Kennedy and Others v Casey t/a Casey & Company

• Jurisdiction: Ireland
• Judge: Kearns P.
• Judgment Date: 06 November 2015
• Neutral Citation: [2015] IEHC 690
• Judgment citation (vLex): [2015] 11 JIC 0603
• Court: High Court
• Date: 06 November 2015

[2015] IEHC 690

THE HIGH COURT

[No. 2790P/2008]

Kennedy & Ors v Casey t/a Casey & Co

BETWEEN/

THOMAS KENNEDY, JOHN GRAHAM, PAUL FLANNERY, VINCENT BROWNE, MICHAEL MURPHY, MICHAEL HENNESSY, Ó MATHUNA (BÁID) TEORANTA, JOHN O'DONNELL, NEIL MINIHANE, KIERAN O'DRISCOLL, PETER CARLTON, DONAL HEALY AND GERARD MINIHANE

PLAINTIFFS

AND

GREG (OTHERWISE JOHN G) CASEY AND MAIREAD CASEY PRACTISING UNDER THE STYLE AND TITLE OF CASEY AND COMPANY

DEFENDANTS

Fisheries &Wildlife – Professional Conduct & Ethics – Practice &Procedure – Negligence – Delay – O. 15, r. 13 of the Rules of the Superior Courts 1986 – The Solicitors Act 1958–2008 – Joinder of insurer as co-defendant – Locus standii

Facts: The plaintiffs after having initiated an action against the defendants being the former solicitors of the plaintiffs for negligence and breach of duty in managing the compensation claim of the plaintiffs against the State, the plaintiffs now sought an order pursuant to o. 15, r. 13 of the Rules of the Superior Courts 1986 to join the insurer, SMDF, as the co-defendant in the negligence proceedings who provided professional indemnity insurance to the defendants at all material times. The SMDF contended that its presence was not necessary to resolve the dispute between the parties as the negligence proceedings against the defendants depended upon the outcome of the plaintiffs' claim of compensation in the State proceedings where the plaintiffs had a real prospect of success.

Mr. Justice Kearns P. refused to grant an order to the plaintiffs for joining SMDF as a co-defendant in the negligence proceedings initiated by the plaintiffs against the defendants. The Court held that the plaintiffs had no locus standii or contractual relationship with the insurer, SMDF, and the question of suing the insurer would not arise unless the plaintiffs were successful in obtaining judgment against the defendants. The Court held that since the plaintiffs were aware of the fact that the defendants had no means to pay the amount of damages in case the plaintiffs were successful, it could not give a right to the plaintiffs to first test the defendants for its means as to whether he had the capacity to fight or compromise a piece of litigation.

1 JUDGMENT of Kearns P. delivered on the 6th day of November, 2015.

2 The plaintiffs in these proceedings are a group of fishermen who are members of an informal organisation known as the Irish Tuna Association. This association was set up to fight a ban on the use of driftnets for the fishing of tuna. The ban followed the adoption of a European Council Regulation providing for the introduction of a ban on fishing for albacore tuna by way of driftnets from the 1 ^st January, 2002. While the ban came into effect on that date, it was preceded by an earlier Council Decision 1999/27/EC of 17 ^th December, 1998. It was acknowledged that fishermen such as the plaintiffs should diversify out of certain fishing activities and be in receipt of payments of compensation from the Irish State. When in January 2002 such compensation had not been paid, the plaintiffs instructed Casey & Company, solicitors, to look after their interests and to pursue a claim by way of legal proceedings for compensation. Such proceedings were commenced in 2007 (The High Court, 2007 No. 9273P) ("the State proceedings") but have not yet been determined in the High Court. There were delays in the commencement of these proceedings in circumstances where it is alleged that Mr. Casey of Casey & Co. informed the plaintiffs on a number of occasions that he had already issued proceedings in the High Court when in fact that step had not yet been taken. The plaintiffs found it was very difficult to get in touch with Mr. Casey or his sister who was in charge of the office during a period of illness suffered by Mr. Casey.

3 The State proceedings have been recently set down for hearing. The defendants in those proceedings include the Minister for Agriculture, Fisheries and Food, the Minister for Finance, Ireland and the Attorney General. Amongst other pleas, the defendants have pleaded the Statute of Limitations by way of defence together with laches and delay. An attempt by the defendants in the State proceedings to have the plaintiffs' claim against them struck out was brought unsuccessfully in 2011. Accordingly, these proceedings remain extant and viable and will go to a full hearing in due course.

4 Under the present proceedings, brought as they are against the plaintiffs' former solicitors ("the negligence proceedings") it is contended that the defendants' solicitors were negligent in failing to institute the State proceedings in a timely manner with the potential consequence that the entitlement to compensation that such proceedings would have obtained for the plaintiffs has been lost because of the defendants' delay and inactivity. In this context, it should be noted that the State proceedings which commenced in December 2007 were brought on the plaintiffs' behalf by a new firm of solicitors, Messrs. Pierse & Fitzgibbon.

5 Messrs. Michael Houlihan & Partners, instructed by the Solicitors Mutual Defence Fund ("SMDF") came on record for the defendants in the negligence proceedings but on the 25 ^th October, 2012 applied to come off record following a decision made by the SMDF not to provide indemnity to the defendants. This application to come off record was granted by the High Court (Ryan J.) in February 2013. Those proceedings have likewise not reached finality, the suggestion made on behalf of the plaintiffs being that it is, or would be, futile to pursue them further due to the absence of professional indemnity insurance cover for the defendants.

6 It is against this factual background that a notice of motion, the subject of the present application, was issued in November 2014 on behalf of the plaintiffs seeking to join the SMDF as a co-defendant, either under Order 15, rule 13 of the Rules of the Superior Courts or pursuant to the inherent jurisdiction of the court, or pursuant to the provisions of the Solicitors Acts 1954 - 2008 and the regulations made thereunder.

7 Order 15, rule 13 of the Rules of the Superior Courts provides as follows:-

"No cause or matter shall be defeated by reason of the misjoinder or non-joinder of parties, and the court may in every cause or matter deal with the matter in controversy so far as regards the rights and interests of the parties actually before it. The court may at any stage of the proceedings, either upon or without the application of either party, and on such terms as may appear to the court to be just, order that the names of any parties improperly joined, whether as plaintiffs or as defendants, be struck out and that the names of any parties, whether plaintiffs or defendants, who ought to have been joined, or whose presence before the court may be necessary in order to enable the court effectually and completely to adjudicate upon and settle all the questions involved in the cause or matter, be added ... Every party whose name is so added as defendant shall be served with a summons or notice in manner hereinafter mentioned, or in such other manner as the court may direct, and the proceeding as against such party shall be deemed to have begun only on the making of the order adding such party."

SUMMARY OF THE PLAINTIFFS' CONTENTIONS

8 The plaintiffs contend that the SMDF is a party whose presence before the court is necessary in order to enable the court effectually and completely to adjudicate upon the questions involved in the negligence proceedings.

9 In a lengthy affidavit sworn in support of the joinder, Mr. Robert Pierse, solicitor in the firm of Pierse & Fitzgibbon, deposes that, under the Solicitors Acts 1954-2008, solicitors are obliged to hold proper professional indemnity insurance and require to demonstrate that fact before being issued with their annual practice certificate. Regulations made under the Solicitors Acts provide for a scheme of qualified insurers to be recognised by the Law Society and the SMDF is such an insurer who at all material times provided such insurance for the defendants. He deposes as to his belief that the SMDF cannot under the terms of the Professional Indemnity Insurance Regulations 2007 repudiate cover, notwithstanding that in the instant case both defendants have been removed from the roll of solicitors pursuant to order made by the President of the High Court.

10 As already indicated, the plaintiffs became extremely concerned about the tardiness with which the defendants had been pursuing proceedings on their behalf and contacted the Law Society in July 2005 at which stage the firm of Pierse & Fitzgibbon commenced representing the plaintiffs. This firm commenced the negligence proceedings against the defendants in April 1998 and in the following month Messrs. Michael Houlihan & Partners entered an appearance instructed by the SMDF. A statement of claim in the negligence proceedings was delivered in March 2009 and, following various court skirmishes about particulars, a defence was delivered in February 2011. A reply to the defence was delivered in May 2011. Further particulars of the plaintiffs' alleged loss and damage was furnished in December 2011. It may be noted en passant that an enormous amount of work was involved in addressing particulars in these proceedings as individual schedules of loss for each of the plaintiffs were required to be furnished. Various court applications seeking more comprehensive particulars ensued in 2012. As Mr. Pierse says in his affidavit, it was plain that the defendants through their solicitors instructed by the SMDF, intended to contest the claims fully and comprehensively.

11 However, on the 25 ^th October, 2012, Messrs. Michael Houlihan & Partners filed a notice of motion seeking an order...