Adigun v McEvoy

CourtCourt of Appeal (Ireland)
JudgeMs. Justice Máire Whelan
Judgment Date06 July 2018
Neutral Citation[2018] IECA 229
Date06 July 2018
Docket NumberNeutral Citation Number: [2018] IECA 229 Appeal Number 2017/186
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[2018] IECA 229

Neutral Citation Number: [2018] IECA 229

Appeal Number 2017/186


Negligence – Breach of duty – Misconduct – Appellant seeking damages for negligence, breach of duty and other misconduct against the respondents – Whether the trial judge ought to have recused himself during the proceedings by reason of actual bias

Facts: The appellant, Mr Adigun, appealed to the Court of Appeal against a judgment delivered in the High Court (MacEocaidh J) on 6th April 2017 dismissing the appellant's claim for damages for negligence, breach of duty and other misconduct against the respondents, Ms McEvoy and Mr Moran. In grounds 1, 2 and 37 of the notice of appeal the appellant contended that the trial judge ought to have recused himself during the proceedings by reason of actual bias and he also alleged subjective bias. The appellant based his objective bias grounds of appeal primarily on the trial judge being a former class mate and personal friend of the former Director of the Abbey Theatre, Mr Mac Conghail, who was a witness in the case. He argued that had the trial judge's perception of him not been tainted by alleged bias, further evidence helpful to the appellant would have been expressly referenced in the judgment. A separate series of grounds asserted that the trial judge erred in determining that the appellant was not a client of the respondent solicitors. These included grounds 4 and 11 of the notice of appeal. The third category of grounds encompassed a range of alleged non-compliance by the trial judge with the Rules of the Superior Courts, the rules of evidence or rules of procedure and the incorrect inclusion or exclusion of evidence. These grounds included grounds 3, 4, 5, 6 and 7 as well as grounds 9, 10, 12, 13, 14, 15, 17, 18, 19, 20, 22, 23, 24, 25, 27, 28, 30, 32, 34 and 35. The appellant contended that the trial judge erred in concluding that even if the solicitor had written the letter which was ultimately written by the appellant himself on 24th March 2008 to the Abbey Theatre it would not have made any material difference to the outcome of events (grounds 8 and 13). The appellant contended that the trial judge ought to have taken into account evidence which emanated from a failed mediation. This form of argument was to be found in ground 16 of the appellant's submissions.

Held by Whelan J that no ground of appeal advanced by the appellant succeeded.

Whelan J held that she would dismiss the appeal.

Appeal dismissed.

JUDGMENT of Ms. Justice Máire Whelan delivered on the 6th day of July 2018

This is an appeal against the judgment delivered in the High Court (MacEocaidh J.) on 6th April 2017 dismissing the appellant's claim for damages for negligence, breach of duty and other misconduct against the respondents and in particular the first named respondent.


The appellant is a playwright, theatre director and producer. He is the founder and artistic director of Arambe Productions Company Limited (hereinafter 'Arambe'), a company limited by guarantee. He is also a director of the said company.


The first named respondent, Linda McEvoy, is a solicitor (hereinafter 'the solicitor'). A very detailed history of the course of dealings between the appellant and the solicitor is set out in the first 48 pages or so of the High Court judgment and will not be repeated hereafter save to the extent necessary.


The interaction between the parties was of relatively short duration. The appellant first met the solicitor on the evening of the 28th November 2007 and their dealings ended around 7th March 2008. Mr. Adigun claims that in addition to a retainer to act for Arambe he also personally retained the solicitor to represent his own private interests in respect of issues arising with the Abbey Theatre and Mr. Roddy Doyle, the world-renowned author.

Some key aspects

The background to this dispute had its genesis in an adaptation of the iconic play The Playboy of the Western World by John Millington Synge, first produced in 1907. Arambe wrote to Mr. Doyle in July 2005, inviting him to collaborate in an adaptation of the play.


Arambe, with Arts Council funding, by a contract dated 6th February 2006, commissioned the appellant and Mr. Doyle to co-write an adaptation of the play.


The contract provided, inter alia, that the co-authors would be the exclusive owners of the copyright to the adaptation and that Arambe would have an exclusive licence to produce and perform the play. It was stipulated in the contract that Arambe would not transfer the rights granted to it in whole or in part without the prior written consent of both authors.


The Abbey Theatre considered staging the play and negotiations commenced which led to a draft contract/licensing agreement with Arambe. On 9th May 2007 a draft contract was sent by the Abbey to Arambe. The appellant represented Arambe in all its key dealings with the Abbey Theatre. The prior written consent of Mr. Doyle was neither sought nor obtained for this agreement. The trial judge found that he was not informed by the appellant of the proposed staging of the play.


Mr. Doyle, acting through his agent, Mr. John Sutton, became aware of this development and disputed the legal entitlement of Arambe to enter into such a contract with the Abbey Theatre without his prior written agreement.


In a letter dated 17th May 2007 sent to Arambe his agent, Mr. Sutton, stated:

'The contract... is a total and complete sub-licence by Arambe to the Abbey and therefore requires the written consent of Roddy Doyle.'


On 18th May 2007 the Abbey sent a revised contract/licensing agreement to Arambe. The original draft had represented that Arambe was 'the owner of the full copyright in the Play.' The appellant had pointed out to the Abbey that both he and Mr. Doyle owned the copyright and not Arambe.


The Abbey responded on 21st May 2007 stating that they could only conclude a contract with Arambe if it could rightfully claim to be the exclusive holder of the copyright.


The draft contract was amended to address this issue and the Abbey agreed to execute same on 22nd May 2007. Neither this contract, as revised, nor its terms were disclosed initially by the appellant to Mr. Doyle or his agent.


Subsequently the play was performed and ran at the Abbey in 2007. However, the dispute surrounding the failure of Arambe to obtain Mr. Doyle's prior consent to the Abbey contract remained unresolved.


A key grievance of Mr. Doyle's was the appellant's refusal to give him sight of a copy of the executed agreement between Arambe and the Abbey in a timely fashion.


On 27th September 2007 Arthur O'Hagan, solicitors for Mr. Doyle, wrote to Arambe seeking a copy of the agreement between Arambe and the Abbey. The request went unanswered. A follow-up reminder letter was sent on 17th October 2007.


On 1st November 2007 Mr. Doyle's solicitors wrote to Arambe's company secretary expressing concern that no response had been received to the earlier correspondence. This letter stated that Mr. Doyle had instructed them to repudiate the co-authors' agreement between their client and the appellant with immediate effect.


Meanwhile, the Abbey Theatre, on learning of this legal dispute, wrote noting that they would withhold royalty payments of approximately €20,860 pending a resolution of the impasse between the authors.

Involvement and role of the solicitor

The letters received by Arambe Productions, both from solicitors for Mr. Doyle and the Abbey, called for a response. This led to legal advice being sought from the solicitor.


The appellant first met the solicitor on the evening of the 28th November 2007. He contended at the hearing and at this appeal hearing that at this meeting he explained to her the issues in the dispute by reference to a number of documents.


After a hearing conducted over 16 days the trial judge reserved judgment. In his judgment he found as a fact that the appellant had failed to provide the solicitor with a copy of the (unsigned) authors' contract of 16th January 2006 at their initial meeting (para. 29 of judgment).


I am satisfied that the evidence at the trial demonstrated that this omission on the part of the appellant left the solicitor effectively in the dark regarding material facts. It impeded her in providing timely relevant advice to Arambe in response to the solicitors' letters it had received. A telephone conversation took place between the appellant and the solicitor on 7th December 2007 during the course of which she confirmed that she had not at that point written to the solicitors but had left messages for both firms.


On 18th December 2007 the solicitor issued a s. 68 letter (pursuant to s. 68 of the Solicitors (Amendment) Act 1994). The subject heading of this letter referred to Arambe alone. It set out the firm's terms of business including a request that a retainer fee of €1,200 plus VAT be paid. On the same day the solicitor sent a further e-mail to the appellant which stated that Arambe would have to formally accept the firm's terms of business in order to progress matters.


A further e-mail the following day stated:

'The terms of business would need to be accepted by Arambe's board or by you on Arambe's behalf before we proceed further in terms of time ...'


By e-mail dated 20th December 2007 the appellant replied, stating:

'I had looked at the terms of business and I had informed my board about it and we are happy to let you handle the case for us.'


The appellant subsequently produced a cheque payable to the solicitor and dated the 12th February 2008 drawn on an account in the name of Arambe though apparently same was never presented to the solicitor.


In an...

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