The High Court has quashed a Law Society committee’s decision to refer solicitor Denis McMahon to the Solicitors Disciplinary Tribunal, finding that the committee failed to follow fair procedures and did not take the steps required to try to resolve an overcharging complaint.
Mr Justice Herbert delivered judgment on 10 July 2009 in McMahon’s judicial review challenge to the Complaints and Client Relations Committee’s decision of 26 September 2007. The decision had sought an inquiry into alleged misconduct. The court granted the relief sought and set the referral decision aside. It did not decide whether McMahon had overcharged his former client or whether he had committed misconduct.
The complaint arose from a personal injuries claim. The client, identified in the judgment as M.O’S., said he believed the case had settled for €22,000 and was asked to endorse a €3,000 cheque to McMahon. McMahon said the settlement was €25,000 and that the client had authorised the deduction. He repaid the €3,000 in November 2005 without admitting wrongdoing. The client later complained to the Society, including about the demand and how the settlement and costs had been handled.
Justice Herbert found that the complaint was about alleged overcharging and fell under section 9 of the Solicitors (Amendment) Act 1994. That section required the Society to investigate and take all appropriate steps to resolve the dispute by agreement. The judge found no evidence that the committee tried to bring the parties together to reach a compromise; after exchanging correspondence and obtaining McMahon’s files, it moved to consider possible misconduct. The repayment did not, in the judge’s view, end the dispute the committee was required to address.
The judge said the committee could investigate possible misconduct that emerged while properly examining the overcharging complaint. But it first had to tell McMahon that it was considering general misconduct, identify the concerns, allow reasonable time for advice and a response, and then decide whether to seek a tribunal inquiry. The committee had not done so. The judge also found that reasons should have been given when the referral decision was made; reasons supplied later could not cure that omission.
The ruling concerned the committee’s process, not the merits of the allegations. The court separately rejected the Society’s objections that McMahon had applied too late and had failed to make candid disclosure when seeking leave for judicial review.