A senior counsel had been held to have breached the code of conduct of the Bar of Ireland regarding matters of confidentiality and privilege and the prohibition on accepting instructions directly from a client without the intervention of an instructing solicitor, the High Court has been told.
Ms Justice McGuinness said Capt Noel A.E. Clancy SC had been admonished by the barristers' professional conduct tribunal in 1995, a decision which had been upheld by the barristers' professional conduct appeals board. In a reserved judgment she dismissed a claim for damages against Capt Clancy for defection, negligence, breach of contract and duty, breach of confidentiality, trust, loyalty and fiduciary duties and conduct unbecoming a senior counsel of the Bar of Ireland.
Ms Justice McGuinness also refused to grant a declaration to Mr Michael McMullen that evidence given by Capt Clancy against him had been "false, fraudulent and a scandalous and a corrupt act of culpable perjury". She said Mr McMullen, an Englishman, had come to Ireland in 1971 and had negotiated a 35-year non-business lease for Charleville Castle, Tullamore, Co Offaly, and five acres of land. He had lived there until 1988.
The castle owners, the Hutton Bury family, had for years permitted the public to enter their estate for purposes of sport and leisure. Mr McMullen had found this particularly intrusive and had created considerable hostility in the neighbourhood by photographing courting couples in cars.
In 1983, he had instructed Kent Carty and Co, solicitors, and, having successfully sued for a change of user clause in his agreement, went on to sue successfully two firms of solicitors for negligence because they had earlier advised him that he would be unable to obtain this relief. Mr McMullen wanted to pursue a nuisance action relating to intrusion by the public but had been advised by Mr Robert Barr, now a High Court judge, not to proceed. He was adamant in continuing such a course and consulted Mr Tim Ryan, of James O'Connor and Co, solicitors, who suggested he should consult Capt Clancy.
Mr McMullen rang Capt Clancy, who had been considerably more encouraging in his advice regarding the nuisance action, and later told Kent Carty to instruct Capt Clancy. The company was reluctant as it did not feel the action lay within Capt Clancy's area of expertise, but eventually agreed on the basis it could also instruct Mr Eoghan Fitzsimons SC. Mr Fitzsimons strongly advised against proceeding with the action and had withdrawn from the case after stating it would be unfair to take Mr McMullen's money.
Mr McMullen had decided to go ahead with Capt Clancy as senior counsel and the case came on for hearing in July 1985 and was settled with liberty to either party to apply. He had been informed that if the settlement did not work, he could go back to court.
Ms Justice McGuinness said no one apparently had adverted to the distinction between "liberty to re-enter" and "liberty to apply". Despite doubts by others, Capt Clancy had advised to seek reentry and the High Court had refused, dismissing the application with costs against Mr McMullen. Mr McMullen had sued Kent Carty for negligence and Capt Clancy had been called by the company to give evidence about the settlement negotiations. Capt Clancy had not claimed privilege but basically accepted responsibility for the advice given to Mr McMullen with regard to possible re-entry. Mr McMullen had lost his action both in the High Court and on appeal to the Supreme Court.
Ms Justice McGuinness held there was no evidence to establish that Capt Clancy had entered into, as alleged, an arrangement or conspiracy with Kent Carty in regard to the evidence he had given in the negligence action by Mr McMullen against that firm. The evidence had been helpful to Kent Carty and unhelpful to Mr McMullen. It was clear there were inconsistencies between that evidence and statements Capt Clancy had made at other times. A number of these may have arisen from failures of memory.
"Other inconsistencies, I feel, arose from what might be described as an over-enthusiastic desire to please and to encourage the person to whom the defendant was speaking or, at other times, an over-enthusiastic desire to defend himself," Ms Justice McGuinness said. She would not accept Mr McMullen's conclusion that Capt Clancy had engaged in a deliberate campaign of lies.
Ms Justice McGuinness accepted that Capt Clancy should have, at least, raised the issue of privilege and confidentiality when called to give evidence in the negligence action against Kent Carty and it was clear that he had breached the Bar code of conduct.
She held that the claims of negligence arising out of the proceedings in 1985 and 1987 were statute barred. With regard to the question of the existence of a fiduciary relationship, she said Mr McMullen had painted a picture of himself as a vulnerable person in distress, putting his faith and absolute trust in Capt Clancy who had then betrayed him.
Mrs Justice McGuinness said she found it hard to accept the existence of a "power dependency" and trusting relationship when Mr McMullen, from the very beginning, had been surreptitiously recording all his phone conversations with Capt Clancy. From the evidence she considered that in some ways Capt Clancy seemed the more psychologically vulnerable of the two. On the facts, she did not consider that a fiduciary relationship existed between Mr McMullen and Capt Clancy.