Judgment: 2020-02-26 · Court archive

Court of Appeal dismisses solicitor misconduct appeal over lack of standing

The court held that the disciplinary application was made by Thomas Fennelly, not his nephew David, so David had no right to appeal the tribunal’s decision or pursue the appeal to the Court of Appeal.

Court of Appeal · [2020] IECA 35

Who, what, where, when and why

Who
  • David Fennelly (Appellant)
  • Adrian O’Doherty (Respondent)
  • Thomas Fennelly
  • Maurice Collins (Judge)
What

The court held that the disciplinary application was made by Thomas Fennelly, not his nephew David, so David had no right to appeal the tribunal’s decision or pursue the appeal to the Court of Appeal.

Where

No place detail is included in this summary.

When

Judgment:

Other dates in the report
  • 29 May 2019; 4 July 2018

    The SDT had dismissed the allegations on 4 July 2018, finding that none disclosed a prima facie case of misconduct. The High Court President dismissed David Fennelly’s appeal on 29 May 2019, holding that he had no legal authority to bring it on his uncle’s behalf. The Court of Appeal considered whether David had standing to challenge that decision and a later order amending it.

Why

Reasons reported in the judgment

The Court of Appeal has dismissed David Fennelly’s appeals in a solicitor disciplinary case, ruling that he lacked standing because the original application to the Solicitors’ Disciplinary Tribunal (SDT) was made on behalf of his uncle, Thomas Fennelly.

The Court of Appeal has dismissed David Fennelly’s appeals in a solicitor disciplinary case, ruling that he lacked standing because the original application to the Solicitors’ Disciplinary Tribunal (SDT) was made on behalf of his uncle, Thomas Fennelly.

The judgment, delivered by Mr Justice Maurice Collins on 26 February 2020, concerned a preliminary issue about standing. The court did not examine the merits of the allegations of professional misconduct against solicitor Adrian O’Doherty.

The SDT had dismissed the allegations on 4 July 2018, finding that none disclosed a prima facie case of misconduct. The High Court President dismissed David Fennelly’s appeal on 29 May 2019, holding that he had no legal authority to bring it on his uncle’s behalf. The Court of Appeal considered whether David had standing to challenge that decision and a later order amending it.

The Court of Appeal examined the forms used to start the SDT application. David had stated on the application form and in his affidavit that he was acting on behalf of Thomas. The application also included Thomas’s letter authorising David to complain to the tribunal about O’Doherty’s conduct. The court concluded that Thomas, rather than David, was the applicant.

The court said the statutory right to appeal the SDT’s decision belonged to the person who made the application, or the person on whose behalf it was made. That was Thomas alone. David could not appeal in his own name, even if Thomas consented or acquiesced. The court said it was unnecessary to decide whether David could have made an SDT application in his own right.

The judgment also distinguished tribunal procedure from representation in court. Although the SDT rules allowed an application to be made on another person’s behalf, that did not give the representative a right to conduct an appeal in court. The court noted that only a qualified barrister or solicitor generally has the right to represent another person before the courts, subject to limited exceptions.

The Court of Appeal affirmed the High Court order, held that David had no standing to pursue an appeal against it, and dismissed his appeals. The underlying allegations against O’Doherty were not determined in this preliminary appeal.

Read the original court judgment

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