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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.
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.
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
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