Supreme Court dismisses appeal where solicitor's fitness inquiry proceeded fairly despite pre-inquiry notification delays.

Denham J.

Murray J.

Geoghegan J.

168/1999

THE SUPREME COURT

BETWEEN/

MAURICE O’CALLAGHAN

Applicant/Appellant

and

THE DISCIPLINARY TRIBUNAL, IRELAND AND THE ATTORNEY GENERAL

Respondents

Judgment of Mr. Justice Geoghegan delivered the 2nd February 2001

The appellant is a solicitor against whom a complaint was made to the respondent tribunal in relation to the handling of a personal

injury claim. A disciplinary inquiry was held and the Tribunal, presided over by Mr. Walter Beatty, made a decision against the

appellant. The transcript of the oral decision delivered by Mr. Beatty reads as follows:

“Now, the Tribunal has made a finding and I will read it to you and it is a majority and a minority decision so it is a little bit

longer than usual.

The Tribunal finds that the matters alleged in paragraph 13 sub-paragraphs A to H in the affidavit of Linda Kirwin sworn on the

21st of June, 1995 have been proved to the Tribunal’s satisfaction. The Tribunal has decided that they do not intend to make

an order under subsection 9 of section 17. The Tribunal have decided that the solicitor/respondent is guilty of misconduct and

he may not have the necessary fitness to be a member of the solicitors profession. Ms. M. Morrissey and Mr. W. Beatty

recommend that the solicitor/respondent’s name be struck off the Roll of Solicitors. Mr. Donal Kelliher does not concur with

this recommendation and recommends instead that the solicitor/respondent be censured and fined the sum of £5,000 to be

divided between the Law Society Compensation Fund and the complainant, Miss Ciara O’Neill. The Tribunal also unanimously

recommends that the solicitor/respondent do pay the costs of the Society in the sum of £500 or such other sum which may

be taxed by a Taxing Master of the High Court, if so required by the solicitor/respondent.”

The appellant obtained leave in the High Court to apply by way of judicial review for orders of certiorari quashing that decision. Leave

was granted and an application was brought pursuant to the leave. The High Court (McCracken J.) refused the application and this is

an appeal from that refusal.

In the Supreme Court two grounds of attack have been put forward. The first relates to the statutory procedures under which the

Disciplinary Tribunal acts. Before there can be an inquiry the Tribunal has to make a determination as to whether there is a prima

facie case for holding such an inquiry. Mr. Walter Beatty sat on the division of the Tribunal which initially decided that there was a

prima facie case for an inquiry and then sat on the division of the Tribunal which conducted the inquiry itself. It is argued on behalf of

the appellant that that is an unfair and unlawful procedure in that not only will all the documentation have been before Mr. Beatty at

the preliminary stage but he will have formed a preliminary view of the matter or at least might have, and that in these circumstances

there was apparent or objective bias on the part of Mr. Beatty while he participated in the inquiry itself.

The second ground of attack is that the appellant ought to have received formal notification and particulars of the original complaint

from the Tribunal and ought to have been given a proper opportunity to rebut it before any decision was made to hold an inquiry. It is

conceded that the appellant had been sent the letter of complaint by the Law Society and had had an opportunity which he availed

of to write a reply and that this correspondence was before the Tribunal before it decided to hold the inquiry. But the appellant

argues that that is not enough, that there ought to have been formal notification coming from the Tribunal itself and that the

absence of such procedure rendered the inquiry unlawful, particularly having regard to the decision of this Court in O’Ceallaigh v. An

Bórd Altranais (unreported judgments delivered the 17th May, 2000).

On the first of these grounds the following is what was said by McCracken J. in the High Court.

“... I think this case is made under a misapprehension of the nature of the preliminary procedures. It is not an inquiry and it

does not in any way decide upon the validity of the complaint made against the applicant. It simply decides that there is a

serious case put forward by the complainant. At that stage the Tribunal is not aware of the attitude of the solicitor against

whom the complaint is made, and all that it is doing is directing that inquiries should be made into the complaint. As I said

earlier, this is very similar to the situation where a court gives leave to an applicant to bring judicial review proceedings.”

The learned High Court judge goes on to point out that there is no rule in the High Court that a judge who gives leave for judicial

review cannot hear the judicial review application itself or that a judge who grants an interim injunction may not hear the later

interlocutory injunction application. The nature of the decision to be made the second time round is quite different from the nature of

the decision made on the first occasion. In so far as

McCracken J. is holding that a person who is involved in a decision as to whether there is a prima facie case for an inquiry cannot be

precluded from participating in the inquiry given that the exercise of conducting the inquiry and making a final decision is totally

different, I am in complete agreement with him. I cannot see that there was anything unfair or unlawful about Mr. Beatty sitting on

both divisions of the Tribunal. One of the cases relied on by the appellant in this connection is Radio Limerick One Limited v.

Independent Radio and Television Commission [1997] 2 ILRM 1. But the bias alleged in that case was of quite a different nature and

had nothing to do with the question of whether a person deciding whether there was a preliminary issue to be investigated can

himself partake in the investigation. Likewise Corrigan v. Irish Land Commission [1977 IR] 317 would appear to be off point. In that

case the two lay commissioners of the Land Commission who had signed the certificate required to be published by section 25(1) of

the Land Act, 1936 had sat to hear the objections. As the objector knew that they were the same commissioners the Supreme Court

held that he could not question their decision when he did not dispute at the time their competence to sit. It can be argued that by

implication the Supreme Court was of the view that if such an objection had been raised it would have been well-founded. But even if

that is so, the first exercise by the lay commissioners was of a totally different nature from the first exercise by the Disciplinary

Tribunal. The first decision was an administrative decision that land was to be acquired. It is fairly obvious that the persons who make

such a decision are hardly competent to engage in a legal process involving an objection to that decision. But that bears no

resemblance to the two pronged procedure which has to be carried out by the Disciplinary Tribunal. I would, therefore, uphold the

view of the learned High Court judge on this aspect of the case.

There are slightly more difficult questions involved in the second ground of attack. As I have already mentioned, it is essentially based

on the decision of this Court in O’Ceallaigh v. An Bórd Altranais cited above. But that decision which was itself an appeal from

McCracken J. was decided long after the decision of the High Court in this case. Just as he did in the O’Ceallaigh case, McCracken J.,

in this case, took the view that the preliminary exercise of considering whether there is a prima facie case for an inquiry is akin to the

decision of a court as to whether to grant or refuse leave for judicial review and that there is no natural justice requirement that

there be any notification of the complaint to the solicitor. I do not think that that ground of decision can survive the O’Ceallaigh case.

Nevertheless for the reasons which I will be explaining I am of the view that the second ground of appeal should also be dismissed.

But first of all it is necessary to consider what was decided by the O’Ceallaigh case. There were a number of different judgments in

that case including a trenchant minority judgment by Murphy J. In the book of authorities submitted to this Court somebody has

written on the copy judgment of Hardiman J. the following: “Denham and Barron JJ. agreed with Hardiman J.” This is not entirely

accurate. Barron J. arrived at the same decision as Hardiman J. but his grounds and argumentation, although overlapping to some

extent, were somewhat different. Denham J. undoubtedly agreed with Hardiman J. As is clear from my written judgment, I also

expressly agreed with Hardiman J., though I added in some observations of my own. For the purposes of establishing what exactly

was decided in that case it would seem to me that the leading judgment is that of Hardiman J. The O’Ceallaigh case concerned an

inquiry by the Fitness to Practise Committee of An Bórd Altranais into three complaints against the applicant who was a registered

nurse and domiciliary midwife in private practice. Under the Nurses Act, 1985 there are somewhat analogous procedures for deciding

in the first place whether a complaint warrants an inquiry or not and then the inquiry itself. The Fitness to Practise Committee is

involved in both exercises though in certain circumstances which need not concern us here, the Committee is obliged to conduct an

inquiry notwithstanding its own view that there is not a case for inquiry. Under the same Act of 1985 there are also provisions for

applying to the Court for temporary suspensions of the right to practise. The question of whether the court procedure can be

adopted without there being an inquiry by the Fitness to Practise Committee remains undecided. There is no doubt that McCracken J.

is correct that in general no special natural justice procedures are required for a decision to set up a body or tribunal to carry out a

function which itself would involve requirements of natural justice. Nurse O’Ceallaigh did not receive notice of any of the complaints in

advance of the holding of the inquiry though she had received notice of an earlier complaint not the subject of the judicial review. On

this account she claimed that the inquiry was invalid. If the general rule applied as McCracken J. in the High Court considered it did in

that case her judicial review application would have had to be refused. But it was successfully argued on behalf of Nurse O’Ceallaigh

that there were exceptions to the general rule, particularly having regard to the decision of the English Privy Council in Rees v. Crane

[1994] 2 AC 173 and that her situation came within one of the exceptions. One might arguably differentiate the O’Ceallaigh case from

this case upon the basis that a nurse, under investigation by the Fitness to Practise Committee, was also subject to the hazard of an

application to the High Court to suspend her practice. But both on the basis of a close re-reading of the judgment of Hardiman J. and

my own memory of the case having been on the court and having agreed with his judgment, I am satisfied that Mr. Cush is correct in

his submission that that distinction is merely a factual distinction and that the hazard of High Court proceedings did not form an

essential part of the actual reasoning in O’Ceallaigh to the effect that it fell within the exceptional category of cases identified by

Lord Slynn of Hadley giving the advice of the English Privy Council in Rees v. Crane cited above. In arriving at his decision Hardiman J.

relied, not merely on Rees v. Crane though that was the principal persuasive authority but also on a case dealing with a solicitor i.e.,

Murray v. Legal Service Commissioner (1999) 46 NSWLR 224. In so far as Hardiman J. was referring to particular facts which were

peculiar to the O’Ceallaigh case it was, as Mr. Cush points out, in the context of consequences of non-notification in her situation. It

was not with a view to differentiating her case from most other cases of professionals being inquired into by tribunals connected with

their professional bodies and in circumstances where they were in jeopardy of losing the right to practise their profession. I think that

this becomes perfectly clear from a reading of the section of Hardiman J.’s judgment headed “Section 38: Legal Submissions and

Discussion” at pp. 18 ff of his judgment. In my own judgment in O’Ceallaigh I made it clear that I was in agreement with the judgment

of Hardiman J. In adding a few comments of my own I stated the following:

“If a professional body is invested with the power of receiving complaints relating to a member of that profession and deciding

whether an inquiry should be put in motion the outcome of which might lead to the person complained about being no longer

able to practise his or her profession, that body cannot be said to be exercising its power lawfully and fairly without the person

complained about being informed of the complaint and the board having sight of any response to such complaint. In the

ordinary way I think it would be unthinkable for any professional body not to do this. No reason has been put forward why that

practice was not carried out in this case except of course that it had been carried out in respect of the first complaint.”

When writing that section of the judgment it would never have occurred to me that I was in any way deviating from the views

expressed by Hardiman J. in his judgment and I believe that I am correct in that view. This does not mean that there may not be

special circumstances such as extreme urgency where notification to the person complained about and consideration of their response

is not an essential requirement and undoubtedly to a certain extent each case must be considered on its own facts. But in my view

this particular case falls clearly within the four corners of O’Ceallaigh.

Barron J. arrived at the same conclusion by a slightly different route but he considered that the O’Ceallaigh case was stronger in the

nurse’s favour than Rees v. Crane . He expressed the view that the question in any particular case as to when the person affected

has a right to be heard depends upon the existence of the relevant procedure. There can be no right to be consulted until some step

has been taken to set the procedures in motion. He then continued as follows at p. 34:

“Once that has been done, the right to be consulted, the right to be heard etc. will depend upon what is proper, what is fair.

There can be no hard and fast rules. It is not the step in the procedures or the stage which they have reached which governs

the right. What might require notice in one case may not require it in another for varying proper reasons, the most obvious

being urgency or other necessity. It is entirely a question of what is fair and proper.”

A later passage in the judgment at p. 36 reads as follows:

“What is fair is dependent upon a number of factors. The most significant one is the manner in which the exercise of the

particular power or function has impinged upon the rights of the person affected. In my view, as provided by the Act, there

must be a filtering system before a decision is made to hold an inquiry. It is a very serious matter for the nurse concerned

and it would be unfair for the Fitness to Practise Committee to decide to hold an inquiry without recourse to her having regard

to the additional strain such an inquiry would impose.”

I have no doubt that the position is similar in relation to a solicitor. No matter how confidential the proceedings may be the word will

get round the profession very fast that a particular solicitor is being investigated into with a view possibly to his being struck off the

rolls. Unfortunately, it only requires then the occasional indiscretion for word to pass to outsiders which may include, in some

instances, the circles from which the particular solicitor’s clients are mostly drawn. But all that is required, in my view, is that the

solicitor be notified of the complaint and be given an opportunity of responding to it and that that notification and any response that

may have been given to it should be before the Tribunal before it makes its decision as to whether there is a prima facie case for an

inquiry. It is entirely irrelevant how the Tribunal comes into possession of this correspondence. As Barron J. points out there cannot

be hard and fast rules as to procedures. There is therefore no technical requirement upon the Tribunal itself to serve notice and await

a reply. If that has already been done and an opportunity has been given for a reply, and better still if there has been some response

then provided that the Tribunal knows all this and has the documentation before it the requirements of natural justice have been

complied with in accordance with the principles laid down by this Court in O’Ceallaigh. As that is precisely what happened in this case

in that the Law Society notified Mr. O’Callaghan of the complaint and gave him the opportunity to respond to it and the

correspondence passing between the Law Society and Mr. O’Callaghan was before the Disciplinary Tribunal when they were making

their decision as to whether there was a prima facie case, all the requirements of natural justice were complied with. This ground for

judicial review must, therefore, also fail.

Accordingly, I would dismiss the appeal.