Suspended solicitor fails in second court bid to block inquiry into misconduct claims

Suspended Co Roscommon solicitor Declan O’Callaghan has lost his second court attempt at blocking an inquiry into a company’s allegations of professional misconduct against him.

The Court of Appeal on Tuesday upheld the High Court’s decision to refuse his request for various orders, including one restraining the Solicitors Disciplinary Tribunal from continuing its inquiry into the complaint.

Mr O’Callaghan, of Sligo Road, Ballaghaderreen, who had practised at Pound Street in the town, sought judicial review of the tribunal’s decision to adjourn the hearing of a complaint made by Co Mayo concrete product manufacturer Nirvannna Property Holdings Ltd.

The adjournment, made so Nirvanna’s director could seek to source legal representation, was supposed to last two months, but, due to the March 2020 lockdown and then Mr O’Callaghan’s court action, the substantive hearing has yet to take place.

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Mr O’Callaghan denies the allegations against him concerning legal services provided for the sale of lands in Co Mayo 17 years ago. He set out a detailed alternative account of the disputed transaction.

Nirvanna alleges he purported to act for both vendor and purchaser, involving an alleged a conflict of interest, and provided inadequate professional services.

In his proceedings and appeal, the solicitor also challenged the authority of officers of the company, Tom and Sean Fleming, to make the complaint and Tom Fleming’s ability to make a preliminary adjournment application at the inquiry on behalf of their firm Nirvanna.

Mr O’Callaghan pointed to various legal authorities to the effect a limited company cannot be represented in proceedings by a director.

The tribunal disputed the claims and contended that allegations of “very serious” professional misconduct against Mr O’Callaghan should not be stopped.

Giving judgment on behalf of the three-judge court, Ms Justice Butler said she was satisfied the tribunal had jurisdiction to adjourn the inquiry.

To have proceeded without affording Nirvanna the opportunity to engage a solicitor, after having ascertained that it intended to do so, would have been “procedurally harsh” and contrary to the policy of the legislation that gives the tribunal its powers, she said.

The prejudice asserted by Mr O’Callaghan amounted to “no more than being unable to avail of a hoped-for advantage as a result of succeeding in its preliminary application”. Undoubtedly he suffered some inconvenience when the hearing was adjourned, and it is up to the tribunal to decide if the prejudice he now faces is such that the inquiry cannot be conducted fairly, she added.

The alleged lack of jurisdiction regarding the Flemings’ authority to make the complaint on Nirvanna’s behalf “has not been conclusively demonstrated” by Mr O’Callaghan, the judge said.

The tribunal had pointed to Mr O’Callaghan’s affidavit which noted Tom and Sean Fleming together own two-thirds of Nirvanna’s shares, and that the material before it was sufficient to satisfy itself that they were entitled to make the application.

The tribunal cannot be bound to reject a complaint at the preliminary stage because of an alleged procedural omission in the applicant’s paperwork which, if there is indeed an omission, relates to matters that are covered in the responding solicitor’s papers, the judge said.

There was some merit to the observation that the tribunal seemed to be unclear as to whether Nirvanna or the Flemings were the applicant before it, but this confusion is not “fundamental”, she added.

If a question of the Flemings’ authority to make the application remains in issue, said the judge, formal evidence about the authority can be produced at the inquiry, so it is neither appropriate nor necessary for the court to speculate about the nature of this potential evidence.

As the High Court’s Mr Justice Anthony Barr observed, it would only be appropriate to make an order of prohibition if Mr O’Callaghan established a “fundamental lack of jurisdiction” on the part of the tribunal, she said.

The court, including Ms Justice Máire Whelan and Ms Justice Teresa Pilkington, dismissed the appeal.

The High Court suspended Mr O’Callaghan’s practising certificate in July 2018. In November 2019, at a separate inquiry before the tribunal, he admitted professional misconduct arising from unlawfully retaining client funds concerning a house sale and was told to pay €10,000 compensation to the Law Society.