Judgment: 2005-02-15 · Court archive

Supreme Court dismisses solicitor’s appeals over freezing orders and disciplinary case

The court upheld the refusal to lift 1991 orders, extend the deadline to appeal a misconduct finding, or stop the Law Society’s application to strike the solicitor off the roll.

Supreme Court ·

Who, what, where, when and why

Who
  • Elio Malocco (Respondent)
What

The court upheld the refusal to lift 1991 orders, extend the deadline to appeal a misconduct finding, or stop the Law Society’s application to strike the solicitor off the roll.

Where

Places mentioned in the report

  • Allied Irish Banks
When

Judgment:

Why

Reasons reported in the judgment

The Supreme Court has dismissed three appeals by solicitor Elio Malocco concerning orders freezing bank accounts, a time limit for challenging a disciplinary finding, and a Law Society application to remove him from the roll of solicitors.

The Supreme Court has dismissed three appeals by solicitor Elio Malocco concerning orders freezing bank accounts, a time limit for challenging a disciplinary finding, and a Law Society application to remove him from the roll of solicitors.

In a judgment delivered on 15 February 2005, Mr Justice Kearns held that the 1991 freezing orders could cover both the solicitor’s personal accounts and accounts opened after the orders were made. He rejected Malocco’s argument that about €55,000 in two Allied Irish Banks accounts should be released because the money came from rent on property he owned and the accounts were opened after the orders.

The court said section 20 of the Solicitors (Amendment) Act 1960 allowed orders affecting accounts in a solicitor’s or firm’s name. It also said excluding later accounts could undermine the statutory purpose of preserving assets for potential client claims and the Law Society’s compensation fund. The court acknowledged the orders’ “oppressive nature”, but noted that Malocco had not sought a payment for living expenses or other necessities until an application shortly before the appeal hearing. The appeal against refusing to discharge the orders was dismissed.

The second appeal concerned Malocco’s request for more time to appeal a 2000 Disciplinary Tribunal finding of misconduct. He said he had intended to appeal while pursuing judicial review. The Supreme Court concluded that he had chosen judicial review instead, and that the proposed appeal grounds had been raised or could have been raised in those proceedings. It also found no relevant mistake that would justify extending time. The refusal to extend the deadline was upheld.

The third appeal sought to stop the Law Society’s 2000 application to strike Malocco off the roll, alleging delay, prejudice and double jeopardy. The court found the delay explicable in light of Malocco’s whereabouts being unknown, difficulties serving him, and his request that disciplinary proceedings wait until his criminal case concluded. It also found that the claimed prejudice from unavailable witnesses had not been sufficiently particularised. The court held that the proceedings were professional discipline, not criminal proceedings, and rejected the double jeopardy argument.

The judgment records that Malocco had been convicted in 1993 on six counts relating to dishonesty in his solicitor’s practice; his criminal appeal was rejected in 1996. The Supreme Court’s 2005 decision dismissed the appeals before it. It did not itself determine the Law Society’s application to strike him off the roll.

Read the original court judgment

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