The High Court has refused to dismiss a man’s entire professional negligence action against his former wife’s solicitor, while striking out several parts of his claim and directing that two related cases be heard simultaneously.
In a judgment delivered on 20 December 2017, Mr Justice David Keane said the remaining claim over an alleged delay in paying €50,000 could proceed to trial. He said only that it was arguable that the solicitor had assumed a duty of care in relation to money held in his client account. The court made no finding that the solicitor was negligent or liable.
The anonymised plaintiff, referred to in the judgment as “the husband”, alleged that the payment was due under a judicial separation agreement and a Circuit Court order. The solicitor denied the claims. The parties disputed whether payment depended on the husband first meeting other obligations under the agreement. The judgment said it appeared the husband had since received the €50,000, but continued the actions seeking damages including interest and consequential loss.
The husband also alleged negligence and misrepresentation concerning the solicitor’s conduct in settlement negotiations and in drafting the agreement and presenting the wife’s position to the court. The judge struck out those negligence pleas, finding they fell within the general rule that a solicitor acting in adversarial litigation does not owe a duty of care to the opposing party. He also struck out fraud and fraudulent misrepresentation pleas that were not adequately particularised, including allegations concerning negotiations, the agreement and payment.
The court declined to strike out the action as a whole, and rejected the argument that the remaining negligence claim should be dismissed because the husband had not obtained an expert report before starting proceedings. The judge said there was material capable of supporting reasonable grounds, including a letter from the solicitors who had represented the husband.
The husband’s applications concerning alleged breaches of the “in camera” rule were not determined on their merits. The judge directed that the related application against the wife’s solicitor, including the request to disallow costs, be adjourned to the trial. He refused the discovery application because it had not followed the prescribed procedure, but dismissed it without prejudice to a prompt, compliant application later.
The judge refused to consolidate the two actions, finding no demonstrated substantial saving of expense and noting the risk of further delay and confusion. He ordered that evidence in the actions against the husband’s solicitors and the wife’s solicitor be heard at the same time. The parties were to address the court on the form of the final order.