Murray v Budds

• Jurisdiction: Ireland
• Judge: Mr Justice Michael Peart
• Judgment Date: 19 November 2015
• Neutral Citation: [2015] IECA 269
• Docket Number: Appeals: 2014/235 and 2015/118
• Court: Court of Appeal (Ireland)
• Date: 19 November 2015

Between:

Martin Murray

Appellant/Respondent

and

Conan Budds, and Anthony T. Hanahoe, Terence Hanahoe and Michael E. Hanahoe Trading As Michael E. Hanahoe Solicitors

Respondents/Appellants

[2015] IECA 269

Appeals: 2014/235 and 2015/118

THE COURT OF APPEAL

Damages – Professional negligence – Abuse of process – Appellant seeking damages for professional negligence – Whether High Court erred in allowing the appellant to amend his proceedings

Facts: The appellant/respondent, Mr Murray, claimed damages for professional negligence and/or breach of contract by the respondent/appellant firm, Michael E Hanahoe Solicitors, arising from its retainer to defend Mr Murray at Naas Circuit Criminal Court against a charge of possession, with intent to supply, of a quantity of heroin. He was convicted of that offence in February 1999 and received a seven year sentence of imprisonment from which he was released in September 2004. Mr Murray commenced proceedings by way of plenary summons against the firm in January 2006. He made many allegations in relation to the firm”s handling of his case and their preparation of his defence at trial. One of the complaints was that they failed to retain and instruct Counsel in a timely fashion, indeed until the night before the trial was scheduled to commence. In April 2009, the High Court (Charleton J) ordered (a) that the proceedings be struck out as an abuse of process because, being an action alleging professional negligence, it was launched without first ascertaining that there were reasonable grounds for so doing by obtaining appropriate expert evidence to support it; and (b) further ordered that Mr Murray pay the firm”s costs of the motion when taxed and ascertained. In November 2010, the High Court (Clark J) (a) permitted Mr Murray to amend his pleadings in order to introduce a new claim for loss and damage in the week of the 3rd to 10th February 1999, the particulars of which loss were that he was exposed to the worry and stress from the uncertain position where he found himself in the criminal justice system facing an imminent trial without knowing who his counsel would be; (b) declined the firm”s application to strike out the proceedings in their entirety on the basis of s. 3 (1) of the Statute of Limitations (Amendment) Act 1991; and (c) directed that the issue of the application of the statute of limitations be determined by the trial judge. Mr Murray appealed to the Court of Appeal against the order of Charleton J while the firm appealed to the Court against the order of Clark J. The firm argued that while Clark J struck out the claims as originally constituted as an abuse of process, she erred by allowing Mr Murray to amend his proceedings in the manner described, and by not simply striking out the entire proceedings. Firstly, it was submitted that a claim for damages for worry and stress simpliciter is not recognised within the law of tort, and that the trial judge erred by permitting such a claim to be litigated. Secondly, it was submitted that even if such a claim is possible it could only be one for personal injuries, and is therefore in any event statute-barred. Thirdly, it was submitted (a) that Mr Murray identified no duty arising under the contract that has been breached, (b) that there cannot be implied into that contract a term that obliges the firm to ensure that Mr Murray is not caused any stress and worry in the week prior to his trial, and (c) even if there is such a claim for worry and distress arising from the contract of retainer, the accrual date for the alleged breach was still the 3rd February 1999, and the six year limitation period for a claim in contract had passed by the date on which Clark J allowed the proceedings to be amended. Mr Murray submitted that his claim was grounded on an alleged specific lack of preparation which was fundamental to the obligations upon the defendant firm by virtue of its retainer to defend him.

Held by Peart J that Clark J ought not to have permitted an amendment of the claim in order to introduce a personal injury claim that was clearly statute-barred. Peart J held that Clark J erred in permitting Mr Murray to amend his Statement of Claim by inserting the new claim for damages in negligence and breach of duty which were provided for in her order under appeal by the firm, considering Walter and another v Crossan and others [2014] IEHC 377.

Peart J held that he would allow the appeal by the firm against the order of Clark J.

Appeal allowed.

JUDGMENT OF Mr Justice Michael Peart DELIVERED ON THE 19th DAY OF NOVEMBER 2015:

1 Before this Court are two appeals from interlocutory orders made in the High Court, the details of which I shall shortly set forth. The proceedings themselves comprise a claim for damages for professional negligence and/or breach of contract by the defendant firm arising from its retainer to defend the plaintiff at Naas Circuit Criminal Court against a charge of possession, with intent to supply, of a significant quantity of heroine. He was convicted of that offence on the 11th February 1999 and received a seven year sentence of imprisonment from which he was released in September 2004. I should add that the plaintiff was unsuccessful in two separate appeals against his conviction to the Court of Criminal Appeal. The first appeal in 2000 was based on a number of alleged errors on the part of the trial judge. His second appeal was heard in June 2005 after his release from prison, and was based on the alleged failure of his solicitor to adequately and properly prepare for his trial, and the failure of both solicitor and counsel to pay heed to his instructions during the course of his trial. As I have said, neither appeal succeeded.

2 He commenced these proceedings by way of Plenary Summons on the 2nd February 2005, being just within a period of six years from the date of his trial, being the relevant period under the Statute of Limitations, 1957 as amended, provided that the claim is not one in respect of personal injuries. That reservation assumes some significance in one of the appeals before the Court, as we shall see.

3 Because there are two appeals —one by each party to these proceedings —I will refer to the parties as plaintiff and the defendant, rather than cause confusion by referring to them as appellant and respondent.

4 The plaintiff's appeal is against an order of Charleton J. dated 20th April 2009 whereby he ordered:

(a) that the proceedings be struck out as an abuse of process because, being an action alleging professional negligence, it was launched without first ascertaining that there were reasonable grounds for so doing by obtaining appropriate expert evidence to support it; and

(b) further ordered that the plaintiff pay the defendant's costs of the motion when taxed and ascertained.

5 The defendant's appeal is against an order of Clark J. dated 23rd of November 2010 whereby she:

(a) permitted the plaintiff to amend his pleadings in order to introduce a new claim for ‘loss and damage in the week of the 3rd to 10th February 1999’ the particulars of which loss were that ‘the plaintiff was exposed to the worry and stress from the uncertain position where he found himself in the criminal justice system facing an imminent trial without knowing who his counsel would be’;

(b) declined the defendant's' application to strike out the proceedings in their entirety on the basis of section 3 (1) of the Statute of Limitations (Amendment) Act, 1991; and

(c) directed that the issue of the application of the statute of limitations be determined by the trial judge.

6 Before addressing the appeals themselves, some background narrative would assist an understanding of the basis for permitted claim in negligence, and the loss and damage said to have been sustained. The plenary summons was served on the defendants in January 2006. The Statement of Claim was delivered in June 2006. It contained many allegations in relation to the defendants' handling of his case and their preparation of his defence at trial. There is no need to set out those allegations extensively, but merely to refer to one of the complaints which is now the only complaint which remains relevant to the plaintiff's claim following the amendment permitted by the said order of Clark J., namely that they failed to retain and instruct Counsel in a timely fashion, indeed until the night before the trial was scheduled to commence. Clark J. permitted the plaintiff to amend his claim in the manner which I have described in paragraph 5 above, but struck out the remainder of his claims relating to the conduct of the trial itself and his conviction, on the basis that they represented a collateral attack upon the previous decision of the Court of Criminal Appeal.

7 The allegation that Counsel was retained by the defendants only on the evening before the plaintiff's trial is pleaded in the Statement of Claim as follows:

‘(v) although the defendant's solicitors had nearly two years to prepare the trial, the defendant found himself the weekend before the trial without counsel. Such was his panic that he endeavoured to contact counsel on his own but unsuccessfully. Indeed, when he met his instructing solicitor at Naas the day before his trial, there was still no counsel appointed. It was only on the evening of the same day that he was introduced to his new legal team, and a consultation lasting around 30 minutes was held.’

8 It appears that after the defendant firm was first instructed by the plaintiff, a particular experienced Senior Counsel was retained and a consultation took place with him in April 2007. In due course a trial date was fixed for February 1998 but the trial was postponed to a later date, presumably to February 1999 when the trial in fact took place. The plaintiff has stated in Replies to Particulars that he was not made aware of...