Monday 8 November 2010

Complaint of negligence against solicitor dismissed

Tighe -v- Burke trading as McCartan and Burke solicitors. Neutral citation (2010) IEHC 280. High Court. Judgment was delivered on July 16th, 2010, by Mr Justice Nicholas Kearns.


The solicitor Joseph Burke was not negligent in dealing with judicial review proceedings brought by the plaintiff, Joseph Tighe, against Kildare County Council in relation to a planning application.


The plaintiff, Mr Tighe, was a lay litigant who brought a negligence claim against his former solicitor, Mr Burke, arising out of his application for planning permission for the development of a building in Newtown, Enfield, Co Kildare, in 2002.

In February 2003, the council stated that it required new newspaper notices. The plaintiff came to the view that a default permission under the 2000 Planning Act had come into being on March 18th, 2003, and instructed his then solicitors, Beauchamps, to institute judicial review proceedings.

In March 2004, he changed his solicitor to the defendant. Michael Collins SC had been retained by Beauchamps on the plaintiff’s behalf and continued to be briefed by Mr Burke.

The plaintiff alleged at a meeting with him and Mr Burke that an official in Kildare County Council had sought a bribe to facilitate the granting of the planning application.

Mr Tighe was advised by Mr Collins and Mr Burke to seek to deal with this allegation, which could not be proved, either by means of a complaint to the council or through the Mahon tribunal, rather than make it a part of the judicial review application.

One of Mr Tighe’s complaints against Mr Burke was that he “did nothing” about this allegation.

Mr Justice Kearns said he found this allegation to be entirely groundless.

Mr Tighe became aware that James Connolly SC was the author of a study of an aspect of planning law he considered relevant to his case, and he had a consultation with him.

He made two allegations arising out of this: that Mr Burke had sent Mr Connolly’s brief to the solicitors for Kildare County Council and that a covering letter from Mr Connolly outlining his apprehension that the case might fail was never sent to him by Mr Burke.

Mr Burke vehemently denied both allegations.

There were also issues concerning seeking discovery of documents from Kildare County Council, which were eventually furnished by the council in December 2004.

Towards the end of 2005, it became necessary to file the critical affidavits for the judicial review.

These were prepared by junior counsel and by the plaintiff himself. He claimed they were not delivered to the other side, which was strenuously denied by the defendant.

The hearing date was fixed for January 17th, 2006.

As the date approached, it became clear that neither Mr Collins nor Mr Connolly would be available, and Eamonn Gilligan SC was briefed.

At a consultation on January 13th he indicated to the plaintiff he did not think the chances of winning the case were better than 20 per cent.

On the same date, replying affidavits were filed by Kildare County Council.

Mr Tighe’s consultant engineer indicated to the plaintiff that he had nothing to add in response to these affidavits.

The plaintiff withdrew his case on foot of the advice given by Mr Gilligan.

He then took a complaint of negligence against his solicitor, alleging that he had failed to obtain his planning file from the council; that he did nothing about the alleged seeking of a bribe by a council official; that he failed to have his case ready for trial; that he had wrongly sent the brief intended for Mr Connolly to the solicitors for Kildare County Council; that he had wrongly advised him to withdraw the planning application, and that he was guilty of undue delay relating to discovery.

Mr Burke gave evidence that Beauchamps had been very negative about the likely outcome of the case when he took it over.

Kildare County Council contended that he acknowledged that he had been somewhat lacking in formulating questions raised by counsel, and in clarifying whether discovery had been complete, but said he believed he had progressed matters in an efficient and professional manner.


Mr Justice Kearns said he found the plaintiff to be a person “who was totally obsessed with every detail of his dealings with the defendant, Kildare County Council and the various counsel who had advised in this case . . .

“In many respects his replies to questions in cross-examination were evasive, argumentative and off point.”

He said as the case progressed, he found it abundantly clear that all affidavits brought into being on the plaintiff’s behalf had been furnished to the other side.

He rejected any complaint that Mr Burke had failed to take up any planning files from the council, pointing out that the plaintiff was able to do so himself, and had done so.

While there was some delay about the preparation of discovery and confirmation that it was complete, this did not amount in law to negligence or anything close to it.

He found that Mr Burke behaved with complete propriety in relation to the advice given to Mr Tighe before the hearing began, and rejected all the complaints made by the plaintiff.

Irish Times

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