Butler v Nelson & Company Solicitors

• Jurisdiction: Ireland
• Judge: MR JUSTICE MICHAEL PEART
• Judgment Date: 10 May 2017
• Neutral Citation: [2017] IECA 149
• Date: 10 May 2017
• Court: Court of Appeal (Ireland)
• Docket Number: Neutral Citation Number: [2017] IECA 149 Appeal Number: 2015/585 Appeal Number: 2014/1087

[2017] IECA 149

THE COURT OF APPEAL

Peart J.

Ryan P.

Peart J.

Hedigan J.

Neutral Citation Number: [2017] IECA 149

Appeal Number: 2015/585

Appeal Number: 2014/1087

BETWEEN:

MICHAEL BUTLER

AND

WILLIAM BUTLER

PLAINTIFFS/APPELLANTS

- AND -

NELSON & CO SOLICITORS

DEFENDANTS/RESPONDENTS

Banking and finance – Evidence – Prima facie case – Appellants seeking to appeal against order of the High Court – Whether there was a prima facie case made against the respondent

Facts: The plaintiffs/appellants, Mr M Butler and Mr W Butler, filed two notices of appeal to the Court of Appeal. One was stated to be in respect of an order of the High Court (Hogan J) dated 20th December, 2013. However, this may have been a clerical error since that particular order, inter alia, merely corrected part of an earlier order dated 21st October, 2013. It was clear that the appellants’ intention was to appeal against part of the latter order in its amended form. In its amended form the order dated 21st October, 2013, as relevant to the appeal, ordered that: “1) the particulars numbered 23.2 and 23.3 of the plaintiffs’ claim as disclosed in the plaintiffs’ reply to particulars dated the 18th September, 2013 be struck out in their entirety; 2) the plaintiff [sic] do file replies to particulars 23.1 and 23.4 of the plaintiffs’ reply to particulars dated 18th September, 2013 and the claim is now confined to the two claims as disclosed in these particulars”. The second appeal, which was the only appeal which the appellants moved before the Court of Appeal when the appeals were listed for hearing, was against the order made by the High Court (Baker J) dated 17th October 2015 in which at the conclusion of the plaintiffs’ evidence she dismissed the plaintiffs’ claims on the basis that they were bound to fail, having heard an application in that regard by the defendants. In relation to the first notice of appeal, the grounds of appeal relied upon evidence that was not before Hogan J when the motion in question was heard by him, namely a report from Mr Russell, accountant. That report, and the complaint by the plaintiffs that the trial judge wrongly refused to allow him to give certain evidence which relied upon his having inspected certain Anglo bank statements which the plaintiffs had failed to discover as part of what was referred to as Category 4 pursuant to an order of Hogan J dated 13th January, 2014, was addressed by Mr M Butler as part of his arguments made on the second appeal, and he agreed, when asked by Ryan P towards the end of the appeal hearing, that if the issue around Mr Russell’s evidence was dealt with in the second appeal, it effectively dealt also with the first appeal.

Held by Peart J that on this appeal the Court made frequent efforts to try and intervene with Mr M Butler in order to try and help him to focus on matters that were in the Court’s view the relevant issues; these efforts were to no avail whatsoever. Peart J noted that most of the hearing on this appeal was spent by Mr Butler essentially trying to re-run the case he had been trying to make in the High Court, rather than by focussing his arguments on submissions as to why in his view the trial judge erred in her conclusions in relation to the plaintiffs’ lack of evidence, and in granting the non-suit application. Peart J noted that Mr Butler’s submissions did not address in any meaningful way the evidence in the High Court, or perhaps more appropriately, the lack of evidence which resulted in the trial judge concluding that despite the fact that evidence had ranged over some eight days of hearing there was no prima facie case made about against the defendant/respondent, Nelson & Co Solicitors.

Peart J held that the appeals by Mr M Butler should be dismissed. Peart J was also satisfied from what Mr M Butler informed the Court that Mr W Butler was kept fully informed by him as to the progress of this appeal through the directions stages, and that he was made aware of the date fixed for the hearing, and had therefore chosen not to attend to prosecute his appeal. Peart J held that it was safe to assume in any event that the submissions made by Mr M Butler applied equally to Mr W Butler’s appeal, and that his appeal must also be dismissed. In Peart J’s view it was appropriate to dismiss his appeal on the merits also, rather than simply on the default basis that he failed to appear to prosecute it.

Appeal dismissed.

JUDGMENT OF MR JUSTICE MICHAEL PEART DELIVERED ON THE 10th DAY OF MAY 2017

1 There are two notices of appeal filed by the appellants. One is stated to be in respect of an order of High Court (Hogan J.) dated 20th December, 2013. However, this may be a clerical error since that particular order, inter alia, merely corrected part of an earlier order dated 21st October, 2013. It is clear that the appellants' intention was to appeal against part of the latter order in its amended form. In its amended form the order dated 21st October, 2013, as relevant to the appeal, ordered that:

‘1. The particulars numbered 23. 2 and 23.3 of the plaintiffs' claim as disclosed in the plaintiffs' reply to particulars dated the 18th September, 2013 be struck out in their entirety.

2. The plaintiff [sic] do file replies to particulars 23. 1 and 23.4 of the plaintiffs' reply to particulars dated 18th September, 2013 and the claim is now confined to the two claims as disclosed in these particulars’.

2 The second appeal, which is in truth the only appeal which the appellants moved before this Court when the appeals were listed for hearing, is against the order made by the High Court (Baker J.) dated 17th October 2015 in which at the conclusion of the plaintiffs' evidence she dismissed the plaintiffs' claims on the basis that they were bound to fail, having heard an application in that regard by the defendants.

3 I should add, in relation to the first notice of appeal, that in any event the grounds of appeal rely upon evidence that was not before Hogan J. when the motion in question was heard by him, namely a report from Mr Charles Russell, accountant. That report, and the complaint by the plaintiffs that the trial judge wrongly refused to allow him to give certain evidence which relied upon his having inspected certain Anglo bank statements which the plaintiffs had failed to discovery as part of what is referred to as Category 4 pursuant to an order of Hogan J. dated 13th January, 2014, was addressed by Mr Michael Butler as part of his arguments made on the second appeal, and he agreed, when asked by Ryan P. towards the end of the appeal hearing, that if the issue around Mr Russell's evidence was dealt with in the second appeal, it effectively dealt also with the first appeal.

4 Only Mr Michael Butler appeared before the Court to prosecute his appeal. He was unrepresented, but was accompanied by Ms. Farrell, his former solicitor, and she sat beside him as his so-called “McKenzie friend” in order to “assist” him. Mr William Butler did not appear for the purpose of prosecuting the appeal at all, and was not represented. This Court was informed by Michael Butler that his brother William Butler was in England in an effort to earn a livelihood, but that he had been kept informed by him of all the dates on which the appeal was before the Court of Appeal for directions from time to time, and of the date fixed for the hearing of the appeal, and that he was fully aware that the appeal was listed for hearing.

The “McKenzie Friend”

5 Before addressing the appeal itself, I would like to say something about “McKenzie friends” generally, and about Ms. Farrell's involvement in that capacity in the present appeal. To put my remarks in context I will give a very brief procedural history of this case.

6 When these plaintiffs issued a plenary summons against the defendant on the 9th February 2009 they did so in a personal capacity, as they were entitled to do. Some months later they delivered a statement of claim, again prepared by them personally. Following the delivery of a notice for particulars on the 26th May, 2009 by the defendant's solicitors, the plaintiffs furnished replies thereto dated 29th October, 2009 - again, it would appear, having prepared those replies themselves without the assistance of a solicitor. They consulted a solicitor (Mr Byrne) in 2011, and he furnished additional replies to the notice for particulars. Not being satisfied with the replies given in relation to particulars 18 and 23 of their notice for particulars, the defendants issued a notice of motion on the 13th March, 2012 seeking to strike out the plaintiffs' claim for failure to adequately provide these particulars, or alternatively an order requiring the plaintiffs to furnish full and detailed particulars to 18 and 23 aforesaid. That motion was served upon Mr Byrne as the solicitor on record for the plaintiffs at that time. However, by the time the motion came before Hogan J. for determination on the 21st October, 2013 the plaintiffs had consulted Ms. Angela Farrell, who was then a practising solicitor. She had come on record for the plaintiffs in these proceedings and appeared for them before Hogan J, according to the order as drawn up. I have already set out the relevant parts of the order made by Hogan J. in paragraph 1 above, and note in particular that he directed that the case was thereafter confined to the two issues related to particulars 23. 1 and 23.4 of the plaintiffs' reply to particulars dated 18th September, 2013. I take that to refer to the only two heads of loss that the plaintiffs were permitted to rely upon, assuming that they succeeded in establishing liability against the defendant.

7 By the time the case came on for hearing before Baker J. on the 3rd March 2015 and following days, Ms. Farrell was no longer the solicitor on record, she having been struck off the roll of solicitors in 2014....