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President of High Court dismisses solicitor's appeal over misconduct findings

The President of the High Court has dismissed an appeal by a solicitor over findings of misconduct against him over a threat to destroy files belonging to two clients.

Mr Justice Peter Kelly also upheld a €5,000 fine imposed by a Law Society Solicitors' Disciplinary Tribunal (SDT) on Barry Sheehan, Marlboro Street, Cork.

The judge also awarded costs of the appeal against Mr Sheehan but put a stay on them, and on the €5,000 fine, for 21 days in the event of an appeal.

The judge affirmed a censure imposed on Mr Sheehan by the SDT which said his conduct was "morally culpable of a disgraceful kind".

The case arose out of a dispute between Mr Sheehan and Co Louth couple, Bernard and Viola Bingham, who had sued the Mater Hospital for alleged misdiagnosis of their 16-year-old son, Mirek, who died in the hospital on December 31, 1999.

That case was eventually struck out on grounds of delay.

The Binghams had retained a number of firms of solicitors to act for them in that case, parting company with each of them in turn, Mr Justice Kelly noted when dismissing Mr Sheehan's appeal.

In 2006, Mr Sheehan took on the Binghams' case but a dispute arose over payment of fees in their case against the Mater.

Mr Sheehan sued the couple for €37,725 fees and they brought a counter-claim against him for professional negligence and breach of contract. Both those cases were dismissed.

The Binghams made a complaint to the Law Society saying Mr Sheehan was abusing his position by threatening to destroy the entire file in their Mater case unless the couple settled his fees bill. They wanted the file so they could appeal the Mater case to the Supreme Court.

Following hearings before the SDT in 2015 and 2016, the tribunal found he had wrongly threatened them with the destruction of files in what was a deliberate act to force them to give him some money for the work he did on their behalf. This was also in spite of the fact his claim for those legal costs had already been dismissed by the Circuit Court, the SDT said.

The SDT found him guilty of professional misconduct.

Mr Sheehan appealed that decision to the president of the High Court, challenging its jurisdiction, among other things.

In his ruling on that appeal today, Mr Justice Kelly said Mr Sheehan had been alive to his claim the SDT was statutorily precluded from conducting the hearing as far back as 2014.

However, at no stage did he take any steps to bring judicial review proceedings, the judge said.

Rather, he allowed the SDT hearings to proceed on its merits over many days. When that gave rise to an adverse finding against him, he then exercised his right of appeal to the High Court, including on the jurisdictional basis, Mr Justice Kelly said.

The jurisdictional issue should have been tested through judicial review and having failed to do so previously, he cannot now be heard on that topic, the judge said. He dismissed the appeal.

He also told Mr Bingham, who represented himself and his wife, the court had no jurisdiction to deal with the issue of whether or not Mr Sheehan had returned the full file.

He told the court previously that he had returned the full file and that was now a matter of separate dispute between the Binghams and Mr Sheehan, the judge said.

He also awarded the Binghams €750 for out of pocket expenses against Mr Sheehan.