7 This poses a particular difficulty in this case. It is clear that the High Court judgment made a number of findings of primary fact, some of which were clearly based on the judge’s assessment of the credibility of the witnesses. In those circumstances the most skilled lawyer would have trouble in advancing a plausible argument on this appeal. It is worth recalling the observations of Henchy J. in Northern Bank Finance v Charlton [1979] IR 149, 192:
“In a civil case such as this where a tribunal of fact, be it a judge or a jury has decided a question of specific fact and the resolution of the question depended wholly or in substantial measure on the choice of one version of controverted oral testimony as against another, a court of appeal which is dependent on a written record of the oral evidence given at the trial will not normally reject that finding merely because an alternative version of the oral testimony seems more acceptable. The court of appeal will only set aside a finding of fact based on one version of the evidence when, on taking a conspectus of the evidence as a whole, oral and otherwise, it appears to the court that, notwithstanding the advantages which the tribunal of fact had in seeing and hearing witnesses, the version of the evidence which was acted on could not reasonably be correct.”
8 A second difficulty the appellant faces is of a more practical nature. In this case the court does not have any transcript of the evidence in the High Court or even an agreed note of it. Furthermore Mr. Tighe has submitted 95 pages of what he describes as exhibits referred to in his notice of appeal. It is only fair to say that these have been meticulously indexed by Mr. Tighe but they are manifestly incomplete. By way of example, only the last page of a 16 page opinion is included in the booklet. It is all the more difficult to form any view of the facts of this case from such a limited vantage point. Finally, it is to be observed that Mr. Tighe’s allegations of negligence and default against Mr. Burke were not supported by any expert witness, or indeed any other witness of fact.
9 Mr. Tighe’s approach to the case was to repeat the arguments made in the High Court. He has made a careful study of the papers he has obtained from Mr. Burke, presumably as part of a process of a disciplinary inquiry before the Law Society Disciplinary Tribunal, and he has listed all possible complaints about aspects of Mr. Burke’s performance. It is only fair to say that these matters are contested by Mr. Burke. However even taken at their high point, it is difficulty to see how, in the light of the findings made in the High Court, Mr. Tighe could succeed in his appeal. It appears that the heart of his complaint seems to be that he considers that his case collapsed not because of any inherent legal difficulty in his case but rather by reason of a number of failings he attributes to Mr. Burke which he described in his document entitled “Outline submissions for priority listing” in the following way:
1 Failure to seek to discovery advised by senior counsel;
2 The delay in filing replying affidavits within the four week period permitted by Quirke J. on the 18th June 2004; and
3 A failure to investigate his claim that a bribe had been demanded from him by an officer in Kildare County Council.
10 In each case the trial judge found against Mr. Tighe. In each case the conclusion was one which was clearly open to the trial judge on the evidence, and which it is only fair to say, appears to have been amply justified by even the limited selection of correspondence and fragments of documents put before this Court in the book of appeal.
11 In the case of the discovery sought, it is quite plain that discovery was not just sought but it was also provided. Indeed the schedule of the discovered documents is included at page 23 of Mr. Tighe’s book. While Mr. Tighe maintains that it is inadequate that the trial judge found on page 7 of his judgment that by May 2005 it was apparent that there were no further or additional documents. Mr. Tighe has not been able to point to any error in this reasoning or conclusion. In particular he was not able to produce any evidence of the existence of a document which he says was omitted from discovery.
12 The second issue is at the heart of the appeal. There is no doubt that the replying affidavits were not delivered within the four weeks of June 2004 as directed, and indeed were not in the event delivered until November of the following year. It is only fair to say that Mr. Burke gave an explanation for this in his evidence to the Solicitors Disciplinary Tribunal, an extract of which is contained at page 50 of the booklet. But it seems absolutely clear that it cannot be said that the passage of time involved in this process was, as Mr. Tighe put it, “the end of the road for his judicial review proceedings” or still less that it “caused the collapse of my case”. While it is true that it would have been necessary to bring an application for liberty to admit the affidavits at such a late stage, Kildare County Council had indicated by their letter of the 7th December 2005 and contained at page 55 of Mr. Tighe’s book, that they would not strenuously oppose the application to file the affidavits but would require until the 15th January 2006 to reply. In the event we know that these latter affidavits were delivered because in the first letter of the 16th January 2006 written by senior counsel, he both referred to the affidavits and analysed them. Indeed the documentation showed that drafts were sent by Kildare County Council by email on Friday the 13th of January. It is also plain from the correspondence from counsel of the 16th January 2006, and indeed Mr. Burke’s subsequent letter of the 25th January 2006, that the reason the case collapsed was the gloomy assessment of its prospects of success given by senior counsel, coupled with the offer by the County Council to allow the case to be withdrawn without seeking an order as to costs.
13 A third allegation is that Mr. Burke failed to investigate Mr. Tighe’s allegation of bribery. It is indeed difficult to see how this allegation could have been deployed to advantage in judicial review proceedings designed to show that, by simple passage of time, Mr. Tighe had obtained a default permission. However, in any event the trial judge held that two senior counsel had advised against including any reference to this allegation in judicial review application, and not only can that conclusion not be disturbed in this appeal, it should be said that it seems amply justified by the fragments of evidence submitted by Mr. Tighe in this respect. In the circumstances it is impossible to see how any blame could be attached to Mr. Burke, nor indeed is it possible to understand that any investigation by Mr. Burke of this allegation was warranted or how it could be said that the fact that it was not investigated by Mr. Burke could have had any impact on the outcome of the case.
14 In the circumstances Mr. Tighe’s appeal must be dismissed.
