O'Connor v Legal Aid Board and Others

• Jurisdiction: Ireland
• Judge: Mr. Justice Charles Meenan
• Judgment Date: 20 February 2025
• Neutral Citation: [2025] IECA 39
• Court: Court of Appeal (Ireland)
• Docket Number: Court of Appeal Record Number: 2024/143

Between/

John O'Connor

Plaintiff/Appellant

and

Legal Aid Board, The Minister for Justice and Equality Ireland and the Attorney General

Defendants/Respondents

[2025] IECA 39

Whelan J.

Allen J.

Meenan J.

Court of Appeal Record Number: 2024/143

High Court Record Number: 2019/5432P

THE COURT OF APPEAL

CIVIL

Defamation – Malicious falsehood – Damages – Appellant seeking damages for defamation and malicious falsehood – Whether the trial judge was correct in finding that there was nothing in the letter that was defamatory of the appellant

Facts: The appellant, Mr O’Connor, appealed to the Court of Appeal against the judgment and order of the High Court (Stack J) made 8 May 2024 dismissing an action seeking damages for defamation and malicious falsehood brought by the appellant against the first respondent, the Legal Aid Board, on the grounds that the statement on which the action was founded was not capable of being found to have a defamatory meaning and that the action was bound to fail. In his notice of appeal, the appellant said that the trial judge failed to apply the correct principles to the application and that, in giving her ruling, “erred in law, or a mixed issue law and fact”. The essential proposition was that the trial judge erred in failing to conclude that the statement by the Legal Aid Board that the appellant needed to obtain an independent expert report meant - or for the purposes of the motion to summarily dismiss the action, was capable of meaning - that he had been guilty of an abuse of process in instituting the professional negligence actions without such a report.

Held by Meenan J that, applying Gilchrist v Sunday Newspapers Limited & Ors.[2017] IECA 191, the contents of the Legal Aid Board’s letter of 27 July 2018 as pleaded in the statement of claim, led to the conclusion that they were not “reasonably capable of being found to have a defamatory meaning”. He noted that the first paragraph of the letter was simply a statement of fact which referred to decisions of the Supreme Court and the High Court. He found that the second paragraph was an opinion of the law derived from legal authority that could not be considered defamatory. He noted that the third paragraph simply set out a requirement for the Legal Aid Board to come on record referencing standards adopted by the Law Society, which could not be considered to be defamatory. He noted that the final paragraph identified solicitors who may be involved in the proceedings. He held that the role of a senior counsel is to advise and conduct the proceedings, not to give evidence. He held that the trial judge correctly found that there was nothing in the letter that stated, either expressly or by implication, that the appellant in maintaining the proceedings was guilty of an “abuse of process”. Meenan J found that the trial judge was correct in her finding that there was nothing in the letter that was untrue. Further, Meenan J found that there was no evidence of malice; it followed from this that the requirements of s. 42 of the Defamation Act 2009 were not met to maintain an action for malicious falsehood. He was satisfied that the trial judge was correct in finding that there was nothing in the letter that was defamatory of the appellant. In Meenan J’s view, it was good professional practice on the part of the solicitor to send such a letter to the appellant; the letter was clearly an effort to assist the appellant in proceeding with his actions.

Meenan J held that the appellant’s appeal should be dismissed.

Appeal dismissed.

JUDGMENT ofMr. Justice Charles Meenandelivered on the 20 ^th day of February 2025

Background:-

1 . This is an appeal against the judgment and order of the High Court (Stack J.) made on 8 May 2024, dismissing an action seeking damages for defamation and malicious falsehood brought by the appellant (Mr. O'Connor) against the first named respondent (The Legal Aid Board) on the grounds that the statement on which the action was founded was not capable of being found to have a defamatory meaning and that the action was bound to fail.

2 . Mr. O'Connor was involved in family law proceedings brought in the Circuit Court some thirteen years ago. A pre-trial settlement agreement was reached in November 2011, resulting in a separation agreement between Mr. O'Connor and his then wife. In February 2012 the Dublin Circuit Family Court granted a decree of judicial separation together with ancillary orders in accordance with the said agreement.

3 . Unfortunately, the order of the Circuit Court was not the end of the matter. For reasons that are not necessary to outline, a dispute arose over the implementation of an aspect of the agreement. This resulted in Mr. O'Connor issuing separate proceedings in 2014 against both his own and his wife's solicitors.

4 . An application was brought by the solicitors for his then wife to dismiss the proceedings on the grounds, inter alia, that they were an abuse of process and/or frivolous and vexatious and/or bound to fail. For his part Mr. O'Connor, who was by then representing himself, brought an application to consolidate both sets of proceedings. These applications were heard in the High Court by Keane J. who delivered a written judgment on 20 December 2017 ( [2017] IEHC 781).

5 . In the course of his judgment Keane J. considered whether there were reasonable grounds for instituting professional negligence proceedings against the solicitors involved. He stated:-

“74. There is a line of authority, going back at least as far as the decision of Barr J inReidy v National Maternity Hospital ( [1997] IEHC 143 Unreported, High Court, 31st July, 1997) that it is irresponsible and an abuse of process to launch a professional negligence action without first ascertaining that there are reasonable grounds for doing so. That proposition was endorsed by Kelly J. in ( [1998] IEHC 90Connolly v Casey & Anor Unreported, High Court, 12 June, 1998), before receiving its most authoritative restatement to date in the judgments of the Supreme Court (Lynch, Denham and Keane JJ) inCooke v Cronin, already cited. In that case, Lynch J. expressed the view that, in all cases of alleged negligence on the part of a qualified professional person in carrying out his professional duties, ‘there should be some credible evidence to support the plaintiff's case before such an action is commenced.’ Denham J adopted the ‘reasonable grounds’ formulation of Barr J, endorsed by Kelly J, in the cases cited above.

75. The need for credible evidence or reasonable grounds before the commencement of a professional negligence action is generally taken to mean, in practice, that an expert report confirming that there is at least a prima facie case that the particular professional has been negligent should be obtained prior to the institution of proceedings.”

6 . Keane J. also considered the decision of this Court in Murray v Budds[2015] IECA 269, where Peart J. stated:-

“…While there is certainly authority to the effect that in cases alleging medical negligence against a doctor or other professional person, it would be an abuse of process or irresponsible to launch such proceedings in the absence of the plaintiff's solicitor satisfying himself or herself that there were reasonable grounds for theallegations of negligence being made, I would not exclude the possibility that where the action is being contemplated against a solicitor for professional negligence, the plaintiff's solicitor may not in every case require to obtain an independent expert opinion from another solicitor or counsel in order to form the relevant opinion that the facts of the case disclose a prima facie case, and that it is not irresponsible to commence the proceedings.”

7 . In opposing his wife's solicitors' application to dismiss the action against them, Mr. O'Connor relied upon a letter which he received from his own solicitors which referred to the nonpayment of a sum of money due under the settlement agreement. Mr. O'Connor maintained that this amounted to credible evidence or reasonable grounds to bring proceedings against his former wife's solicitors. With some hesitation, Keane J. accepted this, stating:-

“79. Finally, in this context, it seems to me that it must be appropriate to give the husband a limited degree of latitude as a litigant in person.

80. Thus, on the particular facts of this case and not without some hesitation, I have concluded that it would not be appropriate to dismiss as an abuse of process on this ground the husband's remaining claims in negligence against the wife's solicitor.”

Further, Keane J. declined to make an order consolidating both actions.

8 . In 2015 Mr. O'Connor made an application for assistance to the Legal Aid Board. This application was initially unsuccessful but Mr. O'Connor commenced judicial review proceedings. These proceedings were settled on the basis of the Legal Aid Board agreeing to provide legal services to Mr. O'Connor in respect of both sets of professional negligence proceedings. On 27 July 2018 the Legal Aid Board wrote a letter to Mr. O'Connor.

9 . Later in 2018 Mr. O'Connor's legal aid certificate was withdrawn and by plenary proceedings instituted in 2018 Mr. O'Connor challenged that withdrawal.

10 . In 2019 Mr. O'Connor issued two further sets of proceedings, one of which was the within proceedings which included a claim against the Legal Aid Board for damages for defamation and malicious falsehood based on the Legal Aid Board's letter of 27 July 2018. An application was made to the High Court for consolidation of the 2018 and 2019 actions.

11 . In an ex tempore ruling on 20 February 2020 Twomey J. stated that he was satisfied that there was merit in consolidating the three actions, save for the claim of defamation and malicious falsehood. In respect of that claim, Twomey J. accepted Mr. O'Connor's...