The Supreme Court has dismissed Michael McMullen’s appeal against the dismissal of his claim against solicitor Giles J. Kennedy, who practised as Giles J. Kennedy & Company Solicitors. The Court accepted that Kennedy’s 1989 approach to senior counsel Noel Clancy was improper, but held that McMullen had not proved it caused the consequences alleged.
McMullen claimed Kennedy used undue influence, incentives and coercion to enlist Clancy’s help in defending an earlier negligence action brought by McMullen against Kent Carty & Company Solicitors. He alleged that Kennedy’s conduct led Clancy to give evidence against him or to try to persuade him to drop that action.
The dispute arose from earlier proceedings concerning McMullen’s lease of Charleville Castle and about five acres in Tullamore, County Offaly. Those proceedings ended in a settlement. In 1987, the High Court refused McMullen’s application to return to the case, finding the settlement provided for “liberty to apply”, not “liberty to re-enter”.
In a letter to underwriters dated in the context of the defence of the Kent Carty claim, Kennedy described a 28 April 1989 conversation with Clancy. The letter said Kennedy had told Clancy that his client wished to join him in the proceedings, and that the “little chat” might give Clancy an incentive to dissuade McMullen. In the present case, the trial judge described the contact as clearly improper. Kennedy did not appeal that finding, so it stood.
The Supreme Court said the trial judge had found no evidence that Kennedy contacted Clancy again, that Clancy later approached McMullen to urge him to discontinue the Kent Carty action, or that Kennedy and Kent Carty had conspired. The judge also found Clancy’s evidence in the Kent Carty case truthful. McMullen had not appealed those findings. Applying the principles governing appeals from factual findings, the Supreme Court saw no basis to disturb them.
The Court said proof of improper conduct alone was insufficient: McMullen had to establish both cause and consequence. The evidence did not show that Kennedy’s approach caused Clancy to give dishonest evidence to McMullen’s detriment or to influence him to withdraw his claim. The Court also noted there was no evidence that McMullen would have achieved a better result even if the Charleville case had been allowed to return to court.
The appeal concerned the High Court’s dismissal of McMullen’s claim. The Supreme Court affirmed that judgment and dismissed the appeal. It had separately refused McMullen’s application to introduce further evidence and to have a witness cross-examined again.