BAILII is celebrating 24 years of free online access to the law! Would you consider making a contribution?
No donation is too small. If every visitor before 31 December gives just £1, it will have a significant impact on BAILII's ability to continue providing free access to the law.
Thank you very much for your support!
 |
[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback] | |
Supreme Court of Ireland Decisions |
||
|
You are here: BAILII >> Databases >> Supreme Court of Ireland Decisions >> Fitzgibbon -v- Law Society [2014] IESC 48 (29 July 2014) URL: http://www.bailii.org/ie/cases/IESC/2014/S48.html Cite as: [2014] IESC 48 |
||
[New search] [Help]
Judgment
| ||||||||||||||||||||||||||||||||||||||||||
THE SUPREME COURT [S.C. Nos. 518 & 519 of 2012] Denham C.J. McKechnie J. Clarke J. In the Matter of the Solicitors Acts 1954 to 2002 on the Application of Anne Fitzgibbon
Anne Fitzgibbon Applicant/Appellant And
Law Society of Ireland Respondent/Respondent Judgment of Mr Justice William M. McKechnie, delivered the 29th day of July, 2014.Introduction 1. This case is an appeal from a decision of Kearns P. given in the High Court on the 7th November 2011. That decision was on a preliminary point regarding the scope of an appeal from decisions of the Complaint and Client Relations Committee of the Law Society (“the Committee”) in 2011. The principal proceedings within which this matter arises, came before the High Court as a result of sanctions imposed on the appellant, Ms Fitzgibbon, a solicitor, by the Committee for inadequate professional services and for charging excessive fees in respect of different clients: the inadequate services complaint was made by a Mr Cleary and that relating to excessive fees, jointly by Mr Hoary and Ms Quinn. The preliminary issue which the learned President was called upon to decide, related to the scope of the appeal and whether it should consist of a de novo hearing, or be restricted to revising, in some form, the decisions of the Committee. Kearns P. held against the former contention and in favour of the latter: it is that decision alone which is now the subject of an appeal to this Court. Facts Mr Hoary and Ms Quinn’s Complaint: 2. In early 2000 Ms Fitzgibbon was instructed by Mr Hoary and Ms Quinn (“the clients”) in relation to the prenatal death of their son in 1999. The clients’ case settled in October 2009 for a sum of €125,000 plus costs. Subsequently, a disagreement arose between the clients and the appellant in relation to legal fees and following an exchange of correspondence between them in March 2010, a letter of complaint was received by the Law Society (“the Society”) in the month following, regarding this matter. 3. The clients recalled that they had engaged the services of the appellant in 2000 and that in 2002 they had been asked to pay €6,350 to her to secure the services of a particular barrister. A letter from the said barrister was enclosed which stated that such payment had neither been sought nor received. The clients also stated that at the final settlement meeting of their case, the appellant informed them that although costs had been provided for in the settlement, her costs were a different matter and that they would have to pay her €20,000 which ultimately amounted to €24,300, to include VAT. The clients explained that the appellant denied that the 2002 payment had been in respect of a barrister’s fees. They further claimed that a member of staff in the appellant’s firm had informed them that all monies paid by them during the case would be refunded. In this respect the clients received a cheque for €1,961.76. 4. The Society copied this documentation to the appellant inviting her to respond. In reply, Ms Fitzgibbon referred to a letter of the 17th January 2002 in which she had outlined the various charges of the firm to the clients. She had explained that if they were successful in their claim, the amount of costs recovered by them might not meet all of her costs and that they would be liable for the difference. She also denied that €6,350 had been requested in respect of the barrister’s fees stating that €5,000 had been sought from and paid by the clients, as solicitor/client fees which figure was inclusive of VAT. 5. The Society sought clarification on certain matters on three further occasions in May 2010, July 2010 and December 2010 and the appellant provided this clarification. The clients denied that they had received the letter of January 2002 from the appellant. In a letter in March 2011, the Society, having referred the appellant to a ruling of the Taxing Master given on the 13th February 1998 in the case of Breen v. Buckley & Company in which it was found that a solicitor is obliged to obtain written instructions from a client before settling the party and party costs, invited the solicitor to submit proposals as to how this complaint could be resolved. In response, Ms Fitzgibbon insisted that the January 2002 letter had been sent and that at the time of the settlement in October 2009, the clients had agreed to pay a solicitor /client fee of €20,000, plus VAT, out of the award on top of the party and party costs. Having considered this correspondence the Society wrote to the appellant in June 2011 informing her that the matter was being referred to the Committee which would consider it on the 6th July 2011; she was invited to attend on this date. 6. Thus, on the 6th July 2011 the Committee held a meeting at which the appellant was in attendance. She was informed that the clients wished the Society to determine the issue of costs and she agreed to provide her file in aid of such purpose. On that basis, the Committee decided that when considering the file it would concentrate, in the main, on the following three issues:
2. the 2002 payment; 3. the issue of overcharging. 7. The Committee considered these matters and found in relation to the second issue noted above that, although it was difficult to determine how much money the clients had paid in March 2002, it was not in dispute that they had paid at least €5,000 which was immediately drawn as a fee by the appellant. It was satisfied that the appellant had complied with s. 68(1) of the 1994 Act by sending the letter of the 17th January 2002 but that she had not complied with subsection (6) in that she had not sought the clients’ instructions in settling the party and party costs before agreeing the bill with the defendants in the instituted proceedings. She was also in breach of subsection (8) as she had not informed the clients of their right to make a complaint to the Society in respect of the dispute over fees. On the issue of overcharging, the Committee found that the €5,000 inclusive of VAT was not unwarranted as a solicitor/client fee, but as the appellant had settled the party and party costs without consulting the clients, it was stated that, in such circumstances, the claim for a solicitor/client fee was untenable and should be set at nought. The Committee therefore recommended that the appellant refund the amount of €29,320 to the clients, this sum comprising the €5,000 for the March 2002 payment, €24,300 for the November 2009 payment and a €20 shortfall which was accepted by the appellant. 8. The appellant was informed of the findings of the Committee in August/September 2011 and was invited to make comments on such findings and to attend a further meeting ultimately held on the 26th October 2011. Before that meeting, in a letter dated the 11th October, Ms. Fitzgibbon suggested that the Committee had adopted the report. At the meeting at which she was represented by Mr Ó Síothcháin, B.L., the Chairman informed the appellant that the Committee had neither discussed nor adopted the report and that it was still awaiting her response to it. Mr Ó Síothcháin B.L. claimed that at an earlier meeting held on the 14th September, his client had been told that the report had been adopted. The unanimous response was to deny any question of adoption and also to deny that the solicitor had been told as she alleged. On request, a further two weeks was then allowed for the appellant to consider the report and to make a submission. The next meeting was therefore scheduled for the 25th November 2011. 9. In a letter dated the 15th November 2011, the Society received the appellant’s response to the report of the Committee. In it she submitted that the solicitor/client bill was entirely justified based on the work undertaken and that the Committee had not given this sufficient consideration. She further stated that the clients had been informed of their right to have their costs taxed but that they had not done so. Ms Fitzgibbon also claimed that there was an anomaly between the Committee’s stated objective of taking all reasonable steps to resolve the matter by agreement and seeking to impose a recommendation on her. Finally, it was argued that the Chairman of the Committee had in effect, been asked to assume the role of Taxing Master in compiling the report and was obliged to comply with fair procedures. 10. On the 25th November 2011 the Committee met as planned, with the appellant and her counsel being present. At the outset, the Chairman referred to the response letter and highlighted that the matter was still at resolution stage. However, as no agreement could be reached between the parties, the Committee retired in private to consider the issues of excessive fees and misconduct: shortly afterwards, Ms. Fitzgibbon and Mr Ó Síothcháin B.L. were asked to return to the meeting room. The Chairman first stated that all steps had been taken to try and resolve this matter by agreement but that this was not possible: this was accepted by the appellant. The Committee then made a finding of excessive fees pursuant to s. 9(1) of the 1994 Act and directed a refund of €29,320, this sum comprising the €5,000 payment, the €24,300 solicitor /client fee and the acknowledged €20 shortfall. It was further directed that such payment should be made within 21 days and that the solicitor should make a contribution of €1,000 to the Society’s costs. Finally Ms. Fitzgibbon was notified of her right to appeal. Mr Cleary’s Complaint: 11. Ms Fitzgibbon acted for Mr Cleary in relation to almost 30 complaints which he made against An Garda Síochána relating to incidents dating as far back as 2004. In January 2011 Mr Cleary made a complaint to the Society relating to a deduction of €2,430 for outlay which the solicitor had made on the 4th September 2009 out of the settlement amount which the parties to the litigation had previously agreed upon. Mr Cleary alleged such deduction was made without his agreement. Thus instead of receiving a cheque for €31,556, he received a cheque for €29,126. 12. The Society copied the complaint to the appellant and invited her to respond which she did on the 16th March 2011, wherein she stated that the €2,430 had been paid to Mr Cleary. The Society asked the appellant to provide a copy of Mr Cleary’s settlement cheque, a list of office outlay to the sum of €2,430, clarification in relation to the sum of €3,745 received as legal fees arising out of the settlement, and a copy of the agreement made with Mr Cleary authorising her to make deductions from the settlement cheque. 13. On the 18th April 2011, Ms Fitzgibbon sent to the Society a copy of the settlement cheque and a list of office outlay amounting to €2,430 which, she stated, had been given to Mr Cleary in September 2009. She explained that the sum of €3,745 was a contribution to the solicitor’s costs paid which she had received, and that the deduction for outlay was by agreement with Mr Cleary. 14. In her affidavit submitted for the purposes of the appeal to the High Court, the appellant pointed out that Mr Cleary had never shown any dissatisfaction with her services until, on counsel’s advice, she encouraged him to attend a psychiatrist as suggested by the defendants in certain Circuit Court proceedings. He refused to do so: thereafter he sought to obtain voluminous documentation relating to his case, in respect of which he refused an offer to inspect same in the firm’s offices or to pay for the photocopying charges so that copies could be made available to him. 15. The appellant claimed that the €2,430 for outlay was in respect of two separate cases which settled on the 25th January 2011. She stated that the negotiated compensation from both cases amounted to €12,500 and that this money, when received, was paid out to Mr Cleary on the 15th March 2011. Furthermore, the amount deducted for outlay in respect of the now-settled cases was refunded to the complainant on the 16th March 2011. She also noted that Mr Cleary’s son, for whom she also acted in the same cases, had made no complaint against her. 16. The Society then referred the matter to the Committee which held a meeting on the 29th July 2011. During this meeting submissions were heard from both parties with Mr Cleary continuing to contend that he had not given any authorisation to make deductions from the settlement cheque. The matter was adjourned to the 7th October 2011. 17. At the adjourned meeting Mr Ó Síothcháin B.L., representing the appellant, stated that his client had made the deductions on foot of an agreement with Mr Cleary and that as soon as she received the settlement cheque in relation to another matter, she refunded the deductions, as had been agreed. Counsel pointed out and emphasised that there had been no financial loss to Mr Cleary. 18. Notwithstanding the submissions, the Committee found that the appellant had breached ss. 68(3), (4) and (5) of the 1994 Act. It was held that the professional services provided to Mr Cleary were inadequate and thus a finding of inadequate professional services was made against the solicitor. She was directed to pay €500 to Mr Cleary. High Court Proceedings19. The appellant appealed the decisions of the Committee to the High Court pursuant to the provisions of ss. 11(1), (3) and/or (4) of the 1994 Act. In the Notice of Motion dated the 28th October 2011 the grounds of the appeal were set out as follows:
ii. The Committee’s said decision was arbitrary, capricious and unfair. iii. The Committee failed to do justice as between the Complainant and the Appellant herein. iv. The Appellant was unfairly hampered in pressing the merits of her case by the refusal of the Committee to consider the contents of a medical report dated 21st January, 2010 concerning the complainant herein compiled by his GP. v. The Committee’s decision was unsound and unfairly prejudicial to the Appellant. vi. The Committee’s decision was devoid of merit.” 20. On the 5th March 2012 the High Court directed that oral evidence would be heard on the appeal. On the 21st June 2012 the Society sought an adjournment as they did not have present in Court the complainants, Mr Hoary, Ms Quinn and Mr Cleary. On such occasion, however, counsel for the Society asked the President to revisit the issue of hearing oral evidence which the learned judge acquiesced in: scheduling the case for further directions in two weeks time. On the 7th July 2012 he decided once again that oral evidence could be heard. On the 7th November 2012 however, the learned President issued an ex tempore judgment in which he ruled that the appeal would take the form of a review of the Committee decisions rather than as contended for, a de nova rehearing of the original complaints. As stated, the instant appeal relates solely to that decision. The Reasoning for Such Decision21. In his judgment of the above date, the learned President stated that the appeal was of a fairly limited nature, notwithstanding that the Court could receive oral evidence if deemed necessary. In his view this followed from the combined effect of s. 11 of the 1994 Act and of the relevant Rule of Court which is Order 53, Rule 16 of the Rules of the Superior Courts (“RSC”), although he also noted that the section itself did not offer any real guidance in this regard. 22. In support of this conclusion, reference was made to the decision of Finnegan P. in Ulster Bank v. Financial Services Ombudsman [2006] IEHC 323 (“Ulster Bank”) in which a similar issue arose. In that case, under the relevant legislation, a person dissatisfied with a finding of the Financial Services Ombudsman (“FSO”) could appeal to the High Court and on the hearing thereof, that Court could affirm the finding of the FSO, set aside such finding, or make an order remitting the matter with such directions as may be appropriate. Finnegan P., following a review of a number of authorities, treated the FSO as an expert tribunal and stated that appeals from such a tribunal invoked “considerations of curial deference that the courts historically have extended to tribunals of that nature”. Kearns P. found that the Committee was also an expert body to which curial deference should be extended and that therefore the test for review of any of its decisions was that as indicated by Finnegan P. in Ulster Bank (see para. 47 infra). 23. The President went on to say that even if he was mistaken in this view, he was quite satisfied that s. 11(1) of the 1994 Act envisaged something other than a de novo appeal because if such an appeal was intended, the provision would simply have so stated: he contrasted its terms with those governing an appeal from the Circuit Court to the High Court. Highlighting that the section referred to the Court rescinding or varying determinations, he deduced therefrom that the Court had a limited role. In conclusion, the learned judge stated that the appeal should take the form as submitted by the Society, and should not consist of a de novo hearing. 24. The appellant, by notice dated the 19th November 2012, has appealed that decision to this Court. Submissions of the Appellant25. The appellant submits that the Committee is not a committee to which curial deference should be afforded. The decision of Kearns J. in Esat Digiphone Ltd. v. South Dublin County Council [2002] 3 I.R. 585 (“Esat Digiphone”) is relied upon in this regard. In that case the High Court Judge did not extend the concept to the determining body, namely South Dublin County Council, acting as planning authority. 26. It is claimed that the remuneration of solicitors is a matter for the Taxing Master rather than the Society: A&L Goodbody Solicitors v. Colthurst & Tenips Ltd. (Unreported, High Court, Peart J., 5th November 2003) was a case in which Peart J. stated that s. 68 of the 1994 Act is not part of an overall scheme created under the Act, but that rather it is a “stand alone” section, designed to put in place a number of requirements which are intended to afford a greater level of protections to clients relating to costs; it is not however intended as a substitute for the statutory role of the Taxing Master. The appellant also submits that the findings made against her are not matters for curial deference, meaning that deference should be exercised by the Court in respect of the findings of the Committee, but rather that they are matters of statutory interpretation, which are within the jurisdiction of the courts. 27. The appellant also argues that due to the method by which the Committee operates, and the adverse consequences which a finding against a solicitor has for that individual, the minimum requirement to comply with fair procedures should be an appeal in the format of a de novo hearing involving oral evidence. To that extent, s. 11(1) of the 1994 Act and Order 53, Rule 16 of the RSC should be given an extremely broad meaning, as the primary concern should always be to ensure that the rights of an aggrieved person should be sufficiently protected. 28. Furthermore, the appellant submits that according to the principle of audi alteram partem she should be permitted to produce oral evidence in response to the complaints made against her. In this regard the decision of Pringle J. in Ingle v. O’Brien [1975]108 I.L.T.R. 7 is relied upon. She also states that the burden of proof is on the Society. Finally Ms Fitzgibbon further highlights that the Committee had the option of referring the complaints in her case to the Solicitors Disciplinary Tribunal “The Disciplinary Tribunal”), which is a statutory, independent body, which hears matters by way of de novo hearing, with the burden of proof being on the complainant. Submissions of the Respondent29. The respondent points out that there is no express guidance in the 1994 Act as to the format of the appeal under s. 11(1); it however submits that the language clearly does not envisage a de novo hearing. The Society claims that the decision of the President of the High Court was correct in this matter and that if the legislature had intended that a de novo appeal should take place, this would have been expressly provided for in the Act. The decisions of Morris J. in Devlin v. Minister for Justice & Ors (unreported, High Court, 4th April 2001) and of Blayney J. in Irish Press Plc v. Ingersoll Irish Publications Ltd [1995] 2 I.R. 175 are recited in support of the contention that if it is intended that something be included in legislation, it will be so included. 30. The respondent submits that support for a limited form of appeal is to be found in Order 53 of the RSC. It is further submitted in this regard, that Order 53 and s. 11(1) of the 1994 Act are coherent. Oral evidence may be heard as a matter of exception, rather than as a matter of course. The Society refers to the judgment of Laffoy J. in Carrickdale Hotel Limited v. Controller of Patents [2004] 3 IR 410 (“Carrickdale”) in which she stated that neither party in that case had contended that a de novo hearing should take place: further having regard to the provisions of the RSC (para. 35 infra), such a contention is unsustainable. The respondent also claims that the fact that the appeal under s. 11(1) of the 1994 Act is between the solicitor and the Society, rather than the solicitor and the complainant, highlights that the legislature did not intend to provide for a de novo hearing. 31. The respondent distinguishes this case from cases involving findings of misconduct by the Disciplinary Tribunal established under the Solicitors’ Acts where it is expressly provided that there will be a full rehearing of evidence unless otherwise agreed. 32. The Society refers to the authorities cited in the decision of Finnegan P. in Ulster Bank and fully supports the reliance thereon by the President of the High Court in this case. It submits that the President was correct in his finding that curial deference should be extended to the Committee, on the basis that the legislature has entrusted the investigation of certain complaints to the Society, rather than the courts, and that the Society has established the Committee to carry out this duty. Notwithstanding such a finding however, it is pointed out that the learned President is by no means bound by the decision of the Committee in relation to the interpretation of s. 68 of the 1994 Act and that the Court, if so minded, has the capacity to reach a decision different to that of the Committee even within the format decided upon by the Kearns P. Further, the Society lays emphasis on the fact that the President stated that even if he was wrong about curial deference, and following the decision in Ulster Bank, he was still of the opinion that the legislation only provided for a limited appeal. 33. Finally, the respondent also makes the submission that the appellant never raised any issue of unfairness in the procedure adopted by the Committee during the course of its investigation, nor did she make this point in her grounds of appeal to the High Court. Irrespective of such omission however, the Society concedes that the High Court may properly have regard to these matters in the appeal. Decision:34. The statutory provisions of the 1994 Act together with Order 53, Rules 16 (c), (f), (g) and (h) of the RSC must first be quoted. Section 11(1) of the 1994 Act states:
… (f) The President shall have power, upon the hearing of any such appeal or application, to add other parties to the motion before the Court where it appears just so to do. (g) The evidence upon the hearing of any such appeal or application shall be by affidavit, except insofar as the President may direct oral evidence to be given. (h) The President may, following the hearing of such appeal or application and subject to the provisions of the Acts, give any decision or make any order as the President thinks fit.” 37. Before being specific as to this case, a brief word, addressed at a general level, to the structure of the Solicitors Acts, insofar as they relate to complaints against members, might be helpful. Previous judgments of mine delivered in the cases of O’Driscoll & Anon v. The Law Society [2007] IEHC 352 and O’Sullivan v. Law Society & Anon [2012] IESC 21, have dealt with this matter in considerable detail, having regard to the legislative provisions then applicable: such is not required in the instant case. It suffices to say that in Part III of the 1994 Act as amended, the Society is entrusted with the power to investigate complaints regarding inadequate legal services (s. 8) and the charging of excessive fees (s..9). It does so by way of delegation, provided for by Council Regulations and authorised by s. 73(1) of the Solicitors Act 1954: carrying out this function through one of the standing committees of the Council namely, the Complaints and Client Relations Committee which was formerly known as the “Registrar’s Committee”. The obligation of that Committee, when determining a complaint under either section, is in the first instance to try and resolve the matter by agreement between client and solicitor. With allegations of misconduct this requirement does not arise. If resolution cannot be found, the Committee can make a determination or issue a direction which may impact on the solicitor in question not only financially, but also on her good name and professional reputation. The degree so affected will of course in some measure be reflected by the terms of the determination or direction, but any admonishment by the professional body must surely be quite damaging; not only in respect of the relationship between the concerned client and the solicitor but also because such a finding becomes a matter of record and in certain circumstances a matter of full public disclosure. So even though an adverse decision under either ss.8 or 9 of the 1994 Act, as amended, cannot be equated with a finding of misconduct, nonetheless, such will always to some extent, become and remain a stain on one’s reputation. Consequently, any determination by the Committee followed by sanction must be looked upon with a good deal of concern and regarded as a matter of heightened significance. 38. However, such procedure is not, at least generally, to be seen in the same light as an investigation by the Disciplinary Tribunal of an allegation of misconduct. This is recognised by the Statutory Code in that such allegations are investigated, not by the Society but by a body independent of it, namely The Solicitors Disciplinary Tribunal whose members, following consultation, are appointed by the President of the High Court under s. 6 of the Solicitors (Amendment) Act 1960 as substituted by s. 16 of the 1994 Act and later amended by s. 8 of the Solicitors (Amendment) Act 2002 and ss. 35 and 36 of the Civil Law (Miscellaneous Provisions) Act 2008. Moreover, to recognise the seriousness of misconduct proceedings, there is an express rule that any appeal from a finding of the Disciplinary Tribunal in that regard shall be by way of full rehearing, to include all of the evidence unless otherwise agreed: that rule reads:
The case law:40. Before looking at Ulster Bank, a case heavily relied upon by the President, it will be helpful to consider some earlier decisions which materially influenced Finnegan P. in the conclusions which he reached in that case. By far the most important of these is Orange Communications Ltd. v. The Director of Telecommunications Regulation and Meteor Mobile Communications Ltd. (No. 2) [2000] 4 IR 159 (“Orange”). Pursuant to Commission Directive No. 97/13/EC, member states were required to make provision for an appeal from decisions of their National Regulatory Authorities in the telecommunications sector, to an independent institution. This requirement of the Directive was implemented in this jurisdiction via s. 111(2B)(i) of the Postal and Telecommunication Services Act 1983, as amended. This provision simply states:
42. Keane C.J. stated that the section in question did not provide for a full, unqualified reassessment of the merits, including fact and law, which if it had, might give rise to the High Court substituting its own views for those of the NRA, nor however should a reconsideration of the matter be determined solely by reference to judicial review standards. The learned Chief Justice then went on to formulate the test of review as being:
44. In M. & J. Gleeson & Co. v. Competition Authority [1999] 1 I.L.R.M. 401 (“M. & J. Gleeson”), a case mentioned in Orange, Kearns J. referred to s. 9 of the Competition Act 1991 (“the 1991 Act”) which provides that on the hearing of an appeal from a decision of the Competition Authority, given under s. 4(2) or (4) of the 1991 Act, the High Court “may confirm, amend or revoke the licence”, in question. The learned judge then went on to describe the test involved, as meaning:
45. The 1963 Copyright Act (“the 1963 Act”) confers the function of determining “equitable remuneration” in the event of a dispute on an expert tribunal, namely the Controller of Patents, Designs and Trademark, and empowers him to refer such dispute, particularly one which is likely to be protracted, to an arbitrator. Under s. 41(3) of the Act, an appeal lies to the High Court from any award so made and on the hearing thereof that Court may make an order “confirming, annulling or varying” the award, as it thinks fit. Laffoy J., in Carrickdale, having reviewed a number of relevant authorities applied the Orange test, saying in the process that in her view, there was no essential difference between that and the M. & J. Gleeson test. 46. The Ulster Bank case involved a person who was dissatisfied with a decision of the Financial Services Ombudsman (FSO) on a complaint made by him against a regulated service provider: a right of appeal was given to either party in respect thereof. Section 57CM of the Central Bank Act 1942, as inserted by s.16 the Central Bank and Financial Services Authority of Ireland Act 2004, states that on the hearing of such appeal, the High Court “may make such orders as it thinks appropriate in light of its determination”. The section however does not stop there: it goes on to say that the orders which the Court may make shall:
(a) an order affirming the finding … with or without modification; (b) an order setting aside that finding …; (c) an order remitting that finding …” [with such direction as may be appropriate.
49. In this respect, I have some sympathy with the draftsman. Disregarding entirely private law it seems to me that the multiplicity of circumstances in public law, where provision is rightfully made for an aggrieved party to contest a decision adverse to his interest, give rise to a considerable difficulty in formulating some standard phraseology, which regardless of context, is pre-determined to have the same meaning and thus without differentiation, can be applied in some uniform way. Even a cursory overview of the range of circumstances in which members of the public interact with the State and its many, varied and at times, complex emanations would readily demonstrate this point. In other words, the structure within which such engagement takes place, including any adjudicative process if such is involved, is of necessity variable, reflecting as it must not only government policy but also factors at both the general and individual level. Thus at a broad level, the provision of a single type of appeal to fit all, in all circumstances, may indeed be challenging. This is not to say however that there is no room for greater clarity and consistency: quite obviously there is: in particular, in situations which broadly overlap and coincide. Therefore when the occasion arises, every opportunity should be taken to address this matter. 50. In any event and as stated, the key issue is to ascertain what the Oireachtas intended by the provision in question. To this end the relevant rules of court may be looked at, but they can never be determinative of or otherwise control the proper meaning of any such provision (Laffoy J., Carrickdale, para. 29, p. 423). Rather the reverse is the situation, namely that the rules facilitate the use and implementation of the provision but do not alter or affect its meaning. 51. Where the legislature confirms a right to a statutory appeal, it must evidently be assumed that this was intended to have some meaning and some purpose. Where, for example, judicial review is independently available, it must be considered as conferring some additional benefit(s) on the appellant. Something separate from a mere “test” for legality, or the mere quashing or remitting of a decision based on standard judicial review grounds. The range of possibilities in this regard is extensive, varying from a full appeal, as from the Circuit Court to the High Court on circuit (s. 38 of the Courts of Justice Act 1936), to one strictly limited, say on a point of law, perhaps even further limited by the nature of the point and only then on due certification by the trial court (see as examples, s.29 of the Courts of Justice Act 1924 as substituted by s. 22 of the Criminal Justice Act 2006 and as later amended and s. 50(3)(f) of the Planning and Development Act 2000). In between, one can find several other variable forms of “appeal”. It therefore follows that the availability of such a right does not mean that all reviews, by way of appeal, are necessarily the same: quite obviously they are not. As Costello J. pointed out in Dunne v. Minister for Fisheries [1984]1 I.R. 230, “in every case the statute in question must be construed”(p.237). Barron J. in Orange said “the test for competition cases cannot be a guide for other cases” (p. 238): certainly, without much concordance on many other important factors, this surely must be right. This therefore being the situation, it then becomes necessary to consider each legislative framework in its own right. 52. In conducting this exercise the actual words used and the attendant details given, are of course of importance. On occasion the appeal provision may be quite specific, dealing with law or fact or how evidence tendered at first instance is to be viewed and in what circumstances further evidence may be received: an example of this is to be found in s. 24 of the Competition Act 2000 (Rye Investments Ltd. v. The Competition Authority [2009] IEHC 140). On other occasions it may be quite general as in the authorities earlier mentioned. Where this is the situation, care must be taken to avoid an overtly strict or narrow view of common words which are commonly found in this type of statutory provision, as for example “to confirm”, “ to annul”, “ to modify”, or the like. Such words are not conclusive as to the scope of judicial intervention. This is also the position even where similarity exists between statutory provisions of different codes. As Hogan and Morgan point out in Administrative Law in Ireland: “[f]actors [other than similarity] such as the purpose of the appeal and the statutory context are more relevant” (para.11-119). Consequently one should resist the temptation of achieving uniformity, as desirable as this may be, unless inter alia, the context so permits and clearly so provides. 53. That being the case, it seems to me that in addition to the terminology used, one must also consider matters such as the nature of the body in question, the knowledge and expertise within it - by reference to its purpose - the subject matter of its remit, the type of decision(s) involved, and the impact and consequences thereof for the addressee(s); the proceedings and the type of process, involved in and giving rise to, the decision under appeal must also be considered. These are but some of the factors which will inform the provision’s ultimate meaning. In the instant case it is of considerable significance to note that the appellant had a full right of participation in, and in fact heavily engaged with, the statutory process, which gave rise to the adverse decision now standing against her. 54. As is evident from the case law above quoted, the doctrine of what is termed “curial deference” played a significant part in the formulation of the Orange test and in its subsequent adoption/application to many other situations. Whilst I fully understand what the term means at an abstract level, I am less clear as to its full implications at a practical level. In that regard I believe that the rule, both as to its meaning and in particular, as to the degree of appreciation which it calls upon the courts to accord, would benefit from an overview in some case appropriate to that end and suitable for that purpose. 55. The basic rationale for the rule is both clear and well justified and is one which I fully support. The problem as I see it is that, the concept has free-wheeled and continues to do so: it now seems that on the public law side, curial deference, almost to a standard level, must be afforded to any body or entity with any type of decision making role, with little regard being paid to the level or degree of expertise within it. This has the capacity to fundamentally undermine the very purpose of its existence in the first instance. It would be a great loss, if through omission, its function was unnecessarily attenuated by its over application. 56. This question of expertise and knowledge is at the very heart of the rule. Southam, in effect held, that the greater level of expert knowledge which the Body had, the greater should be the respect shown to it (para. 57(iii) infra). In this jurisdiction this point has also been emphasised on numerous occasions, as the following examples will illustrate. What Hamilton C.J. said in Henry Denny & Sons (Ireland) Ltd. v. The Minister for Social Welfare [1998] 1 IR 34 at pp. 37-38, subsequently described as “a very strong statement in favour of deference” (Barron J. in Orange at p. 238), can be regarded at the level of principle, as authoritative:
(ii) Keane C.J. in Orange at p. 184, when referring to what was required of the Regulator when making the “decision concerned”, described same as involving “the deployment of knowledge and expertise available to her, her staff and consultants retained by her, but not available to the court”; and (iii) “It seems to me clear that the concept of curial deference of necessity takes the court to this further position, namely the greater the level of expertise and specialised knowledge which a particular tribunal has, the greater reluctance there should be on the part of the court to substitute its own view for that of the authority. That again is the weighing which is indicated by the Canadian court in the Southam case.” (Kearns J. in M. & J. Gleeson at p. 410.) 59. Take the Committee in the instant case whose decisions are under appeal to the High Court. Under s. 73(4A) of the Solicitors Act 1954, as inserted by s.34 of the Civil Law (Miscellaneous Provisions) Act 2008, it is provided that where the functions of the Society under ss. 8 and 9 of the 1994 Act, as amended, are delegated to a committee, the majority of that committee must be lay members but the chairman must be a solicitor. The actual composition of the Committee in instant case comprised seven members, three solicitors with four lay individuals. The latter, it must be presumed were non legal people and otherwise have no specialised knowledge of legal practice, particularly that relating to the supply of services or the remuneration of solicitors. Whilst of course I recognise that defererence is for the body, as a single and integrated entity, I would, with the utmost respect, question whether there is any direct comparison with, or parallel similarity between, such a committee and the bodies identified above (para. 59 supra). 60. It therefore seems to me that the inquiry is not necessarily concluded by a simple finding that the entity in issue attracts curial deference. One must go on and determine the scope or extent of such deference. As pointed out in M. & J. Gleeson, the greater the speciality and expertise, the greater will be the margin of appreciation. Therefore some evaluation may be necessary in this regard. In the vast majority of cases the existence and quality of expertise will be immediately apparent from the context: no other inquiry will be necessary. It is self evident what speciality exists with individual bodies such as those in Orange, etc. But that might not be so, or so apparent in every case. So the extent of deference may on occasion have to be inquired into. 61. In so stating, I am not suggesting for a moment that a minute examination of the context, including the body’s membership, should be undertaken routinely or as a matter of practice. That will not be required and I do not envisage it as arising: it would only be in rare cases where an analysis would be necessary. 62. In any event, the purpose of raising the issue in the instant appeal is to point out, at least at the level of principle, that when curial deference becomes an issue there may be a second step involved in the assessment, which should not be, but which frequently is, overlooked. 63. In the instant case I am satisfied that the Committee was a body to which a degree of appreciation should be shown. Although the majority of its members were lay people, its chairman and a number of other members, were solicitors who by qualification and practice had undoubtedly the requisite expertise in matters such as the provision of legal services and the remuneration therefor. In addition, I do not doubt but that the lay participants were appointed members, in the full expectation that their contribution would likewise enrich the thinking and knowledge of all: as a result therefore, when the body is so considered in its entirety, as it must be, it is in my view entitled to be shown such appreciation. This being so, the submission being made by the appellant that it is not such a body cannot be accepted. As that seems to have been the only position adopted by Ms. Fitzgibbon, it was evidently not necessary for the High Court to go on and consider the extent of such appreciation. That may or may not still be an issue in the case. However, since it has not been debated I will express no definitive view on it. 64. As above noted, s. 11 of the 1994 Act, in its wording, (para. 34 supra) enables an aggrieved solicitor to seek an order directing the Society to rescind or to vary any decision under ss. 8 and 9 of the 1984 Act, as amended, and the High Court, on the hearing thereof, “may make such order as it thinks fit”. The supporting Rules of Court specify that the application should be initiated by motion in which the grounds of appeal should be set out. They then provide that the hearing shall be on affidavit except where the Court directs that oral evidence be given. The Court also has power to add any party, presumably the complainants, if it appears just to do so (Order 53, Rule 16 RSC). 65. These provisions, in my view, must be viewed against a background within which a full investigation of the complaint has already been undertaken by the Committee. That process involves the allegation being put to the solicitor in question and affording her an opportunity to respond, to submit all relevant documentation, to give evidence, or to have evidence called on her behalf, to be represented by solicitor and counsel and to make both written and oral submissions, as to fact and law. The Committee in turn, before making any adverse finding, must endeavour to resolve the dispute by agreement: only if that fails does it issue a formal decision. Therefore, prior to any appeal there has been an exhaustive exploration of the issue, with the respondent solicitor having the rights above mentioned. In discharging the Society’s obligations, the Committee must at all times act fairly: it must abide by the rules of natural and constitutional justice, with its functions being subject to judicial review. This being so it is entirely unsurprising that the appeal from such a process should be restricted in form. That limitation in my view does not in any way impinge upon or undermine the rights of the appellant. 66. Even if the Rules of Court did not so provide, I would be perfectly satisfied that the High Court has full jurisdiction to regulate the manner in which issues before it are dealt with: this must follow from the mandatory obligation on every court to ensure that constitutional justice and fair procedures are applied to any justiciable controversy determined by it. This duty takes effect once the Court has sessin of the issue and continues until that Court becomes functus officio (see the judgment of Walsh J. in The People (Director of Public Prosecutions) v. Lynch [1980] I.R. 64, p.84 and the judgment of the Court of Criminal Appeal in Director of Public Prosecutions v. M.J. [2014] IECCA 21 at paras. 24-26). This means that in any given case, the Court can and will respond to what is necessary to ensure the integrity of a person’s rights. It would however entirely defeat the purpose of a limited appeal, if the exercise before the High Court routinely became a re-run of what transpired before the Committee. That will not be required in a great number of cases which will be dealt with in the manner provided by the Rules. On occasion however, the giving of oral evidence or the adoption of some other step may be inescapable, if a material issue cannot be otherwise resolved in a satisfactory and just way. Such a decision will of course be one for the appeal court. 67. In her submissions Ms. Fitzgibbon has referred to a number of cases which have no relevance to this particular appeal. Some relate to the substantive appeal yet to be determined, others such as Borges v. The Fitness to Practice Committee of the Medical Council and the Medical Council [2004] 1 I.R. 1043 and Gallagher v. The Revenue Commissioners [1995] 1 I.R. 55 relate to complaints quite different to those made in this case. The statement attributed to Peart J. in A&L Goodbody Solicitors v. Colthurst and Tenips Ltd. (para 26 supra) was made in the context of a submission by the client that in the absence of a s. 68 letter (as provided for in the 1994 Act), a solicitor could not recover any costs what so ever. The decision of Kearns P. in Esat Digifone deals with a complaint that on a reference to An Bord Pleanála under s. 5 of the Local Government (Planning and Development) Act 1963, there should have been an oral hearing at which the applicant should have been permitted to give evidence. In this case Ms. Fitzgibbon was heard by the Committee in every sense of the term: furthermore, and as previously indicated (para. 35 supra) the President of the High Court has ample power for the purposes of the appeal to ensure that what justice demands, justice will get. 68. Finally, I return to the “test” aspect of the scope of this statutory appeal. The primary submission of the appellant, which is to assert a right to a full, unrestricted appeal with the onus remaining on the Society, has been rejected for the reasons given above. Neither in that submission nor elsewhere has she sought to argue the appropriateness or otherwise of applying the Orange test to her situation. In these circumstances, I propose to hold over a definite view on what that test might be, until it has been fully argued in an appropriate case. My reluctance to immediately follow Ulster Bank stems from the fact that the subject matter of the instant appeal relates to disciplinary matters which potentially could impact on individual’s constitutional rights, such as the right to earn a livelihood and the right to one’s good name and professional reputation. This case is therefore quite distinguishable from those mentioned above including the Ulster Bank case. In fact the subject matter of the Ulster Bank case is, in itself quite unlike any of the issues which arose for consideration in the cases relied upon by Finnegan P. in his judgment. That being so I will, as I have stated, defer a final position on the relevant test. 69. In conclusion, I would dismiss the appeal for the reasons above given. | ||||||||||||||||||||||||||||||||||||||||||
