The High Court has allowed negligence and breach of contract claims by Alan Donoghue against his former solicitor, John Nash, to continue, ruling that they were not frivolous or vexatious. The court did not decide whether Donoghue would succeed at trial.
Mr Justice Max Barrett delivered the judgment on October 22, 2015, after Nash applied to strike out the claims under Order 19, Rule 28 of the Rules of the Superior Courts. The judge declined to do so, finding the pleadings did not necessarily fail.
The dispute arose from earlier proceedings after a car Donoghue sold to Mr McNamara was involved in a crash with a motorbike. The motorcyclist and his pillion passenger sued McNamara, who then joined Donoghue, alleging the car was deficient. Donoghue joined the car’s seller, Mr O’Boyle. Nash represented Donoghue and engaged senior and junior counsel. On counsel’s advice, Donoghue agreed to settle the claims against him in November 2009. The following June, he obtained judgment against O’Boyle, but the judgment says it did not appear he had recovered much, if any, money.
Donoghue began the present action in December 2014, alleging negligence and breach of contract. His original statement of claim, which he drafted himself while acting as a lay litigant, also included what appeared to be a personal injuries claim. At the hearing, Donoghue’s counsel accepted that the pleadings needed amendment to remove that claim. Counsel said Donoghue maintained his core allegation: that his legal advisers gave him bad advice when he settled the earlier proceedings.
Nash relied on a principle discussed in an earlier case, Millard and Kinsella v McMahon, concerning a solicitor who follows competent counsel’s advice. Donoghue argued that counsel’s work in advising on settlement was not advocacy and that no related immunity protected Nash. Justice Barrett said the negligence claim had real substance for the purpose of deciding the strike-out application, while making clear that its eventual outcome was for another court to decide. He also said the cited principle did not appear to assist Nash on the contract claims, which concerned allegations that money given to Nash as agent for one purpose was used for another.
The court did not rule on the parts of Nash’s application concerning the personal injuries claim, understanding that Donoghue would withdraw those claims if the action continued. The negligence and contract claims remain allegations, and the judgment did not determine their truth.