Smith v Cunningham

• Jurisdiction: Ireland
• Judge: O'Donnell C.J.,O'Malley J.,Woulfe J.,Hogan J.,Murray J.
• Judgment Date: 30 November 2023
• Neutral Citation: [2023] IESC 33
• Court: Supreme Court
• Docket Number: S:AP:IE:2021:000148

Between/

Mark Smith

Plaintiff/Appellant

and

Mark Cunningham, Kevin Sorohan, Ann-Marie Sorohan and Paul Kelly Practicing Under the Style and Title of Paul Kelly & Company, Solicitors

Defendants/Respondents

[2023] IESC 33

O'Donnell C.J.

O'Malley J.

Woulfe J.

Hogan J.

Murray J.

S:AP:IE:2021:000148

AN CHÚIRT UACHTARACH

THE SUPREME COURT

RULING of the Court delivered on the 30 ^th day of November 2023 (Costs)

1 . As evident from the judgment of 25 May 2023 ( [2023] IESC 13), the plaintiff in these proceedings succeeded before the High Court in his claim that his action in negligence against the fourth named defendant (his former solicitor) was not statute barred. That decision was reversed by the Court of Appeal. The plaintiff failed in an attempt before this Court to overturn that decision and reinstate the decision of the High Court. The fourth named defendant now seek its costs against the plaintiff, while the plaintiff makes a corresponding application against the fourth named defendant, seeking his own costs or such variation thereto as the Court shall think reasonable and fair. The facts and circumstances giving rise to the claim of the plaintiff against his former solicitor, and the reason Murray J. (with whose judgment all members of the Court agreed) concluded that the claim was statute barred are recited in his judgment and the separate, concurring judgment of Hogan J. [2023] IESC 13.

2 . The fourth named defendant's position is straightforward: the matter proceeded by way of the trial of a preliminary issue as to the application of the Statute of Limitations to the plaintiff's claim in tort (it was accepted that his claim in contract was barred). He has lost that issue, and – the fourth named defendant says – it is, having been entirely successful in its defence on that issue, entitled to its costs.

3 . The plaintiff, in resisting the fourth named defendant's application for costs and in support of his own, highlights what he perceives as the injustice of the position in which he finds himself: he says that through absolutely no fault of his own he has suffered a loss as a consequence of his solicitor's negligence in connection with the conveyance of his house. He was, he says, not even aware that he was a victim of the alleged negligence of his solicitor until the Contract for Sale was rescinded. It is, he said, an ‘appalling vista’ and a ‘grave injustice’ that a victim should now be ‘doubly punished’. He says that his proceedings were in the nature of a ‘test case’ and that the law has now been clarified, and that the effect of his proceedings has been to highlight a potential injustice arising from the operation of the Statute of Limitations in claims for economic loss or property damage to which the legislature may have to attend.

4 . Citing a range of authority, but in particular the decisions in Dunne v. Minister for the Environment [2007] IESC 60, [2008] 2 IR 775, and Cork County Council v. Shackelton [2007] IEHC 334, the plaintiff observes the hardship that would follow from an order for costs, and stresses the following ‘ special circumstances’ of the case:

• (i) The reasons the plaintiff brought the proceedings,

• (ii) The claim that the plaintiff was justified in bringing proceedings,

• (iii) The fact that in accordance with the law at the time the proceedings were instituted, the plaintiff was justified in thinking that he was entitled to issue proceedings to protect his constitutional rights.

• (iv) The importance of the requirement that his solicitor would carry out its duties, functions and the fiduciary nature thereof, and act conscientiously as an officer of the Court.

• (v) His claim that any reasonable victim would have thought he was protected in the circumstances in which he found himself by the ethics of the profession, the law and the guidance of the Law Society of...