Supreme Court dismisses solicitor negligence claim where case collapse was due to counsel's assessment, not solicitor's delay.

THE SUPREME COURT

362/10

Hardiman J.

O'Donnell J.

Clarke J.

Between/

Dermot Tighe

Plaintiff/Appellant

and

Joseph Burke,

Trading as McCartan & Burke Solicitors

Defendant/Respondent

Judgment of O’Donnell J. delivered on the 15th day of May 2012.

1 This case concerns a claim for damages made by the plaintiff Mr. Dermot Tighe against his former solicitor Joseph Burke arising out

of work done by Mr. Burke when he took over the carriage of a judicial review claim commenced by Mr. Tighe. In his claim Mr. Tighe

sought a declaration that he had obtained a default planning permission to develop at Newtown, Enfield, County Kildare what he

described in his amended statement of claim of the 18th March 2010 as “Six large apartments with market value in the first quarter

of 2006 of €2.7612 million” and which amount of money he seeks to recover in these proceedings from Mr. Burke.

2 The claim in which Mr. Burke acted for Mr. Tighe arose from the fact that planning permission for the development had been sought

in July 2002. The nub of the complaint was that in the course of the planning process the County Council sought further information

culminating in a request on the 13th March 2003. Because Mr. Tighe was representing himself and was not always able to address the

issues which arose with the clarity which might otherwise be desirable, and because the documents before the Court were very

limited, some matters were less clear than they might otherwise have been. However it appears that because of the configuration (or

perhaps the fact) of a development on adjoining land, Mr. Tighe’s development was very unlikely to get permission in the normal

course, and therefore a default permission, difficult though that might be to achieve, may have been the only possible route through

which Mr. Tighe could have developed the land.

3 Mr. Tighe took the view (on engineering rather than legal advice, it appears) that the request of the 13th of March was not a

necessary or valid request and that the Council had all necessary information and that, accordingly, he had obtained a default

permission on the 18th March 2003. Mr. Tighe instructed a firm of Dublin solicitors to act for him and judicial review proceedings were

commenced seeking a declaration that he had obtained permission by default. Mr. Tighe subsequently engaged Mr. Burke who, as it

happened, came from the same part of the country and had been recommended by a friend. While it appears that there was a dispute

in the High Court as to who had contacted who first, the trial judge observed, correctly, that nothing turned upon that, for the

purposes of this claim. Accordingly, the claim against Mr. Burke concerns the manner in which he pursued the claim on Mr. Tighe’s

behalf.

4 The case had been fixed for hearing on the 17th of January 2006 but was settled the day beforehand in circumstances where the

claim was withdrawn and no order was made as to costs. This was described by Mr. Tighe, not inaccurately as the collapse of his

case. But Mr. Tighe’s complaint in these proceedings was not that he was misled as to the merits of the claim or insufficiently or

belatedly informed of frailties in the case, or, that he had needlessly incurred fees and expenses. His claim was almost the opposite of

the foregoing: he alleged that through Mr. Burke’s alleged default he had abandoned the case that should, and would, have

succeeded. It is more than understandable that Mr. Tighe would be unhappy and disappointed with the outcome of the case which

held out the only realistic hope of developing his land at a time when it might have appeared that that was a route to considerable

wealth. The case progressed from a tentatively expressed but optimistic opinion by the original senior counsel retained, to a second

formal opinion from another senior counsel which expressed a somewhat more guarded approach, but which was accompanied by a

covering letter suggesting that the claim would fail, and up to a point close to the hearing, when having paid a substantial sum in fees

sought by new counsel, Mr. Tighe was advised that on all the information available, he had significantly less than a 20% chance of

winning the case and advised on settlement that involved withdrawal of the case. It was not suggested on this appeal however that

such advice was incorrect. In those circumstances Mr. Tighe’s claim faced serious difficulty, almost from the outset.

5 Mr. Tighe represented himself both in the High Court and in this Court. His claim was heard in the High Court by the President of the

High Court, Kearns P. There were only two witnesses, Mr. Tighe and Mr. Burke. On the 16th July 2010 Kearns P. delivered a judgment

dismissing the claim and rejecting all the complaints made by Mr. Tighe. Mr. Tighe has appealed to this Court. The Court has heard

submissions from Mr. Tighe who, it should be said, was both helpful and polite, and showed a comprehensive knowledge of the case

and the documents he had submitted, although he had some difficulty in addressing any of the questions which necessarily arose

during the course of the hearing.

6 In advancing this appeal, the appellant faces a number of difficulties both legal and factual. First, this is a court of appeal. It does

not hear evidence from witnesses. It is well established that, as far as findings of fact are concerned, this Court will not interfere with

such findings other than in exceptional circumstances. In Pernod Ricard v Fyffes (11/11/88), Finlay C.J. put it in this way:

“Findings by a trial judge of primary and or basic facts which depend upon the assessment by him of the credibility and

quality of a witness will only be interfered with by this court on appeal when such findings of primary fact cannot in all

reason be held to be supported by the evidence.”

7 This poses a particular difficulty in this case. It is clear that the High Court judgment made a number of findings of primary fact,

some of which were clearly based on the judge’s assessment of the credibility of the witnesses. In those circumstances the most

skilled lawyer would have trouble in advancing a plausible argument on this appeal. It is worth recalling the observations of Henchy J.

in Northern Bank Finance v Charlton [1979] IR 149, 192:

“In a civil case such as this where a tribunal of fact, be it a judge or a jury has decided a question of specific fact and

the resolution of the question depended wholly or in substantial measure on the choice of one version of controverted

oral testimony as against another, a court of appeal which is dependent on a written record of the oral evidence given

at the trial will not normally reject that finding merely because an alternative version of the oral testimony seems more

acceptable. The court of appeal will only set aside a finding of fact based on one version of the evidence when, on taking

a conspectus of the evidence as a whole, oral and otherwise, it appears to the court that, notwithstanding the

advantages which the tribunal of fact had in seeing and hearing witnesses, the version of the evidence which was acted

on could not reasonably be correct.”

8 A second difficulty the appellant faces is of a more practical nature. In this case the court does not have any transcript of the

evidence in the High Court or even an agreed note of it. Furthermore Mr. Tighe has submitted 95 pages of what he describes as

exhibits referred to in his notice of appeal. It is only fair to say that these have been meticulously indexed by Mr. Tighe but they are

manifestly incomplete. By way of example, only the last page of a 16 page opinion is included in the booklet. It is all the more difficult

to form any view of the facts of this case from such a limited vantage point. Finally, it is to be observed that Mr. Tighe’s allegations

of negligence and default against Mr. Burke were not supported by any expert witness, or indeed any other witness of fact.

9 Mr. Tighe’s approach to the case was to repeat the arguments made in the High Court. He has made a careful study of the papers

he has obtained from Mr. Burke, presumably as part of a process of a disciplinary inquiry before the Law Society Disciplinary Tribunal,

and he has listed all possible complaints about aspects of Mr. Burke’s performance. It is only fair to say that these matters are

contested by Mr. Burke. However even taken at their high point, it is difficulty to see how, in the light of the findings made in the

High Court, Mr. Tighe could succeed in his appeal. It appears that the heart of his complaint seems to be that he considers that his

case collapsed not because of any inherent legal difficulty in his case but rather by reason of a number of failings he attributes to Mr.

Burke which he described in his document entitled “Outline submissions for priority listing” in the following way:

1 Failure to seek to discovery advised by senior counsel;

2 The delay in filing replying affidavits within the four week period permitted by Quirke J. on the 18th June 2004; and

3 A failure to investigate his claim that a bribe had been demanded from him by an officer in Kildare County Council.

10 In each case the trial judge found against Mr. Tighe. In each case the conclusion was one which was clearly open to the trial

judge on the evidence, and which it is only fair to say, appears to have been amply justified by even the limited selection of

correspondence and fragments of documents put before this Court in the book of appeal.

11 In the case of the discovery sought, it is quite plain that discovery was not just sought but it was also provided. Indeed the

schedule of the discovered documents is included at page 23 of Mr. Tighe’s book. While Mr. Tighe maintains that it is inadequate that

the trial judge found on page 7 of his judgment that by May 2005 it was apparent that there were no further or additional documents.

Mr. Tighe has not been able to point to any error in this reasoning or conclusion. In particular he was not able to produce any

evidence of the existence of a document which he says was omitted from discovery.

12 The second issue is at the heart of the appeal. There is no doubt that the replying affidavits were not delivered within the four

weeks of June 2004 as directed, and indeed were not in the event delivered until November of the following year. It is only fair to say

that Mr. Burke gave an explanation for this in his evidence to the Solicitors Disciplinary Tribunal, an extract of which is contained at

page 50 of the booklet. But it seems absolutely clear that it cannot be said that the passage of time involved in this process was, as

Mr. Tighe put it, “the end of the road for his judicial review proceedings” or still less that it “caused the collapse of my case”. While

it is true that it would have been necessary to bring an application for liberty to admit the affidavits at such a late stage, Kildare

County Council had indicated by their letter of the 7th December 2005 and contained at page 55 of Mr. Tighe’s book, that they would

not strenuously oppose the application to file the affidavits but would require until the 15th January 2006 to reply. In the event we

know that these latter affidavits were delivered because in the first letter of the 16th January 2006 written by senior counsel, he

both referred to the affidavits and analysed them. Indeed the documentation showed that drafts were sent by Kildare County Council

by email on Friday the 13th of January. It is also plain from the correspondence from counsel of the 16th January 2006, and indeed

Mr. Burke’s subsequent letter of the 25th January 2006, that the reason the case collapsed was the gloomy assessment of its

prospects of success given by senior counsel, coupled with the offer by the County Council to allow the case to be withdrawn

without seeking an order as to costs.

13 A third allegation is that Mr. Burke failed to investigate Mr. Tighe’s allegation of bribery. It is indeed difficult to see how this

allegation could have been deployed to advantage in judicial review proceedings designed to show that, by simple passage of time,

Mr. Tighe had obtained a default permission. However, in any event the trial judge held that two senior counsel had advised against

including any reference to this allegation in judicial review application, and not only can that conclusion not be disturbed in this

appeal, it should be said that it seems amply justified by the fragments of evidence submitted by Mr. Tighe in this respect. In the

circumstances it is impossible to see how any blame could be attached to Mr. Burke, nor indeed is it possible to understand that any

investigation by Mr. Burke of this allegation was warranted or how it could be said that the fact that it was not investigated by Mr.

Burke could have had any impact on the outcome of the case.

14 In the circumstances Mr. Tighe’s appeal must be dismissed.