Title:	Re: Hammond, seeking to be appointed a Notary Public
Neutral Citation:	[2016] IESC 54
Supreme Court Record Number:	22/2015
High Court Record Number:	N/A
Date of Delivery:	09/27/2016
Court:	Supreme Court
Composition of Court:	Denham C.J.
Ruling by:	Denham C.J.
Status:	Approved
Result:	Appointed

THE SUPREME COURT

1. Richard Hammond, the petitioner, and herein after referred to as “the petitioner”, brought forward a petition requesting to be appointed a Notary Public for the City and County of Cork, together with the counties adjoining thereto namely Kerry, Limerick, Tipperary and Waterford; and also requesting to be appointed a Notary Public for the City of Dublin and the administrative areas of Dún Laoghaire-Rathdown County Council, South Dublin County Council and Fingal County Council, together with the counties adjoining thereto namely Kildare, Meath and Wicklow.

2. In his petition, filed on the 14th July, 2015, the petitioner set out the facts relating to his application. These facts included that he was admitted to practise as a Solicitor in the Hillary term of 2005. He is a proprietary partner, with his spouse and fellow solicitor Joyce A. Good Hammond, at Hammond Good Solicitors in Mallow, County Cork.

3. The petitioner holds B.C.L., LL.B. and LL.M. degrees from University College Cork, a Diploma in Arbitration from University College Dublin, a Diploma in Family Law from the Law Society of Ireland, and a Diploma in Notarial Law and Practice from the Faculty of Notaries Public in Ireland.

4. The petitioner is a Fellow of both the Chartered Institute of Arbitrators and the Royal Society for the encouragement of Arts, Manufactures and Commerce, and is a member of the Society of Trust & Estate Practitioners.

5. The petitioner is also a European Trademark & Design Attorney and an Accredited Mediator (Centre for Effective Dispute Resolution).

6. The petitioner works primarily on succession law, and also specialises in insolvency and intellectual property law, with a strong interest in arbitration and mediation. He teaches in these areas at the Law School of the Law Society of Ireland, for which he also acts as an Examiner on its Professional Practice Courses and Diplomas.

7. The petitioner is a member of the Council of the Law Society of Ireland and is involved in a number of its committees, including the Probate, Administration & Trust Committee (current Vice-Chairperson), the Professional Indemnity Insurance Committee (current Vice-Chairperson), the Education Committee and the Gazette Editorial Board.

8. The petitioner has obtained a Certificate of Examination from the Faculty of Notaries Public in Ireland.

9. The petitioner filed a certificate of fitness for the Cork area, signed by six persons representative of the local business community, together with a certificate of fitness signed by six solicitors certifying as to his fitness.

10. The petitioner also filed a certificate for fitness for the Dublin area, signed by fifteen persons representative of the local business community, together with a certificate of fitness signed by fifteen solicitors certifying as to his fitness.

11. The petitioner deposed that by virtue of his qualifications and experience, he is familiar with the requirements of the law and practice in regard to the administration of Oaths, Affirmations and Declarations and has a good understanding of the law and practice in relation to those areas of business and commerce with which a Notary Public is most likely to be involved. He added that he has a good understanding of the law and practice with regard to Bills of Exchange, Promissory Notes, Bills of Lading, banking, transport carriage of goods, shipping and generally with contracts and documents of a mercantile and commercial nature in relation to which the services of a Notary Public are required.

12. The petitioner deposed that his firm, Hammond Good Solicitors, Mallow, County Cork was established as of the 1st September, 2007. The members of the firm are the petitioner and Joyce A. Good Hammond. The petitioner deposed that the nature of the practice is that they have a fully serviced public office where they provide legal services to the public. He also deposed that the firm has a public office at Portview House, York Road, Dublin 4, where the firm provides services to their Dublin client base.

13. The petitioner deposed that his role in the firm involves him actively representing and advising clients in a wide range of topics ranging from civil and criminal litigation, extradition and family law, to succession law, insolvency and intellectual property. He deposed that he is also responsible for the firm’s many clients in the non-governmental sector and is responsible for risk management and compliance with the Solicitors’ Accounts Regulations. The petitioner also deposed that he has developed a practice providing a succession law consultancy service for other firms of solicitors. And has done so for at least fifteen other firms, most of which are based in the greater Dublin area.

14. The petitioner deposed that if appointed a Notary Public, such appointment will be a convenience and an advantage for the professional Banking and Commercial community in and near the said areas and in support thereof referred to the certificates filed with the court, signed by solicitors and other business interests.

15. The petitioner deposed that if appointed a Notary Public, he will observe the Code of Conduct for Notaries Public adopted by the Faculty of Notaries Public in Ireland on the 21st November, 1986 and such other rules, regulations and bye-laws governing the professional practice and procedure of Notaries Public in Ireland, and the standards to be observed by the, as shall from time to time be made and published by the Faculty of Notaries Public in Ireland.

16. A number of affidavits were filed by David Walsh, Notary Public, Registrar of the Faculty of Notaries Public in Ireland, who was authorised by the Faculty to make the affidavit on its behalf. The Faculty represents the members of the profession of Notary Public in Ireland.

17. The Registrar pointed out that the Faculty is tasked generally with the duty of bringing to the attention of the Chief Justice matters concerning a petitioner, or an application, which the Faculty considers should reasonably and appropriately be laid before the Chief Justice when the application for appointment as a Notary Public is under consideration. I am grateful to the Faculty for bringing to my attention matters arising on applications.

18. The Faculty accepts without equivocation the personal fitness of the petitioner to be appointed Notary Public with regards to his place of business in Mallow, County Cork, being Cork City and County and the contiguous counties of Kerry, Limerick, Tipperary and Waterford. On behalf of the Faculty the Registrar deposed that:-

“Over many years the practice has evolved to include in the appointment of a Notary counties contiguous to the home county, and that practice is now almost universal, and presents no difficulty in this application.”

21. Murray C.J. delivered a Ruling in In the matter of John Hussey, on the 18th July, 2011, which related to an application by the petitioner to be appointed a Notary Public for the entire of the State of Ireland. The petitioner, Mr Hussey, was at the time of the application a Notary Public for Cork and the adjoining counties of Waterford, Kerry, Tipperary and Limerick. The petitioner argued that the tradition of the Chief Justice appointing Notaries Public for a specific limited area was out of date, and out of keeping with modern needs and requirements. The petitioner submitted that he was entitled to practise as a solicitor throughout the State, and therefore questioned why he could not practise as a Notary Public throughout the State?

22. Murray C.J. held that while there may be a great deal of sense in the petitioner’s argument, the question for him was whether he had the power to appoint a Notary for the entire State rather than specific areas within the State.

23. Murray C.J. pointed out that Ireland is one of the few countries that does not have modern legislation providing for the appointment and regulation of Notaries Public.

24. Murray C.J. referred to earlier legislation and to the Courts (Supplemental Provisions) Act, 1961 s. 10(b) pursuant to which the Chief Justice appoints Notaries Public. Of the said Act of 1961 he stated:-

“… the 1961 Act … states that the power of appointing notaries public and commissioners to administer oaths is one of the powers and functions of the Chief Justice. In exercising that function it is not a judicial function. It is an administrative function and the Chief Justice can only act within the ambit of the powers, such as they are, conferred on him or her. “

25. Murray C.J. concluded:-

“Whatever the logic of Mr. Hussey’s arguments the question is can I add to the powers of the Chief Justice a power to appoint for the entire country. I am satisfied that this is a power which was not conferred or transferred to the Chief Justice, that whatever policy reasons there may be for doing so it is not open to me to extend those powers. That is in principle a matter for the legislature. Indeed the whole provision of services by notaries public and, as I have indicated, the procedure and criteria for the appointment of notaries and the regulation of the provision of their professional services generally are very much in need of modern legislation. However as matters stand and having regard to the only statutory provision which governs the appointments of notaries and the manner in which those powers have been exercised by myself to date and my predecessors I am not satisfied that I have the power or can give unto myself the power in this administrative procedure to appoint a notary public for the entire country.”

27. On the issue as to whether the Chief Justice has the power, or can give unto his or herself the power, to appoint a Notary Public for the entire country, I agree with the reasoning and decision of Murray C.J.

28. However, I distinguish that application from this, and do not find it of assistance on the sole issue on this application.

29. Mr. Hussey made a broad approach in his application. There was no issue of his having a legal practice in any other particular county, or indeed specifically in all counties. Nor did Mr. Hussey advance any specific factual reasons for expanding his Notary Public jurisdiction to other counties. The ruling was made on a broad general application, in the absence of grounding legislation, and was refused. I do not consider that it is a precedent favouring either the petitioner or the Faculty in this application.

Application of George V. Maloney 1991
30. The application of George V. Maloney, 1991, was brought to my attention. There was a specific requirement at that time of a “needs” to be established. A petitioner had to establish that there were not enough Notaries Public in the area for which appointment was sought, to meet the needs of the local business and commerce community. In that case there were specific issues as to food products, validation by a Notary Public of random samples of the food in County Cavan, and validation by a Notary Public of the storage and exports from County Louth. It was important that it be the same Notary Public validating in both counties. In the special circumstances, the Chief Justice made the appointment of Notary Public.

31. While this appointment was made at a time when there was a “needs” requirement, in the special circumstances, the Chief Justice made an appointment for two non-contiguous counties, contrary to the general rule.

Application of Bill Holohan 2000
32. On the relevance of this application to the petitioner, the Registrar on behalf of the Faculty, stressed that at the time of his successful application in 2000, Mr. Holohan was practising in both Dublin and Cork with fully functioning public offices in both places, with staff employed by him in each location, and that the duality of such offices was recorded in the annual Law Society Law Directory. The Registrar stated that Mr. Holohan established as a fact that he was routinely, during the working week, practising as a solicitor equally between his Cork and Dublin offices.

33. The Faculty distinguished Mr. Holohan’s situation to that of the petitioner, stating as follows:-

(i) Mr. Holohan in 2000 had, as a practising solicitor, fully functioning public offices with staff employed in each location. The petitioner currently does not.

(ii) Mr. Holohan in 2000 appeared in the Law Directory as having such offices, phone and fax lines in Cork and in Dublin. The petitioner has such details only in relation to his Mallow office.

(iii) Mr. Holohan in 2000 was able to demonstrate a track record of more than a dozen years of objectively visible presence in Cork and in Dublin. The Registrar stated that the petitioner currently can not.

(iv) In a comparison of websites in 2016 Mr. Holohan identified his offices and practices in Cork and in Dublin, while, the Registrar stated, the petitioner’s website cites Mallow contact details only, with a reference to Dublin as:-

“Our solicitors are in Dublin on an almost weekly basis”.

35. In a responding affidavit the petitioner deposed, on the 29th April, 2016:-

“(1) In respect of the distinctive status of the (sic) Mr. Holohan’s firm in 2000 and your deponent’s firm in 2015, the averments of the Faculty at 9(i), 9(ii) and 9(iv) of the Registrar’s affidavit are accepted, though the inferences that the Faculty draws from these facts are contested. To the extent that the status of the firms is different, it is respectfully my belief that this represents the different legal practice environment as between 1991 when Mr. Holohan first began to work from a branch office in Dublin and 2007 when I left Dublin and moved to Cork but maintained and indeed enhanced a healthy professional presence as a practitioner in Dublin. In 1991, there was no motorway between Cork and Dublin, there was no internet, there was a very slow train service, and mobile telephony was in its infancy. In order to operate professionally in Dublin while living in Cork a branch office was a necessity. By 2007 the internet and mobile telephony had overhauled the nature of legal practice drastically and the road and rail connections between Cork and Dublin had unrecognisably improved. If your deponent was contemplating creating his current bi-located practice as of 1991 or indeed 2000 it is likely that his practice structure would mirror that of Mr. Holohan. Equally, though a matter of conjecture, it is likely that if Mr. Holohan was creating his bi-located practice as of 2007 his practice structure would mirror that of your deponent.”

“a. Both applications involve Cork based solicitors who spend a significant amount of professional time in Dublin

b. Both applications involve solicitors with a significant client base comprising other solicitors.

c. Both applications involve solicitors with a multiplicity of practice interests in common including being Fellows of the Chartered Institute of Arbitrators, being Accredited Mediators with both the Centre for Effective Dispute Resolution and the Chartered Institute of Arbitrators, being Registered Trade Mark Agents and European Trademark and Design Attorneys, and being members of the Irish Society of Insolvency Practitioners.

d. Both applications involve solicitors with published work.

e. Both applications involve solicitors who contribute regularly to Continuing Professional Development conferences and seminars throughout the country.

f. Both applications involve solicitors who contributed to the professional practice and diploma courses of the Law Society of Ireland.

g. Both applications involve solicitors, who because of their respective work practices and specialisations, enjoy a high profile within the legal profession, which is a generator of much of their respective client bases.”

“43. The Chief Justice said that he had read the papers. He said that the only objection which was being maintained in relation to this petitioner, whom he again said was “pre-eminently qualified to be appointed as a Notary Public”, and who was a petitioner “of the highest calibre, character and professional standing”, is that he would be seeking to be appointed with authority to act in his separate cities and counties. The Faculty, he said, very fairly, had drawn his attention to the situation prevailing in relation to a Notary practising in County Cavan and County Louth. He said in modern circumstances, having regard to the jurisdiction of the Court, which was conceded by the Faculty, there could not be any legitimate objection raised to an application by a suitably qualified practitioner, who held a Certificate of Competency from the Faculty itself, simply because such petitioner would seek to be appointed for non-contiguous counties, or might not, due to other professional commitments, be available at all times. The Chief Justice said that one could not require of a petitioner, that they give an undertaking to be available “at all times”. Having regard to other professional commitments, or indeed personal commitments, or personal preferences or working styles, any given professional in any profession might only be available for limited times. The Chief Justice said that if someone was seeking to engage the services of a Notary then, in the normal course they would seek to make an appointment. If such times as when the particular Notary was available was convenient for that person, then the parties might engage. If not, there were other Notaries with whom the person might engage.”

Decision
39. The jurisdiction of the Chief Justice to make appointments of Notaries Public is rooted in the papal mists of time, with very limited statutory assistance. References were made to the Notaries Public Act, 1821; s. 19 of the Matrimonial Causes in Marriage Law (Ireland) Amendment Act 1870; s. 19(3) Courts of Justice Act, 1924, and s. 10(1)(b) of the Courts (Supplemental Provisions) Act 1961, which re-enacted s. 19(2) of the Courts of Justice Act, 1924. Thus, the power of appointing Notaries Public is one of the powers and functions of the Chief Justice. I endorse the view expressed by Murray C.J. in In the matter of John Hussey, 18th July, 2011, that it is unfortunate that there is no modern legislation addressing the issue of the appointment of Notaries Public.

40. In the absence of legislation, the current practices, general rules and some cases, have been drawn to my attention.

41. As has been said over the years by my predecessors, each case has to be considered on its own circumstances, and exceptions have been made to general rules.

42. I endorse the statement of Murray C.J. made In the matter of Cormac Brown Ruling delivered on the 18th July, 2011, when he stated:-

“Each application has to be determined having regard to its own particular facts and circumstances.”

“In this instance I am satisfied that there are special reasons by virtue of the fact that he has passed the Faculty’s examination and his other qualifications and experience that the appointment can be made without, in my view, diluting or putting at risk the general standards that are expected of Notaries.”

44. The application of George V. Maloney, 1991, may be distinguished also as, at that time, there was a requirement of “needs” to be met. This was met in that application, but it is no longer a factor for consideration, owing to the Practice Direction of 25th January, 2006. However, it is noteworthy, that the Chief Justice had no difficulty in making an appointment of a Notary Public to two non-contiguous counties.

45. The application of Bill Holohan, 2000, is the most relevant precedent. The question arises whether this application is similar to that of Bill Holohan, so as to fall within the precedent; or whether there are special circumstances warranting such an appointment?

46. It is clear that when making Rulings on the issue of the appointment of Notaries Public it has been the practice for a Chief Justice to follow previous decisions, practices and Rulings.

47. It has been, and is, the general rule that the appointment of a Notary Public is made to a county and contiguous counties.

48. However, on occasion a Chief Justice has found that there are special circumstances, sufficient to warrant an exception to the general rule. Thus, in Maloney the Chief Justice found that there were “needs” (no longer a relevant factor), and went on to make an appointment of the Notary Public in the circumstance. It is a theme in the jurisprudence that Notaries Public will not be appointed to non-contiguous counties, unless there are special factors.

49. Special factors were identified in the Holohan application.

50. I am satisfied that special factors may be identified in this application also. They include:-

(i) The Faculty accepts without equivocation the personal fitness of the petitioner to be appointed a notary public. It is the issue of the appointment to non-contiguous areas that is raised by the Faculty.

(ii) I accept the evidence of fact offered by the petitioner in his affidavits.

(iii) I accept the evidence of fact offered by Bill Holohan in his affidavits.

(iv) I accept the evidence of the petitioner that he was in Dublin on the cited 128 days in 2015. I accept his analysis that he, in essence, spent some part of half his working days in 2015 in Dublin, the other half being in Mallow.

(v) Owing to the nature of his practice, the petitioner has a significant client base that is comprised of other solicitors.

(vi) I am satisfied that there are parallels to be drawn with the Holohan application, namely:-


(a) Both relate to Cork based solicitors who spend a significant amount of professional time in Dublin,

(b) Both have a significant client base which is other solicitors,

(c) Both have interests including being Fellows of the Chartered Institute of Arbitrators, both are accredited Mediators with the Centre for Effective Dispute Resolution, both are Accredited Mediators with the Chartered Institute of Arbitrators, both are Registered Trademark Agents, both are European Trademark and Design Attorneys, both are members of the Irish Society of Insolvency Practitioners.

(d) Both the petitioner and Mr. Holohan have a significant amount of published work.

(e) Both are significant contributors to the Law Society and the local Bar Associations.

(f) Both have a high profile within the solicitors’ profession, because of the nature of their respective specialised work, which is a significant client base.

52. Further, I am satisfied that in the specific circumstances the appointment should be made.

53. Consequently, I appoint the petitioner as Notary Public for (i) The City and County of Cork, together with the counties adjoining thereto, namely Kerry, Limerick, Tipperary and Waterford, and (ii) The City of Dublin and the administrative areas of Dun Laoghaire – Rathdown County Council, South Dublin County Council and Fingal County Council, together with the counties adjoining thereto namely Kildare, Meath and Wicklow.