Egan v The Governor and Company of the Bank of Ireland

• Jurisdiction: Ireland
• Judge: Mr. Justice Noonan
• Judgment Date: 20 December 2022
• Neutral Citation: [2022] IECA 294
• Court: Court of Appeal (Ireland)
• Docket Number: Record Number: 2022/71

Between/

Brian Egan

Plaintiff/Appellant

and

The Governor and Company of the Bank of Ireland

First Named Defendant

and

John G. Dillon-Leetch and Robert Potter-Cogan Formerly Practicing under the Style and Title of Dillon-Leetch & Sons Solicitors Now John G. Dillon-Leetch Practicing under the Style and Title of Dillon-Leetch & Comerford Solicitors

Second Named Defendant/Respondent

and

Sean Maloney & Associates

Third Named Defendant

[2022] IECA 294

Noonan J.

Faherty J.

Pilkington J.

Record Number: 2022/71

High Court Record Number: 2014/2455P

THE COURT OF APPEAL

Inordinate and inexcusable delay – Balance of justice – Prejudice – Appellant appealing against the dismissal of his claim – Whether the balance of justice fell in favour of dismissing the claim

Facts: The respondent, Dillon-Leetch & Comerford Solicitors (the Firm), applied to the High Court to dismiss the claim of the appellant, Mr Egan, on grounds primarily of delay. The High Court judge was satisfied that the solicitors were entitled to the relief claimed. The appellant appealed to the Court of Appeal saying that the trial judge determined that the period of delay between the transaction and the commencement of the proceedings i.e. between 2004 and 2014 was inordinate and that no good excuse had been offered for the inactivity during this period. It was said that the judge erred in that respect in failing to have regard to the fact that the solicitors had been acting for the appellant between 2004 and 2013 and had concealed from him the defect in the title and planning. When the appellant discovered this, it was said in 2013, he issued proceedings a year later. At the hearing of the appeal, emphasis was laid by the appellant on an alleged failure by the judge to have regard to delays brought about solely by the Firm who sought to stymie and hamper the appellant progressing his claim first, by refusing to accept service, second by failing to deliver a defence in a timely manner and third by failing to make proper discovery, all of which necessitated repeated motions being brought by the appellant. It was said that the judge failed to have any or any sufficient regard to the fact that the appellant had trouble getting legal representation initially and when he did, then getting a solicitor to give an expert report. This, the appellant submitted, rendered the delay highly excusable. The appellant submitted that, in any event, the judge was wrong to regard the delay as inordinate. It was also submitted that the judge erred in assessing that the balance of justice required the proceedings to be dismissed. At the hearing, that submission was amplified by reference to an alleged failure on the part of the Firm to bring the motion to dismiss at an earlier juncture when they had sat on their hands and allowed the appellant to incur costs and expense in instructing solicitors and instructing experts before bringing their application. It was finally said that the solicitors failed to discharge the onus of proving prejudice.

Held by Noonan J that, from 2008, the appellant was undoubtedly on notice of the problems of which he complained and had he moved with any reasonable alacrity at that stage, Mr Potter-Cogan of the Firm would in all likelihood have been able to meet the claim. Noonan J held that the appellant’s allegations that Mr Potter-Cogan on the one hand assured him he would rectify matters, and on the other concealed the matters from him, were mutually contradictory and did not explain his failure to move for a further five years. Having regard to all the circumstances, Noonan J was satisfied that the balance of justice fell firmly in favour of dismissing the claim. He held that if the matter were to proceed to trial, the court would be faced with determining issues which would, by then, be the best part of two decades in the past. Given the undisputed evidence concerning Mr Potter-Cogan, Noonan J could not see how it could be said that there was anything other than a risk that a fair trial could no longer be had. To that extent, it seemed to Noonan J that this case was in effect covered by both the Primor plc v Stokes Kennedy Crowley [1996] 2 IR 459) and O’Domhnaill v Merrick [1984] IR 151 lines of jurisprudence.

Noonan J held that the trial judge correctly concluded that the proceedings should be dismissed as against the Firm. Noonan J dismissed the appeal. His provisional view was that as the Firm had been entirely successful, it was entitled to the costs of the appeal.

Appeal dismissed.

UNAPPROVED

JUDGMENT of Mr. Justice Noonan delivered on the 20th day of December, 2022

1 . This application is brought by the second defendants (“the Firm”) to dismiss the claim of the appellant (“the plaintiff”) on grounds primarily of delay.

Background

2 . At all relevant times, the Firm acted as solicitors on behalf of the plaintiff in relation to the purchase of certain property (“the Property”) in 2004. At that time, the plaintiff was the owner of a fuel filling station in Dunmore, County Galway, being the property comprised in Folio 41976 of the Register of Freeholders, County Galway, which he acquired in or about 1993. Immediately adjoining the filling station was a building known as the Alpha Centre, laid out in seven commercial units let to various tenants. In early 2004 the plaintiff was interested in acquiring this property and instructed Mr. Robert Potter-Cogan of the Firm to act on his behalf. The property to be acquired is comprised, in part at least, in Folios 56199 and 40857 of the Register of Freeholders, County Galway.

3 . It would appear that the contract for sale was signed in February 2004. In or about this time, it seems that the plaintiff instructed Mr. Sean Maloney of the third named defendant firm who are building and planning consultants. On the 11 ^th March, 2004, Mr. Maloney wrote to Mr. Potter-Cogan advising that he had met the plaintiff that day who furnished him with a drawing showing the building for which planning permission was granted. The plaintiff also explained to Mr. Maloney that the owners of the building had obtained planning permission for a change of use from the existing retail units to three townhouses and four apartments.

4 . Mr. Maloney confirmed that he had examined the drawings of the existing building and compared it with that for which permission was granted and noted that they differed a lot and that the façade of the existing building was not the same as that shown in the permission. He also confirmed that he had met with the planning officer for Galway County Council on the same day explaining his concerns about the matter and the planning officer agreed that in his opinion, if the façade did not match that contained in the planning permission, retention permission would need to be sought.

5 . Despite that, it would appear that the plaintiff was happy to proceed with the purchase and ultimately the sale was closed in September 2004. In February 2005, Mr. Potter-Cogan certified the title for the plaintiff's lender, the first defendant herein. In 2006, a fire occurred which damaged the Property and necessitated a further planning application to facilitate the rebuilding of the Property. Mr. Maloney was again retained by the plaintiff in relation to this matter.

6 . One of the primary issues that arises in these proceedings is that the Land Registry maps for the two Folios comprising the Property do not coincide with the boundary on the ground. Thus, a substantial part of the building known as the Alpha Centre in fact falls outside the Land Registry maps and is on, what appears to be, unregistered land. This is alleged by the plaintiff to constitute a serious defect in his title which affects the marketability of the property. That contention has never been explained, and in particular why it could not be rectified by an application for first registration.

7 . It would appear that by 2010, if not indeed earlier, the plaintiff was interested in selling on the Property and in the statement of claim ultimately delivered herein, the plaintiff pleads as follows:

“16. … In the course of 2010, the plaintiff was approached by Martin Smith, who offered €1,800,000 for the filling station, which would have cleared all the plaintiff's debt and allowed him to continue farming.

17. As a direct result of the title and planning difficulties, Martin Smith walked away from the deal …”

8 . In the course of argument during the appeal, counsel for the plaintiff suggested that this event may have occurred as early as 2008 and is dealt with further below, but in any case, this pleading suggests that the plaintiff was, at a minimum, aware by 2010 at the latest that there were “title and planning difficulties” with the property.

9 . It would appear from a medical report on Mr Potter-Cogan provided for the purposes of these proceedings that he ceased working as an active solicitor in 2011 although the plaintiff disputes this and points to a letter written to Mr. Potter-Cogan at the Firm in 2012. The plaintiff alleges that the Firm continued to represent him until 2013.

10 . It is clear that by early 2014 at the latest, the plaintiff's concerns about the matter were such that he was actively considering bringing proceedings against the Firm. In that respect, he consulted Cormac McCarthy Solicitors of Athenry, who provided him with a letter addressed to “To whom it concerns” dated the 16 ^th January, 2014. As this letter is of some importance in the context of this application, I should quote it in full:

“Re: Brian Egan – Purchase of Properties Folios 45857, 56199 and 41976 County Galway

Dear Sirs,

Please be advised that we have reviewed the enclosed file and have indicated to Brian Egan that he should seek some advices regarding a potential claim here in relation to the bank and his acting firm of solicitors.

In short, it appears that the property...