Emerald Isle Assurance and Investments v Dorgan
| Jurisdiction | Ireland |
| Judge | Denham C.J.,Charleton J.,O'Malley J. |
| Judgment Date | 30 May 2016 |
| Neutral Citation | [2016] IESCDET 67 |
| Court | Supreme Court |
| Date | 30 May 2016 |
[2016] IESCDET 67
THE SUPREME COURT
DETERMINATION
Denham C.J.
Charleton J.
O'Malley J.
AND
AND
The applicants seek leave to appeal the entire judgment of the Court of Appeal delivered on 25th January, 2016, (Ryan P., Irvine J. and Hogan J.) ( [2016] IECA 12).
The jurisdiction of the Supreme Court to hear appeals is set out in the Constitution.
Article 34 of the Constitution provides for the public administration of justice; describes the courts established by the Constitution, and those which may be established by law; provides for the full and original jurisdiction of the High Court; establishes the Court of Appeal under Article 34.2; and sets out its appellate jurisdiction under Article 34.4.1°. This states:
‘1° The Court of Appeal shall –
(i) Save as otherwise provided by this Article,
(ii) With such exceptions and subject to such regulations as may be prescribed by law, have appellate jurisdiction from all decisions of the High Court, and also shall have appellate jurisdiction from such decisions of other courts as may be prescribed by law.’
Article 34.4.3° of the Constitution also provides for the finality of decisions of the Court of Appeal, save for appeals that may be taken to the Supreme Court from its decisions under Article 34.5.3°.
Under Article 34.5.4° it is possible for a decision of the High Court to be directly appealed to the Supreme Court, bypassing the Court of Appeal. This type of appeal is sometimes referred to colloquially as a ‘leap-frog’ appeal.
The Article relevant to this appeal, where the Court of Appeal has already given judgment in a matter, is Article 34.5.3°, which states:
‘The Supreme Court shall, subject to such regulations as may be prescribed by law, have appellate jurisdiction from a decision of the Court of Appeal if the Supreme Court is satisfied that -
(i) the decision involves a matter of general public importance, or
(ii) in the interests of justice it is necessary that there be an appeal to the Supreme Court.’
The decision of the Supreme Court under Article 34.5.6 is, in all cases, ‘ final and conclusive’.
Primarily, this Court is now ‘ subject to such regulations as may be prescribed by law’, an appellate jurisdiction from the Court of Appeal. Such an appeal may only be exercised provided that this Court is satisfied, either that the relevant decision of the Court of Appeal ‘ involves a matter of general public importance’, or, alternatively, that it is ‘ in the interests of justice’, necessary that there be an appeal to this Court. The constitutional framework established by the 33rd Amendment of the Constitution thus requires, in order for a party to be entitled to appeal to this Court from a decision of the Court of Appeal, that it be demonstrated that either ‘ a matter of general public importance’ arises, or that, ‘ in the interests of justice, it is necessary that there be an appeal’ to this Court.
The statutory framework for the exercise of the right to appeal to this Court for such leave is to be found in the Court of Appeal Act, 2014, and, in particular, the provisions of s.44 of that Act, which inserts a new s.7 into the Courts (Supplemental Provisions) Act, 1961.
The Rules of Court are set out in the amended Order 58 of the Rules of the Superior Courts.
The Constitution has retained the entitlement of one appeal as a right from the High Court, subject to express exclusions or regulation by statute from the High Court to the Court of Appeal. What is sought here is a second appeal. The jurisdiction to bring an appeal to this Court is confined principally to cases where, as a result of the determination of the Court of Appeal, the decision of that court is such that the issues raised on a proposed appeal would involve a matter of general public importance, or would be such that it is in the interests of justice that there be a further appeal to this Court.
The plaintiffs had been involved in a tied agency arrangement with Hibernian in the early 1990s but fell out with it in 1994. Three sets of proceedings were issued. By the end of 1996 these had been consolidated and an amended statement of claim had been delivered, which claimed special damages in a sum of just under IR£6.25m. This figure appears to have been based on calculations done by the in-house accountant.
In November 1997 the defendant lodged IR£425,000.
The discovery process appears to have been complete by August 1999.
The papers were sent to senior counsel, who advised proofs in March, 2001. Part of the advice was that a report should be obtained from an independent forensic accountant.
In June 2002 the defendant brought a motion to dismiss the proceedings for want of prosecution. This was struck out on consent, with costs to the defendant.
Mr. Des Peelo was engaged in January 2003. After seeking further information, he produced a draft report in November 2003. He asked for further information in March 2004 and, having received it, sent a second draft in July 2004.
The difficulty that arose was that Mr. Peelo felt that he could not stand over a claim greater than IR£2.8m. Altogether, he produced five or six draft reports between 2003 and 2007, none of which were acceptable to the plaintiffs. However, they did not engage another accountant.
There seems to have been evidence that senior counsel wrote to the solicitor several times without reply, and then returned the papers. The solicitor also failed to reply to other correspondence. It is also noteworthy that he wrote to the clients at one point stating that he had contacted the solicitors on the other side with a view to setting up a meeting – all that had in fact happened was one failed effort to make contact, with no follow-up.
A notice of intention to proceed was served in late 2009, whereupon a second motion to dismiss for want of prosecution was issued. The plaintiffs were advised that this was likely to be successful. In July 2010 the action was settled for the sum of €300,000, to include costs.
The claim made against the solicitors is for the euro equivalent of IR£6.2m.
With reference to Jackson & Powell on Professional Liability (6th Ed.)(Sweet & Maxwell, 2006), the President noted the obligation of a solicitor to prosecute an action with reasonable diligence. If the action is struck out for failure to comply with time limits or for want of prosecution, the solicitor will in the ordinary course have no defence to an action for breach of duty, unless the client caused or consented to the delay.
The President also quoted the following passage from Flenley's Solicitors' Negligence and Liability:
‘In the absence of exceptional circumstances, solicitors who fail to issue claims within the relevant limitation period or who allow their clients' cases to be struck out for want of prosecution or who allow their clients to be prevented from defending the claim for procedural reasons, will be liable in negligence.’
The President found that there were exceptional circumstances in the case, in that the plaintiffs were not happy to proceed on the basis of Mr. Peelo's evidence but did not retain another independent expert. The plaintiffs' own expert witness had agreed that...
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