Mackie v Wilde (No. 1)

• Jurisdiction: Ireland
• Judge: Mr. Justice Morris
• Judgment Date: 01 January 1998
• Neutral Citation: 1995 WJSC-HC 1094
• Docket Number: No. 2691P/1990,[1990 No. 2691P]
• Court: High Court
• Date: 01 January 1998

1995 WJSC-HC 1094

THE HIGH COURT

No. 2691P/1990

MACKIE v. WILDE

BETWEEN

LESLIE MACKIE

PLAINTIFF

AND

DAVID WILDE

AND BY ORDER

HELMUT LONGIN

DEFENDANTS

Citations:

ALLEN V BONE 1841 CH APP 493

GRIFFITHS V EVANS 1953 2 AER 1364

Synopsis:

EVIDENCE

Contract

Formation - Proof - Standard - Solicitor - Retainer - Existence - Client - Denial - Party added as defendant in plaintiff's action — Authority of solicitor to consent to addition - Conflict of evidence - (1990/2691 P - Morris J. - 16/1/95) [1998] 2 IR 570

|Mackie v. Wilde|

CONTRACT

Formation

Solicitor - Retainer - Existence - Client - Denial - Party added as defendant in plaintiff's action — Authority of solicitor to consent to addition - Conflict of evidence - (1990/2691 P - Morris J. - 16/1/95) [1998] 2 IR 570

|Mackie v. Wilde|

ORDER

Cancellation

Grounds - Mistake - Action - Parties - Addition - Solicitor - Retainer - Denial of retainer by added defendant - Authority of solicitor to consent to addition - (1990/2691 P - Morris J. - 16/1/95) [1998] 2 IR 570

|Mackie v. Wilde|

PROFESSIONS

Solicitors

Retainer - Existence - Client - Denial - Court - Resolution of conflict of oral evidence - Retainer not in writing - (1990/2691 P - Morris J. - 16/1/95) [1998] 2 IR 570

|Mackie v. Wilde|

1 Judgment of Mr. Justice Morris delivered the 16th day of January, 1995.

2 This is a motion brought by a solicitor, Mr. P.A. Dorrian, who formerly acted in this case and it comes before the Court in extremely unusual circumstances. These circumstances can be summarised as follows.

3 Prior to the commencement of this action by plenary summons dated the 22nd February, 1990, the Plaintiff and the first named Defendant were joint owners of the Several Fishery in the Rivers Fin and Raelin in County Donegal. The statement of claim in the action alleged that by an oral agreement made between the parties in or about the year 1984, Mr. Wilde, the first named Defendant, agreed to limit the number of roads on his side of the bank of the river to 25 and it was alleged that in breach of this agreement he sold a large number of day rod licences indiscriminately and grossly overfished his bank of the river as a result of which the Plaintiff, it was alleged, suffered loss and damage and in the action the Plaintiff claimed an injunction restraining the Defendant from permitting the fishing in excess of 25 rods on his side of the bank of the river Fin. He also claimed sundry others reliefs. At all relevent times Mr. Dorrian acted for Mr. Wilde in the Action.

4 Shortly before the matter was due to come on for hearing on the 28th January, 1989, the Plaintiff's advisers were notified by Mr. Dorrian of the fact that on the 21st January, 1988, the second named Defendant, Mr. Helmut Longin, had acquired a 35% interest in the property owned by the first named Defendant and his wife and by this acquisition he had also acquired a 35% interest in the fishing rights which were the subject matter of the dispute in the action. Accordingly, when the matter came on for hearing application was made by Counsel on behalf of the Plaintiff to join Mr. Longin as a second Defendant. Mr. Dorrian, in the belief that he also acted for Mr. Longin, indicated to Counsel that he could consent to this order being made and, accordingly, the order of the Court of the 30th January, 1992, states "on the 28th January, 1992, by consent it was ordered that Helmut Longin be added as a Defendant to the action".

5 The action proceeded to a hearing and the Plaintiff succeeded and was granted the reliefs which he sought and Mr. Wilde and Mr. Longin, the two Defendants, were ordered to pay the costs of the proceedings.

6 By notice of motion dated the 16th July, 1993, Mr. Helmut Longin applied to me and sought an order "setting aside the judgment and order had and made herein on the 30th of January 1992 insofar as the said judgment and order affects the second named Defendant on the grounds that the said judgment and order were obtained irregularly" and "on the grounds that the judgment and order were made and obtained by mistake and in circumstances whereby the second named Defendant was unaware that he had been joined as a co-Defendant".

7 This motion came on for hearing before me on the 11th October, 1993. The motion had been served on all interested parties including, the solicitor Mr. Dorrian, who now no longer acted in the matter (the notice of change of solicitor for Mr. Wilde, the first named Defendant, having been served on the 19th July, 1993) and there being no appearance in Court for either Mr. Wilde or Mr. Dorrian, and it being stated on affidavit, which was uncontradicted, that Mr. Dorrian was at no time acting on behalf of Mr. Longin in the action and never at any time and instructions from him to consent to his, Mr. Longin's, being joined as a Defendant to the action, I made an order setting aside the order of the 30th January, 1992 insofar as it affected Mr. Longin on the grounds that it had been obtained irregularly and I set aside that part of the order in which the costs of the action were awarded against Mr. Longin.

8 By notice of motion dated the 21st October, 1993, Mr. Dorrian applied to the Court for an order staying my order of the 11th October, 1993, and upon this notice of motion being listed before me, I determined that my order of the 11th October, 1993, might require to be reviewed on the basis that Mr. Dorrian's failure to appear on that occasion to put his side of the case might have resulted from mistake or surprise. I, accordingly, directed that a stay be placed on my order of the 11th October, 1983 pending the hearing of this motion.

9 Accordingly, the motion coming on before me for hearing, I fixed two issues to be tried by the Court, namely,

10 (a) Did Mr. Dorrian have instructions from Mr. Helmut Longin to represent him in the action then pending between Mr. Mackie and Mr. Wilde and to consent to his being joined as a Defendant in the action?

11 (b) Did Mr. David Wilde instruct Mr. Dorrian to consent to Mr. Longin being joined as a second named Defendant?

12 In my view, it is clear that if Mr. Dorrian did receive instructions from Mr. Longin then he must have done so on or before the 16th January, 1992 because on that date be faxed his Counsel, Mr. John Gallagher, and this fax message included the statement "Mr. Longin is aware of the proceedings and as far as he is concerned there is no difficulty in his being named as a Defendant if necessary". Accordingly, while a considerable volume of evidence has been directed towards events subsequent to that date, including what occurred at the pre-trial consultation, in my view these matters are only of relevance for the purpose of confirming or refuting Mr. Dorrian's statement that he did have Mr. Longin's instructions and consent.

13 No suggestion is made that Mr. Dorrian received instructions otherwise than at one of the meetings which he held with Mr. Longin [otherwise then possibly from Mr. Wilde at the hearing - which is issue No. 2] and accordingly, in my view, it is necessary only to consider what occurred at these meetings to determine the first of the issues which the Court has to resolve.

14 The following is a summary of what transpired at the meetings as given by the three parties who attended the meeting. It may well be that Mrs. Wilde also attended one of these meetings but I have not had the benefit of her evidence.

15 Mr. Dorrian says that he is a solicitor practising in the Donegal area and he was approached by Mr. Wilde who, he was aware, was the owner of the Cloghan Lodge estate. This is a hotel and the estate included lands and woodlands. He knew Mr. Wilde as he, Mr. Dorrian, was also a keen fisherman. He was asked by Mr. Wilde to represent him in the litigation in which he was named as a Defendant by Mr. Mackie. Mr. Dorrian agreed to represent him and Mr. Dorrian says that he kept in constant touch with Mr. Wilde in relation to the action and he provided him with copies of all documents that passed and that Mr. Wilde had a practice of regularly calling to his home or to his office to discuss the case. Mr. Dorrian says that a point was reached in the case where he became concerned about the expenses of fighting the case. Among other things Counsel were enquiring in relation to their fees and were requiring assurances from him that their fees would be paid. He was aware that Mr. Wilde was not in a sound financial position and he spoke to him about the matter in or about July, 1990. Mr. Wilde informed Mr. Dorrian that Mr. Login, who had bought a holiday house in the area, and was also a keen fisherman, was prepared to guarantee the costs of the defence of the action. Mr. Dorrian was aware that in 1988 Mr. Longin had purchased his 35% interest in Cloghan Lodge Hotel and it therefore seemed to Mr. Dorrian that the reason why Mr. Longin was prepared to finance the defence of the action was to protect his own interest in the fishery. In September of 1990 Mr. Dorrian was requested by Mr. Wilde to attend a consultation with Mr. Longin. He agreed to do so and attended at Rathdonnell House, which is Mr. Longin's home in the area. Mr. Dorrian says that it was clear that Mr. Longin was extremely concerned about the possible outcome of the proceedings between Mr. Mackie and Mr. Wilde as these proceedings might prejudice his fishing rights in the river and he says that he received explicit instructions at that consultation from Mr. Longin to do whatever was necessary to protect his fishing rights even though he was not at that time named as a Defendant in the action. Mr. Dorrian said that during the course of that meeting, which lasted for several hours, every facit of the case was discussed including, in particular, the possible terms of settlement that would be acceptable to Mr. Longin. He says that he has no doubt whatever that as a result of what was...