The High Court has allowed Martin Murray to amend his negligence case against solicitors to pursue a limited claim for mental distress during the week before his 1999 criminal trial. The court struck out claims relating to the conduct and outcome of that trial as an abuse of process, but left the limitation issue for the trial judge to decide.
In a judgment delivered on 23 November 2010, Ms Justice Clark said the permitted claim concerned Mr Murray’s allegation that he did not know who would represent him at the forthcoming trial after learning his expected counsel would be unavailable. He claims he was left in an uncertain position and suffered worry and stress. The judge said deciding whether those allegations establish professional negligence or breach of contract was not part of the application before her.
Mr Murray’s original case sought damages for alleged negligence and breach of duty in the preparation and conduct of his criminal trial, as well as breach of contract. He had been convicted by a jury at Naas Circuit Court in February 1999 and sentenced to seven years in prison. His appeals against conviction and sentence failed.
He later sought to have the conviction set aside and a retrial ordered, arguing that inadequate representation had caused a miscarriage of justice. That application also failed. In the present proceedings, Justice Clark held that claims relating to the trial and verdict amounted to an impermissible collateral challenge to the Court of Criminal Appeal’s decision. She reiterated that those parts of the case were struck out.
The judge rejected the proposed attempt to frame the limited distress claim as a constitutional tort, saying any cause of action, if available, lay in the recognised tort of professional negligence. She permitted an amendment confined to alleged “loss and damage in the week of the 3rd to the 10th February 1999” arising from the defendants’ alleged negligence and breach of duty, with particulars concerning worry and stress while facing trial without knowing who his counsel would be.
The defendants had argued that the claim was time-barred and opposed the amendment. Justice Clark declined to strike out the remaining proceedings on that basis, saying doing so would remove Mr Murray’s opportunity to pursue the limited grievance. The limitation question is to be determined by the trial judge.
The amendment was allowed with costs, while the costs of the amendment application were awarded to the defendants. The judge made no costs order on the first strike-out application.