Dowling & Ors v Ireland & Ors (Approved)

Factual and Procedural Background

The proceedings were initiated by way of plenary summons on 14 March 2013, constituting a constitutional challenge to certain provisions of the Credit Institutions (Stabilisation) Act 2010. The hearing of this constitutional challenge had been deferred pending the resolution of related proceedings challenging directions made by the Minister for Finance under the same Act.

Originally, there were four plaintiffs, but the first and second plaintiffs settled their claims, leaving two remaining plaintiffs: an individual plaintiff and a corporate plaintiff ("the company"). The company is represented by a solicitor who filed a notice of change of solicitor in October 2022 and subsequently sought to come off record via a motion listed for hearing in March 2023.

The substantive hearing was scheduled to commence on 17 January 2023 and was to be heard alongside related proceedings. On 17 January 2023, the court orally ordered an adjournment of the substantive hearing pending the resolution of the solicitor’s motion to come off record. The perfected written order was subsequently challenged by the individual plaintiff as not accurately reflecting the hearing events, leading to an application to amend the order under the slip rule.

Legal Issues Presented

1. Whether the perfected court order accurately reflected the oral order given on 17 January 2023 concerning the adjournment of the substantive hearing pending the solicitor’s motion to come off record.
2. The appropriate scope and wording of the adjournment, specifically whether it should extend only until the hearing of the motion or until final determination, including potential appeals.
3. The procedural propriety of the solicitor’s intervention on 17 January 2023 and the characterization of that intervention in the perfected order.

Arguments of the Parties

Individual Plaintiff's Arguments

• The perfected order does not correctly reflect the hearing on 17 January 2023 and should be amended under the slip rule.
• The adjournment was intended only until the hearing of the solicitor’s motion to come off record, not including any subsequent appeals, to avoid undue delay.
• The solicitor’s intervention on 17 January 2023 was not a formal application and should not be described as “ex parte” or “suo motu” in the order.
• The individual plaintiff represents himself and acts as lead litigant, with the company adopting his submissions despite his lack of formal legal representation for the company.
• Adjournment of the substantive hearing pending the solicitor’s motion should not delay the case unnecessarily, as the solicitor’s motion is unlikely to succeed and the company would otherwise be unrepresented.
• Objections were raised to the solicitor making submissions on the motion to come off record without allowing the individual plaintiff to reply, asserting that those submissions contained falsehoods.

Defendants' Arguments

• The defendants noted that in prior proceedings the solicitor on record adopted the individual plaintiff’s submissions.
• The defendants submitted that if the solicitor is willing to adopt the individual plaintiff’s submissions, the case can proceed; otherwise, it could proceed without the company.
• The issue of legal representation is between the solicitor, the individual plaintiff, and the company, and not a matter for the defendants to dictate.

Solicitor on Record's Position

• The solicitor stated he had issued a motion to come off record and that no solicitor/client relationship existed with the company.
• The solicitor confirmed he could not adopt the individual plaintiff’s legal submissions on behalf of the company.
• The solicitor indicated he had been unable to comply with obligations under money laundering regulations, forming part of his rationale for seeking to come off record.

Table of Precedents Cited

Court's Reasoning and Analysis

The court recognized the serious obligations of a solicitor on record, including professional duties and statutory obligations such as compliance with money laundering regulations. It emphasized the importance of allowing the solicitor to have his motion to come off record heard and determined before being compelled to continue representation in the substantive hearing.

The court noted that proceeding with the substantive hearing before the motion was resolved would place the solicitor in an unfair position, effectively forcing him to act against his stated reasons for withdrawal. This would also render the scheduled hearing of the motion in March 2023 nugatory.

Regarding the perfected order, the court scrutinized the wording, finding that terms such as “ex parte” and “suo motu” were inappropriate given the inter partes nature of the hearing and the procedural context. The court also clarified that the adjournment was intended to last until the High Court’s hearing and determination of the motion, but not to extend through any potential appeals, to avoid indefinite delay.

The court allowed correction of the order to accurately reflect the hearing events, including proper description of the solicitor’s intervention and correct numbering of the plaintiffs.

The court further emphasized that a perfected order is primarily a record of the operative order and not a detailed transcript or reasoning record, which parties may obtain separately.

Holding and Implications

The court granted the application to amend the perfected order pursuant to the slip rule under Order 28, rule 11 of the Rules of the Superior Courts.

The amended order clarified that the substantive hearing is adjourned generally with liberty to re-enter pending the hearing and final determination by the High Court of the solicitor’s motion to come off record, with the motion scheduled for hearing on 15 March 2023. The order also specified that the time-limit for appeal runs from the date of amendment (30 January 2023).

The decision ensures procedural fairness by allowing the solicitor’s motion to be properly adjudicated before the substantive hearing proceeds, preventing the solicitor from being compelled to act under objection. It also prevents indefinite delay by limiting the adjournment to the High Court’s determination, excluding appeals.

No new legal precedent was established; the ruling principally resolves procedural and drafting issues concerning the order in ongoing proceedings.