Judgment
Title: | Murphy -v- Callanan & ors |
Neutral Citation: | [2013] IESC 30 |
Supreme Court Record Number: | 483/11 |
High Court Record Number: | 2009 5568 P |
Date of Delivery: | 06/19/2013 |
Court: | Supreme Court |
Composition of Court: | Denham C.J., Murray J., McKechnie J. |
Judgment by: | Denham C.J. |
Status: | Approved |
Result: | Allow And Set Aside |
 | |
| Judgments by | Link to Judgment | Concurring | Denham C.J. | | Murray J., McKechnie J. | |
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THE SUPREME COURT
Appeal No. 483/2011
Denham C.J.
Murray J.
McKechnie J.
Elizabeth Murphy
Plaintiff/Appellant
and
Claire Callanan, Daniel Cashman, Dermot Casserly, Niall G. Coleman, W. John Cunningham, Marie Cunningham, Gabriel Daly, Maureen Daly, Gerry Gallen, Aisling Gannon, Ainsley Heffernan, Bruno Herbots, Mark J. Heslin, Aidan Marsh, Niall O’Brien, Kate O’Connor, Maitiu O’Donnell, Shaun O’Shea, Mark Perry-Knox-Gore, Imelda Reynolds, Gary Rice, Phillip H. Smith
and John Wright
practising under the style and title of “Beauchamps” Solicitors and Joseph Bowe
First Defendants/Respondents
Second Defendant
and
Anthony (otherwise Tony) Murphy
Judgment delivered on the 19th day of June, 2013 by Denham C.J.
1. This is an appeal by Elizabeth Murphy, the plaintiff/appellant, referred to as “the appellant”, from the order of the High Court (Peart J.), made on the 24th November, 2011, dismissing the appellant’s claim for professional negligence against the first named defendants/respondents (practising under the title of “Beauchamps Solicitors”) and Joseph Bowe, referred to collectively as “Beauchamps”.
2. At the core of the appellant’s appeal is the issue as to whether she was a vulnerable client during the time 2002 to 2004; whether she received independent legal advice; whether there was a conflict of interest in Beauchamps acting for both the appellant and the third named defendant; and whether Beauchamps facilitated undue pressure on the appellant by the second or third named defendants through breach of duty of confidentiality to her.
Facts
3. There is no agreement on the facts between the parties. And, indeed, there appears to be a divergence between the facts as pleaded in the proceedings and the evidence given by the appellant at the hearing in the High Court.
The High Court
4. On the 24th November, 2011, the High Court, at the conclusion of the appellant’s evidence, and before the defendants had gone into evidence, dismissed the appellant’s claim against Beauchamps and granted costs to Beauchamps against the appellant. The appellant has appealed against this ruling. The High Court refused to dismiss the case against the second and third named defendants (the appellant’s son and grandson).
5. The High Court held, in an ex tempore ruling, as follows:-
“The first matter is a decision on the application for a dismiss of these proceedings as against the [respondents] following the closure of the [appellant’s] case. I heard that application yesterday and indicated that I would consider the matter overnight, which I have done, and the following is my decision.
In this case the [appellant] attended at the offices of Messrs. Beauchamps on 8th April 2002 so that a will could be drafted by that firm in order to make provision for the [appellant’s] brother, Christy, for whom she wished to provide a right of residence in the event of her death. Such a will was drafted and on 9th April 2002 a letter was written by Messrs. Beauchamps to her explaining its contents. It is accepted by the [appellant] that Messrs. Beauchamps had not been told of any difficulty she may have had in reading a document such as that and Messrs. Beauchamps therefore were given no reason to believe that she wouldn’t be able to read and understand the contents of that letter. She later attended at the office again and executed that will. No negligence has been pleaded against the firm in relation to the making of that will.
Another matter that was discussed on 8th April 2002 was the question of the [appellant] transferring her house at No. 58 Rathdrum Road into the joint names of herself and her grandson. This was discussed on 8th April 2002 and according to the Statement of Claim it was part of the agreement in relation to that transfer that a loan of €100,000 would be obtained thereafter so that works could be carried out to the house at 58 Rathdrum Road, but also it was agreed, and this is set forth in the Statement of Claim, that none of that sum would be paid directly to the [appellant] but would pass to the third named defendant, that is the gentleman referred to as ‘Tony’ in the proceedings, though his name is the same as his father’s, namely ‘Anthony’.
A second letter dated 9th April 2002 was written to the [appellant] by Messrs. Beauchamps following that consultation and this explained the implications of that transaction. The [appellant] also later attended at the offices of Messrs. Beauchamps and executed the legal documents to give effect to that transfer into the joint names of herself and her grandson Tony Murphy. In due course some works were carried out to the house, more than had originally been contemplated apparently. Cross-examination suggests that this was because defects were identified in the foundations of the existing extension at the rear of the house and it has been said that it was an officer from Dublin City Council who then required that it be demolished completely and rebuilt in view of the defective foundations and it is said that this added considerably to the cost of works above and beyond those which were originally contemplated. The [appellant] alleges that the works involved cost about €20,000 and that the [appellant] never received the balance of €80,000 from the loan, that having been retained by the second and third named defendants and she claims a sum of €80,000 as being due and owing to her.
After those works were carried out, the [appellant] and the third named defendant sold the premises at No. 58 Rathdrum Road for a sum of €271,000. The second named defendant seems to have been the prime mover as far as organising that sale is concerned. It is not credible, in my view, that the [appellant] was not aware at that time that this was being done. She did in her evidence refer to the fact that she seen the For Sale sign outside the premises, but above and beyond that it is not, in my view, credible that she was not aware that the premises were being put up for sale.
Messrs. Beauchamps acted for them in that transaction also and, having discharged the amount of the mortgage taken out, sent a cheque payable to Anthony Murphy and Elizabeth Murphy in a letter addressed to those two names at 18 Larkfield Place, Lucan, which is the house owned by the second named defendant, that is Anthony Murphy (her son) and his wife Pauline Murphy. By that time the [appellant] was living with her son Anthony, at that address and this appears to have been by arrangement with her prior to her moving to that premises.
Her signature appears on the back of the negotiated cheque in respect of that balance of proceeds of sale, as does the signature of the second named defendant. I say that because the signature on the back of the cheque and by comparison to other signatures of his in documents which I have seen makes it clear that the name Anthony Murphy signed on the back of that cheque is the signature of the second named defendant and not of the third named defendant who is also called Anthony and has been referred to in these proceedings as ‘Tony’.
The cheque was clearly intended by Beauchamps to be paid to the [appellant] and the third named defendant Tony, whose full name is clearly Anthony as well, and he is so described in the Deed of Transfer into joint names and the mortgage obtained thereafter and, I should add, in the deed by which the premises at 58 Rathdrum Road were ultimately sold on.
In my view, no prima facie case of negligence arises against Messrs. Beauchamps in relation to the manner in which this cheque was made out to the [appellant] and the third named defendant. There is no evidence that they should have been aware that the second named defendant would lodge that cheque to his own account rather than it being lodged to an account by which both Elizabeth Murphy and the third named defendant would receive it. The fact is apparently that the entire balance of sale proceeds ended up in the account of the second named defendant as a result of having been endorsed by the [appellant], and the [appellant] has received none of that amount from the second named defendant or third named defendants in respect of her joint interest in the premises sold and is seeking from them her share of those proceeds, although it is pleaded that she is entitled to the entire net proceeds of sale.
The second named defendant will be saying apparently that the net proceeds of sale were substantially used for the purpose of effecting necessary works to his house in Lucan in order to accommodate the [appellant] and that, accordingly, there is no sum due to the [appellant] from the net proceeds of the sale of No. 58. It will of course, should he choose to do so, be a matter for him to explain those matters to the Court. I have already refused an application for a dismiss which was made by Mr. Burke at the conclusion of the [appellant’s] case on behalf of the second and third named defendants.
A large number of particulars of alleged negligence against Messrs. Beauchamps are set forth in the Statement of Claim. Not all, but a great many of them, depend for success on the question of whether or not the firm should have known or at least enquired as to the mental capacity of the [appellant] to understand the implications of the instructions they were receiving and to understand the advice being given and the documents which she was being asked to sign. It is alleged that they ought to have known that she was elderly, relatively uneducated and unable to read and write to a material degree. It is submitted that in such circumstances there was a greater than normal obligation to take care in this regard in order to be satisfied that the transactions in which they were involved were not improvident transactions for her and to have advised her in that regard. It is submitted they should have been on their guard, so to speak, to ensure and satisfy themselves that she was not being unduly influenced or overborne by the second named defendant and that she was fully aware and agreeable to the transactions which had the capacity to denude of her of her assets as has in fact occurred.
However, it is accepted by the [appellant] that Messrs. Beauchamps were never made aware that she had limited abilities as far as reading and writing are concerned. There is evidence also that she received independent legal advice albeit simply from a different solicitor in the same firm, Messrs. Beauchamps. Some evidence has been adduced that at the present time she is vulnerable and suggestible given her advanced years, in fact it is manifestly the case that she is, given the manner in which she has given her evidence in this case. It has to be borne in mind that the transactions about which this case is took place in 2002 and 2004 respectively, and, in my view, it cannot be presumed that she was in the same or similar vulnerable state at those times. Some of those events took place some nine years ago and others some seven years ago. While she is now I think 84 years of age, she was obviously those years younger at the relevant times
There is no doubt that much of the answers given by the [appellant] to questions asked of her run counter to some of the pleadings in the Statement of Claim and Replies to Particulars as has been submitted by Mr. Conlon, that is clear and, in my view, it is clearly the result of her current state of frailty and old age. She has denied, for example, that the signatures on various documents are her signatures, such as the signature on the cheque and other signatures on the will even which was executed by her in 2002 and other documents. That, in my view, is not reliable evidence and is not credible. Her recollection of relevant events is so confused in many material respects as to be unreliable.
It is submitted by Beauchamps that her evidence has diverged from the pleadings to such an extent as to be discounted to the point that her case against Beauchamps falls away fatally and is so unreliable that her claim should be dismissed as not having been made out even on a prima facie basis. If in 2002 and 2004 she presented as a client to any solicitor as she has appeared to me in court, I suspect that no such solicitor could have been of the view that she was capable of giving instructions and understanding advice. Any such solicitor would have concerns in such circumstances. As I have said, it cannot be presumed that she was in such bad mental state in 2002 and 2004 and there is no prima facie evidence given that she was at that time.
As I have said, her evidence is in many instances unclear, confused and unreliable. Many of the pleas of negligence are unsupported by her evidence and, indeed, nevertheless, the transactions no doubt took place. It is beyond doubt that she never received any of the proceeds of the loan taken on out 58 Rathdrum Road, but there is no prima facie evidence, in my view, that this is because of any breach of duty of care on the part of Messrs. Beauchamps.
In order to succeed in the application to dismiss, I would need to be satisfied that it cannot be argued even on a prima facie basis that she was a vulnerable client in 2002 and 2004 and that there was no basis for the imposition upon Messrs. Beauchamps of a greater than normal duty of care in relation to the taking of her instructions and acting upon them. There is no medical evidence of her state of mind on those dates. It will have been a matter for Messrs. Beauchamps to have made an assessment themselves at the relevant time as, indeed, solicitors are well used to doing when, for example, taking instructions from an elderly or very ill client who wishes to make their will. Solicitors are well used to conducting such an exercise if there is a basis at the time for suspecting that the client may not enjoy their full faculties and may be vulnerable to suggestions and perhaps undue influence.
Ms. Hynes has given evidence as an expert solicitor in the area of conveyancing and has spoken to the report which she has prepared. Many of her criticisms and concerns have fallen away, in my view, under cross-examination. Some were not addressed to issues actually raised in the pleadings. I do not believe that her evidence is of much assistance to the [appellant] and perhaps strays into the area of opinion in some respects as to negligence which is, of course, a matter ultimately for this Court to decide.
This is an unusual case. I accept that much of the [appellant’s] evidence is unsatisfactory and that is due in large measure to her mental frailty and old age now, as observed by me. I can well understand why the present application is made by the first named defendants and it is certainly not made without justification. A claim for professional negligence against the firm should not be made lightly and it must be supported by credible evidence.
In my view, the [appellant] and witnesses called on her behalf have fallen short of establishing a prima facie case of negligence against Messrs. Beauchamps. It would, of course, be interesting to hear whatever evidence might be given by Mr. Bowe or Ms. McHugh or Ms. Heron who have been referred to in these proceedings thus far as to their view of the [appellant’s] mental capacity at the time of these transactions, but that is not a sufficient reason to allow the case to go further against that firm. First, there must be credible and reliable evidence which raises a case for them to answer. In my view, the [appellant] has not done this and it would be unfair in those circumstances for Beauchamps to have to go into evidence when no prima facie case has been made out against them in relation to negligence.
In my view, if the [appellant] has been wronged in the manner by which she has received not a penny from these transactions, it will be because of the actions by one or other or both of the second and third named defendants and obviously conclusions in that regard cannot be reached at this stage for obvious reasons and must await the conclusion of the evidence.
In these circumstances I am going to dismiss the proceedings as against the first named defendants, that is all the partners named as the first named defendants in the title of the proceedings practising under the style or title of Beauchamps Solicitors and Joseph Bowe.”
[Emphasis added]
6. The High Court ordered that the costs of Beauchamps be made against the appellant. A stay was ordered by the High Court for 21 days, and, in the event of an appeal, until the determination of the appeal.
7. The appellant filed an appeal against that order. The following are the grounds of appeal:-
Notice of Appeal
The learned trial judge erred in fact and/or in law:-
(i) in disregarding the medical report of a psychologist which was taken as evidence without the psychologist being sworn or cross-examined and in holding that there was no prima facie evidence that the [appellant] was a “vulnerable client” in 2002 – 2004;
(ii) in disregarding documentary evidence from [Beauchamps’] client file which showed that [Beauchamps] breached their duty of confidentiality to their client, thereby facilitating one or both of the other defendants in exercising undue influence over the [appellant];
(iii) by holding expressly or by necessary implication that the [appellant] had received independent legal advice when in fact the only relevant evidence before the court was the statement of the [appellant] under cross-examination that she had no recollection of receiving such advice;
(iv) by holding that the alleged independent legal advice allegedly given to the [appellant] by another member of [Beauchamps’] legal firm was independent advice when in fact no such evidence was given to the Court and moreover when the [appellant] under cross-examination had no recollection of receiving such advice;
(v) in disregarding the conflict of interest arising out of [Beauchamps’] acting for both the [appellant] and the third named defendant;
(vi) in holding that there was no prima facie evidence of negligence on the part of [Beauchamps] in issuing a cheque payable jointly to the [appellant] and the third named defendant in the particular circumstances;
(vii) in expressly disregarding the expert evidence adduced on behalf of the [appellant];
(viii) in failing to apply the correct legal test as to whether there was any evidence from which negligence on the part of [Beauchamps] might be inferred; and such other grounds as may be adduced pending the hearing of this appeal.
8. The situation then was that the High Court had dismissed the appellant’s claim against Beauchamps, but not against the second and third named defendants.
Motion
9. As well as the appellant’s appeal from the decision of the High Court, there was also a motion before the Supreme Court brought by Beauchamps. This motion sought an order pursuant to the inherent jurisdiction of the Court dismissing and/or striking out the appellant’s appeal on the grounds that it amounted to an abuse of process and/or was bound to fail having regard to the provisions of s. 17(2) and s. 35(1)(h) of the Civil Liability Act 1961 and having regard to the fact that the appellant had entered into a release or accord with the second and third named defendants (thus letting them out of the case) after the filing and serving of the Notice of Appeal giving rise to this appeal (against the judgment and order of Peart J. dismissing the appellant’s claim against Beauchamps) but has refused to discontinue this appeal.
Appellant’s appeal
10. In the appeal currently before the Court, the learned trial judge dismissed the appellant’s case against Beauchamps at the closure of the appellant’s case in the High Court with three broad findings:-
(i) The learned High Court judge found that the appellant and witnesses called on her behalf “have fallen short of establishing a prima facie case of negligence against Messrs Beauchamps”. He made this finding having heard the witnesses in the case and having made decisions as to their credibility. The learned High Court judge considered that in a non-suit application there must be credible and reliable evidence which raises a case for the defendants to answer. The learned High Court judge found the appellant, now in her advanced years, to be vulnerable and suggestible, and her evidence unclear, confused, unreliable, and, in many parts, not credible.
(ii) The learned High Court judge considered that in order for Beauchamps’ application to fail it must be the case that it could not be argued on a prima facie basis that the appellant was a vulnerable client in 2002 and 2004 and there was no basis for a greater than normal duty of care on Beauchamps’ behalf in relation to the appellant. He found that it could not be presumed that the appellant in 2002 and 2004 was in the same or similar vulnerable state as presented at the High Court hearing and that there was no prima facie evidence given that the appellant was vulnerable in 2002 and 2004. In addition, the appellant had not told Beauchamps’ of her limited reading and writing abilities and therefore, Beauchamps had no reason to believe that she was unable to understand the letters sent to her home. The learned High Court judge considered that the criticisms and concerns of the appellant’s expert witness, Ms. Hynes, fell away under cross-examination.
(iii) Finally, the learned High Court judge found that there was no prima facie negligence arising against Beauchamps in relation to the manner in which the cheque was made out because “the cheque was clearly intended by Beauchamps to be paid to [the appellant] and the third named defendant, Tony, whose name is clearly Anthony as well”.
11. The appellant submitted that:-
(i) the learned High Court judge failed to apply the correct legal test as to whether there was any evidence from which negligence on the part of Beauchamps might be inferred;
(ii) the learned High Court judge erred in disregarding the medical report of a psychologist which was taken as evidence without the psychologist being sworn or cross-examined, expressly disregarding the expert evidence adduced on behalf of the appellant, and in finding that there was no prima facie evidence that the appellant was a vulnerable client; and
(iii) the learned High Court judge erred in finding that there was no prima facie evidence of negligence on the part of Beauchamps in issuing a cheque payable jointly.
Legal test in non-suit applications
12. The test to be applied when an application for a non-suit is made by a defendant or defendants was considered in Hetherington v. Ultra Tyre Services Ltd. [1993] 2 I.R. 535, and was quickly followed by O’Toole v. Heavy [1993] I.R. 544.
13. In O’Toole v. Heavy [1993] I.R. 544, the plaintiff alleged negligence by a dentist in fracturing her mandible while attempting to extract a tooth. Evidence was called by the plaintiff that most fractures arose from over-zealous use of surgical levers or from the use of excessive force, although it was accepted that even well trained operators could occasionally fracture a mandible. The plaintiff testified that the defendant had used increasing force in attempting to extract the tooth and that when the top of the tooth came away the defendant said: “Damn, I knew this would happen”. At the conclusion of the plaintiff’s evidence, counsel for the defendant sought to have the plaintiff’s case dismissed, while indicating that evidence would be called by the defendant if the application was unsuccessful. The learned trial judge acceded to the application on the grounds that the plaintiff had failed to establish, on the balance of probabilities, that the defendant had been negligent. Finlay C.J. set out the procedure to be adopted when an action in tort comes before a High Court judge without a jury, as follows, at p. 546 and 547:-
Egan J. was in agreement, stating at p. 249 – 250:-
Blayney J. agreed with both Finlay C.J. and Egan J..
14. In O’Donovan v. Southern Health Board [2001] 3 I.R. 385, Keane C.J. followed the test in O’Toole v. Heavy and laid emphasis on the requirement that the trial judge must take the plaintiff’s case at its highest, stating at 386 to 387:-
“If [the learned trial judge] had been informed by counsel that he would not be going into evidence then the trial judge would have applied the appropriate test which is whether the plaintiff had at that stage discharged the onus of proof and had satisfied him on the balance of probabilities that he was entitled to judgment.
However, counsel having reserved the right to go into evidence, which I think is the best way to put it, in the event of the application being unsuccessful, the trial judge was required to approach the question in accordance with the well established test dating indeed, from the days of trial by jury, in these cases, that is to say, as to whether assuming that the tribunal of fact was prepared to find that all the evidence of the plaintiff was true, and in other words treating the plaintiff's case at its highest, whether in those circumstances the tribunal of fact would be entitled to arrive at the conclusion that making those assumptions, sometimes thought of but perhaps not entirely accurately described as the prima facie test, the defendant had a case to meet.”
15. The judgment of this Court in Schuit v. Mylotte [2010] IESC 56 (Judgment of O’Donnell J. of the 18th November, 2010) is also of assistance. In that case, the plaintiff underwent a radical hysterectomy in 1996 performed by the first named defendant. The procedure was considered the appropriate treatment for patients with cervical cancer. However, the biopsy of the tissue showed that the plaintiff did not have cancer. The central issue in the High Court was whether the first named defendant was entitled to come to the view that the radical procedure was necessary on the information available to him. The plaintiff also had alleged negligence against the third named defendant, who was her general practitioner, who had received reports of smear tests with abnormal results in 1991 and 1993, and the fourth named defendant, the health board, which had maintained that the laboratory that had been responsible for those tests and two earlier smear tests, also with abnormal results, carried out on the plaintiff in 1986 and 1987. The High Court judge granted an application for non-suit on behalf of the second, third and fourth named defendants and the case proceeded against the first named defendant, who was successful in his defence. The appeal was limited to whether the trial judge was correct in finding that there was no prima facie case against the third and forth defendants and thereby dismissing them from the action before they had gone into evidence.
O’Donnell J. considered the extent of the application of the principles articulated in Hay v. O’Grady [1992] 1 IR 210 to the Supreme Court’s role in considering an appeal from a decision to grant a non-suit application:-
“It is said by the Defendants however, on the authority of Hanafin v Minister for the Environment [1996] 2 IR 321, that the trial judge’s decision in this regard is a decision to which the principles in Hay v O’Grady [1992] 1 IR 210 apply and accordingly that if there was evidence upon which the trial judge could come to the conclusion he did, the decision should not be disturbed on appeal. I cannot agree. Hanafin is a case which was very much sui generis and has never been treated as an authority of general application on the principles to be applied on an application for a non suit in personal injuries litigation. That case concerned a petition to set aside the outcome of the constitutional referendum, and it is not easily compared to simple inter partes litigation. Indeed in this Court, at least one of the members of the Court considered that the case ought to have proceeded as a form of inquiry rather than litigation inter partes.
The test in Hay v O’Grady, is derived from the fact that an appeal Court which does not hear the evidence must give considerable deference to a trial Court’s assessment of the cogency and credibility of evidence given to it. This follows from the different functions of a trial Court and appeal Court. As a result, the question for a Court on appeal is essentially a matter of logic: was there evidence, whatever its apparent credibility or cogency, upon which the trial judge could come to the conclusion he or she did. The test in Hetherington v Ultra Tyres Services and O’Toole v Heavey provides in truth little scope for the application of the principle in Hay v O’Grady since it is rare that a Court will proceed to asses the credibility of witnesses at the end of the plaintiff’s case. While I do not rule out the possibility that a Court could come to the conclusion that the plaintiff’s evidence was so wholly incredible that there was no plausible or viable case, in most cases the issue is simply a matter of logic: is there evidence, whatever its relative cogency or strength, upon which a Court could conclude that a defendant was liable. That exercise is very similar to that set out in Hay v O’Grady. It does not normally, and did not here, involve the type of assessment of the cogency or credibility which attracts the rule in Hay v O’Grady, and accordingly the decision is fully reviewable on appeal.”
O’Donnell J. found that the trial judge had erred because he had failed to consider the alternative outcomes of the litigation in respect of each defendant i.e. if the plaintiff succeeded against the first named defendant then that would almost completely exculpate the third and fourth defendants, but if there was a finding that the first named defendant was not negligent, then the trial judge should have considered whether the plaintiff had established a prima facie case against the third and fourth defendants in failing to act on the abnormal smear tests, which caused loss and damage to the plaintiff.
16. In this case, the learned High Court judge had refused a non-suit application by the second and third named defendants. Beauchamps indicted that they would be going into evidence if their application for a non-suit was refused. The procedure for the learned High Court judge to follow was then to assess whether the appellant had made out a prima facie case against Beauchamps, i.e. whether there was any evidence from which negligence may be inferred against Beauchamps or was there evidence, whatever its relative cogency or strength, upon which a court could conclude that a Beauchamps was liable.
Expert evidence of Dr Dunne
17. The learned High Court judge found that it could not be presumed that the appellant in 2002 and 2004 was in the same or similar vulnerable state as presented at the High Court hearing and that there was no prima facie evidence given that the appellant was vulnerable in 2002 and 2004.
18. On the first day of the trial, counsel for the appellant sought to call Dr. Dunne who is a consultant clinical psychologist with a speciality in adult mental health and intellectual disability and who had prepared a report following an assessment of the appellant. Following a disagreement between counsel, it was agreed that Dr. Dunne’s report would be read as direct evidence with a reserved right to Beauchamps to cross-examine at a later point in time. Dr. Dunne was not cross-examined in the High Court.
19. The report of Dr. Dunne stated of the appellant’s test results that “her intellectual/cognitive functioning is at the border line range between intellectual disability and low average functioning”. However, taking into account the appellant’s social functioning “her overall ‘true’ functioning is probably above the level of her assessed intellectual competence i.e. at the high end of the borderline between intellectual disability and low average.”
20. In addition, the report stated:
“I could find no evidence in the sub test score pattern of any cognitive deterioration or any suggestion of any dementing process.
Her good social skills have enabled her to survive in society at large throughout her life. However, this could lead to an erroneous assumption that she understands more than she perhaps truly does.
In light of these finding, it is my professional opinion that her general capacity and understanding in relation to the legal issues involved in the transactions would have been limited. Additionally, her level of vulnerability and gullibility in relation to these transactions would be quite high.
It is well established in the literature that people of limited intellectual functioning are more vulnerable than the general population, especially when it comes to formal situations such as interviews with authority figures, the police and the legal profession.
In such situations people like [the appellant] would be much more likely to be acquiesant in the fact of suggestions put to them and to be more easily led than the general population. This has been well established in the literature on suggestibility.
It is almost 10 years since the legal transactions began namely the transfer of her home into joint names and the subsequent sale of her family home in Crumlin.
It is my opinion that her cognitive functioning today is similar to what it was ten years ago as I could illicit no evidence of deterioration on this assessment today. Her lack of literacy may have depressed her score on this assessment by a few IQ point but not significantly so in my opinion.
Overall, I am confident that the findings today from this assessment indicate that [the appellant’s] capacity to provide instructions at the time of the legal transactions were limited. It is also highly likely that in the event of 1, 2 or 3 people suggesting certain courses of action to her that she would acquiesce fairly easily. This has been well established in the literature on intellectual disability and suggestibility.”
21. In summary, the opinion of Dr Dunne was that the appellant, at best, is at the high end of the borderline between intellectual disability and low average intellectual capability, the appellant’s level of vulnerability and gullibility in relation to legal transactions is quite high, and that there was no evidence of deterioration or dementing process and her cognitive function at the date of assessment was similar to what it was ten years ago.
22. The learned High Court judge did not refer to this unchallenged evidence in his ruling on Beauchamps’ application for a non-suit and, indeed, stated that there was no prima facie evidence that the appellant was in a vulnerable state at the relevant times.
23. The learned High Court judge erred in failing to consider the report in his ruling and I am satisfied that the report of Dr. Dunne was prima facie evidence of the appellant’s vulnerability at the relevant time.
24. In considering an application for a non-suit by a defendant, the trial judge must consider whether there was any evidence from which negligence may be inferred against the defendant or whether there was evidence, whatever its relative cogency or strength, upon which a court could conclude that a defendant was liable. In essence, this means that the trial judge must take the plaintiff’s case against the defendant seeking the non-suit at its highest.
Joint cheque
25. The learned High Court judge in considering whether there was evidence of negligence in relation to the joint cheque issued following the sale of the appellant’s home stated:
“The cheque was clearly intended by Beauchamps to be paid to the [appellant] and the third named defendant Tony, whose full name is clearly Anthony as well, and he is so described in the Deed of Transfer into joint names and the mortgage obtained thereafter and, I should add, in the deed by which the premises at 58 Rathdrum Road were ultimately sold on.
In my view, no prima facie case of negligence arises against Messrs. Beauchamps in relation to the manner in which this cheque was made out to the [appellant] and the third named defendant. There is no evidence that they should have been aware that the second named defendant would lodge that cheque to his own account rather than it being lodged to an account by which both Elizabeth Murphy and the third named defendant would receive it.”
26. The learned High Court judge erred in inferring the intention by which Beauchamps wrote the cheque as this was not taking the appellant’s case at its highest. In addition, there is prima facie evidence in the client file, which was included in Book of Appeal No. 2 at p. 92, that the Beauchamps were aware that the money produced from the sale of the house would be used by the appellant’s son, the second named defendant, for his benefit. The letter from Beauchamps to Anthony Murphy at 18 Larkfield Place, Lucan, Co. Dublin and dated the 24th November, 2003. stated:
“Re: Sale of 58 Rathdrum Road
Dear Anthony,
Further to our telephone conversation today, I wish to confirm that as soon as I am in receipt of signed Contracts, I will issue you with a letter confirming same. You should then be able to obtain a loan subject to the repayment of the said loan out of the sale proceeds.
Incidentally, I sent a fax through today to the Purchaser’s Solicitor asking her to return Contracts as soon as possible.
I trust that this is in order.
Yours faithfully,
BEAUCHAMPS”
[Emphasis added]
Expert evidence of Ms Hynes, Expert in Conveyancing
27. The report of Ms Hynes was used as her direct evidence, with some further questions. The report and evidence of Ms Hynes refers to a variety of matters in relation to the transactions and some of the points she made were:-
(i) the appellant was a vulnerable client, open to pressure and should have been treated as such;
(ii) the transactions in question should have been carefully explained to the appellant and communicated in a manner which she clearly understood;
(iii) attendances, first, should have noted how the solicitor assessed the appellant and why he had concluded that she was capable of acting freely and that she understood the consequences of what she was proposing to do; and second, should have recorded the instructions received and the advice given, and in a case such as this, the efforts made to get the appellant to understand the significance of the transactions;
(iv) there were no such attendances in this case;
(v) the letters of the 9th April, 2002 (two in number) did not address this requirement. The “Property Transaction” letter gave advice on stamp duty, gift tax and Dublin Corporation but not otherwise. The “Will” letter, did state that a transfer to the third named defendant was “irreversible”, unlike a Will, and that if it did not work out, the best the appellant could hope for was to have the property sold and receive 50% of the proceeds. It went on to say “with this in mind you should very carefully consider all the consequences of such a transfer before proceeding with it”;
(vi) even if nothing was known about the appellant’s literacy, this information, in letter form would be no substitution for a verbal explanation given in person at instruction stage;
(vii) the appellant should have been advised regarding the distinction between a tenancy in common and a joint tenancy;
(viii) the appellant should have been advised of the full implications of entering into the mortgage and of her obligations thereunder;
(ix) the letter of loan approval required the obtaining of independent legal advice: there is a letter from Mr. Shane Healy, a solicitor, from Beauchamps, to the Mortgagee dated the 18th July, 2002, in which such advice is said to have been given. However, there is no attendance in this regard.
(x) The acceptance of the loan offer refers to a letter of approval which states that the appellant has been fully apprised of the mortgage details and their consequences for her: again, there is no attendance in this regard.
(xi) The dispersements of the mortgage money, which amounted to €100,000, at least in part, were made without any reference to the appellant: for example, a “bearer cheque” of €20,000 was given to the second named defendant.
(xii) All of the attendances regarding the sale of the property indicate that the vendor was “Anthony Murphy”, the second named defendant, from whom apparently Beauchamps were both seeking and obtaining instructions, without reference to the appellant.
(xiii) There is a letter addressed to both the appellant and Anthony Murphy of the 11th November, 2003, seeking general information of a detailed nature about the house (prior to sale) and also with a request to fill in the attached “information sheet”: whilst the appellant’s signature is on the sheet, it seems unlikely that the information came from her; and
(xiv) There are no attendances regarding the completion of this sale.
28. Ms Hynes was cross-examined extensively by Mr Conlon, counsel for Beauchamps. The learned High Court judge stated:
“Ms. Hynes has given evidence as an expert solicitor in the area of conveyancing and has spoken to the report which she has prepared. Many of her criticisms and concerns have fallen away, in my view, under cross-examination. Some were not addressed to issues actually raised in the pleadings. I do not believe that her evidence is of much assistance to the [appellant] and perhaps strays into the area of opinion in some respects as to negligence which is, of course, a matter ultimately for this Court to decide.”
29. However, the “falling away” was based on assertions that contradicting evidence would be given by witnesses yet to be called and thus, the very foundation upon which concessions were adduced was never established. For example:-
(i) Ms. Hynes agreed that not every 74-year-old uneducated person could be considered “vulnerable” or that it would be wrong for a solicitor to act for such a person. Her agreement to this proposition was premised on a proper assessment having been conducted by the solicitor. Counsel on behalf of Beauchamps said that there would be evidence from his client that such an assessment had taken place and that Mr. Bowe, a solicitor of Beauchamps, was fully satisfied as to her understanding of what was going on;
(ii) Ms Hynes criticism of the failure of Mr. Bowe to see the appellant alone: was contradicted by an assertion by Counsel that Mr. Bowe would say that he did;
(iii) Ms Hynes was unhappy about the absence of attendances: her concern in this regard was not simply based on proper procedures, but rather on the fact that she inferred therefrom that matters had not been explained to the appellant, as if they had it would have been noted. This criticism applied at many stages, including the transfer of a moiety of the appellant’s interest in the house, to getting a mortgage and to the selling of the house;
(iv) Ms Hynes felt that the option of creating a tenancy in common should have been explained to the appellant. But according to counsel there would be evidence that she was adamant in wanting to leave everything to the third named defendant: therefore, a joint tenancy was the most appropriate instrument to achieve this result;
(v) notwithstanding Mr. Healy’s letter to the building society, Ms Hynes doubted that independent advice had been given to the appellant as there was no attendance to support that independent advice had been given: once more it was asserted by counsel that Mr. Healy would give evidence to the effect that he explained everything fully to the appellant who fully understood what was involved.
30. In assessing the evidence of Ms. Hynes, the learned trial judge fell into error, even allowing for the fact that the learned trial judge may indeed be correct in considering that some of the opinions expressed by Ms. Hynes related to matters that may require to be decided exclusively by the trial judge.
31. It is clear that the learned High Court judge erred by failing to assess the appellant’s case at its highest but rather he balanced the appellant’s case against that as asserted by Beauchamps, and found for Beauchamps.
Credibility
32. The learned High Court judge referred extensively to the appellant’s oral evidence and its credibility. While it is a factor to which a trial judge may refer and have as part of a reason for a decision, in all the circumstances of this case it could not be effectively the reason to dismiss the appeal, where the Court is required to take the appellant’s case at its highest.
Conclusion on appeal
33. The learned High Court judge erred in failing to have due regard to evidence, including that of Dr. Dunne, to the joint cheque issued by Beauchamps, and to the expert evidence of Ms. Hynes on the assessment of the appellant’s credibility. The learned trial judge did not apply the correct test by failing to take the appellant’s case at its highest. Of course a judge when applying the correct test, even though he or she is bound to take a plaintiff’s case at the highest mark, would be entitled to dismiss if a plaintiff had not established a prima facie case, or if a plaintiff’s case manifestly lacked credibility and no sufficient weight could be attached to it. However, that was not the situation in this case.
34. I would allow the appeal, set aside the order of the High Court, and remit the matter to the High Court.
Motion
35. As referred to earlier, as well as the appellant’s appeal from the decision of the High Court, there was also a motion before the Supreme Court brought by Beauchamps, this motion sought:-
(i) An order pursuant to the inherent jurisdiction of the Court dismissing and/or striking out the appellant’s appeal on the grounds that it amounts to an abuse of process and/or is bound to fail having regard to the provisions of s. 17(2) and s. 35(1)(h) of the Civil Liability Act 1961 and having regard to the fact that the appellant has entered into a release or accord with the second and third named defendants (thus letting them out of the case) after the filing and serving of the Notice of Appeal giving rise to this appeal (against the judgment and order of Peart J. dismissing the appellant’s claim against Beauchamps) but has refused to discontinue this appeal.
(ii) An order pursuant to the inherent jurisdiction of the Court providing that the appellant should pay any proceeds of her settlement into Court pending payment of the costs due to Beauchamps.
(iii) Further or other relief.
(iv) Costs.
36. In the affidavit of Ciarán Markey, a solicitor of LK Shields, solicitors on behalf of Beauchamps, sworn on the 28th March, 2012, inter alia, it is deposed, that the appellant’s case against the second and third named defendants was settled on the 24th January, 2012, pursuant to written Terms of Settlement dated the 24th January, 2012.
Terms of Settlement
37. The terms of the settlement are as follows:-
The [appellant] and the second and third named defendants (“these defendants”) have agreed to compromise the above proceedings as between the [appellant] and these defendants and they are hereby settled and compromised upon and subject to the following terms and conditions:
1. The second defendant is the beneficial owner free from all liens, charges and encumbrances of whatever nature of a property situate at DA-MAH-CEB1-A36, Mahmutlar, Turkey (hereinafter called “the Turkey Property”).
2. On behalf of the second and third defendants and each of them, the second defendant has agreed to sell the Turkey Property and apply the net proceeds of sale in settlement of this action as hereinafter provided and for this purpose the expression “net proceeds” shall mean the sale price, less any fees exclusively and necessarily payable in Turkey to give effect to the sale and any local taxes in Turkey for which the vendor becomes unconditionally liable on the sale.
3. The sale of the Turkey Property shall be effected as soon as is reasonably practicable and in any event not later than 6 months from the date hereof.
4. In order to effect the sale, the second defendant shall forthwith grant to his solicitor, Barry Bowman, an irrevocable and exclusive power of attorney to carry out the sale and receive the net proceeds, such power to be in terms to be approved by the solicitors for the [appellant].
5. If the contact for sale of the Turkey Property has not been entered into by the expiration of 6 months from the date hereof, then the said property shall be offered forthwith for sale by public auction or such similar effective mode of sale as may be advised by a property professional in Turkey.
6. The net proceeds of sale of the Turkey Property shall forthwith upon completion of the sale be paid into an Irish bank account held in the joint names of Shannon & O’Connor, Solicitors, and Bowman McCabe, Solicitors.
7. The net proceeds of the sale shall be paid out as follows:-
(a) The first €50,000 to Shannon & O’Connor Solicitors for the [appellant]; and
(b) The balance shall be divided in the ratio of 40:60 respectively between Shannon & O’Connor Solicitors and Bowman McCabe Solicitors, respectively.
8. The payments to Shannon & O’Connor Solicitors are a contribution to costs.
9. This agreement is a full and final settlement of these proceedings as between the second and third defendants and the [appellant] and is without prejudice to the rights of the [appellant] against [Beauchamps] or any other person.
10. These proceedings shall be adjourned generally with liberty to apply or re-enter as may be appropriate to give or enforce effect to the terms hereof.
38. Beauchamps sought an order dismissing the appellant’s appeal on the grounds that it was an abuse of process and/or bond to fail having regard to the provisions of s. 17(2) and s. 35(1)(h) of the Civil Liability Act 1961 and having regard to the fact that the appellant has entered into a release or accord with the second and third named defendants after the filing of the notice of appeal but has refused to discontinue this appeal.
39. Mr Conlon, S.C., counsel on behalf of Beauchamps, argued that under the Civil Liability Act, 1961, referred to as the “Act of 1961”, if the appellant settled with the second and third named defendants so as to let them out of the proceedings then the appellant is legally identified with all of their acts. It was submitted that all of their acts includes the fact that the second and third named defendants dreamed up the scheme and received all of the money. Counsel submitted that while the settling tort feasor cannot be brought in to these proceedings again, the appellant is deemed responsible for their acts. Counsel argued that because Beauchamps are being sued for negligence and the second and third named defendants were sued for intentional torts, and the appellant has settled with the second and third named defendants, the appellant is identified with them, and so Beauchamps cannot now be held liable in negligence. It was argued that this was the consequence of the appellant settling with the second and third named defendants. This would mean that while the appellant had no intent to defraud herself, on the settlement she was fixed with the intention of those with whom she settled.
40. Mr Gilhoohy, S.C., counsel for the appellant, argued that the policy of the Act of 1961 was clear. It is that when there are a number of concurrent wrong doers, if there is a complete settlement, all the defendants to the proceedings are let out of the proceedings, but that where all the defendants are not let out, as here, the appellant may be compensated, but not over compensated, i.e. the appellant would not receive an award greater than the total value of the claim.
Statutory Law
41. At the core of this motion is s. 17(2) of the Act of 1961. Counsel were unable to find any legal authority on the construction of the subsection.
42. Section 17 of the Act of 1961 states:-
“(1) The release of, or accord with, one concurrent wrongdoer shall discharge the others if such release or accord indicates an intention that the others are to be discharged.
(2) If no such intention is indicated by such release or accord, the other wrongdoers shall not be discharged but the injured person shall be identified with the person with whom the release or accord is made in any action against the other wrongdoers in accordance with paragraph (h) of subsection (1) of section 35; and in any such action the claim against the other wrongdoers shall be reduced in the amount of the consideration paid for the release or accord, or in any amount by which the release or accord provides that the total claim shall be reduced, or to the extent that the wrongdoer with whom the release or accord was made would have been liable to contribute if the plaintiff's total claim had been paid by the other wrongdoers, whichever of those three amounts is the greatest.
(3) For the purpose of this Part, the taking of money out of court that has been paid in by a defendant shall be deemed to be an accord and satisfaction with him.”
Section 35(1)(h) of the Act of 1961 states:-
“where the plaintiff's damage was caused by concurrent wrongdoers and after the occurrence of the damage the liability of one of such wrongdoers is discharged by release or accord made with him by the plaintiff, while the liability of the other wrongdoers remains, the plaintiff shall be deemed to be responsible for the acts of the wrongdoer whose liability is so discharged;”
43. The issue raised in this motion is more appropriately addressed at first instance, rather than to be initially considered in an appellate court. In the circumstances of this case it clearly relates to an issue for determination by the High Court.
44. Consequently, I would strike out the motion, with no order for costs on the motion.
Conclusion
45. Consequently, for the reasons given, I would allow the appeal, set aside the order of the High Court, and remit the matter to the High Court. Also, I would strike out the motion brought by Beauchamps, with no order for costs on the motion.