The Supreme Court has dismissed Dermot Tighe’s appeal against the rejection of his damages claim against his former solicitor, Joseph Burke, trading as McCartan & Burke Solicitors. The judgment, delivered by O’Donnell J. on 15 May 2012, concluded that the High Court’s findings against Tighe were open to the trial judge on the evidence.
Tighe’s claim arose from a judicial review concerning a proposed development of six apartments at Newtown, Enfield, County Kildare. He had argued that he obtained planning permission by default in March 2003 after Kildare County Council sought further information on his planning application. He claimed the value of the development, stated in his amended claim as €2.7612 million, as damages from Burke.
The judicial review was withdrawn the day before its scheduled hearing in January 2006, with no order as to costs. Tighe alleged that Burke’s defaults caused him to abandon a case that should have succeeded. The Supreme Court noted that Tighe was not arguing on appeal that the advice to settle was incorrect. It said the case’s prospects had been assessed by counsel as significantly below 20 per cent, and that the immediate reason for its withdrawal was that assessment together with the council’s offer not to seek costs.
The High Court dismissed Tighe’s negligence claim in July 2010 after hearing evidence from Tighe and Burke. On appeal, Tighe challenged findings concerning discovery, delays in filing replying affidavits and his allegation that a council officer had demanded a bribe. Burke contested the complaints.
The Supreme Court said the requested discovery had been sought and provided, and Tighe had identified no evidence of an omitted document. Although the replying affidavits were not filed within the four-week period set in June 2004 and were delivered in November 2005, the council had indicated it would not strenuously oppose a late filing application. The Court rejected the claim that the delay caused the judicial review to collapse.
On the bribery allegation, the Court noted that senior counsel had advised against including it in the judicial review. It found no basis to conclude that Burke’s failure to investigate it could have affected the case’s outcome.
The appeal concerned the High Court’s dismissal of the damages claim; the Supreme Court dismissed it and did not award damages to Tighe.