High Court of Justice in Northern Ireland Queen's Bench Division Decisions

"The Plaintiffs' claim is for damages for vexation, inconvenience, distress, upset, loss, slandering our name, failing in his duty of care to us his clients regarding health and safety matters, abuse of position (failing to disclose), false representation, aiding and abetting in perverting the course of justice."

It is not disputed that the Defendant was the Plaintiffs' solicitor for a limited period in the underlying County Court proceedings. The Writ continues:

"Mr. Macaulay failed in his duty of care to us his clients, he was professionally negligent, dishonest, fraud by abuse of position [sic], false representation and failing to disclose, aiding and abetting in perjury …

Mr. Macaulay failed to see that the judge in question was incompetent in her duties … [and] introduced us his clients to a map that he advised was the map that defined the lawful right of way and was used in previous litigation. We now have the evidence from the courts that this was a false map and this was a false statement which misled us."

I pause to observe that there is no "evidence from the courts" (or from any source) to the asserted effect. On the contrary, it was represented to this court, painstakingly, by the Plaintiffs that they continue their efforts via Northern Ireland Courts and Tribunals Service to ascertain whether any such evidence exists.

This Application

"As appears from the Statement of Claim, Reply and answers to particulars the gravamen of the Plaintiffs' case against the Defendant is that it concealed the 'map coloured red' which, had it been disclosed, would have established that Mr. Patterson's claim was unsustainable and that the wall which they proposed to construct did not interfere with his right of way. It is further asserted that the interim injunction was obtained by Mr. Patterson on the basis of a false map ('the 1997 map')."

I concur with this succinct formulation of the Plaintiffs' claim against the Defendant. This may also be properly characterised as encapsulating the Plaintiffs' central grievance. The grounding affidavit further highlights the judgment of Deeny J (considered in greater detail in my related judgment) and suggests, correctly in my view, a persisting misconceived characterisation of the County Court proceedings by the Plaintiffs. This gives rise to the following averments:

"The issues which had been raised by the Plaintiffs in respect of the 'map coloured red' and 'the 1997 map' proved to be irrelevant to the determination of Mr. Patterson's claim for injunction and immaterial to the judgment of Her Honour Judge McReynolds. In the circumstances, any alleged failings/misrepresentation by the Defendant in respect of those maps cannot sustain the Plaintiffs' cause of action in negligence or fraud/collusion."

I agree with these averments. Furthermore, as the next succeeding paragraph of Mr. McGrattan's affidavit highlights, the "map coloured red" in any event formed part of the evidence adduced in the hearing conducted by Judge McReynolds, with the result that (per Mr. McGrattan's affidavit) –

"… any alleged failings by the Defendant to produce or disclose the map (which are denied) cannot have caused or contributed to any loss sustained by the Plaintiffs which flow from the decision of Her Honour Judge McReynolds."

Again, I accept this contention. Finally, as regards the Plaintiffs' claim in negligence, there is a judicial finding (that of Judge McReynolds), undisturbed on appeal, that the initial decision to grant an interim injunction against the Plaintiffs was both appropriate and proportionate.

Negligence

Defamation

(a) Statements made that the [Plaintiffs] did not pay their bills.

(b) Statements made regarding the integrity and honesty discrediting the character of the [Plaintiffs].

(c) Made dishonest claims in court by means of reports which would have misled the honourable judge.

Taking these particulars at their zenith, I find that they disclose no reasonable cause of action in defamation against the Defendant. They fail to satisfy the elementary requirements of clarity, particularity and pleading the allegedly defamatory words. My second main conclusion is that insofar as any of the alleged statements was made in connection with the litigation, for the purpose of giving or receiving legal advice or in a courtroom forum, they are protected by a mixture of absolute and qualified privilege, in circumstances where the Plaintiffs make no allegation of malice. Thirdly, I find that, as a matter of law, the Defendant was incapable of defaming either Plaintiff through the medium of an engineering report prepared for the purpose of litigation and compiled by a person who was neither a servant nor an agent of the Defendant. Fourthly, it is clear that at least some of the brief particulars of defamation allege slander on the part of the Defendant, thereby engaging the well established principle that slander is not actionable in the proof of special damage. While there are some limited exception to this rule, I find that, taking the Plaintiffs' allegations at their zenith, none of these could conceivably apply. Finally, insofar as the Plaintiffs' case in defamation rests in part in a letter dated 30^th November 2007 from the Defendant to them, there is no allegation of publication to a third party, which is fatal per se to this discrete allegation.

Fraud

(a) The Defendant makes a false representation.

(b) The Defendant does so with knowledge that it is not true or reckless as to whether it is true.

(c) The Defendant makes the false representation with the intention that the Plaintiff should rely upon it.

(d) Such reliance ensues, with consequential loss to the Plaintiff.

Of the seven pleaded particulars of fraud, the first four relate explicitly to a map or maps. The final three particulars, by a process of interpretation and examination in their full context – including affidavits sworn on behalf of the Plaintiffs, their written submissions and their oral representations to the court – are, in my view, members of the same category. I find that none of the pleaded particulars of fraud, taken at their zenith, could, as a matter of law, establish the tort of deceit. Accordingly, the pleading fails to disclose any reasonable cause of action in this respect.

"… this matter could be resolved within five minutes by Diamond Heron Solicitors, their client and others admitting that they used a false 1997 map on which they gained the interim injunction and all that followed."

[This example is taken from paragraph 13 of Mr. Shaw's affidavit sworn on 3^rd March 2010].

This gives rise to the further and independent conclusion that, in addition to betraying a fundamental misconception, the Plaintiffs are invoking the process of this court for an improper purpose. Finally, I would highlight those pleaded particulars of fraud which allege that the Defendant made false statements on oath, perverted the course of justice and aided and abetted perjury in judicial proceedings. Having regard to all available evidence, I find that these are wild and unfounded allegations which are scandalous and disclose no reasonable cause of action. They are unsustainable on the further, and independent, ground that they are incapable of establishing the tort of deceit.

Collusion

Conclusion

(a) The correct "red" map did form part of the materials considered by District Judge Brownlie at the beginning of the saga.

(b) It also formed part of the evidence considered by Judge McReynolds at the substantive hearing.

Furthermore, in their oral presentation to this court, the Plaintiffs made abundantly clear that the crux of the grievance and injustice asserted by them lies in their allegation that in the course of the County Court proceedings the parties' respective engineers operated from an incorrect map. This, in turn, gave rise to three acknowledgments on the part of the Plaintiffs:

(a) They have no means of substantiating this allegation.

(b) Even if correct, it could have been the product of a simple error.

(c) The alternative explanation – a fraudulent and collusive misrepresentation by both engineers – is intrinsically unlikely.

I would add that the alternative explanation, in my view, belongs to the realm of fantasy. Finally, the Plaintiffs made clear that they instructed the engineer in question (Mr. Wilson).