Fallon v Gannon

• Jurisdiction: Ireland
• Judge: FINLAY C.J.,GRIFFIN J.
• Judgment Date: 01 January 1988
• Neutral Citation: 1987 WJSC-SC 1654
• Date: 01 January 1988
• Court: Supreme Court

1987 WJSC-SC 1654

THE SUPREME COURT

Finlay C.J.

Griffin J.

Hederman J.

239/81

FALLON v. GANNON

BETWEEN

ANTHONY C. FALLON

Plaintiff/

Appellant

and

F. GERARD M. GANNON practising as J. DELANEY GANNON &COMPANY, SOLICITORS

Defendant/

Respondent

Synopsis:

NEGLIGENCE

Solicitor

Evidence - Absence - Sale of land - Licensed premises - Turnover - Misrepresentation by vendor client - Purchaser rescinded contract and claimed return of his deposit and recoupment of fees paid to auctioneer - High Court held that client had misrepresented to the purchaser the amount of the annual turnover of the business conducted by the client in his licensed premises - The court held that the client had made the misrepresentation in order to induce the purchaser to bid for the premises at an auction, and that the purchaser's final bid was made by him in reliance upon that representation - The court ordered the client to repay to the purchaser his deposit and to recoup him for the fees paid by him to the auctioneer and for his costs of that action - An appeal by the client was dismissed by the Supreme Court - The client then instituted this action against the defendant, who was the solicitor that acted for the plaintiff (a) in the sale of the licensed premises and (b) in the conduct of the plaintiff's defence to the purchaser's action for rescission of the contract of sale - The plaintiff claimed damages from the defendant for the alleged negligence of the defendant while so acting for the plaintiff - At the trial of this action before a judge and jury, the plaintiff sought to prove many instances of the defendant's negligence but, at the conclusion of the plaintiff's evidence, the trial judge withdrew the case from the jury and directed them to return a verdict for the defendant - The plaintiff appealed to the Supreme Court - Held (inter alia), in dismissing the appeal and affirming the many rulings of the trial judge, that the fact that the defendant had not attended the auction, but had arranged for his town agent to be there, did not constitute negligence on the part of the defendant - Held that there was no evidence to support the allegation that counsel for the plaintiff in the purchaser's action had failed to discharge his obligations to the plaintiff and that, even if the contrary had been established, the defendant would not be responsible for the failure of counsel - Held that the absence of a stenographer at the trial of the purchaser's action did not constitute negligence by the defendant - Held that the defendant's withdrawal of his services, after the defendant had advised the plaintiff not to appeal against the High Court decision in the purchaser's action, and after the plaintiff had lost confidence in the defendant, did not constitute negligence by the defendant - Held that, as the plaintiff had not established negligence by the defendant, the plaintiff had not established an answer to a claim by the defendant to a lien on certain documents in respect of his fees - (239/81 - Supreme Court - 30/7/87) - [1988] ILRM 193

|Fallon v. Gannon|

PROFESSIONS

Solicitor

Negligence - Evidence - Absence - Withdrawal of services - Town agent attending auction - ~See~ Negligence, solicitor - (239/81 - Supreme Court - 30/7/87) - [1988] ILRM 193

|Fallon v. Gannon|

1 JUDGMENT delivered on the 30th day of July 1987by FINLAY C.J. [Hederman Age.]

2 This is an appeal brought by the Plaintiff against the Order of the High Court dated the 9th July 1981 dismissing the Plaintiff's claim against the Defendant for damages for negligence and breach of contract acting as the Solicitor for the Plaintiff.

3 In the year 1973 the Plaintiff decided to offer for sale by public auction his business premises consisting of a licensed premises and petrol filling station and other lands situate at Rooskey in the County of Leitrim. The Defendant together with hisbrother, since deceased, had been for a number of years Solicitor to the Plaintiff and carried out the work of a Solicitor to the Plaintiff in connection with this sale.

4 On the 15th November 1973, at the conclusion of a public auction held in Dublin by the Auctioneers Archbold, Corry & O'Connor, one John Quinn a solicitor employed by Messrs. Gearty & Co., Solicitors, Longford, signed a Contract to purchase the premises the property of the Plaintiff for the sum of £95,000 in trust. He was in fact signing on behalf of James Airlie and Eamon Kiernan (hereinafter referred to as "the purchasers"). After the payment of the deposit andauctioneers" fees but before the completion of that Contract the purchasers insituted proceedings against the Defendant claiming rescission of the Contract.

5 Those proceedings were based on an allegation that the purchasers had been induced to enter into the Contract by an express warranty made to them throughtheir agent the said John J. Quinn by the Plaintiff, verbally, that the turnover of income derived from the property during the immediate preceding financial year was between £60,000 and £65,000 and that in his annual return of income to the Revenue Commissioners, he, the Plaintiff, had returned a turnover in the region of £60,000 to£65,000 in respect of the property. It was further alleged that the said representation was false and that the Plaintiff had given it fraudulently either knowing that it was false and untrue or recklessly and not caring whether it were true of false.

6 The Plaintiff denied the making of the representation and counterclaimed for specific performance of the Contract. After a hearing in the High Court before Hamilton J. sitting without a jury, by Order dated the 13th June 1975 it was ordered that the Plaintiff should return forthwith to the purchasers the deposit of £20,000 and £4,750 auction fees paid by them, together with interest thereon at the rate of 10 per cent per annum from the 15th November 1973 tothe date of that Order, amounting to £3,905.75. The Plaintiff's counterclaim was dismissed. This Order was made pursuant to a finding of fact entered by the trial Judge to the effect that the Plaintiff had made the express oral representation immediately prior to the holding of the auction that the turnover figures were between £60,000 and£65,000 and that his income tax return had been based on those figures, whereas the figure for turnover in the immediately preceding financial year was approximately £20,000 only. The trial Judge found that this representation was made despite its denial by the Plaintiff and that it was false, to his knowledge, or that he made it recklessly, not caring whether it was true or false.

7 Against that decision the Plaintiff appealed to this Court and conducted his appeal in person.

8 On the 25th October 1976 this Court dismissed the appeal of the Plaintiff, holding that the question as to whether the representation alleged had been made by the Plaintiff prior to the auction was a question offact which the trial Judge was entitled to decide and had decided and that this Court, since the matter depended on the trial Judge's assessment of the witnesses before him, could not interfere with thatdecision.

9 In the year 1979, the Plaintiff instituted the present proceedings against his former Solicitor, claiming from him damages for negligence and breach of contract.

10 The claim was made under a large number of headings, consisting of individual allegations of negligence, but they may be broadly divided into two separate categories. They are, firstly, allegations that the solicitors were negligent in connection with the carrying out of their work concerning the sale of the premises up to the time it was repudiated by the purchasers and, secondly, that they were negligent in the manner in which the defence of the action brought by the purchasers for the rescission of the contract was handled by them.

11 From the submissions made to this Court by thePlaintiff in person, it is clear that his real belief is that the case brought against him by the purchasers was falsely invented and fabricated by the solicitor acting on their behalf in order to avoid the consequences of their inability from a financial point of view to conclude the purchase and that his (the Plaintiff's) solicitor was in collusion with that to some extent or certainly seeking to protect his professional colleague.

12 I have no doubt that this belief is completely false and it is distressing that it should become so clearly an obsession of the Plaintiff's, for it has undoubtedly increased the loss which was suffered by him as a result of this abortive sale. The action by the Plaintiff was heard in the High Court before McMahon J. and a jury. At the conclusion of the evidence for the Plaintiff he and his wife having conducted the case themselves, application was made on behalf of the Defendant to withdraw the case from the jury on the basis that no prima facie evidence ofnegligence causing damage had been established. McMahon J. acceded to that application and delivered a detailed and careful ruling dealing with each of the grounds of negligence relied upon by thePlaintiff.

13 The Plaintiff in this appeal has sought to reverse the decision of McMahon J. on each of the headings under which he gave it.

14 I will, therefore, deal with each of the submissions made by the Plaintiff in the same order as they were dealt with by the trialJudge.

Attendance at auction

15 The first ground of negligence dealt with was an allegation that the Defendant should have attended the auction which was held in Dublin and that he was negligent in sending a town agent, Mr. Conroy, to attend it in his stead. The trial Judge, in my view, correctly held that the purpose of a solicitor going to an auction was to deal with any question of title raised by a purchaser intending to purchase. The Plaintiff's claim apparently is that had Mr. Gannon been present atthe auction, either that he would have prevented him...