Kirwan v O'Leary & Anor; Kirwan v O'Leary & Ors (Approved)

Factual and Procedural Background

This opinion concerns an application by the Appellant for an extension of time to appeal to the High Court against two decisions of the Solicitors Disciplinary Tribunal (the "Tribunal"). The Tribunal had found no prima facie case of misconduct against various solicitors following complaints made by the Appellant. The Appellant sought to appeal these decisions within the statutory 21-day period but the motions were issued outside this period due to procedural delays and the Covid-19 pandemic restrictions. The High Court initially struck out the appeals as out of time, but the Supreme Court allowed the Appellant leave to appeal that decision, holding that the High Court has the power to extend time for such appeals. The matter was remitted to the High Court to determine the extension of time application.

The factual background involves a property transaction dispute dating back to 2005, where the Appellant alleges that he was improperly represented by a legal executive rather than a qualified solicitor, resulting in significant disadvantage to him. The Appellant made wide-ranging allegations against the solicitors involved, including conflict of interest, forgery, perjury, failure of proper legal advice, and breaches of various statutes. The Tribunal found these complaints did not disclose a prima facie case of misconduct, basing its decision on the papers without an oral hearing.

The Appellant attempted to appeal the Tribunal's decisions by sending notices of motion and affidavits to the High Court Registrar by email and registered post within the 21-day period, but the documents were received by the Central Office just outside that period. Due to procedural issues and the pandemic, the motions were not issued until nearly two months later with leave of the then President of the High Court. Respondents subsequently applied to strike out the appeals as time-barred, and the High Court granted these applications. The Supreme Court reversed that decision and remitted the matter for further determination.

Following remittal, the Appellant sought extensions of time to appeal, which were heard by the High Court. Only three of the respondent solicitors participated in the hearing and neither consented nor objected to the extension applications, while disputing the underlying allegations. The High Court was tasked with deciding whether to grant the extensions of time to appeal the Tribunal's decisions.

Legal Issues Presented

1. Whether delivery by registered post of appeal documents constitutes the making of an appeal under s. 7(12A) of the Solicitors (Amendment) Act 1960 (as amended), including under High Court Practice Direction HC90.
2. If not, whether s. 7(12A) and (12B) of the 1960 Act (as amended) permit bringing an appeal from the Tribunal's decision that no prima facie case has been established outside the 21-day period.
3. Whether the High Court has the power to extend the time for bringing such an appeal.

Arguments of the Parties

Appellant's Arguments

• The Appellant formed a bona fide intention to appeal within the 21-day period, demonstrated by correspondence with the Registrar and timely sending of documents by email and registered post.
• The failure to appeal within the 21-day period was explicable by a factor akin to a mistake, due to the special Covid-19 arrangements and the timing of receipt of documents by the Central Office.
• The Appellant has raised arguable grounds of appeal that the Tribunal was wrong to find no prima facie case of misconduct, including issues relating to improper legal representation, alleged forgery, conflict of interest, and breaches of statutory duties.

Respondents' Arguments

• The participating respondents neither consented nor objected to the extension of time sought.
• They strenuously disputed all allegations made by the Appellant and emphasized that the application was only about whether arguable grounds of appeal existed, not about the merits of the allegations.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Seniors Money Mortgages (Ireland) DAC v. Gately [2020] IESC 3, [2020] 2 I.R. 441	Principles guiding the exercise of discretion to extend time for appeal, focusing on the balance of justice.	The court applied the principles from this case to guide its discretion, emphasizing the balance of justice and the criteria for granting extensions.
Kirwan v. O'Leary & Ors [2023] IESC 27	Clarification on when an appeal is "made" under s. 7(12A) of the 1960 Act and the High Court's power to extend time for appeal.	The Supreme Court held the appeals were out of time but that the High Court can extend time; the present court follows this ruling in granting the extension.
Éire Continental Trading Co. v. Clonmel Foods Limited [1955] I.R. 170	Three criteria guiding discretion to extend time: bona fide intention, explanation of delay akin to mistake, and arguable grounds of appeal.	The court used these criteria as a flexible guide in exercising its discretion to grant the extension.
Goode Concrete v. CRH plc & Ors [2013] IESC 39	Judicial guidance on extension of time and discretion in appeals.	Referenced as part of the jurisprudential framework underlying the principles applied in this case.
Murphy v. Law Society of Ireland [2023] IESC 28	Further elaboration on principles governing extension of time applications.	The court relied on this judgment for additional guidance on the exercise of discretion.

Court's Reasoning and Analysis

The court focused on whether the balance of justice favored granting the extension of time for the Appellant to appeal the Tribunal's decisions. It applied the three guiding criteria derived from Éire Continental and reaffirmed by the Supreme Court in Kirwan v. O'Leary & Ors and Seniors Money. The court found that:

• The Appellant had a bona fide intention to appeal within the statutory period, demonstrated by timely communications and attempts to file the appeal.
• The delay was explicable by a factor akin to a mistake, mainly due to the pandemic-related filing procedures and the timing of receipt of documents by the Central Office.
• The Appellant raised arguable grounds of appeal that the Tribunal was wrong to find no prima facie case of misconduct, although the court did not assess the merits at this stage.

The court noted that the respondents who participated neither opposed nor consented to the extension, but disputed the allegations substantively. The court emphasized that granting the extension does not imply any finding of misconduct but merely allows the Appellant to pursue the appeal on arguable grounds. The discretion to extend time was exercised in favor of the Appellant, considering the statutory context, the nature of the complaints, and the absence of demonstrated prejudice to the respondents.

Holding and Implications

The court's final decision is to GRANT the extensions of time sought by the Appellant to appeal the two decisions of the Solicitors Disciplinary Tribunal dated 8 October 2020.

The time for appeal is formally extended to 21 December 2020, the date on which the motions were issued with leave of the then President of the High Court. Directions will be given for the hearing of the appeals before a different High Court judge. The court reserves costs of the extension applications to the judge who will hear the appeals.

This decision allows the Appellant to pursue his appeals on arguable grounds but does not constitute any finding on the merits of the alleged misconduct. No new legal precedent beyond the application of established principles on extension of time is set by this judgment. The case will proceed to a substantive hearing on the appeals in due course.