The Court of Appeal has dismissed Charles McGuinness’s appeal against the striking out of his negligence and breach of contract proceedings against Wilkie and Flanagan Solicitors. The court said the claim had been delayed for years and that the resulting prejudice meant the balance of justice firmly favoured dismissal.
In a judgment delivered on 13 January 2020, Mr Justice Noonan said the High Court had finally determined the substantive matter on 3 May 2019, although a separate written judgment in McGuinness’s case was issued on 30 May. An affidavit sworn by McGuinness on 28 May had been permitted only for the High Court costs hearing. The Court of Appeal ruled it was inadmissible on appeal because it post-dated the decision and this court had not granted leave to introduce it as new evidence.
The court also said an appeal is a review of alleged error in the High Court, not a fresh hearing. It refused to entertain new arguments and evidence that had not been presented below or included in the appeal grounds and submissions.
The underlying claim concerned a proposed purchase of 50 acres in County Cavan. McGuinness alleged that he and three others had agreed to form a partnership to buy development land. The solicitors’ firm denied that a partnership agreement existed but accepted that the parties had jointly agreed to purchase the land. The land was contracted for €11 million in September 2005, subject to planning permission for a proposed development of 433 houses and two crèches. Cavan County Council refused the application in April 2006.
The judgment records disputed allegations about the transfer of one participant’s interest and advice to withdraw a planning appeal. The project was not realised. Ulster Bank later obtained a judgment against McGuinness for more than €13.6 million. These matters were background to the appeal; the Court of Appeal was deciding whether the claim had been properly struck out for delay, not the merits of the underlying allegations.
The plenary summons was issued in March 2011, but service was not attempted until almost a year later. The defendant first learned the details of the case when the statement of claim was delivered in March 2013. After disputes over discovery, the defendant’s motion to dismiss was issued in June 2018. The appeal court noted periods of delay in service, closing pleadings and discovery, followed by two years in which the claim was not progressed. It found the delays inordinate and inexcusable.
The court also accepted that the delay caused substantial prejudice. An auctioneer who the defence said was an important witness had died; an architect had retired and moved to Spain, and the firm could not obtain contact details; and three retired bank officials were unlikely to have reliable recollections. Noonan J said the central disputes would require oral evidence about events many years earlier, making a fair trial manifestly no longer possible or, at minimum, tipping the balance of justice towards dismissal.
The appeal was dismissed. Edwards and Costello JJ agreed with Noonan J’s judgment.