Supreme Court dismisses appeal on length of proceedings and double jeopardy in solicitor disciplinary case.

Murray CJ.

Geoghegan J.

Kearns J.

THE SUPREME COURT

[Record No. 339/2003SC]

IN THE MATTER OF ELIO MALOCCO AND IN THE MATTER OF THE SOLICITORS ACTS, 1954 – 1994

BETWEEN

THE LAW SOCIETY OF IRELAND

APPLICANT/ RESPONDENT

AND

ELIO MALOCCO

RESPONDENT/ APPELLANT

JUDGMENT of Mr. Justice Kearns delivered the 15th day of February, 2005

Background

1. The appellant is a solicitor who was enrolled in 1977 and who thereafter practised under the style “Malocco and Killeen” in

partnership with Conor Killeen in Dublin.

2. In September, 1991, the Law Society, the respondent herein (and hereinafter referred to as “the Society”) received a complaint

about the firm from Irish Press Newspapers who were, or had been, clients of the practice. At a meeting of the Compensation Fund

Committee of the Society on the 26th September, 1991, a decision was made to refer the matter to the Disciplinary Committee of the

Society. Mr. Tim Bolger, chartered accountant, was employed by the Society to investigate the said firm.

3. A special meeting of the Compensation Fund Committee of the Society took place on the 27th September, 1991. It directed that

an application for a freezing order pursuant to s.20(1)(a) of the Solicitors (Amendment) Act, 1960, be made to the High Court.

4. The relevant portions of s.20 are as follows: -

“(1) Where the Society are of the opinion that a solicitor or a clerk or servant of a solicitor has been guilty of dishonesty in

connection with that solicitor’s practice as a solicitor or in connection with any trust of which that solicitor is a trustee, they

may apply to the High Court, and the High Court may make an order directing either-

(a) That no banking company shall, without leave of the High Court, make any payment out of a banking account in the

name of the solicitor or his firm, or

(b) That a specified banking company shall not, without leave of the High Court, make any payment out of a banking

account kept by such company in the name of the solicitor or his firm.

(3) Where the High Court make in relation to a solicitor an order under subsection (1) of this section, the High Court

may at the same time order that his practising certificate be suspended until the certificate expires.”

5. On 30th September, 1991, the High Court (Denham J.) made orders under s.20 ss.(1)(a) and (3), directing the freezing of

payments out of any bank account of the two solicitors or their firm and also suspending the practising certificates of both solicitors.

Other orders were made and undertakings given by the two solicitors in respect of the production of documents and books of

accounts of the partnership.

6. On the 7th October, 1991, the High Court (Costello J.) by consent varied the order of the 30th September, 1991, to provide that

no banking company should without leave of the High Court make any payment out of a banking account in the name of the solicitors

or in the name of their firm, or in the name of either solicitor with any other person, firm or company.

7. A third order of the High Court (Flood J.) was made on the 15th October, 1991, in proceedings entitled The High Court (1991 No.

12910P). By that order, Flood J. received a consent from the same parties to be filed with and deemed to be part of the court’s order.

Under the terms of the consent thus made a rule of court, Mr. Malocco consented, inter alia, to an order restraining him from giving

any instructions in respect of the withdrawal of funds held in certain bank accounts in Spain. He also submitted to a variety of other

orders restraining him from entering the offices of the firm or communicating with any member of the staff of the firm or giving any

directions to such members.

8. All of these orders are still extant and are the subject matter of the appellants’ first motion herein which was ruled upon by the

High Court (Finnegan P.) on the 31st July, 2003, and which now comes before this court on appeal.

9. In late September or early October 1991, the appellant fled the jurisdiction and did not return to Ireland until 1993. A criminal

investigation of the appellant had commenced which resulted in a prosecution and trial following his return in that year. The trial

resulted in the appellant’s conviction on the 28th March, 1993, on six counts in respect of charges relating to dishonesty in relation to

his practice as a solicitor.

10. Thereafter, the appellant brought an appeal to the Court of Criminal Appeal in respect of the five-year sentence of imprisonment

which had been imposed upon him following his conviction in the Circuit Court.

11. On the 18th August, 1993, the applicant’s solicitor, Mr. Peter Dempsey, wrote a letter to the Law Society in which he sought the

Society’s confirmation that the initiation of disciplinary proceedings against the appellant should not take place “pending the outcome

of the criminal proceedings.”

12. On the 23rd May, 1996, the Court of Criminal Appeal rejected the appellant’s appeal following which the appellant remained in

custody until March/April, 1998. At no point up to the time of his release did the appellant seek to vary or discharge any of the three

orders of the High Court made in September and October, 1991, nor did the appellant seek to withdraw or resile in any way from his

demand that the Society stay its hand pending the conclusion of the criminal proceedings. In particular he did not seek that the

Society proceed with its investigation, as distinct from any hearing, during this period. This was a contention which the appellant

advanced in this appeal as a possibility which the Society might have considered.

13. On 12th March, 1998, the affidavit grounding an application to the Disciplinary Tribunal was sworn. The Society had no address

for service of the disciplinary proceedings on the appellant and obtained an order for substituted service of same from the President

of the High Court on the 2nd July, 1998. This order was made following a number of adjournments to ensure compliance with the

requirements of the court. The appellant shortly thereafter confirmed receipt of the said proceedings.

14. On the 22nd October, 1998, the Disciplinary Tribunal determined that the Society’s application disclosed a prima facie case.

15. On the 4th February, 1999, the inquiry before the Disciplinary Tribunal commenced and hearings thereafter took place on the 2nd

March, 1991, the 20th and 21st April, 1999, 26th and 27th April, 1999, 20th May, 1999, 9th June, 1999, and 1st December, 1999. It

made findings of misconduct against the appellant on the 28th February, 2000. The report of the Disciplinary Tribunal was sent to the

appellant on the 6th March, 2000.

16. On the 24th March, 2000, a notice of motion returnable for the 10th April, 2000, was brought pursuant to s.8(1)(a)(1) of the

Solicitors (Amendment) Act, 1960, as substituted by s.18(1) of the Solicitors (Amendment) Act, 1994, to strike the appellant off the

Roll of Solicitors.

17. Matters than came to a halt because the appellant at that point sought to bring judicial review proceedings in the High Court to

challenge, inter alia, the procedures of the Disciplinary Tribunal. Included as a ground for seeking relief in these proceedings was a

complaint of delay on the part of the Society in prosecuting the proceedings.

18. The application for leave was heard by the High Court (O’Caoimh J.) on the 22nd May, 2000, when leave was granted on some

grounds and refused on others.

19. The appellant appealed the refusal to grant leave on certain grounds, but the Supreme Court dismissed this appeal following a

hearing on the 18th May, 2001.

20. The judicial proceedings continued in the usual manner and came on for hearing before the High Court (Carroll J.) on the 22nd and

23rd March, 2002. Judgment was reserved by the trial judge who thereafter delivered judgment on the 16th October, 2002. Carroll J.

dismissed the appellant’s claim. The appellant did not appeal this decision.

21. In the course of the hearing before this court, it was pointed out to the appellant that one of the grounds upon which leave to

bring the judicial review proceedings had been granted in the High Court was the appellant’s complaint of delay. However, it appears

to this court, and indeed was accepted by the appellant, that this ground was not argued before Carroll J. or pursued during those

proceedings.

22. On the 24th February, 2003, the motion to strike off the appellant was again brought before the President of the High Court. He

listed the matter for further mention on notice to the appellant on the 10th March, 2003. On various dates thereafter in May and

June, 2003, various submissions were made to the court by the appellant.

23. The court then invited the appellant to formalise his submissions by way of three separate motions. The motions were heard by

the President of the High Court on the 22nd July, 2003, and a written judgment was given by the President on the 31st July, 2003.

24. The motions had sought: -

(1) An order discharging the orders of the 30th September, 1991, the 7th October, 1991, and the 15th October, 1991.

(2) An order extending the time to appeal the finding of the Disciplinary Tribunal made in February, 2000, that the appellant was

guilty of misconduct.

(3) An order striking out the motion of the Society dated 24th March, 2000, seeking to strike the appellant off the Roll of

Solicitors.

25. All three motions were refused by the President, and it is from such refusal that the appellant brings this appeal before this court.

The appeal was heard by this court on the 18th January, 2005. Prior thereto on the 14th January, 2005, the appellant brought an

application before a differently constituted chamber of the Supreme Court requesting a payment out of funds, the subject matter of

the freezing orders, for the provision of legal representation for his appeal. On the 14th January, 2005, the court refused the

appellant’s request on the grounds of his delay in moving the application, the same not having been brought until a point in time when

the hearing of his appeal was imminent.

26. For the purpose of the hearing before this court, the appellant himself prepared his own detailed legal submission of some 78

typewritten pages and conducted his appeal in person.

The High Court Judgment

27. In support of his application to discharge the orders referred to in the first motion, the appellant was noted by the President to

have deposed that the investigation into the financial affairs of his practice concluded on the 28th March, 1994. However, he had

been unable to open a bank account, obtain credit, start a business or obtain a mortgage from the date of the first of the three

orders made in 1991. In particular the appellant sought to secure the release of funds standing to the credit of an account with Allied

Irish Bank, Dame Street, Dublin 2, which had been opened in 1992 and into which rent payable from premises owned jointly by the

appellant and his wife had been lodged. The appellant urged the President to consider that as the funds were not client funds they

were not affected by the freezing order and that the sum standing to the credit of the account should be paid to him.

28. In refusing relief, the President stated as follows (at p.3): -

“I am satisfied that correctly construed the Solicitors (Amendment) Act 1960 s. 20 is intended to secure clients’ money where

the Society are of opinion that a solicitor has been guilty of dishonesty but it is not limited to this. Section 20 is contained

within Part III of the Solicitors (Amendment) Act 1960 which contains provisions relating to the compensation fund required to

be maintained by the Society. Section 21 (8) provides that the Society shall upon making a grant out of the funds be

subrogated to the rights of the grantee against the solicitor. I am satisfied that the purpose of s. 20 is not alone to preserve

the client account of the solicitor but the assets of the solicitor so that the claims of the clients who suffer by reason of his

dishonesty may be satisfied out of his assets and insofar as the compensation fund maintained by the Society has made

grants in respect of his dishonesty that they should likewise be secured. In the present case substantial sums have been paid

by way of grant from the Compensation Fund and the Society’s statutory right to subrogation operates in respect of these.”

29. He then continued:-

“It seems to me that the Court should only make an order pursuant to s. 20 of the 1960 Act where it is satisfied on affidavit

that the Society has the requisite belief and that there are reasonable grounds for that belief or the claims of clients and the

Society have been satisfied in full or it is otherwise unnecessary that the order be continued. Accordingly an order pursuant to

s. 20 should only be discharged where the Society no longer holds the requisite belief or there are no reasonable grounds for

that belief. I am satisfied that the Society has paid out of the Compensation Fund the sum of £568,472.58 (€721,811.28) as

losses accepted by the Society has having been incurred due to dishonesty on the part of the respondent solicitor. I

understand that the respondent solicitor may wish to contend that some or all of the said payments were incorrectly made.

Even if this is so I am satisfied that it was appropriate that the asset in question, the funds standing to the credit of the

account, should be preserved pending determination of any issue as to the correctness of the payments made by the Society

so that in the event of such issue being determined in favour of the Law Society the funds will be available to satisfy the claim

of the Society against the respondent solicitor.”

30. On the second motion, which sought to extend the time to appeal the finding of the Disciplinary Tribunal that the appellant was

guilty of misconduct, the President adopted the approach to the application which was set out in Éire Continental Trading Company

v. Clonmel Foods Ltd. [1955] I.R. 170 where Lavery J. noted (at p. 173) the three conditions which should in principle be satisfied

before the court would allow an extension of time as being: -

“1, The applicant must show that he had a bona fide intention to appeal formed within the permitted time.

2, He must show the existence of something like mistake and that mistake as to procedure and in particular the mistake of

counsel or solicitor as to the meaning of the relevant rule was not sufficient.

3, He must establish that an arguable ground of appeal exists.”

31. Having considered the appellant’s affidavit and the correspondence therein exhibited, the President expressed himself satisfied

that while the appellant did indeed contemplate bringing an appeal pursuant to s. 7 of the Solicitors (Amendment) Act 1960, he was

at the same time contemplating as an alternative the bringing of proceedings by way of judicial review. At some date prior to or on

the 5th April, 2000, the President noted that a decision had been made to opt for judicial review proceedings rather than an appeal.

The President noted that if a decision to appeal had been extant at the date of application for leave to apply for judicial review it

would have been appropriate to disclose the same on that application as a factor which would influence the court’s decision to grant

or refuse leave. It had been conceded before him that this was not done. He thus concluded that no such decision was ever made

(i.e. to appeal) or if it was, it had been abandoned. This being so, he was satisfied the appellant had failed to meet the first condition

set out in Éire Continental Trading Company Ltd v. Clonmel Foods Ltd. [1955] I.R. 170.

32. The President was equally satisfied that there was not disclosed on the affidavits before him anything in the nature of a mistake

as required by the second of the three conditions.

33. In relation to the third condition, the President noted that the affidavits before him did not disclose the grounds of appeal, but on

enquiring of the respondent as to the grounds the same were listed for him. The President considered those grounds, along with the

judgment of Carroll J. in the judicial review proceedings, and was satisfied that each of the grounds enumerated as grounds of appeal

were raised in the judicial review proceedings. In respect of all grounds the appellant was either unsuccessful or did not pursue the

same. The President thus felt able to apply the rule in Henderson v. Henderson [1843] 3 Hare 100 whereby a litigant may not in later

proceedings make those contentions which might have been but were not brought forward in previous litigation.

34. On the third motion which sought an order striking out the Society’s motion on the grounds of (a) delay and (b) double jeopardy,

the President proceeded to set out a full chronology of relevant occurrences, which is in terms similar to those contained in the

opening portion of this judgment. Having noted the appellant’s assertion that, because of delay and lapse of time, a number of

witnesses were no longer available, the President noted that he had been told nothing of efforts, if any, made to locate such

witnesses, nor had he been told the nature of the evidence which each of the persons mentioned at para. 45 of the appellant’s

affidavit could give, nor had any attempt been made to particularise the prejudice which the appellant might suffer from their non-

availability.

35. In rejecting the appellant’s submissions on this ground, the President stated:-

“The nature of the matters alleged against him are such that the circumstances are peculiarly within his own knowledge and

having regard to the circumstance that they occurred within a solicitor’s office where it is to be expected that each and every

transaction would be documented and recorded whether on the solicitor’s own file or in the solicitor’s books of account and

the supporting documentation for the same. Accordingly I refuse to grant the relief sought on the grounds of lapse of time.”

36. In so far as any delay on the part of the Society was concerned, the President expressed himself satisfied that such delay was

excusable having regard to the unknown whereabouts of the appellant, the difficulty in serving him and his request to defer the

hearing pending his prosecution. He did not consider the delay following the conclusion of the criminal proceedings to be inordinate.

He accordingly refused to grant the appellant relief on the grounds of delay.

37. In so far as the appellant’s contentions on double jeopardy were concerned, the President noted that the European Convention on

Human Rights Act, 2003, had not at that time been commenced. Accordingly, the Convention was not at the time of the hearing

before him part of the domestic law of the State. Accordingly, the court could not give effect to it where it was contrary to domestic

law or purported to grant rights or impose obligations additional to those of domestic law. Nonetheless, the President stated that he

had had regard to the detailed submissions of the appellant and considered the numerous cases to which he had referred. He

concluded, however, that even if the Convention had application, it would not avail the appellant. In relation to Article 6(1) of the

Convention, he noted that the European Court of Human Rights has regard to all the circumstances of a case before it, and in

particular to the complexity of the issues, the conduct of the parties and what was at stake for the applicant. He concluded:-

“I am satisfied having regard to the jurisprudence of the European Court of Human Rights, that the conduct of the respondent

solicitor so contributed to the lapse of time as to disentitle him to relief. Insofar as Article 4 of Protocol 7 is concerned it is in

its terms confined to criminal proceedings: the proceedings before me are not criminal.”

38. For these reasons, the President refused relief to the appellant in respect of all three motions.

Grounds of Appeal

39. In the notice of appeal to this Court dated the 10th September, 2003, the appellant has set out the grounds of his appeal as

follows:-

“The learned President of the High Court erred in his consideration of the facts before him and/or in law in that inter alia:-

1. He failed to give any or any proper consideration to the terms of the freezing orders dated respectively 30th

September, 1991, the 7th October, 1991 and the 15th October, 1991 and by reason of his failure to consider and/or

properly construe the aforementioned Orders, the learned judge failed to conclude that the said orders did not cover

any funds, belonging to Elio Malocco not part of the firm of Malocco and Killeen lodged in Allied Irish Bank after the date

of such Orders.

2. He failed to acknowledge the oppressive nature of such Orders and the fact that they should be discharged and/or

varied given that the investigation into the firm of Malocco and Killeen ceased on the 28th March, 1994.

3. That by concluding that he could not interfere with the Orders “on the basis of the grounds that there had been

dishonesty” on the part of the appellant the learned judge had pre-judged the case as he had yet to consider the second

motion requesting leave to extend the time to appeal the findings of the Disciplinary Tribunal.

4. That in refusing leave to extend time to lodge an appeal the learned judge failed to acknowledge that the appellant

had formed the intention to appeal the findings of the Disciplinary Tribunal within the 21 day period laid down by the

Rules of the Superior Court.

5. That in refusing leave to extend the time to lodge an appeal against the findings of the Disciplinary Tribunal the

learned judge failed to acknowledge that the appellant had an arguable case.

6. That in refusing leave to extend the time to lodge an appeal against the findings of the Disciplinary Tribunal the

learned judge failed to acknowledge that there had been something akin to a mistake.

7. That in refusing leave to extend the time to lodge an appeal against the findings of the Disciplinary Tribunal the

learned judge has denied the appellant his right under Bunreacht na hÉireann and his right under Article 6.1 of the

Convention for the Protection of Human Rights and Fundamental Freedoms to a fair trial and a public hearing.

8. That in refusing an order to strike out and/or stay the proceedings by the Law Society of Ireland against the appellant

by reason of delay the learned judge has denied the appellant his right under Bunreacht na hÉireann and under Article

6.1 of the Convention for the Protection of Human Rights and Fundamental Freedoms to a fair trial within a reasonable

time.

9. That in refusing an order to strike out and/or stay the proceedings by the Law Society of Ireland against the appellant

by reason of double jeopardy and/or res judicata and/or on the basis that the appellant was being tried and punished

twice for substantially the same offence, the learned judge has denied the appellant his rights under Article 4 of Protocol

7 of the Convention for the Protection of Human Rights and Fundamental Freedoms.

The First Motion

40. In relation to the first motion, Mr. Malocco submitted that sums totalling approximately €55,000 standing to his credit in two bank

accounts in his name in Allied Irish Banks, Dame Street, Dublin 2 should not be regarded as being caught by the freezing orders made

in 1991. Firstly, Mr. Malocco submitted that the funds in question represented certain rents due from property owned by him and did

not represent funds which are part of the practice of Malocco and Killeen. Secondly, he submitted that “future” accounts should not

be regarded as caught by the freezing orders. The accounts in question were only opened on the 8th of June, 1992, some nine

months after the freezing orders were made. Thirdly, Mr. Malocco submitted that the freezing orders were unduly oppressive and

disproportionate in that they had for twelve years prevented the appellant from opening or operating a bank account.

41. In response, Mr. Hanratty, Senior Counsel for the Society, submitted that the terms of s.20 were clear and permitted freezing

orders to be made in respect of banking accounts either in the name of the solicitor or his firm, thereby enabling the Society to apply

to the High Court in respect of the solicitor’s personal funds in addition to those of the practice. Such an interpretation was

necessary for the purposes of safeguarding the subrogation rights of the Society in respect of monies paid by it to clients of the

solicitor’s former practice. In this case the Society had paid out the sum of £568,472.58 as losses accepted by the Society as having

been incurred due to dishonesty on the part of the solicitor. While it had been suggested by the appellant that the President had

been guilty of bias and prejudgment in finding that the appellant had been guilty of dishonesty, no such finding had been made by the

President who had simply noted that the Society had reasonable grounds for such a belief.

42. Furthermore, the whole scheme of the Act was to protect client funds in circumstances such as those which had arisen in the

instant case, so that s.20 necessarily required an interpretation which meant that future accounts were also covered by the terms of

s.20(1)(a). Finally, any suggestions that the freezing orders were disproportionate or unduly oppressive were not sustainable. Mr.

Hanratty submitted that the making and continuance of the orders amounted to a reasonable interference with the rights of the

solicitor in the particular circumstances.

43. I am satisfied that the terms of s.20(1)(a) are clear and unambiguous and provide that the High Court may make a freezing order

in respect of a banking account maintained either in the name of a solicitor or his firm. It would be a totally illogical interpretation of

the Act to exclude from its application the personal funds of the solicitor where client funds had been lost in circumstances where the

Society were bona fide of opinion that those losses had occurred because of dishonesty on the part of the solicitor in relation to his

practice. I further note that this point does not appear to have ever been argued before the High Court in 1991, and indeed the

appellant appears to have consented to the order freezing certain personal accounts in Spain under the terms of the consent

received by Flood, J. in the High Court on the 15th October, 1991. I would totally reject the contention that the Act did not apply to

personal funds.

44. The question as to whether the terms of s.20 (1) (a) may be taken as referring to future accounts is somewhat more problematic.

However, it appears to this court that the whole statutory scheme could be frustrated if the interpretation contended for by the

appellant was correct. It would, for example, permit a person under investigation to rehabilitate funds hidden or secreted overseas to

newly opened accounts within the jurisdiction. Such accounts would then escape the application of a freezing order, even in the case

of a bank with notice of the order, simply by virtue of the fact that the account in the name of the solicitor or his firm had been

opened subsequent to the making of the freezing order. Having regard to the overriding requirement for the preservation of funds to

meet any claims of the Society, such an interpretation is wholly inconsistent with the general policy of the Act.

45. As Bennion points out at p.809 of his text on Statutory Interpretation (4th edition, 2002): -

“Parliament is presumed to intend that in construing an Act the court, by advancing the remedy which is indicated by the

words of the Act for the mischief being dealt with, and the implications arising from those words, should aim to further every

aspect of the legislative purpose.”

46. In my view, the proper construction of s.20(1)(a) must necessarily be taken as including not only accounts in existence at the

time of the making of the freezing order, but also any subsequently opened account in the name of the solicitor or his firm. I would

therefore also reject the appellant’s appeal on this ground.

47. The court naturally recognises the oppressive nature of the freezing orders. The appellant submits it should not go on indefinitely

for that reason. However, he has not suggested that it was not open to him to apply at any time to the High Court to vary the terms

of the original freezing orders so as to permit a payment out of existing funds in respect of living expenses or other necessaries. The

plain fact of the matter is that no such application has been made to the court by or on behalf of the appellant, other than the

application made on the 14th January, 2005, on the eve of this appeal. The fact that the appellant realised that such an application

could be brought completely undermines his contention that his financial predicament could only be addressed by altogether lifting or

removing the freezing orders in question.

The Second Motion

48. By virtue of this motion, the appellant sought to extend the time for the purpose of bringing an appeal to the High Court against a

finding of misconduct on his part by the Disciplinary Tribunal.

49. The relevant statutory provisions governing an appeal are set out in the Solicitors (Amendment) Act, 1994. Section 17 of that Act

amended the Act of 1960 by the substitution of the following subsection:

“(13) A respondent solicitor may appeal to the High Court against a finding of misconduct on his part by the Disciplinary

Tribunal pursuant to subs (3) of this section, and the Court shall determine such appeal when it considers the report of the

Disciplinary Tribunal in accordance with the provisions of s.8 (as substituted by the Solicitors (Amendment) Act, 1994) of this

Act, or as part of its determination of any appeal under subs.(11) of this section, as the case may be.”

50. Part VIII, (26) of S.I. 14 of 1998, Rules of the Superior Courts (No.1) (Solicitors (Amendment) Act, 1994), 1998, provides that

every appeal to the High Court under s.7 of the Act of 1960 (as substituted by s.17 of the Act of 1994) or any application under s.11

of the Act of 1994 shall be brought by notice of motion.

51. Part VIII (28) provides:

“In the case of an appeal by a respondent solicitor pursuant to s.7 (13) of the Act of 1960 (as substituted by s.17 of the Act

of 1994) the notice of motion shall be served within 21 days after the date of the delivery to the respondent solicitor of the

Report of the Disciplinary Tribunal.”

52. Part VIII (28) also provides that:

“The Court may, on application made to it by motion on notice to the Society and to any person who sought the said inquiry,

extend the period for an appeal under s.7 (13) in any case where it appears just to do so.”

53. The appellant submits that it is just to do so in the instant case in the following circumstances. He contends that he had

consulted with his solicitor before the 14th March, 2000, and told his solicitor that he wished to appeal the report to the High Court.

The appellant’s solicitor indicated to him that he had already spoken with counsel who had advised that an application for judicial

review might be more appropriate. The appellant's written submission states that his legal team were concerned that the 1994 Act did

not provide a full and proper appeal hearing in the sense of a rehearing and that it would be better therefore to seek relief by way of

judicial review. While opting for the judicial review remedy, the appellant maintains that he always intended to reserve his right of

appeal to the High Court if the judicial review proceedings were not successful.

54. The appellant contended that he came within the three conditions set out in Éire Continental Trading Company Ltd v Clonmel

Foods Ltd [1955] I.R. 170. Firstly, he had a bona fide intention to appeal formed within the permitted time. Secondly, the appellant

contends that there was in the instant case something in the nature of a mistake in that the section (as distinct from the Regulation)

did not set out a clear time frame within which to appeal, but instead allows for an appeal to be made only after the report has been

considered by the court. The court had not yet considered the report as the matter had been adjourned generally due to the bringing

of the judicial review proceedings. Further, the appellant contended that he had been advised that it would have been inappropriate

and an abuse of process to file an appeal under s.7(13) and to apply for a judicial review at the same time. If that advice was

erroneous, the error was not his. Furthermore, an appeal to the High Court would provide a public hearing, without which the

appellant would be deprived of his fundamental right to a fair trial in a public forum which is guaranteed to him in the Constitution and

under Article 6(1) of the European Convention of Human Rights. Finally, the appellant admitted that he had set out before the

President all the grounds which the appellant said established an arguable case, such grounds being summarised at pp. 27-28 of his

written submission.

55. In reply, counsel for the respondent drew the court’s attention to par. 13 of the appellant's affidavit in support of this motion,

sworn on the 15th July, 2003, wherein he deposed:

“13. I say that my legal team were concerned that the said Act did not provide the respondent with a full and proper appeal

hearing in the sense of a re-hearing and as my instructions had been that the initial Tribunal hearing had been so obviously

biased they advised the respondent to seek relief by way of judicial review.

14. I say that on 5 April 2000 following receipt of a notice of motion my solicitor wrote to the applicant’s solicitor advising her

that he had previously been instructed by the respondent to make an application for judicial review. He asked her to confirm

that she would have no objection to her own motion being adjourned for a period of approximately 4 to 8 weeks.

15. Accordingly, I say that as far back as 5 April 2000 the applicant was notified of the respondent’s intention to appeal the

report in full.

16. I say that the matter came on before the then President of the High Court, Mr. Justice Morris on the Monday following 5

April 2000 when he was advised that the respondent was applying for a judicial review. I say that Mr. Justice Morris said that

because of the intended judicial review proceedings he would list the matter on 29 May 2000 for mention only.”

56. Counsel for the Society submits that these sworn statements by the appellant of his wishes and instructions must be preferred to

anything said by the applicant in the course of his appeal before this court. The extract from the affidavit showed in the clearest

possible way that the appellant, following consultation with his legal team, had opted to pursue the remedy of judicial review, rather

than pursue an appeal. The President was thus entirely correct in holding that the decision to appeal had effectively been abandoned,

not least because the appellant himself perceived the appeal route as offering a more limited form of remedy. Had the appellant

harboured any genuine thoughts of pursuing an appeal, that intention should have been disclosed when bringing the ex parte judicial

review application. The appellant did not contend that any such notification had been given to the court.

57. Furthermore, counsel for the Society submitted, it was now abundantly obvious, and had been so confirmed by the appellant on

the hearing of the present appeal, that all grounds which were now sought to be raised in the context of any proposed appeal, were

before the court in the judicial review proceedings. That being so, the present case clearly came within the rule in Henderson v.

Henderson [1843] 3 Hare 100, with the inevitable consequence that this court could only conclude that the third requirement of Éire

Continental Trading Company v Clonmel Foods Ltd [1955] I.R. 170 had not been satisfied, namely that the appellant had an arguable

case on his appeal.

58. I am satisfied that the President was entirely correct in holding, as he did, that the appellant had abandoned any intention of

pursuing an appeal under s.7(13) to the High Court and had instead opted, on proper legal advice, to pursue what was perceived as a

more comprehensive remedy available to him by way of judicial review. No other conclusion is open having regard to the grounding

affidavit sworn by the appellant.

59. There may of course be cases where a litigant may pursue both the remedy of judicial review and an appeal to a higher court.

Such an entitlement would clearly arise where a challenge to a ruling or decision was sought to be made on the merits, rather than on

failures in the underlying procedures. A judicial review would not always be an appropriate remedy for an appeal on the merits. It is

abundantly clear to us however that the appellant saw that his best opportunity lay in the judicial review remedy.

60. It is also clear in the instant case that all grounds of appeal which might be raised in any hearing before the High Court in the

context of an appeal under s.7(13) were either raised before Carroll J. in the judicial review proceedings, or were capable of being

argued in those proceedings, if the appellant was of a mind to do so.

61. The rule in Henderson v. Henderson [1843] 3 Hare 100, has been followed by this court in a number of recent cases, including

Eamonn Carroll and other v. Chris Ryan and others [2003] I.R. 309 and in A (A) v. The Medical Council [2003] 4 I.R. 302 where

Hardiman J. at p.315 quotes a passage from Wigram V.C. in Henderson at p.115:-

“I believe I state the rule of the court correctly when I say that where a given matter becomes the subject of litigation in,

and adjudication by, a court of competent jurisdiction, the court requires the parties to that litigation to bring forward their

whole case, and will not (except under special circumstances) permit the same parties to open the same subject of litigation

in respect of matters which might have been brought forward as part of the subject in contest, but which was not brought

forward, only because they have, from negligence, inadvertence or even accident, omitted part of their case. The plea of res

judiciata applies, except in special cases, not only to points upon which the court was actually required by the parties to form

an opinion and pronounce a judgement, but to every point which properly belonged to the subject of litigation and which the

parties exercising reasonable diligence might have brought forward at the time.”

62. As Hardiman J. stated, when delivering the judgment of the court in A (A) v. The Medical Council [2003] 4 I.R. at 319:-

“The issues in relation to legal aid are, therefore, to adapt the language of Henderson v Henderson [1843] 3 Hare 100 at p.

115, issues ‘which properly belonged to the subject of litigation and which the parties, exercising reasonable diligence, might

have brought forward at the time’ of the first proceedings. In the language of Johnson v. Gore Wood [2002] 2 A.C. 1, there

are issues which might ‘sensibly’ have been brought forward in the previous litigation. The present litigation in my view runs

foul of the rule of public policy ‘based on the desirability, in the general interest as well as that of the parties themselves, that

litigation should not drag on forever and that a defendant should not be oppressed by successive suits where one would do’ in

the words of Brooke L.J. in the passage cited above.”

63. The reference to ‘the words of Brooke L.J.’ was a reference to that passage in Woodhouse v. Consignia plc. [2002] 2 AER 737;

[2002] 1 W.L.R. 2558 at p. 2575 where Brooke L.J. referred to the public interest in the efficient conduct of litigation and continued:

“But at least as important is the general need, in the interests of justice, to protect the respondents to successive

applications in such circumstances from oppression. The rationale of the rule in Henderson v. Henderson that, in the absence

of special circumstances, parties should bring their whole case before the court so that all aspects of it may be decided

(subject to appeal) once and for all, is a rule of public policy based upon the desirability, in the general interest as well that of

the parties themselves, that litigation should not drag on forever and that a defendant should not be oppressed by successive

suits where one would do…”

64. It seems to me that the facts of the present case fall squarely within the principles outlined above. I am further strengthened in

this view by the fact that the appellant chose not to appeal the judgment of Carroll J. It cannot be overemphasised that in those

proceedings the appellant had been granted leave to argue the issue of delay, but elected not to pursue that ground in those

proceedings.

65. While I am thus clearly of the view that the first and third conditions of Éire Continental Trading Company v Clonmel Foods Ltd

[1955] I.R. 170 have not been complied with, I am also of the view that no mistake of any sort, either by the appellant’s legal

advisors or on his own part, impaired his ability to pursue the remedy of appeal had he been of a mind to do so. Moreover, it is clear

that there was no other element or factor before the High Court which could have required the President to exercise his discretion

other than to refuse the application for an extension of time

66. In relation to the assertion that the President by the terms of his judgment pre-judged his consideration of and findings in the

second motion by virtue of his findings on the first motion, I am satisfied that this is a contention without any merit. By agreement of

all parties the three motions were heard together with each party being heard on one occasion, subject to a right of reply, with all

matters relevant to the three motions being ventilated at the one time. In those circumstances, the matters referred to by the

President were properly before the court and in my view the President was entitled to hold in the manner he did.

67. For these various reasons, the court rejects all of the appellant’s submissions on this motion.

The Third Motion

68. The third motion seeks to strike out the application of the Society dated 24th March, 2000, which seeks an order striking the

name of the appellant off the Roll of Solicitors.

69. It goes without saying that many of the considerations which informed the courts approach to the second motion apply also in

relation to this third motion.

70. Essentially the appellant contends that by reason of delay on the part of the Society, he has been denied his rights under the

Constitution and under Article 6(1) of the Convention for the Protection of Human Rights and Fundamental Freedoms. He also

contends that he can rely upon the principle of double jeopardy to obtain the relief sought in the notice of motion.

71. The appellant submits that some thirteen years have passed since these proceedings commenced. He contends that certain

important witnesses are now missing or dead. Insofar as his own contribution to delay is concerned, the appellant concedes only that

the period of two years nine months during which he was imprisoned and had requested that no action be taken should be taken into

account in determining any liability for delay on his part.

72. I would reject this submission as wholly untenable. Firstly, the appellant himself had demanded of the Society that they stay their

hand with the disciplinary proceedings pending the completion of the criminal process. This concluded only on the 23rd May, 1996,

when the Court of Criminal Appeal rejected the appellant’s appeal. Thereafter, the appellant commenced judicial review proceedings in

the aftermath of the hearings before the Disciplinary Tribunal in 1999. As had already been noted, the appellant invoked, but did not

argue, delay as a ground for seeking relief in those judicial proceedings which concluded with the judgment of High Court on the 16th

October, 2002.

73. It seems to me, for the reasons already stated, that all complaints of culpable delay on the part of the respondent, the courts or

any other authority, up to March, 2002, are, in the circumstances, completely groundless.

74. In my view, the analysis undertaken by the President on the issue of delay and potential prejudice represents a correct

application of the legal principles which are applicable in this jurisdiction. The principles identified by the Supreme Court, as set out in

O’Domhnaill v Merrick [1984] I.R.151; Toal v Duignan and others [1991] I.L.R.M. 135 and Primor PLC v Stokes Kennedy Crowley

[1996] 2 I.R. 459, establish that, in considering the issue of delay, the court should, in general, consider the period starting with the

accrual of the cause of action for the purpose of determining the issue of delay to the relevant date. The learned President identified

the relevant date as the date of the hearing before the Disciplinary Tribunal. In then considering the issue of delay, he had regard to

the particular facts of this case. He also considered whether or not any prejudice had been established by the appellant. In his

judgment he found, correctly in our view, that the information provided by the appellant on affidavit to support the contention of

prejudice lacked detail and made no genuine attempt to particularise any prejudice which the appellant might experience as a result of

the alleged non-availability of specified persons.

75. Furthermore, as noted by the President, the nature of the matters alleged against the appellant are such that the circumstances

were and are particularly within his own knowledge and the transactions and matters which would require to be considered arise out

of his practice within a solicitor’s office where it is to be expected, as pointed out by the President:-

“that each and every transaction will be documented and recorded whether on the solicitor’s own file or in the solicitors books

of account and the supporting documentation for same.”

76. The lack or want of availability of documentation and records was recognised in the judgment of Finlay C.J. in Toal v Duignan and

others [1996] 2 I.R. 459 as being an appropriate matter to take into account when considering the issue of prejudice in relation to

delay. It follows therefore that the approach identified in Toal v Duignan and O’Domhnaill v Merrick [1984] I.R. 151 as to whether, by

reason of the lapse of time or delay, there is a real and serious risk of an unfair trial for that reason does not arise on the facts

herein.

77. It is also clear that courts, in considering the issue of delay, recognise that one must look at the conduct of both sides. In Dowd

v Kerry County Council [1970] I.R. 27 at 42, O’Dálaigh, C.J., in talking about civil litigation, recognised the fact that “Litigation is a

two party operation, and the conduct of both parties should be looked at.” It is also apparent that in considering the issue of delay a

court will look to identify the author of delay and, as Fennelly J. said in relation to the civil proceedings of Anglo Irish Beef Processors

v Montgomery [2002] 3 IR 510 at p.519:-

“…the author of delay which is found to be both inordinate and inexcusable will not be absolved of fault unless he can point to

countervailing circumstances.”

78. I am satisfied that there was a firm factual basis for the finding by the learned President when at page 19 of his judgment he

stated:-

“I am satisfied that such delay is excusable having regard to the solicitor’s whereabouts being unknown, the difficulty in

serving him and his request to defer the hearing pending his prosecution.”

79. Reviewing the entire chronology of events up to the present time, I am satisfied that the delay which has occurred is explicable

and is to be understood by reference to its own unique facts which are of an unusual nature, and I am not satisfied that any

excessive delay of a culpable nature can be attributed to the Society or to any other party.

80. The appellant further submits that he is entitled to relief in the context of this motion even without establishing prejudice. He

claims this entitlement under and by virtue of Article 6(1) of the European Convention on Human Rights which reads as follows:-

“In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and

public hearing within a reasonable time by an independent and impartial tribunal established by law.”

81. The appellant contends that his rights under this Article have been breached in that:

(a) The appellant has not obtained a fair hearing.

(b) The appellant has not obtained a public hearing.

(c) The appellant’s case has not been dealt with within a reasonable time.

(d) The tribunal has not been independent or impartial.

82. However, at page 42 of his own submissions, the appellant accepts that the question of a fair hearing and the independence and

impartiality of the tribunal have already been raised and adjudicated upon in the judicial review. Furthermore, any suggestion that the

appellant was or would be entitled to a public hearing is not an issue which arises in respect of the particular reliefs claimed in these

motions.

83. The case ultimately therefore boils down to the proposition that his case has not been dealt with within a reasonable time.

84. However, as the jurisprudence of the European Court of Human Rights, so heavily relied upon by the appellant, makes abundantly

clear, the assessment to be made in cases of this nature must invariably turn on the facts of the particular case. In König v Germany

[1979-80] 2 E.H.R.R. 170 at par 99, the court stated:-

“The reasonableness of the duration of proceedings covered by Article 6(1) of the Convention must be assessed in each case

according to its circumstances. When enquiring into the reasonableness of the duration of criminal proceedings, the Court has

had regard, inter alia, to the complexity of the case, to the applicant’s conduct and to the manner in which the matter was

dealt with by the administrative and judicial authorities.”

85. The Society accepts, as does this court, that this is a correct statement of the law to be applied to a procedure such as the

present one.

86. The determination by the learned President was that, having regard to all the circumstances of the case and, in particular, the

complexity of the issues, and the conduct of the parties in relation to what was at stake, he was satisfied that there was no breach

of Article 6(1). He did so having of course noted that the Convention was not at the relevant time part of the domestic law of this

State. Nevertheless he concluded:-

“I am satisfied having regard to the jurisprudence of the European Court of Human Rights that the conduct of the respondent

solicitor so contributed to the lapse of time as to disentitle him to relief.”

87. Indeed, in his own submissions, the appellant (at p. 52) cites as applicable the same reference to König v Germany cited above,

and also acknowledges the application of the ECHR judgment in Philis v Greece No.2 [1998] 25 E.H.R.R. where at par. 35 the court

stated:-

“The Court reiterates at the outset that the reasonableness of the length of proceedings must be assessed in the light of the

particular circumstances of the case and having regard to the criteria laid down in its case law, in particular the complexity of

the case and the conduct of the applicant and the relevant authorities (see, among many other authorities the Kemmache v

France (nos. 1 and 2) judgments of 27 November 1991series A No. 218, p. 27, para. 60. It is necessary among other things to

take account of the importance of what is at stake for the applicant in the litigation (see, for instance, the Phocas v France

judgment of 23 April 1996 Reports of Judgments and Decisions 1996 I.I., p.546, para. 71).”

88. While many other case references appear in the appellant’s submissions, this Court is satisfied that the key principles are evident

from the citations set out above and that those principles were correctly applied by the President to the facts of this case.

89. Finally, the appellant submits that the principle of double jeopardy applies in this case and that “he cannot be convicted twice”.

The appellant contends that he has already been convicted of certain criminal offences and cannot be punished again in respect of

exactly the same offences.

90. In this regard, the appellant relies on Article 4 of protocol 7 to the Convention which reads as follows:-

“No one shall be liable to be tried or punished again in criminal proceedings under the jurisdiction of the same State for an

offence for which he has already been finally acquitted or convicted in accordance with the law and penal procedure of that

State.”

91. However, as was pointed out by the President in the course of his judgment, Article 4 of protocol 7 is in its terms confined to

criminal proceedings. There is no question in the instant case of the solicitor being liable to be tried or punished in the present

proceedings which are not criminal proceedings. The purpose of the present proceedings is not punitive, but is one whereby a solicitor

who might be unfit, due to misconduct, should, if so found, be prevented from continuing to practice as a solicitor. No basis has been

identified nor could there be any logical argument to suggest that where a professional person has been convicted of a criminal

offence that the facts giving rise to such conviction could not be considered by a professional disciplinary body to ascertain whether

or not the professional person had committed professional misconduct.

92. I would therefore reject all of the appellant’s contentions in this case and would dismiss the appeals.