The Court of Appeal has rejected solicitor Cormac Lohan’s appeal over a disciplinary tribunal’s decision to admit evidence gathered by two Law Society accountants who inspected his practice records.
The appeal concerned a preliminary ruling in an ongoing disciplinary inquiry, not the outcome of the underlying misconduct allegations. The court upheld the High Court’s refusal of judicial review, finding that the accountants were validly authorised and that the tribunal had acted fairly in deciding the preliminary issue.
The Law Society appointed the accountants in 2016 to inspect Lohan’s accounts and records. Their appointment memoranda contained an acknowledged error in the first paragraph, referring to a subsection that did not exist. The second paragraph identified the correct statutory provision and authorised them to inspect his records to check compliance with the Solicitors Accounts Regulations.
Lohan argued that the error invalidated the appointments and that the accountants’ evidence should therefore be excluded. He also challenged the tribunal’s handling of his objection, including its preparation of a draft ruling before hearing further oral submissions in March 2020.
The Court of Appeal held that the memoranda had to be read as a whole. The clear second paragraph made the written authorisation valid, and the mistaken reference in the first paragraph did not invalidate it. The court distinguished the case from challenges to search warrants, which can authorise forced entry and seizure. The accountants had no power to force entry, and the court found no constitutional right of Lohan’s had been breached by their inspection.
The court added that even if the appointments had been invalid, the tribunal could admit the accountants’ evidence. Under the approach in an earlier Supreme Court case, evidence in disciplinary proceedings should not be excluded without deliberate and knowing misbehaviour. The court found no evidence of such conduct; it described the statutory-reference error as typographical and inadvertent.
On fair procedures, the court found that the tribunal heard the additional oral submissions, considered them and amended its draft before delivering its ruling. It said the ruling gave adequate reasons for this preliminary decision. The civil standard of proof, the balance of probabilities, applied to the appointment issue, rather than the criminal standard urged by Lohan.
The court also rejected Lohan’s challenge to the High Court’s award of costs to the Law Society. It upheld the High Court’s refusal of judicial review and rejected the appeal. The court stated its provisional view that the Tribunal and the Law Society were each entitled to their appeal costs, while allowing Lohan to seek a short hearing on that costs question.