High Court of Ireland Decisions

Fox v. O'Carroll [1999] IEHC 4 (29th April, 1999)

BETWEEN

JUDGMENT of O'Sullivan J. Delivered the 29th day of April 1999

1. The Plaintiff is a retired Guard and the Defendant was at all material times a Solicitor and is now a District Justice.

2. In or about February of 1975 the Plaintiff, acting on his own behalf, agreed to purchase certain lands at Shancurragh Athlone from Martin Coughlan and Kathleen Carty for [sterling]2,000.00 and on the 6th February he paid them [sterling]100.00 deposit and got a receipt signed by Martin Coughlan.

3. The Plaintiff then went to the Defendant in his capacity as Solicitor and on the 10th March, 1975 a Memorandum of Agreement was signed by the Defendant in trust for the Plaintiff.

4. A land registry transfer dated the 7th July, 1975 was signed by Martin Coughlan and, purportedly, by Kathleen Carty although in this case her surname was spelt "Carthy". This signature was attested to by one Noel Dolan, a Solicitor in the firm of W. A. Tormey & Co., Solicitors, Athlone, which firm was acting for the vendors.

5. There were difficulties in relation to planning permission, mapping, a right of way over lands other than those of the vendor, a lis pendens and Land Commission sub-division, all of which were dealt with on behalf of the Plaintiff by the Defendant and in respect of which services the Plaintiff has nothing but the highest praise and for which he was charged a fee of [sterling]60.00 together with [sterling]32.88 outlay. These matters are not relevant to the issue which I have to try, save that they contributed to a period of delay before the Plaintiff was able to start work building his own house with his own skill on the site in October of 1980.

6. The issue which arises in the present case came to light in a communication from the land registry on the 1st December, 1980 where they pointed to the fact that the Deed of Transfer dated the 7th July, 1975 was signed by Kathleen Carthy whereas the joint registered owner of the relevant folio was Kathleen Carty. This communication requested the Defendants to "please lodge a certificate stating Kathleen Carthy, the person who signed the above deed of transfer, to be one and the same person as Kathleen Carty, the (joint) registered owner of folio 4641."

7. The Plaintiff in evidence says that he got a letter from the Defendant on the 11th December, 1980 indicating that there was something wrong with the land and that he went to Eileen Coughlan, the widow of the by then deceased Martin Coughlan, bringing her the certificate from the Land Registry for completion. Eileen Coughlan told him that she would have to go to see Pauline Brophy who was Martin Coughlan's sister and Kathleen Carty's niece. He said he gave Eileen Coughlan the certificate for completion and has never seen it since. Shortly after that Nicholas Brophy, Pauline Brophy's husband, called to see him in his house and said that Kathleen Carty's signature had been forged, that it was the fourth time in a number of years that this had occurred and that Kathleen Carty was a patient in St. Loman's Mental Hospital and had been there for some twenty-eight or thirty years.

8. The Plaintiff says that he rang the Defendant's house but he was away on holidays. He went in to Messrs. Walker O'Carroll & Hogan and told all this to the Defendant's partner Aidan O'Carroll who told him to go and see Noel Dolan, the Solicitor in Messrs. Tormey & Co. who had acted for the vendor and who had attested Kathleen Carty's signature. He went out to Noel Dolan who told him that he had given the papers to the Coughlans for signature and when they came back later he, Noel Dolan, attested the signature and sent it on. He, Noel Dolan, said that this was normal enough and there was not anything unusual about it. He spoke to Aidan O'Carroll twice and also Pauline Brophy who gave him the impression that she knew that the signature had been forged. He said that the first time he knew that Kathleen Carty was a patient in St. Loman's Hospital was in December of 1980 when Nicholas Brophy told him the facts recounted above.

9. As soon as the Defendant came home from his holidays the Plaintiff says he went in and told him all about this. Meanwhile he had commenced building on site in October of 1980 on foot of a bridging loan as he understood that it would be only a couple of months before he would be able to avail himself of aGarda Síochana Building Society mortgage. He was building a large house of some 2,800 square feet intending to have six bedrooms so that he could accommodate some two to three fishermen as the house was near the river. It was up as far as the roof in February 1981 when he was stopped building by advice from the Defendant but two months later he was told he could go ahead to secure the structure and then again in May or June of 1981 he was stopped again. It was only in August of 1989 that he finally moved in but it was only in 1994 that the house was reasonably habitable. He says that if everything had gone according to plan with no hiccups he would have been able to be in the house by the end of 1983 or certainly by February of 1984. Kathleen Carty was subsequently made a Ward of Court and by Order of the then President on the 11th July, 1984 Geraldine A. Bonner, General Solicitor for Wards of Court and Committee of the Estate of Kathleen Carty, was authorised to execute a Deed of Transfer of the site to the Plaintiff. There were, however, further delays because, inter alia, a Deed of Transfer had to be prepared by Conveyancing Counsel.

10. The Plaintiff said he had to procure a Bank of Ireland loan on what was described as a "term loan bridging" account at a high interest rate because he was not in a position to procure the Garda Síochana Building Society loan which was available only when the house had reached a certain stage of development. Because of the delays arising from the forgery of Kathleen Carty's signature he says he has suffered the loss occasioned by the necessity to pay the higher interest rate, also some incidental losses of property taken from the site while he was not in occupation which he would have been at an earlier stage had there been no such forgery and he also claims general damages for the distress and inconvenience of being kept out of the enjoyment of his home until August in 1989 (when he actually moved in) instead of February 1984. He further says that the house was not in reasonably habitable condition until 1994 because he could only afford to complete it in slow and incremental stages.

11. He claims these amounts of damages against the Defendant because he says the Defendant had general instructions from him to get compensation from whichever party was responsible in law for his losses arising out of the forgery and in particular he says that he instructed the Defendant that he considered he could have a claim against theCoughlans, the Brophys, the Wards of Court Office (for their delay) and Messrs. Tormey & Co. for the wrongful attestation by Noel Dolan of what transpired to be the forged signature of Kathleen Carty.

12. The Plaintiff's claim in the present case boiled down to a claim that the Defendant had instructions to sue Messrs. Tormey & Co. but failed to do so, that any claim is now statute barred and that this failure amounts to negligence for which the Plaintiff must now be compensated by the Defendant.

THE PLAINTIFF'S INSTRUCTIONS TO THE DEFENDANT

13. The Plaintiff in evidence said that he gave general instructions to the Defendant "to catch the eye", "to bring the thing out in the open", "to see where we were going", "I did not know who we would follow: I thought Tormey's office should have told us the situation, that Kathleen Carty was in fact a patient and should have informed us of the situation. There were other parties: I depended on advice from Mr. Hogan as to who we should follow." A forgery had been committed and somewhere in there was the cause of delay. At that time there had been two or three other cases which were similar and which had been fixed up within months and the Plaintiff said he could not understand why his case was going on for years.

14. By letter of the 30th July, 1982, the Defendant instructed Alan Mahon, Barrister at Law (as he then was) in relation to the matter. No case is made that his instructions were incomplete or inadequate. In the course of these instructions the Defendant requested Counsel, specifically in relation to the vendor's Solicitors,"I would be obliged if you would let me know what you consider their duty should have been to us in relation to the sale."

15. In a letter of the 16th August, 1982, Counsel replied and advised, inter alia,

"As regards suing Tormey & Co. for damages, I cannot see how this could be done in the circumstances. There is no privity as between your client and Tormey & Co., or indeed between your firm and Tormey & Co. They are simply the Solicitors acting for another party with whom you are dealing. At all material times, Tormey & Co. would be deemed to have been working in their capacity as Agents for the parties for whom they purported to act, and if an action is to be taken, it would have to be taken against those parties, or one of them."

16. The Plaintiff accepts that he was advised that he could sue the Coughlans but also that they were no mark and that he agreed not to sue them as it would have been a waste of time.

17. The Defendant says that he was disappointed with the advice that he had no case against Tormey & Co., as was his client the Plaintiff, and he asked Mr. Mahon to reconsider the matter and this was done and Mr. Mahon wrote a second letter on the 22nd September, 1982 indicating a way that he might be able to sue the Estate of Mr. Coughlan deceased and also indicating that the Plaintiff could consider "what ever action might be taken against Tormey & Co. although I am satisfied that there would be no grounds for an action against Tormey & Co.".

18. Once again this was discussed with the Defendant by the Plaintiff and both were disappointed and the Defendant arranged a consultation with Mr. Mahon so that the Plaintiff could be given the benefit of detailed and verbal advice from Counsel. This consultation occurred and once again Mr. Mahon repeated his advice that the Plaintiff had no case against Tormey & Co.

19. Subsequently the Defendant said that he got advice from another Barrister, Henry Abbott B.L., who was also a T.D. Mr. Abbott confirmed his agreement with Mr. Mahon's advice and the Plaintiff in evidence said that he agreed to let the matter lie hoping that something would turn up. He said that what turned up was that in 1989 the Garda Síochana houses in Athlone came on the market at a special low price for tenants and that he the Plaintiff was not able to purchase them because of his financial embarrassment. He then went to his present Solicitors who procured the advices of Seamus Woulfe Barrister at Law, who told him that he did have a case against Tormeys and following this he initiated the present proceedings on the 10th April, 1990.

20. Counsel for the Plaintiff puts his client's case fairly and squarely upon the basis that the circumstances which he knew on the 30th July, 1982 so clearly demonstrated a case against Tormey & Co. in deceit that he was negligent in not instituting proceedings notwithstanding the advices of Counsel. In the Defendant's letter to Counsel dated the 30th July, 1982 the following short paragraph appears:-

"The Kathleen Carthy signature on the documents of Title was witnessed by Noel Dolan Solicitor even though he was not present obviously when she was allegedly signing same."

21. Counsel says that this simple statement contained in the Defendant's letter of instructions to Counsel dated the 30th July, 1982 indicates in the simplest way a clear right of action on behalf of the Plaintiff against Tormey & Co. and that any advice to the contrary from Counsel would be obviously or glaringly wrong so that the Defendant as Solicitor would be obliged to disregard such advice. He says there is the clearest case of deceit against Tormey & Co.

22. The Defendant said in evidence that in all his years practice he had never come across a case where a Solicitor had wrongly attested a signature in such circumstances and that so far from this being a case where there was an obvious liability on the part ofTormey & Co. he the Defendant did not know what the legal consequences were and still does not know if there would have been a clear action against Tormey & Co. He accepts without equivocation that the attestation was wrong, that it deceived him and that it was a deceit. He says, however, that he did not know what the legal consequences which flowed from such circumstances were and that that was why he had recourse to the advices of Counsel.

THE LAW

23. There is no great mystery about the law which applies to this case and on it Counsel were in substantial agreement. Mr. Nugent S.C. for the Defendant referred to the Sixth (June 1998) Issue of Cordery on Solicitors, at paragraph 553, under the heading "Reliance Upon Counsel" where the text says:-

"As a general rule a Solicitor acting on the advice of properly instructed Counsel can hardly be said to be acting unreasonably, save perhaps in a very exceptional set of circumstances".

24. Further on the text says:-

"It has been recognised, however, that these principles: '(do) not operate so as to give a Solicitor an immunity in every such case. A Solicitor is highly trained and rightly expected to be experienced in his particular legal fields. He is under a duty at all times to exercise that degree of care, to both client and the Court, that can be expected of a reasonably prudent Solicitor. He is not entitled to rely blindly and with no mind of his own on Counsel's views.'

Thus it is the duty of a Solicitor to reject Counsel's advice that is 'obviously or glaringly wrong'. It has been said that - 'A Solicitor does not abdicate his professional responsibility when he seeks the advice of Counsel. He must apply his mind to the advice received. But the more specialist the nature of the advice, the more reasonable it is likely to be for a Solicitor to accept it and act on it.'"

25. Mr. Rogers S.C. for the Plaintiff refers to the Fourth Edition of Halsbury on Solicitors, where at paragraph 4-66 the Authors say:-

"Of course, there are still many cases where a Solicitor in general practice consults a Barrister about a matter in which the Barrister has vastly greater experience and knowledge. But there are very many cases when this is not so. The notion that a Solicitor should uncritically accept the advice of Counsel in almost every case is now plainly outmoded. It is not suggested that the general rule derived from the authorities and summarised in the previous paragraph is incorrect. It is, however, submitted that the exceptions to that rule are now likely to be more numerous."

26. The text then goes on to refer to the following citation from the Judgment of Lord Justice May in Davy Chiesman -v- Davy Chiesman [1984: Fam:] as follows:-

"However, this does not operate so as to give a Solicitor an immunity in every such case. A Solicitor is highly trained and rightly expected to be experienced in his particular legal field. ... He is not entitled to rely blindly and with no mind of his own on Counsel's views."

27. Before I deal with the main issue, namely whether the Defendant was negligent in accepting Counsel's advice in all the circumstances of the present case, or whether, because of the glaringly obvious nature of his client's case against Tormey & Co. he should, notwithstanding such advice, have instituted proceedings within the statutory period against these Defendants, I propose first to deal with a subsidiary point made by Mr. Rogers S.C. to the effect that the Defendant was negligent in any event because he was in breach of specific instructions from his client to go ahead and sue Tormeys notwithstanding Counsel's advice.

28. This submission was founded primarily on the Defendant's letter to Mr. Mahon dated the 28th January, 1985, which clearly post-dated Mr. Mahon's main advices which were given in 1982. This letter is brief and I cite the body of it in full as follows:-

"Further to our brief conversation last Tuesday I still have not heard from 'Conveyancing Counsel' as yet in relation to the above case. I would be obliged if you could talk to her as a matter of urgency. As you know Michael Fox has given us instructions to issue proceedings against anybody he thinks he may recover compensation from. This would include Messrs.Tormey & Co. or indeed the Wards of Court Office and any consequent delay on our part might serve to only detract from the situation."

29. It was put to the Defendant in cross-examination that this letter clearly meant that Michael Fox "thinks" (in the present tense as of the 28th January, 1985) that he could sue, inter alia, Messrs. Tormey & Co. and that he had given the Defendant instructions so to do. The Defendant explained that the instructions referred to in this letter were the original instructions given back in 1982 and that his main purpose in writing the letter was to point out that therewere delays on the conveyancing side at the hands of "Conveyancing Counsel" who had been nominated by Alan Mahon and that Michael Fox had contemplated suing the Wards of Court Office and in the circumstances he the Defendant did not wish to "introduce another dimension", by which phrase I took him to mean bring about a situation where Michael Fox might consider suing Conveyancing Counsel by reason of the delays.

30. The Defendant specifically denied that the Plaintiff ever intimated to him that he the Plaintiff wished to go behind the advices that he had got from Counsel and instructed him to issue proceedings against Tormey & Co. notwithstanding such advices. He further told his own Counsel in this case that he had a specific practice in such circumstances which was to require money up front where a client wished to sue contrary to the advice of Counsel.

31. I accept this evidence not only because it was the sworn evidence of the Defendant but also because the Plaintiff in his own evidence did not say that he had given such specific instructions to the Defendant. On the contrary, his approach at all times was, according to himself, that there were four parties responsible for the delay which caused him losses and he was relying on the Defendant to advise him in relation to getting compensation. He was disappointed and surprised by the advice of Counsel but when it came repeatedly he agreed to let the matter lie and hoped that something would turn up.

32. There is no evidence, in my view, to the effect that the Plaintiff, either directly or by implication, instructed the Defendant to institute proceedings against Tormey & Co. notwithstanding the advice from Counsel that the Plaintiff had no case against them.

WAS THE DEFENDANT NEGLIGENT IN FAILING TO SUE TORMEY & CO.?

33. In my view, unless the facts known to the Defendant in 1981 or 1982 disclosed a case against Tormey & Co. which was glaringly obvious, then there can be no question of negligence on the part of the Defendant. This is because the Defendant consulted Counsel repeatedly, including procuring two verbal consultations on the same case by two different Counsel. Apart from the point relating to a breach of specific instructions to go ahead and sueMessrs. Tormey & Co. despite the advice of Counsel, Mr. Rogers S.C. focused his argument on the general allegation of negligence on the basis that the Plaintiff's claim in deceit against Tormey & Co. was glaringly obvious and that the Defendant could not in these circumstances escape his own liability in negligence in failing to issue proceedings against them by relying on Counsel's advice.

34. Was the case glaringly obvious? It was the only such case in the Defendant's experience as a country general practice Solicitor, and accordingly it was the first time that the Defendant had come across this particular problem. It is clear, from his letter of instructions to Counsel, that he thought that there may be a case againstTormeys and in those circumstances he was clearly prudent to seek the advice of Counsel. Can it be said that the clarity of the case against Tormey & Co. had reached such a high degree of perfection that the Defendant should have known that there was such a case notwithstanding that this was the first time that it had happened in his experience and notwithstanding the advice, repeated, from Counsel that no such case lay? Counsel's advice was not simply a bald assertion that there was no such case. Mr.Mahon gave reasons why he came to that conclusion. He said there was no privity between the Plaintiff and Tormey & Co. or indeed between the Defendant's firm and Tormey & Co. This was correct. He went on to elaborate to some extent and to suggest other lines of action including solving the title question.

35. I do not think the Defendant can be faulted for not knowing with the degree of assurance that would justify initiating proceedings without more, that the Plaintiff must have had a case in deceit against Tormey & Co. and he clearly, in my view, cannot be faulted in negligence or otherwise for consulting Counsel for advice. In those circumstances it is impossible for me to draw the conclusion that he was negligent or in any way at fault for accepting Counsel's advice notwithstanding that he was disappointed and his client bitterly disappointed with such advice. Nor can it be said that the Defendant accepted the advice uncritically or blindly and with no mind of his own: on the contrary, he asked Counsel to reconsider the matter and when this was done with the same result he requested a verbalconsultation. Following this he asked for a consultation with another Counsel so that on no fewer than four occasions he was advised specifically by Counsel that the Plaintiff had no action against Tormey & Co. I am unable to hold the Defendant negligent in these circumstances and accordingly dismiss the Plaintiff's claim.

AB224JOS