Binghamsdtfinalsubmission by Liam Ó Gógáin

SOLICITORS DISCIPLINARY TRIBUNAL HEARING HELD BEFORE THE SOLICITORS DISCIPLINARY TRIBUNAL AT THE FRIARY, BOW STREET, DUBLIN 7 RECORD NO. 9990/DT113/14 CASE OF: BERNARD & VIOLA BINGHAM v BARRY SHEEHAN INTRO Following the death of our sixteen year old son Mirek at the Mater hospital on the 31st December 1999, we decided to pursue a civil case for medical negligence. Following the loss of the civil case in the High Court for inexcusable and inordinate delay and the granting of the Respondent, solicitor Mr Barry Sheehan’s application to come off record, we decided to appeal the judgment as lay litigants to the Supreme Court, in order to reinstate the civil case, so that we could obtain answers as to how Mirek died and closure. Mr Barry Sheehan refused to return the file or grant us access to the file for the purpose of the appeal and threatened to destroy our file. For a legal professional and officer of the court to knowingly obstruct our access to the Courts, is a disgrace on the profession, moral turpitude and below the standard one would expect from a legal professional. Failure to handover a file is a conduct issue, covered by the definition of misconduct in s.3 Solicitors (Amendment) Act, 1960 as amended by s.7 Solicitors (Amendment) Act, 2002

SECTION A Submission in relation to the Burden of Proof. As Lay Persons making a complaint against a solicitor to the Solicitors Disciplinary Tribunal, we are shocked to have only been made aware at the final hearing on 6th October 2015, that the Burden of Proof which we must meet is the Criminal Standard of Beyond Reasonable Doubt, rather than the Civil Standard of the Balance of Probabilities. We submit that compared to the fact that when unsuccessfully suing us for claimed costs in the Circuit Court, the Respondent Solicitor, Mr Barry Sheehan was only required to prove his claim on the Balance of Probabilities. It appears to us (lay persons) that this Criminal Standard applies specifically to the Legal and Medical Professions. If, for example we were to take an action for professional misconduct against a Chartered Engineer, or Accountant, or Architect, we may only have to face the Balance of Probabilities standard. In terms of Service Quality Assurance, this discrimination in Standards clearly suggests blatant protectionism of legal and medical professionals as a deeply rooted culture value. However, if one is to accept that this higher burden of Proof for solicitors has an honourable rationale, we submit that this added protection for solicitors is inextricably tied to an expectation of a standard of professional integrity and conduct which is commensurately higher than other professions who are less protected by the lower standard of the Balance of Probabilities. One of those commensurately higher expectations of professional conduct which flows from the imbalance of power and knowledge in terms of the Law, which inherently exists in a conflict between a solicitor and his lay client, is that of Noblesse Oblige ( One must act in a fashion that conforms to one's position, and with the reputation that one has earned.) . The Respondent Solicitor, Mr Barry Sheehan was cognisant of our family trauma, which was at the core of our engagement of him. His continued harassment of us for years, which continues through to the present in terms of threatening to destroy our files (where we were in fear of losing all data which we would need to proceed further with our case), the long term personal stress he has caused us by dragging us through the Circuit and High Courts, in a hopeless and fruitless failed claim for costs, serves only as an embarrassment to the concept of Noblesse Oblige and shames the professional reputation of all Professional Solicitors Another aspect of this standard of Conduct flows from the obligations of Cognisance on the Respondent Solicitor, Mr Barry Sheehan as a professional solicitor, most particularly when operating in his own field of professional expertise, namely the Law. In terms of Cognisance, the Respondent Solicitor, Mr Barry Sheehan must be presumed to know and be aware of the legal weight and significance of a Circuit Court’s dismissal of his claim for costs, in terms of obviating any excuse for claiming a lien on our files based on unpaid costs. 2

The Respondent Solicitor, Mr Barry Sheehan must be presumed Cognisant of his misconduct in preventing us proceeding with an appeal to the Supreme Court by claiming to have a valid lien on our files. The Respondent Solicitor, Mr Barry Sheehan must be presumed to be Cognisant of the Legal and Contractual Significance of a “ No Foal, No Fee ” contract (noting Mr Justice Hanna’s description of that contract being a Four Walled Contract without an Exit Door). In spite of his presumed Cognisance of the above elements, the Respondent Solicitor, Mr Barry Sheehan has used his more powerful position and professional advantages along with being Cognisant of our vulnerabilities and limitations, in terms of our lay person legal knowledge limitations (as exemplified by our not even knowing that the Burden of Proof is the Criminal Standard in a complaint for professional misconduct), our limited finances and personal unresolved trauma of losing our son and brother, to drag the issue out, perhaps in the hope of wearing us out and us giving up. This much higher Burden of Proof that we are faced with in prosecuting our complaint, is further significantly heightened by our being disadvantaged in terms of the Principle of Equality of Arms. Firstly, we are competing in LAW on unequal terms, the Respondent Solicitor, Mr Barry Sheehan being a Professional Solicitor, while we are only lay persons. Secondly, having been our solicitor, the Respondent Solicitor, Mr Barry Sheehan had insider knowledge of our vulnerabilities, including our emotional trauma in light of the death of our deceased son and brother and our limited knowledge of the Law and procedures (which is precisely why we engaged him to provide that legal knowledge) and most vitally he is cognisant of our meagre and further depleted financial resources (which is why we needed a “No Foal, No Fee” contract in the first place). In fact it would be ironic, if it were not so serious, to note that us not having the files that the Respondent Solicitor, Mr Barry Sheehan has refused to return to us, also impacts us negatively in prosecuting this complaint and in seeking to engage another Solicitor to advise us in this matter. When applying the Criminal Standard of Beyond Reasonable Doubt to this complaint, we submit that the term “Reasonable” is to be applied as represented by the “Man on the Clapham Omnibus”, as against the rarified sensibilities of reasonableness that may exist among legal professionals. In the ensuing sections we will address the two specific complaints elements that were accepted for consideration by the Solicitors Disciplinary Tribunal, points 22 and 27, setting out where 3

those complaints are proven beyond reasonable doubt and also establish why these proven points are Professional Misconduct as per “Man on the Clapham Omnibus”.

SECTION B Point 22 Point 22 "The Respondent, solicitor Mr Sheehan, is abusing his position by threatening to destroy the entire file unless we settle his alleged bill of costs, despite a Circuit Court Order dismissing his claims." 1. We had a contract further to Section 68 of the Solicitors Amendment Act 1994 with the Respondent, solicitor Mr Barry Sheehan, which beyond reasonable doubt is an unequivocal “No Foal, No Fee” contract. (See Exhibit 1 ) 2. The Respondent, solicitor Mr Barry Sheehan, on three distinct occasions in writing stated that he was going to destroy our files and he restated that as being a “FACT” in his sworn oral evidence to the Solicitors Disciplinary Tribunal hearing on the 6th October 2015. (See Exhibit 2 ) 3. Do we owe him money? The Respondent, solicitor Mr Barry Sheehan sued us in the Circuit Court for his costs and after ventilating his arguments, against us as unresourced lay litigants, his claim was rejected without equivocation. He then further appealed this rejection of his claim for costs to the High Court. During that hearing there were two brief adjournments. The first one was recommended by Judge Hanna after telling Mr. Sheehan and his counsel that Mr. Sheehan had entered into a four walled contract without any apparent exit door. The second brief adjournment was sought by Sheehan’s counsel after the judge had reiterated the fundamental problem of the four walled contract with no get out clause. sheehan then returned and withdrew his appeal. This matter that Mr.Sheehan has no legal basis for claiming costs against us is settled and final. As a professional solicitor, we submit that he must know and be Cognisant of that settled fact and of the consequential obligation on him to return our files to us which flows from that settled court judgment. (See Exhibit 3 ). 4. The Respondent, solicitor Mr Barry Sheehan had no good reason to terminate our Section 68 Letter of Contract. Mr Barry Sheehan in his own sworn evidence on affidavit and to the Tribunal hearing on the 6th October 2015, claims that we refused to put him in funds and that this constituted good reason to terminate our contract. In our sworn evidence, we have provided evidence beyond reasonable doubt that we were not terminating our instructions and that we were prepared to make available the balance of funds to Mr Barry Sheehan. Therefore, Mr Barry Sheehan had no good reason to terminate our Section 68 Letter of Contract. (See Exhibit 4 ) 5. In terms of obviating any excuse that on three distinct occasions in writing (on the 9th, 19th and 25th June 2014, when our appeal to the Supreme Court was still pending),the Respondent, solicitor Mr Barry Sheehan stated that he was going to destroy our files and that he restated that as being a “FACT” in his sworn evidence to the Tribunal on the 6th 5

October 2015, and in terms of Cognisance, the Respondent Solicitor, Mr Barry Sheehan, must be presumed to know and be aware of the Law Society’s Code of Conduct, Law Society’s Technology Committees Guidelines and the Data Protection Act in respect of the retention and destruction of client’s files or client’s personal data. (See Exhibit 1 0).

SECTION C Point 27 Point 27 "Mr Sheehan's refusal to return the file or grant access to the file for the purpose of the Supreme Court Appeal : (b) is professional misconduct. 1. Beyond reasonable doubt, from the 22nd December 2008, the Respondent, solicitor Mr Barry Sheehan confirmed by email that he was aware and Cognisant, that we were appealing the decision of the High Court in respect of Mirek’s civil case and that we would require the file for the purpose of the Supreme Court appeal, but was refusing to return the file or grant access to the file for the purpose of the Supreme Court appeal as his response to our request for the file was that he was exercising a lien on our files and that given the time limit to lodge an appeal, it was in our own interest to revert to him with an offer.

Mr Barry Sheehan was also informed of our appeal to the Supreme Court when the Law Society sent him a copy of our complaint to them on the 13th January 2009, where on two occasions in that letter, we stressed the urgency of obtaining the file for the purpose of lodging a Supreme Court appeal. (See Exhibit 5 ) 2. Following our complaints to the Law Society (See Exhibit 5) , which were continually contested by the Respondent, solicitor Mr Barry Sheehan, he lodged a Civil Bill for debt against us in the Circuit Court. During this time, the Respondent, solicitor Mr Barry Sheehan did not return the file or grant us access to the file to enable us to further proceed with the Supreme Court appeal. Mr Barry Sheehan’s Civil Bill was dismissed. Mr Barry Sheehan appealed the Circuit Order in the High Court, but he withdrew his appeal on the morning of the high court hearing (See Exhibit 6 ) and this matter is now settled in Law. With total disregard for the Circuit Court Order, Mr Barry Sheehan continued to exercise a lien on our file and demand payment and denied us access to the file. Following the dismissal of Mr.Sheehan’s claim, on the 25th April 2013, we requested the medical records from Mr Barry Sheehan, but he refused. (See Exhibit 7 ). We have proven beyond reasonable doubt that from the 22nd December 2008 until we withdrew our Supreme Court appeal on the 15th September 2014, Mr Barry Sheehan continued to exercise a lien on our file for no good reason.

3. We would also refer to a number of High Court precedents which clearly indicate, that irrespective of whether or not, a solicitor is rightly or wrongly exercising a lien on a client's file, the client's case and access to justice is paramount and overrides the solicitor's lien. (See Exhibit 11 ) 7

4. Beyond reasonable doubt and for no good reason, the Respondent, solicitor Mr Barry Sheehan refused to return and grant access to our file and on the 15th September 2014 we withdrew our Supreme Court appeal, having being continually refused access to the file, we made a decision to withdraw the appeal, on the basis that the Defendants would likely argue that there was inexcusable and inordinate delay in bringing the appeal (See Exhibit 8 and Exhibit 9 ).

SECTION D In Sections B and C above we submit that we have proven the actual conduct which we complained of. We now wish to address the issue as to why this conduct is professional misconduct in terms of the expectation that an average client should reasonably expect from a professional solicitor as determined by the reason of the “Man on the Clapham Omnibus”. For the purposes of setting context, we submit that the relationship between Solicitor and Client, as with the relationship between Doctor and Client, is unique in terms of the high level of trust by the client. Clients are encouraged and expected to provide deep disclosure to an invasive level not required from dealings with most other professions. In both of these scenarios, the client is literally putting their life’s trust in the hand of these professionals, who are accorded highly respected societal status based on their presumed professional integrity and quality of work. In their dealings with their solicitor, clients will typically have laid bare many of their vulnerabilities and weaknesses. In the event of a subsequent conflict arising between a solicitor and his client (as in our present case), the solicitor has, as a result of the earlier disclosure, insider information which can seriously disadvantage a complainant client. In the consideration of the nature of a professional misconduct complaint we submit that this aspect has a core significance. In the case of our complaints against Mr. Sheehan, we submit to have proven beyond reasonable doubt that he refused to return our files or give us access to our files for the purpose of the Supreme Court appeal and threatened to destroy them. That he has no legal basis for claiming we owe him money and that in withholding our files he inhibited our capacity to progress our case to the Supreme Court. On top of these proven facts, we submit, from a Professional Conduct Standards expectation, that Mr. Sheehan must be presumed to have been Cognisant of the Law and procedures and the implications in terms of a “No Foal, No Fee” contract, his obligation to return our files and of his stymieing our attempts to progress our case to the Supreme Court through his wrongful lien on our files. These actions by him, we submit, can only be considered as acts of Commission with Cognisance as against Omission based on Ignorance of Law and Legal procedure. Mr.Sheehan referenced the interpretations below for defining Professional Misconduct: "(1) Conduct which is infamous or disgraceful in a professional respect is professional misconduct; (2) Conduct which would not be infamous or disgraceful in any other person, if done by a solicitor in relation to his profession, that is, with regard either to his clients or to his colleagues, may be considered as infamous or disgraceful conduct in a professional respect; 9

(3) Infamous or disgraceful conduct is conduct involving some degree of moral turpitude, fraud or dishonesty; (4) That a person wrongly but honestly forms a particular opinion cannot of itself amount to infamous or disgraceful conduct in a professional sense; (5) Conduct which could not be properly characterised as infamous or disgraceful and which does not involve any degree of moral turpitude, fraud or dishonesty may still constitute professional misconduct, if it is conduct connected with his profession in which the solicitor concerned has fallen short, seriously short, by omission or commission, of the standards of conduct expected of solicitors." "...although the terminology is different, the overlap between bringing the profession into disrepute and other forms of misconduct in a professional respect is so manifest and substantial that it is not considered in further detail, save for the specific example of solicitors duty to the courts." These definitions use words which, we submit, would be considered somewhat archaic in day to day conversations, for example “disgraceful”, “infamous” “moral turpitude” etc. It matters greatly what standards are expected of solicitors. For example, when a solicitor signs a “No Foal, No Fee” contract he is expected to stick to it. When his claim for costs is resoundingly dismissed by a court he is expected to comply with the implications of that decision. When he continues to hinder traumatised and vulnerable clients in their attempts to progress their case and harasses them for monies, in spite of his cognisance that they do not owe him fees, this behaviour is disgraceful. When he threatens to destroy client files, using his insider knowledge of the personal hurt and trauma at the heart of their case, enabling him to make them fearful of ever getting justice, his behaviour exhibits severe ethical shortcomings which demean the special position of trust that is granted to the solicitor’s profession. We submit that the reason that “ Conduct which would not be infamous or disgraceful in any other person, if done by a solicitor in relation to his profession, that is, with regard either to his clients or to his colleagues, may be considered as infamous or disgraceful conduct in a professional respect;” is so pertinent and is associated with the increased level of protection afforded to solicitor’s against complainants by the Criminal Burden of Proof Standard. Therefore Solicitors are expected to behave better, commensurate with the Societal Status and Trust afforded to them. The persistence with which Mr.Sheehan has thwarted our efforts to have our files returned is both infamous and disgraceful and doubly so for a solicitor. Mapped against the Principle of Noblesse Oblige, the behaviour of Mr.Sheehan should embarrass any decent, rightthinking person, never mind a member of the Solicitor’s Profession. 10

We submit that the “Man on the Clapham Omnibus” would conclude that Mr.Sheehan’s behaviour brings the Solicitor’s Profession into disrepute and is Professional Misconduct beyond reasonable doubt. Since the hearing on the 6th October last, we received correspondence from Mr.Sheehan by email dated 13th Oct 2015. In spite of having made it clear to him that he had “caused us terrible grief and hardship that you, Mr. Sheehan, have been pursuing us now for six or seven years”, he has now subsequently proceeded to reapply further stress and threats to us as per the extract below: (See Exhibit 1 2) “Please be advised that the above offer shall lapse if not accepted unconditionally within seven days from the date hereof. Please also be advised that if you elect to refuse this offer and the Tribunal thereafter purports to make any adverse finding whatsoever against the writer, I will be left with no alternative but to proceed with an appeal to the High Court, and to the Court of Appeal if necessary, and will continue to exercise my lien over your files pending the determination of such appeal(s) which, as you will appreciate, may take several years to be determined.” We submit that the disposition of Mr.Sheehan exemplified in this correspondence (which he himself copied to the Solicitors Disciplinary Tribunal) is further evidence of his personal and unrelenting disrespect for us, his disrespect in terms of Noblesse Oblige for his own Profession, his apparent belief that he belongs to some higher, protected order of social being and that he can vindictively threaten us with unrelenting litigation, without fear of being held to account for his professional misconduct. Conclusion. We are shocked to be told at a late stage that the Burden of Proof Standard is the Criminal One of Beyond Reasonable Doubt. However, we submit that the evidence laid before the Solicitors Disciplinary Tribunal in terms of both Mr.Sheehan’s actions and personal mistreatment of us, proves our complaint beyond the reasonable doubt of the “Man on the Clapham Omnibus” and we call on the Solicitors Disciplinary Tribunal to confirm our complaints. 11

SECTION E

List of Exhibits The documents exhibited or referred to below have been exhibited in our Affidavits before the Tribunal and or offered into evidence at the Tribunal Hearing.

Exhibit 1

Exhibit 2 Mr Sheehan first refers to the destruction of our file in his letter to the Respondent Solicitor, Mr Barry Sheehan Cathy O'Brien of the Law Society on the 13th March 2014, when he advises in the second paragraph; "...I carried out a search against the writer's archived files but was unable to locate the Complainants' files. It would appear, in accordance with the relevant provisions of A Guide to Professional Conduct of Solicitors in Ireland... the said files would have been destroyed following the dismissal of the Complainants' claim in breach of contract and professional negligence against the writer". See Affidavit of Barry Sheehan sworn 12 November 2014 (Part 2), Exhibit BAS7 (page 78). We responded to this in our email to the Respondent Solicitor, Mr Barry Sheehan Cathy O'Brien of the Law Society dated the 4th April 2014, where in the second paragraph we refer to the Law Society's guidelines in relation to File Storage and Disposal in particular the section that states; "All papers and documents including pleadings and medical and other expert reports are the property of the client and it may be advisable to ask the client whether they require any of the material contained on the file prior to destruction. While the client may have received copies of these papers during the progress of the case they are nevertheless entitled to the originals if they so wish as they have discharged the fees for them and solicitors should consider this prior to the disposal of the file". See Affidavit of Barry Sheehan sworn 12 November 2014 (Part 2), Exhibit BAS7 (page 8284). On the 6th June 2014, prior to the Complaints and Clients Relations Committee hearing on the 10th June 2014, Mr Sheehan wrote to the Respondent Solicitor, Mr Barry Sheehan Cathy O'Brien of the Law Society on page 5, paragraph 2 of that letter advising that; "Fourthly, following an extensive, and time consuming, trawl of the writer's archived files I write to confirm that I have since located the Complainants' original voluminous litigation files." "However, in accordance with the provisions of ... I will be proceeding to destroy the said files, so as to free up much needed filing space...". See Affidavit of Barry Sheehan sworn 12 November 2014 (Part 2), Exhibit BAS7 (page 99).

On the 19th June 2015, Mr Sheehan wrote to us by email and stated; "As indicated in my email to Cathy O'Brien, Solicitor, Complaints and Clients Relations Section dated 9th June 2014, I will shortly be arranging for your voluminous files to be destroyed so as to free up much needed storage space. In the circumstances, I am prepared to afford you one final opportunity to make an offer to the writer in respect of my outstanding bill of costs dated 6 May 2008." See Affidavit of Barry Sheehan sworn 12 November 2014 (Part 2), Exhibit BAS7 (page 115). On the 25th June 2015, Mr Sheehan wrote to Ms Cathy O'Brien of the Law Society and states; "...I will shortly be arranging for the Complainants' voluminous files to finally destroyed so as to free up much needed storage space". CROSSEXAMINED BY MR. BINGHAM, AS FOLLOWS: 19 Q. MR. BINGHAM: Mr. Sheehan, did you suggest that you were going to, you know, that you were going to destroy the file? Mr Sheehan. Yes, in the context of the emails that I wrote to Mr. Bingham, which, as I have already outlined in my direct evidence if I could be allowed to complete my answer, Chairman. THE CHAIRMAN: Yes, just allow him complete. MR. BINGHAM: Sorry, go on. Mr Sheehan. Yes, in the context of the emails that have been opened to the Tribunal that are exhibited in correspondence, for the reasons I have already outlined in my direct evidence. There was no threat. It was simply a statement of fact. (Transcript, 6th October 2015, Page 117)

Exhibit 3

th Tribunal Transcripts 6 October 2015, Page 148, line 129

MR. BINGHAM: Why did you not hand over the file to me for the Supreme Court appeal when you were told by the court in Dundalk, the Circuit Court, that we didn't owe you any money. Mr Sheehan. I don't accept that, I didn't obtain judgment against you. Mr Bingham: Sorry? Mr Sheehan. I did not obtain judgement against you, there is no ruling – Mr Bingham. No, no, sorry, Mr. Sheehan? Mr Sheehan. There is no ruling – Mr Bingham. No, no, answer the question. I'm not talking about a judgment against me, I'm talking about the judgment against you. Was there a judgment against you? Mr Sheehan. My application for to register judgment against you in relation to my debt, Chairman – Mr Bingham. Mr. Sheehan, hold on, Mr. Sheehan, was there not – Mr Sheehan. Was not proven, that does not mean that I'm not owed the money. THE CHAIRMAN: Excuse me, sorry. MR. BINGHAM: It's a yes or no answer, Chairman. THE CHAIRMAN: We have the order of the Court here, this is not a Scottish court, there's no such thing as not proven. Your claim was dismissed, full stop, it was dismissed. How do you say, and this is the nub of this, this whole matter, how do you say, you brought a claim looking for your costs and the Circuit Court, having heard that claim, dismissed your case. th Transcripts 6 October 2015, PAGE 149, LINE 19

Mr Bingham. How do you say that you have a right to fees after that? Mr Sheehan. Because in accordance with the Code of Conduct I am entitled to be paid in a quantum meruit. With respect now, Chairman, you have put the question to me and I wish to respond. THE CHAIRMAN: I guarantee you, you are misreading the Code of Conduct. Nowhere does it say – in order to have a lien you must have a right to costs. 18

EXHIBIT 4

th Tribunal Transcripts 6 October 2015, page 125, lines 1723

Mr Bingham . I just wanted to talk about the retainer being terminated. Who terminated the retainer? Mr Sheehan : I did . Mr Bingham . Why? Mr Sheehan . For good reason, because y ou wouldn't put me in funds. Mr Bingham . That's a lie, Mr. Sheehan, I'm sorry, that's the only way I can describe it. th By email dated the 29 April 2008, we advise Mr Sheehan that we were not terminating our instructions and that we were prepared to make available the balance of funds for miscellaneous expenses he requested would be needed to cover upcoming expenses, provided that Mr Sheehan was continuing to act under the terthe Respondent Solicitor, Mr Barry Sheehan th of the original Section 68 Letter of Contract 2006. We wrote in our email dated 29 April 2008 09:04am,

“We would again respectfully request confirmation that you are not terminating our agreement/contract of the 17th February 2006 and that you will be in a position to defend the validity of the Plenary Summons in the High Court on the 13th June 2008. (See Book, Bernard and Viola Bingham DT2a, Exhibit BVB4).

EXHIBIT 5

Our letter to the Law Society on the 13th January 2009, details the issues surrounding our Section 68 Letter of Contract and the final paragraph on page 2 of our letter details the urgent need that Mr Sheehan handover a copy of the file to us for the purpose of the Supreme Court appeal. Then, in the 3rd paragraph on page 3 of the same letter, we again advise the Law Society of the urgency in obtaining the file for the Supreme Court Appeal and advise that a more detailed complaint will follow. See book DT1, Exhibit BVB8 (pages 78-79) . th

In the meantime, on the 26 January 2009, we lodged an appeal with the Supreme Court as lay litigants despite having no access to the file. Ms Daragh Buckley on behalf of the Law Society, dealt with our complaint regarding Mr Sheehan's lien on the file in circumstances where we had a "no win no fee" Section 68 Letter of Contract (see book DT1, Exhibit BVB1 (page 2-3) ) with Mr Sheehan drawn up in February 2006. As Mr Sheehan lost the case, no fees were due under the terthe Respondent Solicitor, Mr Barry Sheehan of our Section 68 Letter of Contract. However, on the 4th February 2009, (see book DT1,Exhibit BVB8, page 80, Ms Daragh Buckley wrote to us advising that Mr Sheehan was entitled to exercise a lien on the file and the file remained with Mr Sheehan. Correspondence between the Law Society and ourselves continued and on the 8th June 2009, we wrote again to Ms Daragh Buckley and on page 1, paragraph 3 of our letter we again refer to our "no win no fee" Section 68 Letter of Contract with Mr Sheehan. See book DT1, Exhibit BVB8 (pages 83-85), Despite the contents of this letter, Ms Daragh Buckley maintains that her position still stands and Mr Sheehan does not and is not ordered to handover the file.

EXHIBIT 6 On the 11th June 2009, Mr Sheehan lodged a Civil Bill for debt with Dundalk Circuit Court for judgment in the sum of €37,725.44 for his Bill of Costs and for costs of the Civil Bill proceedings and interest on the €37, 725.44. We lodged a defence and counterclaim and following the hearing of the case, the Circuit Court ordered on the 24th May 2012 that; "WHEREUPON and on reading the pleadings and documents filed herein and on hearing the evidence adduced and what was offered... and it appearing to the Court that the Plaintiff has failed to prove his claim on foot of the Civil Bill herein THE COURT DOTH ORDER 1. That the Plaintiff's claim herein be and the same is hereby dismissed." See book DT1, Exhibit BVB10 (page 101). Mr Sheehan appealed this decision to the High Court, but having being advised on two occasions by Mr Justice J Hanna that he had difficulty moving beyond the Section 68 letter of contract between us, Mr Sheehan withdrew his appeal.

EXHIBIT 7 On the 25th April 2013, we wrote to Mr Sheehan requesting that he return to us the medical records we couriered to him as per our email dated the 9th October 2006. At this time, we only requested the medical records. See book DT1, Exhibit BVB10 (page 9697) . Despite the Circuit Court Order, Mr Sheehan replied by email on the 25th April 2013 stating, "I am exercising a lien over all your files. Until such a time as I receive a payment proposal, I regret I am not in a position to consider your request." On Monday the 27th May 2013, I wrote a letter of complaint to the Law Society (See book DT1, Exhibit BVB10 (page 99101). Correspondence continued between the Law Society, Mr Sheehan and ourselves and on the 11th December 2013 in our email to Ms Cathy O'Brien of the Law Society, we formally requested the entire file and clearly explained that it was the 3 copies of the medical records provided by us to Mr Sheehan that we sought be returned (See book Affidavit of Barry Sheehan sworn 12 November 2014 (Part 2), Exhibit BAS7 (page 5658). On the 13th February 2014, Ms Cathy O'Brien of the Law Society wrote to Mr Sheehan stating, "A second complaint has now been made by Mr and Mrs Bingham, in respect of your failure to handover, initially the medical records and more recently, t he entire file . As the matter appears to rest with the Order of the Circuit Court, dismissing your claim for costs, it is arguable that your lien has been extinguished. F ailure to handover a file is a conduct issue, covered by the definition of misconduct in s.3 Solicitors (Amendment) Act, 1960 as amended by s.7 Solicitors (Amendment) Act, 2002 ". See book Affidavit of Barry Sheehan sworn 12 November 2014 (Part 2), Exhibit BAS7 (page 64). On the 12th March 2014, Ms Cathy O'Brien wrote to Mr Sheehan stating, "The Complaints and Client Relations Committee at its meeting held on the 11th March 2014 took the view that lien cannot be maintained by a solicitor following a court order dismissing his claim for costs and that the files should be transferred to Mr and Mrs Bingham within 14 days." See book DT1, Exhibit BVB10 (page 107). 26

A further meeting was called by the Complaints and Client Relations Committee which Mr Sheehan or his representative only was called to attend. We were not called to give evidence. Mr Sheehan did not attend, but was represented by counsel Mr Gerard Murphy BL. the Respondent Solicitor, Mr Barry Sheehan Cathy O'Brien wrote to us on the 11th June 2014 stating, "I confirm that at its meeting held yesterday, 10th June 2014, the Complaints and Clients Relations Committee, on the basis of submissions made by Mr Sheehan's Counsel, made no finding. I have therefore closed the file." See book DT1, Exhibit BVB10 (page 108). On the 11th June 2014, Ms Cathy O'Brien also wrote to Mr Sheehan advising of same as above and in addition that, "...the Complaints and Clients Relations Committee noted that any medical records held by you will be returned to Mr and Mrs Bingham." See book Affidavit of Barry Sheehan sworn 12 November 2014 (Part 2), Exhibit BAS7 (page 106). On the 19th June 2015, Mr Sheehan wrote to us by email and stated; "As indicated in my email to Ms Cathy O'Brien, Solicitor, Complaints and Clients Relations Section dated 9th June 2014, I will shortly be arranging for your voluminous files to be destroyed so as to free up much needed storage space. In the circumstances, I am prepared to afford you one final opportunity to make an offer to the writer in respect of my outstanding bill of costs dated 6 May 2008." See Affidavit of Barry Sheehan sworn 12 November 2014 (Part 2), Exhibit BAS7 (page 115). On the 25th June 2015, Mr Sheehan wrote to Ms Cathy O'Brien of the Law Society and states; "...I will shortly be arranging for the Complainants' voluminous files to finally destroyed so as to free up much needed storage space". Mr Barry Sheehan still refused to return the file and had now added that he was going to destroy the files if a reasonable offer of payment was not made to him.

EXHIBIT 8 We first requested the file in January 2009 and it is now October 2015, so it is now 6 years since we lodged our appeal and requested the file. Mirek died on the 31st December 1999. This means that the defence would argue that 16 years have passed since Mirek died and that if our Supreme Court appeal was successful, it would take possibly a number of years for the case to be heard in the High Court given that we would be acting as lay litigants due to Mr Barry Sheehan’s refusal to handover the file to us or another solicitor and that the passage of time was prejudicial toward their clients. This is confirmed by letter from Arthur Cox Solicitors dated th the 15 October 2008, seven years ago, “Our client has already experienced great inconvenience arising out of these proceedings and any further delay in disposing of same would be unjust and in breach of our client’s rights to fair procedures and to due expedition in the resolution of his case” (see DT1, Exhibit BVB5, number page 48). Therefore, it would be reckless for us to pursue the Supreme Court appeal as if we failed we would not only be financially accountable for the costs of the Supreme Court appeal, but of the High Court costs of the defendants also as Mr Barry Sheehan is well aware as the High Court Order stated , “And the Court doth note the undertaking of the First Named Defendant not to pursue the Order for costs herein should the Plaintiffs not appeal the Order herein”. (see DT1, Exhibit BVB7, number page 73).

EXHIBIT 9

EXHIBIT 10

a. The second paragraph Law Society’s Technology Committee document entitled “ Retention or Destruction of Files” states, “ It is suggested that the conclusion of a transaction when all relevant details are completed, including appropriate filing or registration requirements, payment by the client of all appropriate fees and costs and where all appropriate material and documents have been returned to the client” . b. The Law Society's Technology Committee recommend that a client’s file be held for a minimum of six years and that in fact eighteen months should be added to this period of retention in the event that a plenary summons is issued and served and in the event of a renewal of said plenary summons.

If we were to issue negligence proceedings against Mr Barry Sheehan, the timeframe would be as follows; case file closed December 2008, plenary summons would have to be issued by December 2014 and served by December th 2015. The fact that Mr Barry Sheehan was threatening on the 19 June 2015 th and again on the 25 June 2015 to destroy our files, meant that beyond reasonable doubt Mr Barry Sheehan was not following the recommended retention guidelines as set out by the Law Society and their Technology Committee. c. The Law Society's Technology Committee recommend in the paragraph entitled, “Destruction of files” in the same document, “When the relevant statutory or regulatory periods for retention or periods of limitation have elapsed and w here the solicitor is satisfied there is no further purpose in retaining the client's file or documentation, he or she may wish to destroy the contents of a file. The decision as to whether or not to destroy the contents of a file is a matter of judgment for each individual solicitor. The decision should be taken with particular reference to the nature of the transactions conducted in the file and with due regard to the possibility of any further need to access or reproduce material from the file. ”.

d. The Law Society’s Code of Conduct specifically deals with when the solicitor is no longer required to retain the client’s file. The code states that prior to destroying a client’s file, where no costs are owing, as

“... all papers and documents including pleadings and medical and other expert reports are the property of the client it may be advisable to ask the client whether they require any of the material contained on the file prior to destruction as the client is entitled to the originals if they have discharged their fees and the solicitor should consider this prior to disposing of the file...” .

EXHIBIT 11 LEGAL PRECEDENTS I refer to the following High Court of Ireland Decisions in respect of a solicitor's lien; 1. Mulheir & Anor v. Gannon p/a Claffey Gannon Solicitors [2006] IEHC 274 (17 July 2006) 2. Treacy –v Roche & Anor [2009] IEHC 103 (27 February 2009) 3. Ahern & Ors –v Minister for Agriculture and Food & Ors [2008] IEHC 286 911 July 2008) Whilst none of these cases involve a solicitor who lost a case involving a “no win no fee” Section 68 Letter of Contract and subsequently exercised a lien on the client's’ file, they do deal with the issue of a client's’ right to continue to pursue their case through the courts and the right of the client to have access to their file for the purpose of continuing to pursue their case through the courts despite their former solicitor exercising a lien on the client's’ file. In each case, the solicitor was ordered to release the file in order to allow the client's’ case progress through the courts. I draw particular attention to the case Mulheir & Anor v. Gannon p/a Claffey Gannon Solicitors [2006] and the following extracts; "… This appeal illustrates the difficulties which arise when a client and a solicitor part company in the midst of litigation. A solicitor who accepts a retainer to act for a client in the prosecution or defence of an action engages that he will continue until the action is ended, subject however to his costs being paid. … If before the action is ended, the client determines the retainer, the solicitor may, subject to certain exceptions not here material, exercise a possessory lien over the client's papers until payment of the solicitor's costs and disbursements. … The solicitor himself may determine his retainer during an action for reasonable cause, such as the failure of the client to keep the solicitor in funds to meet his costs and disbursements; but in that case the solicitor's possessory lien, i.e. his right to retain the client's papers of any intrinsic value or not, is subject to the practice of the court which, in order to save the client's litigation from catastrophe, orders the solicitor to hand over the client's papers to the client's new solicitors, provided the new solicitors undertake to preserve the original solicitor's lien and to return the papers to the original solicitor, for what they are worth, at the end of the litigation. 38

This practice was settled many years ago, and as Goff L.J. has shown, … there are convincing reasons why the practice should be followed, and it has been followed …" In his judgment, Goff L.J. referred to the case dating from 1837 (at p. 622), stating as follows: "… we have been referred to … Heslop v. Metcalfe (1837) 3 My. & C. 183 which seems to me to be of the utmost significance in this case, and to afford conclusive reasons why we should not at this late stage reverse the decision in Robins v. Goldingham because Heslop v. Metcalfe shows quite clearly that in those days the court had fully adverted to the factual effect upon the lien of the making of such an order, and to the hardship which it would impose upon a solicitor. Lord Cottenham L.C., giving judgment, said at pp. 188 – 190: 'Undoubtedly, that doctrine may expose a solicitor to very great inconvenience and hardship, if, after embarking in a cause, he finds that he cannot get the necessary funds wherewith to carry it on. But, on the other hand, extreme hardship might arise to the client, if, – to take the case which is not uncommon in the smaller practice in the country, – a solicitor who finds a poor man having a good claim, and having but a small sum of money at his command, may go on until that fund is exhausted, and then, refusing to proceed further, may hang up the cause by withholding the papers in his hands. That would be great grievance and means of oppression to a poor client who, with the clearest right in the world, might still be without the means of employing another solicitor. The rule of the court must be adapted to every case that may occur, and be calculated to protect suitors against such conduct …” And in another paragraph states; “To a twentyfirst century observer the jurisprudence established in the early 19th century seems to be remarkably enlightened for that era, because it maintains a fair and just balance between the proponents. It vindicates such rights as a solicitor's client has under the Constitution and under the European Convention on Human Rights, which has been invoked by the plaintiffs, to have access to the courts. On the other hand, it protects the solicitor's property in his lien. Accordingly, I have no doubt that it should be followed.” By failing to grant us access to our file for the purpose of the Supreme Court appeal, Mr Sheehan acted improperly as an officer of the Court and denied us access to justice for our son Mirek. As an officer of the court and a legal professional, Mr Sheehan was well aware that to deny us access to our file was a violation of our rights under the Irish Constitution and under the European Convention on Human Rights.

We have also become aware of Case Study 12: Access requests to solicitors for copies of files by the Data Protection Commissioner which states; “However, the Data Protection Acts, which transpose the EU Directive on Data Protection, do not provide any exemption to the provision of the personal data of a person in these circumstances. A solicitor who has been engaged by an individual is a data controller of that individual's personal data which is subsequently processed. Personal information held by a data controller falls to be released in response to an access request unless a valid exemption as provided for under Sections 4 and 5 of the Data Protection Acts can be relied upon.”

Exhibit 12