The Court of Appeal has dismissed cattle dealer Finbar Tolan's professional negligence appeal against solicitors who represented him in earlier proceedings against Connacht Gold.
Mr Justice Binchy upheld the High Court's finding that solicitor John Brady had discussed counsel's advice with Tolan on February 11, 2014, including a possible amendment to plead malicious falsehood against Connacht Gold. The High Court had accepted Brady's evidence that Tolan instructed him not to make the amendment because he wanted to preserve an imminent trial date.
Tolan disputed that account and said he had not attended Brady's office that day. The Court of Appeal found that contemporaneous emails and an office diary supported the High Court's conclusions. Those records included counsel's email referring to a planned meeting with Tolan that afternoon and correspondence with an actuary showing that instructions had been taken from him.
The court also rejected Tolan's argument that Brady should have revisited the amendment after the February 2014 trial date was adjourned. It upheld the High Court's finding that Tolan remained actively involved in directing his litigation and that the malicious falsehood option had effectively been put aside.
Binchy J went on to agree that the proposed claim against Connacht Gold would have had no realistic prospect of success. The High Court had found that statements made at Balla Mart could not amount to malicious falsehood because Tolan had told Connacht Gold he would withhold money he owed after being refused further credit.
The court also upheld findings that Tolan had not shown his business was solvent in August 2012 or that comments at Balla Mart caused other marts to withdraw credit, both of which undermined any claim for damages.
The appeal was dismissed in full. As the respondents were entirely successful, the court indicated they would ordinarily be entitled to their appeal costs, subject to any written submissions from Tolan seeking a different order.