The Supreme Court has ruled that the High Court can extend the time for an appeal against a finding by the Solicitors Disciplinary Tribunal that there was no prima facie case of misconduct. It set aside a High Court order dismissing Brendan Kirwan’s appeals as out of time and remitted the matter for further determination.
The Court held that the appeals were made outside the statutory 21-day period. Kirwan received the Tribunal’s decisions on 9 October 2020. The Court found that the deadline fell on 29 October. Although copies of his appeal papers were emailed to the High Court registrar that day, the rules did not permit filing by email. The original papers sent by registered post arrived at the Central Office on 30 October, one day after the deadline.
The Court said an appeal is made when the required notice of motion and affidavit are issued by the High Court Central Office. A COVID-era practice direction permitted filing by registered post, but the papers could not be treated as filed before they were received. The Supreme Court therefore rejected the argument that the appeals had been made in time.
However, the Court held that the wording of the Solicitors Acts did not clearly exclude the High Court’s power to extend the deadline. It said the statutory appeal engaged Kirwan’s constitutional right to litigate and that the time-limit provision should be strictly construed. In the particular context of the court’s role in solicitor discipline, the Court concluded that the High Court could extend time in an appropriate case.
The Supreme Court did not grant an extension or decide whether one should be granted. It remitted the case to the High Court to consider the matter under the applicable rules and principles, including whether there was a bona fide intention to appeal within time, whether the delay was explained by a factor akin to mistake, and whether there were arguable grounds of appeal.
The underlying complaints concerned Kirwan’s dealings with solicitors over a proposed property transaction. He alleged, among other things, that he had been misled about the role of a legal executive and that the transaction documents did not reflect the agreement he said he had reached. The respondents disputed his allegations. The Tribunal had found on the papers, without an oral hearing, that neither complaint disclosed a prima facie case of misconduct. The Supreme Court stressed that it was deciding only whether the appeals could proceed; it did not determine the allegations themselves.