Supreme Court appoints solicitor as Notary Public for non-contiguous Cork and Dublin areas due to special circumstances.

THE SUPREME COURT

22/2015

In the matter of Richard Hammond, seeking to be appointed

a Notary Public

and

In the matter of the Courts (Supplemental Provisions) Act, 1961

Ruling delivered on the 27th day of September, 2016 by Denham C.J.

1. Richard Hammond, the petitioner, and herein after referred to as “the petitioner”, brought forward a petition requesting to be

appointed a Notary Public for the City and County of Cork, together with the counties adjoining thereto namely Kerry, Limerick,

Tipperary and Waterford; and also requesting to be appointed a Notary Public for the City of Dublin and the administrative areas of

Dún Laoghaire-Rathdown County Council, South Dublin County Council and Fingal County Council, together with the counties adjoining

thereto namely Kildare, Meath and Wicklow.

2. In his petition, filed on the 14th July, 2015, the petitioner set out the facts relating to his application. These facts included that he

was admitted to practise as a Solicitor in the Hillary term of 2005. He is a proprietary partner, with his spouse and fellow solicitor

Joyce A. Good Hammond, at Hammond Good Solicitors in Mallow, County Cork.

3. The petitioner holds B.C.L., LL.B. and LL.M. degrees from University College Cork, a Diploma in Arbitration from University College

Dublin, a Diploma in Family Law from the Law Society of Ireland, and a Diploma in Notarial Law and Practice from the Faculty of

Notaries Public in Ireland.

4. The petitioner is a Fellow of both the Chartered Institute of Arbitrators and the Royal Society for the encouragement of Arts,

Manufactures and Commerce, and is a member of the Society of Trust & Estate Practitioners.

5. The petitioner is also a European Trademark & Design Attorney and an Accredited Mediator (Centre for Effective Dispute

Resolution).

6. The petitioner works primarily on succession law, and also specialises in insolvency and intellectual property law, with a strong

interest in arbitration and mediation. He teaches in these areas at the Law School of the Law Society of Ireland, for which he also

acts as an Examiner on its Professional Practice Courses and Diplomas.

7. The petitioner is a member of the Council of the Law Society of Ireland and is involved in a number of its committees, including the

Probate, Administration & Trust Committee (current Vice-Chairperson), the Professional Indemnity Insurance Committee (current Vice-

Chairperson), the Education Committee and the Gazette Editorial Board.

8. The petitioner has obtained a Certificate of Examination from the Faculty of Notaries Public in Ireland.

9. The petitioner filed a certificate of fitness for the Cork area, signed by six persons representative of the local business community,

together with a certificate of fitness signed by six solicitors certifying as to his fitness.

10. The petitioner also filed a certificate for fitness for the Dublin area, signed by fifteen persons representative of the local business

community, together with a certificate of fitness signed by fifteen solicitors certifying as to his fitness.

11. The petitioner deposed that by virtue of his qualifications and experience, he is familiar with the requirements of the law and

practice in regard to the administration of Oaths, Affirmations and Declarations and has a good understanding of the law and practice

in relation to those areas of business and commerce with which a Notary Public is most likely to be involved. He added that he has a

good understanding of the law and practice with regard to Bills of Exchange, Promissory Notes, Bills of Lading, banking, transport

carriage of goods, shipping and generally with contracts and documents of a mercantile and commercial nature in relation to which

the services of a Notary Public are required.

12. The petitioner deposed that his firm, Hammond Good Solicitors, Mallow, County Cork was established as of the 1st September,

2007. The members of the firm are the petitioner and Joyce A. Good Hammond. The petitioner deposed that the nature of the

practice is that they have a fully serviced public office where they provide legal services to the public. He also deposed that the firm

has a public office at Portview House, York Road, Dublin 4, where the firm provides services to their Dublin client base.

13. The petitioner deposed that his role in the firm involves him actively representing and advising clients in a wide range of topics

ranging from civil and criminal litigation, extradition and family law, to succession law, insolvency and intellectual property. He deposed

that he is also responsible for the firm’s many clients in the non-governmental sector and is responsible for risk management and

compliance with the Solicitors’ Accounts Regulations. The petitioner also deposed that he has developed a practice providing a

succession law consultancy service for other firms of solicitors. And has done so for at least fifteen other firms, most of which are

based in the greater Dublin area.

14. The petitioner deposed that if appointed a Notary Public, such appointment will be a convenience and an advantage for the

professional Banking and Commercial community in and near the said areas and in support thereof referred to the certificates filed with

the court, signed by solicitors and other business interests.

15. The petitioner deposed that if appointed a Notary Public, he will observe the Code of Conduct for Notaries Public adopted by the

Faculty of Notaries Public in Ireland on the 21st November, 1986 and such other rules, regulations and bye-laws governing the

professional practice and procedure of Notaries Public in Ireland, and the standards to be observed by the, as shall from time to time

be made and published by the Faculty of Notaries Public in Ireland.

16. A number of affidavits were filed by David Walsh, Notary Public, Registrar of the Faculty of Notaries Public in Ireland, who was

authorised by the Faculty to make the affidavit on its behalf. The Faculty represents the members of the profession of Notary Public

in Ireland.

17. The Registrar pointed out that the Faculty is tasked generally with the duty of bringing to the attention of the Chief Justice

matters concerning a petitioner, or an application, which the Faculty considers should reasonably and appropriately be laid before the

Chief Justice when the application for appointment as a Notary Public is under consideration. I am grateful to the Faculty for bringing

to my attention matters arising on applications.

18. The Faculty accepts without equivocation the personal fitness of the petitioner to be appointed Notary Public with regards to his

place of business in Mallow, County Cork, being Cork City and County and the contiguous counties of Kerry, Limerick, Tipperary and

Waterford. On behalf of the Faculty the Registrar deposed that:-

“Over many years the practice has evolved to include in the appointment of a Notary counties contiguous to the home

county, and that practice is now almost universal, and presents no difficulty in this application.”

Sole Issue

19. The sole issue of concern to the Faculty, and the sole issue on this application, that the petitioner seeks to be appointed also as

a Notary Public for the City and County of Dublin, which is discontiguous to Cork. This is referred to as “the sole issue”.

Previous Rulings

Application of John Hussey, 2011

20. In considering this issue some previous cases were drawn to my attention.

21. Murray C.J. delivered a Ruling in In the matter of John Hussey, on the 18th July, 2011, which related to an application by the

petitioner to be appointed a Notary Public for the entire of the State of Ireland. The petitioner, Mr Hussey, was at the time of the

application a Notary Public for Cork and the adjoining counties of Waterford, Kerry, Tipperary and Limerick. The petitioner argued that

the tradition of the Chief Justice appointing Notaries Public for a specific limited area was out of date, and out of keeping with modern

needs and requirements. The petitioner submitted that he was entitled to practise as a solicitor throughout the State, and therefore

questioned why he could not practise as a Notary Public throughout the State?

22. Murray C.J. held that while there may be a great deal of sense in the petitioner’s argument, the question for him was whether he

had the power to appoint a Notary for the entire State rather than specific areas within the State.

23. Murray C.J. pointed out that Ireland is one of the few countries that does not have modern legislation providing for the

appointment and regulation of Notaries Public.

24. Murray C.J. referred to earlier legislation and to the Courts (Supplemental Provisions) Act, 1961 s. 10(b) pursuant to which the

Chief Justice appoints Notaries Public. Of the said Act of 1961 he stated:-

“… the 1961 Act … states that the power of appointing notaries public and commissioners to administer oaths is one of

the powers and functions of the Chief Justice. In exercising that function it is not a judicial function. It is an

administrative function and the Chief Justice can only act within the ambit of the powers, such as they are, conferred on

him or her. “

Murray C.J. lamented the lack of modern legislation on the appointment of Notaries Public.

25. Murray C.J. concluded:-

“Whatever the logic of Mr. Hussey’s arguments the question is can I add to the powers of the Chief Justice a power to

appoint for the entire country. I am satisfied that this is a power which was not conferred or transferred to the Chief

Justice, that whatever policy reasons there may be for doing so it is not open to me to extend those powers. That is in

principle a matter for the legislature. Indeed the whole provision of services by notaries public and, as I have indicated,

the procedure and criteria for the appointment of notaries and the regulation of the provision of their professional services

generally are very much in need of modern legislation. However as matters stand and having regard to the only statutory

provision which governs the appointments of notaries and the manner in which those powers have been exercised by

myself to date and my predecessors I am not satisfied that I have the power or can give unto myself the power in this

administrative procedure to appoint a notary public for the entire country.”

26. I endorse the view of Murray C.J. as to the lack of modern legislation on the appointment of Notaries Public.

27. On the issue as to whether the Chief Justice has the power, or can give unto his or herself the power, to appoint a Notary Public

for the entire country, I agree with the reasoning and decision of Murray C.J.

28. However, I distinguish that application from this, and do not find it of assistance on the sole issue on this application.

29. Mr. Hussey made a broad approach in his application. There was no issue of his having a legal practice in any other particular

county, or indeed specifically in all counties. Nor did Mr. Hussey advance any specific factual reasons for expanding his Notary Public

jurisdiction to other counties. The ruling was made on a broad general application, in the absence of grounding legislation, and was

refused. I do not consider that it is a precedent favouring either the petitioner or the Faculty in this application.

Application of George V. Maloney 1991

30. The application of George V. Maloney, 1991, was brought to my attention. There was a specific requirement at that time of a

“needs” to be established. A petitioner had to establish that there were not enough Notaries Public in the area for which appointment

was sought, to meet the needs of the local business and commerce community. In that case there were specific issues as to food

products, validation by a Notary Public of random samples of the food in County Cavan, and validation by a Notary Public of the

storage and exports from County Louth. It was important that it be the same Notary Public validating in both counties. In the special

circumstances, the Chief Justice made the appointment of Notary Public.

31. While this appointment was made at a time when there was a “needs” requirement, in the special circumstances, the Chief Justice

made an appointment for two non-contiguous counties, contrary to the general rule.

Application of Bill Holohan 2000

32. On the relevance of this application to the petitioner, the Registrar on behalf of the Faculty, stressed that at the time of his

successful application in 2000, Mr. Holohan was practising in both Dublin and Cork with fully functioning public offices in both places,

with staff employed by him in each location, and that the duality of such offices was recorded in the annual Law Society Law

Directory. The Registrar stated that Mr. Holohan established as a fact that he was routinely, during the working week, practising as a

solicitor equally between his Cork and Dublin offices.

33. The Faculty distinguished Mr. Holohan’s situation to that of the petitioner, stating as follows:-

(i) Mr. Holohan in 2000 had, as a practising solicitor, fully functioning public offices with staff employed in each

location. The petitioner currently does not.

(ii) Mr. Holohan in 2000 appeared in the Law Directory as having such offices, phone and fax lines in Cork and in

Dublin. The petitioner has such details only in relation to his Mallow office.

(iii) Mr. Holohan in 2000 was able to demonstrate a track record of more than a dozen years of objectively visible

presence in Cork and in Dublin. The Registrar stated that the petitioner currently can not.

(iv) In a comparison of websites in 2016 Mr. Holohan identified his offices and practices in Cork and in Dublin, while,

the Registrar stated, the petitioner’s website cites Mallow contact details only, with a reference to Dublin as:-

“Our solicitors are in Dublin on an almost weekly basis”.

34. Thus, the Faculty’s view was that the circumstances asserted for granting the petitioner’s application (i) are not relevant to the

circumstances in Maloney; (ii) fall short of the standard set by Holohan; (iii) are arguably different to Hussey, but insofar as there

is a similarity, account has to be taken of the ruling of Murray C.J. on 18th July, 2011.

35. In a responding affidavit the petitioner deposed, on the 29th April, 2016:-

“(1) In respect of the distinctive status of the (sic) Mr. Holohan’s firm in 2000 and your deponent’s firm in 2015, the

averments of the Faculty at 9(i), 9(ii) and 9(iv) of the Registrar’s affidavit are accepted, though the inferences that the

Faculty draws from these facts are contested. To the extent that the status of the firms is different, it is respectfully my

belief that this represents the different legal practice environment as between 1991 when Mr. Holohan first began to work

from a branch office in Dublin and 2007 when I left Dublin and moved to Cork but maintained and indeed enhanced a

healthy professional presence as a practitioner in Dublin. In 1991, there was no motorway between Cork and Dublin, there

was no internet, there was a very slow train service, and mobile telephony was in its infancy. In order to operate

professionally in Dublin while living in Cork a branch office was a necessity. By 2007 the internet and mobile telephony had

overhauled the nature of legal practice drastically and the road and rail connections between Cork and Dublin had

unrecognisably improved. If your deponent was contemplating creating his current bi-located practice as of 1991 or

indeed 2000 it is likely that his practice structure would mirror that of Mr. Holohan. Equally, though a matter of

conjecture, it is likely that if Mr. Holohan was creating his bi-located practice as of 2007 his practice structure would

mirror that of your deponent.”

36. In the same affidavit the petitioner pointed out similarities between his bi-located practice and that of Mr. Holohan, as follows:-

“a. Both applications involve Cork based solicitors who spend a significant amount of professional time in Dublin

b. Both applications involve solicitors with a significant client base comprising other solicitors.

c. Both applications involve solicitors with a multiplicity of practice interests in common including being Fellows of the

Chartered Institute of Arbitrators, being Accredited Mediators with both the Centre for Effective Dispute Resolution and

the Chartered Institute of Arbitrators, being Registered Trade Mark Agents and European Trademark and Design

Attorneys, and being members of the Irish Society of Insolvency Practitioners.

d. Both applications involve solicitors with published work.

e. Both applications involve solicitors who contribute regularly to Continuing Professional Development conferences and

seminars throughout the country.

f. Both applications involve solicitors who contributed to the professional practice and diploma courses of the Law Society

of Ireland.

g. Both applications involve solicitors, who because of their respective work practices and specialisations, enjoy a high

profile within the legal profession, which is a generator of much of their respective client bases.”

37. Bill Holohan supported the application of the petitioner in a number of extensive affidavits. He set out in detail his successful

application to be a Notary Public in Cork and Dublin, where the Faculty had raised the issue of the application relating to non-

contiguous zones, and where they queried his availability “at all reasonable times”. He described the documents and hearing before

the Chief Justice. He stated that at the conclusion of the submissions before the Chief Justice:-

“43. The Chief Justice said that he had read the papers. He said that the only objection which was being maintained in

relation to this petitioner, whom he again said was “pre-eminently qualified to be appointed as a Notary Public”, and who

was a petitioner “of the highest calibre, character and professional standing”, is that he would be seeking to be appointed

with authority to act in his separate cities and counties. The Faculty, he said, very fairly, had drawn his attention to the

situation prevailing in relation to a Notary practising in County Cavan and County Louth. He said in modern circumstances,

having regard to the jurisdiction of the Court, which was conceded by the Faculty, there could not be any legitimate

objection raised to an application by a suitably qualified practitioner, who held a Certificate of Competency from the

Faculty itself, simply because such petitioner would seek to be appointed for non-contiguous counties, or might not, due

to other professional commitments, be available at all times. The Chief Justice said that one could not require of a

petitioner, that they give an undertaking to be available “at all times”. Having regard to other professional commitments,

or indeed personal commitments, or personal preferences or working styles, any given professional in any profession might

only be available for limited times. The Chief Justice said that if someone was seeking to engage the services of a Notary

then, in the normal course they would seek to make an appointment. If such times as when the particular Notary was

available was convenient for that person, then the parties might engage. If not, there were other Notaries with whom the

person might engage.”

38. Mr. Holohan further supported the application of the petitioner in an affidavit which was deposed on the 30th April, 2016, and

which concluded by listing, in a similar manner to that deposed by the petitioner and set out above, the similarities between the

application of Mr. Holohan and the petitioner.

Decision

39. The jurisdiction of the Chief Justice to make appointments of Notaries Public is rooted in the papal mists of time, with very limited

statutory assistance. References were made to the Notaries Public Act, 1821; s. 19 of the Matrimonial Causes in Marriage Law

(Ireland) Amendment Act 1870; s. 19(3) Courts of Justice Act, 1924, and s. 10(1)(b) of the Courts (Supplemental Provisions) Act

1961, which re-enacted s. 19(2) of the Courts of Justice Act, 1924. Thus, the power of appointing Notaries Public is one of the

powers and functions of the Chief Justice. I endorse the view expressed by Murray C.J. in In the matter of John Hussey, 18th July,

2011, that it is unfortunate that there is no modern legislation addressing the issue of the appointment of Notaries Public.

40. In the absence of legislation, the current practices, general rules and some cases, have been drawn to my attention.

41. As has been said over the years by my predecessors, each case has to be considered on its own circumstances, and exceptions

have been made to general rules.

42. I endorse the statement of Murray C.J. made In the matter of Cormac Brown Ruling delivered on the 18th July, 2011, when he

stated:-

“Each application has to be determined having regard to its own particular facts and circumstances.”

In that case Murray C.J. ruled:-

“In this instance I am satisfied that there are special reasons by virtue of the fact that he has passed the Faculty’s

examination and his other qualifications and experience that the appointment can be made without, in my view, diluting or

putting at risk the general standards that are expected of Notaries.”

43. I have considered the cases referred to me by the parties. As indicated previously, I do not find the decision In the matter of

John Hussey to be of assistance on the issue in this application.

44. The application of George V. Maloney, 1991, may be distinguished also as, at that time, there was a requirement of “needs” to

be met. This was met in that application, but it is no longer a factor for consideration, owing to the Practice Direction of 25th

January, 2006. However, it is noteworthy, that the Chief Justice had no difficulty in making an appointment of a Notary Public to two

non-contiguous counties.

45. The application of Bill Holohan, 2000, is the most relevant precedent. The question arises whether this application is similar to

that of Bill Holohan, so as to fall within the precedent; or whether there are special circumstances warranting such an appointment?

46. It is clear that when making Rulings on the issue of the appointment of Notaries Public it has been the practice for a Chief Justice

to follow previous decisions, practices and Rulings.

47. It has been, and is, the general rule that the appointment of a Notary Public is made to a county and contiguous counties.

48. However, on occasion a Chief Justice has found that there are special circumstances, sufficient to warrant an exception to the

general rule. Thus, in Maloney the Chief Justice found that there were “needs” (no longer a relevant factor), and went on to make

an appointment of the Notary Public in the circumstance. It is a theme in the jurisprudence that Notaries Public will not be appointed

to non-contiguous counties, unless there are special factors.

49. Special factors were identified in the Holohan application.

50. I am satisfied that special factors may be identified in this application also. They include:-

(i) The Faculty accepts without equivocation the personal fitness of the petitioner to be appointed a notary public. It is

the issue of the appointment to non-contiguous areas that is raised by the Faculty.

(ii) I accept the evidence of fact offered by the petitioner in his affidavits.

(iii) I accept the evidence of fact offered by Bill Holohan in his affidavits.

(iv) I accept the evidence of the petitioner that he was in Dublin on the cited 128 days in 2015. I accept his analysis that

he, in essence, spent some part of half his working days in 2015 in Dublin, the other half being in Mallow.

(v) Owing to the nature of his practice, the petitioner has a significant client base that is comprised of other solicitors.

(vi) I am satisfied that there are parallels to be drawn with the Holohan application, namely:-

(a) Both relate to Cork based solicitors who spend a significant amount of professional time in Dublin,

(b) Both have a significant client base which is other solicitors,

(c) Both have interests including being Fellows of the Chartered Institute of Arbitrators, both are accredited

Mediators with the Centre for Effective Dispute Resolution, both are Accredited Mediators with the Chartered

Institute of Arbitrators, both are Registered Trademark Agents, both are European Trademark and Design Attorneys,

both are members of the Irish Society of Insolvency Practitioners.

(d) Both the petitioner and Mr. Holohan have a significant amount of published work.

(e) Both are significant contributors to the Law Society and the local Bar Associations.

(f) Both have a high profile within the solicitors’ profession, because of the nature of their respective specialised

work, which is a significant client base.

51. In all the circumstances, I am satisfied that this application has reached the standard set in the Holohan application.

52. Further, I am satisfied that in the specific circumstances the appointment should be made.

53. Consequently, I appoint the petitioner as Notary Public for (i) The City and County of Cork, together with the counties adjoining

thereto, namely Kerry, Limerick, Tipperary and Waterford, and (ii) The City of Dublin and the administrative areas of Dun Laoghaire –

Rathdown County Council, South Dublin County Council and Fingal County Council, together with the counties adjoining thereto

namely Kildare, Meath and Wicklow.