Supreme Court affirms High Court ruling that solicitor appeal is a limited review, not a de novo hearing.

THE SUPREME COURT

Appeal No: 518/2012

Denham C.J.

McKechnie J.

Clarke J.

In the matter of the Solicitors Acts 1954 to 2008

In the matter of Anne Fitzgibbon Solicitor

Between/

Anne Fitzgibbon

Appellant

And

Law Society of Ireland

Respondent

Judgment delivered on the 29th day of July 2014, by Denham C.J.

1. This is an appeal by Anne Fitzgibbon, the appellant, referred to as “the appellant”, from the ruling of the High Court (Kearns P.) of

the 7th November, 2012, which found that an application to the High Court by a solicitor under s. 11(1), (3) and/or (4) of the

Solicitors (Amendment) Act, 1994, fell to be dealt with as a review of a specialist tribunal and not as a de novo hearing with the

burden of proof on the Law Society of Ireland, the respondent, referred to as “the respondent”; and from the order awarding the

costs of the hearing of the 7th November, 2012, to the respondent.

2. The appellant is a solicitor who has been sanctioned by the Complaints and Client Relations Committee of the Law Society in

relation to two separate complaints.

3. The appellant appealed to the High Court against the findings and sanctions imposed, by bringing an appeal under s. 11(1) of the

Solicitors Amendment Act, 1994.

Preliminary Issue

4. A preliminary issue arose in the High Court as to the nature of the hearing.

5. The President of the High Court had previously directed on the 5th March, 2012, and on the 7th July, 2012, that witnesses be

summoned and that oral evidence be heard.

High Court Ruling

6. On the preliminary issue, the President of the High Court held that the format of the appeal would be that of a review of a

specialist tribunal whereby the finding would be reviewed and oral evidence would be called only if necessary.

7. The President ruled on the preliminary issue, holding:-

“I’m satisfied, firstly, that the format of this appeal is a fairly limited appeal, notwithstanding that the Court may, if it

deems necessary, during the course of the hearing to receive oral evidence; that is apparent, it seems to me, from the

terminology of the section under which this appeal is brought. Both appeals in this case are made pursuant to section

11(1) of the Solicitors Amendment Act, 1994.”

8. The President referred to the terms of s. 11(1) of the Solicitors Amendment Act, 1994; Order 63 r. 15 of the Rules of the Superior

Courts; Ulster Bank Investment Funds Ltd v. Financial Services Ombudsman [2006] IEHC 323; Orange v. The Director of

Telecommunications Regulations and Meteor Mobile Communications Limited (No. 2) [2000] 4 I.R. 159; M. & J. Gleeson & Co. v.

Competition Authority (H.C.) [1999] 1 I.L.R.M. 401.

9. The President held:-

“I think that the committee here can be regarded as an expert committee in respect of which curial deference should be

extended, and I think the test for a review of this particular decision is that as indicated by Mr Justice Finnegan on the

1st of November 2006 in the Ulster Bank case.

Even if I am mistaken in that view, I am quite satisfied that the section of the Act, in other words section l1(1) of the

Solicitors Amendment Act 1994, in its terminology clearly envisages something other than a de novo appeal because, if it

intended such an appeal it would have simply said that an appellant will enjoy a full right of appeal from any decision of

the Complaints and Client Relations Committee, to the High Court, and the same shall consist of a rehearing. I believe in

respect of an appeal from the Circuit Court to the High Court, from recollection, a similar form of wording appears in the

relevant legislation. The very terminology of the section itself, whereby, on review, this Court can rescind or vary a

determination, I think is very suggestive that the Court has a relatively limited role and, indeed, that approach makes

perfect common sense, because otherwise the High Court might be involved in endless re-hearings of matters which have

been fully ventilated and considered, and in respect of which the material is available for the Court from the proceedings

before the Complaints and Client Relations Committee.

So, for all those reasons, I'm of the view that I must resolve this particular point in the manner suggested by counsel for

the respondents, and I so find.”

Notice of Appeal

10. In a notice of appeal the following grounds were set out:-

1. The learned judge erred in fact and in law in holding that the Complaints and Client Relations Committee of the Law

Society, composed of a majority of lay members, constituted a specialist tribunal attracting curial deference from the

Courts.

2. The learned trial judge failed to have adequate regard to the lack of procedural safeguards for solicitors inherent in the

investigation of complaints by the Complaints and Client Relations Committee of the Law Society.

3. The learned trial judge failed to have adequate regard to his previous directions that the matter proceed by way of oral

evidence.

4. The learned trial judge erred in law in failing to have regard to the use of the word "appeal" in the margins of the text

of the Solicitors (Amendment) Act 1994.

5. The learned trial judge failed to have regard to the fact that it would be unfair to confine himself to the evidence

before the Complaints and Client Relations Committee of the Law Society in circumstances where the appellant had no

adequate opportunity to test such evidence before the said Committee and where the appellant was not present when

such evidence was adduced.

6. The learned trial judge failed to have due regard to the incongruity which arises when the Complaints and Client

Relations Committee of the Law Society considers that a solicitor is guilty of wrongdoing, in that if it refers the matter to

the Solicitors Disciplinary Tribunal, guilt must be proven beyond reasonable doubt with the burden of proof on the Law

Society as prosecutor, whereas if the Complaints and Client Relations Committee of the Law Society itself imposes a

sanction, on appeal there would be no onus of proof on the Law Society to establish guilt and the hearing would be

confined to a review of evidence before the committee which evidence was not publicly gathered and was gathered in an

investigating mode and which may well be inadmissible.

Law

11. Section 11 of the Solicitors Amendment Act, 1994 provides:-

11.—(1) A solicitor in respect of whom a determination or direction has been made or given by the Society under

section 8 (1), 9 (1) or 12 (1) of this Act or who has received a notice for production or delivery of documents from

the Society under section 10 (1) of this Act may, within a period of 21 days of the notification of such

determination or direction to him, or the receipt of such notice by him, apply to the High Court for an order directing

the Society to rescind or to vary such determination or direction, or to vary or withdraw such notice, and on

hearing such application the Court may make such order as it thinks fit.

[emphasis added]

12. Reference was made on behalf of the appellant to the marginal note, which states:-

“Appeals to the High Court against determinations, directions or requirements of the Society.”

13. However, it is clearly stated in s. 18(g) of the Interpretation Act, 2005, that marginal notes are not part of the text of a statute

and may not be construed or judicially noticed in relation to the construction or interpretation of the enactment.

14. Order 53 of the Rules of the Superior Courts (as inserted by S.I. No. 701 of 2004) provides for the procedures to be followed in

the High Court on applications under the Solicitors Acts, 1954 to 2008.

15. Applications under s. 11 of the Solicitors Amendment Act, 1994, are included in O. 53 r. 16, which provides that such applications

shall be brought by notice of motion returnable to the President on a date to be assigned by the proper officer in the Central Office.

The notice of motion shall state the grounds of the appeal or application and the order sought. The evidence upon the hearing of any

such appeal or application is mandated to be by affidavit, “except insofar as the President may direct oral evidence to be given.”

16. In considering the nature of an appeal in certain cases, the Court has provided relevant analysis.

17. In Orange Communications Ltd v. The Director of Telecommunications Regulation and Anor (No. 2) [2000] 4 I.R. 159, Keane C.J.

stated at p. 184:-

“In short, the appeal provided for under this legislation was not intended to take the form of a re-examination from the

beginning of the merits of the decision appealed from culminating, it may be, in the substitution by the High Court of its

adjudication for that of the first defendant. It is accepted that, at the other end of the spectrum, the High Court is not

solely confined to the issues which might arise if the decision of the first defendant was being challenged by way of

judicial review. In the case of this legislation at least, an applicant will succeed in having the decision appealed from set

aside where it establishes to the High Court as a matter of probability that, taking the adjudicative process as a whole,

the decision reached was vitiated by a serious and significant error or a series of such errors. In arriving at a conclusion

on that issue the High Court will necessarily have regard to the degree of expertise and specialised knowledge available to

the first defendant.”

18. Reference has been made previously in Irish jurisprudence to a passage from the decision of the Canadian Supreme Court in

Canada (Director of Investigation and Research) v. Southam Inc. [1977] 1 S.C.R. at 748, where it was stated:-

“[An] appeal from a decision of an expert Tribunal is not exactly like an appeal from a decision of a trial court. Presumably

if Parliament entrusts a certain matter to a tribunal and not (initially at least) to the courts, it is because the tribunal

enjoys some advantage that judges do not. For that reason alone, review of a decision of a tribunal should often be of a

standard more deferential than correctness … I conclude that the … standard should be whether the decision of the

tribunal is unreasonable. This is to be distinguished from the most deferential standard of review which requires courts to

consider whether a tribunal’s decision is patently unreasonable. An unreasonable decision is one that, in the main, is not

supported by any reasons that can stand up to a somewhat probing examination. Accordingly a court reviewing a

conclusion on the reasonableness standard must look to see whether any reasons support it …”

19. Carrigdale Hotel Limited v The Comptroller of Patent Designs and Trade Marks & Anor [2004] 3 I.R. 410 concerned an appeal

pursuant to the Copyright Act 1963, where s. 41(3) provides:-

“An appeal shall lie to the High Court from any award made by an arbitrator in pursuance of a reference under this section

to which the parties to the dispute did not consent and the High Court may make such order confirming, annulling or

varying the award of the arbitrator as it thinks fit.”

The High Court (Laffoy J.) considered the standard of review. Both parties accepted that a hearing de novo was not envisaged. It

was accepted that the standard applicable to judicial review was not appropriate. The learned trial Judge reviewed the authorities

and concluded:-

“Accordingly, I consider that the test to be applied on this appeal in determining whether the award should be confirmed,

annulled or varied is whether the plaintiff has established as a matter of probability that, taking the adjudicative process

as a whole, the decision reached was vitiated by a serious and significant error or a series of such errors. In applying the

test regard must be had to the degree of expertise and specialist knowledge which the adjudicator has.”

20. In Ulster Bank Investment Funds Ltd v. Financial Services Ombudsman [2006] IEHC 323, Finnegan P. reviewed the above case-

law and held:-

“It is desirable that there should be consistency in the Courts in the standard of review on statutory appeals. Accordingly

unless the words of the statute mandate otherwise it is appropriate that the standard of review in this case be that

enunciated by Keane C.J., Kearns J. and Laffoy J. I see nothing in the wording of the statute with which I am concerned

to mandate a different approach to the statutory appeal under the Central Bank Act 1942 section 57CL. To succeed on

this appeal the Plaintiff must establish as a matter of probability that, taking the adjudicative process as a whole, the

decision reached was vitiated by a serious and significant error or a series of such errors. In applying the test the Court

will have regard to the degree of expertise and specialist knowledge of the Defendant. The deferential standard is that

applied by Keane C.J. in Orange v The Director of Telecommunications Regulation & Anor and not that in The State

(Keegan) v Stardust Compensation Tribunal.”

Decision

21. I would affirm the decision of the High Court. To take the grounds of appeal seriatim:-

(i) It is a ground of appeal that the President erred in holding that the Complaints and Client Relations Committee of

the Law Society, composed of a majority of lay members, constituted a specialist tribunal attracting curial

deference from the courts. I am satisfied that the President was correct. The said Committee is a specialist

committee in its work. Its work is not that of a solicitor. Thus, the fact that there are a majority of lay members

does not detract from its specialist nature.

(ii) It is a ground of appeal that the President failed to have adequate regard to “the lack of procedural

safeguards.” The Committee is bound to conduct fair procedures. They may be subject to judicial review. There is

no reason to consider that the form of appeal envisaged by the President, with oral evidence if necessary, is not

such as to protect the appellant’s right to fair procedures.

(iii) It is a ground of appeal that the President failed to have adequate regard to his previous directions, that the

matter proceed by way of oral evidence. The directions of the President are not inconsistent. Having made provision

for oral evidence, as provided by statute, the President then indicated the form of the appeal, i.e. that it was not

an appeal de novo. This is entirely in conformity with the section and the proposed form of appeal.

(iv) It is a ground of appeal that the President erred in law in failing to have regard to the use of the word “appeal”

in the margins of the text of the Solicitors Amendment Act, 1994. As pointed out earlier in this judgment, s. 18(g) of

the Interpretation Act, 2005, is the relevant law, and thus this ground of appeal is erroneous.

(v) It is a ground of the appeal that the President failed to have regard to the fact that it would be unfair to

confine himself to the evidence before the Complaints and Client Relations Committee in circumstances where the

appellant had no adequate opportunity to test such evidence before the Committee, and where the appellant was

not present when such evidence was adduced. The President has made provision for oral evidence on the appeal.

The President has not yet addressed the substance or merits of the appeal. Thus, these are matters for a future

hearing by the President, and this ground of appeal is premature.

(vi) The appellant raised further matters in the sixth ground of appeal, which are also governed, as stated above.

Conclusion

22. For the reasons given, I would affirm the decision of the High Court and dismiss the appeal.