Neutral Citation No:  NICh 24
Judgment: approved by the Court for handing down
(subject to editorial corrections)*
"(1) The plaintiffs' originating summons under Order 99 Rule 3 of 26 January 2016 be withdrawn with the plaintiffs' costs to be paid from the deceased's estate.
(2) The defendant's Order 113 summons dated 20 November 2015 shall be adjourned until the first available date in January 2017. No defence will be put forward by the plaintiffs in relation to this summons."
"There are no grounds disclosed that would allow the defendants in this case to set aside the compromise agreement they signed."
(a) The Tomlin Order was written out by B Heaney. It was not entitled a Tomlin Order, it had no draft notes and no schedule.
(b) The terms prevent the defendants from "bringing strong evidence of fraud" against B Heaney and the fraudulent Will. The fraud appears to be that Mrs Heaney was not authorised to act as a solicitor in Northern Ireland, and that she was impersonating a solicitor here in order to obtain professional fees from the estate. The defendants complain that their legal team failed to expose Bernadette Heaney and the fraudulent Will; the Will is fraudulent and their legal team had failed to obtain the deceased's health records. They also complained that any documents mentioning the fraud of B Heaney had mysteriously disappeared but they chose not to identify which documents those were.
(c) The defendants were pressurised and tricked into signing a "ridiculous document", that is the terms of settlement. A few days later they regretted so doing. In June 2017 they were officially informed by the Law Society that their solicitor "has finally accepted that he has misrepresented us".
B. Legal Considerations
"14. Be careful about pleading fraud, ensuring that there is a credible case for it (Bar Handbook 8-24(iii)). The allegation should be approved by senior counsel if instructed."
The position is the same in England where barristers and solicitors may not draft any originating process, pleading, affidavit, witness statement or notice of appeal containing any allegation of fraud unless they have clear instructions to make such an allegation and have before them reasonably credible material which as it stands establishes a prima facie case of fraud: see 57.02 of Bullen and Leake and Jacob's Precedents of Pleadings (18th Edition).
Neither of the defendants are legally qualified but the requirement that an allegation of fraud cannot be made lightly and should only be made where there is "reasonably credible material" should apply equally to those who act without legal representation. Far too often claims of fraud are made by unrepresented litigants against other parties and witnesses, professional or otherwise, when there is no evidential basis for such serious claims.
"first, there has to be a conscious and deliberate dishonesty in relation to the relevant evidence given, or action taken, statement made or matter concealed, which is relevant to the judgment now sought to be impugned. Secondly, the relevant evidence, action, statement or concealment (performed with conscious and deliberate dishonesty) must be material (in the sense of being) causative of the impugned judgment being obtained in the terms it was. Thirdly, the question of materiality of the fresh evidence is to be assessed by reference to its impact on the evidence supporting the original decision, not by reference to its impact on what decision might be made if the claim were to be retried on honest evidence."
"Where the agreement of the parties has been reduced to writing and the document contained in the agreement has been signed by one or both of them, it is well established that the party signing will ordinarily be bound by the terms of the written agreement whether or not he has read them and whether or not he is ignorant of their precise legal effect."
C. The Evidence
(a)&(b) Mrs Heaney did not write out the Tomlin Order. It was written out by Mr Tom Fee, junior counsel, who acted for Mrs Heaney, the executrix of the estate of Grace McEvoy deceased. The fact that there were no draft notes or any schedule attached to the Order is irrelevant to the issue of fraud. There was no evidence of fraud against Mrs Heaney which was causative of the impugned judgment. She purported to act as a solicitor qualified in Northern Ireland which she should not have done. But the defendants did not act upon that representation when entering into the Tomlin Order. Her ability to practice in Northern Ireland had no bearing on the terms of the settlement, which were agreed between counsel. As I have stated in my earlier judgment, I have disallowed her costs. Whether or not the Will was ineffective, and the court has not heard any evidence on that issue, the fact is that the terms of the Will are such that the same result is achieved as if the deceased had died intestate - the house is to be sold and the proceeds are to be divided equally among the deceased's children.
The failure to obtain the deceased's health records was not relevant to any of the issues before the court. Even if the records did suggest that the deceased was unfit to make a Will, her estate would then be dealt with on an intestacy and the end result would be the same.
(c) The evidence did not begin to satisfy me that the defendants were pressurised or tricked by their legal team into signing the terms of the Tomlin Order. I concluded from having heard their testimonies and watched them give their evidence that they entered into the agreement of their own free will although, it is quite obvious that they changed their minds about the prudence of agreeing such terms some days later.
I did permit the defendant seven days to produce the documentary evidence from the Law Society which they said amounted to an admission from their solicitor that he had made a misrepresentation to them. I did this because if his solicitors were simply passing on a misrepresentation made by the other side then it might, depending on the nature of the misrepresentation, provide grounds for invalidating the settlement. If their solicitor was acting on his own account, then this might give the defendants a cause of action against him rather than invalidating the settlement.
In any event no documents were produced from the Law Society or from any other third party whether within seven days or at all proving misrepresentation on the part of the defendants' solicitor. I listed the case for explanation and was told by the defendants that they did not intend to produce any documents in relation to the conduct of their solicitor whether from the Law Society or from any other third party. They also told me that they were not pursuing the allegation that the solicitor had accepted that he had made a misrepresentation to them. Accordingly the court was given no information from the defendants about the nature of the alleged misrepresentation or the circumstances in which it was allegedly made
(i) They suggested to the court that the Court of Appeal had ordered the Tomlin Order to be set aside although they did resile somewhat from this when pressed. In any event it was patently incorrect.
(ii) They claimed that their solicitor had admitted that he was guilty of misrepresentation and that there were documents with the Law Society to prove it. No document from the Law Society has been provided and this claim has now been abandoned.