Michael Colin Geoffrey McMullen v Giles J. Kennedy t/a Giles J. Kennedy & Company Solicitors
| Jurisdiction | Ireland |
| Judge | Mr. Justice MacMenamin |
| Judgment Date | 13 June 2013 |
| Neutral Citation | [2013] IESC 29 |
| Court | Supreme Court |
| Docket Number | [Appeal No: 85/2012] |
| Date | 13 June 2013 |
and
[2013] IESC 29
THE SUPREME COURT
PROFESSIONS
Solicitors
Claim against solicitor - Appeal - Right to fair trial - Undue influence - Coercion - Collaboration with senior counsel - Separate action alleging professional negligence - Evidence given by senior counsel on behalf of solicitor - Absence of evidence of coercion - Conspiracy - Function of court on appeal - Findings of fact - Inferences - Whether improper conduct sufficient to establish cause of action - Whether improper conduct undermined right to fair trial - Whether findings of fact should be disturbed - Whether trial judge correctly applied law to facts - Whether inferences from circumstantial evidence reasonably based on findings of fact - Whether cogent evidence before trial judge to support inferences and findings - Burden of proof - Application to admit new evidence - Comments of judge on nature of case - Fallon v Gannon [1988] ILRM 193; Park Hall School Ltd v Overend [1987] ILRM 345; McMullen v Clancy [1999] IEHC 37, (Unrep, McGuinness J, 3/11/1999); McMullen v Clancy (No2) [2005] IESC 10, [2005] 2 IR 445; Hay v O'Grady [1992] IR 210 and Northern Bank Finance Ltd v Charlton [1979] IR 149 considered - Appeal dismissed (85/2012 - SC - 13/6/2013) [2013] IESC 29
McMullen v Kennedy
Facts: The appellant had brought proceedings against the respondent claiming that he had used improperly influenced and coerced a senior counsel, a Mr Noel Clancy S.C., to give evidence without reference to legal privilege in an action that had been brought by Mr. McMullen against another firm of solicitors known as Kent Carty & Company who previously acted for him. The respondent was instructed by Kent Carty & Company as their solicitors there. In that action, the appellant had alleged that Kent Carty & Company had been professionally negligent in the negotiation of a settlement in another action he had brought against the Charleville Estate Company, and where Mr Noel Clancy S.C. had been instructed as his counsel. The appellant”s case against the respondent was dismissed, which subsequently led to him launching an appeal of that decision.
It was the appellant”s case that prior to his case against Kent Carty & Company being heard, the respondent had wrote to Admiral Underwriting Agencies (who were the indemnifiers of Kent Carty & Company), advising them that he had spoken to Mr Clancy. He wrote that when doing so, he realised that Mr Clancy may still have had some influence over the appellant as he was instructed as his counsel in another matter. He also noted that Mr Clancy had indicated that he considered that the settlement that had been reached with Charleville Estate Company was reasonable. On the basis of this information, the respondent wrote that he tactically advised Mr Clancy that there was a possibility he would have to join him as a party to the proceedings, but that he was not keen to do so. The respondent had hoped that by doing so, Mr Clancy would dissuade the appellant from continuing his action against Kent Carty & Company. The appellant brought an action against the respondent on the basis that he had used undue influence, improper incentives and coercion in order to induce Mr Clancy to collaborate with him, which resulted right to a fair trial being undermined. The action was dismissed as the High Court judge believed the steps taken by the respondent did not subvert the appellant”s right to a fair trial. The appeal was launched on the ground that the trial judge had erroneously come to this conclusion.
Held by MacMenamin J. (with Denham C.J. and O”Donnell J. concurring) that before the High Court, it had been for the appellant to convince the court that the respondent had not only acted inappropriately, but that the respondent”s actions led to Mr Clancy testifying in a certain way in the Kent Carty & Company case, or that he had tried to influence the appellant to withdraw the action. The High Court had ruled that there was insufficient evidence to convince the court that either of these scenarios had occurred, a ruling that the Supreme Court now agreed with.
The onus of proof had been on the appellant to establish the case he was presenting. He had been unable to do so, therefore his claim could only be considered as an unsupported theory at best. It was clear that the respondent had acted irregularly, but without the necessary evidence before the court to show that this had an adverse consequence on the fairness of proceedings, the action could not be upheld.
Judgment of the High Court affirmed and appeal dismissed.
MCMULLEN v FARRELL & ORS 1993 1 IR 123 1992 ILRM 776 1992/3/765
FALLON v GANNON 1988 ILRM 193 1987/6/1654
PARK HALL SCHOOL LTD v OVEREND 1987 IR 1 1987 ILRM 345 1986/8/1500
MCMULLEN v CLANCY UNREP MCGUINNESS 3.9.1999 1999/5/1083 1999/17/5338
MCMULLEN v CLANCY (NO 2) 2005 2 IR 445 2005 IESC 10
HAY v O'GRADY 1992 1 IR 210 1992 ILRM 689 1992/2/502
NORTHERN BANK FINANCE LTD v CHARLTON 1979 IR 149
RSC O.58 r8
On the 6th February, 2012, the High Court (Birmingham J.) delivered judgment in the above entitled matter. The learned trial judge dismissed the appellant's claim against the respondent. The appellant appeals that decision.
The appellant ("Mr. McMullen") claims the respondent ("Mr. Kennedy"), a solicitor, used undue influence, improper incentives and coercion in order to induce a senior counsel, the late Noel A.E. Clancy, S.C. to collaborate with the defendant, who is a solicitor, and undertake to give evidence without reference to legal privilege in an action brought by Mr. McMullen against Kent Carty & Company, another firm of solicitors who previously acted for him (McMullen v Kent Carty & Company Solicitors (Record no. 1988 6218P).
In circumstances explained in more detail below, Mr. McMullen had sued Kent Carty & Company, claiming damages. He alleged professional negligence by that firm in the negotiation of a settlement in yet earlier proceedings brought by himself as plaintiff against Charleville Estate Company Limited[McMullen v Charleville Estate Company, (Record No. 1982 7237P) ("the Charleville Proceedings")].
In those Charleville proceedings, Mr. McMullen alleged,inter alia, torts of negligence and nuisance against the Charleville Estate Company. He retained Kent Carty&Company to be his solicitors in the case. He instructed that firm to brief Mr. Clancy, S.C. to act on his behalf. The case was settled after negotiations. Mr McMullen claimed his lawyers were negligent in the negotiation. He claimed the settlement they negotiated with the Charleville Estate Company was of no use to him, that the acts of nuisance (which he sought to restrain) continued thereafter, and that the settlement did not allow him to bring the proceedings back for further hearing, in the event of it not achieving his objects. The terms of the settlement provided that there should be simply "liberty to apply". This did not allow for the proceedings to be reentered, or for further evidence to be heard in the same proceedings. If, on the other hand, the settlement had provided for "liberty to re-enter", then the matter could have been brought back to court for further hearing.
In 1972, the appellant took a lease of Charleville Castle together with approximately 5 acres of land. The castle is situated at Tullamore, Co. Offaly. It was owned by the Charleville Estate Company. The plaintiff's relationship with the landlord deteriorated. The Company owned land surrounding Mr. McMullen's take. He claimed that it was committing negligence or nuisance by allowing persons to enter onto land which he claimed was his under the lease. He decided to sue.
He instructed Kent Carty & Company, who originally retained two senior counsel. Mr. McMullen instructed the firm to brief one particular senior counsel, Mr. Clancy. Mr. Clancy had not previously worked for Kent Carty. The solicitors had concerns as they believed that Mr. Clancy did not habitually practise in that area of the law. Both client and solicitors agreed that Mr. Clancy would be led by another senior counsel.
At a pre-trial consultation of the Charleville action, the leading senior counsel who had been retained, expressed the view that Mr. McMullen had no case; that it would be dishonest to take his money; and returned the brief. Mr. Clancy therefore, appeared as the only leading counsel, although he was assisted by junior counsel.
The case came before Costello J. on the 10th July, 1985. As well as Mr. Clancy and junior counsel, Ms. Pamela Madigan, a solicitor with Kent Carty, attended on each day. Ms. Madigan was at this time newly qualified.
On the third day of the hearing, there were settlement talks. Mr. McMullen's legal team sought to represent his interests. Mr. Alan Mahon, Barrister-at-Law, (as he then was) negotiated on behalf of Charleville Estate Company, who he represented.
At a point during these discussions, Mr. McMullen enquired whether he would be able to go back into court in the event that the settlement did not work out to his satisfaction. When Mr. McMullen raised this query, Ms. Madigan took the advice of Mr. Clancy, who informed her that going back into court would be possible. Miss Madigan conveyed this to Mr. McMullen.
Matters reached a crux two years after the 1985 settlement. Mr. McMullen thought the settlement did not achieve what he had wished for. People were still coming onto the land he held under the lease. He wanted to return to court. An application was brought before Costello J. in the High Court. That judge...
To continue reading
Request your trial
-
Adigun v McEvoy
...that it is standard practice for a solicitor to instruct counsel. He relies on the decision of MacMenamin J. in McMullen v. Kennedy [2013] IESC 29 and contends that the solicitor was grossly negligent in failing to expeditiously discharge her duties with due care and in accordance with sta......
-
Leopardstown Club Ltd v Templeville Developments Ltd
...(A Ward of Court) v. FC, the Supreme Court, 30th July, 2013 [2013] IESC 36, [2014] 1 I.L.R.M. 1; McMullen v. Kennedy, The Supreme Court, [2013] IESC 29). The legal status of explicit or implicit findings of fact, and inferences by a trial judge, are fundamental to the role of appeal courts.......