Tolan v Brady Trading Under The Style and Title of Dillon-Leetch & Comerford Solicitors

• Jurisdiction: Ireland
• Judge: Mr. Justice Barr
• Judgment Date: 16 March 2023
• Neutral Citation: [2023] IEHC 130
• Court: High Court
• Docket Number: [Record No. 2018/10665P]

Between

Finbar Tolan

Plaintiff

and

John Brady and John Dillon-Leetch, Both Trading Under The Style and Title of Dillon-Leetch & Comerford Solicitors

Defendants

[2023] IEHC 130

[Record No. 2018/10665P]

THE HIGH COURT

Negligence – Plenary summons – Amendment – Plaintiff seeking to amend his plenary summons and statement of claim – Whether the amendments would cause severe prejudice to the defendants

Facts: The plaintiff, Mr Tolan, sued the defendants, Mr Brady and Mr Dillon-Leetch, his former solicitors, in respect of their alleged negligence when representing him in unsuccessful proceedings that he brought against Connaught Gold Co-Operative Society Ltd (Connaught Gold), before the High Court in 2015. The plaintiff applied to the High Court seeking to amend his plenary summons and statement of claim, to include additional particulars of negligence against the defendants; to the effect that they were negligent in failing to amend his original proceedings to include a claim for damages for malicious falsehood, as had been advised by junior counsel in his advice of proofs dated 10th February, 2014. The defendants resisted the application on the following grounds: (i) the plaintiff was aware of the content of the advice of proofs all along, so he should have included the pleas that he wished to make in that regard in his original plenary summons and statement of claim, and he should not be allowed to add them into his pleadings; (ii) the amendments should not be allowed because the allegations contained in the proposed amendments were bound to fail, as the plaintiff had given instructions to his solicitors that his original pleadings in the case against Connaught Gold were not to be amended, as he wanted his action to get on for hearing as soon as possible; and (iii) the amendments should not be allowed as that would cause severe prejudice to the defendants, because it would deprive them of a defence under the statute of limitations.

Held by Barr J that if there had been a detailed consultation between the solicitor and the plaintiff to discuss counsel’s advice of proofs, one would expect to see a charge for such consultation in the bill of costs; no bill of costs had been exhibited in the case. Barr J found that its omission tended to support the plaintiff’s assertions in that regard. While not making any finding as to when the plaintiff first learned of the content of counsel’s advice of proofs, Barr J could not find on the evidence that the plaintiff definitely knew of its content before the time that he alleged that he received it, in February 2022; accordingly, that argument against allowing the amendment of the pleadings did not succeed. Barr J was not persuaded that what the plaintiff complained of in his amended statement of claim was in fact a new cause of action; the plaintiff had always sued the defendants for alleged negligence in and about their handling of his action against Connaught Gold and he had not tried to bring in a new cause of action arising out of a separate transaction. Barr J was satisfied that any perceived prejudice to the defendants could be removed by providing that the amendments should be allowed, but only with effect from the date of delivery of the amended pleadings, thereby preserving any defence that the defendants may have under the statute of limitations, if the matters complained of in the amendments were deemed to constitute a fresh cause of action. Barr J held that as the plaintiff had obtained the relevant documentation and on foot of that, had received an expert opinion, which tended to support his claim that there was negligence on the part of his solicitors, it was in the interest of justice that the plaintiff be permitted to make the amendments sought, so as to put his case fully before the court at the trial of the action.

Barr J allowed the plaintiff to amend his plenary summons and statement of claim in the manner set out in the proposed amended plenary summons and amended statement of claim as exhibited at FT3 to his affidavit sworn on 10th May, 2022. Barr J held that the order would provide that the amendments were only to take effect as and from the date of delivery of the amended plenary summons and statement of claim to the defendants.

Application granted.

JUDGMENT of Mr. Justice Barr delivered on the 16 ^th day of March, 2023.

Introduction.

1 . In these proceedings, the plaintiff is suing his former solicitors in respect of their alleged negligence when representing him in unsuccessful proceedings that he brought against Connaught Gold Co-Operative Society Limited (hereinafter “Connaught Gold”), before the High Court in 2015.

2 . In this application, which has come before this Court by what can only be described as a circuitous route, the plaintiff seeks to amend his plenary summons and statement of claim, to include additional particulars of negligence against his former solicitors; to the effect that they were negligent in failing to amend his original proceedings to include a claim for damages for malicious falsehood, as had been advised by junior counsel in his advice of proofs dated 10th February, 2014.

3 . The defendants resist the application on a number of grounds, which can be summarised as follows: The plaintiff was aware of the content of the advice of proofs all along, so he should have included the pleas that he wished to make in that regard in his original plenary summons and statement of claim; it was submitted that he should not be allowed to add them into his pleadings at this late stage of the proceedings; secondly, it was submitted that the amendments should not be allowed because the allegations contained in the proposed amendments were bound to fail, as the plaintiff had given instructions to his solicitors that his original pleadings in the case against Connaught Gold were not to be amended, as he wanted his action to get on for hearing as soon as possible; thirdly, it was submitted that the amendments should not be allowed at this stage, as that would cause severe prejudice to the defendants, because it would deprive them of a defence under the statute of limitations.

Background.

4 . As noted in the introduction, the origins leading to this application, stretch back a very long way. In order to understand the background against which this application is brought, it is necessary to briefly set out the history of the professional involvement between the plaintiff and the defendants.

5 . The plaintiff instituted proceedings against Connaught Gold claiming damages for breach of contract. The plaintiff alleged that by an agreement in writing entered into on 16th July, 2012, it was agreed that as and from 10th August, 2012, the credit period, within which he would be allowed to provide payment for cattle that he bought at the defendant's marts, would be reduced from three weeks to one week.

6 . The plaintiff alleged that at a meeting between him and representatives of Connaught Gold, held on 9th August, 2012, they reneged on that agreement and told him that he was barred from future attendance at their marts. As a result, the plaintiff was not able to attend a mart known as Balla Mart which was to be held on 11th August, 2012. The plaintiff alleged that at that mart, representatives of Connaught Gold made statements to persons attending the mart, to the effect that the plaintiff had been barred from attendance at the marts due to credit difficulties that he had. The plaintiff alleged that as a result of his being barred from attendance at the mart and the statements made thereat, rumours spread very quickly that he was experiencing financial difficulties, which led ultimately to the collapse of his business.

7 . It is not clear when his proceedings against Connaught Gold were issued. The court has not been provided with a copy of those pleadings. However, it appears that in or about September 2012, he attended at the defendants' offices with a view to engaging them to act on his behalf in the litigation. They accepted the retainer and acted as his solicitors in the action. That action was heard over four days in May 2015 before Kearns P. On 15th May, 2015, Kearns P., in an ex tempore judgment, dismissed the plaintiff's action against Connaught Gold.

8 . At that stage, the defendants ceased to represent the plaintiff. The plaintiff appealed the judgment to the Court of Appeal. In a written judgment delivered on 5th May, 2016, the Court of Appeal dismissed the plaintiff's appeal; reported at [2016] IECA 131.

9 . The plaintiff sought leave to bring a further appeal to the Supreme Court, but that was refused in a written ruling delivered on 28th July, 2016, sub nom Tolan v. Aurivo Co-Operative Society Limited, reported at [2016] IESCDET 107.

10 . The plaintiff then sought, by notice of motion, to re-enter his action against Connaught Gold, for the purpose of setting aside orders previously made in the proceedings, on the grounds that the proceedings were tainted by bias on the part of the trial judge. In a written judgment delivered on 31st May, 2017, Noonan J. refused the plaintiff's application in that regard: reported at [2017] IEHC 351.

11 . The plaintiff appealed that decision to the Court of Appeal; which appeal was dismissed by the Court of Appeal in a judgment delivered by Whelan J., reported at [2018] IECA 267. The plaintiff sought leave to appeal the dismissal of his appeal, to the Supreme Court. That application for leave to appeal was refused by the Supreme Court on 6th November, 2018, reported at [2018] IESCDET 191.

12 . On 6th December, 2018 the plaintiff issued the plenary summons in the present proceedings, claiming damages for breach of contract against the defendants. A statement of claim was furnished on 10th July, 2020. By a notice of motion issued on 7th September, 2020, the plaintiff sought judgment in default of defence against the...