Whearty v Michael Lanigan practising under the style and title of Poe Kiely Hogan Lanigan Solicitors [21.05.20]
14/10/2020
The High Court in Ireland struck out this professional negligence claim against a defendant solicitor, in circumstances where the plaintiff failed to obtain expert evidence in support of his claim. The principles asserted by Mr Justice Meenan in Whearty v Michael Lanigan practising under the style and title of Poe Kiely Hogan Lanigan Solicitors [21.05.20] (subsequently referred to in this article as Whearty), are equally as applicable in clinical negligence claims.
The Court reaffirmed the long accepted principles set out by the Supreme Court in Ireland in the clinical negligence claim of Cooke v Cronin & Neary [1999], that it is an abuse of process to initiate a professional negligence claim without a supportive report from a suitably qualified expert. Importantly however, Mr Justice Meenan held that it must also be an abuse of process to continue to prosecute professional negligence proceedings “without such advice or report”.
The plaintiff issued professional negligence proceedings against the defendant alleging that he had received substandard legal representation and unprofessional legal advice resulting in a custodial sentence. The plaintiff sought damages in the sum of €25m.
The defendant applied to strike out the proceedings pursuant to Order 19 rule 28 of the Rules of the Superior Courts and/or pursuant to the inherent jurisdiction of the court, on the grounds that the allegations disclosed no reasonable cause of action, were unsustainable, frivolous and vexatious, were bound to fail and constituted an abuse of process. In support of his application, the defendant relied on a supportive expert report from an experienced criminal defence solicitor.
During the strike out application, the plaintiff confirmed to the Court that he had not obtained any expert evidence in support of his professional negligence claim. The Court allowed the plaintiff a further six weeks to obtain supportive expert evidence – which he failed to obtain.
In striking out the plaintiff’s claim for abuse of process, as set out at paragraph 14 of the judgment the Court made it clear that although the plaintiff has a constitutional right of access to the court, “the defendant also enjoys a constitutional right to his good name, all the more so when faced with a professional negligence action such as this”.
The Court upheld (at paragraph 16 of the judgment) that:
As it is clearly an abuse of process to initiate a professional negligence action without the report or advice from an appropriate expert, it follows that it must also be an abuse of process to continue to prosecute the proceedings without such advice or report.
This decision is a welcome acknowledgement by the courts that an individual’s right to his/her professional reputation cannot be unjustifiably tarnished by way of professional negligence proceedings. Mr Justice Meenan stating within paragraph 14 of the judgment that:
Where the right of access to the courts is being exercised not for the purpose of vindicating a right or asserting a valid claim but rather to attack, without justification, the reputation of another, the courts must step in to prevent this.
In the recent case of Mangan v Dockeray [2019], the Court of Appeal in Ireland upheld the decision of the High Court in dismissing a clinical negligence claim against two of the three defendants, where the plaintiff had no supportive expert evidence. The Court of Appeal also acknowledged the “very serious consequences” that such proceedings may have on the reputation of the medical practitioner or hospital involved, even where no finding of negligence is made by the court.
In practice, prior to dismissing the plaintiff’s claim, the courts will usually allow a further period of time for a plaintiff to ‘mend his hand’ and obtain supportive expert evidence. However, where a defendant can clearly show that the plaintiff’s claim is groundless, the court can exercise its discretion and take all circumstances into account in striking out the claim at the first application.
In Mangan v Dockeray, the Court had regard to the extensive time period that had elapsed in the case, and ruled that any prejudice to the defendants far outweighed any benefit that may have been gained by allowing further time for the plaintiff to obtain expert evidence in support of his claim.
It is worth noting that the Court of Appeal decision in Mangan v Dockeray is currently under appeal. The Supreme Court in Ireland is expected to clarify the evidence required to be in the plaintiff’s possession prior to instituting clinical negligence proceedings.
Although the case of Whearty relates to allegations of professional negligence by a solicitor, the principles derived from Mr Justice Meenan’s judgment equally apply to clinical negligence claims. The principles are a welcome reminder that it is an abuse of process not only to initiate a clinical negligence claim without a supportive report but also to continue to pursue a claim without obtaining supportive expert evidence.
