The High Court has refused a group of fishermen’s application to add the Solicitors Mutual Defence Fund (SMDF) as a co-defendant in their negligence proceedings against former solicitors Casey & Company. President of the High Court Kearns delivered the judgment on 6 November 2015, concluding that the application could not be granted and was premature.
The fishermen, who are members of the Irish Tuna Association, say their former solicitors failed to bring compensation proceedings against the State in time after an EU ban on driftnet fishing for albacore tuna took effect on 1 January 2002. Their State proceedings, begun in December 2007 by a new firm, remain pending. The State defendants have pleaded the Statute of Limitations, laches and delay. An earlier attempt to strike out the fishermen’s claim was unsuccessful in 2011.
In separate negligence proceedings against Casey & Company, the fishermen allege that delay and inactivity caused them to lose a compensation claim. The SMDF had instructed solicitors to act for the former solicitors, but those solicitors were permitted to come off the record in February 2013 after the fund declined to indemnify its members in the case. The negligence proceedings had not reached finality.
The fishermen argued that the SMDF’s role under the statutory professional indemnity insurance scheme, and its conduct in withdrawing indemnity, supported joining it to the case. They also contended that the fund should explain its decision and that the statutory scheme could give clients rights against an insurer. The SMDF opposed joinder, saying there was no direct cause of action against it and no contractual relationship with the fishermen.
Kearns held that the State claim had to be resolved first. If the fishermen succeeded against the State, there would be no need for the negligence case; if the State claim failed on its merits, the negligence claim would also lack a basis. Only if a viable compensation claim was lost because delay allowed a limitation defence to succeed might liability of the former solicitors arise.
The court said the SMDF was not necessary to determine whether the former solicitors had been negligent. The fishermen remained free to pursue that case to judgment. The judgment also rejected the argument that the solicitors’ insurance regulations established a direct cause of action for the clients against the SMDF. Any issue about the fund’s decision to withdraw indemnity, including the estoppel argument, was a matter between the former solicitors and the fund, the court said.
The ruling concerned only the application to join the SMDF. It did not determine the State proceedings or the negligence claim.