Finbar Tolan v John Brady and John Dillon-Leetch Both Trading Under the Style and Title of Dillon-Leetch and Comerford Solicitors

• Jurisdiction: Ireland
• Judge: Ms. Justice Mary Rose Gearty
• Judgment Date: 25 July 2021
• Neutral Citation: [2021] IEHC 548
• Docket Number: [2018 No.10665 P]
• Court: High Court

Between:

Finbar Tolan

Plaintiff

and

John Brady and John Dillon-Leetch Both Trading Under the Style and Title of Dillon-Leetch and Comerford Solicitors

Defendents

[2021] IEHC 548

[2018 No.10665 P]

THE HIGH COURT

Professional negligence – Judgment in default of defence – Abuse of process – Plaintiff seeking judgment in default of defence – Whether the claim is frivolous and vexatious or an abuse of process

Facts: The plaintiff, Mr Tolan, sought damages against the defendants, Mr Brady and Mr Dillon-Leetch, the solicitors whom he instructed in 2015 proceedings, for, amongst other things, professional negligence. The claims revolved around two main arguments: that they should have called other witnesses and that they did not reveal to him the facts which would have disclosed the potential reverse bias of the trial judge. The plaintiff sought judgment in default of defence and the defendants sought an order to dismiss the claim in its entirety as one that is frivolous and vexatious or an abuse of process.

Held by the High Court (Gearty J) that the motion to strike the case out as an abuse of process must succeed; while the case might have survived a motion to dismiss it on the pleadings, once the claims were examined, there were no credible facts which sustain a cause of action and the inherent jurisdiction of the Court to prevent an abuse of process appeared to be the appropriate remedy. Gearty J held that, in the circumstances, the motion for judgment in default of defence was not an appropriate order; the same considerations, that the speculative claims of the plaintiff could not succeed and that the allegation of reverse bias was not well-founded, made it unjust to enter judgment against the defendants, despite their delay in filing their defence.

Gearty J held that the importance of finality in litigation and the overall justice of the case required that the case be struck out.

Case struck out.

Judgement of Ms. Justice Mary Rose Gearty delivered on the 25 ^th day of July, 2021

1. Introduction

1.1 The Plaintiff seeks judgement in default of defence and the Defendant seeks an order to dismiss the claim in its entirety as one that is frivolous and vexatious or an abuse of process. Both motions were heard together. The principles apparently in conflict in this case are those of finality in litigation and every litigant's right to justice and fair procedures.

1.2 The substantive claim arises out of an earlier set of proceedings. The Plaintiff has already sued a cooperative, Connaught Gold Cooperative Society Limited (Connaught Gold), claiming that this body breached the terms of a written contract with him. The High Court dismissed that claim in 2015, former President of the High Court, Mr. Justice Kearns (the Trial Judge), having found that there was no written contract on which the Plaintiff could rely. The Court of Appeal heard an appeal against that finding and dismissed the appeal. The Plaintiff then discovered that the Trial Judge was related to a solicitor in the firm which acted for him in the case. The Plaintiff brought fresh proceedings before the High Court, again seeking to set aside the original decision, this time on various grounds, including that of reverse bias, i.e. that the Court was more likely to find for his opponents, lest they seek to overturn a decision in his favour by accusing the Judge of bias. The High Court dismissed that claim on the grounds that it had no jurisdiction to hear it but considered and rejected the logic of the Plaintiff's argument in respect of reverse bias. The Court of Appeal dismissed the Plaintiff's appeal against that decision, also having considered the reverse bias claim on its facts.

1.3 The Plaintiff now seeks damages against the solicitors whom he instructed in the 2015 proceedings for, amongst other things, professional negligence. He also sought declarations in respect of the original hearing but has abandoned this aspect of the claim in submissions to this Court and confirms that he no longer seeks to challenge the decision of the Trial Judge. The only claims presented to this Court in submissions were those against the Defendants, his then solicitors, and the claims revolve around two main arguments: that they should have called other witnesses and that they did not reveal to him the facts which would have disclosed the potential reverse bias of the Trial Judge. Other matters of fact are presented as claims and will be considered below.

1.4 The motions arise in circumstances where the Defendants have, to date, failed to file a defence and, as a response to the motion for judgment in default of defence, the Defendants filed their own motion claiming that the action itself should be dismissed as vexatious or struck out as an abuse of process. The Court notes that a draft defence is now ready to be filed, should the Defendants' motion fail and if the Court permits a final extension of time.

1.5 The Plaintiff argues that the courts must administer justice and, he submits, the initial decision was wrong. Having failed to overturn that decision, firstly on appeal and secondly by way of challenging the then judge, he now seeks (amongst other reliefs, some of which are now abandoned) damages from his solicitors on the grounds that they were negligent and that, as a result, he lost the case. The consequences of losing the case were very serious, he submits, in that his business collapsed, as did his health. An assessment of the case requires a rehearsal of the main facts, the procedural history and various legal concepts including the purpose of pleadings, the meaning of the phrase “cause of action” and finality of litigation in the context of administering justice.

2. Outline Facts of the Connaught Gold Proceedings

2.1 In 2012, five men met to discuss the credit facilities being enjoyed by the Plaintiff at cattle marts run by Connaught Gold. The Plaintiff claimed, in the breach of contract case that followed these events, that this meeting, on the 16th of July 2012, led to a written agreement which the cooperative breached the following month. Connaught Gold took the view that there was no binding agreement and that it was entitled to refuse to extend credit facilities to the Plaintiff. After a meeting on the 9th of August of 2012, the Plaintiff was not afforded further credit by that company, having enjoyed three weeks of credit for many years until that date (albeit reduced to two weeks on the 16th of July). He was still entitled to buy at the marts but not on the same terms as he had enjoyed until that meeting in August. In May of 2015, after a 4-day hearing, the Trial Judge ruled against the Plaintiff in an ex tempore judgment.

2.2 This 2015 case revolved around a document which reads as follows:

“By the 10th Aug Finbar Tolan will have his overdraft in place to allow cheque to lodg [sic] on the Saturday for the previous Saturday week's purchase

During Galway race week cheques will be lodged in the current way with no gap in holding cheques

Ballinrobe cheques will continue to lodg [sic] in same way as in the past

Finbar agrees that the above is acceptable and has to be in place by the 10/8/2012 or all offers are off the table.

The only stock purchased will be dry cows and bulls and if any other stock purchased will be paid for on day.

Signed

Martin Walsh, Tom McGuire, Michael Murray, Tom Jordan, Finbar Tolan

16th – 7th – 2012.”

2.3 The Trial Judge indicated on day two, after the Plaintiff's case closed, that he did not consider this document to constitute a contract. This decision was expressed to be on the basis of the document itself. At that time, the Plaintiff had given evidence that his interpretation of the document was that it was to be of a continuing nature, until at least December of 2012. Though he had served subpoenas on other witnesses, they were not called. One of these was the owner of the mart who seemed to be a reluctant witness, given the lengths to which he appeared to go to avoid service of the subpoena. The other two were signatories of the document. The Trial Judge noted that he could only construe the document in one way, namely that there was to be continuing access to the marts but not unlimited as to time and that, even at a stage when he had only heard the Plaintiff's side of the case, the amount claimed by the Plaintiff could only be quite limited. In other words, at its height, the Plaintiff's case could only be for reparations in respect of breach of a credit agreement said (by him) to be in place until December 2012.

2.4 On day three, the defence called two of the signatories of the document, both mart managers, both of whom gave evidence that the document was not a contract but a memo, and that the Plaintiff would have been afforded continuing credit terms had he been more reasonable. The Plaintiff had said in evidence that the written document constituted what had been agreed by all parties in a general way, or at least until December 2012, including that two week's credit would be afforded to him. The witnesses for the defence disagreed and said there was no such agreement and that the document set out the discussion and made provision for the time between that meeting, in July 2012, and the next which was expected to be on the 10th of August but which in fact took place on the 9th of August.

2.5 In the document itself, as one can see from its terms, the only date nominated was the 10th of August. On day four the defence case closed, and the Trial Judge held for Connaught Gold saying that he was satisfied that the document was evidence of a holding arrangement, that he based this decision on the document itself but that its terms were supported by the defence evidence in that regard. The words of his ruling were: “ Certainly it is not to be taken as a contract, for the very simple reason [it is] non-specific as to time,...