The High Court has struck out a conspiracy claim brought by two businessmen against a barrister, but refused the barrister’s application to dismiss their professional negligence claim. The court did not decide whether the negligence allegations were true or would succeed at trial.
The plaintiffs’ action arose from a 2007 settlement of a dispute with a neighbouring property owner, Mr Payne, over a right of way. The settlement provided for Mr Payne to surrender the existing right of way and for the plaintiffs to grant a replacement route. It also required the plaintiffs to pay €275,000 described as damages and €40,000 towards Mr Payne’s legal costs.
The plaintiffs allege that the barrister, who represented them in negotiating and drafting the settlement, negligently advised them to accept terms that did not secure a final commitment to extinguish the existing right of way in return for payment. They say the dispute over the replacement route prevented their development from proceeding and led to the loss of their investment and expected profits. These are allegations, not findings in this application.
The barrister sought to have the entire claim dismissed or parts of it struck out. On the conspiracy claim, the plaintiffs alleged that he acted with others to procure the unlawful avoidance of capital gains tax by Mr Payne. The court found that, even on the pleaded case, the alleged object was not to injure the plaintiffs and there was no causal link between the alleged conspiracy and their claimed loss. It therefore held that this part of the claim was bound to fail and ordered it struck out.
The court rejected the argument that the professional negligence claim was bound to fail. It considered it at least arguable that the settlement left the plaintiffs owing money without a final, binding agreement by Mr Payne to surrender the existing right of way. The €275,000 dispute had not been finally determined in separate proceedings, which had been adjourned generally. A €40,000 judgment for Mr Payne’s legal costs remained in place, with only part paid.
The judge also declined to decide on this application whether the development losses could be attributed to the barrister’s alleged negligence. That issue, and the strength of the plaintiffs’ case, would require assessment of evidence at trial. The court refused the application to strike out the balance of the claim and said it would hear further submissions on the final form of its order.