The Court of Appeal has dismissed solicitor Barry Sheehan’s appeal against a finding of professional misconduct arising from his threat to destroy former clients’ files unless they made an offer towards a bill of costs that he had failed to recover in court.
The judgment, delivered by Ms Justice Costello on 26 March 2020, upheld the High Court’s decisions on both the misconduct finding and Sheehan’s challenge to the Tribunal’s jurisdiction.
Sheehan had acted for Bernard and Viola Bingham in a medical negligence claim following the death of their son. After the retainer ended, he sought €37,725.44 in fees and outlays. The Circuit Court dismissed his recovery claim in 2012, and he later withdrew his appeal to the High Court. The Circuit Court also dismissed the Binghams’ counterclaim, which had sought, among other things, delivery of their files.
In June 2014, after the Binghams objected to destruction of the files, Sheehan emailed them saying he would arrange to destroy them and was prepared to give them “one final opportunity” to make an offer in respect of his bill. The Tribunal found that this was a threat to destroy the files to pressure them to pay. It found him guilty of misconduct on that allegation, but not guilty on a separate allegation concerning his refusal to return or provide access to the files.
The Tribunal censured Sheehan, ordered him to pay €5,000 to the Compensation Fund and ordered him to pay the Binghams up to €750 for their attendance, with the amount to be taxed if they could not agree it.
The Court of Appeal held that, after his recovery claim failed and his High Court appeal was withdrawn, Sheehan was no longer entitled to recover fees or outlays covered by that claim, or to assert a lien over the files on that basis. It said the files were the Binghams’ property and he could not destroy them without their consent. The court agreed that his email linked a demand for payment with a threat to destroy files, and that this amounted to professional misconduct.
The court also rejected Sheehan’s argument that the Tribunal lacked jurisdiction to hear the Binghams’ third complaint. It held that a challenge alleging a total lack of jurisdiction had to be brought by judicial review, rather than through the statutory appeal on the merits. It further upheld the High Court’s conclusion that Sheehan had acquiesced in the Tribunal proceeding and waived his later challenge. The Court of Appeal dismissed the appeal.