Court of Appeal: Writer alleging negligence against former solicitor has appeal dismissed

About this case:

• Citation:
  [2018] IECA 229
• Judgment:
  External link
• Court:
  Court of Appeal
• Judge:
  Ms Justice Máire Whelan

Considering the 37 grounds of appeal raised by the appellant, Ms Justice Máire Whelan found that none of the grounds raised had been made out and dismissed the appeal.

High Court

In April 2017, Mr Bisi Adigun, founder of Arambe Productions Limited, lost a High Court action alleging negligence and other unlawful conduct against Linda McEvoy of Moran Solicitors, who he instructed in protracted proceedings against Roddy Doyle and the Abbey Theatre. 

Finding that there was no causal link between the professional losses suffered by Mr Adigun and the actions of his former solicitor; Mr Justice Colm MacEochaidh described the man’s actions as an abuse of process, and emphasised that “access to the court is not a licence for the case to be conducted any way a litigant sees fit”.

Court of Appeal

In the Court of Appeal, Justice Whelan grouped the 37 separate grounds of appeal under five headings:

(i) Bias

Mr Adigun contended that the trial judge ought to have recused himself during the proceedings by reason of actual bias and also subjective bias. Mr Adigun bases his objective bias grounds of appeal primarily on the trial judge being a former class mate and personal friend of the former Director of the Abbey Theatre, Mr Fiach MacConghail, who was a witness in the case. He argued that if the trial judge’s perception of him had not been tainted by alleged bias, further evidence helpful to Mr Adigun would have been expressly referenced in the judgment.

In this regard, Justice Whelan said that there was nothing in Mr Adigun’s submissions which identified any aspect of the witnesses evidence which was “improperly or selectively treated by the judge in a manner prejudicial to” Mr Adigun’s claim.

Justice Whelan noted that the trial judge had fully disclosed his friendship with the witness and invited the parties to make submissions arising from this disclosure, and that in the course of the 16 day hearing Mr Adigun refrained from raising an objection.

Considering Bula Ltd. v. Tara Mines Ltd. (No. 6) [2000] 4 IR 412 and Orange Limited v. Director of Telecoms (No. 2) [2000] 4 IR 149, Justice Whelan was satisfied that no element of bias had been established.

(ii) Who was the client?

Mr Adigun asserted that the trial judge erred in determining that Mr Adigun was not a client of the solicitors.

Considering this “pivotal ground of appeal”, Justice Whelan said that it was clear that an “overwhelming body of probative evidence before the trial judge supported a conclusion that the solicitor was retained to act on behalf of Arambe” rather than Mr Adigun. Justice Whelan was also not satisfied that the trial judge should have disregarded affidavits filed in a copyright action, and dismissed this ground of appeal.

(iii) Non-compliance with Rules of Superior Courts and evidential, procedural and other alleged deficiencies in the conduct of the trial

This category of grounds, which included 25 separate grounds of appeal, encompassed “a whole range of alleged non-compliance by the trial judge with the Rules of the Superior Courts, the rules of evidence or rules of procedure and the incorrect inclusion or exclusion of evidence”.

Justice Whelan said that a trial judge has significant discretion in regard to the conduct of proceedings, and was not satisfied that Mr Adigun’s arguments regarding failure to comply with the RSC and rules of evidence were maintainable. Justice Whelan also found that the trial judge’s questioning of witnesses did not amount to use of the bench to intimidate or procure specific answers; and that the trial judge was entitled to conclude on the evidence that Roddy Doyle had offered an “olive branch” to resolve the dispute with Mr Adigun.

(iv) Alleged consequences of failure to write letters as instructed

Mr Adigun contended that the trial judge erred in concluding that even if the solicitor had written the letter which was ultimately written by Mr Adigun himself in March 2008 to the Abbey Theatre, it would not have made any material difference to the outcome of events.

In this regard, Justice Whelan was satisfied that the trial judge was “entitled to rely on the evidence of [Roddy Doyle] that had he received such a letter from the solicitor it would have made no difference to the position he adopted”.

(v) Relevance of evidence adduced at a prior failed mediation

Mr Adigun contended that the trial judge ought to have taken into account evidence which emanated from a failed mediation. However, Justice Whelan also rejected this ground of appeal.

Conclusion

Justice Whelan disagreed with the trial judge’s statement that the rule in Henderson v Henderson (1843) 3 Hare 100 was applicable in the proceedings – however she pointed out that this determination did not avail Mr Adigun given the key findings made.

Finding that Mr Adigun failed to succeed in any of the 37 grounds raised, Justice Whelan dismissed the appeal.