The High Court has allowed Finbar Tolan to amend his claim against his former solicitors to add allegations that they negligently failed to follow counsel’s advice about pleading malicious falsehood in an earlier case. The amendments take effect only from the date the amended pleadings are delivered to the defendants, preserving any limitation defence they may have if the additions are treated as a fresh cause of action.
Mr Justice Barr said the application concerned further particulars of alleged negligence in the solicitors’ handling of Tolan’s litigation against Connaught Gold Co-Operative Society Limited. Counsel’s advice of proofs, dated 10 February 2014, recommended considering a malicious falsehood claim over statements allegedly made at Balla Mart in August 2012. Tolan says he did not receive the advice until February 2022. His former solicitor, John Brady, says it was discussed with him in 2014 and that Tolan wanted the case to proceed without delay.
The judge said it was not appropriate at this interlocutory stage, on affidavit evidence, to decide when Tolan learned of the advice or what instructions he gave. He found he could not conclude from the evidence that Tolan definitely knew its contents before the time he says he received it. That did not determine the dispute for trial.
The defendants argued that the proposed amendments introduced a new, potentially time-barred claim and that Tolan had known the relevant information earlier. Barr was not persuaded that the additions amounted to a new cause of action: Tolan had consistently sued over the solicitors’ alleged negligence in handling the same Connaught Gold litigation. He added that any limitation prejudice could be addressed by making the amendments effective only upon delivery.
The court also noted that Tolan had obtained an expert report supporting his allegations after receiving the advice of proofs. Barr said it was in the interests of justice to allow the amendments so the case could be presented fully at trial. He stressed that this was not a finding that the negligence allegations had substance, or a determination of when the advice was received or what instructions were given.
The amendments do not revive the other grounds in Tolan’s claim, which had already been dismissed by the High Court and that dismissal affirmed on appeal. The parties were given two weeks to submit written arguments on the final order and costs. The matter was listed for mention on 31 March 2023.