The High Court has struck out in full a civil action by Eric John Somers against solicitor William J. Kennedy over Kennedy’s conduct as prosecutor in a Circuit Court criminal appeal and sentencing hearing.
In a judgment delivered on 21 January 2022, Ms Justice Nuala Butler ruled that the pleaded complaints did not disclose a reasonable or justiciable cause of action. She also found that the matters complained of concerned a lawyer’s conduct of legal proceedings and were covered by absolute privilege. The court did not proceed to a full trial of the civil claim.
Somers had sought damages, including exemplary and aggravated damages, alleging breaches of prosecutorial duties and professional guidelines, unfairness, defamation and misconduct. He also alleged that Kennedy mishandled questioning during the criminal appeal and sentencing, raised an improper objection to Somers’s request for access to the court recording, and sought to influence the Legal Services Regulatory Authority’s consideration of a complaint against him. Kennedy denied the allegations.
The civil action arose from a 2019 appeal against Somers’s District Court conviction for trespass under section 13 of the Criminal Justice (Public Order) Act 1994. The High Court judgment records that the DPP later conceded Somers’s judicial review challenge, decided not to pursue a retrial, and the criminal proceedings were formally dismissed. Somers therefore no longer had a conviction arising from those matters.
Justice Butler said that deciding allegations of professional misconduct against solicitors and barristers had been assigned by law to the Legal Services Regulatory Authority. The High Court could review that body’s decisions through judicial review, but did not have concurrent first-instance jurisdiction to decide the misconduct allegations in this civil action. She also held that lawyers’ actions connected with legal proceedings were protected by absolute privilege.
The judge considered the transcripts and said they did not support Somers’s account of deliberate fabrication or improper questioning. She noted that an objection to access to the digital audio recording had been rejected by the Circuit Court judge, who granted access despite accepting the grounds of the objection. She also said the criminal appeal judge had not treated the disputed undertaking as a proven fact in reaching the conviction.
The court concluded that the action was fundamentally misconceived and bound to fail, and ordered the proceedings struck out in full. The judgment did not determine the merits of the complaint then before the LSRA.