BAILII is celebrating 24 years of free online access to the law! Would you consider making a contribution?

No donation is too small. If every visitor before 31 December gives just £1, it will have a significant impact on BAILII's ability to continue providing free access to the law.
Thank you very much for your support!



BAILII [Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]

Supreme Court of Ireland Decisions
You are here: BAILII >> Databases >> Supreme Court of Ireland Decisions >> McMullen -v- McGinley [2005] IESC 10 (15 March 2005)
URL: http://www.bailii.org/ie/cases/IESC/2005/10.html
Cite as: [2005] 2 IR 445, [2005] IESC 10

[New search] [Help]

Judgment Title: McMullen -v- McGinley

Neutral Citation: [2005] IESC 10

Supreme Court Record Number: 216 & 270/99

High Court Record Number: 1995 8142P

Date of Delivery: 15/03/2005

Court: Supreme Court


Composition of Court: Murray C.J., Hardiman J., Fennelly J.

Judgment by: Fennelly J.

Status of Judgment: Approved

Judgments by
Result
Concurring
Dissenting
Fennelly J.
Appeal dismissed - affirm High Court Order
Murray C.J., Hardiman J.

Outcome: Dismiss

33


THE SUPREME COURT
Record No. 216/99
Murray C.J.
Hardiman J
Fennelly J.

BETWEEN

MICHAEL COLIN GEOFFREY McMULLEN

Plaintiff/Appellant

and

EDWARD McGINLEY

by Order representing the Estate of NOEL CLANCY


Defendant/Respondent

JUDGMENT delivered on the 15th day of March, 2005 by FENNELLY J.

This is an action brought by the Appellant against his former counsel, now deceased. The present appeal is taken from the dismissal of that action by McGuinness J in the High Court. The proceedings have been reconstituted by consent, with Mr McGinley now being named to represent the estate of the deceased. I propose to refer to the parties as Mr McMullen and Mr Clancy.
The appeal represents the culmination of a long and, from Mr McMullen’s point of view, extremely unfortunate saga of litigation. Mr McMullen’s purchase of a property near Tullamore led him into dispute with and legal action against the vendors concerning the use of an avenue leading to that property. He settled his action against those defendants on terms which, contrary to his instructions, did not allow him to re-enter the action. Arising from this, he sued his solicitors, but his claim failed largely because Mr Clancy, the counsel instructed by those solicitors, gave evidence accepting responsibility. Hence the present action against the latter. It will be necessary to consider the history in some detail in order to see how things went wrong for Mr McMullen, as they undoubtedly did, but more particularly in order to discern whether the fault can now be laid at Mr Clancy’s door. In the present action, Mr McMullen has at all times acted in person, without any legal representation.
In spite of some twists in the story, it has to be said at the outset that Mr McMullen’s claim against Mr Clancy is not, at least not in the ordinarily understood sense, a negligence action. This became clear at the hearing of the appeal. Mr McMullen is principally outraged -and it is not too strong a word – at the fact that Mr Clancy gave evidence against him, an act which he regarded as a betrayal. Far from blaming Mr Clancy for the mistake in the settlement of the original action, Mr McMullen says that Mr Clancy’s acceptance of responsibility was false. He also claims that there was a conspiracy mounted against him by Mr Clancy and a number of other persons including his former solicitors. A principal plank of his appeal was a copy of a letter from the solicitors who had acted for Mr McMullen’s former solicitors to the insurers of the latter, which is claimed to evidence such a conspiracy.
Mr McMullen’s complaints are intimately linked with his original action regarding the property near Tullamore. I must summarise that history.
In the year 1972, Mr McMullen negotiated a thirty-five lease from the Charleville Estate Company of a property known as Charleville Castle, consisting of some five acres of land and a Castle in severe need of repair. Mr McMullen undertook to put the Castle in repair and he spent some IR£80,000 in doing so. The Estate Company was owned by the Hutton Bury family, who retained about one thousand acres of surrounding land. To quote Mr McMullen, it was “an estate within an estate.” The surrounding land included the main avenue leading from the Tullamore Town Entrance to the Castle, which was about one mile long, over which Mr McMullen, as lessee of the Castle, was granted a right of way in common with others. The Hutton Bury family’s Estate Company was the servient owner.
It had, however, been customary for many years for local residents, in particular people from the town of Tullamore, to frequent the estate in what Mr McMullen considered to be excessive numbers. He complained that this user constituted a nuisance to him as occupier of the Castle and grounds. He complained about rude and insulting and, to a certain extent indecent, behaviour. Some people trespassed on the area leased to him. However, in 1976, he was allowed by the Estate Company to build a wall around his take. The problems on and about the avenue continued, however. Mr McMullen thought that the nuisance was unbearable and that it destroyed his life. However, the Hutton Bury family had tolerated extensive access by the public to the estate.
In 1982 Mr McMullen brought an action against the Charleville Estate Company. His solicitors were Kent Carty and Co, who took over carriage of the proceedings from another firm. Mr Clancy was, ultimately, the senior counsel who appeared in the action. The two points to note about this action are that: firstly, Mr McMullen did not sue the persons who were committing the nuisance, but the owners of the estate; secondly, Mr McMullen did not own the avenue; he simply had a right of way over it.
Not surprisingly, therefore, as has been established in both subsequent actions against Kent Carty and Co and Mr Clancy respectively, two successive senior counsel retained by Kent Carty and Co to advise and represent Mr McMullen were pessimistic about the chances of success in the claim. Mr Robert Barr, Senior Counsel, later Mr Justice Barr, advised in January 1985 that the nuisance not be proceeded with. According to the evidence of Ms Pamela Madigan, solicitor of Kent Carty and Co, he had very little faith in the action. About this time, Mr McMullen was introduced to Mr Clancy. He consulted him privately, without the intervention of a solicitor. Mr Clancy was much more encouraging about the prospects of success.
Mr McMullen communicated to Kent Carty and Co his wish to retain Mr Clancy. Kent Carty and Co were reluctant to do so, stating that they did not consider the action to be within his area of expertise. Mr Barr was appointed to the bench. A compromise was reached between Mr McMullen and Kent Carty and Co, whereby Mr Eoghan Fitzsimons, Senior Counsel, would lead and Mr Clancy would be second senior.
A consultation took place at the Four Courts about a week before the scheduled hearing of the action in July 1985. Mr Fitzsimons stated very clearly that he had no confidence in the action. He would not go into court in a case in which he had no faith. He said that it would be dishonourable to take Mr McMullen’s money. He handed back his brief and withdrew from the case. Mr Clancy then led for Mr McMullen with a junior.
The action proceeded to hearing on 10th July 1985 before Mr Justice Costello. While some views have been expressed, for example, that the case did not go well for Mr McMullen on the first day, but improved on the second day, these are not matters to which any importance can be attached. The fact is that, following an approach from counsel for the defendant on the third day, 12th July 1985, negotiations commenced. These led to a settlement which was reduced to writing. The settlement offered Mr McMullen the opportunity to erect a gate on the avenue and to put a “Private” notice on it, presumably in an attempt to permit Mr McMullen to control the nuisance of which he had complained. Mr Clancy, in particular, but others also saw this as a very considerable success for Mr McMullen. Ms Madigan, solicitor of Kent Carty and Co, gave evidence in the High Court that the settlement was obtained in the face of what looked like a “very blatant defeat.” However, it is perfectly clear, as Mr McMullen insisted on that day and, as he has repeated ever since, that he wished to be able to re-enter the action if the settlement did not work out. Unfortunately, the relevant paragraph, number 9, of the settlement provided only:

“Each party hereto shall have liberty to apply.” This paragraph did not, as should have been clear to all concerned, permit Mr McMullen to re-enter the action. In that respect, therefore, the settlement was directly contrary to Mr McMullen’s express instructions.
There have been different versions of the events surrounding the making of this settlement. Mr Clancy, according to his evidence in the action against Kent Carty and Co, (hereinafter “the negligence action”) said that he had advised Mr McMullen of the terms in a walk outside the Four Courts. Mr McMullen has always denied that this ever took place. Ms Pamela Madigan was the solicitor in attendance from Kent Carty and Co. Mr McMullen gave evidence in the present action before McGuinness J that she advised him that the action could be re-entered. This evidence was confirmed by Ms Madigan, who added, however, that, upon inquiry from Mr McMullen, she asked Mr Clancy: “Mr McMullen wants to know if this goes wrong can he get back into court.” She continued: “Mr Clancy said yes and I went back to Mr McMullen and said yes.” On that basis, the settlement was signed. Insofar as this partial conflict of evidence is concerned, it relates only to the dispute between Mr McMullen and Mr Clancy in the evidence in the negligence action. It is important to note that Carroll J, in her judgment in that action dated 13th July 1993, found in favour of Mr Clancy. She found that the conversation outside the Four Courts between him and Mr McMullen had taken place. Mr Clancy swore that he had advised Mr McMullen that “if the terms of the settlement were not implement they could certainly go back into court and carry on again.”
However, Mr McMullen was dissatisfied, for reasons which do not relate to any issue now to be decided, with the manner in which the settlement operated over the ensuing months. He considered it to be ineffective in dealing with his complaints. He instructed Kent Carty and Co to have the matter re-entered.
Kent Carty and Co accordingly, on Mr McMullen’s instructions moved in late 1986 to have the original action re-entered. That application was due to be heard by Mr Justice Costello in February 1987. In the meantime, Ms Madigan met junior counsel for the defendant, who alerted her to the fact that the settlement did not, in fact, provide liberty to re-enter, but only “liberty to apply.” Her evidence in the High Court was to the effect that she had consulted Mr Clancy once more and that he advised that this would not be a problem. In the event, Costello J ruled, as was inevitable, that the action was settled on terms which only allowed “liberty to apply” in respect of the terms of the settlement and not liberty to re-enter the action. Accordingly, he had no jurisdiction to hear the action further. It had been settled.
The unfortunate result of all this was that, whatever the weakness of his original claim, Mr McMullen had now been deprived, through no fault of his own, of the opportunity to have the nuisance action heard and determined on its merits. This resulted from the legal mistake in drafting and advising on the settlement. It may be material to record at this point, because of its potential relevance to a limitation defence, the extent of Mr McMullen’s knowledge of Mr Clancy’s responsibility for this mistake. I speak conditionally because Mr McMullen does not appear ever to have contemplated that Mr Clancy, as distinct from Kent Carty and Co, was negligent.
The relevant evidence is, firstly, that of Ms Madigan in the High Court. She said that, on the day Costello J refused the application to re-enter, she spoke to Mr McMullen, who, like her, was shocked at what had happened and that she told him that Kent Carty and Co had “been wrongly advised by Mr Clancy.” She added that “the responsibility for that was with Mr Clancy and with him [Mr McMullen] for nominating Mr Clancy.” The learned High Court judge does not appear to have made any express finding regarding this evidence. However, it is quite clear, on Mr McMullen’s own evidence, that he was fully aware by the month of May 1987 that Kent Carty and Co were firmly putting the blame on Mr Clancy.
In a telephone conversation between Mr McMullen and Mr Clancy on or about 25th May 1987, and taped by Mr McMullen, Mr Clancy stated that he understood that Mr McMullen intended suing him. In the course of that lengthy conversation, Mr McMullen acknowledged that he had been told by Kent Carty and Co that they were not responsible for the error in the settlement, but that he, Mr Clancy, was.
On 29th June 1988, Mr McMullen, employing a new firm of solicitors, commenced an action for damages for negligence against Kent Carty and Co. The central allegation against the defendants was their alleged failure to ensure that the terms of the settlement allowed Mr McMullen to re-enter his nuisance action. Kent Carty and Co, in their defence to that action, filed on 17th April 1989, firmly placed entire responsibility for the negotiation of and advice concerning the settlement on Mr Clancy. This Court has not been given any information about the reasons for Mr McMullen’s decision to sue only Kent Carty and Co to the exclusion of Mr Clancy. It is, of course, Mr McMullen’s right to reserve such matters to himself. It is fair to note, however, that Mr McMullen does not seek to place any blame on the solicitors who represented him in the action against Kent Carty and Co for the decision not to include Mr Clancy as a defendant in that action. As already seen, Mr McMullen was fully aware of the disastrous mistake in the settlement and of the fact that Kent Carty and Co were assigning responsibility for it to Mr Clancy. It seems, therefore, that Mr McMullen made a considered decision to sue the first rather than the second. This view received further confirmation during argument at the hearing of the appeal.
Giles Kennedy and Company, solicitors, acted for Kent Carty and Co in the defence of Mr McMullen’s action against them. It was the evidence both of Mr Hugh Carty and Ms Pamela Madigan of that firm in the High Court in the present action that the entire handling of the defence of the claim was left to Giles Kennedy & Co and that neither of them took part in the preparation of the defence or the selection or calling of witnesses. Mr Clancy was called before Ms Justice Carroll on 7th May 1992 as a witness for the defence. He did so without raising any question as to the privilege of his client, though it is fair to point out that Mr McMullen’s counsel took no objection. Mr Clancy gave the evidence already mentioned regarding the advice given on a walk outside the Four Courts about the re-entry of the action. He also accepted responsibility for the erroneous wording.
The evidence of Mr Clancy was decisive so far as Mr McMullen’s claim against Kent Carty and Co was concerned. Carroll J held that:
Mr McMullen appealed that decision to this Court. Though he had been represented by solicitor and counsel in the High Court, he appeared in person on the appeal. By order dated 27th January 1998, the Court dismissed Mr McMullen’s appeal. The judgment was delivered by Lynch J, with whom the other members of the Court agreed.
As appears from the judgment of Lynch J, it is clear that Mr McMullen’s “main submission was that Mr Clancy Senior Counsel……ought not to have given evidence on being called on behalf of [Kent Carty and Co] in the case before Carroll J having regard to [Mr McMullen’s] privilege of confidentiality regarding communications between lawyer and client.” He also contended that Mr Clancy “was in breach of the Code of Conduct for the Bar of Ireland.” As will be seen later, this replicates a substantial part of Mr McMullen’s argument in this Court. In addition, he argued that Kent Carty and Co had been negligent in respects which are no longer material to the present case.
Lynch J dealt with Mr McMullen’s complaints concerning Mr Clancy’s giving of evidence for Kent Carty and Co as follows:

“A lawyer, whether solicitor or barrister, is under a duty not to communicate to any third party information entrusted to him by or on behalf of his lay client. This privilege of confidentiality belongs to the client not the lawyer. It may be waived by the client not the lawyer but such waiver may be implied in certain circumstances as well as being express. When a client sues his solicitor for damages for alleged negligence arising out of the conduct of previous litigation against third parties and especially as in this case arising out of the settlement of such previous litigation the client thereby puts in issue all the communications as between the solicitor and the client and the barrister and the client and also as between the barrister and the solicitor relevant to the settlement of the case and thereby waives the privilege of confidentiality…… It would be manifestly unjust and wrong if the solicitor was precluded by the rule of confidentiality from making his case before the court that both he and counsel advised the client X.Y.Z. and that the settlement was indeed advantageous to the client. These facts are put in issue by the client who thereby waives his privilege of confidentiality.” Lynch J went on to state that the same considerations would apply in favour of a barrister if he were to be sued by his client, though that had not arisen in that case. He also observed that the counsel who appeared for Mr McMullen in the action before Carroll J had made no objection to Mr Clancy giving evidence, stating that he had little doubt that counsel “fully appreciated the legal position.” Accordingly, Lynch J held that Mr McMullen’s submission that Counsel should not have given evidence in the High Court [was] “misconceived and wrong.” The Court also rejected Mr McMullen’s claims that Kent Carty and Co had been negligent. It commented on the weakness of Mr McMullen’s original case against the Charleville Estate Company, observing, inter alia, that Mr McMullen “appeared to be under the misapprehension that a right of way over the estate avenue gave him more or less exclusive possession of the avenue whereas a right of way confers merely what its name implies that is to say a right to pass and re-pass along the defined way.”
Following the determination of the appeal, it had been finally and conclusively determined that Mr McMullen could not succeed against Kent Carty and Co in any claim based on alleged negligence in and about the negotiation of the settlement or advice about it. This was not because the settlement had not been mistakenly drawn up contrary to Mr McMullen’s instructions - clearly it had - but because the fault lay not with Kent Carty and Co but, as Mr Clancy himself frankly acknowledged, with Mr Clancy. Mr McMullen did not, however, at any time commence any proceedings against Mr Clancy. The six year limitation period provided by the Statute of Limitations, 1957 ran at the earliest from 12th July 1985 (the date of the settlement) or at the latest from February 1987 (when Costello J refused to re-enter the action). Whichever be the case, Mr McMullen was fully aware in May 1987 at the latest that Kent Carty and Co were placing the blame on Mr Clancy.
In the interval between the High Court hearing before Carroll J and the appeal in the same action, Mr McMullen made complaints against Mr Clancy to the Barristers’ Professional Conduct Tribunal. For reasons explained later, it is neither necessary or appropriate to discuss that procedure in any detail. The Tribunal found Mr Clancy to have been in breach of certain provisions of the Code of Conduct for the Bar of Ireland, essentially by giving evidence without protesting his obligation to give evidence or claiming privilege and by taking instructions directly from his client. However, in a passage substantially anticipating the reasoning of Lynch J already quoted, the Tribunal stated that Mr McMullen “must have apprehended that, if he proceeded with his claim against his said solicitors, [Mr Clancy] would be called to give evidence.” It concluded that Mr McMullen by pursuing his claim “tacitly acknowledged that [Mr Clancy] could give evidence relating to such matters”. The Tribunal admonished Mr Clancy. Its findings in all respects were upheld by the Barristers’ Conduct Appeals Board on 21st November 1995.
Mr McMullen, acting in person, instituted the present proceedings on 18th October 1995. In his Plenary Summons he claims:

“Damages for Defection, Negligence, Breach of Contract and Duty, Breach of Confidentiality, Trust, Loyalty and Fiduciary Duties and Conduct Unbecoming a Senior Counsel of the Bar of Ireland.” By an amendment made in June 1998, the following was added:
(Though already found in violation of the peremptory and Honourable Codes
of Conduct of the Bar of Ireland):
The Statement of Claim recites the history of Mr Clancy’s engagement as counsel up to and including the Kent Carty and Co action. Much emphasis is laid, in this narrative, on the confidential and fiduciary relationship alleged to exist between the parties, including reference to a personal relationship of friendship and to the fact that much confidential information was conveyed to Mr Clancy. It also alleges ill-will between Kent Carty and Co and Mr Clancy. It is noteworthy that, while the narrative mentions Mr McMullen’s problems at Charleville Castle and the “breakdown in the Settlement of this Plaintiff’s Nuisance Action,” there is scarcely any reference to the error made in drafting that settlement and none blaming Mr Clancy for it. The paragraphs of the amended Statement of Claim which articulate Mr McMullen’s complaints against Mr Clancy are as follows:

“10. At the trial of the said action ( 88. 6218 P), the defending solicitors, Messrs Giles Kennedy and Co., called Mr Clancy to give evidence for their clients and in complete co-operation and unprompted effusion, Mr Clancy accepted the blame for the errors, broke all notions and bounds of confidentiality without protest complaint or reservation. The defendant in this action took responsibility and admitted guilt for several vital matters crucial to his former client's position and directly contradicted his client's evidence, pulling rank as Senior Counsel and calling upon the Court to accept his version in preference to that of his client Michael McMullen.

11. As a direct result of the Defendant's betrayal of his Client, breaching in no uncertain terms his bond of confidentiality, this Plaintiff lost his Action in Negligence cited above. On the very day of his testimony, the Principal of Kent Carty had given evidence that he "had no confidence in Mr Clancy" and showed clearly that he had no respect for him either, Mr Clancy defected to the aid of his instructing solicitors. In particular this act of Judas-kiss contravened Article 4. 17 of the Code of Conduct for the Bar of Ireland, 31, 3.4., and other relevant Articles including that a Barrister is alone responsible for his actions. 12. The judgment of Ms Justice Mella Carroll in determining the Negligence Action of Michael McMullen v Kent Carty, his former solicitors, pivots and relies upon the testimony of Mr Clancy S. C., the Defendant in this Action. The resulting situation is disastrous, unjust and expensive and the plaintiff has suffered discredit and shame and it is his Submission that the Defendant has set a Precedent in Conduct Unbecoming a member of the Bar of Ireland. It plummets the depths of unprofessional behaviour, warns clients against a full disclosure and brings disrepute and a disgrace to the notions and rights to a Fair Hearing and access to Equity and Justice.”
It emerges plainly from a reading of the amended Plenary Summons and Statement of Claim that Mr McMullen’s grievances relate exclusively to Mr Clancy’s evidence before Carroll J in the High Court. By so acting, Mr McMullen complains that Mr Clancy betrayed his client by defecting to the side of the solicitors, that he broke the bonds of confidentiality between counsel and client, and otherwise behaved unprofessionally and that, insofar as he accepted responsibility for errors made in the handling of Mr McMullen’s litigation, his evidence was false, fraudulent and perjured. In the light of Mr McMullen’s later allegations of conspiracy between Mr Clancy and Kent Carty and Co, it may be noted that these paragraphs merely stated that Mr Clancy “defected to the aid of his instructing solicitors.” However, one of the headings of relief claimed is:

“Punitive Damages for culpably being a party to and agreeing to influence and divert the course of a fair hearing of a properly pleaded Negligence Case against solicitors in a matter which should have been in the day to day knowledge of a qualified practitioner……………” (emphasis added).

At no point in his pleadings does Mr McMullen allege that Mr Clancy was negligent in preparing or advising on the terms of the settlement.
The reliefs sought consist of the return of fees paid to Mr Clancy, the costs of the negligence action, punitive damages as already mentioned and damages under a number of headings such as for breach of contract or duty and fiduciary duty and for breach of the Code of Conduct of the Bar of Ireland, but there is no claim for damages for negligence.
A full defence was filed denying seriatim the allegations contained in the Statement of Claim. The following additional special pleas were made, namely:

· That there was no contractual relationship between the parties: hence, that Mr McMullen could not claim damages for breach of contract or breach of duty;· That the Code of Conduct of the Bar of Ireland was not justiciable and that, in any event, Mr McMullen had fully availed of his remedies under that Code;· That Mr Clancy was absolutely immune from suit as a witness;· That Mr McMullen had waived any privilege of confidentiality by bringing his action against Kent Carty and Co;· That Mr McMullen’s claim was barred by the provisions of section 11 of the Statute of Limitations, 1957.

At the hearing before McGuinness J, Mr McMullen gave evidence himself and called as witnesses Ms Pamela Madigan and Mr Hugh Carty, solicitors. Being a litigant in person, Mr McMullen was permitted, with very little objection from counsel for Mr Clancy, to cross-examine the two witnesses he himself had called, in a manner which would never have been allowed if he had been represented by counsel. To a significant extent, the hearing was conducted by reference to the transcript of the evidence given in the negligence action. Mr McMullen described Ms Madigan and Mr Carty as hostile witnesses, though in reality this meant only that they were unfavourable to his case. He expressly suggested to both Ms Madigan and Mr Carty that they had made an arrangement with Mr Clancy that he would give evidence in defence of Kent Carty and Co in the negligence action in 1992. McGuinness J asked Mr McMullen whether he was alleging that “there was a conspiracy…… or plot between [Mr Carty] and Mr Clancy as to Mr Clancy taking responsibility and then saying that and letting Kent Carty off the hook.” Mr McMullen agreed that this was certainly one of the things he was suggesting. Both Ms Madigan and Mr Carty denied that there was any such arrangement. Indeed, their evidence was that Giles Kennedy & Co, solicitors, acted for them in that action and that they had left the handling of the case to that firm and were not in any way involved in Mr Clancy’s giving evidence. They had not even met him prior to his doing so.
The learned High Court judge described the plaintiff's pleadings as being "somewhat unorthodox" but said that his claims could be subsumed under three main headings, which I have slightly abbreviated, as follows:

1. The defendant by giving evidence for the defence in his 1992 negligence action against Kent Carty and Co was in breach of his duty of confidentiality and of his fiduciary duty to his client and was in breach of various aspects of the Code of Conduct of the Bar of Ireland.

2. The defendant gave untrue evidence at the hearing of the negligence action before Carroll J. In addition, he asserts that the defendant gave his evidence by prior arrangement with Kent Carty and Co or with the solicitors then acting for them, thus betraying his client and acting in a way directly opposed to his interests.

3. The defendant acted negligently in failing to advise him properly in regard to the nature of the settlement in 1985 and subsequently in regard to the possibility of re-entry of the proceedings in 1987. As a result he suffered loss and damage due to the ineffective settlement and due to the Order for costs made against him at the time of the attempted re-entry of the proceedings in 1987.

With regard to the first of these grounds, the learned High Court judge, while accepting that Mr Clancy should at least have raised the issue of privilege and confidentiality when giving evidence before Carroll J., also fully accepted the analysis of the position set out in the judgment of Lynch J. on the appeal in the earlier action. Thus, Mr McMullen, by bringing his negligence action against the solicitors, impliedly waived the privilege and the obligation of confidentiality imposed upon Mr Clancy. So far as the alleged breaches of the Code of Conduct of were concerned to, she accepted that such a code is not, in itself, legally enforceable. In addition, she rejected Mr McMullen’s claim based on an alleged fiduciary relationship. She sited the Canadian case of Hodginson v Simms [1994] R.C.S 377 and concluded that a fiduciary relationship exists where “one party is dependant upon or in the power of the other.” She thought that the nature of a fiduciary relationship was well described in the dissenting judgment of Sopinka J, McLachlin J and Major J in the case cited:

“……the Court looks to the three characteristics of a fiduciary relationship:
(1) The fiduciary has scope for the exercise of some discretion or power and
(2) Can unilaterally exercise that discretion or power so as to affect the beneficiary’s legal or practical interests, and
(3) The beneficiary is peculiarly vulnerable to or at the mercy of the fiduciary holding the discretionary power….”

McGuinness J did not accept that the relationship between Mr McMullen and Mr Clancy was the type of “power-dependency” and trusting relationship envisaged by thee criteria. She referred to Mr McMullen’s practice of surreptitiously tape-recording telephone conversations. She concluded:
With regard to the second of her principal, headings, McGuinness J accepted the submission made by counsel on behalf of Mr Clancy that a witness is, for overwhelming reasons of public policy, entitled to claim absolute privilege and immunity from suit in respect of any evidence he has given. See Watson v McEwan [1905] AC 480; Hargreaves v Bretherton [1958] 3 All ER 122; Marrinan v Vibart [1962] 3 All ER 380; Cabassi v Vila [1940] C.L.R. 130. Since Mr McMullen in his written submissions this Court on the appeal has stated that he is not pursuing this aspect of the case, and he has not argued it, it is unnecessary to consider that aspect of the law.
In respect of the second sentence of this ground, namely the suggestion that the evidence of Mr Clancy was given by virtue a prior arrangement with Mr McMullen's a former solicitors, McGuinness J found that there was no evidence whatever to support it. This was, of course, absolutely correct. The witnesses called by Mr McMullen to prove this allegation, denied that there was any truth in it. There remained only Mr McMullen’s uncorroborated suggestions to the witnesses. Mr McMullen relies on a new aspect of this claim, which I call the Kennedy letter, and which has emerged subsequent to the High Court hearing and prior to the hearing of the appeal. This will be discussed below.
So far as the third ground is concerned, McGuinness J appears understandably to have interpreted Mr McMullen’s pleadings in a manner most favourable to himself in the light of the facts of the case. However, as has already been shown, it is clear or that Mr McMullen made a considered and deliberate decision not to institute any proceedings against Mr Clancy for damages for negligence in connection what the mistake in the drawing of the settlement. There was some further confusion about the negligence issue. McGuinness J did not make any finding of negligence against Mr Clancy; she held that any claim that might have lain against him was, in any event, statute-barred. Unfortunately, the High Court order, as drawn up, mistakenly purported to record a finding of negligence against Mr Clancy. This led to a belated application in the High Court on behalf of Mr Clancy to rectify this mistake. McGuinness J made the necessary order, which Mr McMullen appealed unsuccessfully to this Court.
In short McGuinness J dismissed Mr McMullen’s claim under all headings. She made no order for costs and Mr Clancy has appealed against that decision.
At this point it becomes necessary to refer to an event which occurred after McGuinness J had given judgment and which is at the core of Mr McMullen’s allegation of conspiracy. During the course of the hearing in the High Court, Mr Rory Brady, Senior Counsel for Mr Clancy wished to draw the attention of the court to the defence fled on behalf of Kent Carty and Co in the negligence action. Unfortunately, the copy of the defence which was used for this purpose formed part of a file of papers which was handed to the trial judge in its entirety. Only the defence was relevant and, as McGuinness J has made clear, she did not consider or even read any other part of that file. Cases are decided on the basis of the evidence, including documentary evidence, given at the hearing. Very occasionally one party or another will hand to the judge a book of documents or a file for the purpose of enabling him or her to look at a particular document. It is the invariable practice that the judge then only looks at that document and no other. Upon the conclusion of the action, papers were being handed back to the parties. This particular file was handed back in error, not to the solicitors who had handed it in, as it should have been, but to Mr McMullen.
Mr McMullen attaches enormous importance to the contents of this file and to one letter in particular. Mr McMullen has exhibited the file in an affidavit filed in this Court in support of an application to have it admitted as evidence on the appeal. The papers in question appear to take the form of a brief to counsel from Giles Kennedy & Co, solicitors for Kent Carty and Co in the negligence action. It includes a seven-page letter, described as “Report of Giles Kennedy,” dated 17th May 1989 from Giles Kennedy & Co to the underwriters of Kent Carty and Co. Mr McMullen relies on the following paragraph:

On 5th October 1999, at the hearing regarding the costs of the action, Mr McMullen insisted on taking the oath and on referring it to this document. He referred to the finding in the judgment of McGuinness J that there had been absolutely no conspiracy, "to tinker with it the evidence by a Kent Carty." He said: "... the file ... supports entirely my contention." At an adjourned hearing, he claimed that counsel for the defendant knew of the letter of 17th May 1989 (hereinafter "the Kennedy letter") and that he “was running a case which he knew was entirely based on lies”. These are, of course, allegations of the utmost gravity. Mr McMullen has persisted in making them right up to and including the hearing of the appeal. Having heard both sides, McGuinness J correctly ruled that she had no further role in the matter, that she was functus officio. She also has stated quite clearly that, other than the single document drawn to her attention, she had not read the file and that it was not part of the evidence in the case. The Kennedy letter did not form part of the evidence in the High Court. It can be considered on appeal only if it meets certain strict criteria.
First, it is appropriate to consider the scope and ambit of the appeal. This is not easy. It is understandable that a litigant in person has difficulty in expressing his arguments in strictly legal terms and the Court must endeavour to assist him to do so. The difficulties in the present case are compounded by Mr McMullen’s propensity to make accusations of impropriety against a wide range of persons, including the judges.
I have sought to identify the real legal arguments advanced by Mr McMullen by reference to his Notice of Appeal, his written legal submissions and his oral argument in Court. It is possible to begin by excluding two matters.
Firstly, it now seems clear that Mr McMullen does not make any claim in negligence against Mr Clancy arising from the erroneous drafting of the settlement in 1985. This is surprising and puzzling. It is obvious that a serious error was made in producing for Mr McMullen’s signature a settlement document which provided only for liberty to apply, when he, the client, had insisted that he wished to be able to re-enter the action. Mr McMullen was entitled to complain that he had been deprived, through the undoubted fault of his legal advisers, of the opportunity to have the nuisance action re-entered for a full hearing. At least, he should not have had to suffer the costs of the abortive attempt to re-enter in February 1987. However, Mr McMullen chose to sue only his solicitors, though he was fully aware of the fact that they, from almost the beginning were blaming Mr Clancy. Throughout the hearing in the High Court, he persisted in maintaining that Kent Carty and Co were to blame. At the hearing of the appeal, Mr McMullen, in response to questions, made it that he had not wished at any stage to sue Mr Clancy for negligence in connection with the drawing up of the settlement. He considered this to be the fault of Kent Carty and Co and that Mr Clancy’s acceptance of responsibility was false.
Nonetheless, it is perplexing to note that Mr McMullen tenaciously opposed the correction under the “slip rule” of the High Court order’s recording of a finding of negligence against Mr Clancy and, even more so, the fact that he drew the attention of the Court to the decision of the House of Lords in Arthur J S Hall v Simons [2000] 3 All ER 673 to the effect that the historic rule exempting counsel from liability in actions for negligence by a client, even in its attenuated form following the decision of the House of Lords in Rondel Worsley [1969] 1 AC 191 no longer existed. Mr Maurice Collins, Senior Counsel, on behalf of the Mr Clancy told the Court that he was placing no reliance on any such immunity. Moreover, Mr McMullen addressed the Court in detail on the applicability of the Statute of Limitations, suggesting that his cause of action had been fraudulently concealed. Nonetheless and despite these inconsistencies of Mr McMullen, the appeal must be approached on the basis that no claim in negligence is made against Mr Clancy.
The second aspect of the case which is now excluded is the immunity from suit of Mr Clancy in his capacity, not of counsel, but as a witness. This aspect of the appeal was abandoned by Mr McMullen as long ago as 2001.
There remains for consideration:
Firstly, much the most important aspect of the case on appeal has been the reliance placed by Mr McMullen on the Kennedy letter. He says that it shows that there was a conspiracy between Giles Kennedy & Co, Kent Carty and Co and Mr Clancy pursuant to which Mr Clancy gave false evidence accepting responsibility. He adds that this was concealed from him by Mr Clancy specifically in a telephone conversation in 1987 and that, if he had known Mr Clancy was going to accept responsibility, he would have had other options, though he has not specified them.
Secondly, there remains the argument that Mr Clancy was in breach of his duty of confidentiality to his client; this does not relate to the fact that, in giving evidence, Mr Clancy breached his duty of confidentiality. While not expressly accepting it, Mr McMullen has not sought to contest the proposition that he had implicitly waived his right to confidentiality by bringing his action against Kent Carty and Co, as was held by this Court (Lynch J) in dismissing the appeal in that action, a principle followed and applied by McGuinness J in the present case. This aspect of the claim is, therefore, based on the Code of Conduct of the Bar of Ireland and the allegation of a fiduciary relationship.
I now turn to the principal focus of the appeal so far as Mr McMullen is concerned. Relying on the Kennedy letter, Mr McMullen says that Mr Clancy can be shown to have conspired with Giles Kennedy & Co and with Kent Carty and Co to the effect that he would falsely swear in defence of Kent Carty and Co that responsibility for the mistake in the settlement lay with him. It must, nonetheless, be repeated that this document did not form part of the evidence in the High Court.
This Court will admit new evidence on the hearing of an appeal in accordance with well-established principles. In Murphy v Minister for Defence [1991] I.R. 161 at 164, Finlay C.J. described the relevant criteria as follows:

“1. The evidence sought to be adduced must have been in existence at the time of the trial and must have been such that it could not have been obtained with reasonable diligence for use at the trial;
2. The evidence must be such that if given it would probably have an important influence on the result of the case, though it need not be decisive;
3. The evidence must be such as is presumably to be believed or, in other words, it must be apparently credible, though it need not be incontrovertible.” At the opening of the appeal, Mr Collins objected to the admission of the Kennedy letter based on these principles, but accepted that the Court should rule on the matter after hearing the appeal. It is then necessary to examine whether the Kennedy letter offers support for Mr McMullen’s case. It should be observed that, although members of the Court, at an earlier hearing, expressed in open Court concern about the contents of the letter, its author, Mr Kennedy is not a party to and has not been heard in the present proceedings. Independently of the meaning Mr McMullen ascribes to the letter, the last two sentences of the quoted paragraph are open to the interpretation that Mr Kennedy, in what he described as a “little chat” alerted Mr Clancy to the possibility of his being joined as a party to the negligence action and thereby sought to persuade him, to use his capacity as an adviser to Mr McMullen, to influence the latter to drop his action against Kent Carty and Co. It would be difficult to describe such behaviour by a solicitor as anything less than improper.
Whatever the Kennedy letter conveys, it is that Mr Kennedy sought to persuade Mr McMullen to withdraw his claim. Mr McMullen has given no evidence at any stage and does not now suggest that any such approach was in fact made to him. To that extent, therefore, the “little chat” failed in its purpose. Furthermore, the letter does not suggest that Kent Carty and Co, Ms Madigan or Mr Hugh Carty played any part in this unattractive stratagem.
What support does the Kennedy letter offer for the conspiracy theory: that Mr Kennedy, together with Mr Clancy and the two solicitors mentioned arranged that Mr Clancy would accept (falsely or otherwise) that he would take responsibility for the settlement? The only sentence referable to the evidence to be given by Mr Clancy was: “Mr Clancy advised that as far as he was concerned, the claimant did quite well and he would be in a position to give evidence that the claimant was advised of the situation.” I cannot find any evidence whatsoever in this sentence to support Mr McMullen’s conspiracy theory. Firstly, Mr McMullen was aware that his advisers considered the settlement to be a good one. In the transcribed telephone conversation of 25th May 1987, he acknowledged that Mr Clancy had told him that the settlement had been “the greatest moral victory of [his] career.” Secondly, there was never any doubt that the plaintiff “was advised of the situation.” Given the context, it can be assumed that “the situation” was that the action could be r-entered. However, the transcribed telephone conversation of 25th May 1987 shows that Mr McMullen was fully aware that Kent Carty and Co were placing the blame for the mistake on Mr Clancy. Indeed, Mr Clancy himself several times referred to his belief that Mr McMullen was suing him. It is true that Mr Clancy did not accept responsibility in that conversation. At one point he even claimed not to have been shown the agreement. Nonetheless, Mr McMullen was in possession of all the information that would have been needed to sue Mr Clancy, if he had wanted to. Most importantly, the Kennedy letter does not offer any support at all for the proposition that Kent Carty and Co were party or privy to any arrangement regarding Mr Clancy’s evidence. The evidence of Ms Madigan and of Mr Carty, given in the High Court remains undisturbed and there is nothing in the Kennedy letter to displace it.
This is sufficient to dispose of the Kennedy letter. However, Mr McMullen in his submissions both oral and written to this Court chose to make extremely serious allegations against counsel for the Defendant in the High Court. He alleged that Mr Rory Brady, knowing of the contents of the Kennedy letter, falsely and dishonestly led evidence from Ms Madigan and Mr Carty. Mr Brady certainly asked both of those witnesses to confirm, which they did, that they had taken part in no such arrangement as alleged. This Court has seen no evidence to contradict those statements. It is only right to say that Mr McMullen’s allegations against Mr Brady are false and baseless. They have been repeatedly advanced without the slightest basis in the evidence. It may be that Mr McMullen’s appreciation of the facts has been distorted by his unfortunate experiences both with his property in Tullamore and with his unsuccessful litigation. However, this Court would be failing in its duty if it did not state clearly, where grave allegations have been made in a considered and calculated way, that those allegations were not only false but lacking in any foundation whatsoever in fact. This Court has been assured that Mr Brady, during the trial, was unaware of the Kennedy letter. There is no evidence that Mr Brady was aware of the existence or the contents of the Kennedy letter. That letter did not form part of the case to be made in defence of Mr Clancy. It came from the brief in the earlier action. There was no reason for Mr Brady to concern himself with it. Most importantly, however, since, as already stated, the Kennedy letter offers no support for the suggestion that either Ms Madigan or Mr Carty was party to any conspiracy involving Mr Clancy or anybody else, it cannot be used to ascribe any knowledge of such activity to Mr Brady.
For these reasons, I do not believe that this letter should be admitted in evidence on the appeal. It clearly fails to satisfy the second heading of the test laid down in
Murphy v Minister for Defence, namely that “[t]he evidence must be such that if given it would probably have an important influence on the result of the case.” In my view, it could not have made any difference.
Insofar as the claim that Mr Clancy committed a breach of his duty of confidentiality is based on the fact that, by giving evidence without claiming privilege Mr Clancy was in breach of certain provisions of the Code of Conduct of the Bar of Ireland, in my view, the learned High Court judge was absolutely correct to rule that the Code and its provisions are not justiciable. The rules in the Code are enforceable by the disciplinary authorities of the barristers’ profession. They do not bind the Courts. Put otherwise, the profession cannot make laws which it is the duty of the Courts to enforce. This does not at all mean that, as a matter of law, there are no parallel obligations, specifically of confidentiality, which the courts will enforce in an appropriate case. However, with regard to the specific reliance placed on the provisions, I am satisfied that Mr McMullen has no cause of action in law.
I am satisfied, nonetheless, that, independently of any such professional code, the law imposes a duty of confidentiality on a barrister in respect of the information that comes into his possession in the conduct of his client’s affairs. Lynch J said so in the passage already cited. That duty undoubtedly extends to information concerning the advice given to the client during the conduct of litigation and during negotiations for the settlement of litigation.
In both his Plenary Summons and Statement of Claim in the present action, Mr McMullen alleges breach of confidentiality. Referring to the giving of evidence by Mr Clancy, it is pleaded (paragraph 10 of Statement of Claim) that "in complete cooperation and unprompted effusion, Mr Clancy accepted blame for the errors, broke all notions and bounds of confidentiality without protest complaint or reservation." Mr McMullen principally emphasises the alleged falsity of the evidence given and the fact that it contradicted Mr McMullen’s own evidence. Nonetheless, it does refer to the duty of confidentiality. McGuinness J said at page 26 of her judgment:
Because of his almost exclusive concentration on the alleged falsity of Mr Clancy’s evidence, combined now with the allegation of a conspiracy between Mr Clancy and the members of Kent Carty and Co, Mr McMullen has failed to specify any other respect in which he alleges Mr Clancy failed to respect his obligation of confidentiality. I propose to consider, nonetheless, whether Mr McMullen has legitimate grounds for complaint under this heading.
Firstly, there is the finding of the learned trial judge. As she quite correctly points out, Mr McMullen was represented by solicitor and counsel, who had every right to object if it was felt that Mr Clancy was failing to respect his obligations to his former client. In reality, as those representatives must obviously have appreciated, there would have been no point in objecting. Mr McMullen, by bringing the action against Kent Carty and Co had impliedly waived the relevant privilege. Thus, although McGuinness J rightly observed that Mr Clancy should have raised the issue of privilege, he would certainly have been bound to answer questions regarding the negotiation of the settlement and the advice given about it.
Secondly, Mr McMullen has produced no evidence that beyond the giving of evidence, Mr Clancy disclosed confidential information. Mr McMullen attempted to establish, in the High Court, through the evidence of Mr Carty and Ms Madigan, that Mr Clancy had attended a consultation with solicitor and counsel on the morning of the opening day of the hearing. He produced a copy of a letter addressed to Mr Clancy asking him to attend, but Ms Madigan answered that, to the best of her recollection, he was not there. There was no evidence that he was.
Finally, it may be noted that the Kennedy letter purports to record Mr Clancy as expressing an opinion about the settlement and stating that he had advised Mr McMullen about it. Insofar as this letter affects Mr Clancy, it is, of course, hearsay. More importantly, Mr McMullen had summoned Mr Clancy as a witness in the High Court. He chose not to call him. His decision not to do so is perfectly understandable. He was warned that he would not have the right to cross-examine Mr Clancy. He obviously hoped that Mr Brady would call him on behalf of the Defendant. Nonetheless, Mr McMullen had the opportunity to call Mr Clancy to establish the extent, if any, to which he had disclosed privileged material in breach of his duty to Mr McMullen. Thus this evidence fails to satisfy the first test laid down in the case of Murphy v Minister for Defence, cited above: it is not “such that it could not have been obtained with reasonable diligence for use at the trial…” It would be unfair, in the particular circumstances of this case, to admit the letter following the death of Mr Clancy, who cannot, therefore, contradict it. Moreover, it is clear that Mr McMullen is not concerned in this action with such marginal or peripheral disclosure by Mr Clancy. The entire gist of his action is based on allegations of false and perjured evidence and allegations of conspiracy to procure it.
Mr McMullen takes issue with the conclusions of McGuinness J that there was not a fiduciary relationship between him and Mr Clancy. He claims that this is not based on any evidence. In my opinion, that was not a fiduciary relationship. It is true, of course, that counsel is not in a contractual relationship with his lay client. There is, nonetheless, a professional relationship such that counsel owes to the client a duty of care and a duty of confidentiality. The relationship could become a fiduciary one, if counsel became the repository of valuable information. He could commit a breach of that relationship by taking advantage of it for his personal benefit, as by making a secret profit. However, I agree with the observations of Millett L.J. in Bristol and West B.S. v Mothow [1996] 4 All ER 698 at 710 that: The judgment contains further strictures against “flinging around” the notion of fiduciary duty as if it applied to all manner of breaches of duty by solicitors, directors of company and others. At a later point, Millet L.J. explained further:
I am satisfied that Mr McMullen’s complaints against Mr Clancy do not relate to the performance of any fiduciary duty. If he were proved to be negligent or in breach of his duty of confidentiality, he would be guilty of a breach of duty. That would not make it a fiduciary duty. I would reject Mr McMullen’s claim based on the allegation of fiduciary duty.
It should, finally, be observed that Mr McMullen addressed the Court in some detail, at the hearing of the appeal about the Statute of Limitations. McGuinness J had found that any claim in negligence was barred by the provisions of section 11 of the Statute of Limitations. The present proceedings were commenced on 11th October 1995. Insofar as they related to events occurring in 1985 or 1987, they were commenced more than six years after those events. Mr McMullen has relied on appeal on section 71 of the 1957 Act. Subsection (1) of that section provides:

(1) Where, in the case of an action for which a period of limitation is fixed by this Act, either—

( a ) the action is based on the fraud of the defendant or his agent or of any person through whom he claims or his agent, or
( b ) the right of action is concealed by the fraud of any such person,

the period of limitation shall not begin to run until the plaintiff has discovered the fraud or could with reasonable diligence have discovered it.

Mr McMullen also referred to a number of authorities, principally English ones. There is, of course, no difficulty in accepting that, where a wrongdoer fraudulently conceals form his victim the wrong he has committed, time will not commence to run until the injured party has a fair opportunity to commence proceedings: in the words of the section, “until the plaintiff has discovered the fraud or could with reasonable diligence have discovered it.” Firstly, it must be said that sub-paragraph (a) of subsection (1) can have no application to the facts of this case. Insofar as Mr McMullen claims that Mr Clancy acted fraudulently, for the reasons already given, his claim fails. Secondly, Mr McMullen has not identified any act of fraudulent concealment. He complains certainly that, in the telephone conversation of May 1987, Mr Clancy did not tell him that he accepted responsibility for the error in the settlement. Indeed, he said that he had not seen the settlement. However, Mr McMullen was fully aware from 1987 at the latest that the settlement had been wrongly drawn and that Mr Clancy had participated in the negotiation of the settlement. There was a dispute between Mr McMullen and Mr Clancy about whether Mr Clancy had advised about the settlement. Carroll J resolved that dispute against Mr McMullen. She found that Mr Clancy had, as he had sworn, advised Mr McMullen about the terms of the settlement. Furthermore, Ms Madigan gave evidence in both trials that she had advised Mr McMullen that the action had could be re-entered and that she had consulted Mr Clancy before confirming this advice. Thus, there was no concealment, fraudulent or otherwise, of Mr McMullen’s cause of action against Mr Clancy. Finally, it is difficult to see how Mr McMullen can rely on fraudulent concealment of a cause of action in negligence against Mr Clancy, since he has at all times insisted that Mr Clancy was not negligent, but that he had fraudulently claimed to have been at fault. I am satisfied that section 71 of the Act of 1957 has no relevance to the claim against Mr Clancy.
I am satisfied that Mr McMullen’s claim fails under all headings and would dismiss the appeal. Counsel for the Respondent has not addressed the Court regarding the appeal from the costs order made by McGuinness J. All aspects of costs of the proceedings should be addressed following delivery of judgment.

BAILII: Copyright Policy | Disclaimers | Privacy Policy | Feedback | Donate to BAILII
URL: http://www.bailii.org/ie/cases/IESC/2005/10.html