Hussey v Dillon

• Jurisdiction: Ireland
• Judgment Date: 31 January 1995
• Date: 31 January 1995
• Docket Number: [1991 No. 15526P]
• Court: Supreme Court

High Court

Supreme Court

[1991 No. 15526P]

Hussey v. Dillon

Sean Hussey

Plaintiff

and

Francis Joseph Plunkett Dillon, Timothy H. Crowley, James N. Dudley, Brian O'Flaherty, Hugh O'Donnell, David R. Anderson, John A. Glackin, Bryan J. Strahan, Randal Doherty and Barry O'Neill, practising under the style and name of Gerard Scallan & O'Brien, Solicitors

Defendants

Cases mentioned in this report:—

British Russian Gazette, etc. Ld. v. Associated Newspapers, Ld. [1933] 2 K.B. 616; [1933] All E.R. Rep. 320; 102 L.J.K.B. 775; 149 L.T. 545.

Duck v. Mayeu [1892] 2 Q.B. 511.

Murphy v. Donoghue [1993] 1 I.R. 527; [1992] I.L.R.M. 378.

Tort -Concurrent wrongdoers - Several actions - Professional negligence - Solicitors - Claim for general damages - Special damages not pleaded - Particulars of special damages delivered - No evidence in relation to special damages admitted - Compromise expressed to be in full satisfaction of all claims - Whether accord and satisfaction - Whether issue of special damage compromised-Subsequent identical claim for general and special damages against different parties - Whether defendants and defendants in previous action concurrent wrongdoers - Whether responsible to plaintiff for same damage - Whether plaintiff estopped from pursuing claim against defendants - Civil Liability Act, 1961 (No. 41), s. 11, sub-ss. 1 and 2 and s. 16, sub-s. 1.

Trial of a Preliminary Issue.

The facts are summarised in the headnote and are fully set out in the judgments, post.

By a plenary summons dated the 20th December, 1991, the plaintiff claimed damages against the defendants for breach of contract due to the negligent performance thereof. By a notice of motion dated the 4th May, 1993, the defendants applied for an order pursuant to O. 34, r. 2 of the rules of the Superior Courts, 1986, directing the trial of a preliminary issue. By consent of the parties the High Court (Carroll J.) tried the preliminary issues set out in the judgments, post, on the 14th and 20th July, 1993.

The defendants appealed by way of notice of appeal dated the 31st August, 1993; a cross-appeal was filed on the 6th September, 1993.

The appeal and cross-appeal were heard by the Supreme Court (Egan, Blayney and Denham JJ.) on the 19th and 20th July, 1994.

Section 11 of the Civil Liability Act, 1961, provides, inter alia, as follows:—

"(1) For the purpose of this Part, two or more persons are concurrent wrongdoers when both or all are wrongdoers and are responsible to a third person (in this Part called the injured person or the plaintiff) for the same damage, whether or not judgment has been recovered against some or all of them."

(2) Without prejudice to the generality of subsection (1) of this section:—

• (a) persons may become concurrent wrongdoers as a result of . . . independent acts causing the same damage . . ."

Section 16 of the Act of 1961 provides, inter alia, as follows:—

"(1) Where damage is suffered by any person as a result of concurrent wrongs, satisfaction by any wrongdoer shall discharge the others whether such others have been sued to judgment or not.

(2) Satisfaction means payment of damages, whether after judgment or by way of accord and satisfaction, or the rendering of any agreed substitution therefor."

On the 13th September, 1985, the plaintiff was adjudicated bankrupt on foot of a debt. On the 25th November, 1985, a motion to show cause against the adjudication was dismissed. The bankruptcy was annulled on the 29th September, 1988, following a composition with the plaintiff's creditors. At the time of the adjudication against him the plaintiff had retained the services of a firm of solicitors, N. & Co. Following the adjudication he ceased to instruct them and from February, 1986, until May, 1986, he retained the defendants.

In May, 1989, the plaintiff instituted proceedings against N. & Co. for negligence and breach of contract, alleging that the bankruptcy was the result of that firm's failure to comply with the plaintiff's instructions, and claiming general damages for, inter alia,mental distress consequent upon the adjudication. The action was heard by the High Court (Barron J.) on the 28th April, 1992. At the hearing the plaintiff, having delivered particulars of special damage to some, but not all, of the defendants in that action, sought to amend his claim to include special damages Barron J. declined to rule on the application to amend until the conclusion of the proceedings and in the meantime refused to hear evidence of special damage. The following day the proceedings were compromised, and a sum of money was subsequently paid over to the plaintiff. The payment was accompanied by a letter stating that the payment was "made in full and final discharge of all claims by [the plaintiff] against [N. & Co.]". At the time of the settlement only two of the solicitors originally sued remained in the action, neither of whom had been served with particulars of special damages.

On the 20th December, 1991, the plaintiff instituted proceedings against the defendants for negligence and breach of contract claiming that the defendants had failed to take steps to have his bankruptcy annulled, thereby occasioning him loss and damage. The plaintiff's claim included both a claim for general damages and a claim for special damages in the amount of £80,696.05. The particulars of special damages were the same as those delivered in the plaintiff's action against N. & Co., and included claims in respect of losses sustained by the plaintiff both before and during the period in which the defendants acted for him.

On the application of the defendants, the High Court (Carroll J.) directed the trial of a preliminary issue as to whether the plaintiff was estopped from maintaining his claim and the defendants were discharged from any liability to the plaintiff by virtue of the provisions of s. 16 of the Civil Liability Act, 1961. At the trial of the preliminary issue, it was submitted on behalf of the defendants that, if the plaintiff's claim against them was well-founded, the defendants and N. & Co. were concurrent wrongdoers and, accordingly, having regard to the provision of s. 16, sub-s. 1 of the Civil Liability Act, 1961, satisfaction of the plaintiff's claim against N. & Co. discharged the defendants from any liability to the plaintiff.

Held by Carroll J., in determining the preliminary issue, 1, that having regard to the fact that Barron J., in the course of the action against N. & Co., had ruled that no evidence could be given in relation to special damages, and to the fact that no claim for special damages had been made against the defendants who remained in that action at the time of its settlement, the compromise agreed between the parties thereto related to general damages and not special damages.

2. That, accordingly, while the plaintiff was estopped from pursuing his claim for general damages against the defendants, he was not estopped from pursuing his claim against them for special damages.

The defendants appealed to the Supreme Court arguing that Carroll J. had erred in determining that the issue of special damages had not been settled between the plaintiff and N. & Co. It was further submitted that, if the plaintiff's claim was well-founded, the defendants and N. & Co. were, having regard to the similarity of the claims against them, responsible to the plaintiff for the same damage and were, accordingly, concurrent wrongdoers.

The plaintiff cross appealed submitting that Carroll J. had erred in holding that he was estopped from maintaining his claim for general damages against the defendants.

Held by the Supreme Court (Blayney and Denham JJ., Egan J. dissenting), in dismissing the appeal and allowing the cross-appeal, 1, (Egan J. concurring) that having regard to the fact that the payment of damages was accepted by the plaintiff in discharge of all of the plaintiff's claim against N. & Co., the settlement embraced the whole of the plaintiff's claim against N. & Co. and was not confined to his claim for general damages.

2. That if the defendants and N. & Co. were to be held concurrent wrongdoers so as to discharge the defendants from liability to the plaintiff pursuant to the provisions of s. 16, sub-s. 1 of the Civil Liability Act, 1961, it was necessary, having regard to the provisions of s. 11, sub-ss. 1 and 2 of that Act, for the defendants to establish that they and N. & Co. were responsible to the plaintiff for the same damage, and not merely that the plaintiff had made similar claims against them.

3. That the defendants could not be held responsible for losses which had been incurred by the plaintiff before they were instructed by him; that N. & Co. could not be held responsible for losses claimed by the plaintiff to have arisen during the period that he had instructed the defendants; and that, accordingly, the losses in respect of which the plaintiff claimed special damages did not constitute damage for which the plaintiff could hold both the defendants and N. & Co. responsible.

4. That the plaintiff's mental distress connected with being adjudicated a bankrupt in respect of which he claimed general damages against N. & Co. had commenced with his adjudication on the 13th September, 1985; that the plaintiff's distress arising from the defendants' alleged failure to annul the bankruptcy had commenced, at the earliest, on the 12th February, 1986; and that, accordingly, the damage upon which the plaintiff's claim for general damages against the defendants was based was not the same damage as that in respect of which he had claimed general damages against N. & Co.

5. That since the defendants and N. & Co. were not responsible for the same damage, they were not concurrent wrongdoers within the meaning of s. 16, sub-s. 1 of the Civil Liability Act, 1961, and that, accordingly, that section did not operate so as to estop the plaintiff from maintaining his claim against the...