The High Court dismissed William Corkery’s appeal against a Solicitors Disciplinary Tribunal decision that there was no prima facie case of misconduct against solicitor Melanie Holmes.
The appeal concerned the Tribunal’s 29 October 2010 decision. Corkery had alleged that Holmes acted without his instructions, failed to keep him and his retained solicitors informed, and did not serve a notice of change of solicitor. The Tribunal rejected the allegations for lack of supporting evidence or because, even if proved, they would not amount to misconduct in the circumstances.
The dispute arose from proceedings brought by Corkery’s mother, Lelia Corkery, against him and his brother Denis, who were executors of their late father’s will. The proceedings concerned her rights in relation to the family dwelling. Corkery said he learned in August 2008 that the case had been settled in May 2004 without his knowledge.
Holmes’s affidavit said her firm had been instructed by Royal & Sun Alliance to represent the solicitors who handled the estate, with the executors’ costs and expenses to be covered. She said the firm filed a notice of change of solicitor and took over the case without receiving instructions from William Corkery, due to an administrative oversight. The case was settled in Clonmel Circuit Court on 4 May 2004 to Lelia Corkery’s satisfaction. Holmes said an apology and an offer to cover legitimate expenses were sent to Corkery.
The judgment noted that Corkery had been told by letter in April 2003 that the firm would take carriage of the proceedings, but did not object. It also noted that in November 2003 he instructed his own solicitors not to make enquiries with the firm. The Court said the lack of communication was therefore partly linked to that instruction, and that Corkery had not demonstrated prejudice or shown how his involvement would have affected the proceedings.
The Court nevertheless acknowledged that Holmes should not have filed the notice on Corkery’s behalf without his instruction, or should have served it on his then solicitors after filing. It held that this failure did not meet the legal standard of misconduct. Finding the Tribunal’s no-prima-facie-case decision appropriate, the Court dismissed the appeal.