The Supreme Court has left a long-running contract dispute to be heard by a judge alone, ruling that the pleadings did not establish a defamation claim carrying a right to jury trial. It set aside only the costs order made against the plaintiff in the High Court and sent the remaining issues back there for determination.
Kevin Tracey, a chartered engineer who represented himself, sued Michael Burton, Charles O’Connor, Burton & O’Connor Limited and FPQ Consulting Engineers over the termination of a contract for services. His claim included alleged financial loss, damage to his professional standing, distress and other losses. The Supreme Court judgment records that he said the written contract was finalised in February 2004 and that it was terminated in October that year.
The Court said the statement of claim did not plead defamatory words or a defamation cause of action. It described the main dispute as an alleged breach of contract and said the pleaded humiliation arose from staff allegedly watching as Tracey moved his belongings from the firm’s premises to his car. Tracey later submitted that words imputing unfitness for office had been spoken, but the Court noted those words were not in the pleadings. No motion to amend the claim to plead defamation had been brought in the High Court.
The appeal also concerned the High Court’s decision to proceed in Tracey’s absence on 6 December 2010. The High Court had vacated a jury trial notice, transferred the case from the Dublin Jury List to the Non-Jury List and awarded costs against him. The Supreme Court rejected allegations that the High Court judge was biased or acted improperly, finding that the judge had acted on the information available, including the absence of a comprehensive medical report requested for the hearing.
However, the Supreme Court said it had a residual concern about whether the costs order should stand given the circumstances that later emerged. It allowed the appeal on costs only, set that part of the High Court order aside and otherwise affirmed the transfer to a judge-alone hearing. It remitted the case to the High Court, which may consider preliminary issues, including which defendants are necessary parties, possible personal liability, whether a payment was accepted in full settlement, and proper quantification and documentation of claimed losses.
The judgment records that the defence alleged a cheque for €91,528.82 was sent to Tracey’s solicitors in September 2005 and cashed later that month. The Supreme Court did not determine whether any amount remains outstanding.