High Court dismisses appeal as time limit cannot be extended for solicitor disciplinary findings.

Neutral Citation [2017] IEHC 2

THE HIGH COURT

IN THE MATTER OF JAMES BINCHY (A SOLICITOR)

AND IN THE MATTER OF AN APPLICATION BY BRIAN CURRAN TO THE SOLICITORS’ DISCIPLINARY TRIBUNAL (RECORD NUMBER

3058/DT195/13)

AND IN THE MATTER OF THE SOLICITORS ACTS 1954 — 2011

[2016 No. 55 SA]

BETWEEN

BRIAN CURRAN

APPELLANT

AND

THE SOLICITORS’ DISCIPLINARY TRIBUNAL

RESPONDENT

THE HIGH COURT

IN THE MATTER OF JAMES BINCHY (A SOLICITOR)

AND IN THE MATTER OF AN APPLICATION BY BRIAN CURRAN TO THE SOLICITORS’ DISCIPLINARY TRIBUNAL WITH RECORD

NUMBER 3058/DT195/13

AND IN THE MATTER OF THE SOLICITORS ACTS 1954 — 2011

[2016 No. 65 SA]

BETWEEN

BRIAN CURRAN

APPELLANT

AND

THE SOLICITORS’ DISCIPLINARY TRIBUNAL

RESPONDENT

JUDGMENT of Mr. Justice Eagar delivered on the 13th day of January, 2017

1. This is a judgment on foot of a notice of motion issued by Brian Curran seeking leave to appeal to the High Court against the

findings of the Solicitors’ Disciplinary Tribunal dated the 6th November, 2015 and dated the 10th December, 2015 (notified to the

appellant on the 10th December, 2015), that there was no prima facie case for inquiry into the conduct of the solicitor in the title

hereof, Mr. James Binchy of Murphy & Company.

2. The first issue that arises in this Court’s judgment is that the title of the proceedings is incorrect and I propose to amend the title

as the Law Society of Ireland is not the appropriate respondent. In my view, the Solicitors’ Disciplinary Tribunal should be

respondents, and I amend the title appropriately.

3. The important issue before this Court is whether it is permissible for this Court to extend the time limit within which to appeal

against the finding of the Disciplinary Tribunal where there has been a finding that there is no prima facie case for inquiry into the

conduct of a solicitor having regard to the provisions of s. 7(12)(B) of the Solicitors (Amendment) Act, 1960, amended.

The statutory framework

4. The disciplinary provisions in relation to solicitors is contained in Part II of the Solicitors (Amendment) Act, 1960 as amended by

Part III of the Solicitors (Amendment) Act, 1994 and by the Solicitors (Amendment) Act, 2002.

5. Pursuant to s. 6 of the Act of 1960 as amended by s. 16 of the Act of 1994 and by s. 8 of the Act of 2002:—

“(1) The President of the High Court shall, from time to time as occasion requires, appoint a tribunal which shall be known

as the Solicitors Disciplinary Tribunal (in this Act referred to as the ‘Disciplinary Tribunal’) consisting of—

(a) not more than twenty persons from among practising solicitors of not less than 10 years standing (to be known

and referred to in this section as ‘solicitor members’), one of whom shall be appointed by the President of the High

Court to be chairperson of the Disciplinary Tribunal and each of whom shall be appointed after consultation with the

Society, and

(b) not more than ten persons, who are not solicitors or barristers (to be known and referred to in this section as

‘lay members’), who shall be nominated by the Minister to represent the interests of the general public,

for such a period, not exceeding five years, as the President of the High Court may determine, and any such person so

appointed shall be eligible for reappointment to the Disciplinary Tribunal for not more than one such period.”,

6. Section 7 of the Act of 1960 as substituted by s. 17 of the Act of 1994 and amended by s. 9 of the Solicitors (Amendment) Act,

2002 provides:—

“(2)(a) Where an application in relation to a solicitor (in this section referred to as the ‘respondent solicitor’) is duly made

under this section, the Disciplinary Tribunal shall—

(i) where the Society is not the applicant, inform the Society as soon as practicable of the receipt of the

application, and

(ii) before deciding whether there is a prima facie case for inquiry:

(I) send a copy of the application and of any accompanying documents to the respondent solicitor, and

(II) request that any observations which he or she may wish to make on the application be supplied to

the Disciplinary Tribunal within a specified period.

(b) If, after receipt of the respondent solicitor's observations or on the expiration of the specified period, the Disciplinary

Tribunal find that there is no prima facie case for inquiry, they shall so inform the applicant, the Society (where the

Society is not the applicant) and the respondent solicitor and take no further action in relation to the application.”

7. Subsection 3 deals with a situation where the Disciplinary Tribunal found that there is a prima facie case and it is not relevant in

this context.

8. Subsection 7(12) provides for an appeal as follows:—

“(12A) The Society or any person who has made an application under subsection (1) of this section may appeal to the

High Court within the period specified in subsection (12B) of this section—

(a) against a finding of the Disciplinary Tribunal that there is no prima facie case for inquiry into the conduct of the

respondent solicitor, or

(b) against a finding of the Disciplinary Tribunal that there has been no misconduct on the part of the respondent

solicitor in relation to an allegation of misconduct (whether or not there has been a finding by the Disciplinary

Tribunal of misconduct in relation to any other such allegation), and the Court may—

(i) confirm the finding concerned,

(ii) where the appeal is under paragraph (a) of this subsection, make a finding that there is a prima

facie case in relation to the allegation of misconduct concerned or, as the case may be, one or more

than one of such allegations and require the Disciplinary Tribunal to proceed to hold an inquiry under

subsection (3) of this section in relation to such allegation or allegations, or

(iii) where the appeal is under paragraph (b) of this subsection, rescind or vary any finding of the

Disciplinary Tribunal that there has been no misconduct on the part of the respondent solicitor in

relation to an allegation of misconduct and, in relation to that solicitor, by order do one or more than

one of the things specified in section 8(1)(a) (as substituted by the Act of 1994) of this Act.

(12B) An appeal against a finding of the Disciplinary Tribunal under subsection (12A) of this section shall be made

within 21 days of the receipt by the appellant of notification in writing of the finding.”

Background to the complaint to the Solicitors’ Disciplinary Tribunal

9. I will outline the factual issues, not for the purposes of analysing the decision of the Solicitors’ Disciplinary Tribunal, but with a view

to dealing with the issues of appeal which this Court is required to address.

10. The Court was asked to address the following:—

a. Can this Court extend the time limit within which to appeal against a finding of the Disciplinary Tribunal that there is no

prima facie case for inquiry into the conduct of a solicitor having regard to the provisions of s. 7(12)(b) of the Solicitors

(Amendment) Act, 1960, as amended.

b. If the time limit set out in s. 7(12)(b) is capable of extension should the time be extended on the facts of this case.

11. Mr. Binchy qualified as a solicitor in Easter 1976 and has been a practicing solicitor every since. He also had never been before

the Tribunal in his legal career to date. In late 2005, the applicant retained Mr. Binchy in connection with the sale of 9.23 acres of

land bequeathed to the applicant at Mount Pleasant, Loughrea, Co. Galway (the Mount Pleasant lands). The appellant retained

Michael Regan as his Auctioneer in connection with the sale of the lands. Mr. Binchy said he had never met Michael Regan but he was

based in Galway and never had any communications whatsoever with him. The purchaser, Joe Hoade, agreed to pay the sum of

€3,694,716.60 for the Mount Pleasant lands.

12. A deposit was placed by Mr. Hoade on 12th December, 2005 in the sum of €369,471.96 and a letter was received bearing that

date came from Dearbhla MacGowan, the solicitor for Mr. Hoade, also enclosing an executed contract signed by Mr. Hoade. The

applicant signed the contract for the sale of the lands which was dated 26th January, 2006. The applicant alleged that Mr. Binchy

altered the contract. On 7th December, 2005, Ms. MacGowan wrote to Mr. Binchy enclosing the Special Conditions to be inserted into

the Contract. These were Special Conditions 4, 5 and 6. The Special Conditions were removed from the Contract by the applicant by

putting a line through them. This was done with the applicant’s consent and correspondence.

13. There were a number of letters exchanged between Mr. Binchy and the applicant on the Special Conditions. Mr. Binchy said that

he explained to the applicant why spousal consent was not necessary and what Special Condition 5 meant. There was no family home

at issue in the sale. On 13th January, 2008 Mr. Binchy wrote to the applicant stating that he had received a phone call from the

purchaser’s solicitors confirming that it was in order to delete the Special Condition that referred to Recourse Mortgage and the

subsequent sub sales of the property and that if he was happy with this he could sign the Contract and return same when they will

be in a position to get the matter up and running.

14. Mr. Binchy sought the advices of John Peart, S.C., regarding the applicant’s options in respect of the Contract given that he now

wanted to withdraw from it.

15. A sub-issue that arose was that it was alleged by the applicant that a fraud was perpetrated against him in connection with the

sale of his lands by Mr. Regan. When the applicant learnt that the land behind him known as the Kilboys Lands had sold for more

money per acre than his he wanted to get out of the sale with Mr. Hoade and withdraw from his Contract.

16. Mr. Binchy wrote to Dearbhla MacGowan on 6th March, 2006 indicating that the applicant was not proceeding with the sale and

sent the deposit back on 10th March, 2006. Ms. MacGowan replied by letter dated 14th March, 2006 indicating that her client was

not accepting the return of the deposit and the cheque with the deposit was returned uncashed. Ms. MacGowan indicated that

pending the resolution of impending specific performance proceedings, she would require an undertaking from the applicant not to

purport to sell or assign or otherwise deal with the property in question.

17. Specific performance proceedings then issued in April, 2006 bearing the title, “Hoade v. Curran”[2006 No. 1444 P] and the

applicant instructed Mr. Binchy to represent him in defence of these proceedings. At a meeting with the applicant, John Peart, S.C.,

Stephen O’Rourke (the developer) and Bernadette Dinn (solicitor for Stephen O’Rourke) on 10th April, 2006. It was decided that they

should fight the specific performance writ fully and head to court on that basis. Robert Barron, then B.L., was briefed to act on behalf

of the applicant in the specific performance proceedings and the applicant confirmed that he had read Robert Barron’s “excellent”

defence and counter claim to the Hoade proceedings. The central relief sought in the counter claim was rescission. The defence and

counter claim were extremely comprehensive. A notice of trial dated 15th February, 2007 was received marking a notional trial date of

15th March, 2007.

18. On 3rd April, 2008 Mr. Binchy wrote to the applicant indicating that an offer had come in from Mr. Hoade to settle the proceedings

and on 7th July, 2008 the applicant wrote to Mr. Binchy and finished up the letter as follows:—

“Again, Jim, I would like to thank you most sincerely for help and advice in the above matters.”

19. A notice of discontinuance was ultimately served on behalf of Mr. Hoade and dated 23rd July, 2008.

20. Mr. Binchy had never met Ms. MacGowan and knew nothing about her dealings with the Law Society of various banks (this was

one of the claims made by the applicant) and Ms. MacGowan did report Mr. Binchy to the Law Society in connection with the return

of the deposit after the specific performance proceedings were partially settled. A deposit of €369,471.96 was received from Ms.

MacGowan under cover of a letter dated 12th December, 2005. Mr. Binchy wrote to the appellant indicating that they had received a

notice of discontinuance of the Hoade proceedings and enclosing the relevant letter from Ms. MacGowan in which she seeks the

return of the deposit. On 18th August, 2008 the appellant wrote to Mr. Binchy saying,

“I received your letter of 15th August and this is certainly good news. I want to thank you for all your efforts in this

difficult and complex matter.”

21. On 1st September, 2008 the applicant wrote to Mr. Binchy saying,

“I want to sincerely thank you for all your help, advice and guidance during this difficult matter. Your judgment in this

case has been invaluable.”

22. On 6th November, 2008 Mr. Binchy wrote to the applicant explaining that the recommendations from their cost drawer in respect

of the costs for the work done in relation to the aborted sale of Mount Pleasant Lands, the Hoade proceedings, and the Regan

proceedings. On 17th November, 2008 he received a letter from the applicant instructing that the civil portion of the Hoade and

Regan proceedings were to be set aside until the criminal investigation was resolved. On 21st August, 2008 Mr. Binchy had written to

Ms. MacGowan indicating that as her client was discontinuing the Hoade proceedings against the applicant, Murphys would hold the

deposit until the question of costs was resolved. On 9th February, 2009 Mr. Binchy returned to Ms. MacGowan the deposit less

€60,000 for the purposes of fees and for costs. Costs were taken from the deposit before it was returned.

23. The complaints by the applicant to the Disciplinary Tribunal were numerous and in many ways contradictory and became divided

as a result of the numbers of complaints. It appears that the solicitor for Mr. Hoade had also made a complaint to the Law Society in

relation to Mr. Binchy and it seems that this situation that caused Mr. Curran to make allegations against Mr. Binchy of the following:

—

1. fraud in the sale of the property;

2. fraud in breaches of trust (case [2006 No. 1444 P.]);

3. alleged absence of deposit;

4. tampering with sales contract;

5. multiple irregularities (case [2006 No. 1444 P.]) subsequently complained to the Law Society;

6. the matter was referred to the Solicitors’ Disciplinary Tribunal of the Law Society.

24. The matter was referred to the Solicitors’ Disciplinary Tribunal of the Law Society. The complaints of Mr. Curran were divided into

two:—

1. On 6th November, 2015 the Disciplinary Tribunal found that there was no prima facie case for an enquiry in relation to

some of the allegations of Mr. Binchy.

2. On the 10th December, 2015 the Disciplinary Tribunal found that there as no prima facie case for an enquiry into the

conduct of Mr. Binchy.

25. The appellant acknowledges that he was notified of both decisions by email on the 10th December, 2015. On the 28th December,

2015 affidavits in respect of two appeals were sworn by the appellant. These affidavits summarised the grounds in respect of the two

appeals. However, the notice of motion in respect of Appeal No. 1 was issued on 17th April, 2016 and the notice of Appeal No. 2 was

issued on the 31st May, 2016.

26. The question before this Court is whether it is permissible for the Court to extend the time limit within which to appeal against a

finding of the Disciplinary Tribunal that there is no prima facie case for inquiry into the conduct of a solicitor having regard to the

provisions of s. 7(12)(B) of the Solicitors Act, 1960 as amended.

27. The respondent solicitor has set out relevant terminology as follows:

1. 6th November, 2015 – Date of finding of the Disciplinary Tribunal in respect of Curran v. Binchy 3058/DT34/14

2. 10th December, 2015 – Date of the finding of the Disciplinary Tribunal in Curran v. Binchy 3058/DT/195/13 dated 10th

December, 2015

3. 10th December, 2015 – The appellant acknowledges that he was notified of both decisions by email.

4. 28th December, 2015 – Affidavits in respect of Appeal 1 and 2 were sworn by the appellant.

5. 31st December, 2015 – The twenty-one day time limit within which to appeal expires under s. 7(12)(b) and reflected

an O. 15, r. 12(a) expires.

6. 4th January, 2016 – Mr. Binchy’s solicitor receives the affidavits.

7. 5th January, 2016 – The Central Office advised the appellant that the documents received by the office on the 4th

January, 2016 were received out of time and where irregular insofar as they did not include a notice of motion. The

appellant is advised to take legal advice and expressly informed him that there was no provision for accepting the

documents outside the twenty-one day time limit.

8. 26th April, 2016 – Notice of motion in Appeal No. 1 issued dated the 17th April, 2016

9. 31st May, 2016 – Notice of motion in Appeal No. 2 issued (dated 31st May, 2016)

28. Order 53, rule 12(a) of the Superior Courts Rules is entitled:

“Appeals to the Supreme Court under section 7 (as substituted by s. 17 of the Act of 1994 and as amended by s. 9 of the

Act of 2002) of the Act of 1960 states:

(a) Every appeal to the court against a finding of the Disciplinary Tribunal, either that there was no prima facie case

for inquiry into the conduct of a respondent solicitor or that there was no misconduct on the part of a respondent

solicitor in relation to an allegation of misconduct, brought by the Society or by any person other than the Society

who made the application in relation to the respondent solicitor to the Disciplinary Tribunal under s. 7(12A)(a) or (b)

(as substituted by s. 17 of the Act of 1994 and as inserted by s. 9(g) of the Act of 2002) of the Act of 1960, shall

be brought within the period of 21 days of the receipt by the appellant of written notification from the Tribunal

Registrar of such finding and shall be by notice of motion returnable to the President on a date to be assigned by

the proper officer in the Central Office and shall be entitled in the matter of the respondent solicitor and in the

matter of the Acts (this Court’s emphasises).

29. Counsel for the respondent solicitor argued that this is a mandatory statutory time limit which is prescribed by the Acts. Counsel

also noted that s. 7(12)(A)(a) as inserted by the 2002 Act created for the first time an appeal mechanism for those such as the

appellant who wished to appeal against “a finding of the Disciplinary Tribunal that there is no prima facie case when enquiring into the

conduct of the respondent solicitor”. Counsel also noted that s. 7(12)(B) states that an appeal against the finding of the Disciplinary

Tribunal under subs. 12(a) of this section shall be made within 21 days of the receipt by the appellant of notification in writing of the

finding. This Court agrees with counsel for the respondent that the language in the statute is mandatory and in respect of an appeal

against the finding of the Disciplinary Tribunal that there is no prima facie case for enquiring into the conduct of the solicitor this

must be made within a period of 21 days of receipt by the notification by the appellant by the order.

30. Counsel for the respondents summing up the argument for the appellant states that the appellant seeks to read into the words of

s. 7 (12) (B) a power to extend the time in accordance with the principles set out in Eire Continental Trading Company Ltd v. Clonmel

Foods Ltd [1955] I.R. 170. Counsel for the respondent argued that in interpreting s. 7 (12) (B) a fundamental objective must be to

give effect to the intention of the legislature and he quoted Murray J. in Crilly v. T & J Farrington Ltd [2001] 3 I.R. 251 at 295:

“As has often been said by this court, the courts are one of the organs of government, the judicial organ of

government, referred to in Article 6 of the Constitution. seeks to ascertain the ‘intent’ of the legislature or as Blackstone

put it at p. 59 of his Commentaries ‘the will of the legislature’".

31. This court finds that the wording of the provision is clear. It allows for a period of 21 days beginning on the date of notification of

the decision in writing. It does not provide for the extension of a 21 day period of time to appeal. Counsel for the respondent

submitted that prior to the enactment of the 2002 Act it was not possible to appeal a decision against a finding of no prima facia

case. When the legislature chose to extend the availability of an appeal against the decision of no finding of prima facia case, it

expressly chose to limit this wider right of appeal to a strict time frame, without discretion to extend time.

32. Counsel for the respondent submitted that there were compelling reasons why the Oireachtas would want to ensure that these

types of appeals are advanced expediously, given the adverse impact which they have on solicitors who have been exonerated by the

Disciplinary Tribunal at first instance. Counsel also submitted that the facts of this case where the appellant has made multiple

baseless and repetitive complaints to the Law Society regarding Mr. Binchy’s conduct. “Yes proves that very point”.

33. Counsel for the respondent also cited Walsh v. An Garda Síochána Complaints Board [2010] 1 I.R. 400 where the Supreme Court

considered a complaint which was made within one hour outside of the six month time limit set out by s. 4 of the Garda Síochána

(Complaints) Act 1986. That section did not allow for an extension of time to make a complaint. Fennelly J. described the provision as

one which leads to the unfortunate and unfruitful results but the language was clear and well established and held that the complaint

could not be entertained and quashed the decision of the respondent that the complaint was made in time.

34. Counsel for the respondent drew the court’s attention to the decision of the Court of Appeal in Law Society v. Tobin [2016] IECA

at 26. In this case neither the appellant’s solicitors lodged a notice of appeal within 21 days of the date of making the order in the

High Court or the date of the perfection of that order. Section 12 of the Solicitors (Amendment) Act 1960 as inserted by s. 39 of the

Solicitors (Amendment) Act 1994 provides

“The Society or the solicitor concerned may appeal to the Supreme Court against an order of the High Court made under

section 8 (1) (as substituted by the Solicitors (Amendment) Act, 1994) or section 9 or 10 (as amended by the Solicitors

(Amendment) Act, 1994) of this Act within a period of 21 days beginning on the date of the order, and unless the High

Court or the Supreme Court otherwise orders, the order of the High Court shall have effect pending the determination of

such appeal.”. (This court’s emphasis)

In the case of Mr. Tobin and Mr. Callanan the order of the High Court striking Mr. Tobin from the role of solicitors provided “that the

respondent do have leave to appeal the within order and to lodge such an appeal within such period as is provided under order 58 or

86A of the Rules of the Superior Courts (as the case may be) and in the event of execution be further stayed until the further

determination of such appeal”.

35. It appears to this court that the circumstances set out in the case of The Law Society v. Tobin and The Law Society v. Callinan

is a different and distinguishable principle. In that case the High Court had made an order under the Solicitor’s Acts striking the names

of the respondents’ solicitors from the roll of solicitors. The Court of Appeal having reviewed a large number of authorities held that

the 21 day period in the 1994 Act was the relevant time period under O. 58 of the Rules of the Superior Courts for appeals to the

Supreme Court, which also had a well established jurisdiction to extend such time period of time, and in this case provided for an

extension of time. The Court distinguishes the decision in The Law Society v. Tobin and The Law Society v. Callinan having regard to

the fact that this was a decision of the High Court as opposed to a decision of the Solicitors Disciplinary Tribunal.

36. However in this case it is quite clear that the Solicitors Disciplinary Tribunal that either party before a Disciplinary Tribunal can

appeal to the High Court within a 21 day period there is no authority for the High Court in adjudicating whether or not an appeal

against the finding of the (Regulatory Authority) power to extend time. This court follows the authority of Walsh v. Garda Síochána

Complaints Board [2010] 1 I.R. 400 and the decision of Hedigan J. in Browne v. Kerry County Council [2011] 3 I.R. 514. Hedigan J. in

that case concluded that an appeal section under the Planning and Development Act 2000 had to be construed as being mandatory in

nature noting that:

“As to the first of Lowry L.C.J.'s principles, it is evident that no power to extend time exists, nor is there any provision to

indicate what is to happen if time is exceeded.”

37. This Court therefore finds that this Court has no permission to extend the time limit within which to appeal against the finding of

the Disciplinary Tribunal that there is no prima facie case for enquiring into the conduct of a solicitor having regard to the provision of

s. 7(12)(B) of the Solicitors (Amendment) Act 1960.

38. The court has decided that it would be useful to consider whether or not if there was a power to apply to extend time whether or

not that could be availed of by the appellant in this case. In the judgment of the Supreme Court in Eire Continental Trading Co. Ltd.

v. Clonmel Foods Ltd. previously cited the Supreme Court took the opportunity of setting out conditions which were proper matters

for consideration of the court in determining whether time should be extended:

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. (Laverty J.)

39. In Brewer v. the Commissioner of Public Works [2003] 3 I.R. 539 Geoghegan J. observed in relation to the judgment of Lavery J.

in Eire Continental:

“I would interpret those words of Lavery J. as indicating that while these three conditions were proper matters to be

considered, it did not necessarily follow in all circumstances that a court would either grant the extension if all these

conditions were fulfilled or refuse the extension if they were not. The court still had to consider all the surrounding

circumstances in deciding how to exercise its discretion.”

This is a case where the only materials which needs to be considered by the appellant where the materials before the Disciplinary

Tribunal and the appellant had available to him all of the information necessary to make his mind up as in terms to which to appeal. He

clearly by his actions of swearing affidavits within time and shown a bona fide intention to appeal formed within the permitted time.

Clearly the judgments of the High Court and the Supreme Court state the view of the court that there is requirement to balance

justice on all sides.

40. In Goode Concrete v. CRH Plc. [2013] IESC 39 Mr. Justice Clarke delivering judgment on behalf of the Supreme Court having

referred to the authorities of Eire Continental and Brewer and stating that the Eire Continental test applies “in the majority of cases”

he said at para. 3.3:

“3.3. The reason why the Éire Continental test applies in the vast majority of cases is clear. The underlying obligation of

the court (as identified in many of the relevant judgments) is to balance justice on all sides. Failing to bring finality to

proceedings in a timely way is, in itself, a potential and significant injustice. Excluding parties from potentially meritorious

appeals also runs the risk of injustice. Prejudice to successful parties who have operated on the basis that, once the

time for appeal has expired, the proceedings (or any relevant aspect of the proceedings) are at an end, must also be a

significant factor. The proper administration of justice in an orderly fashion is also a factor of high weight. Precisely how

all of those matters will interact on the facts of an individual case may well require careful analysis. However, the

specific Éire Continental criteria will meet those requirements in the vast majority of cases.

3.4. First, it should be said that it is difficult to envisage circumstances where it could be in the interests of justice to

allow an appeal to be brought outside time where the Court was not satisfied that there were any arguable grounds of

appeal established. It can not be in the interests of justice to allow wholly unmeritorious appeals to progress.

3.5. Likewise, in most straightforward cases, a party will be aware of the time limit within which an appeal should be

brought (or if not, ought to be so aware) and should not be allowed an extension of time unless a decision to appeal was

made in time and there is a good reason for the appeal not having been filed within the time limit. In the vast majority

of cases the only materials which any party will need to consider in deciding whether to appeal will be the materials

which were before the judge deciding the case at first instance. A party who has participated in proceedings before the

High Court (or who ought to have so participated) will or ought to be aware of all of the evidence called, of the legal

submissions made and of the reasoning of the trial judge in coming to whatever conclusion it might now be sought to

appeal against. Such a party has available to it all of the information necessary to make its mind up as to whether it

wishes to appeal. In that context it is not unreasonable to require the party, in the interests of the overall

administration of justice and the balance of justice as and between the parties, to come to a decision within the time

specified and to bring the appeal either within that time or such further period as the court might, exceptionally, allow if

there is some excuse for the notice of appeal not being filed in time. Thus the specific Éire Continental criteria will, in the

vast majority of cases, be likely to be the only test applied by the court.”

41. In this case on the 5th January, 2016 the appellant was told by the Central Office that his paperwork was irregular and could not

be lodged. The appellant only remedied the lack of appropriate papers until respectively to remedy the missing notice of motion until

respectively the 26th April, 2016 and 31st May, 2016. Apart from a complaint in the appellant’s replying affidavit in respect of a failure

of the Disciplinary Tribunal to comply with O. 53, r. 7 it is not suggested anywhere in the appellant’s affidavit that he was operating

under any misunderstanding of the time limit within which the appeals where to be lodged.

42. It is submitted by counsel for the respondent that the fact that the appellant is representing himself in this appeal is not a

relevant factor and quoted the recent Supreme Court decision in the Permanent TSB v. Patrick McMahon [2016] IESC DET 56 “is well

established that while it is impractical of the courts to give a degree of leeway to unrepresented litigants, a court may not go as far

as to disregard the rules of law for their benefit”.

43. Finally, the court finds that the appellant has not come close to demonstrating that he has any arguable ground of appeal in

respect of the ultimate finding. The appellant has made voluminous complaints against Mr. Binchy which appear to be vexatious and

grossly oppressive. Serious allegations have been made against Mr. Binchy and by way of replying affidavits the appellant has shown

a pattern of adding new complaints and changing his original complaints.

44. It is not the role of this Court to review the findings of the Disciplinary Tribunal but in the circumstances of having to exercise its

discretion this Court would not exercise it’s discretion to extend the time to enable the appellant to appeal.

45. In summary the finding of this Court is:

(a) It is not permissible for the High Court to extend the time limit within which to appeal against the finding of the

Disciplinary Tribunal that there is no prima facie case of enquiry into the conduct of a solicitor having regard to the

provisions of s. 7(12)(B) of the Solicitors (Amendment) Act 1960 as amended.

(b) In the circumstance of this case if the court did have such permission, to extend the time limit, this Court would not

exercise its discretion to admit the appeal having regard to the (a) failure to follow up the attempted appeal until April

and May of 2016 and (b) the nature of the appellant’s complaints having regard to his expressions of satisfaction up to

the settlement of the High Court proceedings between Hoade v. Curran and his continuing to increase the numbers of

complaints in response to the affidavits of Mr. Binchy.