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Cite as: [2005] IEHC 162
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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> Richardson & Anor v. Madden [2005] IEHC 162 (27 May 2005) URL: http://www.bailii.org/ie/cases/IEHC/2005/H162.html Cite as: [2005] IEHC 162 |
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Neutral citation no. [2005] IEHC 162
THE HIGH COURT
[1999 No. 4465P]
BETWEEN
MICHAEL RICHARDSON AND WENDI FERRIS RICHARDSON
PLAINTIFFS
AND
GERARD MADDEN
DEFENDANT
AND
THE HIGH COURT
[1999 No. 2816P]
BETWEEN
MICHAEL RICHARDSON AND WENDI FERRIS RICHARDSON
PLAINTIFFS
AND
DERMOT O'DONOVAN, MICHAEL SHERRY, MICHAEL HOGAN
AIDAN FRAWLEY AND THOMAS DALTON
PRACTICING UNDER THE STYLE AND TITLE OF DERMOT G. O'DONOVAN AND PARTNERS SOLICITORS
DEFENDANTS
JUDGMENT of Quirke J. delivered on the 27th day of May, 2005.
The plaintiffs, Michael Richardson and Wendi Ferris Richardson, claim damages from Gerard Madden for breach of contract. They claim damages also from their former solicitors Messrs Dermot G. O'Donovan and Partners for negligence and breach of duty arising out of the same set of facts and circumstances. They have instituted separate proceedings in the High Court in respect of each claim.
By order of the High Court (Johnson J.) dated 24th March, 2003, it was directed (a), that the two separate actions should be listed for hearing on the same date and tried by the same judge and (b), that the plaintiffs' claim against Gerard Madden should be tried first.
When the proceedings came before this court on 5th April, 2005, it was decided by the Court, without objection from the parties, that, since the evidence to be adduced in each case was common to both actions, the court should, for convenience, hear the evidence in full before deciding each case separately.
It has been agreed that the determinations in each case will be made in the order directed by Johnson J. i.e. that the plaintiffs claim against Mr. Madden (Record No. 1999 No. 4465P) will be determined first and the plaintiffs claim against Dermot G. O'Donovan and Partners (Record No. 1999 No. 2816P) will be determined immediately thereafter.
Since the factual background and the findings of fact are common to both sets of proceedings, I have, for convenience, included the determinations in both cases within the same document.
FACTUAL BACKGROUND
The first named plaintiff Michael Richardson had worked in radio for a number of years and in particular had been the proprietor of a "pirate"
(i.e. unlicensed) radio station in Limerick known as "Big L" between 1978 and 1985.
Thereafter he had worked in other radio stations between 1985 and 1989.
Having worked abroad for some years he returned to Ireland with his wife Wendi Ferris Richardson in 1996 and settled in Limerick.
In November of 1996 Michael Richardson responded to an advertisement from the Independent Radio and Television Commission (hereinafter the IRTC) for "expressions of interest" in applying for a licence to provide a radio service for Limerick City and County.
The "expression of interest" was made on behalf of Michael Richardson, his wife Wendi Ferris Richardson and a mutual friend of theirs called John Franks who then lived, (and still lives), in London.
The proposed radio station was to be called "Big L Radio Limerick".
Some time in 1999 the radio licence held by Radio Limerick One Ltd. was terminated by the IRTC. A challenge by the licence holder to that termination undertaken in the High Court by way of judicial review failed in July of 1996. An appeal to the Supreme Court was unsuccessful. However Radio Limerick One Ltd. was permitted to continue broadcasting pending the appointment of a new licensee.
Radio Limerick One Ltd. (and its beneficial owner Mr. Madden) continued to benefit from the advertising and other revenue from the radio station during the interim period.
The applicants included (a), the plaintiffs and Mr John Franks, who wished to provide a radio station known as "Big L Radio Limerick" (b), a company called Radio Limerick 1995 Ltd. which was partly owned by Gerard Madden (c), a company called Maigueside Communications Ltd. (hereafter Maigueside) in which a Mr Pat Fitzgerald had a beneficial interest and (d), a consortium headed by a Mr Tom Nolan.
Mr. Richardson showed a guarded interest. He agreed to attend a meeting with some of the other failed applicants for the purpose of discussion. A meeting was arranged and was held in the Two Mile Inn Hotel in Limerick.
It is likely that it was held on 24th March, 1997. In addition to Gerard Madden and Michael Richardson it was attended by Mr. Patrick Fitzgerald, Messrs Bertie Wall and John Riordan (from Maigueside Communications Ltd), and by Mr. Tom Nolan.
In the course of discussion Michael Richardson stated clearly that he was not prepared to be responsible for any costs associated with any proposed proceedings. After further discussion those attending the meeting decided to consult Messrs. Dermot G. O'Donovan and Partners Solicitors for the purposes of obtaining legal advice as to the prospects of mounting a successful challenge to the decision of the IRTC.
Mr. Fitzgerald and Mr. Riordan advised Mr. Hogan that they were seeking advice as to the prospects of mounting a successful challenge to the decision of the IRTC. On the afternoon of the 24th March, 1997, Mr. Hogan met with Mr. Pat Fitzgerald, Mr. John Riordan and Mr. Bertie Wall.
During the meeting the prospects of successfully challenging the decision of the IRTC was discussed. There was discussion also in relation to the costs associated with those proceedings. During the meeting Mr. Richardson made clear to all who were present that he was not prepared to make any contribution towards the costs of the proceedings or to bear any responsibility in respect of any costs arising out of any decision to proceed.
It was agreed to defer a decision on whether or not to mount a challenge in the High Court pending further discussion by the potential litigants amongst themselves. The meeting concluded.
I am satisfied also that Mr. Nolan further reassured Mr. Richardson, in the presence of Mr. Madden, that Mr. Madden would be responsible for all of the costs associated with the proposed legal challenge.
Mr. Madden agreed to provide Mr. Hogan with a cheque in the amount of IR£4,000 on account in respect of the proceedings.
The six applicants were Maigueside Communications Ltd., New Limerick FM Ltd., Limerick 95 FM Ltd., Michael Richardson, John Franks and Wendi Ferris-Richardson.
Mr. Richardson had agreed to participate in the proceedings on his own behalf, on behalf of his wife and on behalf of Mr. John Franks. It is improbable that either Wendi Ferris-Richardson or John Franks were ever advised that they had been named as applicants within the High Court proceedings. They were certainly never advised by anyone of the implications associated with that fact. They were never advised of anything at all by Mr. Hogan on behalf of D.G. O'Donovan and Partners.
The order of the High Court recited that an undertaking as to damages had been given on behalf of the applicants by their solicitors.
Thereafter the proceedings were dealt with expeditiously and the parties took a number of steps including compliance with an Order for Discovery.
Mr. Richardson in evidence stated unequivocally that he attended the offices of D.G. O'Donovan and Partners on 28th April, 1997 and spoke to Mr. Hogan. He stated that Mr. Hogan asked for payment in the amount of IR£10,000 towards the costs of the proceedings.
He said that this request was made when he was in Mr Hogan's office swearing an affidavit of discovery in respect of the proceedings.
He said that having left the office of D.G. O'Donovan he was disturbed at the prospect that he, or his wife, or Mr. Franks should have to pay any sum by way of costs towards the proceedings.
He stated that on the following morning, (the 29th April, 1997), he wrote a letter to Mr. Hogan in the following terms:
"Dear Michael,
Thank you for your recent copy files sent to me on the 18th of this month. I am sorry that I was not able to return your telephone call regarding the hearings to be heard in Dublin on 25th.
Further to your request for funding the Court proceedings, I must reiterate my original position that I am unable to proceed as a partner in this venture, for reasons that have already been stated.
It was a pity that it was allowed to go this far before anything was done to correct the situation. May I take this opportunity to you to wish everyone success in whatever shape it comes!
Yours sincerely,
Michael Richardson.
Also on behalf of Wendi Ferris-Richardson
John Franks."
Michael Richardson said that at midday on 29th April, 1997, he drove to Limerick. He said that as he approached the premises of Messrs D.G. O'Donovan and Partners he saw Mr. Michael Hogan and Mr. Patrick Fitzgerald coming out of the building. He said that as he approached Mr. Hogan he gave him the letter saying "the letter says it all". He said he then turned, left Mr Hogan and Mr Fitzgerald and drove away.
He said that he received a letter dated 15th May, 1997, which appeared to be a "circular" letter which had been sent to all of the participants in the proceedings outlining the steps which had been taken in the proceedings up to and including the date of the letter. He said that thereafter he heard nothing further from D.G. O'Donovan and Partners or any of the other participants in the proceedings.
Mr. Hogan stated that the affidavit of discovery to which Mr. Richardson referred was in fact sworn by Mr. Richardson on 23rd April, 1997. He pointed out that the affidavit of discovery which bore Mr. Richardson's signature was dated 23rd April, 1997.
On the 18th July, 1997, by order of the High Court (McGuinness J.) the relief sought on behalf of the applicant was refused and the IRTC was awarded the costs of the proceedings (including all reserved costs).
Mr. Madden replied. He said "we lost". He said nothing about any liability as to costs.
On 7th October, 1997, Mr. Hogan wrote to Gerard Madden enclosing a copy of the Bill of Costs and Outlay received from Ivor Fitzpatrick and Company. He advised that he had referred his own file to his costs accountants.
By further letters dated 22nd October, 1997, the 10th November, 1997, the 20th November, 1997 and 25th November, 1997, Mr. Hogan on behalf of Dermot G. O'Donovan wrote to Gerard Madden seeking an urgent meeting to discuss the costs claimed on behalf of the IRTC and to discuss his own Bill of Costs. He received no reply from Mr. Madden.
By letter dated 6th January, 1998, Mr. Hogan wrote again to Gerard Madden. He received no reply but a meeting was arranged between Michael Hogan and Gerard Madden at the end of February 1998 for the purpose of discussing the issue.
Messrs Ivor Fitzpatrick and Company Solicitors on behalf of the IRTC that judgment had been registered against him in the amount of IR£66,078.43 and would be published in Stubbs Gazette. On the same date Wendi Ferris-Richardson received an identical letter. It contained advice that the same steps had been taken against her.
Gerard Madden replied "right yeah."
Michael Richardson went on "…there would be no costs, like you would handle the costs."
Gerard Madden clearly and audibly replied "OK".
On the 19th July, 1998, Michael Richardson arranged to see Michael Hogan at the office of D.G. O'Donovan and Partners. Again he was wearing a recording device. He recorded his conversation with Michael Hogan.
The bankruptcy petitions in respect of Michael Richardson and Wendi Ferris-Richardson have been adjourned generally pending the outcome of these proceedings This was achieved with some difficulty after certain undertakings were given on behalf of Michael Richardson and Wendi Ferris-Richardson in respect of these proceedings.
THE PLAINTIFFS CLAIM AGAINST GERARD MADDEN
The plaintiffs claim that in consideration of their agreement to participate in the proposed proceedings against the IRTC, Gerard Madden agreed to be responsible for all costs of and incidental to those proceedings including any liability that the plaintiffs might have to the IRTC in respect of costs.
They claim that they duly participated in the proceedings as fellow applicants for the principal benefit of Gerard Madden. They claim that, in breach of the agreement, Gerard Madden has failed and refused to discharge the costs associated with the proceedings and in particular to discharge the plaintiffs liability to IRTC in respect of costs.
They claim that as a result of Gerard Madden's breach of contract the plaintiffs have suffered serious loss, damage, inconvenience and distress and substantial damage to their respective reputations.
THE DEFENCE OF GERARD MADDEN
Gerard Madden denies that he agreed to indemnify the plaintiff in respect of all of the costs of and incidental to the proceedings against IRTC.
He concedes that he agreed to discharge some of the costs of prosecuting the proceedings against the IRTC but he says that his agreement as to his liability to discharge those costs was restricted to the sum of IR£40,000. He says that he discharged that sum by making a series of payments by cheque, bank draft and cash, some of which were designed to give the impression that they were payments made by other parties to the proceedings.
In particular, he denies that he agreed to indemnify the plaintiffs in respect of any liability which the plaintiffs might have in respect of the costs of IRTC.
CONCLUSION
Whether or not Gerard Madden entered into an agreement with the plaintiffs to indemnify them in the manner claimed is a question of fact for determination by this court.
Having heard and considered all of the evidence adduced in this case and having carefully observed the demeanour of the various witnesses, I am satisfied on the evidence and on the balance of probabilities as follows:
Mr. Madden stood to benefit significantly financially by delaying the decision of the IRTC on the award of a new licence. He was entitled to continue broadcasting until the award of a new licence and to enjoy the advertising and other revenues associated with that broadcasting.
He actively encouraged the other applicants (including the plaintiffs) to participate in the proceedings.
Mr. Nolan, in the presence of Gerard Madden also assured Michael Richardson that "…Gerard will take care of everything….".
At no point during the conversation did Mr. Madden demur from suggestion that he had agreed to "handle the costs".
His failure to do so was consistent with the evidence of Michael Hogan. It was
consistent with the evidence of Michael Richardson. It was consistent with the existence of an extant agreement by Mr Madden to indemnify the plaintiffs in respect of all of the costs of and incidental to the proceedings.
I am satisfied on the evidence and on the balance of probabilities that Gerard Madden expressly agreed on or about the 25th March, 1997, that he would indemnify Michael Richardson and Wendi Ferris-Richardson in respect of all of the costs of and incidental to the proposed challenge by way of judicial review in the High Court seeking to quash the decision of the IRTC.
In reaching that conclusion I have taken into account the findings of fact which I have outlined above. However I have been principally influenced on this issue by the detailed oral evidence adduced during the trial by the witnesses as to fact. The testimony of Michael Richardson, Patrick Fitzgerald, Wendi Richardson and Michael Hogan on the contract of indemnity was coherent and relatively consistent. It was supported, in part, by documentary evidence.
The testimony of Gerard Madden was unsatisfactory and inconsistent. I found him to be an unreliable witness.
I am satisfied, therefore, that although there was an agreement between the plaintiffs and Gerard Madden (in the terms outlined above), Gerard Madden has failed and refused to discharge his obligations and on foot of that agreement. It follows that the plaintiffs are entitled to recover damages from Gerard Madden to compensate them for the loss, damage, distress, disruption, inconvenience or loss of reputation which they have sustained as a result of Gerard Madden's breach of contract.
THE PLAINTIFFS CLAIM AGAINST DERMOT G. O'DONOVAN AND PARTNERS
Mr. Simon McAleese, Solicitor, testified in relation to the steps which should, as a matter of practice, have been taken by a reasonably competent and prudent solicitor faced with the issues which faced Mr. Hogan in or around March of 1997.
He said that a reasonably competent and prudent solicitor should have:
(a) expressly and individually advised all of the parties of all risks associated with litigation and in particular of the consequences of failure including
(b) the risks of an award of costs against an unsuccessful party. This should have been achieved by way of
(c) compliance with s. 68 of the Solicitors (Amendment) Act, 1994 which requires a solicitor who receives instructions from an aspiring litigant to furnish such a client "..with… particulars in writing of the circumstances in which the client may be required to pay costs to any other party or parties …." and that
(d) this should have been done by way of written advice to both plaintiffs
pursuant to the Law Society of Ireland's "Guide to Professional Conduct".
Mr. McAleese stated that in the circumstances of the instant case
Michael Hogan had a clear duty to ensure that an enforceable and coherent
costs indemnity agreement was recorded in writing between the plaintiffs and
Gerard Madden.
He said that prudent solicitors should also remind clients of their primary liability in respect of the clients' own costs of prosecuting litigation.
It was also the testimony of Mr. McAleese that if a reasonably competent and prudent solicitor is instructed by several parties to litigation and becomes aware that one party intends to indemnify another party in respect of costs of or incidental to the litigation the solicitor has a duty to reduce to writing the basis of the contractual relationship, (i), between the solicitor and the clients and (ii), between the clients inter partes.
He said that a competent and prudent solicitor instructed by several clients with apparently divergent commercial interests should advise those clients that it may be necessary for them to seek separate and independent legal advice to protect their respective interests.
Mr. McAleese said that solicitors should keep affected clients advised of the progress of litigation at each stage of the litigation. In particular, where clients do not enjoy corporate limited liability they should be kept advised as to any adverse costs consequences which have resulted from the litigation.
No evidence was led on behalf of Messrs D.G.O'Donovan and Partners which sought to challenge the evidence of Mr McAleese.
CONCLUSION
In Roche v. Peilow [1986] I.L.R.M. 189 the Supreme Court (Henchy J.) observed at p. 196 that:
"The general duty owed by a solicitor to his client is to show him the degree of care to be expected in the circumstances from a reasonably careful and skilful solicitor. Usually a solicitor will be held to have discharged that duty if he follows a practice common among the members of the profession…Conformity with the widely accepted practice of his colleagues will normally rebut an allegation of negligence against a professional man, for the degree of care which the law expects of him is no higher than that to be expected from an ordinary reasonable member of the profession or of the speciality in question."
Mr. Hogan, in evidence, fairly and candidly accepted that, by failing to offer any advice whatever to Wendi Ferris-Richardson at any stage about any aspect of the proceedings he had failed to adopt the appropriate practice expected of a reasonably competent and prudent solicitor in such circumstances.
I am satisfied on the evidence that had Wendi Ferris-Richardson been advised by Mr. Hogan of the risks attendant upon the proceedings (in which she was a named party) she would not have embarked upon those proceedings.
Mr. Hogan, in evidence, stated that at the meeting of the 25th March, 1997, he advised all of the proposed applicants of the risks associated with a failed legal challenge.
On the evidence it seems unlikely that he gave a warning in the terms contemplated by s. 68 of the Solicitors (Amendment) Act 1994. He certainly failed (by his own admission) to furnish Mr. Richardson "…with particulars in writing of the circumstances in which the client may be required to pay costs to any other party or parties…".
Mr. Keane, on behalf of Dermot G. O'Donovan and Partners points out that the failure to furnish particulars in writing pursuant to s. 68 of the Act of 1994 does not per se amount to negligence. That is certainly correct.
However Mr. Hogan, on his own evidence, was conscious that Michael Richardson was unwilling to participate in any proceedings which would leave him exposed to the risk of any expense. In such circumstances there was a clear obligation upon Mr. Hogan either
(a) to take appropriate measures to protect Mr. Richardson from exposure to the risk of a liability as to costs or
(b) to comply with the provisions of s. 68 in respect of both Michael Richardson and Wendi Ferris-Richardson ( and, indeed, John Franks), so that they would be fully and adequately advised in the manner contemplated by s. 68 of the Act of 1994.
I accept the evidence of Mr. McAleese that, in the circumstances, Mr. Hogan should have kept Michael Richardson and Wendi Ferris-Richardson (and John Franks) advised as to the progress of the litigation on a continuous basis.
In particular he had a duty to advise the plaintiffs (and Mr. Franks) that orders for costs had been made against them in favour of the Minister for Transport Energy and Communications by the High Court on 2nd May, 1997, and in favour of the IRTC by the Supreme Court on 10th June, 1997.
It has been established on the evidence that the order of the Supreme Court on 10th June, 1997, affirming the order of the High Court (which had refused discovery of certain documents) comprised a severe setback to the prospects of mounting a successful challenge by way of judicial review.
Mr. Hogan and the plaintiff co-applicants were so advised by Counsel.
Inexplicably Mr. Hogan failed to advise the plaintiffs (or Mr. Franks) that the prospects of successfully prosecuting the claim were now severely reduced and there was now a real and serious likelihood of an award of costs in favour of the IRTC and against the plaintiffs.
It follows from what I have found earlier that Michael Hogan, on behalf of Dermot G. O'Donovan and Partners, was negligent and in breach of his duty to Wendi Ferris-Richardson by failing to offer her any advice at any stage of any aspect of the proceedings which he was conducting on her behalf.
As I have earlier indicated I am satisfied that if Wendi Ferris-Richardson had been advised of the risks attended upon the proceedings she would never have embarked upon the proceedings in the first instance.
Accordingly Wendi Ferris-Richardson is entitled to recover damages from the defendants to compensate her for any loss, damage, inconvenience, distress or disruption which he has sustained by reason of the defendants negligence, breach of duty and breach of contract.
I am also satisfied on the evidence that Michael Hogan, on behalf of the defendants was negligent, in breach of his duty to and in breach of his contract with Michael Richardson by failing to take any or any adequate steps to properly advise Michael Richardson (i), of the risks attendant upon the litigation upon which Michael Richardson was about to embark, (ii), that the claim might fail and, (iii), that Michael Richardson would then be primarily and personally liable to discharge the IRTC's very substantial costs.
I am satisfied on the evidence that Michael Hogan, on behalf of the defendants, owed a particular duty to Michael Richardson to so advise Michael Richardson because he knew that Michael Richardson was unwilling (and probably unable) to pay any costs associated with the litigation.
I am satisfied also that Michael Hogan, on behalf of the defendants, was negligent, in breach of his duty to and of his contract with Michael Richardson in failing to take any or any appropriative measures to protect Michael Richardson from exposure to the risk of liability as to costs.
He had a further duty to take such steps on behalf of Michael Richardson because he knew that Michael Richardson did not enjoy the corporate protection enjoyed by his fellow applicants and was personally exposed to liability for costs.
Michael Hogan, on behalf of the defendant, was further negligent, in breach of his duty to and his contract with Michael Richardson because he failed to keep Michael Richardson advised as to the progress of the proceedings after the 15th May, 1997, and in particular failed to advise him:
(a) that an order had been made awarding costs to the IRTC against him on 10th June, 1997, and
(b) that the prospects of a successful outcome to the proceedings had been severely reduced by the 10th June, 1997.
It follows that Michael Richardson is entitled to damages to compensate him for the loss, damage, inconvenience, distress and damage to his reputation which has resulted from the negligence, breach of duty and breach of contract on the part of the defendants.
Having regard to the evidence adduced by Michael Richardson, Wendi Ferris-Richardson and John Franks, I am satisfied on the balance of probabilities that Michael Richardson wrote a letter dated 29th April, 1997, in the terms which have been outlined earlier herein. It is probable that he handed the letter to Michael Hogan in the manner which he described in evidence.
Gerard Madden said that when he was present in Michael Hogan's office he saw that letter. He said that he remarked to himself as to its print, colour and font style. I did not find Gerard Madden's evidence on that issue to be credible.
Accordingly I do not find that it has been established on the balance of probabilities that the letter was in Michael Hogan's office on the date described in evidence by Gerard Madden.
Nonetheless it has been established in evidence and on the balance of probabilities that a letter dated 29th April, 1997, was delivered to Mr. Michael Hogan on or around that date. Inexplicably he failed to act upon it. He may have mislaid it. It is difficult to believe that, had he opened it and read its contents, he would not have acted upon it.
However his failure to deal appropriately with the letter comprises further negligence, breach of duty and breach of contract on the part of Michael Hogan and of D.G.O'Donovan and Partners.
DAMAGES
Mr. Keane S.C. on behalf of the defendants contends that the plaintiffs are entitled to be indemnified by Gerard Madden in respect of any loss or damage which they have sustained. He says that no evidence has been adduced indicating that they cannot recover damages from Gerard Madden to compensate them for their losses. He has relied upon the decision of the Supreme Court (Finlay C.J) in Hegarty v. O'Loughran [1990] 1 IR 148 as authority for the proposition that a tort has not been completed until damage has been caused by the wrong complained of.
He also says that damages may not be awarded if the court is satisfied on the balance of probabilities that no loss has flowed directly from the tort complained of. He relied upon the decision of the Supreme Court (Kearns J.) in the case of O'Carroll v. Diamond (Unreported, Supreme Court, 12th April, 2005) in support of that contention.
The principles identified in those cases are not in dispute. However the facts of the instant case can be clearly distinguished from the facts of both cases relied upon by Mr. Keane S.C.
In the instant case judgment has been registered against both plaintiffs in the sum of €88,902.30 (with costs and interest at the rate of 8.7% per annum from 18th July, 1997). Further orders for costs have been made against them. Efforts have been made to execute the orders for judgment and costs. Bankruptcy proceedings against the plaintiffs have been commenced and temporarily suspended. They have suffered and continue to suffer distress, convenience, disruption and damage to their reputations. Their loss and damage has been sustained over a period in excess of six years.
If Gerard Madden had discharged his contractual obligations to the plaintiffs then they would not have sustained the loss and damage which they have sustained.
If Michael Hogan had discharged the contractual and other obligations owed by D.G.O'Donovan and Partners to the plaintiff then they would not have sustained that loss and damage.
The civil wrongs complained of in both sets of proceedings have been completed. Loss and damage has flowed directly from each.
The fact that Gerard Madden is a concurrent wrongdoer with D.G.O'Donovan and Partners and that both have caused the same loss and damage to the plaintiffs is not relevant to these proceedings. The court has not been required to determine any issue as to indemnity or contribution as between the concurrent wrongdoers in either of the two sets of proceedings.
The plaintiffs have established on the evidence and on the balance of probabilities that the loss and damage which they have sustained would not have occurred in the absence of breach of contract on the part of Gerard Madden.
They have also established on the evidence and on the balance of probabilities that the loss and damage which they have sustained would not have occurred in the absence of negligence breach of duty and breach of contract on the part of D.G.O'Donovan and Partners.
It follows that the application of the principle identified inter alia by the Supreme Court (Kearns J.) in O'Carroll v. Diamond (Unreported, Supreme Court, 12th April, 2005) requires that the plaintiff should be awarded damages against the defendants in both sets of proceedings.
Since the plaintiffs have sustained loss and damage by reason of civil wrongs committed by concurrent wrongdoers they are entitled to joint and several judgment against those wrongdoers.
The plaintiffs claim damages arising out of the negligence, breach of duty and breach of contract.
They have proved that as a result of the civil wrongs of the defendants they are now liable, jointly and severally, to discharge costs in the amount of €88,902.30 together with interest thereon at the rate of 8% per annum from 18th July, 1997.
They are, accordingly entitled to recover from the defendants in both proceedings, jointly and severally, a sum by way of damages which will enable them to discharge that liability.
They are also entitled to recover from the same defendants a sum by way of damages sufficient to enable them to discharge (a), their liability to pay the additional costs incurred by the IRTC in connection with the latter's bankruptcy proceedings against the plaintiffs (b), their liability to pay the costs incurred by the IRTC and the Minister for Transport Communications and Energy arising out of the High Court proceedings, and, (c), the costs which they have incurred in defending the bankruptcy proceedings commenced against them by the IRTC.
Finally they are entitled to recover damages sufficient to compensate them for the very substantial distress, inconvenience, disruption and the damage to their reputations which has resulted directly from the wrongs complained of.
I intend to hear Counsel for the parties upon the issue of damages before making a final order in these proceedings.
Approved: Quirke J.