C.L. v Solicitors Disciplinary Tribunal & Anor (Approved)

Factual and Procedural Background

These proceedings arise from an inquiry conducted by the Respondent into the conduct of the Applicant in his capacity as a solicitor, pursuant to statutory provisions governing solicitors' conduct and accounts. The Law Society of Ireland, as Notice Party, appointed two chartered accountants as "authorised persons" to investigate compliance with the Solicitors Accounts Regulations 2014 and relevant statutory provisions. The accountants attended the Applicant's place of work in April 2016, prepared a report and sworn affidavits identifying alleged breaches. Relying on this material, the Respondent commenced an inquiry into the Applicant's conduct.

At the inquiry, the Applicant objected to the admissibility of the accountants' report and affidavits on the basis that the accountants were not validly appointed due to an error in the appointment memoranda. The Respondent rejected this objection in a preliminary decision dated 12 March 2020, holding the appointment valid and the evidence admissible. The Applicant seeks judicial review to quash this preliminary decision and an order compelling the Respondent to provide complete and adequate reasons for it.

Legal Issues Presented

1. Whether the investigating accountants were validly appointed as "authorised persons" under the Solicitors Act 1954 and related amendments, despite an error on the face of the appointment memoranda.
2. Whether the report and affidavits of the accountants were admissible as evidence before the Solicitors Disciplinary Tribunal.
3. Whether the Respondent breached fair procedures by failing to adequately consider the Applicant's oral submissions and by providing insufficient reasons for its decision.
4. Whether the affidavit sworn by a Tribunal official who was not present at the hearing was admissible or constituted hearsay evidence.

Arguments of the Parties

Applicant's Arguments

• Error on the Face of the Record: The Applicant submitted that the error in the appointment memoranda—incorrect statutory reference—rendered the accountants' appointment invalid, thus their investigation and evidence were unlawful and inadmissible. This error was more than typographical and deprived the appointing authority of jurisdiction. The Applicant relied on precedents involving invalid warrants and orders to support the principle that errors on the face of a document can vitiate the appointment or decision.
• Standard of Proof and Admissibility: The Applicant argued that the Solicitors Disciplinary Tribunal applies a criminal standard of proof beyond reasonable doubt and therefore the procedure for admitting evidence should respect criminal evidential rules, which the Respondent failed to do.
• Breach of Fair Procedures: The Applicant contended that the Respondent inadequately considered his oral submissions made on the day of the ruling, delivering a pre-prepared decision after a brief adjournment, thus breaching fair procedures. He also argued that the reasons given for the decision were sparse and did not properly address the error on the face of the record.
• Affidavit of Tribunal Official: The Applicant challenged the admissibility of an affidavit sworn by a Tribunal official who was not present at the hearing, asserting it amounted to hearsay and was inadmissible under procedural rules.

Respondent's Arguments

• Error on the Face of the Record: The Respondent acknowledged the error in the first paragraph of the appointment memoranda but submitted it was a typographical mistake. The second paragraph clearly and validly authorised the accountants in writing, which satisfied the statutory requirement. The memoranda were not analogous to warrants or court orders, and the error did not invalidate the appointment.
• Admissibility of Evidence and Standard of Proof: The Respondent argued that the criminal standard of proof does not entail applying all criminal procedural rules to disciplinary proceedings. The correct test for admissibility of evidence in disciplinary tribunals is as set out in the Kennedy v Law Society (No. 3) case, which permits reliance on evidence unless there is deliberate and knowing misbehaviour by investigators.
• Fair Procedures and Reasons for Decision: The Respondent asserted that the Tribunal properly considered all submissions, including the Applicant’s final oral submissions, as evidenced by references to relevant cases in the ruling. The level of reasoning provided was appropriate for a preliminary ruling on admissibility, and detailed reasons akin to those in final decisions or High Court judgments are not required.
• Affidavit of Tribunal Official: The Respondent contended that the affidavit did not purport to provide new information beyond what was on the record and that the Chairperson of the Tribunal, who was present at the hearing, also swore an affidavit grounding the opposition, thus satisfying procedural requirements.

Notice Party's Arguments

• The Notice Party adopted the Respondent’s submissions, emphasizing that fair procedures were followed and the authorisation of the investigating accountants was valid.
• It was submitted that although the disciplinary tribunal applies a criminal standard of proof, the proceedings are not criminal in nature, and therefore not all criminal procedural rules apply.
• The Notice Party also noted that the transcript’s reference to a "brief adjournment" does not specify duration and is a standard procedural phrase.

Table of Precedents Cited

Court's Reasoning and Analysis

The court began by noting the unusual circumstance of judicial review being sought to challenge an interlocutory ruling of the disciplinary tribunal. It observed that judicial review is not a substitute for appeal and primarily addresses jurisdictional and procedural fairness issues.

Regarding the validity of the appointment of the investigating accountants, the court held that the error in the first paragraph of the appointment memoranda was a typographical mistake and did not invalidate the appointment. The second paragraph clearly authorised the accountants in writing pursuant to the relevant statute, satisfying the statutory requirement. The court distinguished criminal cases involving search warrants and orders affecting constitutional rights, noting that the appointment of accountants for supervisory "spot checks" is a regulatory function with less severe implications.

The court accepted the precedent from Kennedy v Law Society (No. 3) that disciplinary tribunals apply a different evidential standard than criminal courts, requiring deliberate and knowing misbehaviour to exclude evidence. Thus, even if the appointment had been invalid, the accountants' evidence could still be admissible absent bad faith.

On the alleged breach of fair procedures, the court found no basis to conclude that the Respondent failed to consider the Applicant’s further oral submissions before delivering its ruling. The transcript and affidavit evidence showed that the tribunal adjourned to consider submissions and referenced the cases raised by the Applicant in its decision. The court rejected the assertion that the ruling was a pre-prepared "fait accompli."

Regarding the adequacy of reasons, the court emphasized that the level of detail required depends on the nature of the decision. For a preliminary ruling on admissibility during an ongoing inquiry, the reasons given—running to several pages and addressing key arguments—were adequate to satisfy fair procedures.

Finally, the court dismissed the challenge to the affidavit sworn by a Tribunal official who was not present at the hearing, finding it did not introduce new disputed facts and was supported by an affidavit from the Tribunal Chairperson who was present.

Holding and Implications

The court REFUSED ALL RELIEFS sought by the Applicant.

The court held that the Respondent's preliminary decision that the investigating accountants were validly appointed and that their evidence was admissible was correct and lawful. It further held that the Respondent afforded fair procedures by properly considering submissions and providing adequate reasons for its ruling. The challenge to the affidavit was also rejected.

The direct effect of this decision is that the disciplinary inquiry may proceed with the accountants' evidence admitted. No new legal precedent was established; rather, the court reaffirmed established principles distinguishing administrative disciplinary procedures from criminal proceedings and underscored the limited scope of judicial review in interlocutory rulings of professional disciplinary tribunals.