Appeal dismissed as res judicata applies; appellant's complaints barred by prior judgment and Tribunal decision.

Neutral Citation Number: [2010] IEHC 1

THE HIGH COURT

2009 106 SA

IN THE MATTER OF ANN O’NEILL, SOLICITOR,

MCKEEVER ROWAN SOLICITORS,

5 HARBOURMASTER PLACE, I.F.S.C. DUBLIN 1.

AND

IN THE MATTER OF AN APPLICATION BY

EDWARD STEVENSON

TO THE SOLICITORS DISCIPLINARY TRIBUNAL

AND

IN THE MATTER OF THE SOLICITORS ACT, 1954 – 2008

DISCIPLINARY TRIBUNAL RECORD NO: 7013/DT48/09

BETWEEN

EDWARD STEVENSON

APPELLANT

AND

ANN O’NEILL

RESPONDENT SOLICITOR

JUDGMENT of Kearns P. delivered on the 11th day of January, 2010.

This is an appeal brought by the appellant pursuit to s.7 of the Solicitors (Amendment) Act, 1960 (as substituted by s.17

of the Solicitors (Amendment) Act, 1994 and amended by s.9 of the Solicitors (Amendment) Act, 2002) against the

decision of the Solicitors Disciplinary Tribunal dated 29th October, 2009 which held that there was no prima facia case for

an inquiry in respect of various allegations brought against the respondent solicitor by the appellant.

The appellant’s central complaint against the respondent solicitor relates to a communication which she had with Anglo

Irish Bank, Dublin, on Friday, 15th October, 2004 relating to bank accounts held by the applicant in that bank. This

communication arose in the context of family law proceedings in which the appellant was then engaged and which were in

fact at hearing before McKechnie J. in the High Court by way of appeal from the Circuit Court.

The appellant’s present complaint is not a new complaint. It was fully ventilated before McKechnie J. and was the subject

matter of a previous complaint to the Solicitors Disciplinary Tribunal by the appellant in 2006.

I have read the transcript of the relevant hearings before McKechnie J. and all the documentation and affidavits filed in

respect of the subsequent complaints brought to the Tribunal. On 24th February, 2006 it was the decision of the

Solicitors Disciplinary Tribunal that there was no prima facia case of misconduct made out against the respondent solicitor

in respect of the events which occurred on the 15th October, 2004.

This finding was the subject matter of an appeal to Finnegan P. who by judgment delivered on 26th July, 2006 dismissed

the appellant’s appeal. He was satisfied that there was no reasonable prospect of the complaint made by the appellant

being upheld at an inquiry and affirmed the decision of the Tribunal.

The appellant brought a further complaint against the respondent solicitor in 2008. This complainant was of a slightly

different character, alleging that the respondent solicitor caused a mark to be made on the cover of the Circuit Court

record of the matrimonial proceedings with the intent of perverting the record. This complaint was in turn rejected by a

differently constituted Tribunal which held that there was no prima facia case of misconduct made out against the

respondent solicitor.

The present complaint was initiated in May, 2009. It is a complaint which replicates entirely that which was the subject

matter of the ruling by the Solicitors Disciplinary Tribunal in 2006. By a decision delivered on the 29th October, 2009 a

differently constituted Disciplinary Tribunal held there was no prima facia case to warrant an enquiry, stating specifically

in relation to each complaint:-

“in the premises and having regard to the two aforesaid High Court judgments, this Tribunal considers that this

complaint or any other complaint that similarly arises from the communication or communications by the

respondent solicitor with Anglo Irish Bank on Friday, 15th October, 2004 or that in any other respect arises from

actions or alleged actions of the respondent solicitor in her capacity as the solicitor for the other party to the

aforesaid family law proceedings should not have been, subsequent to the said High Court judgment of Finnegan P.

of 26th July, 2006, the subject of a complaint by the applicant herein to this Tribunal.”

The Tribunal effectively found that the present complaint was res judicata by reason both of its previous decision in

relation thereto and the judgment of Finnegan P. already referred to.

In his affidavit grounding this appeal, the appellant complains of a number of defects in the affidavit sworn by the

respondent for the purposes of the present complaint. It is clear that the affidavit filed on behalf of the respondent on

the 24th June, 2009 did contain a number of errors which were addressed in a further affidavit sworn by her on the 5th

August, 2009. An affidavit in response was sworn by the appellant on 25th August, 2009 and the matter was thereafter

considered by the Tribunal on 22nd October, 2009 and its decision was delivered on 29th October, 2009.

In his affidavit sworn on the 10th November, 2009 to ground this appeal, the appellant makes complaint about the

inadequacies of the respondent’s affidavit. He further complains that the Tribunal gave no reasoned decision for saying

that the various complaints had been adequately rebutted by the respondent solicitor. Finally, he seeks an order from this

Court suspending all “non pending proceedings before the Disciplinary Tribunal until a prudential examination of

procedures and regulations applicable to those procedures has been concluded.”

I am satisfied that this appeal falls entirely into the realm of the vexatious and should be dismissed.

The complaints have already been the subject matter of adjudication and must, in my view, following the judgment

delivered by Finnegan P., be regarded as res judicata.

In my view the Solicitors Disciplinary Tribunal were not only entitled but obliged to take the view as it did on 29th

October, 2009 that all of these complaints should be rejected subsequent to the judgment delivered herein by Finnegan P.

I am of the same view and regard the present appeal as an abuse of process of this Court. I will accordingly not only

dismiss this appeal but will also make what is commonly know as an “Isaac Wunder” order restraining the appellant from

bringing any further complaints against the respondent solicitor arising out of these family law proceedings.