The Gazette 1980

GAZETTE

JULY-AUGUST 1980

Action by Solicitor Against Law Society Fails

An action brought by John Fanning ("the first-named plaintiff') and Noel C. Fanning, a solicitor's apprentice (apprenticed to his father, the first-named plaintiff) ("the second-named plaintiff) against the Incorporated Law Society of Ireland failed in the High Court on 27 March 1980 following a hearing before Mr. Justice Sean Butler. In his unreserved judgment delivered on that day Mr. Justice Butler held that in so far as any Order of the High Court or any freezing order (under Section 20 of the Solicitors (Amendment) Act, 1960) of the President of the High Court (Finlay P.) made affected either the plaintiffs' bank accounts they referred only to the first-named plaintiffs (solicitor's) client's money accounts and therefore the second-named plaintiff could not in any way have suffered damage. Mr. Justice Butler held that the first-named plaintifTs claim for damages for breach of his rights in natural justice, or, alternatively, breach of his constitutional rights, had not been established. The Compensation Fund Committee of the Law Society, at a meeting held on 30 March 1977, had formed the opinion that it was proper to apply to the High Court pursuant to Section 20( 1) of the Solicitors (Amend- ment) Act, 1960, to make an Order freezing the first- named plaintiffs bank accounts. A freezing order was made by the President (Finlay P.) on 1 April 1977. Section 20(1) provides as follows: CONTROL OF BANKING ACCOUNTS OF SOLICITORS "(1) Where the Society are of opinion that a solicitor or a clerk or servant of a solicitor has been guilty of dishonesty in connection with that solicitor's practice as a solicitor or in connection with any trust of which that solicitor is a trustee, they may apply to the High Court, and the High Court may make an order directing either— (a) that no banking company shall, without leave of the High Court, make any payment out of a banking account in the name of the solicitor or his firm, or (b) that a specified banking company shall not, without leave of the High Court, make any pay- ment out of a banking account kept by such company in the name of the solicitor or his firm." The first-named plaintiff claimed that this freezing order was an order which affected him adversely, (which the Court held to be true) and that it was made without notice to him and without giving him an opportunity of being heard (which on the facts the Court found was not true). The Court found that in fact both plaintiffs knew from the previous June 1976 that the Law Society was investigating the financial affairs of the first-named plaintiffs firm (Fanning & Co., 45 Gardiner Street, Dublin 1). Mr. P. J. Connolly, the Law Society's accountant, gave evidence that he did not get any reason- able co-operation from the first-named plaintiff in seeking financial and accounting information about Fanning & Company, and, as a result of this, the Law Society (through the Compensation Fund Committee) in January 1977 took a decision that the firm be formally

investigated by its accountant, and Mr. Connolly was duly appointed an authorised officer to carry out such an investigation under Regulation 20 of the Solicitors' Accounts Regulations, 1967 (S.I. No. 44 of 1967), as inserted by the Solicitors' Accounts (Amendment) Regulations, 1970 (S.I. No. 231 of 1970). The first-named plaintiff was notified of this by letter from the Law Society of 1 February 1977. However, not- withstanding this, Mr. Connolly was not able to inspect the books of the first-named plaintifTs firm. Mr. Connolly made appointments with the first-named plaintiff which were fruitless and promises were made by the first-named plaintiff which were not kept and in effect Mr. Connolly was not getting anywhere. The Director General of the Law Society (Mr. James Ivers) wrote a letter on 28 February 1977, some five weeks before the freezing order was ultimately made on 1 April 1977, the letter clearly informing the first-named plaintiff what the Society's thinking and intentions were, and stating (inter alia) that "this decision will not be pursued if you furnish the accounts and give Mr. Connolly an opportunity to check the accounts" . . . but that "if you do not co- operate and furnish the accounts, an application for a (freezing) order will be made, ex-parte". Furthermore, in reply to a written request from the first-named plaintiff whether any complaints had been made and whether any client was complaining that he had not been paid and asking for any such complaints against —Continued on page 131.

SOCIETY OF YOUNG SOLICITORS AUTUMN SEMINAR Week-end: 8/9 November, 1980 in The Talbot Hotel, Wexford

Lectures: Landlord & Tenant (Amendment) Act, 1980. Speaker: Maurice R. Curran, Solicitor. The Conclusiveness of the Register Speaker: J. Brendan Fitzgerald, Solicitor, Deputy Register, Land Registry. Insurance Claims — The Solicitor's Role? Speaker: Gerald J. A. Sheean, A.C.I.I., Claims Controller, Sun Alliance Group. Consumer Information Act, 1978, and Sale of Goods & Supply of Services Act, 1980. Speaker: James Murray, B.L., Director of Consumer Aflairs. FULL PROGRAMME AND REGISTRATION FORMS WILL BE CIRCULATED SHORTLY.

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