Supreme Court dismisses appeal where High Court correctly struck out claim alleging solicitor conspiracy and breach of duty.

THE SUPREME COURT

Appeal No. 269/2011

Denham C.J.

Dunne J.

Charleton J.

BETWEEN/

EDWARD O’NEILL

PLAINTIFF/APPELLANT

AND

MCCANN FITZGERALD SOLICITORS

1ST DEFENDANT/RESPONDENT

And

BRIAN LYNCH & ASSOCIATES SOLICITORS, ORLA CULLINAN SOLICITORS T/A “O.M. CULLINAN & CO. SOLICITORS” AND

TIMOTHY DOYLE

2nd, 3rd and 4th DEFENDANTS

Judgment delivered on the 20th day of February, 2017 by Denham C.J.

Background

1. This is an appeal brought by Edward O’Neill, the plaintiff/appellant, and hereinafter referred to as the “the plaintiff”, from the

judgment of the High Court (Hedigan J.) dated the 25th March, 2011, and order, which was perfected on the 8th June, 2011.

2. McCann Fitzgerald Solicitors, the first named defendant/respondent, referred to individually as “the first named defendant”, brought

a motion in the High Court to strike out the plaintiff’s claim as against them.

3. The High Court struck out the plaintiff’s proceedings as against the first named defendant, which is the decision the subject of this

appeal.

Proceedings

4. On the 19th January, 2011, the plaintiff instituted High Court proceedings against the defendants by way of plenary summons,

claiming a range of remedies, including damages for nuisance, breach of constitutional rights and orders for discovery, and he

delivered a statement of claim on the 3rd February, 2011.

5. The plaintiff’s claim arose out of a dispute between the plaintiff and Statoil (U.K.) Limited, which is referred to as “Statoil”,

concerning an allegation by the plaintiff that Statoil authorised the plaintiff to act as its agent in the negotiation of oil supply

contracts, and that Statoil is indebted to him in respect of a considerable amount of money.

5. The first named defendant was retained by Statoil to acts as its solicitors in this dispute.

7. Acting as solicitors for Statoil, the first named defendant sent to the plaintiff correspondence on behalf of Statoil, which stated

that Statoil believed that the plaintiff’s claim was entirely without merit.

8. The complaints made by the plaintiff in these proceedings are as to acts of the first named defendant taken when acting as

solicitors for Statoil.

9. The nature of the plaintiff’s claim is summarised in the judgment of the learned High Court judge at paragraph 2, as follows:-

“(1) The first defendant engaged in a conspiracy with the other defendants to deny him his entitlement to the monies he

claims.

(2) That this defendant engaged a private detective whose activities are threatening him and his family.

(3) He alleges this defendant co-ordinated efforts with the other defendants to make fraudulent allegations against him.”

10. By Notice of Motion dated the 7th March, 2011, the first named defendant brought an application seeking orders, pursuant to the

Rules of the Superior Courts and the inherent jurisdiction of the High Court, striking out the plaintiff’s claim on the grounds that the

allegations raised by the him in his plenary summons and statement of claim disclosed no reasonable cause of action and were bound

to fail. Further, that the allegations were frivolous and vexatious, and an abuse of process, and ought to be struck out.

11. The learned High Court judge invited counsel for the first named defendant to open the relevant documentation to the Court and,

having read through the written replies prepared by the plaintiff, heard a number of matters from the plaintiff in reply. Having reserved

judgment in order to consider the papers further, Hedigan J. delivered the judgment of the High Court on the 25th May, 2011.

12. Hedigan J. referred to the test to be applied by a Court in considering whether proceedings should be struck out, as stated by the

High Court (Kelly J.) in Bernadette Ennis v. Colm Butterly 1 I.R. 426. Hedigan J, at paragraph 3 of his judgment, summarised the

principles as set out in that case as follows:-

“(1) Where no reasonable cause of action is disclosed.

(2) Where the proceedings are frivolous and vexatious.

(3) Where the claim is clearly unsustainable.”

13. Applying the above criteria to each of the three aspects of the plaintiff’s claim, outlined in paragraph 9 above, the learned High

Court judge granted the application of the first named defendant to strike out the proceedings. In relation to the three aspects of the

plaintiff’s claim the High Court held:-

13.(i) Conspiracy with other defendants

In respect of the first aspect of the plaintiff’s claim, which concerned his allegation that the first named defendant conspired with

other defendants to deprive the plaintiff of monies he alleges are owed to him, the learned High Court judge noted that the plaintiff

had not issued any proceedings claiming the monies he alleged were owed to him. On examination of every communication between

the plaintiff and the first-named defendant, he found that each was typical of a communication sent by a solicitor in the preliminary

stages of proceedings, and reflected an appropriate defence of the interests of their clients. The learned High Court judge noted that

no reasonable cause of action arose out of the first named defendant having acted on the instructions of Statoil to vigorously defend

the plaintiff’s claim.

13.(ii) Engaging a private detective

The second aspect of the plaintiff’s claim related to an allegation that he received a threatening email from a private detective via an

encrypted email service, which could only be accessed by the recipient knowing or guessing the password. The learned High Court

judge considered that, given the dubious nature of the email and the tenuous linking of the first named defendant, this claim was

clearly unsustainable.

13. (iii) Co-ordinating with the other defendants to make fraudulent allegations

This claim concerns an allegation by the plaintiff that the first named defendant is linked to an allegation of fraud made against him in

the United States of America. Hedigan J. noted that this claim appeared to be based on the fact that the first named defendant

confirmed to U.S. lawyers that the plaintiff had made a claim against Statoil. The learned High Court judge could find nothing to

support this claim.

In the course of his judgment, Hedigan J. noted that the first named defendant is entitled to communicate with the U.S. lawyers, and

that there is no basis upon which the plaintiff may claim that they should not engaged with the firm. Furthermore. Hedigan J noted

that solicitors have every right to engage the services of a private investigator, which is common practice in litigation.

Appeal to the Supreme Court

14. The plaintiff, by way of a Notice of Appeal filed on the 27th June, 2011, appealed the judgment of the High Court to this Court.

15. I have considered the written submissions and papers submitted by the plaintiff and the first named defendant.

16. In making oral submissions to the Court, the plaintiff, who represented himself, described personal difficulties he had faced since,

he stated, there were allegations broadcast that he had received a large sum of money by fraud. While anyone would have a concern

for him as he described his personal difficulties, the issue before the Court is the appeal from the decision of the High Court, which in

turn related to the proceedings brought by the plaintiff.

17. The Court heard oral submissions on the 1st December, 2016. The matters raised by the plaintiff on appeal included, that:-

(i) The first named defendant and the other defendants engaged in a conspiracy in order to deprive the plaintiff of a sum of money

which the plaintiff alleges is owed to him by Statoil.

(ii) The first named defendant hired a private detective who threatened him and his family.

(iii) The first named defendant and other defendants colluded and communicated with lawyers in the United States of America, to

devise allegations of fraud against the plaintiff.

(iv) The first named defendant had knowledge of certain information concerning the plaintiff, which it ought to have disclosed to the

High Court, which would have had a bearing on the decision of the High Court had it been brought to its attention. In this respect,

the plaintiff contends that there was a “breach of duty of candour or full and frank disclosure” by the first named defendant.

18. The first named defendant disputed that the learned High Court judge erred in striking out the plaintiff’s claim.

19. In respect of the plaintiff’s contention that the first named defendant had knowledge of information concerning the plaintiff which

it ought to have disclosed to the learned High Court judge, the first named defendant submitted that: (i) this argument could have

been, and was not, made when the matter was before the High Court; (ii) it is unclear from the plaintiff’s submissions how he believes

that the first named defendant could have been aware of the information in question; and (iii) the plaintiff has not set out any basis

for his argument that had the learned High Court Judge known of the information, he would not have granted the first named

defendant’s application.

20. The first named defendant submitted that at all times it acted properly and appropriately, and only on instructions, when

representing its client.

Decision

21. The issue before this Court is whether there was any error by the High Court in striking out the plaintiff’s claim.

22. Having considered the judgment of the learned High Court judge, the papers filed on appeal, and the oral submissions, I can find

no error in respect of the decision of the learned High Court judge.

23. Consequently, I would dismiss the appeal.