recovery, but these were rejected by the court.

Between 2009 and 2014, the Binghams made several complaints to the Law Society about the conduct of Mr Sheehan. A complaint about the lien was considered by the Complaints and Client Relations Section but no finding of misconduct was made. An independent adjudicator agreed with the decision.

Following the Circuit Court proceedings, the Binghams made another complaint about the solicitor’s lien over the file. Again, no finding of misconduct was made by the Complaints and Client Relations Committee.

In 2014, Mr Sheehan began making threats to destroy the files if he was not paid. This resulted in a third complaint to the Solicitors Disciplinary Tribunal. There were 27 grounds contained in the complaint. Mr Sheehan objected to the SDT hearing the case, claiming that the complaints had previously been dealt with and the matter was now res judicata.

At the hearing, Mr Sheehan objected to the jurisdiction of the Tribunal to hear the case, but this was rejected and a finding of misconduct was upheld regarding the threat to destroy the file. Certain fines were imposed by the Tribunal.

Mr Sheehan decided to appeal the decision to the High Court. The court held that the nature of the statutory appeal was a de novo hearing of the issues and therefore that jurisdictional challenges could not be raised. It was held that any challenge to jurisdiction was properly a matter for juridical review. The decision was upheld by the Court of Appeal.

The Supreme Court granted leave to hear the case on the basis that there was a general public importance in identifying the scope of statutory appeals under the Solicitors Acts.

Supreme Court

The solicitor claimed that the scope of a statutory appeal under the Solicitors Acts was broad enough to allow him to raise the issues as to jurisdiction in his case. It was claimed that a de novo hearing allowed the solicitor to raise all possible arguments in one set of proceedings, which would avoid a multiplicity of proceedings (Koczan v Financial Services Ombudsman [2010] IEHC 407; Glancré Teoranta v Cafferkey [2004] 3 I.R. 401).

The respondents argued that it was well-established that a jurisdictional challenge could only be raised in judicial review proceedings. The respondents relied on O’Reilly v Lee [2008] 4 I.R. 269 and Mallon v Law Society of Ireland [2017] IEHC 547, where it was held that the de novo nature of a statutory appeal meant that any issues which might be the subject of judicial review were no longer relevant. In other words, judicial review grounds “fall” if a statutory appeal is pursued.

It was also submitted by Mr Sheehan that the legislative scheme required a court to consider whether “it was proper for the Disciplinary Tribunal to make the order”. It was argued that the definition of “proper” included an assessment of whether the Tribunal had jurisdiction to make the order.

The court began by identifying the critical characteristics of a de novo appeal, which were outlined in Fitzgibbon v Law Society of Ireland [2015] 1 I.R. 516 and held that judicial review may be a more appropriate remedy in certain circumstances.

The court considered the O’Reilly and Mallon judgments and noted that those cases determined that a challenge to jurisdiction prior to the completion of an inquiry could only be made by judicial review rather than in a statutory appeal.

The court considered that the Tribunal was correct to conclude that the meaning of the word “proper” under the statutory appeal scheme referred to the correctness of the decision made by the Tribunal, as opposed to the process by which the decision was reached. The court did not believe that the Oireachtas would have tried to expand the scope of statutory appeals without express guidance.

In applying the law to the facts of the case, the court noted that both the High Court and Court of Appeal proceeded on the basis that the issues raised by Mr Sheehan were purely jurisdictional in nature. However, on closer inspection, that was not the case.

First, the court held that Mr Sheehan’s objection was grounded in two arguments. First, that the matter was res judicata arising from previous complaints by the Binghams. Second, he had argued that the Tribunal was statutorily proscribed from hearing the case because the Binghams had previously made a complaint to the Law Society and appealed against that decision to the Independent Adjudicator of the Law Society. Section 7(1) of the Solicitors (Amendment) Act 1960 provided that the Tribunal could only consider an application by a person who was not the person that made a complaint to the independent adjudicator.

It was held by the court that res judicata was not a jurisdictional issue, but rather was a defence to proceedings. Accordingly, an argument of res judicata did not affect the entitlement of a court or tribunal to hear a case. As such, the court felt that this was a matter which should have been heard in the statutory appeal to the High Court.

The argument under section 7(1) was described by the court as a “gateway provision to the exercise of the Tribunal’s decision”. If the Binghams failed to satisfy this hurdle, then there was no jurisdiction for the Tribunal to hear the case and could be dealt with by judicial review.

However, this did not mean that Mr Sheehan had to take judicial review proceedings. The court applied EMI Records (Ireland) Ltd v Data Protection Commissioner [2013] 2 I.R. 669 and held that there was no reason why Mr Sheehan was obliged to confine himself to judicial review. The court noted that in certain circumstances, a party will have a choice of proceeding by way of appeal or judicial review. The court was satisfied that Mr Sheehan was entitled to question the Tribunal’s decision on the gateway provision and the issue could have been properly dealt with in the statutory appeal.

Conclusion

Accordingly, the court upheld Mr Sheehan’s appeal. The court invited submissions in order to conclusively determine the substantive case between the parties.