McMullen v Clancy (No 2)

• Jurisdiction: Ireland
• Judge: FENNELLY J.
• Judgment Date: 15 March 2005
• Neutral Citation: [2005] IESC 10
• Court: Supreme Court
• Docket Number: [1995
• Date: 15 March 2005

[2005] IESC 10

THE SUPREME COURT

Murray C.J.

Hardiman J

Fennelly J.

Record No. 216/99

MCMULLEN v MCGINLEY (REPRESENTING CLANCY ESTATE)

BETWEEN

MICHAEL COLIN GEOFFREY McMULLEN

Plaintiff/Appellant

and

EDWARD McGINLEY by Order representing the Estate of NOEL CLANCY

Defendant/Respondent

STATUTE OF LIMITATIONS 1957 S11

CODE OF CONDUCT OF BAR OF IRELAND ART 4.17

CODE OF CONDUCT OF BAR OF IRELAND ART 3.1

CODE OF CONDUCT OF BAR OF IRELAND ART 3.4

HODGINSON v SIMMS 1994 3 RCS 377

WATSON v MCEWAN 1905 AC 480

HARGREAVES v BRETHERTON 1959 1 QB 45 1958 3 AER 122

MARRINAN v VIBART 1962 3 AER 380

CABASSI v VILA 1940 64 CLR 130

HALL v SIMONS 2000 3 AER 673

RONDEL v WORSLEY 1969 1 AC 191

MURPHY v MIN DEFENCE 1991 IR 161

BRISTOL & WEST BS v MOTHOW 1996 4 AER 698

STATUTE OF LIMITATIONS 1957 S71

STATUTE OF LIMITATIONS 1957 S71(1)

PRACTICE AND PROCEDURE

Appeal

Fresh evidence - Liberty to adduce - on appeal - Whether evidence could have been obtained with reasonable diligence for use at trial - Whether evidence would influence result of case - Murphy v Minister for Defence [1991] 2 I.R. 161 applied - Claim dismissed

PROFESSIONS

Barristers

Professional duty - Duty of confidentiality to lay client - Counsel testifying in lay client's action against firm of solicitors - Whether breach of duty - Whether counsel owing fiduciary duty to lay client - Whether professional code of conduct justiciable - Client not informed of difference between "liberty to apply" and "liberty to re-enter" - Whether any loss suffered by client - Claim dismissed

TORT

Limitation of actions

Professional negligence - Claim initiated after expiry of six years from cause of action - Plaintiff having sufficient information to bring action within relevant period - Whether defendant acted fraudulently or performed act of fraudulent concealment in respect of any potential claim against him - Statute of Limitations 1957 (No 6), s 71 - Claim dismissed (216/1999 - Fennelly [nem diss] Murray Hardiman - 15/3/2005) [2005] IESC 10

MCMULLEN v MCGINLEY (REPRESENTING CLANCY ESTATE)

The plaintiff had originally instituted proceedings against his former counsel (now deceased and the defendant being named as representative of the estate) over the terms of a settlement of a nuisance action. The plaintiff had intended that under the settlement terms of a previous action he would be entitled to have the matter re-entered. However ultimately the terms of the settlement only referred to liberty to apply. Thereafter the plaintiff unsuccessfully sued his former solicitors where one of the witnesses was the plaintiff's former senior counsel. Arising from these proceedings the plaintiff commenced proceedings against his former senior counsel alleging breach of confidentiality, trust and fiduciary duty and sought damages in respect of same. The plaintiff alleged that his former senior counsel had by his evidence defected to the opposing side and also claimed that there had been a conspiracy to defeat his claim. In the High Court McGuinness J dismissed the action and the plaintiff appealed.

Held by The Supreme Court (Fennelly J delivering judgment; Murray CJ and Hardiman J agreeing) in dismissing the appeal. There was no evidence to support the conspiracy theory of the plaintiff. Alleged breaches of the code of conduct for barristers were not justiciable. The court would reject a claim based on alleged breach of fiduciary duty and neither was there any evidence of fraudulent concealment.

Reporter: R.F.

1 JUDGMENT delivered on the 15th day of March, 2005 by FENNELLY J.

2 This is an action brought by the Appellant against his former counsel, now deceased. The present appeal is taken from the dismissal of that action by McGuinness J in the High Court. The proceedings have been reconstituted by consent, with Mr McGinley now being named to represent the estate of the deceased. I propose to refer to the parties as Mr McMullen and Mr Clancy.

3 The appeal represents the culmination of a long and, from Mr McMullen's point of view, extremely unfortunate saga of litigation. Mr McMullen's purchase of a property near Tullamore led him into dispute with and legal action against the vendors concerning the use of an avenue leading to that property. He settled his action against those defendants on terms which, contrary to his instructions, did not allow him to re-enter the action. Arising from this, he sued his solicitors, but his claim failed largely because Mr Clancy, the counsel instructed by those solicitors, gave evidence accepting responsibility. Hence the present action against the latter. It will be necessary to consider the history in some detail in order to see how things went wrong for Mr McMullen, as they undoubtedly did, but more particularly in order to discern whether the fault can now be laid at Mr Clancy's door. In the present action, Mr McMullen has at all times acted in person, without any legal representation.

4 In spite of some twists in the story, it has to be said at the outset that Mr McMullen's claim against Mr Clancy is not, at least not in the ordinarily understood sense, a negligence action. This became clear at the hearing of the appeal. Mr McMullen is principally outraged -and it is not too strong a word - at the fact that Mr Clancy gave evidence against him, an act which he regarded as a betrayal. Far from blaming Mr Clancy for the mistake in the settlement of the original action, Mr McMullen says that Mr Clancy's acceptance of responsibility was false. He also claims that there was a conspiracy mounted against him by Mr Clancy and a number of other persons including his former solicitors. A principal plank of his appeal was a copy of a letter from the solicitors who had acted for Mr McMullen's former solicitors to the insurers of the latter, which is claimed to evidence such a conspiracy.

5 Mr McMullen's complaints are intimately linked with his original action regarding the property near Tullamore. I must summarise that history.

6 In the year 1972, Mr McMullen negotiated a thirty-five lease from the Charleville Estate Company of a property known as Charleville Castle, consisting of some five acres of land and a Castle in severe need of repair. Mr McMullen undertook to put the Castle in repair and he spent some IR£80,000 in doing so. The Estate Company was owned by the Hutton Bury family, who retained about one thousand acres of surrounding land. To quote Mr McMullen, it was "an estate within an estate". The surrounding land included the main avenue leading from the Tullamore Town Entrance to the Castle, which was about one mile long, over which Mr McMullen, as lessee of the Castle, was granted a right of way in common with others. The Hutton Bury family's Estate Company was the servient owner.

7 It had, however, been customary for many years for local residents, in particular people from the town of Tullamore, to frequent the estate in what Mr McMullen considered to be excessive numbers. He complained that this user constituted a nuisance to him as occupier of the Castle and grounds. He complained about rude and insulting and, to a certain extent indecent, behaviour. Some people trespassed on the area leased to him. However, in 1976, he was allowed by the Estate Company to build a wall around his take. The problems on and about the avenue continued, however. Mr McMullen thought that the nuisance was unbearable and that it destroyed his life. However, the Hutton Bury family had tolerated extensive access by the public to the estate.

8 In 1982 Mr McMullen brought an action against the Charleville Estate Company. His solicitors were Kent Carty and Co, who took over carriage of the proceedings from another firm. Mr Clancy was, ultimately, the senior counsel who appeared in the action. The two points to note about this action are that: firstly, Mr McMullen did not sue the persons who were committing the nuisance, but the owners of the estate; secondly, Mr McMullen did not own the avenue; he simply had a right of way over it.

9 Not surprisingly, therefore, as has been established in both subsequent actions against Kent Carty and Co and Mr Clancy respectively, two successive senior counsel retained by Kent Carty and Co to advise and represent Mr McMullen were pessimistic about the chances of success in the claim. Mr Robert Barr, Senior Counsel, later Mr Justice Barr, advised in January 1985 that the nuisance not be proceeded with. According to the evidence of Ms Pamela Madigan, solicitor of Kent Carty and Co, he had very little faith in the action. About this time, Mr McMullen was introduced to Mr Clancy. He consulted him privately, without the intervention of a solicitor. Mr Clancy was much more encouraging about the prospects of success.

10 Mr McMullen communicated to Kent Carty and Co his wish to retain Mr Clancy. Kent Carty and Co were reluctant to do so, stating that they did not consider the action to be within his area of expertise. Mr Barr was appointed to the bench. A compromise was reached between Mr McMullen and Kent Carty and Co, whereby Mr Eoghan Fitzsimons, Senior Counsel, would lead and Mr Clancy would be second senior.

11 A consultation took place at the Four Courts about a week before the scheduled hearing of the action in July 1985. Mr Fitzsimons stated very clearly that he had no confidence in the action. He would not go into court in a case in which he had no faith. He said that it would be dishonourable to take Mr McMullen's money. He handed back his brief and withdrew from the case. Mr Clancy then led for Mr McMullen with a junior.

12 The action proceeded to hearing on 10th July 1985 before Mr Justice Costello. While some views have been expressed, for example, that the case did not go well for Mr McMullen on the first day, but...