Supreme Court allows additional evidence and expanded grounds for solicitor's strike-off appeal pending full hearing.

THE SUPREME COURT

[Appeal Nos: 318/2010

319/2010]

Clarke J.

MacMenamin J.

Laffoy J.

Between/

The Law Society

Applicant/Respondent

and

Daniel Coleman

Respondent/Appellant

Judgment of Mr. Justice Clarke delivered the 14th June, 2017.

1. Introduction

1.1 Three motions have been brought in these appeals. The appellant (“Mr. Coleman”) was a solicitor who was, by two separate

orders of the High Court (Kearns P.), struck-off the register of solicitors. He has appealed to this Court against that order. However,

in the context of that appeal Mr. Coleman seeks, in substance, significantly to expand the scope of the issues which he wishes to

canvass on the appeals. Two of the three motions before the Court are concerned precisely with that question. In one motion Mr.

Coleman seeks to expand the grounds of appeal. In a second motion he seeks leave to admit additional evidence. At least in material

part the additional evidence sought to be admitted is closely connected with the additional grounds which he wishes to argue.

1.2 It should also be noted that there was a third motion before the Court which simply sought leave to file an additional affidavit

directed solely to the question of whether Mr. Coleman should be entitled to expand his grounds of appeal and adduce additional

evidence. At the hearing of the motions it was confirmed by his counsel that the additional affidavit sought to be introduced was not

said to be relevant to the substantive issues which might arise on the appeals themselves but rather was confined only to evidence

which was said to be relevant to the question of whether expanded grounds should be allowed or additional evidence permitted.

1.3 In those particular circumstances, and having regard to that clarification, the Court decided to accede to that application and to

allow the relevant affidavit to be relied on in the context of the two remaining motions. This judgment, therefore, concerns those two

motions. It is first necessary to turn briefly to the background.

2. Background

2.1 In substance complaints were made to the applicant/respondent (“the Law Society”) concerning alleged irregularities on the part

of Mr. Coleman. After oral hearings, at which Mr. Coleman was represented by counsel, certain adverse findings were made against

him in two different proceedings and the Disciplinary Committee of the Law Society decided to recommend to the President of the

High Court in both cases that Mr. Coleman be struck-off. No appeal was ever brought against those decisions of the Disciplinary

Committee.

2.2 When the matter came before the High Court Mr. Coleman appeared in person and sought an adjournment on the basis,

apparently, that he wished to put in written submissions and, in particular, that he had only been served with the relevant papers on

the Friday prior to the matter coming before the court on the following Monday. Kearns P. declined the adjournment sought and the

matter went ahead with orders striking off Mr. Coleman being made in both proceedings.

2.3 It is against that backdrop that the issues now before the Court need to be considered.

3. Mr. Coleman’s Applications and the Law Society’s Response

3.1 In substance Mr. Coleman argues that he has now available to him information and evidence which might reasonably be said to

cast a new, and he says very different, light on at least some aspects of the transactions which lay at the heart of the adverse

findings against him by the Disciplinary Committee.

3.2 His original notice of appeal concentrated on what was said to be an unfairness in the way in which the matter was handled by

Kearns P. It is said that it was disproportionate to refuse him an adjournment on the first occasion when the matter came before the

court. He says that the materials which he now seeks to introduce could potentially have some relevance to such an issue for it is

said that they demonstrate that he might have had something to say had he been given an opportunity. On the other hand the Law

Society suggest that the relevant materials do not appear to have been available to Mr. Coleman at the time of the hearing before

the High Court and also suggest that his application to Kearns P. was based on a stated desire to put in submissions rather than to

file additional evidence.

3.3 In addition the Law Society argues that the relevant materials could have been obtained by Mr. Coleman if he had sought

discovery at the time when the matter was before the Disciplinary Tribunal. On that basis it is said that the Court should not now

allow those materials to be admitted.

3.4 Furthermore, there was something of a dispute between counsel as to the precise nature of the hearing which might have

followed in the High Court had the matter been adjourned. Counsel for Mr. Coleman suggests that he would have been entitled to, or

at least that there was a reasonable prospect that he would have been able to, obtain a de novo hearing which would have gone into

the merits of the adverse findings made by the Disciplinary Committee. Counsel for the Law Society suggests that there was not, in

the absence of an appeal having been brought against the adverse findings of the Disciplinary Committee, any entitlement to have

those findings revisited although counsel did accept that the High Court retained a discretion to look into any matters of fact which

had been the subject of determinations by the Disciplinary Committee if the High Court felt that there was good reason for so doing.

3.5 In substance counsel for the Law Society submitted that the criteria established in the jurisprudence (dating back at least to the

judgment of Finlay C.J. in Murphy v. Minister for Defence [1991] 2 I.R. 111 at p.164) for admitting new evidence were not met not

least because of what was said to be a failure to use reasonable diligence in obtaining the documentation concerned at or before the

time when the matter was before the High Court.

3.6 It was also argued that there was an inextricable link between the proposed expanded grounds of appeal and the new materials

for it was said that the grounds now sought to be relied on had not been advanced in the High Court and could not be advanced

before this Court in the absence of the admission of new evidence.

4. Discussion

4.1 In my view a court should always endeavour, should it prove possible and should there be no significant risk of injustice, to

determine questions such as the scope of an appeal or proposals to admit new grounds of appeal or new evidence, in advance of the

substantive hearing. It is always better, if it can be done, that the precise issues which the court will have to address when hearing a

substantive appeal and the materials to which the Court can refer are known in advance.

4.2 However, there can be cases where there is a sufficient link between the issues which might arise in determining whether it is

necessary, in the interests of justice and in accordance with the jurisprudence, to permit either or both of expanded grounds or new

evidence, and the issues which arise on the substantive appeal itself, such that it might be appropriate to postpone a final decision

on the question of whether expanded grounds and/or additional evidence should be permitted until after the Court has had a clearer

view of the issues on the appeal. In some limited cases it may be better to defer a final decision on expansion of grounds or admission

of new evidence until full argument on the merits of the appeal both as then presently constituted (having regard to the grounds of

appeal and the materials properly before the Court) and an exploration of the arguments which would be put forward in the event that

additional grounds and/or evidence were permitted, has occurred.

4.3 In some limited cases it will be much easier for a court to reach a just conclusion on the question of whether new grounds should

be permitted to be argued and/or new evidence admitted when the court has a full understanding of where those new grounds and

that new evidence might fit into the overall picture. In such cases it has been the practice in the past that the court may decide

that it is a safer course of action to adjourn consideration of procedural applications relating to new grounds and/or new evidence to

the hearing of the substantive appeal itself.

4.4 I am satisfied, in all the circumstances, that this is such a case. Having heard the argument as it developed at the hearing of the

motions, I am concerned that the Court might not do justice to the parties by determining these applications without having a more

detailed understanding of the precise issues which would arise on the substantive appeals both in the circumstances where the

motions were refused or where the relief sought was granted. I would, therefore, propose that the two remaining motions, being the

application to add new grounds of appeal and the application to permit the admission of new evidence, be adjourned to the hearing of

the substantive appeal. However, I think it is fair to say that these appeals have been the subject of more than their fair share of

procedural mishaps largely down to failures on Mr. Coleman’s side. For the avoidance of doubt I would, therefore, give very precise

directions as to how these appeals are to be conducted henceforth.

5. The Directions

5.1 As already noted I consider that the two remaining motions should be adjourned to the hearing of the appeal itself. As the

rationale for taking that course of action is that it may be easier to come to a just resolution of those two motions when the Court

has a fuller understanding of the issues which might arise on the appeal either with or without the new grounds and evidence, it

logically follows that the Court should hear argument, first from Mr. Coleman and in reply from the Law Society, on all issues

concerning:

(a) The appeals based on the grounds and materials currently before the Court;

(b) The argument which would be advanced on the grounds and materials which would be before the court in the event

that the motions were successful; and

(c) Whether it would be appropriate to allow the additional grounds to be advanced and/or new evidence to be admitted,

A single submission from each side covering all such issues in that order should be made.

5.2 However, I would propose that the Court make clear that it would be the intention that the Court will first decide, having heard

argument on all questions, the issues which arise on the motions and thereafter decide the substantive appeal. For reasons which will

be known to counsel, the panel which will ultimately hear this appeal will differ, at least in some respects, from the panel which has

been dealing with this matter to date.

5.3 However, to ensure that this appeal will, at last, be presented in an appropriate fashion, I would propose that the Court direct

that the materials for the appeals be prepared strictly in the following books:

Book A: All of the materials which would properly be before the Court on the basis that the relief sought in the two relevant

motions is refused and that the appeals have to proceed on the existing grounds and in reliance only on those materials which

would properly be before the Court in any event.

Book B: The additional materials (including the proposed amended notice of appeal) which could be properly relied on if the

motions are successful.

Book C: The specific motion papers and affidavits which were before the Court on the two motions which have been adjourned

to the hearing of the appeal. For the avoidance of doubt it is unnecessary to include the papers relating to the third motion

which has already been determined although, given that liberty has been given to place reliance on the affidavit which was in

question in that motion in the context of the two other motions, that affidavit should be included. The materials referred to as

being required to be included in Book B should not be duplicated in this book.

Book D: A book of submissions and authorities. However, in that context the parties should file revised submissions in which, in

a single submission from each side, three aspects of the matters before the Court are addressed in sequence:-

(a) The appeal as currently constituted and on the basis of the materials currently before the Court;

(b) The appeal as it would be argued in the event that expanded grounds and additional evidence are permitted; and

(c) The grounds on which it is said that the additional grounds and additional evidence should or should not be admitted.

5.4 I would further propose that the case be placed before a single judge for case management to ensure that the papers have been

prepared in accordance with this direction. A date for the hearing of the two remaining motions and the substantive issues arising on

the appeals will not be fixed until that case management judge is satisfied that the papers have been properly prepared.