The Supreme Court dismissed Michael McMullen’s appeal against the dismissal of his claim against the estate of his former counsel, Noel Clancy. The judgment, delivered by Fennelly J on 15 March 2005, rejected the allegations pursued on appeal and refused to admit a letter that Mr McMullen said supported a conspiracy claim. The Court left all aspects of costs to be addressed after judgment.
The dispute arose from Mr McMullen’s 1985 settlement of an action concerning access to Charleville Castle near Tullamore. He had instructed that he should be able to return to court if the settlement did not work. But the written terms allowed only “liberty to apply”. In 1987, Costello J ruled that those terms did not allow the original action to be reopened.
Mr McMullen later sued his former solicitors, Kent Carty and Co, for negligence. Clancy gave evidence for the defence, accepted responsibility for the settlement wording and described advice he said he had given Mr McMullen. The claim against the solicitors failed. Mr McMullen’s later claim against Clancy’s estate alleged, among other things, breach of confidentiality and professional duties, false evidence and conspiracy. The Supreme Court said Mr McMullen had not pursued a negligence claim against Clancy over the settlement, and addressed the appeal on that basis.
Mr McMullen relied on a 1989 letter from the solicitors who represented Kent Carty and Co. It described an “unofficial without prejudice” conversation with Clancy and said the solicitors had suggested that their client might join him in the case, in an effort to encourage him to dissuade Mr McMullen from continuing. Fennelly J said that conduct, if as described, would be difficult to regard as anything less than improper. But the letter did not support Mr McMullen’s claim that Clancy and the solicitors had arranged for Clancy to give false evidence. The Court said the letter showed no involvement by Kent Carty and Co in such an arrangement and would not probably have an important influence on the case. It therefore refused to admit it as new evidence on appeal.
The Court held that professional conduct rules were not enforceable by the courts, though barristers owed clients a legal duty of confidentiality. It found no evidence that Clancy had disclosed confidential information beyond his evidence in the earlier case. The Court said Mr McMullen had implicitly waived relevant confidentiality by suing his solicitors over the settlement, so Clancy would have been required to answer questions about the settlement and advice.
The Court also rejected the fiduciary-duty claim and said there was no fraudulent concealment that would affect the limitation period. It dismissed the appeal. The separate appeal concerning costs was not addressed by counsel and remained for later consideration.