High Court 

McMullen v Clancy

1995/8142 P 

3 September 1999 

MCGUINNESS J: 

In these proceedings the Plaintiff, who is a litigant in person, seeks damages against the Defendant, who is a Senior Counsel who represented the Plaintiff in earlier litigation principally during the years 1985 to 1987. In the course of this litigation, the Defendant was instructed by the Plaintiffs then Solicitors, Messrs Kent Catty and Company. The Plaintiffs Plenary Summons was issued on 18 October 1995 and was amended, as was his Statement of Claim, by Order of this Court on 29 June, 1998. 

The Plaintiffs claim is set out in his general endorsement of claim as amended as follows:- 

"The Plaintiffs claim is for 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. 

Expenses and damages for Distress and Disruption and for the return of Fees paid to the Defendant. 

FURTHERMORE and IN ANY EVENT -- 

WHETHER OR NOT 

The Evidence given by the Defendant, Captain Noel AE Clancy SC against his Lay Client, the Plaintiff in this Action, Michael Cohn Geoffrey McMullen, is to be held admissible; (Though already Found in Violation of the peremptory and Honourable Codes of 

Conduct of the Bar of Ireland; 

The said Evidence is irreconcilable and in direct Opposition to the Defendant's very own emphatic Statements made at the time matters between the Parties were current and contemporary; 

And so, the said Evidence is therefore False, Fraudulent and a scandalous and corrupt Act of culpable Perjury contrary to every Canon and Tenet upheld by Universal Justice; 

The Plaintiff seeks a Declaration and Damages as delineated herein". 

In past litigation the Plaintiff had been represented by Solicitor and Counsel but appeared in person in the proceedings before this Court. 

THE FACTS 

In order to understand the nature of the Plaintiffs claim, it is necessary to summarise as briefly as possible the factual background to the Plaintiffs litigation. 

The Plaintiff, who is English by origin; came to Ireland in or about the summer of 1971 and started to negotiate the leasing of Charleville Castle, Tullamore, Co Offaly. The Castle and its extensive estate was owned by the Charleville Estate Company (otherwise the Hutton Bury family). The negotiation of the lease was somewhat delayed by the Plaintiff becoming ill and during the period of his illness, a number of letters passed between him and members of the Hutton Bury family to which reference will be made later. Agreement was reached between the parties and the lease was signed on 11 August, 1972. The lease was a demise of the premises therein described, namely, the property known as Charleville Castle and approximately 4.9 acres of land in the immediate vicinity of the Castle. The term was for 35 years from 29 September, 1971. The lease was a repairing lease since the Castle had fallen into considerable disrepair and it appears that the rent, at least in the early years, was set at a low level. The lease purported to prevent the Plaintiff from carrying on any business at the Castle. 

The Plaintiff resided at Charleville Castle from 1972 until in or about 1988. The period of his residency was not without difficulties. The avenue leading through the main estate to the Castle was some one mile long and the Plaintiff had a right of way over this avenue. However, for many years a practice had grown up whereby the Hutton Bury family had always permitted members of the public to enter onto the estate and to use it for purposes of recreation. This was set out in a letter dated 13 July, 1984 from Messrs Hoey and Denning, Solicitors for the Charleville Estate Company to Messrs Kent Catty and Company, the then Solicitors for the Plaintiff as follows:- 

"As we have stated on numerous occasions, to you and the previous legal advisers for Mr McMullen, our clients have made it clear to everyone with who in they have influence and the various clubs and organisations that are permitted to use the grounds that the public do not have permission to enter the area leased to Mr McMullen. Apart from the foregoing, Charleville Estate Company has always tacitly permitted well behaved and well intentioned members of the public to enter the demesne for leisure purposes, and for access to the river. They have specifically permitted certain clubs and organisations, namely, the local Harriers Club, the Soccer Club and the GAA Club to enjoy the facilities of the demesne for training and games purposes. They have given permission to such organisations as the Historical Society, the local Ramblers Club and various troops of boy scouts and girl guides to visit the grounds". 

Over the years, however, this use of the estate by members of the public had apparently increased. It appears that the landlords did not wish to take any steps to prevent this, whether because they did not wish to create hostility between the Estate Company and the local people or for other reasons. The Plaintiff found the large numbers of people using the estate and in particular using the avenue over which he had a right of way particularly intrusive. He complained frequently, both to the landlords and to the local Gardai, about abuse of this privilege and in particular about the use of the estate at night by "courting couples" in cars. He objected to this practice so strongly that he, from time to time, went out and took photographs of the said "courting couples", which created considerable hostility in the neighbourhood. The Gardai were unwilling to act in the matter as they considered that the persons who came onto the estate did so with the permission of the landlords and that no criminal offence was being committed. 

In addition, the Plaintiff wished to obtain a change of user of the Castle so that he could run a business of showing members of the public around the Castle, which he had very considerably restored. The landlords were unwilling to grant him permission for change of use. 

Over the years, the Plaintiff sought legal advice in a number of areas, in particular with regard to the change of user of the Castle and with regard to the nuisance. From time to time he instructed a number of firms of Solicitors. His earlier Solicitors apparently advised him that he would be unable to obtain a change of user of the Castle. In or about August 1983 the Plaintiff was referred to the firm of Kent Carty and Company, Solicitors, by the well-known voluntary body, Threshold, which deals with the interests of tenants. Initially, the Plaintiff instructed Messrs Kent Carty and Company with regard to the change of user of the Castle and they advised him that it would be possible to obtain a business lease. He subsequently instructed them in regard to his wish to bring an action for nuisance on account of the large numbers of persons who were using the estate. Messrs Kent Carty and Company advised the Plaintiff that in their opinion he would be able to obtain a business lease and they instructed Mr Robert Barr SC (as he then was) and Mr Fergal Sweeney BL in the matter. An application was made to the Circuit Court in the Midland Circuit and very considerable progress was made in these proceedings by the year 1985. On account of the success of the proceedings regarding change of user, the Plaintiff sued two of his former firms of Solicitors in negligence on account of their advice to him in this area and he apparently succeeded in these actions. 

Since the Plaintiff also wished to pursue his nuisance action, on the advice of his Solicitors he kept records of incidents of nuisance. The nuisance action had in fact been initiated by the Plaintiffs former Solicitors, Messrs Binchy (formerly Fitzpatricks) but were subsequently taken over by Messrs Kent Carty and Company, Solicitors. 

On 14 November, 1983, a consultation was held at the Law Library at which were present the two Counsel instructed, Mr Hugh Carty of Kent Carty and Company and the Plaintiff Mr Hugh Carty, drew up a memorandum of this consultation on 18 November, 1983. This memorandum was handed into Court and in regard to the nuisance action, it states:- 

"The matter was dealt with in some detail by Mr Barr whose advice ultimately after 1 1/2 hours of consultation was that the nuisance action should not be continued but Mr McMullen was very adamant that he wanted this action to continue and he was not prepared to drop it. Ultimately he conceded that he would let the matter ride until Christmas and thereafter he wanted the matter proceeded with". 

In 1984 Mr Robert Barr (as he then was) was elevated to the High Court Bench and it became necessary to instruct another Senior Counsel. 

Meanwhile, in the summer of 1984 the Plaintiff had a chance meeting at an auction with Mr Tim Ryan, Solicitor, of James O'Connor and Company, Solicitors. He spoke to Mr Ryan of his difficulties in regard to the nuisance problem and Mr Ryan showed considerable sympathy to him. Mr Ryan suggested that the Plaintiff should consult Mr Noel Clancy, the Defendant, who was a Counsel frequently instructed by Mr Ryan. He gave the Plaintiff Mr Clancy's telephone number and suggested that he should ring him direct. The Plaintiff did this and subsequently had a meeting with Mr Clancy at his home in Dublin. It appears that Mr Clancy was considerably more encouraging towards him in his advice in regard to the nuisance action than had been Mr Barr and Mr Sweeney and the Plaintiff was not unnaturally pleased with this. He suggested to Mr Carty of Messrs Kent Carty that the firm should instruct Mr Clancy in the matter. Mr Carty was quite unwilling to do so on the grounds that Mr Clancy was not a Counsel well known to his firm or regularly instructed by his firm and also, it appears, on the grounds that he did not feel that the action lay within Mr Clancy's area of expertise. On July 19 1984, the Plaintiff telephoned the Defendant at his home and had quite a lengthy discussion of his wish to instruct Mr Clancy and the unwillingness of Messrs Kent Carty and Company to do this. Without the knowledge of the Defendant, the Plaintiff tape recorded this telephone conversation by placing a small microphone next to the telephone. A transcript of this conversation was handed into Court. The evidence of the Plaintiff was that he frequently recorded telephone conversations between himself and his friends and other persons without informing them that such a recording was being made. The Plaintiff continued to insist that he wished to instruct Mr Clancy, and eventually his Solicitors reached an agreement with him that they would instruct Mr Clancy provided that this was on the Plaintiffs own responsibility and that they could also instruct Mr Eoghan Fitzsimons SC, who was the Counsel regularly instructed by them in this area of law. Both Counsel were accordingly instructed. 

The nuisance action was listed for 10 July, 1985. Approximately one week before the hearing, a consultation with Counsel was held. The Plaintiff had brought a lengthy video of the instances of nuisance with him to the consultation, which he wished to use as evidence at the trial. Following a fairly lengthy period of consultation and of playing the video, Mr Fitzsimons SC strongly advised that in his opinion the Plaintiff had no case whatsoever and he felt it was unfair to take the Plaintiffs money for appearing in the case. He therefore withdrew from the case and handed back his papers. At this stage Ms Pamela Madigan, Solicitor, who was an Assistant Solicitor fairly recently qualified in the offices of Kent Carty and Company, was handling the litigation. It was agreed that the Plaintiff would go ahead with Mr Clancy as Senior Counsel. The case came on for hearing on 10 July, 1985 and was at hearing before Costello J (as he then was) for two days. Apparently the first day when the Plaintiff gave evidence went very badly but things improved somewhat on the second day. At the beginning of the third day, Senior Counsel for the defendants, Mr Patrick Keane, approached Mr Clancy and suggested settlement negotiations. The Court gave time for the negotiations which lasted a good part of the day. Eventually agreement appears to have been reached and a settlement document was drafted. This document was handed into Court. It is accepted that it is in the handwriting of Mr Alan Mahon, who was then Junior Counsel for the Charleville Estate Company. It was signed by the parties and by their Solicitors. The Defendant, Mr Clancy, signed the settlement document as a witness. The Court was then informed that the matter had been settled and an Order that the settlement be received and filed was made. By consent of the parties the Court made no Order as to costs and granted liberty to either party to apply. There is no need to go into the detailed terms of the settlement, which included the erection of a gate at a certain point on the avenue. It is at issue between the parties as to what explanation of the terms of the settlement was given to the Plaintiff, by whom such explanation was given, and in what location such explanation was given. The Defendant states that he took a walk outside the Four Courts building with the Plaintiff and fully explained to him the nature of the settlement. The Plaintiff totally denies that this walk ever took place. At any rate, while the Plaintiff was agreeable to the settlement, he was doubtful if it would work and it is accepted that he enquired if he was able to go back to Court if the settlement did not work out properly. He was informed that he could return to Court. Again, there is an issue as to who gave him this piece of information. Ms Madigan's evidence to this Court was that she checked this query with the Defendant and that he told her that the Plaintiff could return to Court and she passed on this information to the Plaintiff. Apparently no one adverted to the distinction between "liberty to re-enter" and "liberty to apply", which was the term used in the settlement, and this was not explained to the Plaintiff. 

The Plaintiff continued to suffer problems from people visiting the estate. By 1987 this had reached a level where he instructed his Solicitors to go back to the Court and to re-enter his proceedings. By this stage, Mr Fergal Sweeney BL had given up his practice and become a Magistrate in Hong Kong, so that a new Junior was instructed. A notice of re-entry was drafted and filed. During the course of the drafting and filing of this notice of re-entry, a clerk in the office of the Plaintiffs Solicitors sent a memorandum dated 27 August, 1986 to another clerk in the office who was apparently named Verona asking her to lodge the notice of re-entry with the Book of Pleadings. There is a hand-written note on this memorandum which it is assumed was made by the said Verona, which reads:- 

"Doesn't state judgment was given to re-enter". 

This, the Plaintiff' claims, indicates that even an office clerk was able to understand that there was no liberty to re-enter the action. I accept that on an ordinary interpretation this note indicates that the clerk was concerned as to the possibility of re-entering the action. Approximately one week before the action was listed in February 1987, Mr Alan Mahon BL met Ms Pamela Madigan, Solicitor, by chance in the Four Courts and indicated to her that the Charleville Estate Company intended to defend the matter by arguing that while there was liberty to apply, there was no liberty to re-enter. Ms Madigan was worried about this matter and consulted with the Defendant and the new Junior Counsel. However, the Defendant advised that the re-entry matter should go ahead and expressed the opinion that there would be no great problem in re-entry. In the event, the Court (Costello J) held that it was not open to the Plaintiff to re-enter his case and that in fact the terms of the settlement had been properly fulfilled. The case was dismissed and an Order for costs was made against the Plaintiff. 

The Plaintiff was naturally very displeased at this outcome and it is clear from his evidence that, both at the time and now, he felt that someone had to be made responsible for the failure of his action. He had at all times had the practice of telephoning the Defendant at his home at frequent intervals in regard to his litigation and apparently he frequently recorded these conversations. On 25 May, 1987, he had a lengthy telephone conversation with the Defendant which, again, he recorded. At no time was the Defendant aware that his telephone conversations with the Plaintiff were being recorded. A transcript of this telephone conversation was handed into Court. During the course of the conversation, the matter of the settlement of 1985 and the advices given was discussed at some length as were the current difficulties of the Plaintiff with his then Solicitors. 

The Plaintiff subsequently sued his Solicitors, Messrs Kent Carty and Company, in negligence. The matter came before this Court (Carroll J) on 5 May, 1992 and was at hearing for three days. During the course of the trial, the Defendant, Mr Clancy, was called to give evidence by the defence in regard to the settlement negotiations and the advices given to the Plaintiff. The Defendant did not claim privilege but basically in his evidence accepted responsibility for the advice given to the Plaintiff in regard to the possible re-entry of his case before Costello J. During the course of his evidence, the Defendant described in some detail the walk which he said he took with the Plaintiff outside the Four Courts during which he explained the terms of the settlement to the Plaintiff. Judgment was given by Carroll J on 13 July, 1993. She dismissed the Plaintiffs claim largely on the grounds that the Plaintiffs Solicitors had acted on the advice of Senior Counsel and therefore could not be held to be negligent. The present Defendant's evidence at the trial, therefore, was crucial to the outcome of that action. The Plaintiff was very angry at the result and extremely indignant that the Defendant had given the evidence that he had. The Plaintiff asserted in his evidence to this Court that not alone was the Defendant's evidence a breach of confidentiality, but that it was factually incorrect. He interprets the Defendant's actions as "going over to the other side", betrayal, and a breach of trust. 

The Plaintiff appealed to the Supreme Court, where he appeared as a litigant in person. (He had been fully represented by Solicitor and Counsel in the original action before Carroll J). It appears that his chief argument to the Supreme Court was that the evidence of the Defendant was a breach of confidentiality. The Supreme Court dismissed the appeal, judgment being given on behalf of the Court by Lynch J on 27 January, 1998. I will refer to this judgment in more detail at a later stage. In the meantime, the Plaintiff had complained to the Bar Council about the action of the Defendant in giving evidence in the negligence action. The matter was referred to the Barristers Professional Conduct Tribunal in October 1994. Following considerable correspondence, an oral hearing was held on 20 March, 1995. A decision of the Tribunal was issued on 24 April, 1995 in which it was held that the Defendant was in breach of a number of Articles of the Code of Conduct of the Bar of Ireland. In summary these dealt with the matters of confidentiality and privilege and with the prohibition on accepting instructions direct from a client without the intervention of an instructing solicitor. The Tribunal subsequently decided to admonish the Defendant in regard to each of these breaches of the Code. The matter was appealed to the Barristers Professional Conduct Appeals Board which on 21 November, 1995 issued a decision upholding both the findings of the Tribunal and the penalty fixed by it. 

The Plaintiff issued the present proceedings on 18 October, 1995. 

In opening his case to this Court, the Plaintiff made clear that he had brought two sets of proceedings to the European Court of Human Rights in connection with the history of his litigation before the Courts in this jurisdiction. It should be noted that the Plaintiffs litigation has included other matters in which the Defendant played no part. Apparently these proceedings are at an advanced stage. The Plaintiff candidly informed me that in the instant proceedings he was largely concerned with exhausting all the domestic remedies available to him before proceeding with his litigation before the European Court of Human Rights. Be that as it may, he put forward his case before me with determination and passion. Since the Plaintiff is clearly a highly educated man who has made some study of the law and who also has had very considerable experience of previous litigation, I did not feel that he was at nearly so great a disadvantage vis-a-vis Counsel for the Defendant as are many personal litigants. As is usual, this Court made allowances for the fact that he was not legally represented. 

THE PLAINTIFF'S CASE 

While the Plaintiffs Plenary Summons and Statement of Claim are worded in a somewhat unorthodox manner, it is clear that his accusations against the Defendant can be subsumed under three main headings as follows:- 

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

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

3. The Plaintiff claims that 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. 

As regards the first matter, the Plaintiff points out that the Defendant, as his Senior Counsel, was bound by a duty of confidentiality to him and that, in any case, the matter of his advices to the Plaintiff was covered by Lawyer/client privilege. Not only did the Defendant give evidence of these matters before Carroll J but he did so willingly and without any protest as to confidentiality or as to privilege. In so doing the Defendant was in breach of Article 3.4 (a) and (c) and Article 4.17 of the Code of Conduct of the Bar of Ireland. The Plaintiff also described a number of occasions on which the Defendant took instructions directly from him or gave him advices directly without the presence of or instructions of a Solicitor and alleges that in so doing the Defendant was also in breach of Article 3.8 of the Code of Conduct. 

The Plaintiff stressed the unusual nature of the relationship between himself and the Defendant whereby the Defendant treated him with kindness and as a friend rather than merely as a client. He had visited the Defendant at his home and frequently consulted him by telephoning him at his home. The Defendant had visited him at Tullamore and had negotiated on his behalf with the Landlords. He had paid for the Defendant and his wife to go to the United States to make contact with a Real-Estate Agent in an effort to sell the lease to the castle. According to the Plaintiff he had come to rely and depend very greatly on the Defendant and their relationship went beyond that of a Lawyer and client and became fiduciary in nature. In this context the Plaintiff drew the attention of the Court to the judgement of the Supreme Court of Canada in the case of Hodginson v Simms [1994] 3 RCS 377 in which the nature of a fiduciary relationship is very fully discussed. The Plaintiff relied on this case. 

As regards the second main allegation made by the Plaintiff against the Defendant -- the giving of untrue evidence before Carroll J by arrangement with the Defendants in that case -- the Plaintiff firstly in his own evidence contradicts the evidence which the Defendant gave before the Court in 1992. In dealing with the settlement negotiations which took place on 12 July 1985 the Defendant in his evidence gave a lengthy description of the settlement negotiations and in the course of this, as set out in the transcript of the trial, he stated:- 

I think it's only right to say during this time that this settlement was being drawn up the actual writing of it. I took Mr McMullen outside the door of these Four Courts, I walked him all the way up along the side of the Liffey and I explained the situation to him. I walked him back again and before going in the door we walked back yet again to the corner up here and back again and to the area outside Court 6 and Mr McMullen asked me several questions about this. 

He then went on to deal with Mr McMullen's questions in regard to the possibility of re-entering his case before the Court. The Plaintiff vehemently denies that this walk outside the Four Courts ever took place or that the Defendant explained the terms of the settlement to him in that way. He also denies that it was the Defendant who mistakenly assured him that the case could be re-entered under the terms of the settlement. According to the Plaintiff it was Ms Madigan, Solicitor, who explained the terms of the settlement to him as he sat with her outside the Court and that it was Ms Madigan who assured him that the case could be re-entered. Ms Madigan in her evidence before this Court, and indeed in her evidence before Carroll J, accepted that it was she who reassured Mr McMullen that his case could be re-entered but said that she did so because she had specifically raised the question with the Defendant and that he had assured her that that was the position. 

In support of his allegation the Plaintiff referred to the transcript of his telephone conversation with the Defendant on 25 May 1987 which he had recorded. In that conversation the Defendant had quite forcefully stated that he was not even shown the agreement at the time of the settlement and appeared to hold Ms Madigan responsible for the failure to distinguish between liberty to re-enter and liberty to apply. The Plaintiff also drew attention to inconsistencies between the Defendant's evidence at the 1992 trial, his statements on the telephone to the Plaintiff, and his submissions to the Bar Disciplinary Tribunal at the time of the hearing of the Plaintiffs complaint. From this he deduces that the Plaintiff was deliberately lying in his evidence to Ms Justice Carroll. He goes further in alleging that this was done by arrangement in order to "get Kent Carty off the hook" in the negligence action. The Plaintiff produced a letter from Messrs Giles Kennedy and Company Solicitors, who acted for Messrs Kent Carty and Company in the negligence action, inviting the Defendant to a pre-trial consultation on the morning of the trial of the negligence action. He contrasted this with the statement made by the Defendant to the Bar Disciplinary Tribunal that no-one troubled to invite him to a consultation before that trial. However, it should be pointed out that in their oral evidence before me both Hugh Carty Solicitor and Pamela Madigan Solicitor (who were called as witnesses by the Plaintiff) denied that the Defendant was present at a pre-trial consultation and completely denied that they had made any arrangement with the Defendant in regard to his evidence or indeed that they had had any contact with him in the period before the Plaintiffs negligence action. 

As regards the third leg of the Plaintiffs case, the Plaintiff claims that firstly the failure of the Defendant to alert him to the distinction between liberty to re-enter and liberty to apply and secondly the Defendant's encouragement of him to bring proceedings to re-enter the case meant that he had to pay the full costs of both sides in the re-entry proceedings -- a not inconsiderable sum. The Plaintiff also seems to be arguing that it was wrong in principal to settle the original nuisance action. The settlement turned out to be ineffective and a failure, while the Plaintiff feels that by relying on the letters written to him by the Hutton Burey family prior to the signing of the original lease he could have succeeded in his original nuisance action. 

THE DEFENCE Senior Counsel for the Defendant, Mr Brady, did not call any evidence before this Court. He based the defence on a number of principles of law on which he made submissions. He explained to the Court that in making these submissions he was in the first place applying for a direction from the Court. However, if the Court was unwilling to grant a direction, the Court could take his submissions as being his general submissions on behalf of the Defendant. At this point I should say that it seemed to me that I should not grant a direction. I would prefer to accept the second alternative put forward by Mr Brady. Having heard his submissions on behalf of the Defendant I then heard the reply of the Plaintiff to those submissions. 

Mr Brady firstly submitted that no action could lie against the Defendant on account of the evidence he had given in the negligence action. For reasons of public policy there had always in the common law been immunity from suit in regard to the giving of evidence in Court. Even where it was clear that perjured evidence had been given, which was not the case here, perjury was a criminal offence and should be dealt with through the criminal law. He relied on the case of Hargreaves v Bretherton [1958] 3 All ER 122. In that case the Plaintiff pleaded that the First Defendant had falsely and maliciously and without justification or excuse committed perjury at the Plaintiffs trial on charges of criminal offences and that as a result the Plaintiff had been convicted and sentenced to eight years preventive detention. It was held that an action did not lie at the suit of a person who alleged that he had been damnified by a witness having given false evidence against him at a trial before a Court of justice. In his judgment Lord Goddard refers to the history of this principle going back to the time of Queen Elizabeth I and King James I and having been established in a judgment of Lord Mansfield in 1772. The learned Lord Goddard held that it was a matter of public policy that witnesses should be able to give evidence freely in Court without fear of subsequent suit. He referred to the judgment of the Earl of Halsbury LC in Watson v McEwan [1905] AC 480 at page 486: 

"The broad proposition I entertain no doubt about, and it seems to me to be the only question that properly arises here; as to the immunity of a witness for evidence given in a Court of justice, it is too late to argue that as if it were doubtful. By complete authority, including the authority of this house it has been decided that the privilege of a witness, the immunity from responsibility in an action when evidence is being given by him in a Court of justice is too well established now to be shaken. Practically I may say that in my view it is absolutely unarguable -- it is settled law and cannot be doubted. The remedy against the witness who has given evidence which is false and injurious to another is to indict him for perjury; that for very obvious reasons, the conduct of legal procedure by Courts of justice,' with the necessity of compelling witnesses to attend, involves as well as the necessities of the administration of justice the immunity of witnesses from actions being brought against them in respect 0/evidence they have given. So far the matter, I think, is too plain for argument." 

Mr Brady also referred to the case of Marrinan v Vibart [1962] 3 All ER 380 where the general principles of immunity from suit in regard to evidence given in Court are well set out. In that case Sellers LJ helpfully surveys earlier cases on the point and at page 383 quotes an Australian case -- Cabassi v Vila [1940] 64 CLR 130 as follows:- 

'Actions against witnesses for defamation have failed and so have actions analogous to actions for malicious prosecution, which Sir William Brett MR thought were brought 'in despair' (Munster v Lambe [1883] 11 QBD, 602) and now we have an action against witnesses for conspiracy to give, adduce and procure false evidence justified by the proposition taken from Sorrell v Smith All ER 1 that a combination of a set of persons or a conspiracy for the purpose of injuring another followed by actual injury is actionable. But it does not matter whether the action is framed as an action for defamation or as an action analogous to an action for malicious prosecution or for deceit or, as in this instance, for combining or conspiring together for the purpose of injuring another; the rule of law is that no action lies against witnesses in respect of evidence prepared given adduced or procured by them in the course of legal proceedings. This protects witnesses and others not for their benefit, but for a higher interest, namely the advancement of public justice." 

The judgment of Sellers LJ was concurred in by Wilmar LJ and by Diplock LJ who both also gave judgments. 

Counsel for the Defendant accepted that the Defendant had not claimed privilege or confidentiality but had willingly given evidence at the trial. However he submitted that it must have been clear to the Plaintiff from the wording and nature of the defence filed by Messrs Kent Carty and Company in the action that they would be calling the Defendant as a witness and would be relying on his evidence. Mr Brady drew attention to the fact that the Plaintiff had fully raised this point before the Supreme Court in his appeal against the decision of Carroll J and that the point had been fully dealt with by Lynch J in the judgment of the Court. At page 9 of the judgment under the heading Conclusions, the learned Lynch J stated:- 

"As I have said the Appellant's main submission to this Court was that Senior Counsel in giving evidence in the trial before Carroll J was in breach of the Appellant's privilege of confidentiality regarding the disclosure of communications between Lawyer and client and the Appellant also contends that Counsel was in breach of the Code of Conduct for the Bar of Ireland. This Court is concerned with the law regarding the disclosure of confidential communications between Lawyer and client and not with rules of professional ethics laid down in the Code of Conduct for the Bar of Ireland. 

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 expressed. When a client sues a 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 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 impliedly waives the privilege of confidentiality. For example, the client may give evidence that he was advised by the Solicitor A B C and that he should therefore settle this case but that as matters turned out A B C was wrong and that he should not in fact have settled the case, whereas the Solicitor may wish to give evidence that both he and Counsel advised the client X Y Z and that in those circumstances the client should settle. 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 implied that he waived his privilege of confidentiality. The same considerations apply in favour of the Barrister if he is sued by the client but where the Solicitor alone is sued can the Barrister give evidence of what he advised the client and also of what he advised the Solicitor regarding the settlement? It is in issue whether a client was advised A B C or X Y Z and clearly the Barrister if called by either party may and can be compelled to give evidence as to his advices to the client whether A B C or X Y Z and likewise as to his advices to the Solicitor as that is relevant also to the issue as to whether the Solicitor was or was not negligent. 

In this case therefore Senior Counsel had asked the learned Judge as to whether or not he was precluded from giving evidence by the Appellant's privilege of confidentiality when called as a witness on behalf of the Respondent. The correct ruling in law would be that the Appellant had impliedly waived such privilege and that Senior Counsel was accordingly bound to give evidence in answer to such questions as might be put to him relevant to the matters in issue between the Appellant and the Respondents. I have little doubt that Counsel Mr O'Tuathail who appeared for the Appellant in the High Court fully appreciated that that was the legal position and therefore did not raise any objection to Mr Clancy giving evidence when called by the Defendants as a witness. It follows that the Appellant's submission that Counsel should not have given evidence in the High Court is misconceived and is not a valid ground of appeal." 

Mr Brady also accepted that the Defendant had transgressed against the Code of Conduct of the Bar of Ireland as had been found by the Barrister's Professional Conduct Tribunal. However, the Bar Code of Conduct was not the law of the land. There was nothing illegal in, for example, a client dealing directly with a Barrister. Mr Brady submitted that a dispute in regard to a Professional code of conduct was not a justiciable matter and referred in this context to the case of Cox v Green [1966] 1 All ER 268. That case dealt with the Code of Conduct of the Central Ethical Committee of the British Medical Association. 

The Court held that the dispute between the parties was a dispute in relation to professional ethics, not one concerning legal rights, and was not justiciable. The Court therefore did not have jurisdiction to make a declaratory judgment in the matter. 

Counsel for the Defendant argued that there was no evidence whatsoever before the Court which would establish any sort of conspiracy or arrangement between the Defendant and Messrs Kent Carty and Company in regard to the Defendant's evidence. 

Both Mr Carty and Ms Madigan, who had been called by the Plaintiff, had given firm evidence to the contrary. The Plaintiff described them as "hostile witnesses". This was not so as that term was understood in the normal context. They were merely witnesses who gave answers which the Plaintiff did not like. Since they were his witnesses he was bound by their answers. 

Mr Brady made, a number of submissions in regard to the third aspect of the Plaintiffs case. Firstly he referred to the general immunity of a Barrister from suit in regard to the conduct of his case in Court. While he accepted that this should be interpreted narrowly it covered settlement negotiations in the course of a trial. On this point he referred to Halsbury Vol 3 at paragraph 529 where it is stated:- 

"The immunity is an exception to the general principle of liability for negligence and is not to be given any wider application than is absolutely necessary. It is not confined, however, to what is done in Court but extends to pre-trial work which is so intimately connected with the conduct of the case in Court that it can fairly be said to be a preliminary decision affecting the way in which the case is to be conducted when it comes to hearing. The immunity may in some circumstances extend to drafting pleadings and advising on evidence, if the connection between that work and the conduct of the case in Court is sufficiently close. In a criminal case it covers advice as to the Defendant's plea; and in a civil case it covers the settlement of an action by compromise out of Court." 

He also submitted that any action against Mr Clancy arising out of his conduct of the case in 1985 was statute barred, as was any claim arising out of the re-entry in 1987. Further he submitted that there was no evidence before the Court to show that the Plaintiff had suffered any actual loss or damage by reason of the outcome of the nuisance action. Again he pointed out that this point had been raised specifically by Lynch J in the judgment of the Supreme Court. At page 14 of the judgment the learned Supreme Court Judge stated:- 

"Assuming a finding of negligence against the Respondents on the basis that they should have but failed to provide a clause in the settlement of the proceedings against the Charleville Estate before Costello J entitling the Appellant to re-enter and continue the action if the settlement did not work out to his satisfaction. In order to prove any loss or damage resulting from any such failure, the Appellant would have to prove that he would probably have succeeded in the re-entered action and obtained at least a significant portion of the relief claimed in it so as to be entitled to an award of costs against the Charleville Estate. If it appeared more probable that he would have lost the re-entered and continued action then the failure to provide for the right to re-enter and continue the action has not caused the Appellant any loss or damage. On the contrary it would have saved him from having to pay the full recoverable if it was established by credible evidence before Carroll J as a matter of probability that if it had been possible to re-enter and continue the action before Costello J the Appellant would have been successful in such proceedings. No such evidence was adduced before Carroll J. On the contrary any evidence adduced relating to the prospects of success or failure of those proceedings before Costello J indicated that failure was much more likely than success. In those circumstances even if negligence had been established regarding the terms of the settlement in not providing that the action could be re-entered and continued before Costello J if the settlement did not work out to the Appellant's satisfaction no loss has been proved to have flowed from such omission and the proceedings before Carroll J would therefore fall to be dismissed in any event." 

CONCLUSIONS 

To begin with I should say that I accept that there is no cogent evidence whatever before the Court which would establish that the Defendant entered into an arrangement or conspiracy with Messrs Kent Carty or their Solicitors in regard to the evidence he gave in the negligence action. Certainly his evidence was helpful to Messrs Kent Carty and was unhelpful to the Plaintiff. It is clear that he was in fact invited to a pre-trial consultation. This may have slipped his mind at the time of the Bar Counsel investigation when he told the Disciplinary Tribunal that he was not invited to a consultation. On the balance of probabilities I conclude that he did not attend any such consultation although he was invited to do so. 

On the evidence before this Court it is clear that there are inconsistencies between the evidence given by the Defendant at the trial in 1992 and the statements which he made at other times and in particular during his telephone conversation with the Plaintiff in May 1987. A number of these may have arisen from failures of memory. Few witnesses have perfect recall of events over a period of some years. Other inconsistencies, I feel, arose from what might be described as a over enthusiastic desire to please and to encourage the person to whom the Defendant was speaking, or at other times an over enthusiastic desire to defend himself. I would not accept the Plaintiffs conclusion that the Defendant was engaging in a deliberate campaign of lies. However, it seems to me that I am not required to adjudicate on the truth or otherwise on the various contested statements, since I accept on the authority of the cases opened to me that there is an overwhelming public policy argument for maintaining the common law rule that a witness is immune from suit in regard to the evidence which he gives in Court. 

As far as breach of confidentiality is concerned I accept that the Defendant should have at least raised the issue of privilege and confidentiality when called upon to give evidence before Carroll J. However I would have no difficulty in accepting the analysis of the position set out by Lynch J in his judgment and would emphasise his reference to the fact that the Plaintiffs experienced and able Counsel Mr O'Tuathail did not raise this point at the time. 

Again it is clear that the Defendant did breach the Bar Code of Conduct. I am sure that at this point he deeply regrets his failure to keep to the rule of having no direct contact with the client without the instructions of his Solicitor. A professional Code of Conduct such as this is not legally enforceable, and disputes referring purely to the Code are not justiceable by the Courts. In any case the Plaintiff has taken his remedy under the Code by means of his successful complaint to the Disciplinary Tribunal. In his reply the Plaintiff referred at length to the provisions of the English Code of Conduct and its enforceability; this however is in the main irrelevant in this jurisdiction. I note that here again Lynch J refers to the matter of the Bar Code of Conduct by saying that the Court was concerned with the law regarding the disclosure of confidential communications and not with the rules of professional ethics as laid down in the Code of Conduct for the Bar of Ireland. Quite apart from the English authority opened to me by Mr Brady I feel that I am bound by the opinion of the Supreme Court as expressed in the judgement of Lynch J. 

As regards the third issue, I would accept that claims of negligence arising out of the proceedings in 1985 and 1987 are statute barred. Even if that were not so, there is no clear evidence that would lead me to believe that the Plaintiff would have received an award of damages and an Order for costs either if the proceedings had been continued to a conclusion in 1985 or if they had been re-entered and fought in 1987. The Plaintiff handed into Court the letters he claimed that he could have relied upon in the action. These were letters that passed between him and members of the Hutton Bury family prior to the signing of the lease in 1972. It did not seem to me on reading the letters that these were in any way conclusive or even strong evidence to support a contention that the Landlords undertook to end the practice of allowing relatively free access to the Charleville Estate by local people. The strongest letter is an undated one written in or about Easter 1972, it appears, by Mrs Hutton Bury to the Plaintiff when he was suffering from an illness. In this letter it is stated: 

"Bill has not paid in the cheques till he hears from me and we will cancel your hotel bookings and do our best at KEEPING PEOPLE OUT OVER THE EASTER and otherwise look forward to when you recover enough to come and see to things again." 

The Plaintiff asserts that this indicates the Hutton Burys' intention to exclude people from the estate as a whole. It is open to this interpretation but it is of course equally open to the interpretation that an effort would be made by the Hutton Burys to keep people out of the castle itself and the portion of lands which it was proposed were to be leased to the Plaintiff. This is perhaps the more probable in that I understand on the evidence that the castle prior to 1972 had been vandalised from time to time and had fallen into considerable disrepair. 

As pointed out by Lynch J both Mr Barr SC (as he then was) and Mr Fitzsimons SC strongly advised that the Plaintiff had very little chance of success in the nuisance action. Their view was supported by that of Mr Sweeney, a junior experienced in that area of law, and by Messrs Kent Carty, the Plaintiffs Solicitors. In his own evidence he spoke of being "heartened" by the more encouraging approach of the Defendant which contrasted with the discouragement which he had received from all his other legal advisors. Even Mr Clancy, however, concluded that the limited settlement could be regarded as a successful outcome in the circumstances in 1985. 

On the balance of probabilities, therefore, I do not accept that the Plaintiff had a realistic chance of success in the nuisance action. He therefore did not suffer loss stemming from any negligent advice which may have been given to him at the time of the settlement by the Defendant. 

There remains the question of the existence of a fiduciary relationship between the Plaintiff and the Defendant. This was strongly canvassed by the Plaintiff in his submissions made at the conclusion of the case. In this submission he relied on the Canadian case of Hodgkinson v Simms [1994] 3 RCS 377, which dealt with the fiduciary relationship between a stock broker and his financial advisor on tax matters. The Court in both the majority judgements and the dissenting judgments deals at length with the nature of fiduciary relationship. At page 379 of the Report La Forest J states:- 

(2) can unilaterally exercise that discretion or power so as to effect the beneficiary's legal or practical interests, and 

(3) the beneficiary is peculiarly vulnerable to or at the mercy of the fiduciary holding the discretion or power. 

An objective criterion is necessary to identify the measure of confidence and trust sufficient to give rise to a fiduciary obligation in order to establish some degree of certainty. The cases suggest that the distinguishing characteristic between advice simpliciter and advice giving rise to a fiduciary duty is the ceding of one party of effective power to the other. The mutual conferring and acceptance of power to the knowledge of both parties creates the special and onerous obligation. Vulnerability, in this broad sense, may be seen as encompassing all three descriptive characteristics of the fiduciary relationship. It comports the notion, not only of weakness in the dependant party, but of a relationship in which one party is in the power of the other -- a relationship of dependency or implied dependency." 

The Plaintiff is his evidence paints a picture of himself as a vulnerable person in distress putting his faith and absolute trust in the Defendant who then betrayed him, as he expresses it in his statement of claim, with a Judas kiss. It seems to me that this rather touching picture has little relation to reality. From his evidence and demeanour the Plaintiff seems to me to be an educated, well informed and somewhat aggressive individual. He had instructed some five or six firms of Solicitors previous to Kent Carty and Company and had successfully sued at least two of them. I find it hard to accept as a 'power-dependency" and trusting relationship one where the Plaintiff from the very beginning was surreptitiously tape-recording all his telephone conversations with the Defendant. On the evidence of the tape-recording and transcripts handed into Court, the correspondence with the Bar Council Disciplinary Tribunal, and other documentary evidence, I consider that in some ways the Defendant seems to me the more psychologically vulnerable of the two. 

In general I would not accept the relationship between a Barrister instructed by a Solicitor and the client as a fiduciary relationship in the sense used by the Canadian Supreme Court. In particular on the facts of this case I do not consider that a fiduciary relationship existed between the Plaintiff and the Defendant. 

On the basis of the conclusions I have reached I will dismiss the Plaintiffs claim.