The Supreme Court has dismissed general practitioner James M. Barry’s appeal against the dismissal of his action against the Medical Defence Union (MDU), affirming the High Court order. The case concerned whether the MDU had to indemnify him for civil claims and Medical Council disciplinary proceedings, and whether its handling of his requests for help was unlawful.
In a judgment delivered on 16 June 2005, Mr Justice Geoghegan said the MDU’s articles gave members a right to have requests for assistance considered, but left any grant of assistance or indemnity to the organisation’s discretion. The court rejected Barry’s arguments that the articles contained an implied insurance-like right to indemnity or that a separate collateral contract had been proved. The evidence did not establish such a separate contract, the judgment said.
The court then considered whether the MDU had acted unlawfully by declining assistance. The judgment said the MDU had repeatedly sought Barry’s personal instructions, details of the individual claims and full cooperation. It had also asked for information about related criminal and disciplinary proceedings. The MDU said it could not properly consider a request without that material.
In April 1997, the MDU’s board offered advice and legal assistance subject to conditions, including full cooperation and disclosure to lawyers appointed by the MDU. It declined to cover costs already incurred. The board later considered the request again and, in a letter dated 1 August 2001, communicated its decision not to assist with the case.
The Supreme Court found that the MDU’s refusal “to date” was lawful because its reasonable requirements had not been met. It noted that the MDU remained prepared to consider applications for discretionary help if those requirements were satisfied. The court also rejected the claim that consideration during the parties’ litigation was tainted by apparent bias, and found no breach of a contractual duty of fairness.
The court said a delay by the MDU in replying to one letter was at fault but did not affect the appeal. It concluded that Barry was not entitled to the declarations or damages sought, dismissed the appeal and affirmed the High Court’s dismissal of the action.