The Court of Appeal has allowed Martin Small’s appeal only to a limited extent, permitting him to pursue a narrowed set of claims against solicitor Conleth Harlow over events between August and December 2007.
The court set aside the basis on which the High Court had struck out the 2014 proceedings against Harlow. It held that the rule in Henderson v Henderson did not apply: an earlier summons issued against Harlow in 2012 had never been served or renewed, and no litigation against him had been prosecuted. The Court of Appeal also rejected the argument that Harlow could rely on compromises reached in 2013 in separate proceedings involving the bank and Helen Raftery. Harlow had not been a party to those proceedings.
Small’s case arose from business partnerships with Fionan Raftery, who died in 2011. The partnerships developed property in Knockcroghery and held land on Golf Links Road in Roscommon. Small alleged that Harlow, who acted for the partnership but was not Small’s personal solicitor, breached duties to him in connection with partnership loans and the use of loan funds. Those allegations have not been established.
The appeal concerned the High Court’s decision to dismiss the proceedings against Harlow. The Court of Appeal did not decide whether the remaining allegations are true or establish liability. It said the claims that remain arguable must be determined at trial on the evidence, and that its decision does not establish a prima facie case for Small.
The court directed that all claims based on collusion or conspiracy be struck out, regardless of when the alleged conduct occurred. It also dismissed claims concerning events before August 2007, finding they would amount to a collateral attack on the 2013 compromises. Small may proceed only with claims confined to events after 1 August 2007 and before the end of December 2007, limited to breach of contract, negligence and fraud, and subject to amending his statement of claim to remove other pleas and allegations implicating the bank, Fionan Raftery or Helen Raftery.
The court said no fraud claim against Harlow was stateable for events before August 2007, given when Small knew or could have discovered the relevant matters. It also left limitation arguments available to be pleaded as a defence. The judgment did not determine the merits of the surviving claims.