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Judgment Title: McMullen v Kennedy p/a Giles J. Kennedy & Co. Solicitors Neutral Citation: [2013] IESC 29 Supreme Court Record Number: 85/2012 High Court Record Number: 2000 1628 P Date of Delivery: 13/06/2013 Court: Supreme Court Composition of Court: Denham C.J., O'Donnell J., MacMenamin J. Judgment by: MacMenamin J. Status of Judgment: Approved
Outcome: Dismiss | ||||||||||||||||
THE SUPREME COURT [Appeal No: 85/2012] Denham C.J. O'Donnell J. MacMenamin J.
Michael Colin Geoffrey McMullen Plaintiff/Appellant and Giles J. Kennedy practising as Giles J. Kennedy & Company Solicitors Defendant/Respondent Judgment of Mr. Justice MacMenamin delivered the 13th June, 2013. 1. On the 6th February, 2012, the High Court (Birmingham J.) delivered judgment in the above entitled matter. The learned trial judge dismissed the appellant's claim against the respondent. The appellant appeals that decision. 2. The appellant (“Mr. McMullen”) claims the respondent (“Mr. Kennedy”), a solicitor, used undue influence, improper incentives and coercion in order to induce a senior counsel, the late Noel A.E. Clancy, S.C. to collaborate with the defendant, who is a solicitor, and undertake to give evidence without reference to legal privilege in an action brought by Mr. McMullen against Kent Carty & Company, another firm of solicitors who previously acted for him (McMullen v Kent Carty & Company Solicitors (Record no. 1988 6218P). 3. In circumstances explained in more detail below, Mr. McMullen had sued Kent Carty & Company, claiming damages. He alleged professional negligence by that firm in the negotiation of a settlement in yet earlier proceedings brought by himself as plaintiff against Charleville Estate Company Limited [McMullen v Charleville Estate Company, (Record No. 1982 7237P) (“the Charleville Proceedings”)]. 4. In those Charleville proceedings, Mr. McMullen alleged, inter alia, torts of negligence and nuisance against the Charleville Estate Company. He retained Kent Carty & Company to be his solicitors in the case. He instructed that firm to brief Mr. Clancy, S.C. to act on his behalf. The case was settled after negotiations. Mr McMullen claimed his lawyers were negligent in the negotiation. He claimed the settlement they negotiated with the Charleville Estate Company was of no use to him, that the acts of nuisance (which he sought to restrain) continued thereafter, and that the settlement did not allow him to bring the proceedings back for further hearing, in the event of it not achieving his objects. The terms of the settlement provided that there should be simply “liberty to apply”. This did not allow for the proceedings to be re-entered, or for further evidence to be heard in the same proceedings. If, on the other hand, the settlement had provided for “liberty to re-enter”, then the matter could have been brought back to court for further hearing. 5. In 1972, the appellant took a lease of Charleville Castle together with approximately 5 acres of land. The castle is situated at Tullamore, Co. Offaly. It was owned by the Charleville Estate Company. The plaintiff's relationship with the landlord deteriorated. The Company owned land surrounding Mr. McMullen’s take. He claimed that it was committing negligence or nuisance by allowing persons to enter onto land which he claimed was his under the lease. He decided to sue. 6. He instructed Kent Carty & Company, who originally retained two senior counsel. Mr. McMullen instructed the firm to brief one particular senior counsel, Mr. Clancy. Mr. Clancy had not previously worked for Kent Carty. The solicitors had concerns as they believed that Mr. Clancy did not habitually practise in that area of the law. Both client and solicitors agreed that Mr. Clancy would be led by another senior counsel. 7. At a pre-trial consultation of the Charleville action, the leading senior counsel who had been retained, expressed the view that Mr. McMullen had no case; that it would be dishonest to take his money; and returned the brief. Mr. Clancy therefore, appeared as the only leading counsel, although he was assisted by junior counsel. The background 1985 - Settlement negotiations 10. At a point during these discussions, Mr. McMullen enquired whether he would be able to go back into court in the event that the settlement did not work out to his satisfaction. When Mr. McMullen raised this query, Ms. Madigan took the advice of Mr. Clancy, who informed her that going back into court would be possible. Miss Madigan conveyed this to Mr. McMullen. 1987 - Counsel for Mr. McMullen seeks to re-enter the case 12. I mention here an important point: there is no evidence that, even if the case been successfully re-entered, Mr. McMullen would, as a matter of probability, have done better than the settlement which was achieved. There is no evidence therefore that by entering into the settlement, he acted to his detriment or that he in fact sustained loss or damage. 1992 - Mr. McMullen’s proceedings against Kent Carty & Co. are heard in the High Court 14. The matter came on for hearing before the High Court (Carroll J.) on the 5th May, 1992. The claim was dismissed. The judge held that, at the time of the negotiations, the solicitors relied on the advice of senior counsel and, therefore, could not be to blame for Mr. McMullen entering into the settlement. Moreover, the judge pointed out that the senior counsel was the very one who Mr. McMullen had insisted be briefed. 15. But, at that hearing, an event occurred which Mr. McMullen thought demonstrated a breach of faith. Kent Carty’s lawyers called Mr. Clancy, who had been Mr. McMullen’s senior counsel, to give evidence for their side. Mr. Clancy testified as to what happened in the negotiations. He said that he had explained the terms of the settlement to Mr. McMullen. He confirmed that his advice had been that, if the terms of the settlement were not implemented, the case could be brought back before the court again for further hearing. In counsel’s view, there had been a fundamental breach of the contract, so that it was open to the parties to re-enter the proceedings. This was incorrect. However, Mr. Clancy also testified that, if he had been wrong in the advice which he gave to Mr. McMullen, the responsibility was his. Thus, on the evidence, the claim failed. The judge held the solicitors were not to blame. Mr. McMullen appealed the decision to this Court. That appeal also failed. 1995 - Mr. McMullen’s proceedings against Mr. Clancy
18. On appeal to this Court, Fennelly J., upholding the High Court judge’s decision, remarked on “perplexing” aspects of the case, including the fact that Mr. McMullen had apparently explored every other avenue to avoid making a claim in negligence against Mr. Clancy, arising from the erroneous drafting of the settlement (see pp. 463 and 464 of the report). 19. While the parties to this case are different, it is to be noted that in both the High Court and Supreme Court judgments in McMullen v Clancy (No.2), the Courts concluded there had been no evidence Mr. Clancy actually made any wrongful approach to coerce or influence Mr. McMullen. This is a matter of importance to the instant case. However, during the High Court proceedings before McGuinness J., an event occurred which assumed great importance in Mr. McMullen’s mind and engendered the current proceedings against Mr. Kennedy. The basis of the present case The Kennedy letter to Admiralty Underwriting “On Friday, the 28th April, 1989, our Mr. Kennedy took the opportunity to have an unofficial without prejudice word with Mr. Clancy. He advised Mr. Clancy as to what was happening to assess Mr. Clancy’s attitude. 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. We were aware, at the time of our discussion that Mr. Clancy was acting for the claimant instructed by Messrs O’Connor in respect of a rather serious motor accident. Accordingly, it would appear as if Mr. Clancy may still have some influence over the claimant. As a tactic we indicated to Mr. Clancy that our client, the insured herein, wished to join him in the proceedings and we were not keen to do so. This “little chat” might provide an opportunity and incentive to Mr. Clancy to dissuade the claimant”. Mr. McMullen’s reaction to reading the letter 22. Mr. McMullen concluded that the contents of the letter suggested serious impropriety. As just mentioned, he had applied to re-open the proceedings before McGuinness J., but that application was refused. The letter was considered by this Court in the appeal in McMullen v Clancy. Mr. McMullen’s contention was that the letter showed that Mr. Kennedy had actually used undue influence, improper incentives and coercion, which had the effect of inducing Mr. Clancy to collaborate with Kent Carty and undertake to give evidence for that firm in Mr. McMullen’s action against that firm. Mr. McMullen alleged Mr. Kennedy had engaged in a conspiracy which had the consequence of defeating his action. He again claimed Mr. Clancy had acted in breach of confidence and in breach of his fiduciary relationship with Mr. McMullen. 23. Mr. McMullen therefore sued Mr. Kennedy in these proceedings. Birmingham J.’s decision dismissing that claim is the subject matter of this appeal. No cross-appeal of the trial judge’s findings on Mr. Kennedy’s conduct 25. Birmingham J. pointed out that the inducement to influence Mr. McMullen was that, if Mr. Clancy succeeded in persuading Mr. McMullen to drop the action, he would be doing himself a favour by removing the threat which hung over him as long as those negligence proceedings remained in being. The corollary was that if Mr. McMullen actually continued those proceedings, then the prospect of Mr. Clancy being joined as a third party remained live. 26. The trial judge described this contact as clearly an improper one, which he deprecated in strong terms (see also the reference to Mr. Kennedy’s “improper” conduct and “unattractive stratagem” at pp. 465 and 466 of the judgment of Fennelly J. in McMullen v. Clancy (No.2)). 27. Mr. Kennedy has not cross-appealed the trial judge’s findings on this issue. So those observations must stand on the record. But is that conduct, in itself, sufficient to establish a cause of action? Did Mr. Kennedy’s communication actually result in Mr. Clancy giving false evidence about what transpired between himself and Mr. McMullen in the Charleville proceedings? Did Mr. Clancy at any time seek to induce Mr. McMullen to discontinue the Kent Carty proceedings? Mr. McMullen contends that the evidence establishes all this, and that the trial judge erred in holding against him. Grounds of appeal Findings of fact not appealed 1) that the respondent had approached Mr. Noel Clancy on the 28th April, 1989, seeking to have him assist Kent Carty by encouraging him to discontinue the McMullen v Kent Carty proceedings. 2) there was no evidence that Mr. Clancy had ever subsequently approached Mr. McMullen seeking to persuade him to discontinue the McMullen v Kent Carty proceedings. 3) that there had been no further contact or approach made by Mr. Kennedy to Mr. Noel Clancy following the meeting on the 28th April, 1989. 4) that earlier, in the Charleville proceedings, Mr. McMullen approached Pamela Madigan in relation to the issue of his entitlement to return to court. 5) that Ms. Madigan in turn spoke with Mr. Clancy, as leading senior counsel to tell him what the client had asked her, and she then communicated Mr. Clancy’s response to the appellant that the matter could be re-entered. 6) that on the 11th February, 1987, after the failed application before Costello J. to re-enter the McMullen v Charleville Estate Company case, a conversation took place, in front of the appellant and Ms. Madigan, where Mr. Clancy specifically stated he was accepting responsibility for the application to re-enter having failed. 7) there was no arrangement or conspiracy between Mr. Kennedy and Kent Carty. 30. The appellant also did not appeal against the trial judge’s determination that Mr. Noel Clancy gave truthful evidence in the case of McMullen v Kent Carty. Nor did he appeal the judge’s determination that the evidence Mr. Clancy gave was neither so surprising or unexpected as to call for an explanation. 31. While a court will normally extend latitude to litigants in person, it is necessary to point out that Mr. McMullan is by now rather experienced in litigation and, as the transcripts of the earlier appeals show, he is aware of the vital role of findings of fact and inferences in an appeal; a matter to which I now turn. The function of this court on appeal “1. An appellate court does not enjoy the opportunity of seeing and hearing the witnesses as does the trial judge who hears the substance of the evidence but, also, observes the manner in which it is given and the demeanour of those giving it. The arid pages of a transcript seldom reflect the atmosphere of a trial. 2. If the findings of fact made by the trial judge are supported by credible evidence, this Court is bound by those findings, however voluminous and, apparently, weighty the testimony against them. The truth is not the monopoly of any majority. 3. Inferences of fact are drawn in most trials; it is said that an appellate court is in as good a position as the trial judge to draw inferences of fact. …I do not accept that this is always necessarily so. It may be that the demeanour of a witness in giving evidence will, itself, lead to an appropriate inference which an appellate court would not draw. In my judgment, an appellate court should be slow to substitute its own inference of fact where such depends upon oral evidence or recollection of fact and a different inference has been drawn by the trial judge. In the drawing of inferences from circumstantial evidence, an appellate tribunal is in as good a position as the trial judge. 4. A further issue arises as to the conclusion of law to be drawn from the combination of primary fact and proper inference — in a case of this kind, was there negligence? I leave aside the question of any special circumstance applying as a test of negligence in the particular case. If, on the facts found and either on the inferences drawn by the trial judge or on the inferences drawn by the appellate court in accordance with the principles set out above, it is established to the satisfaction of the appellate court that the conclusion of the trial judge as to whether or not there was negligence on the part of the individual charged was erroneous, the order will be varied accordingly. 5. These views emphasise the importance of a clear statement, as was made in this case, by the trial judge of his findings of primary fact, the inferences to be drawn, and the conclusion that follows.” (emphasis added) 33. Applying these principles to the instant case, I make the following comments. This was, pre-eminently, a case where the learned trial judge had the opportunity of observing the manner in which evidence was given on both sides. Insofar as the findings of fact made by the trial judge were supported by credible evidence, this Court is bound by those findings (see point 2 emphasised in the passage from Hay v O’Grady quoted above). The transcript shows the learned trial judge’s findings were supported by the substantial preponderance of evidence which was adduced at the trial. The judge pointed out the case advanced by Mr. McMullen invited the court to engage in a hypothesis which he held was not supported by any concrete evidence. 34. It follows from this that this Court will be slow to depart from inferences of fact based on credible evidence which were drawn by the learned trial judge (see point 3 emphasised in the passage above). Insofar as the case consisted of circumstantial evidence, no cogent reason has been advanced to this court as to why the findings of the learned trial judge should be disturbed (see final sentence in point 3 above). What the appellant had to establish at the High Court trial 36. At the trial, Mr. McMullen pointed to two ways in which Mr. Clancy’s evidence was surprising; and allegedly inconsistent with what he had said on previous occasions. 37. First, he claimed that the remarks Mr. Kennedy attributed to Mr. Clancy in the letter to the underwriters were inconsistent with the senior counsel’s evidence at the trial of the Kent Carty claim. He contended that there was a divergence between Mr. Clancy having said, on the one hand, that Mr. McMullen had done “quite well”; and, on the other hand, at the hearing before Carroll J., accepting responsibility for what had gone wrong. 38. The judge rejected the contention that the statements were irreconcilable. He pointed out that Mr. Clancy had expressed satisfaction with the outcome of the action in other correspondence with Kent Carty subsequent to the case. But he noted that, when Mr. Clancy testified before Carroll J., even then he apparently did not have a full appreciation of the distinction the law draws between “liberty to apply” and “liberty to re-enter” in a settlement document. In summary, Mr. Clancy thought the settlement was a good one. He thought the case could have been re-entered. If he was wrong, he accepted he was responsible for his advice. 39. The trial judge concluded that, in fact, the remarks attributed to Mr. Clancy and Mr. Clancy’s subsequent evidence to the High Court before Carroll J. were consistent with each other. He did not consider that Mr. Clancy’s testimony represented some unexpected change in position; but rather that the letter recorded Mr. Clancy as having said he would be in a position to give evidence that Mr. McMullen had been advised of the situation with regard to the settlement, and that the case could be re-entered. That was exactly the evidence that Mr. Clancy gave during the hearing before Carroll J. 40. There was direct evidence before the trial judge on this question. Ms. Pamela Madigan testified in the High Court as to what happened at, and after, the application to re-enter before Costello J. and, thereafter, at the hearing before Carroll J. The trial judge held that Ms. Madigan was a credible and accurate witness. He found that there was no evidence that Mr. Clancy had actually approached Mr. McMullen at any point after the meeting described in the letter. The judge’s conclusions were inferences based on clear evidence which the trial judge considered credible (see point 3 of the passage quoted from Hay v O’Grady). 41. The judge then considered a second point relied on by Mr. McMullen. This was derived from a telephone conversation which he had with Mr. Clancy on the 25th May, 1987. Mr. McMullen secretly recorded this and had a transcript prepared. In the course of that conversation, Mr. Clancy claimed that he had not been shown the settlement agreement in the Charleville proceedings, and that it had been “done” by junior counsel. The judge observed in his judgment that it certainly seemed that Mr. Clancy was at that point seeking to distance himself from the settlement. However, he held that Mr. Clancy’s remark could not have been entirely accurate as the senior counsel had actually signed the settlement document as a witness. How then could reliance be placed on a claim that he had not seen the agreement? 42. The trial judge drew inferences from the transcript of the phone call. He pointed out that Mr. Clancy complained that the criticisms Mr. McMullen made of him of him were unfair, and that he had effectively won the case after Mr. McMullen had been told by seven senior counsel (three of them by then judges), that he had no case. At other points, Mr. Clancy had told Mr. McMullen that nothing had been lost as it was open to him again to bring the matter to court by way of a new application for an injunction. Birmingham J. accepted Mr. Clancy did not actually say in the transcript he accepted responsibility for what went wrong. That was of course the stance he took at the trial before Carroll J. But were any discrepancies sufficient to give rise to any inferences that there had been real differences in the material?
“…it would be an entirely unjustified leap in the dark to conclude that the subsequent acceptance of responsibility when answering questions that were posed to him in court was because he had been induced to do so or coerced into doing so by Mr. Kennedy. To so conclude would be to engage in the wildest speculation”. 44. He went on to point out:
In my view, the learned trial judge correctly applied the law to the facts. The conclusions he arrives at were well within the four walls of Hay v O’Grady (see also Northern Bank Finance Ltd v Charlton [1979] I.R. 149). 45. However, lest he had any doubt, the trial judge went on in the judgment to examine other surrounding circumstances in order to test whether his conclusion was correct. Insofar as this consists of an examination of the circumstantial evidence in the case, I am not persuaded there is any reason to differ from the trial judge’s conclusions. 46. We may consider, first, his inferences as to what happened between 1985 and 1987. The judge examined this material to establish whether there was consistency of conduct between that earlier time period and what occurred later. He inferred that as lead counsel, Mr. Clancy must have taken a leading role in the negotiation of the settlement of the 12th July, 1985. He took judicial notice of the role which is customarily played by leading counsel. He noted the evidence to this effect from Ms. Madigan. This evidence was to the effect that, in the course of the negotiation of the Charleville estate case, Mr. McMullen had indeed raised the issue of his entitlement to return to court, and that her response had been to go to senior counsel, tell him what she had been asked by the client and then to communicate counsel’s response to the client. The judge noted that Mr. McMullen did not mount any real challenge in cross-examination to this evidence. The judge also pointed out that Kent Carty maintained that they acted throughout on the advice of senior counsel, a stance well known to Mr. McMullen. In fact, in their defence of his action against their firm, they had relied on this precise point; alleging Mr. Clancy had negotiated the settlement on behalf of Mr. McMullen, and that the client had been apprised of the proposed terms of settlement by Mr. Clancy, and not by a member of the firm of Kent Carty. The judge found no inconsistency between the evidence and the later conduct of the parties. 47. The judge accepted Ms. Madigan’s evidence that, following Costello J.’s refusal to permit the matter to be re-entered, she took Mr. Clancy aside and explained to him the seriousness of this development in the light of the instructions which Mr. McMullen had given at the time of the settlement. Her evidence was that the senior counsel, Mr. McMullen and herself moved towards the Law Library, and that, at that stage, Mr. Clancy said he was accepting responsibly for the application to re-enter not having been successful. The judge concluded this evidence was quite consistent with his subsequent evidence before Carroll J. This was an entirely legitimate inference based on cogent evidence. 48. At the trial, Mr. McMullen produced a letter in evidence, which in fact did not advance his case. On the 9th June, 1987, (well before the trial before Carroll J. in 1992, some five years later), Ms. Madigan wrote to Mr. McMullen on behalf of Kent Carty, confirming that no liability attached to her firm, and that Mr. Clancy had confirmed, both to her firm and to Mr. McMullen, that responsibility lay with him as counsel. Birmingham J. pointed out there was no indication that Mr. McMullen had ever responded to that letter or taken issue with its contents. The judge considered this was of particular significance in the light of Mr. McMullen’s practice to prioritise his correspondence with Kent Carty. This evidence, too, was consistent with Mr. Clancy’s subsequent testimony. It pre-dated any “approach” by Mr. Kennedy on the 28th April, 1989. 49. On this, the judge observed that it was extraordinary that Mr. McMullen had not then challenged Ms. Madigan’s assertion that Mr. Clancy had told him the responsibility rested with him as senior counsel. How then could it be said that the senior counsel’s evidence in 1992 could give rise to an inference that something “untoward” had occurred between 1989 and 1992? In my view, these inferences from the circumstantial evidence were reasonably based on findings of fact. 50. The judge found that there was no evidence to offer support for the suggestion that there had been some untoward contact between Mr. Kennedy and Mr. Clancy subsequent to the Four Courts meeting in April 1989. He held there was no basis either for any suggestion that Mr. Clancy’s evidence in the High Court had been so surprising or unexpected as to call for an explanation. 51. These too were all inferences based on evidence. The test this court must apply on this aspect of the case is whether there was cogent evidence before the trial judge to support these inferences and findings. Clearly, there was. 52. I then turn to an issue going to the burden of proof. The judge considered that even if some elements of the hypothesis were accepted, the chain of causation was broken. It was for Mr. McMullen to prove the elements of his case to the standard of probability. The judge concluded there was no evidence before him that Mr. Clancy had actually approached Mr. McMullen in order to persuade him to withdraw his negligence claim against Kent Carty. Thus, in this aspect of the case, Mr. McMullen could not contend he, himself, had ever been influenced by some “tainted” advice from Mr. Clancy. In the absence of this evidence, how could it be said he ever acted to his loss or detriment as a result of Mr Kennedy’s actions? (See comments to the same effect by Fennelly J. in the appeal of McMullen v Clancy (No.2)). The trial judge concluded that some additional documents which Mr. McMullen produced did not advance his theory. I agree. A summary of the High Court judgment The application to this Court to adduce new evidence (a) correspondence between the appellant and Kent Carty Solicitors dated between June and July 1987; (b) correspondence between the appellant and Kent Carty Solicitors, and the appellant and Collins Crowley dated February and June 1994; (c) a cheque requisition document dated the 3rd March, 1987; (d) correspondence to and from Noel Clancy and dated between July 1985 and March 1987; and (e) an order of Costello J. in proceedings entitled Kent Carty and Company v Michael Colm Geoffrey McMullen (Record No 1988 152SP), made on the 2nd May, 1988, requiring a bill of costs to be served on the defendant; and a one page extract of a bill of costs prepared on behalf of Kent Carty Solicitors. The appellant also sought an order permitting the further cross-examination of Ms. Pamela Madigan under Order 58 Rule 8 of the Rules of the Superior Courts. 55. Having extensively considered the relevant legal authorities, the Chief Justice held that the material which Mr. McMullen sought to adduce was not new evidence, but was rather, evidence that the appellant had held in his possession prior to the High Court hearing of these proceedings. However, the Chief Justice, also pointed out that it was clear that the documents were irrelevant to the appeal because Mr. McMullen’s claim was against Mr. Kennedy in relation to alleged acts in April 1989, and not Kent Carty solicitors who had acted for him at the time relevant to the drawing up to the terms of settlement of the nuisance action. This court also refused to order that Ms. Madigan be further cross-examined. Conclusion Two observations 58. I would comment finally that Mr. McMullen criticised the learned trial judge’s observation in the judgemnt that the present proceedings “would not have been out of place in a Dickens’ novel”. The appellant contended that this was an adverse and unfair reflection on his character as a litigant. I do not agree. A judge is entitled to make comments on the nature of the case in circumstances where the litigation before him has, in one form or another, gone on for thirty years and more. The reference there was to the case of Jarndyce v Jarndyce, described in the preface and first chapter of Charles Dickens’ novel Bleak House. The scenes portrayed in that novel are a warning to courts, lawyers and litigants as to the evils that arise from the unnecessary prolongation of litigation and the dissipation of costs that can arise. 59. These comments were made in the judgment after the trial. The judge’s reference cannot in any sense be an indication of pre-judgment or bias, but, rather, a simple expression of the uncontroversial view that there must be finality in litigation; and that, as in all human affairs, there must come a time when, no matter how profound their perceived sense of grievance, parties must draw a line under litigation and engage with life outside the courtroom. I would affirm the High Court judgment and dismiss this appeal.
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