Judgment: 2019-07-22 · Court archive

Court of Appeal dismisses quarry negligence appeal after only one partner appealed

The court held that a High Court order dismissing a joint partnership claim bound the non-appealing plaintiff as well as the appellant.

Court of Appeal · [2019] IECA 205

Who, what, where, when and why

Who
  • David Cole (Plaintiff)
  • Liam O’Mahony (Plaintiff)
  • Bernadette Cahill
What

The court held that a High Court order dismissing a joint partnership claim bound the non-appealing plaintiff as well as the appellant.

Where

No place detail is included in this summary.

When

Judgment:

Why

Reasons reported in the judgment

The Court of Appeal has dismissed David Cole’s appeal against the High Court’s dismissal of a claim alleging negligence and breach of contract over legal services for a quarry purchase. It held that the claim was brought jointly for a partnership and that the High Court’s final order against the second plaintiff also bound Cole, who alone appealed.

The Court of Appeal has dismissed David Cole’s appeal against the High Court’s dismissal of a claim alleging negligence and breach of contract over legal services for a quarry purchase. It held that the claim was brought jointly for a partnership and that the High Court’s final order against the second plaintiff also bound Cole, who alone appealed.

The case concerned a claim that solicitor Bernadette Cahill, trading as B.N. Cahill & Co., failed to make proper preliminary enquiries about the planning status of a quarry in County Waterford. The plaintiffs said they had engaged her in connection with their purchase of the quarry in 2006. They sought damages for alleged negligence and breach of contract.

The High Court dismissed the proceedings in July 2017, citing inordinate and inexcusable delay in starting and prosecuting the claim. The Court of Appeal judgment records that a motion to strike out had initially concerned incomplete discovery, and was later amended to include the delay ground. The plaintiffs argued that their delay was not culpable because they were awaiting documents from AIB. They also challenged the amendment, but the appeal did not formally include an appeal against that decision, so the Court of Appeal did not rule on that argument.

Justice Mary Baker, delivering the Court of Appeal’s judgment on 22 July 2019, considered a preliminary objection raised by the defendant: Liam O’Mahony, the second plaintiff, had not appealed, and the defendant argued that the order against him prevented Cole from pursuing the appeal on the same joint claim.

The court agreed. It concluded that the pleadings described a joint claim for legal services provided to the purchasers together, and did not establish separate duties owed to each plaintiff. The judgment said that, once O’Mahony’s dismissal became final, the joint cause of action could not be split so that Cole could continue alone. The court relied on principles concerning finality of judgments and the rule against multiple judgments on one joint contract.

The judgment also discussed whether a partnership claim should include all partners. It did not decide that a defect in the parties to a partnership claim would, by itself, justify striking out proceedings, describing that issue as one for another case. Instead, it held that any opportunity to reconstitute or amend this claim had passed once the High Court’s order became binding and conclusive. The appeal was dismissed on that basis; the Court of Appeal did not decide the underlying negligence allegations.

Read the original court judgment

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