Gaeilge

Title:	McMullen -v- Giles J. Kennedy p/a Giles J. Kennedy & Co. Solicitors
Neutral Citation:	[2012] IESC 56
Supreme Court Record Number:	085/2012
High Court Record Number:	2000 1628 P
Date of Delivery:	11/15/2012
Court:	Supreme Court
Composition of Court:	Denham C.J., O'Donnell J., MacMenamin J.
Judgment by:	Denham C.J.
Status:	Approved
Result:	Refuse Motion. Costs to Resp.
Judgments by Link to Judgment Concurring Denham C.J. Link O'Donnell J., MacMenamin J.

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Denham C.J.
O’Donnell J.
MacMenamin J.

Between/

Judgment delivered on the 15th November, 2012, by Denham C.J.

1. Michael Colin Geoffrey McMullen, the plaintiff/appellant, referred to as “the appellant”, has brought a notice of motion before the Court seeking, inter alia,:-

(i) Admission of new evidence in his appeal from the decision of the High Court (Birmingham J.) dated the 6th February, 2012;

(ii) An order that Ms. Pamela Madigan, a solicitor of Kent Carty, be further examined; and

(iii) An extension of time to file books of appeal and certificate of readiness as ordered on the 8th June, 2012, when the Court granted a stay on the order of the High Court conditional on the appellant filing books of appeal and certificate of readiness within four weeks i.e. by the 6th July, 2012.

2. The present proceedings arise from earlier litigation concerning negligence suits against the appellant’s legal representatives regarding a failure of terms of settlement in a nuisance action against another party to include liberty to re-enter the matter. The appellant’s claim, contained in a plenary summons dated the 10th February, 2000, against Giles J. Kennedy, practising under the style and title of Giles J. Kennedy & Co., Solicitor, the defendant/respondent, referred to as “the respondent”, is that:-

“[…] on or about the 28th day of April 1989 the [respondent] in the full knowledge of the implications and consequences of his actions did use and employ undue influence, improper incentives and coercion to induce Mr. Noel A.E. Clancy S.C. to collaborate and undertake to give Evidence without reference to Privilege in the Action entitled Michael Colin Geoffrey McMullen, Plaintiff, v. Hugh A. Carty & Others, Practising as Kent Carty and Co; of 48, Parnell Square Dublin 1, to the complete detriment of his Lay Client’s position in general and particular; which conspiracy arranged by [the respondent] was successful in defeating a well set out and just Complaint […]”.

The appellant filed an affidavit which was deposed on the 2nd July, 2012. In this affidavit the appellant referred to facts relating to this lengthy litigation:-

(i) He referred to the nuisance action being settled before Costello J. in July, 1985, with a consent for parties to have liberty to apply;

(ii) he stated that an application was made to re-enter the matter before Costello J. in 1987, and was struck out;

(iii) he referred to Ms. Madigan’s evidence for the respondent before Birmingham J. in January, 2012; he deposed:-

“Ms. Madigan’s evidence was that immediately after Mr. Justice Costello refused to re-enter the action, senior counsel admitted in her presence and in the presence of your Deponent, that he was entirely responsible for this debacle. She stated that your Deponent was fully aware of where full responsibility rested”;

(iv) the appellant stated that this version had at all times been disputed by him. The appellant addressed the giving of evidence by Ms. Madigan in the High Court in January, 2012.

(v) He deposed that over the years he has accumulated thousands of documents in many crates and boxes. When in 1994 he finally obtained his files from Kent Carty he wrote to complain that they were in a terrible mess. This is his Exhibit B;

(vi) He returned again to the issue of his senior counsel Mr. Clancy S.C. stating:


“Notwithstanding, in the search for records which would rebut the unhelpful conclusions of Mr. Justice Birmingham, a slender document emerged showing that on March 3rd 1987, just 3½ weeks post the failed attempt by Kent Carty to re-enter the nuisance action, for which they have fully and repeatedly blamed Mr. Clancy and by extension your Deponent for instructing Mr. Clancy, whom Ms. Madigan ‘did not trust’; ‘Pam’ completed the said Requisition Document for the issue of a cheque in favour of Mr. Clancy in the sum of IR £2,000 (two thousand). Exhibit ‘C’”;

(vii) the deponent referred to the 1986 ill fated notice of re-entry;

(viii) reference was then made to Mr. Clancy’s visit to America; correspondence over this visit is Exhibit “D”;

(ix) the appellant then stated:


“Upon receipt of the files from Kent Carty under the terms of the Insurance Policy, this Defendant, Giles J. Kennedy would have been fully aware that he needed the Co-operation of Mr Clancy to verify the Defence which was filed for Kent Carty (The Action McMullen v. Kent Carty.1988, 6218.P). Mr Kennedy took full advantage of the funds given to Mr. Clancy in March 1987 as the cheque requisition was contained in the papers, as it was clear that Mr Clancy's loyalty had been compromised and the £2000, together with the trip to America would go on to ensure that your Deponent's Negligence Claims could be defeated, with Mr. Clancy's extra-ordinary Evidence which extended to the abortive 'Notice of Re-Entry' (11th February 1987), for which it is not disputed that Kent Carty sought no fees, setting himself against his Client, your Deponent herein. The repercussions from this have never ceased.”

He continued:-

“At the time when your Deponent’s action in Negligence against Kent Carty came to Trial in 1992/3, Messrs Collins Crowley who had carriage of the Claims, were not aware of the payment to Mr Clancy requisitioned on March 3rd 1987 by Ms Madigan.

However, this Defendant, Giles J. Kennedy had been handed your Deponent files containing the said Requisition and as stated these files were obtained by the Plaintiff only after Litigation.

On May 2nd 1988, Mr Justice Costello made an Order for Kent Carty to produce a 'Bill' and the only relevant page leaves the whole of February 1987 without a single entry in the Matter of the Nuisance Action against the Charleville Estate Company and the pursuant entry for Mr Clancy in March 1987 leaves a blank after the pound sign. These copy Documents (the order is a poor copy) are referred to as Exhibit ‘E’ signed herewith.”

He submitted:-

“THEREFORE, I, Michael McMullen submit the absolute necessity of the inclusion of the Exhibits attached with this Affidavit as compelling Evidence that Matters were not as portrayed to Mr Justice Birmingham in January 2012 and that the arrangement with Mr Clancy began in March 1987 when he took the money, even against his own assurances to his Lay Client, and once his position was compromised provided this Defendant leverage which he extended to secure defeat of your Deponent's well founded and proper Actions.”

3. An affidavit was sworn by Orlaith Byrne on behalf of the respondent, on the 9th July, 2012, and was before the Court on this motion.

4. The appellant delivered a replying affidavit on the 24th July, 2012, which I have also considered carefully.

5. On the 6th July, 2012, the appellant asked for an adjournment because of the formation of the Court. The matter was adjourned to the 13th July, 2012, when the appellant informed the Court that he had received the respondent’s replying affidavit the previous day, and that he needed time to reply. The matter was adjourned to the 27th July, 2012. Owing to the formation of the Court on that date the matter was adjourned to the 12th October, 2012.

6. This matter was heard on the 12th October, 2012.

7. The appellant seeks liberty to admit documents, which he argued constituted new evidence. These documents are the exhibits to the appellant’s affidavit as outlined above and include:-

a) correspondence between the appellant and Kent Carty Solicitors and dated between June and July, 1987;

b) correspondence between the appellant and Kent Carty Solicitors and the appellant and Collins Crowley dated February and June 1994;

c) a cheque requisition document dated the 3rd March, 1987;

d) correspondence to and from Noel Clancy, S.C. and dated between July 1985 and March 1987;

e) an order of Costello J. in proceedings entitled Kent Carty and Company v. Michael Colin Geoffrey McMullen, record number 1988/152/SP made on the 2nd May, 1988, requiring a bill of costs to be served on the defendant; and, a one page extract of a bill of costs prepared on behalf of Kent Carty Solicitors.

As stated previously, the appellant also seeks an order permitting the further examination of Ms Pamela Madigan under Order 58 rule 8 of the Rules of the Superior Courts.

8. The respondent disputed that any of the documentation sought was new evidence. It was submitted that the documentation was either correspondence, of which the appellant always had possession, or that it was documentation that was discovered by him in 1990 in the proceedings, Michael Colin Geoffrey McMullen, plaintiff v. Kent Carty Solicitors, defendants, record number 1988/6218P. Thus, this documentation was always available to the appellant, it was submitted, for the purposes of the hearing before Birmingham J. in January, 2012, and thus it was not “new evidence”, according to law.

9. It was deposed in the affidavit of Orlaith Byrne, sworn on the 9th July, 2012, that Exhibits A, B and D contain correspondence between the appellant and his former solicitors, Kent Carty Solicitors, or with his senior counsel, Noel Clancy, and thus the appellant has always had access to it from the time of writing or receipt.

Therefore it was submitted, that it is not “new evidence” in accordance with the test set in Murphy v. Minister for Defence [1991] 2 IR 161.

10. Orlaith Byrne further deposed at paragraph 5:-

“In 1990 discovery of documentation was made in the proceedings of 'Michael Colin Geoffrey McMullen, Plaintiff v Kent Carty Solicitors, Defendants' by Kent Carty solicitors. The following documentation referred to by the [appellant] as 'new evidence' was discovered to him by Kent Carty solicitors:

a) Exhibit A:

Letter Michael McMullen to Kent Carty Solicitors dated 23/06/87 (contained in the Supplemental Affidavit of Discovery dated 20/04/90, Item 4)

Letter Michael McMullen to Kent Carty Solicitors dated 13/07/87 (contained in the Affidavit of Discovery dated, 15/01/90, Item 16)

b) Exhibit C:

Cheque Requisition dated 03/03/87

(contained in the Supplemental Affidavit of Discovery dated 10/12/90, Item 24)

c) Exhibit D:

Letter Michael McMullen to Kent Carty Solicitors dated 16/07/85 (contained in the Supplemental Affidavit of Discovery dated 20/04/90, Item 59)

Letter Noel Clancy to Michael McMullen dated 16/03/87

(contained in the Supplemental Affidavit of Discovery dated 10/12/90, Item 22).”

Thus, it was submitted, this is not “new evidence” according to law.

11. Ms. Byrne pointed out that the appellant acknowledged that he received his files and papers from his former solicitors, Kent Carty, in 1994. She further pointed out that he did not make reference to discovery documentation received by him from Kent Carty Solicitors in 1990. Thus, she deposed, the appellant had the discovery documents, including the requisition document, prior to and for the purposes of the hearing before Carroll J. in 1992 and was aware of them.

12. While I have considered the whole affidavit, I refer specifically also to the reference to the USA trip of Mr. Clancy. Ms. Byrne deposed at paragraph 8:-

“I beg to refer to paragraph (j) of the [appellant] wherein he makes reference to a trip to the USA undertaken on his behalf by his then Senior Counsel, Noel Clancy. The fact of this trip by Mr. Clancy in the summer of 1987 was opened to the learned High Court Judge and he was fully aware of same and the fact that the [appellant] ultimately paid for it. In this regard I beg to refer to an extract from the transcript of the evidence, Day 3, Pages 18 - 21, upon which I have marked the letters and number “OB 3” and signed my prior to the swearing hereof. By way of background, during the course of the hearing the [appellant] read out a transcript of a conversation between himself and Mr. Noel Clancy in the summer of 1987. During the course of that conversation there were a number of references to Mr. Clancy's trip to America, and the [appellant] clarified the position for the trial judge at Page 21, lines 6 - 9. The letter of the 16th February 1987 and the reference therein to professional fees being "nil" appears to be a reference to the fact that Mr. Clancy was not charging for the work in acting as agent for the [appellant] in America with a view to selling his interest in Charleville Castle. Accordingly, this documentation could not have had any influence on the learned Judge or made any difference to the result of the case and fails to satisfy the second criteria of the test in Murphy v. Minister for Defence.”

13. I refer also to the statement of Ms. Byrne at paragraph 9:-

“I beg to refer to exhibit "C" in the [appellant’s] grounding Affidavit namely a Requisition for the payment of fees due to Noel Clancy in the amount of IR£2,000 dated the 3rd March 1987. The [respondent] was instructed by Insurers to Kent Carty on 2nd November 1987 following receipt of an accusatory letter dated 23rd September 1987 from James O'Connor & Co., Solicitors then acting on behalf of the [appellant] to Kent Carty. This document thus cannot and does not support the claim made by the [appellant] in these proceedings against the [respondent] that he made an improper approach to Noel Clancy in April 1989. By this requisition document the [appellant] seeks to make an allegation against a non party, Ms Madigan, that she authorised without his consent a cheque in the sum of IR£2,000 to Noel Clancy; further it is noted that this authorisation was made on 3rd March 1987 and therefore at a time some 6 months prior to the issue of any accusatory letter and 8 months prior to the engagement of the Respondent by the insurers for Kent Carty. Accordingly this documentation also fails to satisfy the second criteria of the test in Murphy v. Minister for Defence.”

Oral Submissions
14. In oral submissions the appellant in person stated that he was 70 years old, and had been highly offended by what had happened. He submitted that he wished to have the exhibits admitted so as to give the full picture, of culpable intentional omission. It is clear that the appellant is deeply exercised by a payment of IR£2,000 of his money to Mr. Clancy in March, 1987, which he stated was without his knowledge or permission. He was also concerned about the notice to re-enter in 1987 and queried whether one could imagine any person who would then authorise payment of IR£2,000 to Mr. Clancy “as a reward for making a huge mistake”. He re-iterated that Mr. Clancy had been paid IR£2000 without his permission.

15. It is clear that this case, indeed the series of cases, has caused deep concern to the appellant. From his oral submissions it is clear that he is especially concerned by the payment to Mr. Clancy S.C. This case has many tragic aspects. One of which is the deterioration of what appears once to have been a warm relationship between the appellant and Mr. Clancy. The fact that Mr. Clancy has died means he can give no further evidence on this matter.

16. The appellant in his oral submissions stressed the issue of the payment to Mr. Clancy in 1987. He made serious allegations against Mr. Clancy. He requested the reliefs set out in his notice of motion.

Law
17. Order 58, rule 8 of the Rules of the Superior Courts provide that the Supreme Court has full discretionary power to receive further evidence upon questions of fact. Such further evidence may be given without special leave from an appeal or order or in any case as to matters which have occurred after the date of the decision from which the appeal is brought. Otherwise, fresh evidence will be admitted on special grounds only and with special leave of this Court.

18. This is a court of appeal where the appeal is grounded on the hearing before the High Court. Thus, in general, new evidence is not permitted in this court, subject to the exception set out in Order 58, rule 8. However, new evidence is permitted where suppression of the evidence would be an injustice: Fitzgerald v. Kenny [1994] 2 I.L.R.M. 8. The legal principles which are relevant to analysing whether new evidence should be admitted on appeal to this Court were stated in Murphy v. Minister for Defence [1991] 2 I.R. 161. Finlay C.J. reviewed the principles set out by this Court in Lynagh v. Mackin [1970] I.R. 180, where this Court considered Order 58, rule 8 of the Rules of the Superior Courts and utilised the principles on the issue of fresh evidence that were set out by Denning L.J. in Ladd v. Marshall [1954] 1 W.L.R. 1489. Finlay C.J. stated in Murphy v. Minister for Defence at 164:

“I am accordingly satisfied that the principles applicable are as follows:-

1. The evidence sought to be adduced must have been in existence at the time of the trial and must have been such that it could not have been obtained with reasonable diligence for use at the trial;

2. The evidence must be such that if given it would probably have an important influence on the result of the case, though it need not be decisive;

3. The evidence must be such as is presumably to be believed or, in other words, it must be apparently credible, though it need not be incontrovertible.”

These principles have been applied in Smyth v. Tunney [1996] 1 I.L.R.M. 219; In re Greendale Developments Ltd. (In Liquidation) (No. 2) [1998] 1 I.R. 8; Allied Irish Coal Supplies Ltd. v. Powell Duffryn Intl. Fuels Ltd. [1998] 2 I.R. 519; and McGrath v. Irish Ispat Ltd. (in liquidation) 3 I.R. 261.

There are good reasons for the principles regarding the admission of new evidence, which was available at the time of the High Court trial, to this Court. Most recently, in Emerald Meats Ltd. v. Minister for Agriculture, Ireland and the Attorney General IESC 48, O’Donnell J. stated, at paragraph 36:-

“The rules on the admission of fresh evidence on an appeal are quite strict. This is as it should be. There are very few cases in which the losing side does not regret that different witnesses were called, evidence given or points made either in cross-examination or in submission. But a trial is not a laboratory experiment where one element can be substituted and all other elements maintained and a different outcome obtained. It is important that parties are aware of the finality of litigation, and bring forward their best case for adjudication. Cases develop organically and unpredictably. One of the benefits which litigation brings at some cost is certainty. A party may reasonably dispute the merits of a conclusion, but cannot doubt that it is a conclusion. The court must make its decision on the evidence and case advanced on the day, or in this case, over the 17 days. It is partly for this reason that the rules and practice of the courts go to such elaborate lengths to attempt to ensure that both sides are fairly apprised of what is in dispute and have an adequate opportunity to prepare for the litigation. It is also why appellate courts have developed rigorous tests on applications to admit fresh evidence. There are few cases which in hindsight could not be rerun with different witnesses, evidence, arguments, or advocates, but to consider that such a course is in the interests of justice is to engage in the delusion that endless litigation is a desirable rather than a tormented state.”

Decision
19. I have read carefully the papers filed on behalf of the appellant and the respondent and have had the benefit of oral submissions by the appellant and counsel for the respondent.

20. I apply the law to the facts of this case. Thus, the first test to be applied is whether the evidence sought to be adduced was in existence at the time of the trial, but could not have been discovered with the exercise of reasonable diligence.

21. I am satisfied that this test has not been met and so, according to law, is not new evidence. Rather, it is evidence that the appellant had prior to the hearing of the High Court in these proceedings. Indeed, the appellant did not seriously contest that he had this evidence. Consequently, the appellant fails on his motion on this first ground.

22. In addition, it is clear also that the documents are irrelevant to the appeal because the appellant’s claim, based on a plenary summons of the 10th February, 2000, is against the respondent in relation to alleged acts in April, 1989, and not the solicitors, Kent Carty, who had acted for the appellant at the time relevant to the drawing up of terms of settlement of the nuisance action.

23. The cheque requisition of the 3rd March, 1987, originated from Kent Carty and was disclosed to the appellant in previous litigation in 1990. Ms Madigan was a solicitor of Kent Carty and is now sought to be further examined in respect of the cheque requisition. The cheque was available to the appellant and was not relevant to these proceedings. Even assuming for a moment that the appellant’s allegation about the cheque was correct, it still fails both limbs of the Murphy test. Furthermore, it should be said that the appellant’s allegation about the cheque was precisely that – an allegation, it was not investigated at the trial, and cannot be an issue in this appeal between the parties.

24. In re Greendale Developments Ltd. (In Liquidation) (No. 2) [1998] 1 I.R. 8 at 30 to 31 Keane J. said:-

“Altogether apart from that consideration, it is clear that the documents exhibited with the first respondent's affidavit are not ‘new evidence’ to which the principles in Murphy v. Minister for Defence apply. ‘Evidence’ in that context connotes evidence of facts, relevant to the issues in the action, which would have had an important influence on the result and which was not available to the court of trial. The Court has been referred to no such evidence on this application. Assuming that some of these documents could have been used in the cross-examination of the liquidator or Mr. Burgess, in order to demonstrate alleged inconsistencies between their evidence and inferences allegedly to be drawn from the documents, that does not make them evidence in the sense to which I have referred. The law is thus stated by Holroyd Pearce, L.J., in Meek v. Fleming [1961] 2 Q.B. 366 at p. 377:-

‘This court is rightly loth to order a new trial on the ground of fresh evidence. Interest reipublicae ut sit finis litium .The cases show that this court has given great weight to that maxim. There would be a constant succession of re-trials if judgments were to be set aside merely because something fresh that might have been material has come to light.’

Having referred to the principles which are applied in determining whether such evidence should be admitted, subsequently adopted by this Court in Murphy v. Minister for Defence [1991] 2 I.R. 161, he went on at p. 378:-

‘Where, however, the fresh evidence does not relate directly to an issue, but is merely evidence as to the credibility of an important witness, this court applies a stricter test. It will only allow its admission (if ever) where, . . . per Tucker L.J., in Braddock v. Tillotson's Newspapers Limited [1950] 1.K.B. 47:
“the evidence is of such a nature and the circumstances of the case are such that no reasonable jury could be expected to act on the evidence of the witness whose character has been called in question,”
or, per Cohen L.J.
“. . . where the court is satisfied that the additional evidence must have led a reasonable jury to a different conclusion from that actually arrived at in the case”.’
The decision in Meek v. Fleming [1961] 2 Q.B. 366, also made it clear that a further exception to the rule arises where, as happened in that case, the court of trial is deliberately misled in a material matter.

I am satisfied that what is described as the ‘new evidence’ does not of itself establish any facts relevant to the issues at the trial which would have had an important influence on the case. At best, the documents could have been used in cross-examination to test the credibility of witnesses. As such, its admissibility at this stage must be determined by reference to the stricter tests referred to in Meek v. Fleming. It could not be said, in my view, with any plausibility, that the production of this additional evidence must have led the trial judge to a different conclusion on the facts, from those actually arrived at by him in this case.

I am accordingly satisfied that the application to adduce new evidence must be refused.”

25. The Supreme Court in Smyth v. Tunney [1996] 1 I.L.R.M. 219 also considered Meek v. Fleming and distinguished the case before it on the facts.

26. Applying the settled law to the application to have Ms. Pamela Madigan further examined, I would refuse the application in all the circumstances of the case.

27. The appellant’s allegation against Mr. Clancy and the issue concerning an admission of negligence and other litigation is not connected to the respondent in this case, and has been considered by other courts and this Court previously.

Conclusion
28. In conclusion, for the reasons given, I would refuse to admit new evidence in this appeal. I would also refuse to order that Ms. Pamela Madigan be further cross- examined.

29. In the interests of justice I would allow an extension of time to the appellant to file books of appeal and a certificate of readiness, the time to be extended to the 28th January, 2013.