The High Court has dismissed Dermot Tighe’s negligence claim against his former solicitor, Joseph Burke, over Burke’s conduct of judicial review proceedings concerning a planning application to Kildare County Council.
In a judgment delivered on 16 July 2010, President of the High Court Kearns rejected all of Tighe’s complaints. The court found that Burke had not negligently handled the case and that Tighe chose to withdraw it voluntarily, knowing the issues and the uncertainty over its prospects.
Tighe had sought planning permission in 2002 for a two-storey-over-basement development at Newtown, Enfield, County Kildare. He believed the council’s handling of the application had led to a default permission under planning legislation. Judicial review proceedings seeking declaratory relief were launched in August 2003. Tighe retained Burke in March 2004 after becoming dissatisfied with the services of his earlier solicitors.
Tighe later alleged that Burke failed to obtain planning files, did nothing about an alleged request for a bribe by a council official, was not ready for trial, sent counsel’s brief to the council’s solicitors, wrongly advised him to withdraw his planning application and delayed discovery.
The judgment records that the alleged bribe was unsupported by independent evidence. The judge accepted that counsel and Burke advised handling the allegation separately from the judicial review. Kearns also found that Burke had not sent James Connolly SC’s brief to the council’s solicitors, and accepted Burke’s evidence that he had given Tighe Connolly’s covering letter, which warned of the risk the case might fail.
The court found that affidavits prepared for Tighe had been delivered to the council’s legal advisers, although outside a court-set time limit. The council accepted the late delivery on condition that the hearing date remained and that it could file affidavits in response. The judge found that Tighe’s engineer, Conor Furey, had said he could add nothing further in a replying affidavit.
Tighe withdrew the judicial review after senior counsel Eamon Galligan advised that the prospects of success were no better than 20 per cent. The judgment says Galligan was satisfied the case could proceed to a hearing if Tighe wished. Kearns found there had been no improper pressure to settle and no negligent advice about the proceedings or their likely outcome.
The judge estimated delays in preparing and confirming discovery at four or five months, but found they did not amount to negligence. He rejected the complaints and dismissed Tighe’s negligence claim. The judgment does not determine the merits of the planning application or the judicial review, which had been withdrawn.