Byrne v John S O'Connor & Company

• Jurisdiction: Ireland
• Judge: Mr. Justice Kearns
• Judgment Date: 15 May 2006
• Neutral Citation: [2006] IESC 30
• Docket Number: [S.C No. 287 of 2000],[2000/287]
• Court: Supreme Court
• Date: 15 May 2006

BYRNE v JOHN S O'CONNOR & CO SOLICITORS & ADMIRAL UNDERWRITING AGENTS (IRELAND) LTD

BETWEEN

PETER BYRNE

PLAINTIFF/RESPONDENT

AND

JOHN S. O'CONNOR & CO. SOLICITORS

DEFENDANTS/RESPONDENTS

AND

BY ORDER MADE THE 15TH DAY OF OCTOBER, 1999 ADMIRAL UNDERWRITING AGENTS (IRELAND) LTD

DEFENDANTS/APPELLANTS

[2006] IESC 30

McGuinness J.

Kearns J.

Macken J.

[2000/287]

THE SUPREME COURT

PRACTICE AND PROCEDURE:

Parties

Joinder - Jurisdiction of court - Costs - Application to come off record - Insurers exercised right of subrogation - Solicitors instructed by insurers - Repudiation of liability by insurers - Delay in repudiation - Whether court has jurisdiction to grant liberty to come off record on terms - Whether court has jurisdiction to join party to proceedings purely for purpose of making order of costs - O'Fearail v McManus [1994] 2 ILRM 81 considered - Rules of the Superior Courts1986 (SI 15/1986), O 7, r 3 and O15, r 13 - Appeal against joinder dismissed (287/2000 -SC - 15/5/2006) [2006] IESC 30, [2006] 3 IR 379 Byrne v John S O'Connor & Co

RSC O.7

RSC O. 7 r3

RSC O.15 r13

O'FEARAIL v MCMANUS 1994 2 ILRM 81 1995/4/1362

1 JUDGMENT of Mr. Justice Kearnsdelivered the 15th day of May, 2006

2 This is an appeal brought on behalf of Admiral Underwriting Agents (Ireland) Ltd. from an order of the High Court (O'Donovan J.) dated the 15th October, 1999, whereby the application of Giles J. Kennedy & Co., solicitors, to come off record for the defendants pursuant to Order 7 of the Rules of the Superior Courts was granted, but was granted, however, on the basis that Admiral Underwriting Agents (Ireland) Ltd. were joined as a notice party to the proceedings and directed to pay both the costs incurred by the plaintiff in the proceedings to date and the costs incurred in relation to the application by Mr. Michael O'Connor, executor of the estate of the late Patrick J. O'Connor, former principal of the defendant firm. It was further ordered that, in default of such payment of costs as aforesaid, the application to come off record would stand refused.

3 The background facts may be briefly stated. The plaintiff was allegedly the victim of an assault perpetrated against him by employees of a public house in Rathmines in the city of Dublin on the 11th July, 1986. He instructed the defendant firm of solicitors to act on his behalf in proceedings in which he claimed damages for assault. The person in the defendant firm of solicitors with whom he dealt was Mr. John O'Connor. Mr. John O'Connor was not a qualified solicitor and misled the plaintiff into believing that legal proceedings on his behalf had been initiated and that a judgment on foot of a settlement meeting had been entered in the High Court Central Office. In fact, no such settlement had ever been arrived at, nor had any proceedings been commenced on the plaintiff's behalf. The plaintiff's claim in the circumstances became statute barred on the 11th July, 1989.

4 On ascertaining the true facts the plaintiff wrote to the Law Society and intimated a claim against the defendant firm for negligence. On the 10th May, 1993, Mr. Michael O'Connor, then a solicitor in the defendant firm and a son of Mr. Patrick O'Connor, principal of the firm, received a letter from the Law Society in consequence of which on the 9th June, 1993 he notified the possibility of a claim from Mr. Byrne to the insurers of John S. O'Connor & Co., namely, Admiral Underwriting Agents (Ireland) Ltd., the appellants herein.

5 By letter dated 16th August, 1994, Messrs, Orpen Franks, solicitors, wrote to Michael O'Connor, who was by that time working as a solicitor with Messrs. Ivor Fitzpatrick & Co., confirming that they had been nominated to act on behalf of the appellants. On the 24th August, 1994, Mr. O'Connor furnished the original file in relation to the plaintiff to Messrs. Orpen Franks.

6 On 18th January, 1995, Messrs. Orpen Franks wrote to the principal of the defendant firm, Mr. Patrick O'Connor, seeking an interview with Mr. Patrick O'Connor in relation to a proposed claim by the plaintiff against the practice of John S. O'Connor & Co. Mr. Patrick O'Connor furnished a reply to this letter on the 31st January, 1995.

7 On the 13th November, 1995, Messrs. Orpen Franks wrote to Mr. Michael O'Connor in the following terms:-

"We are writing to advise that our client is prepared to provide indemnity under the insurance policy taken out by John S. O'Connor & Co. for 1993/1994. The first notification of this claim was by letter from your good self to J.H. Minet (Insurance) Ltd., dated 9th June, 1993. Indemnity is provided subject to the proviso that should evidence come to light during proceedings and/or negotiations that the insured was aware of this matter prior to May, 1993, indemnity will be withdrawn."

8 Thereafter a plenary summons was issued on behalf of the plaintiff on the 6th March, 1996, in which the plaintiff claimed damages for breach of contract and negligence against the defendant firm. Messrs. Orpen Franks duly entered an appearance to the said summons on the 2nd September, 1997. It appears a statement of claim had been delivered on the 19th March, 1996, in respect of which a notice for particulars was raised on the 25th September, 1997. A reply to the notice for particulars was furnished on the 11th November, 1997. Messrs. Orpen Franks delivered a defence on the 25th September, 1997, and a reply thereto was delivered on the 11th November, 1997.

9 On 25th June, 1998, a further request for particulars was served on the plaintiff's solicitors, to which a reply was delivered on the 3rd November, 1998.

10 It is clear from the foregoing history that from the month of November, 1993, matters progressed in relation to this claim as though indemnity and insurance cover in the normal way were being provided. However, on the 28th November, 1998, the insurers changed their solicitors and appointed Messrs. Giles J. Kennedy & Co. Solicitors, to replace Messrs. Orpen Franks. A notice of change of solicitor was filed in the Central Office of the High Court on the 16th December, 1998.

11 On the 14th December, 1998, Mr. Giles Kennedy wrote to Mr. Michael O'Connor to confirm that his firm was now acting for Admiral Underwriting Agents (Ireland) Ltd. The letter raised a number of matters, suggesting, inter alia, that there had been material non disclosure of facts relating to possible claims by the defendant firm and that there was a material deficiency in the Client Funds of the firm. The letter sought a meeting with Mr O'Connor but also strongly hinted that, in the view of Mr. Kennedy at least, the defendant firm was not entitled to an indemnity in respect of the plaintiff's claim. By letter of even date to the plaintiff's solicitors, the position was stated more starkly as follows:-

"Serious difficulties have now developed in respect of the policy of insurance and we expect that within the next few weeks we will be advising you of our client's intention to decline the claim and/or to repudiate or avoid cover ab initio for non disclosure of material facts."

12 It should be noted that Mr. Patrick O'Connor had by then died. The practice of which he was principal had ceased business some years previously on the 1st April, 1993. Messrs. Gore & Grimes thereafter represented the estate of Patrick O'Connor of which Mr Michael O'Connor is executor.

13 The negligence claim against the defendant firm was ultimately listed for hearing in the High Court on the 4th May, 1999. On the 22nd March, 1999, notice of repudiation was given...