The Gazette 1992

GAZETTF

OCTOBER 1992

was particularly undesirable and that it was unsatisfactory that questions of status should be shrouded in uncertainty. The wife appealed. The Supreme Court (Finlay CJ, Griffin, Hederman, McCarthy and O'Flaherty JJ) allowed the appeal and granted the decree of nullity. The Court held that the capacity of one of the parties, by virtue of a homosexual nature, to form or maintain a normal marital relationship with each other was a valid ground for nullity. The Court also held that the recognition by psychiatrists of the existence of a homosexual nature and inclination, which was not susceptible to being changed, made it a necessary and permissible development of the law of nullity. In certain circumstances, the Court concluded that the existence in one party to a marriage of any inherent and unalterable homosexual nature could form a proper legal ground for annulling the marriage at the instance of the other party to the marriage in the case, at least where that party had no knowledge of the existence of the homosexual nature. McCarthy J also considered that the burden of proof required of a petitioner for nullity of marriage was on the balance of probabilities.

Lardner J gave an example of its exercise as found In the Matter of a Solicitor 53 ILTR 57 (1919) where a solicitor for a vendor gave a signed undertaking to a purchaser of land already registered in accordance with^ the Local Registration of Title Act, 1891 that in consideration of the purchaser paying the balance of the purchase money to him, he would have all the incumbrances affecting the property at the date of the sale, or found to affect the property up to registration of the deed of transfer, effectually released and the property discharged therefrom by all proper and necessary parties. The solicitor failed to observe the undertaking as to part on the grounds that it was contrary to the Act, useless and unnecessary. O'Connor MR was quoted by Judge Lardner as follows: " I n my opinion the vendor's solicitor is bound to carry out his undertaking. The vendors not being in a position to close on a particular date induced the purchaser before the title was fully made out to pay them the balance of the purchase money and by doing that the purchaser incurred a very considerable risk; but acting on the faith of the agreement or undertaking given by the solicitors for the vendors he paid over the balance." It was argued in the High Court in the IPLG case that this jurisdiction no longer existed and that a solicitor's undertaking was now only enforceable on the same terms as any other contractual obligation. It had been submitted on behalf of the defendants that in Ireland the re- organisation of the disciplinary provisions in relation to solicitors in Part III of the Solicitors' Act, 1954 had been held unconstitutional and that relevant provisions had been replaced by the Solicitors' Act, 1960 which does not provide that solicitors are officers of the court. The Act provided for the appointment of a Disciplinary Committee of Solicitors by the President of the High Court. Section 7 (1) provided as follows: "An application by another person or by the Society for an inquiry into the conduct of a solicitor on the ground of alleged misconduct shall,

subject to the provisions of this Act, be made to and heard by the Disciplinary Committee . . . . " The judge also said that provision was made for the holding of inquiries and for the Disciplinary Committee to embody its findings in a report to the High Court and section 8 conferred jurisdiction on the Court to make certain orders in respect of any such report. The judge noted that these provisions relating to an inquiry by the Disciplinary Committee, a report to the High Court and for the Court to make Orders on the report were all concerned with cases where "an application was made for an inquiry into the conduct of a solicitor . . . ." Section 7 (1) of the 1960 Act states that such application must be heard by the Disciplinary Committee. It is not provided anywhere that where the conduct of a solicitor is alleged to constitute a civil or criminal wrong, a breach of contract or of trust, the ordinary legal procedures or remedies are not available to be pursued by a complainant. This is so although "misconduct" which may be subject of a report to the Disciplinary Committee was given a broad meaning (see section 3) and may include for example a felony or misdemeanour. Lardner J stated that he was led to the conclusion that the disciplinary code and procedure by inquiry before the Disciplinary Committee was instituted to provide a new procedure by which the Law Society might exercise internal discipline in the profession subject to the control of the Court and as an additional provision to the existing civil and criminal jurisdiction and procedures available to complainants. He stated that nowhere does the 1960 Act expressly provide that the inherent jurisdiction of the court to discipline its officers shall terminate or be replaced by the new provision nor did he find any necessary implication that this was so intended. The submission that because the 1954 and the 1960 Solicitors' Acts contained no provision that solicitors were to be or shall be officers of the 317

Jurisdiction of High Court to Discipline Solicitor Concerning an Undertaking

The status in law of a solicitor's undertaking was considered by the High Court in the IPLG Limited case, an unreported judgment delivered by Lardner J on March 19, 1992. The plaintiffs, inter alia, invoked the jurisdiction of the High Court to discipline solicitors as officers of the court. Lardner J stated that it was admitted that the jurisdiction to discipline solicitors as officers of the court existed prior to 1920 in Ireland.