The High Court has dismissed a negligence and misrepresentation proceeding against solicitors, finding that the plaintiff’s delay was inordinate and inexcusable and that a solicitor accused in the case could no longer give reliable evidence.
Mr Justice Meenan delivered the judgment on 22 September 2021. The case concerned lands in County Galway that the plaintiff said he had bought in September 2004. He alleged, among other things, that the solicitors failed to comply with an undertaking, resolve boundary issues or ensure he was registered as owner of the entire site. He also alleged negligent or fraudulent misrepresentation concerning the certificate of title. These were claims, not findings on the underlying conduct.
The solicitors applied to have the claim against them dismissed for want of prosecution and under the court’s inherent jurisdiction. They also argued that the proceedings were an abuse of process because no supporting expert report had been obtained before the case began. The plaintiff issued a plenary summons in February 2014. After the solicitors delivered a defence in March 2015, the parties exchanged correspondence about discovery. The plaintiff instructed solicitors in March 2016. In April that year, the solicitors’ lawyers said they would not oppose appropriate amendments to the claim once a supporting expert report was obtained. Reports were later prepared in June 2019 and January 2020.
The judge found that nearly three years passed after April 2016 before the plaintiff’s solicitors complained about discovery, and that the delay was both inordinate and inexcusable. He considered the plaintiff’s explanations, including difficulty finding a solicitor and health and family problems, but found they did not excuse the delay.
In weighing the balance of justice, the judge relied on medical evidence that Robert Potter Cogan, one of the solicitors named in the claim, was no longer fit to attend court or give reliable evidence because of serious medical and cognitive problems. The plaintiff argued the case could be decided from documents. The judge rejected that submission, saying a professional person sued for negligence should have an opportunity to explain and interpret relevant documents. He also found the solicitors had not materially contributed to the delay.
The court dismissed the proceeding as against the solicitors. It did not determine the underlying negligence or misrepresentation allegations in this ruling. The judge said he would hear submissions on the required order and costs, to be filed within 14 days and limited to 1,000 words.