Irish Court of Appeal

THE COURT OF APPEAL

CIVIL

 

Court of Appeal Record Number: 2024/143

High Court Record Number: 2019/5432P

Neutral Citation Number: [2025] IECA 39

 

Whelan J.

Allen J.

Meenan J.

 

 

BETWEEN/

 

 

JOHN O'CONNOR

 

 

PLAINTIFF/

APPELLANT

 

 

- AND –

 

 

LEGAL AID BOARD, THE MINISTER FOR JUSTICE AND EQUALITY IRELAND AND THE ATTORNEY GENERAL

 

DEFENDANTS/

RESPONDENTS

 

 

 

JUDGMENT of Mr. Justice Charles Meenan delivered on the 20^th day of February 2025 

Background:-

1.              This is an appeal against the judgment and order of the High Court (Stack J.) made on 8 May 2024, dismissing an action seeking damages for defamation and malicious falsehood brought by the appellant (Mr. O'Connor) against the first named respondent (The Legal Aid Board) on the grounds that the statement on which the action was founded was not capable of being found to have a defamatory meaning and that the action was bound to fail.

2.             Mr. O'Connor was involved in family law proceedings brought in the Circuit Court some thirteen years ago.  A pre-trial settlement agreement was reached in November 2011, resulting in a separation agreement between Mr. O'Connor and his then wife.  In February 2012 the Dublin Circuit Family Court granted a decree of judicial separation together with ancillary orders in accordance with the said agreement. 

3.               Unfortunately, the order of the Circuit Court was not the end of the matter.   For reasons that are not necessary to outline, a dispute arose over the implementation of an aspect of the agreement.  This resulted in Mr. O'Connor issuing separate proceedings in 2014 against both his own and his wife's solicitors.

4.             An application was brought by the solicitors for his then wife to dismiss the proceedings on the grounds, inter alia, that they were an abuse of process and/or frivolous and vexatious and/or bound to fail.  For his part Mr. O'Connor, who was by then representing himself, brought an application to consolidate both sets of proceedings.  These applications were heard in the High Court by Keane J. who delivered a written judgment on 20 December 2017 ([2017] IEHC 781).

5.             In the course of his judgment Keane J. considered whether there were reasonable grounds for instituting professional negligence proceedings against the solicitors involved.  He stated:-

"74. There is a line of authority, going back at least as far as the decision of Barr J in Reidy v National Maternity Hospital [1997] IEHC143 (Unreported, High Court, 31st July, 1997) that it is irresponsible and an abuse of process to launch a professional negligence action without first ascertaining that there are reasonable grounds for doing so. That proposition was endorsed by Kelly J. in Connolly v Casey & Anor [1998] IEHC 90 (Unreported, High Court, 12 June, 1998), before receiving its most authoritative restatement to date in the judgments of the Supreme Court (Lynch, Denham and Keane JJ) in Cooke v Cronin, already cited. In that case, Lynch J. expressed the view that, in all cases of alleged negligence on the part of a qualified professional person in carrying out his professional duties, 'there should be some credible evidence to support the plaintiff's case before such an action is commenced.' Denham J adopted the 'reasonable grounds' formulation of Barr J, endorsed by Kelly J, in the cases cited above.

75.  The need for credible evidence or reasonable grounds before the commencement of a professional negligence action is generally taken to mean, in practice, that an expert report confirming that there is at least a prima facie case that the particular professional has been negligent should be obtained prior to the institution of proceedings."

6.             Keane J. also considered the decision of this Court in Murray v Budds [2015] IECA 269, where Peart J. stated:-

"...While there is certainly authority to the effect that in cases alleging medical negligence against a doctor or other professional person, it would be an abuse of process or irresponsible to launch such proceedings in the absence of the plaintiff's solicitor satisfying himself or herself that there were reasonable grounds for the allegations of negligence being made, I would not exclude the possibility that where the action is being contemplated against a solicitor for professional negligence, the plaintiff's solicitor may not in every case require to obtain an independent expert opinion from another solicitor or counsel in order to form the relevant opinion that the facts of the case disclose a prima facie case, and that it is not irresponsible to commence the proceedings."

7.              In opposing his wife's solicitors' application to dismiss the action against them, Mr. O'Connor relied upon a letter which he received from his own solicitors which referred to the nonpayment of a sum of money due under the settlement agreement.  Mr. O'Connor maintained that this amounted to credible evidence or reasonable grounds to bring proceedings against his former wife's solicitors.  With some hesitation, Keane J. accepted this, stating: -

"79.  Finally, in this context, it seems to me that it must be appropriate to give the husband a limited degree of latitude as a litigant in person.

80.  Thus, on the particular facts of this case and not without some hesitation, I have concluded that it would not be appropriate to dismiss as an abuse of process on this ground the husband's remaining claims in negligence against the wife's solicitor."

Further,  Keane J. declined to make an order consolidating both actions.

8.              In 2015 Mr. O'Connor made an application for assistance to the Legal Aid Board.  This application was initially unsuccessful but Mr. O'Connor commenced judicial review proceedings.  These proceedings were settled on the basis of the Legal Aid Board agreeing to provide legal services to Mr. O'Connor in respect of both sets of professional negligence proceedings.  On 27 July 2018 the Legal Aid Board wrote a letter to Mr. O'Connor.

9.             Later in 2018 Mr. O'Connor's legal aid certificate was withdrawn and by plenary proceedings instituted in 2018 Mr. O'Connor challenged that withdrawal.

10.         In 2019 Mr. O'Connor issued two further sets of proceedings, one of which was the within proceedings which included a claim against the Legal Aid Board for damages for defamation and malicious falsehood based on the Legal Aid Board's letter of 27 July 2018.  An application was made to the High Court for consolidation of the 2018 and 2019 actions.

11.         In an ex tempore ruling on 20 February 2020 Twomey J. stated that he was satisfied that there was merit in consolidating the three actions, save for the claim of defamation and malicious falsehood.  In respect of that claim, Twomey J. accepted Mr. O'Connor's submission regarding his entitlement to a trial by jury, which counsel for the Legal Aid Board had acknowledged was the case.   Mr. O'Connor unsuccessfully appealed the order of Twomey J. to this Court and, subsequently, failed in his application for leave to appeal the matter to the Supreme Court.  Accordingly, Mr. O'Connor's claims for defamation and injurious falsehood were separated from his several other claims.

12.          Pursuant to the order of Twomey J., Mr. O'Connor delivered a statement of claim (1 September 2023) wherein he set out his claim for defamation and injurious falsehood against the Legal Aid Board. 

The defamation/injurious falsehood claim: -

13.         The statement of claim states: -

"Alleged defamatory statements by Plaintiff's appointed solicitor.

29.     The Plaintiff claims the Montague Court Law Centre letter dated 27^th July 2018 signed by Mr. Searson contained defamatory statements, as defined in the 2009 Act, having been published to third parties by Mr. Searson as identified above.  The Montague Court Law Centre letter dated 27^th July 2018 contained the following text, which is alleged to be (sic) contained defamatory statements, the text in this letter contained the following words:

'As you are aware from the decision of Mr. Justice Keane, delivered on 29 December last relating to these High Court cases, it has been held that the institution and prosecution of professional negligence proceedings without reasonable grounds for doing so is an abuse of process. (...)

Therefore, you cannot proceed with a professional negligence action against these defendant solicitors in the absence of an affirmation and supportive report.

Accordingly, in compliance with the case law and practice notes of the Guidance and Ethics Committee of the Law Society, in order for this law centre to come on record in these matters, you would be required to obtain supportive expert reports from an independent solicitor. (...)

Noting that these proceedings are against [a named solicitor] who is currently Principal of the four (sic) of [a named firm of solicitors]; and [a named solicitor]who is currently a District Court Judge assigned to Dublin Metropolitan District Court Area, and that [a named solicitor] (...) is currently elected to the Law Society Counsel (sic) and serving on the: Family and Child Law Committee (chair), Education Committee (vice chair), Legal Services Regulation Task Force, Skillnet, and Working Group of Draft Code of Practice Under Assisted Decision-Making (Capacity) Act (...)'

30.     The Plaintiff claims that the natural and ordinary meaning of the words quoted, the Montague Court Law Centre 27^th July 2018 letter were defamatory statements, which were untrue, unfair, and misleading, to the effect:

(a)     the Plaintiff is intentionally dishonest and has, knowingly, abused the process of Court for inappropriate purposes by making unfounded and unsupported claims against legal professionals with untarnished reputations;

(b)     The Plaintiff, knowingly, ignores adverse High Court judgments and wilfully breaches adverse High Court determinations and court orders;

(c)     The Plaintiff has never agreed and had objected, to the Board obtaining any expert opinion for the [professional negligence actions] to support the plaintiff's negligence claims, when the High Court had determined the Plaintiff must obtain supporting expert opinions.

(d)     The Plaintiff, and the Board acting for the Plaintiff, had never obtained any expert opinion which supported the Plaintiff's [professional] negligence claims.

(e)     2017 Judgment and court order had determined the Plaintiff was incurring an abuse of process due of Court due to the Plaintiff's failure to obtain any supporting opinion for his negligence claims;

(f)      2017 Judgment determined, as a matter of fact, that the Plaintiff had failed to obtain any supporting expert opinion for his professional negligence claim;

(g)     the 2017 Judgment had negligently dismissed both Plaintiffs' [professional negligence] proceedings due to his abuse of process of Court;

(h)     The Board had negligently granted the Plaintiff the two 2018 certificates, due to progressing [the professional negligence] proceedings while the Plaintiff actively engaged in an abuse of process of Court.

(i)      The Plaintiff has acted, and continues to act, in an unreasonable manner in progressing [the professional negligence] Court proceedings due to, knowingly, committing an abuse of process of Court in relation to these Court proceedings."

14.         Mr. O'Connor's claim for malicious falsehood is set out as follows: -

"49.   ---

(d)     damages and/or exemplary damages under the 2009 Act s. 42 and s. 42(2) against the Board, its servants or agents, for malicious falsehoods made about the plaintiff, and relied upon for wrongfully and unlawfully damage (sic) to the good name of the Plaintiff, attacked the validity of the Plaintiff 2014/6262P and 2014/6263P legal claims, and relied on defamatory, and untrue, statements grounds to deny the provision of statutory legal aid to the Plaintiff."

15.         As previously noted, the letter referred to at para. 29 of the statement of claim was sent by a solicitor assigned by the Legal Aid Board following the settlement of judicial review proceedings which Mr. O'Connor had taken, arising from which, the Legal Aid Board had agreed to provide him with legal assistance.

High Court application: -

16.         By notice of motion dated 15 November 2013, the Legal Aid Board sought the following reliefs: -

(1)    An order pursuant to Order 1B, rule 3 of the Rules of the Superior Courts, dismissing the plaintiff's claim on the grounds that the statement on which the action is brought is not reasonably capable of being found to have a defamatory meaning.

(2)     Further and/or in the alternative, an order pursuant to Order 19, rule 28 of the Rules of the Superior Courts, striking out the proceedings on the ground that the said statement of claim discloses no reasonable cause of action and/or is frivolous or vexatious.

Judgment of the High Court: -

17.         In judgment delivered orally, the High Court (Stack J.) granted the reliefs sought.  In the course of her ruling the Trial Judge referred to the said judgment of Keane J.  In considering the application to dismiss the claim for defamation, the Trial Judge referred to the principles set out by this Court in Gilchrist v Sunday Newspapers [2017] IECA 191.  Applying these principles to the contents of the letter of 27 July 2018 and the defamatory meanings claimed by Mr. O'Connor, the Trial Judge concluded: -

"To my mind, it is quite clear from the terms of the letter, and it cannot reasonably be interpreted otherwise, that the solicitors are pointing out that, in order to continue with the proceedings, certain proofs will have to be put in order, in particular the procurement of an independent expert report.  There is absolutely no reference to the plaintiff having engaged in an abuse of process.  I think the letter can be fairly interpreted as saying that if the proceedings are now to continue into the future that it would not be an appropriate procedure given a number of things: the general law and abuse of process as referred to by Mr. Justice Keane in his judgment but not so found by Mr. Justice Keane in his judgment; secondly, the statement in Delany and McGrath of what the usual practice is; and thirdly the ethics, the Guidance and Ethics Committee Guidelines which the Legal Aid Board want to comply with before they come on record.  There is no statement of anybody engaging in an abuse of process there is, by reference to those things, advice that if the Board is now to act, these steps will have to be taken."

18.         The Trial Judge also dismissed the claim for malicious falsehood, stating: -

"... however, I am satisfied that the claim under s. 42 must be dismissed under O. 19, r. 28, taking into account the affidavit evidence as that new version of the Rule now allows me to do.  By looking at the letter, I do not think that the plaintiff can say that anything in the letter of 2018 was untrue."

Notice of Appeal: -

19.         In his notice of appeal Mr. O'Connor lists some twenty grounds.  The Trial Judge is said to have failed to apply the correct principles to the application and repeatedly that, in giving her ruling, "erred in law, or a mixed issue law and fact."  The essential proposition is that the Trial Judge erred in failing to conclude that the statement by the Legal Aid Board that Mr. O'Connor needed to obtain an independent expert report meant - or for the purposes of the motion to summarily dismiss the action, was capable of meaning - that he had been guilty of an abuse of process in instituting the professional negligence actions without such a report.

Consideration of appeal: -

20.         There are a number of statutory provisions which are relevant to this appeal.  Section 14 of the Defamation Act 2009 (the Act of 2009) provides: -

"14.— (1) The court, in a defamation action, may give a ruling—

(a) as to whether the statement in respect of which the action was brought is reasonably capable of bearing the imputation pleaded by the plaintiff, and

---

(2) Where a court rules under subsection (1) that—

(a) the statement in respect of which the action was brought is not reasonably capable of bearing the imputation pleaded by the plaintiff, or

---

it shall dismiss the action in so far only as it relates to the imputation concerned.

Section 34(1) ---

(2) The court in a defamation action may, upon the application of the defendant, dismiss the action if it is satisfied that the statement in respect of which the action was brought is not reasonably capable of being found to have a defamatory meaning.

Section 42 ---

(1) In an action for slander of title, slander of goods or other malicious falsehood, the plaintiff shall be required to prove that the statement upon which the action is founded—

(a) was untrue,

(b) was published maliciously, and

(c) referred to the plaintiff, his or her property or his or her office, profession, calling, trade or business."

21.         In considering whether or not a statement is reasonably capable of being found to have a defamatory meaning, the following passage from the judgment of Irvine J. (with whom Finlay Geoghegan and Peart JJ. agreed) in Gilchrist v Sunday Newspapers Limited & Ors. [2017] IECA 191 is of particular assistance: -

"35.  It is not disputed that for the purposes of an application under section 14(1) of the 2009 Act, the onus rests upon the defendant to establish that the article complained of is not reasonably capable of bearing the imputation and meanings pleaded by the plaintiff.  The test to be applied by the court is whether the article, when viewed objectively by the reasonable reader, is capable of giving rise to the pleaded meanings (see Hardiman J. in Travers).  It is not disputed that the role of the judge on a section 14 application is not to determine the meaning of the words or article published but to delimit the outside boundaries of the possible range of meanings that might be ascribed thereto by the notional reasonable reader.  Clarke MR in Jeynes v News Magazines Limited [2008] EWCA Civ 130 helpfully summarised the principles relevant to how the meaning of words should be determined as follows: -

          '(1)    The governing principle is reasonableness.

          (2)     The hypothetical reasonable reader is not naïve but he is not unduly suspicious. He can read between the lines.  He can read in an implication more readily than a lawyer and may indulge in a certain amount of loose thinking but he must be treated as being a man who is not avid for scandal and someone who does not, and should not, select one bad meaning where other non-defamatory meanings are available.

(3)     Over-elaborate analysis is best avoided.

(4)     The intention of the publisher is irrelevant.

(5)     The article must be read as a whole, and any 'bane and antidote' taken together.

(6)     The hypothetical reader is taken to be representative of those who would read the publication in question.

(7)     In delimiting the range of permissible defamatory meanings, the court should rule out any meaning which, 'can only emerge as the produce of some strained, or forced, or utterly unreasonable interpretation...'"

22.         Applying these principles, the contents of the letter of 27 July 2018 as pleaded in the statement of claim, leads to the conclusion that they are not "reasonably capable of being found to have a defamatory meaning."  The first paragraph of the letter is simply a statement of fact which refers to decisions of the Supreme Court and the High Court. 

23.         The second paragraph of the letter states that ".. You cannot proceed with a professional negligence action ... in the absence of an affirmative and supportive report.." is an opinion of the law derived from legal authority.  One could argue that it overstates the position (see decision of Peart J. in Murray v Budds [2015] IECA 269 (as referred to by Keane J.)) but in no sense could it be considered to be defamatory. 

24.         The third paragraph of the letter refers to "case law and practice notes of the Guidance and Ethics Committee of the Law Society.." stating that to come on record, a supportive report from an independent solicitor was required.  This paragraph simply sets out a requirement for the Legal Aid Board to come on record referencing standards adopted by the Law Society, the professional body for solicitors.  This could not be considered to be defamatory of Mr. O'Connor.

25.         The final paragraph of the said letter identifies solicitors who may be involved in the proceedings.  It should be noted that this information was given to Mr. O'Connor to assist him in identifying a suitably qualified independent expert. 

26.         Mr. O'Connor maintained that as he had a supportive opinion from a senior counsel instructed in the action, he had satisfied the requirement of having a report from an independent suitably qualified expert.  This, according to Mr. O'Connor, meant that the respondent had defamed him in the said letter by stating or implying that his proceedings were being maintained without an expert report and thus he was engaging in an "abuse of process".  Keane J. had found in 2017 - with some misgivings - that the opinion or view expressed by senior counsel amounted to reasonable grounds for the commencement of the proceedings.  That was quite different to the question which the Legal Aid Board solicitor was addressing in 2018, which was what was necessary for the action to progress to trial.  The legal test is not what Mr. O'Connor understood or misunderstood the letter to say but what the hypothetical reasonable reader would understand it to mean.

27.         Mr. O'Connor did not accept, as is the case, that a supportive opinion from a senior counsel instructed in the matter is entirely different from a supportive report from an independent expert.  In that, however, he was mistaken.  A senior counsel instructed in an action cannot give evidence in that action.  The role of a senior counsel is to advise and conduct the proceedings, not to give evidence.  The Trial Judge correctly found that there was nothing in the letter that stated, either expressly or by implication, that Mr. O'Connor in maintaining the proceedings was guilty of an "abuse of process". 

28.         The Trial Judge was correct in her finding that there was nothing in the letter of 28 July 2018 that was untrue.  Further, there was no evidence of malice.  It followed from this that the requirements of s. 42 of the Act of 2009 were not met to maintain an action for malicious falsehood.

29.         I am satisfied that the Trial Judge was correct in finding that there was nothing in the said letter that was defamatory of Mr. O'Connor.  Indeed, in my view, it was good professional practice on the part of the solicitor to send such a letter to Mr. O'Connor.  The said letter was clearly an effort to assist Mr. O'Connor in proceeding with his actions.

Conclusion: -

30.         By reason of the foregoing, I am satisfied Mr. O'Connor's appeal should be dismissed.  As for costs, my provisional view is that as the respondent has been "entirely successful" in opposing the appeal, it should be entitled to their costs.  Should Mr. O'Connor wish to contest this view, he may do so by a written submission (not longer than 1,000 words) to be filed no later than ten days after the delivery of this judgment.  Should the respondent wish to reply, it may do so by written submission (also not longer than 1,000 words) within ten days thereafter. 

31.         As this judgment is being delivered electronically, Whelan and Allen JJ. have authorised me to record their agreement with it.

Result:     Appeal dismissed.