O'Fearail v McManus

• Jurisdiction: Ireland
• Judge: O'Flaherty J.
• Judgment Date: 18 March 1994
• Neutral Citation: 1995 WJSC-SC 1362
• Court: Supreme Court
• Date: 18 March 1994

1995 WJSC-SC 1362

THE SUPREME COURT

O'Flaherty J.

Egan J.

Denham J.

374/93

O FEARAIL v. MCMANUS

SEAN O FEARAIL

Plaintiff

.V.

COLM McMANUS

Defendant

Citations:

RSC O.7 r3

Synopsis:

PROFESSIONS

Solicitors

Client - Instructions - Withdrawal - Solicitor - Record - Removal of name - Solicitor instructed by insurers on behalf of defendant - Repudiation of liability by insurers not accepted by defendant - Rules of the Superior Courts, 1986, order 7, r. 3 - (374/93 - Supreme Court - 18/3/94) - [1994] 2 ILRM 81

|O'Fearail v. McManus|

1 Ex-tempore judgment of O'Flaherty J.delivered on the 18th day of March, 1994. [NEMDISS].

2 This is a case that has taken a rather bizarre twist. It began with a plenary summons that was issued by the plaintiff in which there was a claim for damages for the wrongful assault and battery of the plaintiff by the defendant on the 23rd February, 1990 at Rock Road, Blackrock, Co.Dublin.

3 In the statement of claim it is pleaded that the plaintiff was cycling along Rock Road, in the direction of Dublin, when the defendant committed an unlawful assault and battery on him by dragging him and causing him to fall from his bicycle whereby he suffered severe personal injuries, loss and damage.

4 It will be clear that the essential plea in the case was one of assault and battery.

5 Nonetheless the insurance company, that is the insurance company who were indemnifying the defendant in respect of his driving of the car, instructed Mr. John O'Brien, solicitor, to take up the matter on their behalf and he duly delivered a defence on the 5th February and then in due course the insurance company took the view that this incident was not covered by the policy of insurance that they had issued and that they should no longer be seen to be an insurance company who would indemnify the defendant in respect of this occurrence and therefore, in effect, Mr. O'Brien found himself withoutinstructions to act for the defendant thought the appropriate thing to do would be to come off record.

6 The relevant rule obviously gives the courts a wide discretion. It is contained in Order 7 r. 3 of the Rules of the Superior Courts, 1986 and it gives a solicitor on record the entitlement to apply to the court for an order declaring that the solicitor has ceased to be the solicitor acting for the relevant party to the proceedings and the court may orderaccordingly.

7 The matter came before the High Court...