McMullen v Kennedy practising under the style and title of Giles J. Kennedy and Company Solicitors
| Jurisdiction | Ireland |
| Judge | Denham C.J. |
| Judgment Date | 15 November 2012 |
| Neutral Citation | [2012] IESC 56 |
| Court | Supreme Court |
| Date | 15 November 2012 |
[2012] IESC 56
The Supreme Court
Denham C.J.
O'Donnell J.
MacMenamin J.
and
MURPHY v MIN FOR DEFENCE 1991 2 IR 161
RSC O.58 r8
FITZGERALD v KENNY 1994 2 ILRM 8
LYNAGH v MACKIN 1970 IR 180
LADD v MARSHALL 1954 1 WLR 1489
SMYTH v TUNNEY 1996 1 ILRM 219
GREENDALE DEVELOPMENTS LTD (IN LIQUIDATION), IN RE 1998 1 IR 8
ALLIED IRISH COAL SUPPLIES LTD v POWELL DUFFRYN INTERNATIONAL FUELS 1998 2 IR 519 1997 1 ILRM 306 1996/9/2670
MCGRATH v IRISH ISPAT LTD (IN LIQUIDATION) 2006 3 IR 261
EMERALD MEATS LTD v MIN FOR AGRICULTURE & ORS 30.7.2012 UNREP SUPREME 30.7.2012 2012 IESC 48
MEEK v FLEMING 1961 2 QB 366 1961 3 WLR 532 1961 3 AER 148
EVIDENCE
Appeal
Additional evidence - Admission of new evidence - Motion seeking order for examination of solicitor - Extension of time to file books of appeal - Whether documentation amounted to new evidence - Whether suppression of evidence would be unjust - Applicable legal principles - Whether evidence in existence at time of trial and not obtainable with reasonable diligence - Whether evidence would probably have important influence on result of case - Whether evidence apparently credible - Whether documents irrelevant to appeal - Murphy v Minister for Defence [1991] 2 IR 161; Fitzgerald v Kenny [1994] 2 ILRM 8; Lynagh v Mackin [1970] IR 180; Ladd v Marshall [1954] 1 WLR 1489; Smyth v Tunney [1996] 1 ILRM 219; Re Greendale Developments Ltd (No 2) [1998] 1 IR 8; Allied Irish Coal Supplies Ltd v Powell Duffryn International Fuels Ltd [1998] 2 IR 519; McGrath v Irish Ispat Ltd [2006] 3 IR 261; Emerald Meats Ltd v Minister for Agriculture [2012] IESC 48, (Unrep, SC, 30/7/2012); Braddock v Tillotson's Newspapers Ltd [1950] 1 KB 47; Meek v Fleming [1961] 2 QB 366 considered - Rules of the Superior Courts 1986 (SI 15/1986), O 58, r 8 - Reliefs refused; extension of time for books of appeal granted (85/2012- SC - 15/11/2012) [2012] IESC 56
McMullen v Giles J Kennedy
Facts: The plaintiff/ appellant brought a motion seeking the admission of new evidence in his appeal, seeking an order that a solicitor be further examined and an extension of time to file books of appeal and certificate of readiness. The proceedings arose from earlier litigation concerning negligence suits against the appellant's legal representatives regarding a failure in the terms of a settlement in a nuisance action. It had been alleged that the respondent had induced a Senior Counsel to collaborate and undertake to give Evidence without reference to Privilege. Order 58 rule 8 of the Rules of the Superior Court provided that the Supreme Court had full discretionary power to receive further evidence upon questions face and otherwise fresh evidence would be admitted on special grounds only. The Court considered whether the evidence sought to be adduced was in existence at the time of trial but could not have been discovered with the exercise of reasonable diligence.
Held by the Supreme Court per Denham CJ (O' Donnell and MacMenamin JJ. concurring), that the Court would refuse to admit new evidence in the appeal and would refuse the order that Ms. Madigan be further cross-examined. The test had not been met and was not new evidence. The Court would allow an extension of time to file books of appeal and a certificate of readiness. The appellants allegation and the issue concerning an admission of negligence and other litigation was not connected to the case and had been considered by other courts previously.
Judgment delivered on the 15th November, 2012, by Denham C.J.
Judgment delivered by Denham c.j. [nem diss]
1. Michael Colin Geoffrey McMullen, the plaintiff/appellant, referred to as "the appellant", has brought a notice of motion before the Court seeking, inter alia,:-
(i) Admission of new evidence in his appeal from the decision of the High Court (Birmingham J.) dated the 6 th February, 2012;
(ii) An order that Ms. Pamela Madigan, a solicitor of Kent Carty, be further examined; and
(iii) An extension of time to file books of appeal and certificate of readiness as ordered on the 8 th June, 2012, when the Court granted a stay on the order of the High Court conditional on the appellant filing books of appeal and certificate of readiness within four weeks i.e. by the 6 th July, 2012.
2. The present proceedings arise from earlier litigation concerning negligence suits against the appellant's legal representatives regarding a failure of terms of settlement in a nuisance action against another party to include liberty to re-enter the matter. The appellant's claim, contained in a plenary summons dated the 10 th February, 2000, against Giles J. Kennedy, practising under the style and title of Giles J. Kennedy & Co., Solicitor, the defendant/respondent, referred to as "the respondent", is that:-
"[…] on or about the 28 th day of April 1989 the [respondent] in the full knowledge of the implications and consequences of his actions did use and employ undue influence, improper incentives and coercion to induce Mr. Noel A.E. Clancy S.C. to collaborate and undertake to give Evidence without reference to Privilege in the Action entitled Michael Colin Geoffrey McMullen, Plaintiff, v. Hugh A. Carty & Others, Practising as Kent Carty and Co; of 48, Parnell Square Dublin 1, to the complete detriment of his Lay Client's position in general and particular; which conspiracy arranged by [the respondent] was successful in defeating a well set out and just Complaint […]".
The appellant filed an affidavit which was deposed on the 2 nd July, 2012. In this affidavit the appellant referred to facts relating to this lengthy litigation:-
(i) He referred to the nuisance action being settled before Costello J. in July, 1985, with a consent for parties to have liberty to apply;
(ii) he stated that an application was made to re-enter the matter before Costello J. in 1987, and was struck out;
(iii) he referred to Ms. Madigan's evidence for the respondent before Birmingham J. in January, 2012; he deposed:-
"Ms. Madigan's evidence was that immediately after Mr. Justice Costello refused to re-enter the action, senior counsel admitted in her presence and in the presence of your Deponent, that he was entirely responsible for this debacle. She stated that your Deponent was fully aware of where full responsibility rested";
(iv) the appellant stated that this version had at all times been disputed by him. The appellant addressed the giving of evidence by Ms. Madigan in the High Court in January, 2012.
(v) He deposed that over the years he has accumulated thousands of documents in many crates and boxes. When in 1994 he finally obtained his files from Kent Carty he wrote to complain that they were in a terrible mess. This is his Exhibit B;
(vi) He returned again to the issue of his senior counsel Mr. Clancy S.C. stating:
"Notwithstanding, in the search for records which would rebut the unhelpful conclusions of Mr. Justice Birmingham, a slender document emerged showing that on March 3 rd 1987, just 3½ weeks post the failed attempt by Kent Carty to re-enter the nuisance action, for which they have fully and repeatedly blamed Mr. Clancy and by extension your Deponent for instructing Mr. Clancy, whom Ms. Madigan 'did not trust'; 'Pam' completed the said Requisition Document for the issue of a cheque in favour of Mr. Clancy in the sum of IR £2,000 (two thousand). Exhibit 'C'";
(vii) the deponent referred to the 1986 ill fated notice of re-entry;
(viii) reference was then made to Mr. Clancy's visit to America; correspondence over this visit is Exhibit "D";
(ix) the appellant then stated:
"Upon receipt of the files from Kent Carty under the terms of the Insurance Policy, this Defendant, Giles J. Kennedy would have been fully aware that he needed the Co-operation of Mr Clancy to verify the Defence which was filed for Kent Carty (The Action McMullen v. Kent Carty.1988, 6218.P). Mr Kennedy took full advantage of the funds given to Mr. Clancy in March 1987 as the cheque requisition was contained in the papers, as it was clear that Mr Clancy's loyalty had been compromised and the £2000, together with the trip to America would go on to ensure that your Deponent's Negligence Claims could be defeated, with Mr. Clancy's extra-ordinary Evidence which extended to the abortive 'Notice of Re-Entry' (11th February 1987), for which it is not disputed that Kent Carty sought no fees, setting himself against his Client, your Deponent herein. The repercussions from this have never ceased."
He continued:-
"At the time when your Deponent's action in Negligence against Kent Carty came to Trial in 1992/3, Messrs Collins Crowley who had carriage of the Claims, were not aware of the payment to Mr Clancy requisitioned on March 3rd 1987 by Ms Madigan.
However, this Defendant, Giles J. Kennedy had been handed your Deponent files containing the said Requisition and as stated these files were obtained by the Plaintiff only after Litigation.
On May 2nd 1988, Mr Justice Costello made an Order for Kent Carty to produce a 'Bill' and the only relevant page leaves the whole of February 1987 without a single entry in the Matter of the Nuisance Action against the Charleville Estate Company and the pursuant entry for Mr Clancy in March 1987 leaves a blank after the pound sign. These copy Documents (the order is a poor copy) are referred to as Exhibit 'E' signed herewith."
He submitted:-
"THEREFORE, I, Michael McMullen submit the absolute necessity of the...
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