Court of Appeal dismisses solicitor's appeal on amending grounds in judicial review, holding errors immaterial.

THE COURT OF APPEAL

CIVIL

[High Court Record No. 2019 474JR]

[Court of Appeal record No. 2025 153]

Neutral Citation Number [2026] IECA 103

Whelan J. Faherty J. Butler J.

BETWEEN/

MATTHEW WALES

APPLICANT/APPELLANT

AND

THE SOLICITORS’ DISCIPLINARY TRIBUNAL

AND

THE LAW SOCIETY OF IRELAND

RESPONDENTS

JUDGMENT of Ms. Justice Máire Whelan delivered on the 3d day of June, 2026

Introduction

1. This is an appeal against aspects of the judgment of the High Court (Barr J.) [2025] IEHC

281 and consequent order (perfected on 16th May 2025) in which the court granted limited leave to the appellant to file an amended Statement of Grounds pursuant to O. 84, r. 23 of the Rules of the Superior Courts (RSC) in Judicial Review proceedings instituted by him against the respondents in July 2019.

2. The appellant is a solicitor. The background to these proceedings is somewhat involved and stems from a complaint of professional misconduct made by a third party against the appellant to the Law Society of Ireland (the Law Society) in March/April 2016 concerning events said to have occurred in 2015. The judgment of Barr J. in the High Court explores the history of events and proceedings in considerable detail. The appellant disagrees with aspects of the High Court’s characterisation, interpretation, outlining and recording of certain facts in its judgment including the original complaint. There are some errors. However none are of material relevance to the narrow issues to be determined in this appeal.

Background Facts

3. The third party complained against the appellant to the Law Society in the first instance. The said complaint was then submitted by the Law Society to the Solicitors’ Disciplinary Tribunal (the Tribunal) for preliminary determination. The Tribunal concluded that there was a prima facie case stemming from the complaint which required the holding of an inquiry. After reaching this determination the Tribunal alleges that it then encountered difficulties in effecting service of the notice of the holding of an inquiry and relevant papers on the appellant at his offices. The respondents claim that multiple unsuccessful attempts were made to effect service of notice of the holding of the inquiry on the appellant. It is suggested that he may have been evading service which he strenuously denies. The issue will be considered more fully at the substantive hearing.

4. On the 6th July 2018 the registrar to the Tribunal sent a letter to the Law Society where it was considered that an alternative approach could be for the respondents to apply to the High Court seeking substituted service on the appellant. This course of action was not taken however. The appellant lays great store by that fact.

5. Some months later the registrar of the Tribunal was informed by a representative of the Law Society that the appellant would be in attendance at a meeting of a committee of the Law Society at its offices in the City of Dublin on 9th April 2019 in connection with a separate matter. The registrar to the Tribunal accordingly attended the said premises on that date whereupon the appellant was served with the notice of the inquiry into the complaint against him along with other grounding documentation. The appellant was additionally informed that the inquiry was scheduled to take place on 25th June 2019. The contested nature of this service forms the core of the appellant’s substantive judicial review action and is a key issue to be determined at the full judicial review hearing.

6. The within judicial review proceedings were instituted in July 2019. The principal reliefs sought included an Order of Prohibition pursuant to O.94 r. 20 RSC. The proceedings are principally concerned with attempts of the appellant to prevent the resumption of the disciplinary hearing convened on 25th June 2019 by the Tribunal into the allegations of professional misconduct made against him. There is no doubt but that he was aware as and from 9th April 2019 that the Tribunal hearing was proceeding on 25th June 2019.

Events on 25th June 2019

7. The appellant did not attend the opening of the Tribunal’s inquiry on the 25th June 2019 but his wife, Mrs. Barbara Wales, was instead present on his behalf. Mrs. Wales delivered a letter from him to the Tribunal panel wherein he raised objections to the manner in which he had been served notice of the inquiry. He also complained that he had not been served with all of the necessary grounding documentation. The appellant claims that he chose not to appear at the opening of the tribunal so as not to be considered to have acquiesced as to the validity of service effected on 9th April 2019 and to his complaints in relation to service.

8. The Tribunal panel went into short recess to consider the appellant’s complaints as to the validity of service. It then reconvened indicating its conclusion that service on the appellant was in effect valid and that the hearing of the inquiry would resume later that day. The panel agreed to adjourn until later in the afternoon in order to facilitate the appellant’s attendance at the inquiry hearing.

9. When the hearing of the inquiry resumed later that afternoon, the appellant was in attendance. He raised complaints in relation to the validity of service of notice of the inquiry on him and in relation to the conduct of the registrar of the Law Society, Ms. Fenelon, in informing the registrar of the Tribunal, Ms Lynch, that he would be present at the Law Society’s premises on 9th April 2019. He also complained that he had not been served with a full set of papers in relation to the hearing. In light of those issues, the Tribunal conditionally agreed to adjourn the hearing of the inquiry provided he in turn agreed to sign for a full set of papers there and then. He did so and the hearing of the inquiry was adjourned at his request to resume on 18th July 2019. The import, validity and consequences of several aspects of the steps just outlined are in contest between the parties. However, it is unnecessary to enter into any assessment of same in this appeal save where directly material or relevant to the issues under appeal of whether the High Court erred in determining the application for leave to amend the Statement of Grounds for Judicial Review.

10. On the 15th July 2019, the appellant initially applied ex parte for leave to seek judicial review, inter alia seeking prohibition and an order preventing the Tribunal “from continuing with the inquiry”. The High Court decided that the application should be heard on notice and adjourned the application to 17th July 2019 when at the appellant’s request it was adjourned to allow him file further affidavits by close of business on 25th July 2019. Notably, the High Court order also granted liberty to the appellant’s wife Barbara Wales to file an affidavit by 19th July 2019. Neither of them availed of their right to file affidavits within time. In the circumstances, the hearing of the Tribunal’s inquiry did not resume as originally scheduled on 18th July 2019.

11. On the 31st July 2019 the appellant sought further time to file his affidavits. The Court ordered that the appellant file any affidavits by 14th August 2019. No affidavit was filed within the time directed by the High Court. The Court directed that a “telescoped hearing” of both the leave and substantive Judicial Review applications take place on 19th September 2019. No directions were given regarding the filing of Grounds of Opposition by the Respondents.

12. On 27th August 2019, the appellant applied to vacate the hearing date of the 19th September. He sought further time to file affidavits. The Court was advised that the Chairperson of the Tribunal panel would be unavailable after October 2019. The appellant confirmed to the High Court that if he was to be unsuccessful in his application for prohibition, he would not object to a different panel of the Tribunal hearing the inquiry. The Order of 27th August 2019 notes the appellant’s said acknowledgment. On that basis, the hearing date set for the 19th September 2019 was vacated and further affidavits were to be exchanged by 29th November 2019. On 2nd December 2019 the appellant filed two affidavits. The Society and Tribunal filed affidavits in response in December 2019 and January 2020 respectively.

13. The matter was listed for mention on various dates in January and February 2020 and adjourned based on the appellant’s reported illness to 31st March 2020 with the appellant directed to serve any further affidavits in advance of that date. Due to the onset of the Covid 19 pandemic, the proceedings were adjourned generally on 31st March 2020. No steps were taken by the appellant thereafter to re-enter or re-list his proceedings for four years. In January 2024 the Tribunal brought a motion to strike-out the proceedings on grounds of delay.

Delay judgment of 2nd May 2024

14. On 2nd May 2024, Hyland J. issued an ex tempore judgment wherein she found that the delay on the part of the appellant in not re-listing the proceedings at some point in the prior four years was inordinate but refused, on the balance of justice, to strike out the proceedings. The Order of the Court, perfected on 1st July 2024 states: “And the Court being of the view that there was inordinate delay of some three years on the part of the Applicant in circumstances where the Applicant was in a position to file Replying Affidavits and Submissions by the end of 2020 and could have sought a hearing date at that remove And the Court being further of the view that no acceptable excuse has been provided by the Applicant for the aforesaid delay And the Court being further of the view that the balance of justice does not favour a dismissal of these proceedings in circumstances where the First-Named Applicant has not identified any specific prejudice arising from the inordinate and inexcusable delay on the part of the Applicant” Hyland J. also granted leave to the appellant and his wife (“on the basis the Respondents’ respective Statements of Opposition make reference to the said Ms Barbara Wales’ attendance at the Tribunal”) to deliver replying affidavits by 10th July 2024 which they did.

15. Notably these affidavits launch new allegations; the affidavit of Mrs. Wales alleging for the first time improper conduct on the parts of various representatives of the respondents at the hearing of 25th June 2019. The High Court on 5th November 2024 held these affidavits were admissible in evidence but that the Society and the Tribunal “could contradict the factual evidence put forward” by the Barbara Wales in her affidavit at the substantive hearing.

16. On 13th September 2024, following directions issued by Hyland J., the appellant issued the within Motion seeking leave to amend his statement of grounds. This application was heard by Barr J. in March 2025, with judgment being delivered on 11th April 2025 aspects of which form the basis of this appeal.

Judgment of Barr J. [2025] IEHC 281

17. The judgment sets out in detail the background facts to the dispute between the parties, including the procedural history mentioned above. Some details are inaccurate as the appellant complains – but I am satisfied that no such error is in any way material to the court’s determination of the issues before it. He carries out a comprehensive analysis of the legal principles and jurisprudence governing an application for leave to amend a Statement of Grounds in judicial review proceedings. At para. 36 he explains that the proper foundation for such applications is found in Order 84, Rule 20 (4) and Rule 23 RSC.

18. Barr J. places reliance on the guiding principles set down by the Supreme Court in the case of Keegan v Garda Siochana Ombudsman Commission [2012] 2 IR 570 (Keegan) where, at para. 32, Fennelly J. explained that the court maintains a discretion whether to allow an amendment to a statement of grounds in judicial review proceedings outside of the regular time constraints and that a court may do so when persuaded that there is “good reason for the delay and that no other party is adversely or unfairly prejudiced”. However, where there was an excessive delay, such as where an application for an amendment was brought outside the permitted time for challenging a decision, there is an additional requirement on the applicant to justify the amendment.

19. A further relevant consideration identified in Keegan was whether any proposed amendment would serve to ‘enlarge’ the applicant’s case. In such circumstances, the authorities recognise that the applicant is under an obligation to explain why the newly presented ground was not included in the original Statement of Grounds. A further significant consideration highlighted by the judge was whether the proposed amendments adding new grounds would be likely to result in a need for further exchanging of affidavits between the parties. At para. 40 of his judgment, Barr J. also acknowledged the emphasis in Keegan that any application for an amendment to a statement of grounds must be considered in light of whether same would serve the ‘interests of justice’. A comparison was drawn with applications to extend time for leave to bring judicial review proceedings.

20. The trial judge proceeded to examine the post-Keegan jurisprudence which refined aspects of the test. He noted BW v Refugee Appeals Tribunal & Ors. [2015] IEHC 725 where Humphreys J. at para. 4 distilled the principles for such applications into three key factors; “Firstly, that the point should be arguable (para. 38), secondly, that there be an “explanation” for the point not having been pleaded (para. 39), and thirdly, that the other party should not be unfairly prejudiced (see para. 32), which I consider, given the court’s power to remedy any unfairness, would in practice amount to a test that he or she should not be irremediably prejudiced.”

21. Barr J. also considered the approach of more recent decisions across various jurisdictions including Habte v Minister for Justice [2019] IEHC 47, Northwest Meath Turbine Action Group v An Bord Pleanála [2022] IECA 126 and Copymoore Limited v Commissioners of Public Works of Ireland [2014] IESC 63. Each adopted the approach introduced in Keegan. In Copymoore, Charleton J. had observed that any application to amend a statement of grounds should not be permitted without an explanation that is; “sufficient to tilt the balance of rights in litigation in favour of considering the proposed new ground for seeking judicial review or for opposing it.” (para. 3). Charleton J. also considered the point in Keegan that an application for an amendment may be looked upon more favourably where it does not serve to ‘enlarge’ the applicant’s case. He elaborated on this point further explaining that; “where a pure question of law is sought to be added to proceedings, an additional ground “may not make any significant difference” whereas, on the other hand, a different view might be taken where a new ground is factual and “likely to give rise to further exchange of affidavits relating to the facts”. (para. 4).

22. Barr J. also considered the High Court decision in O’Brien v Governor of Cork Prison & Ors. [2024] IEHC 109, where Phelan J. applied the three-stage test outlined in Keegan; “I propose to apply the three stage test identified in the case law to determine if a threshold of arguability is reached, whether there is sufficient explanation for moving the application at this stage of the proceedings, whether there is any issue of irremediable prejudice and where the balance of justice lies having due regard to the paramount interest in permitting access to the court and an effective remedy and the need for the court to determine the real issues in dispute between the parties.”(para. 26)

23. Applying the principles to the appellant’s application, the trial judge accepts at para. 52 that the respondents had conceded that they would not suffer any irremediable prejudice by any of the proposed amendments. Consequently, the assessment of the trial judge on each of the appellant’s proposed amendments to the Statement of Grounds focused instead on the first two aspects of the Keegan test; whether there was an arguable point being raised by the proposed amendment, and whether adequate explanation had been given for the inordinate delay in bringing the application.

24. The appellant, as stated above, was successful in part and the High Court granted leave to amend the Statement of Grounds, as stated at para 83 of the judgment; “…the proposed order of the court will be that the applicant shall be allowed to amend the following grounds in his original statement of grounds, being the amendments to the following grounds: (2) (partial amendment); (3); (4); (5); (6); (8); (9); and (10).” Same were characterised as “minor” in nature and merely elaborative on the grounds as they stood. He continued: “The applicant will be permitted to insert the proposed new ground (11). The insertion of new grounds (12) and (13) will not be allowed. The additional relief sought to be inserted as relief (6) will be allowed; but the additional relief sought at (7) will not be allowed.”

25. It is to be noted that the respondents, in light of the amendment granted to Ground 3 which they did not cross-appeal, did not oppose the appeal insofar as Amended Relief (7) (seeking a declaration that the respondents had acted in Contempt of Court, breaches of confidence and administration of Justice) was concerned (Submissions para. 20 of the Tribunal and para. 19 Statement of Opposition filed by the Tribunal, paras.67/68 submissions of Law Society). Amended Relief 7 only relates to Ground 3 of the Statement of Grounds the amendment of which was allowed by the High Court in the terms sought. I am satisfied that the Respondents’ concession is correct and logical and that the High Court erred at para.

82 of the judgment in refusing this proposed amendment on the basis that it was “too vague”. It will be for the High Court at the substantive hearing to evaluate whether any basis is made out by the appellant for the Declaration sought at Relief 7 in the context of Ground 3.

The refused grounds the subject of this appeal

The latter part of proposed Ground 2

26. In its original form Ground 2 was about 6 lines in length. The proposed amendments lengthened it to over a page and a half. The first aspect of the proposed amendment introduced a new claim of breach of the appellant’s GDPR rights by, inter alia, alleged disclosure of ‘personal data’ by reason of specific communications between representatives of the Law Society and the Tribunal. Despite reservations (para. 67 et seq.) the trial judge noted that there would be no undue prejudice placed on the respondents by its inclusion and allowed this partial amendment to the Statement of Grounds.

27. The High Court, however, refused other amendments of Ground (2) to include various allegations against Mr. Anthony Watson, formerly Deputy Head of Complaints at the Law Society, asserting he had engaged in a series of acts and conduct including, allegedly, providing information to the Registrar of the Tribunal about a different complaint made against the appellant. The judge held : “The court will not allow this amendment, as it is already pleaded in the initial portion of ground (2), which was contained in the original statement of grounds. Accordingly, it is merely repetitious of that pleading.”

Proposed new Ground 12

28. Of significance to this appeal was the judge’s decision to exclude an entirely new proposed ground (12) which encompassed a large number of complaints made by the appellant against the Tribunal including allegations of “duress and coercion” and other alleged untoward behaviours including “harassment and intimidation” said to have been committed not against the appellant but rather against his wife Mrs. Barbara Wales on 25th June 2019. Barbara Wales is not a party to these proceedings. The judge rejected the inclusion of these complaints reasoning that “if there is any complaint to be made by the applicant’s wife in relation to the manner in which she was treated by the respondents, or either of them, or their servants or agents, that may give rise to a cause of action which she can institute. It is not a matter that can be relied upon by the applicant in support of his own judicial review proceedings.” (para. 78).

29. Separate aspects embedded within proposed new ground (12) included allegations that Anthony Watson of the Law Society had examined “…inquiry papers in conjunction with the First Respondents and the Prosecutor of the second named Respondents and members of the first named respondents tribunal panel.”. It was also alleged that the Law Society’s Prosecutor “examined inquiry papers in conjunction with” the Tribunal, members of the Tribunal panel and Anthony Watson of the Law Society. These aspects of the proposed amendment sought to ground (12) were also rejected by the High Court on the basis that the appellant would have been aware of the facts of the complaint alleged from the date of the hearing in June 2019 and that no satisfactory reason has been provided for his inordinate delay of over five years in submitting this ground; “accordingly these amendments do not pass the test set down in the Keegan case.” (para.79)

Proposed new Ground 13

30. The proposed amendments to ground (13) also sought to introduce an entirely new complaint that the Tribunal and the Law Society effectively conspired to make “decisions pre-judging decisions of misconduct” against the appellant, and that the respondents “acted to rehearse the running of the tribunal hearing of 25 June 2019 and in particular the giving of evidence in relation to same”. This proposed new ground was rejected by Barr J. who found that the allegations contained within it were not capable of being pleaded in a statement of grounds as they were “merely vague assertions” (para. 80).

31. The order of Barr J. was perfected on 16th May 2025 and confirmed that the permitted amendments to the statement of grounds were limited to those described at para. 83 of the judgment. The Order also refused the appellant’s application that the High Court Judge would review and amend his judgment.

Grounds of Appeal

32. The appellant’s prolix notice of appeal filed on the 13th June 2025 sets out 16 grounds. Many are quite unclear and imprecise, however they largely centre on claims that the trial judge was mistaken in his understanding of various background facts, that he did not properly consider the respondents’ delay and that his application of the Keegan test as it relates to the rejected aspects of grounds (2), (12), and (13) was flawed. They essentially assert;

(1) – That the trial judge erred in finding that the appellant had acknowledged service of the Tribunal papers during the inquiry hearing of 25th June 2019.

(2) – That the trial judge made errors of fact regarding the appellant’s awareness circa 25th June 2019 of the essential facts of the transfer of information between the Law Society and the Tribunal regarding locating him to effect service. Further, the trial judge failed to take into consideration the appellant’s allegations of ‘concealment’ and ‘cover up’ of a letter of consent exchanged between the respondents on 6th July 2018 to potentially facilitate an application for substituted service.

(3) – That the trial judge erred in finding the appellant had provided no explanation for his delay in seeking to amend the statement of grounds by proposed of ground (12) under the Keegan test. No explanation was necessary because the amendment was simply a particularisation of the existing ground 5. The appellant contends that the judge also failed to take account of his reservation of his position re bias and collusion, and of the fact that matters relating to ground (12) had been dealt with in the respondent’s statements of opposition. The appellant contends that the trial judge should not have excluded ground (12) as it pertained to the facts from the appellant’s wife’s affidavit which the High Court had previously found admissible.

(4) - That the trial judge erred in his determination that ground (12) should not be permitted when same concerned evidence that the appellant was unlawfully coerced into attending the inquiry hearing of 25th June 2019. The judge failed to take into account that this proposed amendment was a particularisation of ground (5). Additionally, this ground was denied on the basis of delay but the trial judge failed to identify any harm to the interests of justice that would arise as a result of delay.

(5) - That the trial judge erred by placing inordinate weight on the findings of delay made against the appellant in the judgment of Hyland J delivered on 2nd May 2024. The trial judge did not place appropriate weight on the delay of the respondents also determined in the latter judgment.

(6) - That the trial judge erred in providing his own interpretation and narrative of the hearing of 25th June 2019 when the true nature of the hearing is in dispute and the judge did not take account of verbatim evidence from the transcript of the hearing. The evidence of the tribunal hearing must be addressed at a telescoped hearing.

(7) - That the trial judge erred in granting liberty to amend the Statement of Grounds as per para. 83 of the judgment to be done within 2 weeks of perfection of the High Order. The order was required to be complied within a period prior to the statutory appeal period expiring in breach of Articles 40.3 and 40.4 of the Constitution.

(8) - The trial judge erred in refusing proposed amendment ground (13) for vagueness. He ought to have considered this ground with the other grounds and not on its own.

(9) - That the trial judge erred in rejecting relief 7 (a finding that the first respondent and Law Society have acted in contempt of court and in breach of administration of justice) since he had allowed amendments to ground (3).

(10) - The trial judge erred in granting partial amendment of ground (2) in relation to GDPR on the basis that the other parts of the ground were already pleaded in ground (2) when they were actually pleaded in ground (3). The judge erred when he failed to consider that the applicant reserved his position re bias and collusion.

(11) - The trial judge erred in refusing to consider the applicants application to review his judgment for error on the basis that same was not in the interests of justice that the judgment be reviewed. Same was a breach of Nemo Judex In Causa Sua and in breach in error of Articles 40.3 and 40.4 of the Constitution.

(12) - In deciding whether proposed amendments should be permitted the judge erred and acted prejudicially in considering their relative strength/weakness.

(13) - The judge erred in reaching his own interpretation of the underlying complaint.

(14) - The judge made essential errors of fact by not relying on the Tribunal transcript.

(15) - The judge erred generally in recording various facts.

(16) - The judge erred and with objective bias by engaging with counsel for the Law Society who stated that the applicant had agreed to attend before a newly constituted panel if judicial review proceedings failed. This agreement was made when the appellant was not in full possession of the facts.

33. The grounds as narrativised in the appellant’s notice of appeal are largely circular, often repetitive and at times opaque. They make little reference to any specific part of the impugned judgment or the trial judge’s actual application of the Keegan test which had been agreed by the parties as the appropriate legal test governing the exercise of discretion. These grounds of appeal also attempt to raise new issues against the respondents regarding allegations of delay and concealment of evidence. Additionally, the grounds as stated in the notice of appeal at times are at odds with the appellant’s written submissions, filed on 12th September 2025 and inconsistent with some arguments advanced at the hearing of this appeal on 18th November 2025. For clarity, the essential issues to be decided include;

- Did the trial judge err in rejecting proposed amendments to grounds (2), (12), (13), and relief (7) in the appellant’s statement of grounds by incorrectly applying the Keegan test to these grounds.

- Was the trial judge’s analysis of the underlying complaint materially inaccurate and flawed. Were the appellant’s rights to fair procedures violated by the trial judge’s refusal to allow the review and amendments of the High Court judgment.

- Was the trial judge’s analysis of the factual matrix regarding the hearing on 25th June 2019 materially inaccurate.

- Did the trial judge properly consider ‘concealment’ of a letter dated 6th July 2018 between the respondents concerning substituted service on the appellant.

- Did the trial judge exhibit bias in his analysis and comments surrounding a hearing before the High Court on 27th August 2019.

- Did the trial judge err in not placing sufficient weight on the respondents’ delay in filing statements of opposition such that the appellant did not have an opportunity to amend his statement of grounds in a timely manner. Notably this ground was not argued in the High Court and does not form any part of the High Court judgment.

The Respondent’s Submissions

34. In their Respondent’s Notices and written submissions each respondent contests the grounds of appeal save to the extent they both acknowledge, on terms, that new Relief 7 sought by the appellant ought to have been permitted by the High Court in light of its permitted amendment to Ground 3 of the Statement of Grounds. They accept that they would not be caused “irremediable prejudice” by the inclusion of any of the proposed amended grounds under appeal. However, they support the findings of the trial judge that the refused amendments had not been shown to be necessary in the interests of justice. They acknowledge some factual errors emerge in the judgment. However, they assert same had no material bearing on the High Court’s determination. The respondents contend that the appellant’s new arguments introduced on appeal alleging delay in filing respondents’ statements of opposition cannot be advanced at this late stage, and amount to an attempt at the appeal stage to insert a new ground of appeal contrary to the approach approved by the Supreme Court in the decision of Lough Swilly Shellfish Growers Co-operative Society Ltd & Atlanfish Ltd. v Bradley & Ivers [2013] IESC 16. The respondents reject allegations of “concealment of evidence” in relation to a letter dated 6th July 2018 sent by the Law Society to the Tribunal discussing the possibility of substituted service of the inquiry proceedings on the appellant where attempts at personal service on him had not been successful.

35. The respondents emphasise the public interest in having the statutory inquiry into the alleged professional misconduct of the appellant solicitor proceed without further delay.

Discussion & Analysis

Amending Statement of Grounds

36. The procedural foundation for an application for leave to amend the statement of grounds in judicial review proceedings is found in Order 84, rule 20(4) of the RSC which provides: “(4) The Court hearing an application for leave may, on such terms, if any, as it thinks fit:

(a) allow the applicant’s statement to be amended, whether by specifying different or additional grounds of relief or otherwise,

(b) where it thinks fit, require the applicant’s statement to be amended by setting out further and better particulars of the grounds on which any relief is sought.” It is clear from this language that the court maintains a broad discretion on whether to grant leave to amend. The authors in ‘Delaney & McGrath on Civil Procedure’1 note that the Hilary Biehler, Declan McGrath and Emily Egan McGrath, Delany and McGrath on Civil Procedure (5th edn, Round Hall 2023) [31-244] earlier more stringent approach to such applications is illustrated by the decision of Costello

J. in McCormack v Garda Síochána Complaints Board [1997] 2 IR 489 where he suggested that amendments would only be considered in “exceptional circumstances”, typically where “facts come to light which could not be known at the time leave was obtained and when the amendment would not prejudice the respondents” (p. 503). This was initially construed as indicating a requirement to satisfy a two-stage test; first to demonstrate that the proposed amendments were not merely newly discovered facts, but facts which could not have been known at the time of the original application. Secondly, to satisfy the court that the proposed amendment would not prejudice the respondents.

37. Over time the courts developed a flexible approach to such applications. The narrower approach of the High Court in McCormack was revisited and the test recalibrated by the Supreme Court in Keegan v Garda Síochána Ombudsman Commission [2012] IESC 29 where Fennelly J. set out what is now the appropriate test for assessing whether the court should grant leave to amend a statement of grounds. Firstly, the proposed ground must be at least ‘arguable’; “It is common case that, if the Court is to grant leave to apply for judicial review on the additional ground which the appellant now wishes to advance, the point at issue must at least be an arguable one.” (para. 13). The court then examines the reasons why the application for amendment was delayed or not included in the original statement of grounds. Keegan rejected a contention that the decision in McCormack required that any proposed amendment be based on facts which could not have been known to an applicant at the time the statement of grounds was filed; “Costello J did not lay down such a precondition” (para. 23). However, an applicant’s previous awareness of facts on which they now seek to introduce into an amended statement of grounds is a factor which “will weigh in the balance against him, without being necessarily conclusive”. (para. 35).

38. Fennelly J. approved the Supreme Court decision in O’Siodhacáin v Ireland (unreported, Supreme Court 12th February 2002) where Keane C.J. remarked that a key factor in favour of granting leave to amend the statement of grounds was if the proposed amendment did not serve to ‘enlarge’ the applicant’s case. Keegan held; “An additional ground may not make any significant difference, particularly if it is based, as in the present case, on a pure matter of law. A court might take a different view, if the new ground were likely to give rise to a further exchange of affidavits relating to the facts.” (para. 37).

39. The Keegan judgment emphasised the importance of ensuring applications to amend be considered in light of the interests of justice; “The object of the system is to strike a fair balance between the certainty and security of administrative decisions and the rights of persons affected by them who wish to contest them” (para. 31). In determining whether the interests of justice are served by an amendment justifications and explanations provided by the applicant for their delay are of great relevance; “If he applies for an amendment of his grounds within the judicial review time limit, he should, obviously, at least in normal circumstances, have no difficulty obtaining the amendment. If he applies for an amendment outside the time, he will have to justify the application. He will have to explain his delay, just as in the case of a late applicant. The court will expect him to give reasons to explain his failure to include the new proposed ground in his original application.” (para. 34). The need to balance competing rights including ensuring access to the courts as against the public interest in certainty and reasonable expedition in decision-making was further considered by Fennelly J. where he noted; “The nature of the decision may also be relevant. If it is one which benefits the public at large or a large section of the public, a challenge may have corresponding disadvantages for a large number of people”. (para. 36).

40. In Habte v Minister for Justice and Equality [2019] IEHC 47 (at para. 32), which was cited with approval by Barr J., Humphreys J. distilled a summary of principles emerging from the Keegan case law remarking that he did so “…at the risk of engaging in an overly optimistic attempt to reduce legal entropy in this most confused of areas.”: “(i). the jurisdiction to amend is intended to be liberal (Croke, Moorehouse);

(ii). in considering the amendment of pleadings in any proceedings, the overriding consideration is the interests of justice, including the right of access to the courts and ensuring that the real issues in the proceedings are addressed (Keegan, O'Neill, Croke, Corbett);

(iii). it is not the function of the court in considering an amendment to punish parties for mistakes (Moorehouse);

(iv). there are three tests for allowing an amendment: arguability, explanation and lack of irremediable prejudice (Keegan, B.W.);

(v). if the point is not arguable then the amendment should not be allowed (follows from B.W.);

(vi). explanation of the failure to include the point in the original pleadings is to be distinguished from good and sufficient reason to extend time; an application to amend is not an application for extension of time as such and requires a lower level of explanation rather than good reason as such (Krops, Smyth, O'Leary, Keegan);

(vii). simple inadvertence by lawyers acting for the party concerned may be accepted as such an explanation (Keegan);

(viii). the fact that the application is based on facts that were there originally rather than new facts is not a bar to the amendment being made (Keegan);

(ix). while the other party will virtually always claim prejudice, this is normally not irremediable if it can be remedied by adjournment or in costs terms (Corbett, Moorehouse);

(x). having to deal with a potentially winning point that was not originally included does not constitute irremediable prejudice (follows from Keegan);

(xi). irremediable prejudice to third parties who are affected by an impugned decision may be a factor against allowing an amendment;

(xii). the fact that the proposed amendment introduces an entirely new cause of action or new ground, or even fundamentally alters the nature of the proceedings, or requires the addition of new parties, is not a bar to allowing the amendment (Rubotham, Shell);

(xiii). the fact that the amendment involves a new relief, or challenges a different

decision including one made after the institution of the original proceedings, is not a bar to allowing an amendment (Y.Y.);

(xiv). if the proposed new claim is one that could otherwise be pursued by separate proceedings, the potential saving in costs and likelihood of a more just and convenient disposition of the issues by dealing with all related matters in the one set of proceedings is a factor in favour of allowing the amendment (Clifford);

(xv). while amendments that do not substantially enlarge the proceedings, or merely particularise what is implicit, may be readily granted, the fact that the amendment substantially enlarges the proceedings is not a bar to allowing an amendment (Y.Y., and see the result in Keegan); and (xvi). if an amendment introduces a new evidential contest, that may be a factor against allowing it, especially if made at a late stage such as to derail a hearing and cause significant delay in finalising the proceedings. In such a case the court's assessment of the balance of justice must factor in any harm to the interests of justice by reason of such delay but nonetheless, delay is not a bar to an amendment, and the power to amend can be exercised during the trial, after judgment is reserved, or at any time up to perfection of the final order (Wildgust, J.K.).”

As Barr J. noted (para. 47), it was agreed by the parties that the ‘Keegan Test’ as modified “in subsequent case law” applied in determining this application for leave to amend the statement of grounds. The test is often summarised as involving three distinct steps. First the court examines whether the proposed ground is ‘arguable’. Next the court considers whether the applicant has provided acceptable justifications for delay in bringing the amendment application. Finally, the court assesses whether the proposed amendment presents the respondents with any irremediable degree of prejudice. The respondents conceded that they would not be “irremediably prejudiced” by any of the appellants proposed amendments. However, in assessing the existence and relevance of asserted irremediable degree of prejudice, regard can be had, where relevant, to the risk of prejudice not only to the respondents but to third parties and the public interest also.

PUBLIC INTEREST

41. The factual matrix subtending this application is not to be lost sight of. Beyond the appellant and the respondents lies the interest of the aggrieved third party whose complaints of professional misconduct in the discharge of the appellant’s functions as a solicitor and an officer of the court still remains to be determined. It is a matter of significant concern to this court that that the underlying complaint was made over a decade ago and the Law Society have not yet proceeded to dealt with it. There is a high public interest in the proper regulation of the solicitors’ profession and the proper expeditious and fair investigation and determination of complaints of professional misconduct made by clients or members of the public against a solicitor. Traditionally the process of inquiry and investigation was governed by the provisions of the Solicitors Acts 1954 – 2002, as amended, varied and extended by subsequent legislation. Since the coming into operation of the Legal Services Regulation Act, 2015, as amended, such issues are determined under the machinery established by that statute. However, in the instant case the complaint against the appellant falls to be determined under the Solicitors’ Acts regime by reason of the complaint predating the coming into operation of the 2015 regime.

Analysis of High Court’s approach under appeal

Further Amendments to Ground (2)

42. As stated above, Barr J. permitted the appellant to partially amend ground (2) of his statement of grounds, which the judge reformulated for clarity, to include alleged violations of GDPR rights. It was acknowledged that this partial amendment largely concerned an inclusion of a point of law and was an issue which would not require much increased exchange of affidavits. The respondents did not cross appeal same.

43. The appellant’s original statement of grounds dated 12th July 2019 stated that the plaintiff was seeking relief on the grounds that; “(2) That the Tribunal allowed to be introduced into the inquiry and considered, an existing separate complaint made against the applicant to the Complaints and Client Relations Committee of the Law Society which complaint is sub judice and unrelated to the existing inquiry.”

44. The trial judge, having permitted an amendment on the GDPR aspect declined to allow any further amendments sought to ground (2) including specific allegations against the Society’s Mr Watson asserting disclosure by him to the Tribunal of details concerning a different complaint against the appellant over which he was an investigator. This amendment was rejected inter alia on the basis that it would be repetitive of the point included in the appellant’s original statement of grounds. “The court will not allow this amendment, as it is already pleaded in the initial portion of ground (2), which was contained in the original statement of grounds. Accordingly, it is merely repetitious of that pleading.” (Barr J. High Court para. 71)

45. The appellant asserts (para. 48 of submissions) that the refused amendments to ground (2) were not repetitive but rather were “distinct and essential” from the original ground as they concerned specific allegations against Mr Watson as an agent of the Law Society who “acted to exchange information/data in breach of confidence, breach of privacy and confidentiality, breach of independence and breach of impartiality to inform a separate independent statutory body Registrar Mary Lynch of the Tribunals and told her all about the other complaint whom Anthony Watson is the investigator of…”.

46. The appellant did not identify any substantive distinction between the original and amended grounds, and no valid reason was demonstrated by the appellant to displace the finding of Barr J. that this proposed amendment is unnecessary and repetitive. It is well encompassed within the text of the original 2018 Ground 2, albeit in more generalised terms.

47. The appellant asserts (para. 51 submissions) that Barr J. erred in making reference to certain complaints of his wife, Mrs Barbara Wales, concerning her alleged treatment at the 25th June 2019 Tribunal hearing in deciding to refuse further amendments to ground (2), since those complaints were more relevant to proposed amendments to ground (12). It is not clear however these points support the appellant’s underlying assertion that the judgment was thereby “an error” insofar as it refused the amendment. The remarks of Barr J. at para.

70 are referable to the proposed amendment to Ground 12 rather than Ground 2. As is obvious from the context and substance, the reference at para. 71 of the judgment was selfevidently intended to be to Ground 12.

48. There were ample sound reasons identified by the judge for his refusal to grant leave to further amend Ground 2. Looked at in its totality, the judge’s reasoning for refusal of amendments to Ground 2 are sound. Same can reasonably be understood to be encompassed within the new ground 3 permitted by the High Court, when read in conjunction with Ground 2 as now amended, which contends that the Law Society disclosed to the Tribunal a separate complaint of professional misconduct against the appellant which, he claims, amounts to contempt of court, breach of confidence and “breach of administration of justice”. In assessing the relative merits of the “bias and collusion” amendments to Ground

2 rejected by the High Court, it is appropriate to bear in mind that that the original 2019 Tribunal members will not hear the Inquiry into this complaint against the appellant.

49. It is regrettable that Mr Wales’ asserted concern as to whether procedurally the Tribunal ought to have obtained High Court Orders directing substituted service upon him of the Tribunal papers rather than effecting personal service upon him (which he does not deny occurred on 9th April 2019) ahead of the Inquiry hearing on 25th June 2019, risks obfuscating the fact that, contrary to his assertions, he was well aware for many years of the letter dated 6th July 2018 from the Society to the Tribunal which referred to the issue of effecting service on the him. He had a copy in his possession since at the latest January, 2020. An affidavit of Mary Lynch, former Tribunal Registrar, filed on 10th January, 2020 exhibits, at ML6, that letter. There is no merit in his assertions that he was unaware of it at the latest from mid-January 2020. It is for the substantive hearing to consider whether, given the high public interest in having complaints of misconduct against solicitors determined expeditiously there is any merit in his sundry complaints as to the form of service since the primary purpose of service was to put the solicitor on notice of the hearing. New Ground (12)

50. The trial judge declined to allow a new proposed ground (12) which included various allegations that Mrs Wales’ constitutional rights were violated by “unlawful use of duress and coercion” during the Tribunal hearing of 25th June 2019 and allegations that Mr. Watson acted improperly by examining inquiry papers along with the Tribunal and the prosecutor for the Law Society in alleged breach of the statutory independence of the respondents. Regarding alleged violations of Mrs Wales’ rights during the 2019 hearing, the appellant argued in his submissions that the High Court erred in excluding this aspect of the amendment because that would “…disallow the affidavit of Barbara Wales sworn 10th July 2024 and ground as its consequences relate to the Appellant being forced to attend the inquiry tribunal hearing by unlawful use of duress and coercion”. (para. 60 of submissions)

51. On the allegations of unlawful treatment of Mrs Wales, Barr J. rejected same: “on the basis that if there is any complaint to be made by the applicant’s wife in relation to the manner in which she was treated by the respondents, or either of them, or their servants or agents, that may give rise to a cause of action which she can institute. It is not a matter that can be relied upon by the applicant in support of his own judicial review proceedings.” (para. 78).

52. As regards the affidavit of Mrs Wales’ filed on 10th July 2024, the appellant appears to conflate two distinct issues: first there is the issue of the admissibility of her affidavit which contains various allegations of unlawful conduct, particularly by the Tribunal and/specified individuals, against her. The respondents did not bring any motion to strike out her affidavit. It stands as filed on behalf of the appellant in the substantive proceedings. It is for the trial judge at the substantive hearing to determine what weight (if any) is to be accorded to same. The fact that it is filed does not lend any particular status of veracity to its averments. Separately, there are the trial judge’s observations that Mrs Wales’ allegations and complaints could not be inserted into the appellant’s statement of grounds via proposed ground 12. The judge’s reasoning for this conclusion was correct because they provide no ‘arguable’ ground as required by the test in Keegan since “the applicant's complaints about the way in which his wife was allegedly treated by the Tribunal, is not a ground on which he can rely in his judicial review proceedings.” (para.70). By deciding that the latter was the case and declining to allow the amendment Barr J. was not concluding that the affidavit could not be raised by the appellant at the trial of the matter. This should be obvious to the appellant who is an experienced solicitor. As the judge correctly noted (para.78) these allegations might give rise to a cause of action – not for the appellant but for Mrs. Wales herself. As such they could not be pursued through the medium of a Judicial Review application to which she is not a party.

53. The proposed amendment also concerns alleged conduct of agents of the respondents in examining inquiry papers allegedly in breach of statutory independence. Such were rejected on the basis that they concerned facts of which the appellant was aware since the date of the hearing on 25th June 2019. Since this was indeed the case and given that the appellant provided no reasonable or cogent explanation for his inordinate delay in seeking to introduce this argument, Barr J. was entirely correct when he concluded that this proposed amendment did not meet the requirements of the test set out in Keegan. It is difficult to see how he might have arrived at any other conclusion and the appellant has not identified any authority for such a proposition.

54. Sight must not be lost of the fact that in addition to balancing the rights of the parties to these proceedings, in this case there are rights of the third-party complainant to have their complaints of misconduct against this solicitor determined. Additionally there is the public interest in having complaints against members of the legal profession determined expeditiously. These are matters which are required to be weighed in the balance. The complaint of misconduct by the aggrieved third party against Mr Wales in this case has been with the Law Society now for over 9 years. Also, it is noteworthy that the appellant in his pattern of conduct to date appears to evince little enthusiasm to ensure that this application for, inter alia, prohibition of the Inquiry should be promptly adjudicated.

55. The appellant also alleges that inclusion of these new complaints was necessary insofar as they support his assertion at the end of amended ground (12) that the appellant, through the unlawful treatment of his wife by the respondents, was forced to attend the hearing of 25th June 2019. The appellant provides no reasons as to why this would be the case and does not elaborate on this in any detail. Even if it were to be accepted that the panel acted unlawfully and coercively towards the appellant’s wife resulting in the appellant’s attendance at the hearing, there is no reason provided why this is said be an arguable ground in restraining a newly constituted Disciplinary Appeals Panel from hearing the complaint.

56. Additionally, as with other elements of the proposed amended ground alleging inappropriate cooperation between the respondents, there is no convincing reason provided for the appellant’s inordinate delay in introducing this ground after a delay of five years.

57. The appellant’s assertion that amended ground (12) is no more than a particularisation of existing ground 5 of the Statement of Grounds is not correct. It launches entirely new allegations which range far beyond the parameters of ground 5 including alleging the commission of conduct which is potentially criminal in nature, the infliction of harm including intimidation, coercion, duress, harassment and other misconduct by officers and personnel of a statutory body against an individual who is not a party to the proceedings.

58. The appellant claims for the first time in this appeal that his delay in seeking to amend his statement of grounds was a consequence of the respondents’ delay in submitting statements of opposition. The arguments concerning whether the respondents unreasonably delayed in submitting a statement of opposition and whether the appellant can now launch a new basis for this application will be dealt with later in this judgment, however on this point which is confined to events circa 25th June 2019, it is clearly an irrelevant explanation as to why these proposed facts/grounds all of which were fully known to the appellant when he instituted the Judicial Review proceedings were not included in the original statement of grounds filed 12th July 2019, shortly after the supposed unlawful activity took place. Amended Ground (13)

59. At paragraph 80 of the High Court judgment, Barr J. declined to allow the appellant to include amended ground (13) which sought to launch a claim of prejudgment of the complaint of professional misconduct, on the basis that it pleaded “merely vague assertions” which could not constitute grounds that could support an order of prohibition against the respondents.

60. The appellant contests the trial judge’s decision to exclude this ground on the basis that “vagueness should be reserved for grounds where it is unclear as to what is being challenged or who is being complained about.” (para. 54 submissions). He provides no authority to support this claim other than a general assertion that the trial judge’s position would constitute “judicial overreach”. He also rejects any claims of delay on his part by reference to allegations of the respondents’ delay in submitting statements of opposition. This will again be dealt with later in the judgment. However, suffice to say that at the time of institution of the proceedings the appellant was fully aware of what had transpired at the tribunal in June 2019 and cannot now seek to retrospectively amend his grounds with the benefit of hindsight.

61. It is notable that the appellant makes no reference to the test in Keegan or any other relevant authorities when criticising the approach of the trial judge in this regard. He also excludes reference to the trial judge’s crucial elaboration in paragraph 80 that “they (the proposed Ground 13) do not constitute grounds on which it could be argued that an order of prohibition should be made preventing the inquiry being carried out by the Tribunal.”. It is clear that the trial judge was referring to the language of the test in Keegan and the requirement for an ‘arguable’ ground. As the appellant makes no cogent or convincing argument on this point, and identifies no error in the approach of the High Court, there is no reason to displace the conclusion of the trial judge refusing to allow new ground (13). Delay in service of Statement of Opposition Argument on Appeal – a new argument

62. As part of the present appeal, the appellant has advanced the new argument that any delay on his part in seeking to amend his statement of grounds can be justified by reference to the fact that he was unable to proceed with such an application until he had received a statement of opposition from both respondents. This is relevant since the appellant’s original statement of grounds were filed on 12th July 2019 and the statement of opposition of the respondents was not received until 23rd May 2024 almost five years later. Before considering the substance of this ground however it is significant to note that that argument was not advanced before the High Court as a justification for the appellant’s delay. It is therefore an entirely new argument being advanced on appeal.

63. To justify the inclusion of this new argument, the appellant relies on the decision of the Supreme Court in Lough Swilly Shellfish Growers Co-Operative Society v Bradley [2013] IESC 16 (Lough Swilly). The appellant’s submissions rely on Lough Swilly as an authority that such inclusions on appeal are not constitutionally barred (para. 15). The appellant also cites an extract from Delaney and McGrath (23-248) to reenforce this conclusion.

64. While the judgment of O’Donnell J. in Lough Swilly certainly concludes that there is no strict constitutional bar to bringing forward new arguments on appeal, it is far from a determinative authority that such inclusions could or should be automatically permissible. Crucially at the conclusion of his judgment O’Donnell J. elaborates:

“There is a spectrum of cases in which a new issue is sought to be argued on appeal. At one extreme lie cases such as those where argument of the point would necessarily involve new evidence, and with a consequent effect on the evidence already given (as in K D. for example); or where a party seeks to make an argument which was actually abandoned in the High Court (as in Movie News); or, for example where a party sought to make an argument which was diametrically opposed to that which had been advanced in the High Court and on the basis of which the High Court case had been argued, and perhaps evidence adduced. In such cases leave would not be granted to argue a new point of appeal. At the other end of the continuum lie cases where a new formulation of argument was made in relation to a point advanced in the High Court, or where new materials were submitted, or perhaps where a new legal argument was sought to be advanced which was closely related to arguments already made in the High Court, or a refinement of them, and which was not in any way dependent upon the evidence adduced. In such cases, while a court might impose terms as to costs, the Court nevertheless retained the power in appropriate cases to permit the argument to be made.” The appellant makes no attempt to engage with where on the spectrum his newly devised arguments should be considered to reside. Delaney and McGrath provide at [23-244]; “while the Court of Appeal or Supreme Court are not automatically precluded from considering an issue simply because it was not the subject of a determination by the High Court, as a general principle, they will refuse to allow a party raise an issue for the first time which was not heard and decided before the High Court unless this is required in an exceptional case in the interests of justice.”

65. In Ennis v Allied Irish Banks Plc [2021] IESC 12, MacMenamin J explored the approach to be taken, finding that at all times the primary consideration should be whether the inclusion of a new ground is properly in the interests of justice. At para. 18 he explains; “…although a grant of leave to argue new points, or raise new evidence, may arise in the interests of justice, it must be viewed from another perspective. Exceptions are not to be seen as a licence for lax procedure. There are serious competing considerations which will also concern a court when new arguments are sought to be raised on appeal. A person entitled to win a case should not be faced with the prospect of losing it because a valid and decisive point was not made at the trial at first instance. There are real dangers in allowing a practice which is over-lax in permitting new grounds to be raised on appeal. Parties must be required to make their full cases at trial. An over-generous approach to permitting new grounds to be raised on appeal for the first time could only encourage either sloppiness, imprecision, or lead to attempts to take tactical advantage (per Clarke J. (as he then was) in Ambrose, paras. 4.11 – 4.13).”

66. Clarke J. in Ambrose v Shevlin [2015] IESC 10 observed: “4.11 The reason why O'Donnell J. identified a spectrum of cases in that regard is that there are two competing considerations with which the Court must be concerned. On the one hand, so far as the interests of the parties to the case in question are concerned, there is the desirability that a person who is entitled to win a case should not be faced with the prospect of losing it because a valid and decisive point was not made at trial. That consideration would, obviously, point in favour of allowing new grounds to be raised on appeal.

4.12 However, on the other side of the equation, there are very real dangers in adopting a practise which is generous in permitting new grounds to be raised. First, there is the overall desirability that parties be required to make their full case at trial. An overly generous approach to permitting new grounds to be raised for the first time on appeal can only encourage either sloppiness or imprecision in the way in which cases are run, or, indeed, attempts to take tactical advantage by only bringing forward a part of a claimant's true case in the knowledge that there will be a good chance that, if it does not work at trial, a different tack can be adopted on appeal. A culture of tolerance of parties who fail to bring forward their full case can only encourage such practises, leading to a significant risk of injustice across a whole range of cases and, indeed, causing difficulties for the administration of justice generally by a proliferation of unnecessary appeals and, in many cases, retrials. It must be emphasised that the possibility of an injustice to an individual party in a specific case may be more easily identifiable than the real and equally important risk of injustice to a whole range of parties to many cases, to which a policy of excessive tolerance might give rise.

4.13 In addition, there can be a very real risk of injustice to the opposing party if new grounds are permitted to be raised for the first time on appeal. Precisely how a case was run at trial may well have been influenced, in ways that may not be completely obvious, by the issues which seemed to be before the court. All litigation (or at least almost all litigation) involves some degree of tactical decision by the advisers of both parties. Such tactical decisions often involve weighing up the pros and cons of a particular course of action. Those decisions are taken on the basis of the case as it reasonably appears to stand at the time the decision is taken. The more easily a party can reinvent their case on appeal, the greater the risk that real prejudice will be caused. Sometimes a party will be readily able to point to such prejudice. For example, witnesses may not have been called precisely because an issue was not before the court. Areas of evidence or lines of cross examination may not have been pursued. Legal issues may not have been raised. Many other examples could be given. But it is, in my view, important for a court to keep in mind that the sort of prejudice of which I speak can be subtle and difficult to demonstrate but nonetheless real. To all of that needs to be added the real risk that, in many cases, the only way of avoiding a risk of prejudice will be to direct a retrial. Such a course of action inevitably delays the completion of the relevant litigation and exposes the parties to much greater cost.

4.14 For all of those reasons, there are significant countervailing factors which lean heavily against allowing a point to be raised for the first time on appeal. The reason why there is a spectrum of cases, as identified by O'Donnell J. in Lough Swilly, is because the balance between those two competing factors may give different results depending on the type of case concerned. Where, for example, there is "a new legal argument" … "closely related to arguments already made in the High Court"... "and which is not in any way dependent upon the evidence adduced", then prejudice may be non-existent or slight, a retrial unnecessary, and the strength of the argument which concerns encouraging people to put their whole case before the court may be reduced. In such a circumstance, the justice of the case may permit an argument of the type identified to be raised for the first time on appeal because the interests of seeking to do justice on the facts of the individual case may outweigh the other weighty considerations which I have sought to identify. On the other hand, a case which would "necessarily involve new evidence" will place much greater weight on the side of the equation which lies against permitting a new point to be raised for the first time on appeal. The risk of real prejudice will be significant. The prospects of a new trial difficult to avoid. The need to encourage a party to bring forward its full case at trial will carry more weight. Against that background, it is necessary to look at this case for the purposes of attempting to place it along the spectrum of cases identified in Lough Swilly.”

67. In locating the appellant’s proposed new ground of appeal along the Lough Swilly spectrum the following factors are of relevance; a. The case appeared frequently in the Judicial Review list from July 2017 – 31 March 2020. b. The appellant never obtained leave to seek judicial review in this case. c. The appellant never sought a statement of opposition from the respondents and, in particular, did not do so on 31st July 2019 when MacGrath J. fixed the telescoped hearing date for 19th September 2019. That Order suggests on its face that the appellant was represented by Counsel in Court on that date. Crucially, the appellant did not object when MacGrath J. fixed 19th September 2019 for a telescoped hearing without any direction that Grounds of Opposition be served ahead of that date. d. The appellant does not appear to dispute the Tribunal’s chronology (Page 3). Arguably, where an application for leave to seek Judicial Review is directed to be on notice there is no principled need for opposition to be filed since the applicant’s case will be taken at its height and the threshold is low. On the other hand, to obviate the risk of procedural difficulties arising whenever a telescoped hearing is directed by the High Court it is highly desirable that appropriate directions regarding the filing of Grounds of Opposition be given by the judge. e. The listing for a telescoped hearing in such circumstances indicated that the leave and substantive judicial review would proceed together on 19th September 2019. f. The appellant raised no issue regarding non-delivery of the statements of opposition in any affidavit he filed on 2nd December 2019. g. After Covid-19 when the Tribunal’s solicitor contacted the appellant in mid-September 2022 enquiring whether he intended to re-enter or discontinue these proceedings, the appellant raised no issue with regard to the absence of statements of opposition.

h. In the context of the Tribunal’s 2024 strike-out motion the appellant never raised this issue or the procedural approach which the High Court had previously adopted. i. Subsequent to the High Court determination in May 2024 that the appellant’s delays had been “inordinate”, Hyland J. directed that statements of opposition be filed which promptly were. The appellant filed three further affidavits on 10th July 2024 including one sworn by his wife taking issue with the substance and content of the respondents’ Statements of Opposition. His affidavit in response to the Tribunal’s affidavit and Statement of Opposition is lengthy (95 paragraphs). His affidavit in response to the Law Society’s affidavit and Statement of Opposition is 23 paragraphs. Neither assert his delays occurred because of any inability to proceed until he had received statements of opposition. j. Neither did he assert in the context of his Amendment Motion, which issued 13th September 2024, that delays in seeking to amend his statement of grounds had occurred because of any inability to proceed until he had received the statements of opposition

– which the High Court had effectively initially dispensed with on 31st July 2019 when the accelerated hearing date was fixed.

68. The appellant seeks to rely on O.84, r.22(4) RSC; “(4) Any respondent who intends to oppose the application for judicial review by way of motion on notice shall within three weeks of service of the notice on the respondent concerned or such other period as the Court may direct file in the Central Office a statement setting out the grounds for such opposition and, if any facts are relied on therein, an affidavit, in Form No 14 in Appendix T, verifying such facts, and serve a copy of that statement and affidavit (if any) on all parties. The statement shall include the name and registered place of business of the respondent’s solicitor (if any).”

69. The appellant is correct in his assertion that O.84, r.22(4) places a requirement on respondents in judicial review proceedings to file their statement of opposition expeditiously. However, the time limit in the Rules operates from the service on the respondent of the originating notice of motion making the application for judicial review. Service of the originating notice of motion normally takes place after leave to apply for judicial review has been granted, such service and the return date for the motion being part of the directions given by a leave judge. Leave to apply for judicial review has not yet been granted in this case. It is notable that in the present proceedings, none of the 7 prior High Court orders of McGrath and Hyland JJ. requested that the respondents file their statement of opposition by any given date. Additionally, prior to the submission of the statement of opposition on 7th May 2024 the appellant never asserted that the respondents were acting with undue delay.

70. Strictly speaking, in light of the facts of this case, the obligation to file a Statement of Opposition under O84 r.22(4) had not yet arisen and no direction was ultimately given to file opposition until Hyland J. dismissed the strike out motion. It is important to point out that in this case there was no “failure” on the part of either respondent to file Statements of Opposition. It is very evident that this occurred because neither the appellant nor his lawyers ever sought that a Statement of Opposition be filed nor did the judge who directed the telescoped hearing for the 19th September 2019 so direct. No blame attaches to the respondents. The respondents were not in default in terms of filing statements of opposition until Hyland J made her order with which they fully complied.

71. Crucially, there is no requirement in the Rules of the Superior Court that an applicant seeking leave to amend their statement of grounds in judicial review proceedings must wait until a respondent lodges a statement of opposition before they can do so. Neither is there any authority for the proposition that failure by a respondent to submit a statement of Opposition could insulate an applicant from a finding of inordinate delay by the High Court as was found in the present proceedings.

72. Since the absence of a statement of opposition makes no difference to the operation of judicial review proceedings generally, it is hard to imagine how such an absence would have any effect on the ability of an applicant to seek leave to amend his statement of grounds in a timely manner. If the appellant’s argument on this aspect was to be accepted, the result would be that an applicant in such proceedings who was seeking an otherwise permissible amendment would be unable to amend their statement of grounds in the absence of a statement of opposition. This is patently incorrect as outlined above.

73. The facts as outlined undermine the prospect that O.84, r.22(4) could ever have been a valid or decisive basis for the appellant’s argument. The appellant, a highly experienced solicitor who now self-represents, has identified no valid basis to deviate from the general rule that parties are required to make their full case at trial. The Judge seised of the List never made directions with respect to filing of the statement of opposition but made very specific directions regarding the filing of affidavits (viz. Orders 31st July 2019, 27th August 2019). The appellant stood back and refrained from either directly seeking Statements of Opposition or directions for their filing. No persuasive ground is identified to permit this new ground, self-evidently an afterthought, to be belatedly pursued now. The points raised above encompass “significant countervailing factors” as listed in the previous paragraph which lean heavily against allowing this proposed new ground to be raised belatedly for the first time now.

74. Additionally, while there are authorities which suggest that the status of the appellant as a lay litigant can be a relevant consideration2, that factor is not material here since the appellant although a litigant-in-person is also a qualified and highly experienced solicitor.

See decision of Supreme Court in Devrajan v Ballagh [1993] 3 IR 377 The high public interest in having complaints of professional misconduct made against solicitors investigated and addressed is also a very significant countervailing factor which lean heavily against allowing a point to be raised for the first time now in this appeal. Appeal which is to be refused in light also of Lough Swilly principles.

Concealment Argument

75. The appellant also seeks to argue that the trial judge incorrectly considered the factual matrix in relation to the conduct of the respondents in ‘concealing’ correspondence between the registrar of the Tribunal and the registrar of the Law Society dated 6th July 2018 where it is claimed that the Law Society gave its consent to the Tribunal to seek an order for substituted service from the High Court. The appellant claimed to have only become aware of this document on or after the retirement of the Tribunal chairperson in January 2020. He claims that “concealment” of this letter in advance of the telescoped hearing scheduled for 19th September 2019 meant that he had acted to his detriment by consenting to a differently constituted appeals panel in August 2019.

76. The appellant makes no cogent nexus or argument that the trial judge’s failure to consider this allegation impacted or influenced his decision insofar as he rejected some of the appellant’s proposed amendments. At paragraph 68 of his judgment Barr J. notes that the substantive argument that the respondents were aware of other ways they could have affected service on the appellant from 2018 was already included in the statement of grounds. It is clearly to be inferred from this that the trial judge did in fact give consideration to this point.

77. Insofar as it relates to the factual matrix considered by the trial judge in his assessment of the proposed amendments to the statement of grounds, it is difficult to see how any argument alleging “concealment” of the 2018 letter would have served to make the appellant’s amendments any more arguable or his delay more justified as required by the Keegan test.

Conclusions on the appellant’s Grounds of Appeal

78. Ground 1 focusses on the validity of service of the inquiry papers on the appellant. That is an issue for the substantive hearing. The High Court judgment notes, inter alia, regarding events at the Tribunal Hearing of 25th June 2019 that: “Ms Wales then stated that it was her husband's view that he had not received the papers in accordance with the rules of procedure governing the Tribunal.” (para. 23) Mr Wales wrote to the Tribunal on 14th June 2019 complaining about the manner of service. There is no doubt that Mr Wales knew about the hearing date and was served (validly or otherwise) with papers in advance. The High Court judgment notes that when the appellant sought an adjournment on 25th June 2019 (claiming that the papers served were incomplete): “The chairperson stated that if the applicant was prepared to sign for the papers that he would receive that day, the hearing would be adjourned to 18 July 2019. The applicant acceded to that condition.” (para. 31) The condition under reference by the trial judge was Mr Wales’ signing for the full set of the papers as the basis for granting the adjournment the appellant sought to 18th July 2019. This ground of appeal is misconceived. The appellant’s reservation of his position (or not) has no bearing on the question of whether he has established an entitlement to amend the statement of grounds of 12th July 2019 under the Keegan Test, as refined by subsequent jurisprudence.

79. With regard to Ground of Appeal 2 – (and the allied Ground 10), it is obvious that the High Court judge did consider the transcript of the Tribunal Hearing of 25th June 2019. As much can be inferred from paras 27-29 of his judgment. It deals with events before the Tribunal in the afternoon of 25th June 2019 when Mr Wales was himself present before the Tribunal. Ms. Fenelon of the Law Society appears to have given evidence in the appellant’s presence as to the circumstances and reasons why she provided information to the Tribunal’s Ms. Lynch as to how service might be effected on Mr Wales. There was ample evidence before the trial judge to reach the conclusion made at paras. 59 – 62 of the judgment that upon his receipt of the Law Society Affidavit sworn 12th December 2019 the letter of 6th July 2018 was in the possession of the Appellant at the latest on receipt of that Affidavit in mid- December 2019.

80. A sizeable proportion of this prolix ground falls to be determined at the substantive hearing and is not strictly relevant to the narrow issue under consideration here as to whether leave ought to be granted to amend the statement of grounds. It is not necessary for a trial judge to exhaustively rehearse every assertion, claim or proposition advanced by a litigant as the appellant appears to assert. As para. 68 of the judgment also makes clear the judge was aware of the 6th July 2018 letter and did not accept the appellant’s contentions that he only became aware of same in May 2024 when the statements of opposition were served. The judge was entitled to reach that conclusion. The import of the contents of said letter and issues regarding validity of service will be determined at the substantive hearing.

81. The appellant’s attempt to launch a new ground of appeal inserted at the end of Ground 2 and encompassing the assertion that he was “…only required to seek amendment of grounds after the statement of opposition were (sic) filed in May 2024” ought not now be entertained in light of the Lough Swilly principles and for the reasons outlined above since same was not argued or raised before the High Court.

82. Regarding Ground of Appeal 3, the appellant repeats a word formula outlined at Grounds 1, 2 and 4 that: “…the applicant had reserved his position re bias and collusion”. It is difficult to see how “bias” could arise now since the original Tribunal will not hear this complaint since, given the lengthy passage of time and inordinate delay on the part of the appellant, members including the Chairperson have retired or are no longer available. As regards the contention that the High Court erred in refusing to permit an amendment by way of the proposed Ground 12, for all the reasons set out above I am satisfied that the trial judge was entirely correct in his approach and a refusal was warranted in light of the Keegan jurisprudence. The assertion that Ground 12 was merely “a particularisation of existing Ground 5” is unpersuasive. The contention that the appellant had no requirement to offer any explanation for delays in seeking to amend the Grounds via proposed Ground 12 because it could be characterised as merely particularising Ground 5 is not sound. The High Court correctly applied the Keegan jurisprudence in refusing to permit this amendment to the Grounds for all the reasons outlined above and since it clearly did not satisfy the arguability aspect of the test. Ground 12 cannot be persuasively characterised as a mere particularisation of existing Ground 5 as the appellant contended. No good or persuasive reasons were identified for the omission to incorporate these provisions into the original grounds or otherwise seek to amend same in a timely manner. The appellant has not demonstrated that it is in the interests of justice to permit new Ground 12 now.

83. As regards Ground of Appeal 4, all the points raised above in regard to the proposed amendment to Ground 12 bear repetition. The appellant fails to meet the Keegan jurisprudence test – particularly as regards arguability. The delay of almost 5 years in moving to seek this amendment is unsatisfactory and no valid explanation is offered for this delay. Though not in itself outcome-determinative, it was a significant factor in this case where there is an unappealed High Court finding of Hyland J. of May 2024 that the appellant’s delay of three years was inordinate. The judge sets out his assessment at paras. 78/79 of his judgment and no sound basis is identified which would warrant interference with his assessment and conclusion in refusing the amendment sought. It was relevant that the appellant was seeking to amend the Statement of Grounds outside the time for challenging the underlying decision. Further the appellant does not dispute the High Court judge’s finding at para. 49 that it is in the public interest that statutory inquiries such as that into the appellant’s own conduct as a solicitor “are allowed to proceed in a timely manner”.

84. Ground of Appeal 5 suggests that the High Court placed “inordinate weight” on the finding of delay made against the appellant by Hyland J. Since this is an unappealed finding of Hyland J. from May 2024 that the appellant’s delay “of some three years” was “inordinate” there can be no logically cogent basis for the appellant contending that the delays are anything other than excessive in the Keegan sense. Clearly due to the nature of the complaint (professional misconduct against a solicitor), the interests and rights of the aggrieved complainant in having their complaint considered and determined, and the public interest in having all such complaints determined expeditiously, all are to be weighed in the balance as elements of the Keegan test. No sound or credible explanation was offered by the appellant for the delays in question. Ground of Appeal 5 is not upheld.

85. Ground of appeal 6 is not sustainable either. The High Court judgment is based, inter alia, on the judge’s consideration and analysis of the facts, the transcript of events at the Tribunal on 25th June 2019 and various submissions including the Tribunal’s Chronology of events annexed to its submission. The transcript was exhibited to the Affidavits filed on behalf of the Tribunal. The judge explicitly confirms at para. 20 that he had the transcript. Whilst there are a few factual errors of detail in the judgment none goes to the substance of the matters in issue in this appeal. Such infelicities are immaterial to the substantive findings and reasoning of the judge.

86. Ground of Appeal 7 is based on a misunderstanding of the law and the procedural elements arising in respect of the Order of the High Court as drawn. The Order was perfected on 16th May 2025. It granted liberty to the appellant to amend his Statement of Grounds as per para. 83 of the High Court judgment and that the said amended statement of grounds together with a verifying Affidavit be filed within 2 weeks of the date of perfection of the Order. The appellant contrives to assert that this interferes with his right to appeal “in breach of Article 40.3 and 40.4 of the Constitution”. It does not. This ground falls to be dismissed also.

87. Ground of Appeal 8 asserts that the High Court “erred in fact” in refusing to allow the proposed amendment encompassed by Ground 13 and in finding same was “vague” in failing to consider the said ground “in connection with the other grounds”. The appellant has demonstrated no coherent basis that would warrant interference with the judge’s

decision (para. 80 of judgment) regarding amendment Ground 13. In addition to the grounds identified by the judge, this was an entirely new ground. Manifestly the arguability criteria and threshold in the Keegan jurisprudence was not satisfied. There is no explanation for the inordinate delay in applying for this particular amendment to the grounds. The allegations encompassed by this ground were all known to the appellant as of 25th June 2019. This ground of appeal is unsustainable.

88. Ground of Appeal 9 was not in contention being unopposed by both respondents. The Tribunal’s response filed 8th July 2025 (para. 19) but explicitly made no concession that the appellant’s explanation was adequate or that Relief 7 in the Statement of Grounds related to any ground other than Ground 3 of the amended Statement of Grounds. The Society at paras. 67/68 of its submissions disputes that that the High Court’s findings as to the failure of the appellant to explain why the relief was not sought in the original 2019 Statement of Grounds was in any way incorrect.

89. Ground of Appeal 10 is somewhat repetitious and is encompassed by Ground of Appeal 2 considered above. The judge properly considered the proposed amendment, inter alia, at para. 71 of the judgment. The final sentence of this ground of appeal includes a mantra repeatedly peppered throughout the grounds of appeal that the judge “failed to take account of the fact that the applicant reserved his position re bias and collusion”. This assertion is not relevant to the issues under consideration concerning the principles governing the amending of the statement of grounds in Judicial Review proceedings. This ground of appeal fails.

90. Ground of Appeal 11 complains that the High Court refused an application to review and amend the judgment. Clearly the judge did consider the various submissions and arguments made by the appellant. Many arguments posited were more apposite to an appeal rather than an application to review the High Court judgment. The appellant did not reach the high threshold of exceptionality required for such a review to be directed. Errors identified in the judgment were not material to the substantive findings, conclusions and orders made by the High Court judge. This ground of appeal fails.

91. Ground of Appeal 12 is misconceived and appears to object to the judge’s consideration (such as at paras. 37, 40) of the relative strength of the proposed amendments. The Keegan jurisprudence makes clear that the judge should evaluate the arguability of proposed amendments and stress-test their potential merits and de-merits. The trial judge’s approach was entirely consistent with the arguability assessment under Keegan. This ground fails.

92. Grounds of Appeal 13,14 and 15 - any errors of detail in the judgment are immaterial to the substance of the application before the High Court and were inconsequential. No error undermined the substantive Orders made. These grounds of appeal fail.

93. Ground of Appeal 16 centres on dialogue and a request for information and clarity from counsel for the Law Society by the trial judge and does not equate with “objective bias”. The court was seeking to understand events with regard to the appellant agreeing with the Tribunal on 25th June 2019 that he would “go before a new panel if his judicial review application failed”. The prospect of a differently constituted panel of the Solicitors Disciplinary Tribunal eventually hearing the adjourned inquiry was evident from the transcript of 25th June 2019 hearing.

Summary

94. The appeal falls to be dismissed save with regard to relief 7 which the respondents always conceded.

Costs

95. The respondents, having been entirely successful in resisting the appeal, are presumptively entitled to an order for their costs. The amendment to relief 7 was conceded expeditiously by the Respondents from the outset. However, if – at the risk of increasing the burden of costs upon him – the appellant wishes to contend for any other costs order he may within

14 days from the date of the electronic delivery of this judgment file and serve short written submissions not exceeding 1,500 and directed solely to the question of costs; in which case the respondents will each have 14 days to respond, similarly so limited and directed. The court will thereafter consider same and make its determination on the Costs issue.

96. As this judgment is being delivered electronically Faherty and Butler JJ. have authorised me to say that they agree with same and with the orders proposed.