High Court allows prima facie case of misconduct against one solicitor regarding a legal executive and a fraudulent deed.

APPROVED [2025] IIEHC 448

THE HIGH COURT

IN THE MATTER OF THE SOLICITORS ACTS 1954 – 2015 AND IN THE MATTER OF JOHN O’LEARY AND BRIDGET O’LEARY SOLICITORS AND IN THE MATTER OF JOHN O’LEARY, BRIDGET O’LEARY, SEAMUS TURNER, PETER REDMOND, CORMAC MULLEN, CATHERINE O’CONNOR, SEAN NOLAN, GERAINE O’LOUGHLIN AND WENDY SMITH SOLICITORS.

RECORD NUMBER 2020 78 S.A

BETWEEN

BRENDAN KIRWAN

APPELLANT

AND

JOHN O’LEARY, BRIDGET O’LEARY, SEAMUS TURNER, PETER REDMOND, CORMAC MULLEN, CATHERINE O’CONNOR, SEAN NOLAN, GERAINE O’LOUGHLIN AND WENDY SMITH

RESPONDENTS

AND

SOLICITORS DISCIPLINARY TRIBUNAL

NOTICE PARTY JUDGMENT of Mr. Justice Nolan delivered on the 31st day of July, 2025.

1. This matter has been the subject of three decisions of the superior courts, two by learned presidents of the court, as well as the Supreme Court. It is part of an unusually long and protracted dispute which goes back to 2006, which itself has been the subject of countless court decisions, culminating in the recent important decision of the Supreme Court in Kirwan v Connors & others [2025] IESC 21.

2. This judgment deals with a net issue and that is whether the Appellant, Mr. Kirwan, has demonstrated a prima facie case of misconduct as against the Respondents, such that the Notice Party, the Solicitors Disciplinary Tribunal (“SDT”), should carry out an investigation in relation to matters.

3. Bearing in mind that the issues which are at the core of this case, occurred nearly 20 years ago and that the complaints, the subject matter of this judgment, were made over a half a decade ago, this is a classic case of paper never refusing ink, since the amount of documentation which has been generated is truly shocking.

4. At the core of the case is an allegation that Mr. Kirwan was hoodwinked by the Respondents, in particular the first named Respondent, into thinking that the person who was dealing with a significant business transaction on his behalf, was a solicitor, when in fact, she was a legal executive.

The Background

6. The background to this case has been succinctly set out in various judgments and I do not intend to repeat it and will simply adopt the narrative of Murray J. in the Supreme Court, as Barniville P. did in his judgment [2025] IEHC 337:-

“The sequence of events begins in 2005. In the course of that year, the applicant and a Mr. Eamonn Buttle were engaged in discussions with a view to the sale by the applicant to Mr. Buttle of property owned by him in Wexford town. At a certain point in their discussions (according to the applicant, at a point after an agreement had been reached as to the essential terms of the proposed transaction) they consulted the firm of MJ O’Connor Solicitors, of whom both were long standing clients. Matters ended up with Mr. Buttle’s interests being represented in connection with the transaction by the first respondent, a senior partner of the firm. The applicant’s interests were handled by a legal executive employed by MJ O’Connor. The legal executive was not a qualified solicitor. The respondents say that she was a person who had many years of experience in dealing with conveyancing transactions, that she had been engaged in other commercial property transactions for the applicant in the past and that he knew that she was not a solicitor. The applicant disputes this and says that the respondents arranged matters in such a way that he would be represented and advised by a person who was – unbeknownst to him – not a solicitor and who was under the control of the first respondent. This, he says, resulted in his being given legal advice by a person who had no entitlement so to do and his being, in consequence, significantly disadvantaged by the transaction.

As a result, he says, the legal documentation produced around the transaction (all relevant components of which purport to bear his signature) did not reflect the agreement he had actually reached with Mr. Buttle. He says that that agreement was to involve the acquisition by Mr. Buttle of the properties in question for a sum of €4M, with €1M to be paid from the outset. The written documentation, on the other hand, evidences an advance to the applicant of €1M, secured by a mortgage over some of the properties, and a contract of sale that was conditional upon the obtaining of certain planning permission. While the applicant does not in any affidavit before this Court deny that what purports to be his signature on some or all of these documents is in fact his signature, he does deny that he signed some of the documents on the dates on which they were purportedly signed, and he consistently asserts that he was at all relevant times acting under the influence of the legal executive and/or the first named respondent. In the course of oral submissions on this appeal, the Court was advised that the applicant signed various papers that were put before him, the suggestion being that he was not aware of what, precisely, he was signing.

Ultimately, the property market entered a rapid decline in the course of 2008 and the transaction did not proceed. A number of legal actions followed. Mr. Buttle claimed to be entitled to recover from the applicant the sum of €1M which, Mr. Buttle said had been advanced to the applicant by way of loan. Thereafter, that alleged debt was purportedly assigned to a company called Filbeck Limited (‘Filbeck’), which proceeded to seek judgment against the applicant in that sum. On 15 November 2012, Filbeck obtained judgment in default of appearance in the amount of €1,056,936 against the applicant, the applicant subsequently moving to set this judgment aside. The applicant thereafter sought judgment against Mr. Buttle in separate proceedings in the sum of €3M arising from the terms (as he alleged them to be) of the failed contract. Mr. Buttle brought an application to have these proceedings struck out in February 2013, that application being successfully resisted by the applicant on the basis that the determination thereof should await the outcome of another set of proceedings instituted by the applicant in May 2013 against Mr. Buttle, members of his family and Filbeck, together with the firm of MJ O’Connor Solicitors. His claim against MJ O’Connor Solicitors in that third action sought damages for negligence and breach of contract and contained a wide range of allegations against that firm arising from its representation of the applicant in connection with the transaction.

Those latter proceedings were the subject of successful applications to the High Court by the defendants thereto to strike out for want of prosecution, the decision of that Court being upheld by the Court of Appeal. This has resulted in a separate appeal to this Court. The first and second named respondents swore affidavits in connection with these applications. The course of these proceedings is charted, and the facts elaborated upon further in the decisions of the High Court and Court of Appeal recorded at [2019] IEHC 954, and [2022] IECA 242, and in the Determination of this Court granting leave to appeal in that matter, [2023] IESCDET 34.

The complaints

On 16 and 19 September 2019 Mr. Kirwan delivered two applications to the SDT pursuant to s. 7 of the 1960 Act, as substituted by s. 17 of the Solicitors (Amendment) Act 1994 (‘the 1994 Act’) and as amended by s. 9(g) of the Solicitors (Amendment) Act 2002 (‘the 2002 Act’). The second in time sought an inquiry into alleged misconduct of all of the respondents, who were identified as the partners at the relevant time of the firm of MJ O’Connor Solicitors (‘the firm’). The first was against the first and second named respondents alone.

Each application made wide ranging allegations against the respondents of various forms of illegality. Complaints were made of the fact that the respondents sought to recover fees from the applicant for work that, the applicant said, was done by a person lacking the necessary qualification. He says that he was deceived into thinking that the legal executive was a solicitor, that he thus instructed her to ‘implement the €4 million sale’ and that she personally undertook to do so. He says that due to his chronic dyslexia, he was 100% reliant on the legal executive and that he trusted her. However, he alleges that the legal executive was, in fact, working for the first respondent. He says that the first respondent facilitated her in acting as she did so that he could be in total control of both parties to the transaction.

Mr. Buttle, the applicant contends, wanted the deal structured in a manner that was prejudicial to the applicant. He says that ‘it is alleged that Brendan Kirwan granted a Mortgage in favour of Eamonn Buttle, which is disputed’ and complains that the legal documentation used to record this alleged mortgage has never been put forward by Mr. Buttle or the firm. He says that no letter of instruction to the legal executive exists, and disputes that she had any authority to act in a manner that would bind him. Later in his application he asserts that the legal executive was acting as Mr. Buttle’s agent. He says that the first respondent was ‘in control’ of the legal executive and thus of both sides of the transaction. He lays considerable stress on the fact that various documents subsequently relied upon by Mr. Buttle were dated 5 July 2006 when, the applicant says, he was in France.

In the course of his affidavit, the applicant says that the fact that what he describes as ‘the alleged agreements’ were witnessed by the first respondent and the legal executive confirms that the applicant had no solicitor present on 5 July 2006 and that the legal executive was acting ‘as legal executive of Mr. John O’Leary, and not as solicitor for Brendan Kirwan’. He describes the agreements as ‘one sided agreements where they purport to be executed on a date when Brendan Kirwan was not in the country, and Mr. Buttle, and his Solicitor Mr. John O’Leary and his legal executive were all present yet none of them witnessed the signature of Brendan Kirwan on said agreements …’.

He alleges that these events disclose inter alia a conflict of interest, a breach of various provisions of the Solicitors Acts (and in particular ss. 55 and 56 of the Solicitors Act 1954), a failure to protect his interests, a failure to make disclosure to him and a failure to ensure that he received proper and adequate legal advice and representation.

The application pertaining to the first and second respondents listed eighteen complaints, said to arise from their actions in what is described as the aiding and abetting of what are characterised as false claims made by Mr. Buttle, members of Mr. Buttle’s family and Filbeck. While the overall context is the same as that giving rise to the complaint against the firm as a whole of September, complaints are also made relating to the various sets of legal proceedings to which I have earlier made reference (record numbers 2011 4998S, 2012 2995S and 2013 5514P respectively). The applicant says that in the course of the second and third of those proceedings it was falsely claimed by the first and second named respondents that documents were agreed, signed and witnessed on 5 July 2006 when, it is contended, the applicant was in France, and it is claimed that inconsistent accounts were given of relevant matters by the respondents in those proceedings, on the one hand, and before the SDT, on the other. The applicant says that the alleged mortgage of that date was lodged to the Registry of Deeds, and that procuring the registration of false instruments is fraud and misconduct as well as a breach of s. 41 of the Registration of Title Act 1964. He alleges that what he claims to be forged documents were used in these High Court proceedings in an attempt to avoid what he says is the €4 million payment to him, the alleged forgeries then being relied upon to seize all his properties.

All of this is said, in various ways, to represent breaches of the Solicitors Acts, perjury, and breach of various provisions of the Criminal Justice (Theft and Fraud Offences) Act 2001, the Criminal Justice Act 2011, the Non-Fatal Offences Against the Person Act 1997 and the Registration of Title Act 1964. Also included in his complaints are claims that by refusing to answer a notice for particulars and (as alleged) withholding true facts from the Court in case 2013 5514P, these respondents engaged in perjury, subornation and that they breached the Commissioners for Oaths Act 1889. The applicant demands the return of the fees paid by him, on the basis that they were paid for the services of a person who was not in fact a qualified solicitor.

Those claims were disputed in affidavits delivered by and on behalf of the various respondents. The principal affidavits were sworn by the first respondent, in which he deposed on behalf of himself, the second respondent and the firm of MJ O’Connor. He said that the applicant was an experienced businessman of long standing who had engaged in property investment and development ventures. He alleged that the applicant had over the years consented to act as director of several companies and said that the firm of MJ O’Connor had had many dealings with the applicant over a period of eleven years prior to the events of 2006. The first respondent averred that he had never understood the applicant to consider himself a vulnerable person: he described the applicant as ‘competent and well capable of managing his affairs and of understanding, and discussing knowledgably, the concepts and dealings concerned’. He said that from 2003 onwards the applicant’s primary point of contact at the firm was the legal executive, who had also acted in connection with other property transactions to which the applicant had been party. She was, the first respondent says, a senior legal executive with a specialisation in conveyancing and was held out as such. Mr. O’Leary says that the first contact the firm had in relation to the transaction giving rise to the complaint was when he was contacted by Mr. Buttle at the end of 2005, at which point he says that Mr. Buttle advised him of an intended transaction between him and the applicant. The first respondent says that he was advised by Mr. Buttle that the legal executive would be acting for the applicant in connection with that transaction. The deal as explained to him involved, the first respondent says, the sale by the applicant of property in Wexford town in return for a cash consideration of €1M together with developed property comprising a commercial unit and several apartments. The first respondent says that Mr. Buttle instructed him that the deal was to be subject to planning permission.

The first respondent refers to a meeting between the legal executive, the applicant, his son and his accountant, in which the respondents contend inter alia it was said that the applicant was adamant that he would not sell if planning permission for the proposed development was not forthcoming, that he was insistent on getting the €1M cash in advance, that the applicant would have to repay this sum in the event that planning permission was not obtained and that this repayment obligation would be secured by a mortgage over certain lands to be given by the applicant to Mr. Buttle. The first respondent says that the documents were signed by the applicant in April 2006, were returned to him by the legal executive on the 20th of that month and were held ‘in suspense’ to allow for the resolution of an issue affecting the applicant’s ability to grant the required first ranking mortgage to Mr. Buttle in circumstances in which National Irish Bank was a prior encumbrancer over the property in question. He said that that issue was resolved in early July 2006, and the agreements were dated 5 July 2006 and ‘came into effect’.

The first respondent’s evidence is that the applicant is the author of his own misfortune, having been unable or unwilling to repay the €1M advance that he obtained from Mr. Buttle. He says that when the deal with Mr. Buttle fell through the applicant could have repaid Mr. Buttle, retaining his own property (which, the first respondent says, the applicant retains to this day – unless he otherwise voluntarily disposed of it). The first respondent exhibited letters dated 20 April 2009 and 21 July 2009 in which the applicant acknowledged rescission of the sale contract and his indebtedness to Mr. Buttle and offered property in discharge of his debt. Separate affidavits were delivered in the second complaint by Messrs. Nolan, Mullen, Smith, Redmond, O’Loughlin and Ms. O’Connor. Effectively, these persons said that they had no familiarity or knowledge of the facts and circumstances referred to in the applicant’s complaint.

The applicant responded to these affidavits repeating many of his previous averments and assertions, claiming that in a variety of different respects the High Court judge in deciding the application to dismiss the third proceedings, had erred and failed to address submissions and claims made by him. He claims that the respondents failed to correct errors thus made by the judge. He referred to the fact that he had been sued by MJ O’Connor for fees, and that all partners must have known of this, and of the fact that the legal executive was not a solicitor.

He says that while Mr. Buttle in the course of the High Court proceedings had denied that there was any agreement to sell the properties to him for €4M, Mr. O’Leary’s affidavits show that there was such an agreement. It is then alleged that the respondents withheld this information from the High Court. Similarly, he says that while Mr. Buttle claimed in affidavits sworn by him before the High Court that the contract was entered into in July 2006, Mr. O’Leary claimed before the SDT that the agreement was made in April. He emphasises the fact that there are two versions of a side letter purportedly signed by him and dated 23 March 2006 and claims that these disclose materially different considerations for the transaction (one, he says, shows a consideration of €4M and the other a consideration of €2M).

He says that the first respondent was acting as his solicitor in connection with another matter as late as November 2009, and disputes claims by the first respondent that the second respondent was involved only in incidental dealings with the applicant some years after the firm’s substantive role had come to an end. He questions the credibility of the claim that he would have entrusted as important a transaction as the agreement with Mr. Buttle to a person who was not a solicitor, claiming that there were other clients of the firm who were led to believe that the legal executive was a solicitor.

Assertions by the first respondent that the legal executive was described on the firm’s website throughout the relevant period as such, are disputed. The applicant says that one of the developments which the first respondent said was handled by the legal executive in fact involved other members of his family. He repeatedly draws attention to the fact that the papers appended by the respondent to their affidavits do not disclose any attendance recording the applicant as signing any documents in April 2006. He points to a number of issues arising from the National Irish Bank indenture and memorandum of partial release which, he says, were not executed until February 2008, and that this is long after it was (as he describes it) falsely claimed that the applicant had signed them on 23 June 2006 (when, he also says, he was in France).

He claims that the letters of 20 April 2009 and 21 July 2009 are ‘completely false and entirely disputed’. He also disputes claims by the first respondent that once it became apparent that there was a controversy between the applicant and Mr. Buttle, he told Mr. Buttle that he could no longer act for him, pointing to a letter sent to the applicant’s then solicitors on 7 July 2010 in which it was said that the firm had instructions to institute proceedings against the applicant. This letter also stated that the firm would not act for Mr. Buttle and Filbeck if the applicant objected to its so doing.

In decisions issued on 8 October 2020, the SDT determined that neither of the complaints disclosed a prima facie case of misconduct. Those decisions were based on the papers alone and were not proceeded by an oral hearing. The SDT found that the allegation that the legal executive acted as a solicitor or held herself out as such had been sufficiently rebutted – she was, it said, an experienced legal executive providing legal services under the supervision and in the employment of a solicitor (the solicitor under whose supervision she was providing those services is not identified by the SDT). It said that there was no evidence that the legal executive was held out as a solicitor, emphasising that the applicant had dealt with her for ‘some years”. It found that the applicant was aware that the first respondent was the legal executive’s ‘boss’. Allegations of deception or concealment, lack of independence, and of forgery and perjury had, it said, been sufficiently rebutted. It said that ‘while it might have been imprudent for the firm to act for both sides in a transaction, that itself is not evidence of a lack of independent advice or misconduct’. Allegations that the High Court had been deceived by the respondents was a matter for that Court and that allegation had been sufficiently rebutted. The SDT noted that Meenan J. in the course of the High Court proceedings had expressed the view that those proceedings were based on a failed commercial venture for which the applicant sought to attribute blame to the respondent solicitors, and concluded that the complaints in this case, issued many years after the events, had the same basis.”

The Hearing before Barniville P.

8. Arising from the Supreme Court's decision to set aside the order of Irvine P. affirming the decision of the SDT, the matter came before Barniville P. He made clear that the issue which had yet to be determined was, whether or not in light of all the circumstances, the court should extend the time for Mr. Kirwan to appeal to the High Court, from the decision of the SDT, which found that the complaints had not disclosed a prima facie case of misconduct.

9. The learned President made it clear that it would be a matter for this court to ultimately determine whether the material relied upon by Mr. Kirwan was sufficient to disclose a prima facie case of misconduct. That is the role that this court must now embark upon. It is of course obvious, but perhaps worth saying nonetheless, that it is not for this court to decide that there actually was misconduct, that will be a matter for the SDT, who will hear all the evidence, decide all questions of fact and ultimately make a ruling as to whether or not there has been misconduct, if I decide there is a prima facie case to answer. Therefore, nothing in this judgment should be interpreted by either Mr. Kirwan or the Respondents as a finding of any description.

10. I think it is also worthy to note that only three solicitors participated in the application before the High Court, then and now and they are the first three Respondents.

The Complaints

11. The original complaints made by Mr. Kirwan, are both dated the 18th of September 2019. They run to over 24 paragraphs of allegations of misconduct, fraud, deception, professional negligence, dishonesty and conflict of interest, all amounting to alleged breaches of the Solicitors Acts. They covered the areas dealt with by Murray J. in his judgement but primarily focus upon the activities of the first named Respondent and a legal assistant who is also described as his secretary, Ms. C.

14. I do not think I am doing an injustice to him when I say that the core issue in relation to Ms. C, is that he says that the Respondents held her out to be a qualified and practising solicitor and he did not know she was not and therefore he never consented to her so acting. The effect of this, in the context of the commercial transaction, is that the Respondents were also acting for Mr. Buttle, the other party to the transaction and therefore, the argument goes, that Mr. Buttle and/or the first named Respondent controlled the transaction to his detriment. This is particularly relevant given that Mr. Kirwan says he suffers from dyslexia.

15. The second main complaint relates to the creation of certain documents and in particular a Deed of Partial Release. Mr. Kirwan says that it must be a forgery since he was not in the country when it was received by the Respondents and therefore, he could not have signed it.

16. While there are other issues raised, they, in essence, flow from these issues of fact.

The Role of Mr. Barry Kirwan

17. Barry Kirwan is the son of Mr. Kirwan. As I noted above Mr. Kirwan says he suffers from dyslexia. As a result, his son Barry has appeared with him in court and has advocated on his part in the past. The various affidavits before the court describe him as being “son next of kin, guardian and next friend”, but there is no legal basis for these assertions. The normal procedure for a litigant in person, who needs assistance, is to apply to court to allow somebody to act in the role of an assistant or helper, this is often referred to as “a McKenzie friend”.

18. In this regard I note the decision of Meenan J. in the case of Kirwan v Connors & others [2019] IEHC 954, where he permitted Mr. Kirwan jr. to act with him given, what he described, as “extenuating circumstances”. I note that no objection has been made by the Respondents. Given his involvement throughout the various courts, for expediency, I shall allow him to appear in this case. However, I want to make it very clear that this is not a precedent for allowing unqualified persons to act in some form of pseudo-legal capacity.

19. The submissions show a clear conflict of fact on the main issue in this case, namely the role of the legal executive. The Law

20. As Barniville P. pointed out in his judgement, the court, in coming to its determination, is not hearing the case, that will be for the SDT. The simple question which the court has to determine is whether there is a prima facie case which requires to be heard, since it was on that basis that the SDT decided to reject the complaints.

21. This was noted by Barniville P. where he said: -

“In the event that the extension of time is granted to Mr. Kirwan, it will be a matter for the court that ultimately hears the appeals to determine whether the material relied on by Mr. Kirwan is sufficient to disclose a prima facie case of misconduct.”

22. The leading case on this issue is Law Society of Ireland v Walker [2006] IEHC 387, where Finnegan P. observed at para 45. of his judgment: -

“In light of the authorities which I mention I am satisfied that the function of the Tribunal is to consider all matters on affidavit before it. While at this stage of the procedures the Tribunal is not the fact finding body it may for the purposes of deciding on whether a prima facie case is disclosed, make findings of fact where the facts are clear for example where the complaint is based on a clear misapprehension as to the facts or the law. Subject to this the Tribunal shall consider all the material before us and determine whether the application has any real prospect of being established at an inquiry any doubt being resolved in favour of an inquiry being held.

The purpose of this stage of the regulatory process is to enable complaints which are frivolous, vexatious, misconceived or lacking in substance to be summarily disposed of”.

As the learned President noted, the bar is not a high one, but it is a bar, nonetheless.

23. In Carroll v The Disciplinary Tribunal of the Law Society of Ireland and Ryan (No. 1) [2003] 1IR 278, O’Higgins J. noted in response to the tribunal finding that there was no prima facie case against the solicitor who was the subject of a complaint, that “if the applicant swore that there was perjury as set out in his affidavit, and if he was not disbelieved (and the evidence is that he was not), I consider that no reasonable respondent could hold that there was not a prima facie case”.

24. I am satisfied that the burden of proof to satisfy the threshold of a prima facie case is not high. The literal translation of the term is “on the face of it” or “at first sight” or “first appearance”. In the context of this case it means a case that has been supported by sufficient evidence for it to be taken as proved, in the absence of adequate evidence to the contrary.

Discussion and Decision

24. Both parties have furnished lengthy submissions. I have also had the benefit of reading all the affidavits furnished to Irvine P., the Supreme Court, and Barniville P. As Murray J. noted, the core argument put forward by Mr. Kirwan is his assertion that he was deceived into thinking that the legal executive was a solicitor and, on that basis, the legal executive was, in fact, working for the first Respondent, so that he could be in total control of both parties to the transaction.

24. His second main complaint is that certain documents were created in a fraudulent manner and in particular a Partial Deed of Release, dated 23rd of June 2006, when, he says, he was in France, which I shall deal with below. While the judgment of Murray J. refers to other documents, I have only been able to identify one.

25. Two complaints are at the core of Mr. Kirwan’s issues. These are complaint 4(1) of complaint 2019/DT62 and 4(A) of complaint 2019 DT56 relating to the first matter, as interpreted by the SDT. In relation to the second complaint, it is very hard to identify a specific complaint which covers the issue. Because of the shotgun approach adopted by him in relation to the drafting of the complaints, precision has been lost. Nonetheless, it seems to me that 4(1) of complaint 2019 DT56 is the one that comes closest to covering it.

The First Issue - the Status of the Legal Executive

26. The complaints which Mr. Kirwan made were rambling, running to over 20 paragraphs of repetition. The SDT distilled the core into the following: -

“A person not on the role of solicitors M.C. is prohibited from acting as a solicitor or holding themselves out or pretending to be a solicitor in accordance with section 55 of the solicitors act 1954( prohibition on unqualified person acting as a solicitor)

section 56 of the Solicitors Act 1954 (prohibition on pretending to be a solicitor) and a breach of these sections by M.C., M.J.OC. solicitors all facilitated by the partners is an offence”.

27. As I noted above, notwithstanding the editing by the SDT, the allegation is an imprecise one, but the SDT did its best to get to the core of what the issue was. The reason it gave for rejecting the complaint was: -

“The allegation that Ms. C. acted as a solicitor or held herself out as such has been sufficiently rebutted. She was an experienced legal executive providing legal services under the supervision and in the employment of a solicitor which is permissible under the Solicitors Acts.”

28. The version of the second complaint was in very similar terms but the reasons given were somewhat different. The SDT said: -

“There is no evidence that M.C. or the respondents solicitors held her out as a solicitor. Her description in the contract was “legal executive”. The applicant had dealt with her some years. It is permissible for legal executives to provide legal services under the supervisions of her employers.”

29. Both of these answers are absolutely correct. The issue which Mr. Kirwan raises however is that he was misled into believing that the legal executive was a solicitor, and on that basis he says she did not represent his interest and the whole transaction was in the hands of the first name Respondent.

30. In relation to the first complaint, it must be noted that these transactions took place in 2006, at which point there was no prohibition on the same firm of solicitors acting on both sides of a transaction. Thankfully that is no longer the case. Nonetheless even in 2006 it was not recommended practice. I perfectly understand how it arose since both parties were clients of the office.

31. In relation to the second complaint it is still permissible for legal executives to provide legal services under the direct supervision of their employers, and indeed many legal executives are more expert in certain fields of law then the solicitors who employ them. In the context of this case where Mr. Kirwan says that he suffers from profound dyslexia, which in my view is a matter which he will have to prove to the satisfaction of the SDT, he says that he was entirely in the hands of Ms. C. He says that at all times he believed she was a solicitor. He says that his disability vulnerability was taken advantage of by the Respondents. He received legal advice from her which he says is a breach of the Solicitors Acts in that she was not qualified to practise as a solicitor. It is important to note that the Respondents totally refute these allegations.

Nonetheless given that the Respondents were acting for both sides in the commercial transaction, and the sworn testimony of Mr. Kirwan, and the views of O’Higgins J. in Carroll, and the views of Finnegan P. in Walker that any doubt should be resolved in favour of an inquiry being held, it seems to me that taken together these assertions amount to a prima facie case, and therefore his complaint requires to be heard.

The Second Issue - Documents Purportedly Forged

32. The next issue which requires to be considered relates to Mr. Kirwan’s assertion that he could not have signed certain documents because he was in France. As I noted above, the judgment of Murray J. referred to a number of documents, but in point of fact the only document, which I have been able to identify as requiring an explanation, is a Deed of Partial Release, dated the 23rd of June 2006. On the 22nd of June 2006 Mr. Kirwan says he went to France. The Respondents say that other documents were executed before he left the country and were kept in escrow. However, that could not have happened in relation to this particular document, since the correspondence from National Irish Bank enclosing the document was dated the 11th of July 2006, when he was in France, so he could not have signed it before he left Ireland, since the Respondents only got it from the bank after he left.

33. The court does not know if these dates are accurate but simply on the basis of the correspondence, the assertion of Mr. Kirwan that he was in France, something that he will have to prove, and the date of the alleged executed document, all suggest that the explanation put forward is not correct. As I say, that is simply on the face of the various documents and the dates on them. There may be perfectly valid reasons and explanations, but it seems to me that this is an issue which should also be considered by the SDT.

Other Issues

34. Mr. Kirwan has urged me to consider other issues in relation to general allegations of misconduct, fraud and deception. It seems to me that they are so broadly based and lacking in precision as to make it practically impossible for the SDT to carry out any considered investigation. Further I note the virulent opposition of the Respondents, as set out in the affidavits, exhibiting certain documents, which means that I cannot say, with any degree of certainty, that there is a prima facie case on those other issues. Therefore, I have come to the view that in relation to all other complaints which Mr. Kirwan has made, there is not a prima facie case and therefore I will not send any further matters to the SDT to be considered.

Who should be before the SDT?

35. I have concluded that there is a prima facie case of misconduct made in relation to two matters, however the question arises as to which of the Respondents should be before the SDT. I note that the first, second and third named Respondents have been represented and that the others have not. I see no case against any other solicitor other than, potentially, the first named Respondent. He was the person who was acting on the other side of the transaction and the legal executive reported to him. Therefore, I shall dismiss the application in relation to the other Respondents.

36. That being the case, I shall remit the matter to the SDT in relation to him and him alone for the purposes of investigating two complaints or issues and two only, which I shall set out as follows: -

1. That the First named Respondent held out the legal executive, Ms. C to be a solicitor, in her dealings with the Applicant, thus breaching sections of the Solicitors Acts.

2. That the Partial Deed of Release dated the 23rd of June 2006, was not executed by the Applicant and was therefore procured in a fraudulent manner.

While the precise wording of the complaints may require clarification the intent of my

decision is clear. Therefore, I shall put the matter back to hear from the SDT as to the precise wording of the order to issue.