The Supreme Court dismissed Marie O’Carroll’s appeal in a solicitor negligence case, concluding that she had not established that different advice would probably have changed what she did as her family faced severe financial difficulties and the prospect of losing its home.
In a judgment delivered on 12 April 2005, Mr Justice Kearns agreed with Mr Justice Hardiman’s reasoning and conclusion on negligence. He also concluded that the appeal should fail on causation grounds. His judgment addresses causation; it does not set out the full reasoning on negligence.
The case concerned advice from Paul F. Diamond, practising as Paul F. Diamond and Company Solicitors. The judgment considered whether O’Carroll would probably have acted differently if properly advised. Mr Justice Kearns said the court must assess what the claimant would have done in the circumstances, while guarding against hindsight influencing evidence given after the loss has occurred.
At trial, O’Carroll said she wanted an opportunity to speak with the Haydens, who were seeking money, and believed she might have negotiated instalments or more time to leave the family home. The trial judge found that she would probably have been unlikely to pursue her own financial interest in the home if doing so risked exposing her husband to criminal proceedings and damaging the family. That assessment included the possibility that the Haydens would seek court action and make a complaint to Gardaí. The Supreme Court noted there had been some preliminary communication with local Gardaí, but no finding that a prosecution was pending.
The trial judge also considered that O’Carroll might have received about £49,000 if she cooperated with a sale to the O’Sullivans, while a forced sale through the courts about two years later would probably have yielded less. The Supreme Court said the trial judge had weighed the competing considerations and was best placed to assess O’Carroll’s evidence. It declined to disturb his causation decision.
The family home sale was completed in July 1992. The judgment also noted that the family did not break up, at least until 1996, and that O’Carroll could have sought advice from another solicitor during the intervening period. The appeal was dismissed.