Houston v Barniville ; Houston v Geoghegan ; Houston v The General Council of The Bar of Ireland; Houston v The General Council of The Bar of Ireland; Houston v O'Neill

• Jurisdiction: Ireland
• Judge: Mr. Justice Twomey
• Judgment Date: 18 July 2019
• Neutral Citation: [2019] IEHC 601
• Date: 18 July 2019
• Court: High Court
• Docket Number: [2017 No. 10507 P.] [2018 No. 785 P.] [2014 No. 5258 P.] [2014 No. 5715 P.] [2014 No. 10610 P.]

[2019] IEHC 601

THE HIGH COURT

Twomey J.

[2017 No. 10507 P.]

[2018 No. 785 P.]

[2014 No. 5258 P.]

[2014 No. 5715 P.]

[2014 No. 10610 P.]

BETWEEN

EUGENIE HOUSTON

PLAINTIFF

AND

DAVID BARNIVILLE, PAUL O'HIGGINS, FERGAL FOLEY, MEL CHRISTLE, DECLAN DOYLE, PAUL MCGARRY, PADRAIG MCCARTAN, PAUL MCDERMOTT, SARA MOORHEAD, SHANE MURPHY, DAVID NOLAN, RONNIE ROBBINS, HELEN BOYLE, BRIDGET BIRMINGHAM, DAVID DODD, SEAN GUERIN, JOHN LUCEY, GERARD MEEHAN, RODERICK MAGUIRE, LALITA MORGAN PILLAY, NIALL O'DRISCOLL, DERVLA BROWNE, COLM O'HOISIN, MARY-ROSE GEARTY, PATRICK MCCANN, DENIS MCCULLOUGH, ALAN DODD

AND

ANNE-MARIE LAWLOR

DEFENDANTS

BETWEEN

EUGENIE HOUSTON

PLAINTIFF

AND

HUGH GEOGHEGAN, DAITHI O'CEALLAIGH, NIALL GREENE, GRAINNE CLOHESSY

AND

EUNAN O'HALPIN

DEFENDANTS

BETWEEN

EUGENIE HOUSTON

PLAINTIFF

AND

THE GENERAL COUNCIL OF THE BAR OF IRELAND

DEFENDANT

BETWEEN

EUGENIE HOUSTON

PLAINTIFF

AND

THE GENERAL COUNCIL OF THE BAR OF IRELAND

DEFENDANT

BETWEEN

EUGENIE HOUSTON

PLAINTIFF

AND

PATRICK O'NEILL, ANNE-MARIE LAWLOR, MAURICE O'CONNELL, DONAL O'KELLY, PATRICK MCCANN, DENIS MCCULLOUGH, ALAN DODD, ÁINE HYLAND, NÓIRÍN GREENE

AND

MAIRE SWEENEY

DEFENDANTS

Damages – Prima facie case – Application to dismiss – Defendants seeking dismissal of proceedings – Whether the plaintiff had made out a prima facie case

Facts: The plaintiff, Ms Houston, directly contacted clients of two solicitors who had previously instructed her as a barrister, notwithstanding that there was no provision under the Code of Conduct for the Bar of Ireland for a barrister to make direct contact with a client. The two solicitors separately complained about Ms Houston, in one case to the Professional Practices Committee (the PPC) of the General Council of the Bar of Ireland and in the other case to the Barristers’ Professional Conduct Tribunal. The handling by the defendants of this complaint which led to an advisory decision by the Tribunal, asking Ms Houston to only contact clients in accordance with the Code of Conduct, led to five sets of proceedings issued by Ms Houston over the course of five years. Some €500,000 was incurred in legal costs by the defendants in defending the proceedings. The defendants applied to the High Court to dismiss the proceedings at the close of Ms Houston’s evidence, on the grounds that she had not made out a prima facie case. The defendants were, at all relevant times, members of the Bar Council, members of the PPC, members of the Tribunal, or members of the Barristers’ Professional Conduct Appeals Board.

Held by Twomey J that, in relation to the numerous claims made, and the reliefs sought by Ms Houston, the evidence provided by her was insufficient to be reasonably relied upon for any of those claims or reliefs and so, in respect of all the claims made by her, the application to dismiss was successful. The Court concluded that Ms Houston had not made out a prima facie case for her claims and so dismissed those proceedings.

Costs were awarded against Ms Houston with a stay on the costs order, pending an appeal, the defendants were given liberty should they wish to apply to seek to prevent the issue of further proceedings in the future by Ms Houston against them, and the personal representatives of Mr O’Connell were substituted for Mr O’Connell in these proceedings.

Proceedings dismissed.

JUDGMENT of Mr. Justice Twomey delivered on the 18th day of July, 2019

SUMMARY

1 This case is a consolidated action brought by the plaintiff (‘Ms. Houston’) of Naas, County Kildare. It consists of five separate actions by Ms. Houston who is a barrister but no longer a member of the Law Library. The defendants were, at all relevant times, members of the General Council of the Bar of Ireland (the ‘Bar Council’) or members of the Professional Practices Committee (the ‘PPC’) of the Bar Council, or members of the Barristers' Professional Conduct Tribunal (the ‘Tribunal’), or members of the Barristers' Professional Conduct Appeals Board (the ‘Appeals Board’). In the defence to this action, it is pleaded that both the Tribunal and the Appeals Board are independent of the Bar Council and operate pursuant to the Code of Conduct for the Bar of Ireland (the ‘Code of Conduct’).

2 This case can be summarised as follows. Ms. Houston directly contacted clients of two solicitors who had previously instructed her as a barrister, notwithstanding that the Code of Conduct provided at that time that a barrister could only make contact with a client “ at a consultation at which the client and the solicitor are both present” or “in writing to the client through the solicitor”. At the time when Ms. Houston made direct contact with the clients, there was no provision under the Code of Conduct for a barrister to make direct contact with a client. The two solicitors separately complained about Ms. Houston, in one case to the PPC and in the other case to the Tribunal. The most significant outcome of the two complaints was not a penalty or censure but rather an “ advisory” decision by the Tribunal which advised Ms. Houston not to engage with previous, or existing clients, in the manner giving rise to the complaint herein, or in any other manner contrary to the Code of Conduct for the Bar of Ireland.

3 Somehow the handling by the defendants of this relatively minor complaint which led to an advisory decision by the Tribunal, asking Ms. Houston to only contact clients in accordance with the Code of Conduct, has led to a very extreme reaction from Ms. Houston ( e.g. she has described herself as having been treated by the defendants like a Jew in Nazi Germany and how at one stage she felt she was going to die because of the defendants), and has led to five sets of proceedings issued by Ms. Houston over the course of five years, and some €500,000 has been incurred in legal costs by the defendants in defending these proceedings.

4 The majority of this judgment deals with the application to dismiss made by the defendants at the close of Ms. Houston's evidence, on the grounds that she had not made out a prima facie case.

Application to defer delivering judgment

5 I set down the 31st May, 2019 as the date for the delivery of the judgment in this case, but just before judgment was delivered Ms. Houston made two submissions to this Court. The first submission related to the possible recusal application, however it became clear that having raised the issue, Ms. Houston was not pursuing this point, as she stated that ‘I am not asking you to recuse yourself’. The second submission was an application by Ms. Houston to defer delivering judgment because the Court of Appeal had delivered a judgment on the 21st March, 2019 on the issue of applications to dismiss, which had recently been published on the courts service website, entitled Burke v. Mullaly & Ors [2019] IECA 82 which Ms. Houston claimed should have been drawn to this Court's attention because of its significance to the application to dismiss in this case. She quoted in particular from para. 33 of that judgment where McGovern J. when dealing with the same situation as in this case, namely where the defendants had advised that they would go into evidence if the application to dismiss was refused, stated that:

‘Having been informed that the first-named respondent would go into evidence if the application for non-suit was refused the trial judge should have deferred any decision on that until all the evidence was heard.’

As counsel for the defendants was not familiar with the Burke case and its application, if any, to this case, I decided to defer giving judgment to allow both parties make submissions on the effect of that Court of Appeal decision on the application to dismiss in this case. On the 9th July, 2019, there was a separate hearing on this issue, which is referenced later in the body of this judgment, in the section dealing with the application to dismiss.

6 For the reasons set out below, this Court concludes that the application to dismiss Ms. Houston's claims should be granted.

7 Ms. Houston has given evidence that she has no assets, and for this reason, this litigation is an example of how it is a case of win/win for plaintiffs but “lose/lose” for defendants being sued by an impecunious plaintiff with an unmeritorious claim, i.e. the defendants lose by settling an unmeritorious claim, but also lose if they decide to fight and “win” against an unmeritorious claim. There is no downside for an impecunious plaintiff (since they do not have assets to pay the defendant's legal costs), only the upside of a potential settlement if the defendant wishes to avoid incurring the massive costs of a High Court action which will be irrecoverable from the plaintiff. This case therefore illustrates why the real power in unmeritorious claims is the threat of the irrecoverable legal costs which can be inflicted on a defendant by an impecunious plaintiff. This is why it makes economic sense for claims by impecunious plaintiffs to be settled, even though there is no negligence or wrongdoing by a defendant. They are settled, not because the claim has any merits, but because of the enormous costs which can be inflicted by an impecunious plaintiff on a defendant. Since this case is one where no settlement was possible, this therefore is a rare example of a case that went to hearing even though there was little prospect of the defendant recovering in excess of €500,000 in costs from the plaintiff. As such it highlights that in cases against an impecunious plaintiff with an unmeritorious claim, a defendant can “lose” financially by fighting and “winning” the case.

8 This case also illustrates how the high costs of litigation, particularly of unmeritorious litigation, can have a very significant impact upon insurance costs, in this case the insurance costs of the professional body representing barristers, which increased by 300%. As noted by Charleton J. (when writing...