The High Court has dismissed Michael McMullen’s claim for declarations and damages against solicitor Giles J. Kennedy, finding no evidence that Kennedy pressured the late senior counsel Noel Clancy to give false or influenced evidence in earlier negligence proceedings.
In a judgment delivered on 6 February 2012, Mr Justice Birmingham found that Kennedy’s approach to Clancy in April 1989 was “clearly improper”. Kennedy had sought Clancy’s help in persuading McMullen to discontinue his negligence action against Kent Carty and Company. The proposed advantage was that Clancy might avoid being joined as a third party if the action was dropped.
The judge said the approach was compounded by Kennedy continuing the strategy after learning that Clancy had a professional relationship with McMullen in a separate personal injuries case. But the court distinguished that conduct from McMullen’s central allegation: that Kennedy had arranged or induced Clancy to give false evidence in the negligence action.
The dispute arose from a 1985 settlement of a nuisance action brought by McMullen against Charleville Estate Company, the landlord of a castle and land near Tullamore. After a 1987 attempt to return the case to court was refused, McMullen sued his former solicitors for professional negligence. That claim was dismissed by the High Court in 1992, and his appeal was unsuccessful. McMullen later sued Clancy; that claim was dismissed in 1999, and Clancy’s appeal was dismissed in 2005.
McMullen relied in part on a 1989 letter from Kennedy to underwriters. The judge said the letter showed an attempt to have Clancy persuade McMullen to discontinue, but did not support the allegation that Kennedy sought to dictate or influence Clancy’s evidence. Two other disclosed documents also did not support the alleged pressure. The court heard no direct evidence of later contact between Kennedy and Clancy, despite McMullen having indicated during an earlier appeal that he could produce evidence of such contact.
The judge accepted solicitor Pamela Madigan’s evidence that she sought Clancy’s advice during the 1985 settlement and relayed it to McMullen. He also found that the evidence Clancy gave in the negligence case was consistent with what would be expected from a truthful witness. On the balance of probabilities, he found no contact in which Kennedy pressured Clancy or influenced the content of his evidence.
The order dismissed McMullen’s claim for both declaratory relief and damages. It did not undo the earlier decisions concerning the settlement or the negligence action.