High Court of Ireland Decisions

[2018 No. 10665 P]

[2025] IEHC 121

BETWEEN:

 

FINBAR TOLAN

Plaintiff

-AND-

 

JOHN BRADY and JOHN DILLON-LEETCH both practicing under the style and title of DILLON-LEETCH AND COMERFORD SOLICITORS

Defendants

 

JUDGMENT of The Hon. Mr. Justice Alexander Owens delivered on the 26th day

February 2025

1              Finbar Tolan is from Claremorris, County Mayo. In 2012 he was a cattle dealer. He bought cull cows at marts in Counties Mayo and Roscommon and sold them to the Dawn Meats factory at Ballyhaunis. He relied on mart credit to finance purchases.

2              At that time Connacht Gold Co-operative Society Limited (Connacht Gold) operated livestock marts at Balla, Ballinrobe and Ballymote. In August 2012 Connacht Gold refused to permit Finbar Tolan to buy any more cows on credit.

3              In November 2012 Finbar Tolan brought an action in the High Court against Connacht Gold arising from this refusal. He claimed that they reneged on an agreement to give him two weeks credit to buy cull cows and refused to allow him to bid for cows on credit at Balla Mart on 11 August 2012. He claimed that he was unable to buy cows from elsewhere and lost his contract to supply cows to Dawn Meats. He claimed that as a result of this his credit was damaged and his business collapsed.

4              That action was tried before the President of the High Court between 12 May 2015 and 15 May 2015. The President dismissed Finbar Tolan's claim.

5              The President found that during the summer of 2012 Connacht Gold managers were concerned that Finbar Tolan was overtrading on mart credit. They wanted to reduce their exposure. The President accepted when Connacht Gold representatives broached the subject of agreeing a limit on his credit at a meeting on 9 August 2012, he walked out on them.

6              The President found that Finbar Tolan had no right to insist that Connacht Gold allow him to buy cows on credit. He decided that a document signed by Finbar Tolan and Connacht Gold representatives at a meeting on 16 July 2012 did not embody any agreement to continue to give him credit. He concluded that this document recorded an interim arrangement.

7              In this action Finbar Tolan is suing his former solicitor, John Brady. John Brady represented him in his action against Connacht Gold. Finbar Tolan claims damages for breach of contract and negligence.

8              This relates to words allegedly spoken by the manager of Balla Mart on 11 August 2012 to farmers who enquired about why Finbar Tolan was not present that day to bid for their cull cows. Finbar Tolan alleges that the manager told these farmers not to mention his name to him and that he was not welcome at that mart. He claims that these communications destroyed his business.

9              These statements were capable of implying that Finbar Tolan's business was insolvent and that he could not or would not honour his obligations to Connacht Gold.

10           Finbar Tolan alleges that John Brady did not draw his attention to a suggestion in counsel's advice on proofs in his action against Connacht Gold that his claim be amended to include a claim for damages for malicious falsehood arising from what the mart manager is alleged to have said to these farmers. He complains that John Brady did not follow up on that advice.

11           The parties to this action have agreed that I can have regard to the transcript of the hearing and findings of the President in Finbar Tolan's action against Connacht Gold.

12           They have also agreed that I can look at some other documents relevant to that action. These include an actuary's report, a report and letter from Finbar Tolan's financial adviser relating to his losses in his action against Connacht Gold, profit and loss accounts, tax returns, details of purchases by Finbar Tolan of cows from marts and private sellers and details of his sales of those cows to Dawn Meats.

13           What is the tort of malicious falsehood? The ingredients of this tort are set out in s.42 of the Defamation Act 2009.

14           A plaintiff who sues for damages for malicious falsehood must prove that the defendant made a false, that is to say untrue, statement to others about that plaintiff's property, trade or business. That plaintiff must also prove that as a result of that false statement he or she suffered special damage or that the statement was both calculated and likely to cause financial loss in respect of his or her property, trade or business. It is also necessary to prove that the maker of the statement complained of acted maliciously. The term "maliciously" connotes improper objective or lack of honest belief in the truth of the statement complained of.

15           The expression "calculated to cause" means, in this context, that a statement is made in the knowledge that financial loss to a plaintiff is its likely consequence. This altered the common law. Statements which are both calculated and likely to cause serious damage to business or property interests are now actionable, even though it is not possible to prove that specific loss has resulted from them.

16           There is a degree of cross-over between the torts of malicious falsehood and defamation. The former does not protect reputation but is concerned with statements which injure property and business interests. The latter protects reputation. In some cases a falsehood may relate to both reputation and business: see para. 8.2 of "Salmond and Heuston on the Law of Torts" (21 ed, 1996), at page 140.

17           These two torts have some common ingredients and defences. In defamation, a defence of truth of the statement must be proved. In the malicious falsehood, falsity of the statement is an ingredient of the cause of action and must be proved. In defamation, malice deprives the maker of a statement of a qualified privilege which might otherwise be available. In malicious falsehood, malice must be proved as an ingredient of the cause of action.

18           These distinctions have a bearing on what Finbar Tolan must prove in order to succeed in this action against John Brady.

19           While I would query whether Finbar Tolan's cause of action against Connacht Gold was for malicious falsehood, this action claims that John Brady deprived him of an opportunity to make that claim. He has not advanced a claim that he was deprived of an opportunity to sue for damages for defamation. The evidence presented at the trial before me establishes that Finbar Tolan could not have succeeded before the President if his action against Connacht Gold had included an additional claim framed in either defamation or malicious falsehood.

20           Finbar Tolan's action against John Brady cannot succeed for three reasons.

21           The first and main reason is that the evidence at this trial established that if the suggested claim for malicious falsehood had been advanced before the President, it was doomed to fail and would have been dismissed. This was because on 11 August 2012 Finbar Tolan was refusing to pay Connacht Gold for cows which he had bought at Balla Mart and at Ballinrobe Mart.

22           The evidence at this trial established that as of 11 August 2012 Finbar Tolan had been told that if he wished to bid for cows at Balla Mart he would have to pay for them before they were released. He was not prepared to accept this and retaliated by refusing to pay Connacht Gold what they were owed for the cows which he bought at Balla Mart and Ballinrobe Mart two weeks previously.

23           Finbar Tolan stopped a cheque for €18,700 for cows which he had bought on credit at Ballinrobe Mart. On the morning of 11 August 2012, he sent a text message to the manager of that mart stating that he had stopped this cheque. His text advised that manager that because Connacht Gold was not prepared allow him to buy cows on credit at Balla Mart, he was refusing to pay any of the money which he owed them for cows.

24           A party to a contract is not entitled to refuse performance or dishonour accrued legal obligations on grounds that the other party is in breach of an unconnected obligation. Two wrongs do not make a right. If Connacht Gold was not entitled to refuse to extend mart credit to Finbar Tolan, his remedy was to seek damages for loss as a result of their failure to perform that obligation. He did not have a right to withhold payment of money due and owing by him to Connacht Gold.

25           The finding of the President that Finbar Tolan was not entitled to buy cows on credit at Connacht Gold marts on 11 August 2012, though legally irrelevant, copper-fastened the point that any statement by the mart manager at Balla to farmers that the mart was not prepared to do business with him was true and that their action was justified and in protection of their interests.

26           Finbar Tolan was not entitled to withhold payment of this money in retaliation for the decision by Connacht Gold not to allow him to buy cows on credit. If he had attended the auction at Balla Mart that afternoon, the manager would have been fully within his rights to ask him to leave and to refuse his bids.

27           It follows that there could have been no question of the President awarding Finbar Tolan damages for malicious falsehood or loss of reputation as a result of any communication by the manager of Balla Mart on 11 August 2012 which conveyed to farmers that he was barred from that mart.

28           Any imputation from the words allegedly spoken that Finbar Tolan refused or was unable to pay Connacht Gold money owed by him to them represented the truth. It was not a "falsehood."

29           An amendment of Finbar Tolan's proceedings against Connacht Gold could only be appropriate if there was a reasonable prospect that he could prove all of the legal ingredients of the tort of malicious falsehood. Instructions from Finbar Tolan in accordance with his evidence to me would have established that on 11 August 2012 he was refusing to pay Connacht Gold money which he owed them. I very much doubt if the barrister who suggested that Finbar Tolan might have a cause of action for malicious falsehood would have advised that such a claim could be advanced, had he been aware of that fact.

30           It follows that were I to have concluded that John Brady failed in his duty as Finbar Tolan's solicitor by not taking further steps to explore whether a convincing claim could be made against Connacht Gold for malicious falsehood, I would have awarded Finbar Tolan only nominal damages for breach of contract. Those damages would have been €0.01. Finbar Tolan's claim against John Brady lacks any merit. The evidence in this trial shows that it is vexatious and was always doomed to fail.

31           The second reason why this action must be dismissed is that I accept the evidence of John Brady that on 11 February 2014 Finbar Tolan specifically instructed him not to attempt to introduce this claim for malicious falsehood into his action against Connacht Gold.

32           The context was that Finbar Tolan wanted to ensure that the trial of his action, which was due to start on 18 February 2014, would proceed. He was not willing to countenance an application to amend the pleadings to include this claim as this would necessitate an adjournment of that trial.

33           That trial date was vacated on 13 February 2014, following an application by Connacht Gold at the call-over. Their reasons were that Finbar Tolan had recently presented a claim for damages for €6,547,376 which had not been vouched and his action had not been certified as ready for hearing.

34           The issue of whether Finbar Tolan's proceedings should be amended with a view to advancing a claim for damages for malicious falsehood was not revisited by Finbar Tolan or by John Brady or any of Finbar Tolan's barristers in the period between 14 February 2014 and 12 May 2015, when his action eventually came on for hearing.

35           I do not accept Finbar Tolan's claim that he was a vulnerable client. The evidence shows that he was headstrong and demanding; in full control of his litigation. After 13 February 2014 he pushed to get his action against Connacht Gold listed for hearing at the earliest available date. This remained his priority. I am satisfied that he knew that there was possibility that he could introduce a claim based on malicious falsehood and allowed this to "wither on the vine."

36           The third reason why this action cannot succeed stems from deficit of reliable evidence to support Finbar Tolan's claim.

37           Finbar Tolan claims that he is entitled to be compensated because John Brady deprived him of the chance that a claim by him against Connacht Gold for damages for malicious prosecution would succeed. Mere proof of loss of a chance is not of itself enough to establish liability of John Brady to compensate him for this.

38           An action for substantial damages against a solicitor for failing to advance a legal claim can only succeed if the plaintiff is able to demonstrate that the omitted claim, had it been advanced, had some realistic prospect of being upheld.

39           In order for a plaintiff to succeed in a claim such as this one, it is not sufficient to point to presence of evidence to establish one element of the tort of malicious falsehood, such as that a person made a statement which was likely, to that person's knowledge, to damage that plaintiff's business. The plaintiff must also demonstrate that there was a real prospect of establishing that the statement complained of was both false and malicious.

40           The statements which the manager of Balla Mart is alleged to have made to farmers who attended the auction of cows at that mart on 11 August 2012 implied that Finbar Tolan's business was insolvent.

41           Finbar Tolan bore the onus of proving that his business was not insolvent in any legal action for malicious falsehood against Connacht Gold. It follows that at the trial of Finbar Tolan's action before me he was obliged to prove that he had a reasonable prospect of establishing to the President that this business was not insolvent on 11 August 2012. His evidence fell well short of establishing this. The very limited material which I was left to work off tended to show the opposite.

42           Furthermore, Finbar Tolan did not establish to me that he had any reasonable prospect of proving that such a statement was "malicious." The law did not oblige the mart manager to make excuses for absence of a dealer who refused to pay Connacht Gold what he owed them in answer to farmers who expected him to bid for their cows and enquired about his whereabouts. His evidence also fell well short of establishing this. His suggestion that he was frozen out by Connacht Gold in favour of another buyer was conjecture. The President rejected his evidence that Connacht Gold cut his credit to buy cows to assist another dealer.

43           The fact that the general manager of the Connacht Gold marts may have arranged for another dealer to bid for cull cows at Balla Mart on 11 August 2012 did not support this conspiracy theory. An obvious reason for this was that he did not want to put sellers in a position where they would have to take their animals home unsold because no dealer was present to bid for them.

44           Furthermore, Finbar Tolan did not demonstrate that there was a reasonable prospect that he could prove that his business suffered the damage which he claims as a result of the "falsehood" which he alleges. He adduced no acceptable evidence in support of this claim.

45           Finbar Tolan's attempt to rely on an actuary's report dated 14 February 2014 and projections and information which underpinned the conclusions set out in that report was misconceived. These documents did not go any way towards establishing either that his business was solvent as of 12 August 2012 or that it collapsed as a result of adverse imputations by Connacht Gold touching on that solvency.

46           He relied on bare assertions as evidence that Castlerea Mart and Tuam Mart stopped giving him mart credit and that other marts would not give him credit a result of Connacht Gold putting it out that they would not do business with him.

47           For these reasons I am dismissing Finbar Tolan's action against John Brady.

48           Finbar Tolan raised some other issues during the trial before me. These included an allegation that John Brady failed to secure attendance of Connacht Gold executives so that they could be called as witnesses at the trial of his action before the President.

49           Orders remitting this action for reconsideration and permitting amendment of Finbar Tolan's statement of claim confine him to his claim that John Brady failed to ensure that a claim for damages for malicious falsehood was included in his action against Connacht Gold. His complaint that John Brady failed to secure attendance of these men so that his counsel could call them as witnesses at the trial of his action before the President was precluded, as it was bound to fail.

50           Finbar Tolan is 50 years of age. He has a farm of forty-five to fifty acres and takes a further forty-five to fifty acres of rented land.

51           In 2012 Finbar Tolan bought cull cows in marts and sold them to the Dawn Meats factory in Ballyhaunis. In the first half of 2012 he bought most of these cows at the Saturday auctions at Balla Mart. He kept these cows at the mart over the weekend and brought most of them to Dawn Meats on the following Monday morning.

52           Dawn Meats did not pay Finbar Tolan immediately. He relied on mart credit to fund further purchases while he was awaiting payment. He gave evidence that some cows were not fit for immediate sale to the factory. He brought-on these cows at his farm until they were in a condition to be sold. He gave evidence that his business expanded in 2012 because of high demand for cull cows.

53           Finbar Tolan gave evidence to me that he had a good reputation as a cattle dealer and that he was given unrestricted mart credit by Connacht Gold. He did not give evidence of any agreement between himself and Connacht Gold which specified that he had unlimited credit to buy cows. He said that the amount of his credit was never an issue.

54           Finbar Tolan gave evidence to me that during the summer of 2012 Connacht Gold executives told him that they wanted to reduce his credit period from three weeks to two weeks. He told them that he would need a bank facility of €200,000 to accommodate this change. He said that they gave him an opportunity to get this facility. He said that he succeeded in obtaining a loan of €200,000 from Ulster Bank and that this money went into his current account in late July 2012. He said that he agreed with Connacht Gold executives that from 10 August 2012 he would have two weeks mart credit.

55           He sued Connacht Gold because they stopped him from buying cows on credit in August 2012. He claimed that they reneged on their agreement with him by refusing to permit him to buy cows on credit. He claimed that this refusal came into effect when he was precluded from buying cows on credit at Balla Mart on Saturday, 11 August 2012.

56           He claimed in his statement of claim that because of this he was unable to fulfil a contract to deliver ninety or so cows to Dawn Meats the following Monday morning and that he lost "his Contract with Dawn Meats relative to the Monday killing trade." He claimed that his business collapsed as a result.

57           Finbar Tolan gave evidence at both the trial before the President of the High Court and the trial of this action before me of his meetings with Connacht Gold executives on 18 June 2012, 16 July 2012, and 9 August 2012. He also gave evidence of conversations which he had with Martin Walsh who was the general manager of Connacht Gold's marts and with Michael Murphy who was the manager of Balla Mart. He gave evidence to me that at a meeting at Tubbercurry on 9 August 2012 Connacht Gold executives told him that he could no longer buy cows on mart credit.

58           He told me that after Connacht Gold refused to allow him to buy cows on credit he went to Headford Mart and they would not do business with him on credit terms. Elsewhere in evidence he said that he got credit from Elphin Mart.

59           He told me that while it was correct that at one stage he owed Connacht Gold €450,000 for cows bought on credit, this debt was rapidly reduced to €150,000, using his receipts from sales to Dawn Meats. He gave evidence to me that the level of his debt did not matter as there was always money coming in from his sales which paid for his purchases.

60           The evidence before the President established that Finbar Tolan did not have a contract to supply cows to Dawn Meats. If he brought suitable cows to their factory, they would buy them. In evidence to me Finbar Tolan said he was a trusted supplier. He said he stopped supplying Dawn Meats because he was unable to supply them with cows.

61           Evidence was also given at the trial before the President and at the trial before me that Finbar Tolan bought cows at other marts and sold them to Dawn Meats after 11 August 2012. He described this as an effort to mitigate damage caused by Connacht Gold to his business.

62           The President rejected Finbar Tolan's evidence that no issue was raised by Connacht Gold executives relating to his debt to them for cows bought on credit. The President accepted that the purpose of the meetings between Connacht Gold executives and Finbar Tolan during the summer of 2012 was to address a huge increase in volume of his trade in cows bought on credit. This was accompanied by high levels of uncleared debt to Connacht Gold. This trend had become apparent during 2011 and accelerated during 2012.

63           The President concluded that Finbar Tolan was getting into significant financial difficulty in 2012. The President preferred evidence given on behalf of Connacht Gold in relation to what transpired at the meetings in June, July and August 2012. He decided that Connacht Gold did not give Finbar Tolan any commitment to continue to allow him to buy cows on credit. He decided that the document dated 16 July 2012 which Finbar Tolan relied on was not a contract which gave him a right to buy cows on credit.

64           The President accepted Martin Walsh's evidence that Finbar Tolan walked out of a meeting with Connacht Gold representatives at Tubbercurry on 9 August 2012 when they raise the subject of agreeing his credit limit. The President dismissed Finbar Tolan's claim against Connacht Gold.

65           In the immediate aftermath of the events of 11 August 2012 Finbar Tolan consulted solicitors in Claremorris. These solicitors instructed counsel who provided an opinion which advised that he did not have a good cause of action against Connacht Gold for withdrawing his mart credit.

66           In mid-September 2012 Finbar Tolan consulted John Brady's predecessor, Robert Potter Cogan, who practiced at the Ballyhaunis branch of Dillon-Leech and Comerford, solicitors. Robert Potter Cogan took notes of their consultation He tried to negotiate a compromise with Connacht Gold's solicitors. He dictated an attendance note dated 18 September 2012.

67           Robert Potter Cogan suffered from ill health. He was unable to act for Finbar Tolan in litigation which he proposed to bring against Connacht Gold. He recommended that Finbar Tolan engage solicitors in Longford. Finbar Tolan instructed these solicitors in October 2012. They engaged a barrister who gave advice and drafted proceedings. A plenary summons was issued on 27 November 2012 and a statement of claim was delivered in December 2012.

68           These Longford solicitors subsequently came off record. Finbar Tolan then progressed his action against Connacht Gold as a litigant in person. He replied to a notice for particulars raised by Connacht Gold on 28 July 2013. He attended at the High Court in Dublin and got a trial date. His action was listed for hearing on 18 February 2014. He gave evidence that he took over the conduct of his proceedings as a litigant in person because he was aware from Robert Potter Cogan that a new solicitor was coming into his practice.

69           John Brady was employed as an assistant solicitor at the Ballyhaunis office of Dillon-Leech and Comerford in early 2013. He was not long-qualified at that time. There was conflicting evidence on how John Brady became involved in Finbar Tolan's litigation against Connacht Gold.

70           Finbar Tolan gave evidence that he attended consultations with John Brady and Robert Potter Cogan at the latter's house relating to his action against Connacht Gold prior to the firm coming on record and that John Brady helped him while he was progressing this claim as a self-represented litigant. He gave evidence that he met John Brady in June 2013.

71           John Brady did not recall meetings with Finbar Tolan about this litigation in the company of Robert Potter Cogan and he did not accept that he advised Finbar Tolan in relation to it prior to November 2013.

72           John Brady accepted that he discussed his litigation against Connacht Gold with Finbar Tolan from June 2013 when Finbar Tolan attended him about other legal matters. He gave evidence that he did not give legal advice to Finbar Tolan relating to it while he was representing himself. John Brady accepted that Finbar Tolan kept him abreast of this litigation because he intended to instruct him in due course.

73           I accept that John Brady's involvement as Finbar Tolan's solicitor in his litigation against Connacht Gold began in November 2013. This was shortly before he attended at a consultation at the Four Courts. This consultation took place on 18 November 2013. John Brady, Finbar Tolan, Noel Looney and a junior counsel attended. Finbar Tolan was acquainted with this barrister before he instructed John Brady. John Brady contacted this barrister on Finbar Tolan's instructions and arranged for his attendance.

74           Finbar Tolan stated in evidence that he did not have any discussions with this barrister about his action against Connacht Gold prior to the Four Courts consultation. He argued that I must accept this because a barrister would not accept instructions from a client without a solicitor. Finbar Tolan suggested that this barrister may have acquire knowledge of what his action was about through happening to be present in court at hearings which took place during the period when he was representing himself.

75           Finbar Tolan gave evidence that John Brady was responsible for bringing this barrister into his action and that John Brady chose him from a number of barristers who John Brady suggested to him.

76           Finbar Tolan arranged for the attendance of Noel Looney. Noel Looney was not a solicitor. John Brady thought that Noel Looney assisted Finbar Tolan with his litigation during the period while he had no solicitor on record. Noel Looney's presence at the Four Courts consultation was inconsistent with Finbar Tolan's suggestion that John Brady was advising him on his action against Connacht Gold prior to November 2013.

77           John Brady gave evidence that he dictated an attendance with Finbar Tolan following a meeting with him in relation to his action against Connacht Gold. He said that this meeting took place a few days prior to the Four Courts consultation. He also gave evidence that he dictated a further attendance following the Four Courts consultation. He said that the typed attendance relating to his meeting with Finbar Tolan prior to the Four Courts consultation incorrectly recorded it as having taken place on 16 December 2013.

78           I accept John Brady's evidence that Finbar Tolan told him that he had been in direct contact his barrister prior to the Four Courts consultation. John Brady did not know this barrister and had not engaged him previously.

79           An issue arose as to whether Finbar Tolan provided papers relating to his litigation against Connacht Gold to John Brady in advance of the Four Courts consultation. John Brady gave evidence that he did not have these documents in advance of that consultation. He said that Finbar Tolan gave him documents relating to the Connacht Gold litigation and that he opened his file in the period following the Four Courts consultation.

80           Finbar Tolan relied on a typed-up copy Robert Potter Cogan's attendance dated 18 September 2012 as evidence of the existence of a file in John Brady's office relating to his action against Connacht Gold prior to November 2013. John Brady's evidence was that he did not have any file relating to this matter.

81           This document was undoubtedly typed up in Robert Potter Cogan's office. It related to his complaint against Connacht Gold. It was prepared over a year before John Brady first received instructions relating to Finbar Tolan's action against Connacht Gold. This does not demonstrate that John Brady held a physical file relating to Finbar Tolan's litigation against Connacht Gold prior to November 2013.

82           I accept John Brady's evidence that he did not have the documents relating to Finbar Tolan's action against Connacht gold prior to the Four Courts consultation. John Brady did not brief Finbar Tolan's barrister in advance of the Four Courts consultation. This is consistent with his evidence on this issue.

83           The context in which Finbar Tolan engaged John Brady was that the date fixed for the trial of his action against Connacht Gold was fast-approaching and he needed to instruct a solicitor and barristers. I have concluded that it is probable that Finbar Tolan was told by his barrister that it would be necessary for him to instruct a solicitor in order to prepare his action for hearing.

84           I also accept John Brady's evidence that he was unaware that the trial date for Finbar Tolan's action had been fixed for 18 February 2014 prior to the Four Courts consultation. Finbar Tolan agreed with this. He gave evidence that he told John Brady of this trial date around the time of the Four Courts consultation.

85           I have no doubt that if Finbar Tolan had engaged John Brady to act for him in his action against Connacht Gold at an earlier stage he would have taken steps to prepare for a trial. None of these steps were taken prior to the Four Courts consultation.

86           I have no hesitation in rejecting Finbar Tolan's evidence relating to how this barrister came to be engaged on his behalf. I regard his evidence on this topic and his suggestion that the barrister could not have discussed his action with him without a solicitor being present as an attempt to put distance between himself and his barrister and minimise their interaction. I also regard Finbar Tolan's attempt to show the existence of a file and his evidence that John Brady was advising prior to November 2013 as an effort to paint a picture of John Brady as having a greater knowledge of his claim against Connacht Gold than John Brady in fact had.

87           The evidence shows that Finbar Tolan met his barrister on a number of occasions after John Brady was engaged on his behalf. This barrister sent emails to John Brady referring to his discussions with Finbar Tolan at court hearings. Finbar Tolan attended personally at the Four Courts when his case was listed for mention with a view to ensuring that his barrister got a hearing date. He also attended at applications for discovery. It is unlikely that Finbar Tolan's barrister refrained from discussing issues relating to his action against Connacht Gold during these encounters.

88           When Finbar Tolan first instructed John Brady the issue of whether discovery should be sought against Connacht Gold had not been considered. Finbar Tolan had not provided any detail of his claim for loss of his business. He had not supplied any information or records to substantiate his losses. He had not engaged any experts to advise or give evidence on these matters. All of these matters needed to be addressed.

89           John Brady also gave evidence, which I accept, that Finbar Tolan instructed at the at the Four Courts consultation that the hearing date for his action against Connacht Gold was to be protected at all costs. The context in which this instruction was given was that his solicitor and barrister pointed out to him that discovery and documentation establishing his financial losses were not available at that stage.

90           I accept that Finbar Tolan was aware from advice given by his solicitor and barrister in November 2013 that his action was not ready for hearing. I have no doubt that his legal advisers made him aware of the dangers of proceeding to a hearing while his case was not fully prepared.

91           On 11 December 2013 John Brady wrote to Finbar Tolan advising that he had put his file together and was preparing a brief for counsel. He sent Finbar Tolan a "section 68 letter" on 13 December 2013. He briefed counsel on 16 December 2013. His instructions reminded counsel of the hearing date and of Finbar Tolan's "clear desire that this case is to go on on [sic] that date, no matter what the state of play is."

92           John Brady requested Finbar Tolan to provide financial information to support his claim that his business had failed as a result of the actions of Connacht Gold. On 9 January 2014 he sent a reminder to counsel. He also reminded Finbar Tolan that he had not yet received "the necessary information to quantify your loss for the High court case."

93           Finbar Tolan engaged his financial adviser in Limerick. This adviser was supplied with tax returns and profit and loss accounts. These documents were provided by the agent who had prepared Finbar Tolan's profit and loss accounts and tax returns. These profit and loss accounts showed cattle sales of €209,826, €275,212, and €5,319,759 for the calendar years 2010, 2011 and 2012 and net profits of €8,556, €10,020 and €119,328 for these years.

94           An issue arose during the trial of this action which related to Finbar Tolan's net profit as shown in his profit and loss account for 2012 which had been prepared by his tax agent. Finbar Tolan provided a copy of this document to John Brady, who in turn provided it to an actuary. It was accompanied by a copy covering letter from his tax agent dated 19 June 2013 addressed "to whom it may concern." This version of his profit and loss account for 2012 showed a net profit for that year of €119,328, after taking into account a charge of €36,350 for depreciation.

95           This was inconsistent with Finbar Tolan's tax return for 2012 which included a charge of €142,464 against profit. Most of this figure did not represent accounting depreciation. It related to capital allowances on expenditure which Finbar Tolan had incurred on farm buildings and machinery some years previously. His tax returns for earlier years omitted to claim capital allowances for the cost of these items. His tax agent included a claim for all of the allowances for those years as a charge against income in his 2012 tax return. As a result, Finbar Tolan's tax return for 2012 showed taxable income of €13,214.

96           Finbar Tolan's financial adviser produced a report dated 21 January 2014. This indicated that is a Qualified Financial Adviser. He concluded, on the basis of the information provided to him and his knowledge of Finbar Tolan's affairs, that Finbar Tolan's business was profitable and capable of expanding turnover at an annual rate of increase of 20% year-on-year until 2022. This premise produced a total figure for loss of profits for the years from 2013 to 2022 of €6,547,376. He also sent letter dated 29 January 2014 to John Brady which stated that these projections worked off a profit of €155,678 for 2012, and that this figure excluded charges for depreciation.

97           John Brady provided a copy of the financial adviser's report dated 21 January 2014 and the supporting documents to counsel on 30 January 2014. On 4 February 2014 John Brady forwarded this material, together with a copy of the letter dated 29 January 2014, to an actuary. He requested the actuary to provide a report as a matter of urgency so that it could be provided to the other side. His letter of instruction explained that Finbar Tolan's action was listed for hearing on 18 February 2014.

98           On 4 February 2014 John Brady sent a letter to the solicitors for Connacht Gold which had been drafted by counsel. This purported to update the reply to notice for particulars which Finbar Tolan had provided in July 2013.

99           These additional particulars claimed that as a result of Connacht Gold's refusal to allow Finbar Tolan to attend at Balla Mart on 11 August 2012 with only two-days' notice his business reputation was irreparably damaged so that he was unable to conduct his business as a cattle dealer. They advanced a claim for €6,547,376 for loss of profits. This figure was taken from the report provided by Finbar Tolan's financial adviser.

100         The first suggestion that Finbar Tolan's action against Connacht Gold might be amended to include a claim for malicious falsehood was contained in a letter from Finbar Tolan's barrister to John Brady dated 30 January 2014. John Brady gave evidence that he received this by email. The original followed by either DX or post and was date-stamped when it was received in his office on 5 February 2014.

101         Junior counsel stated in this advice that Finbar Tolan "had indicated that the reason he could not get stock from an alternative supplier was that 'the word had got out about his problems with Connacht Gold' and other marts refused to trade with him as they believed he was in financial difficulty. The Plaintiff attributes these rumours to the Defendant, however there is no specific evidence connecting the rumour to employees or agents of the defendant."

102         Counsel went on to state: "It is possible that the Plaintiff could present a case that the loss of his business was as a result of a malicious falsehood emanating from the Defendant Company; that is to say, maliciously put the word out that the Plaintiff was in financial difficulty or the equivalent."

103         Counsel advised of the ingredients of the tort of malicious falsehood and pointed out that "malicious falsehood is not pleaded in the Statement of Claim" and that "...from the information at hand there is no specific evidence of specific statements of the Defendant which were false, damaged the plaintiffs business reputation and were maliciously put into circulation by the Defendant." He advised that any claim for damages for malicious falsehood would need to be pleaded and particularised and that Finbar Tolan "... may be precluded from advancing such a claim as it is not adequately pleaded...The existence of a claim under the principle of the tort of malicious falsehood should be explored further with the plaintiff."

104         Counsel also advised that it was possible that evidence of damage to Finbar Tolan's reputation could be introduced under para. 11 of the statement of claim which pleaded that "as a consequence the Plaintiff suffered and continues to suffer substantial financial losses; his business reputation and credibility have all been adversely damaged within the farming community and with the personnel in other private marts where he also trades. Among other losses the Plaintiff has lost his contract with Dawn Meats, relative to the Monday killing trade."

105         Counsel's letter concluded by stating that he understood that John Brady would be in Dublin on the following Monday which was 3 February 2014 and that he would welcome an opportunity to meet and discuss matters.

106         Finbar Tolan complained during the trial before me that he had not been given his full file by John Brady. John Brady gave him his file in 2022, as a result of a freedom of information request. Finbar Tolan claimed that he first got copies of some items of correspondence from John Brady and of counsel's letter dated 30 January 2014 from John Brady's solicitors when they delivered folders of documents shortly before the hearing. John Brady gave evidence that he handed over all of the documents on Finbar Tolan's file to him in 2022.

107         Finbar Tolan did not substantiate this allegation. If there was anything to it, I would have expected him to produce a list identifying documents which he claims were withheld in 2022. The fact that he was given folders of documents shortly before the trial would not prevent him from comparing the documents provided in 2022 with those in the relevant folder.

108         I accept John Brady's evidence that in he gave Finbar Tolan his complete file relating to his action against Connacht Gold in 2022. In any event, Finbar Tolan had these documents in advance of the trial and in my view he had sufficient opportunity to study them. The folder which contains John Brady's file is an easy read.

109         John Brady gave evidence that he discussed counsel's advice dated 30 January 2014 with Finbar Tolan. He gave evidence that he provided Finbar Tolan with a copy of this letter. He did not record any memorandum of when this discussion took place or how far their discussion went. John Brady gave evidence that Finbar Tolan was in almost daily contact with him during this period and that because of the urgency of the matter his business was dealt with immediately.

110         John Brady said that he discussed the point about malicious falsehood with Finbar Tolan and that Finbar Tolan explained that he would be able to get witnesses. He gave evidence that Finbar Tolan succeeded in securing two potential witnesses and brought them to his office.

111         It is unlikely that any such discussion took place on 30 January 2014. John Brady's handwritten file note which was created for billing purposes at the end of that day did not refer to any contact or meeting between himself and Finbar Tolan that day.

112         Finbar Tolan's evidence is that he did not receive counsel's advice dated 30 January 2014 and did not know anything about the issue of whether he could make a case based on malicious falsehood until he received his solicitor's file from John Brady in 2022.

113         No memorandum or office record exists recording any meeting with counsel on 3 February 2014 or attendance by Finbar Tolan in his office that day. The most that John Brady could say about this was that he thought there was a phone consultation and that Finbar Tolan was in the office with him.

114         On 5 February 2014 John Brady interviewed the two potential witnesses produced by Finbar Tolan. He immediately forwarded the content of his attendance to junior counsel.

115         I infer as a matter of probability that Finbar Tolan produced these two men because he was following up on the suggestion of counsel that potential witnesses should be obtained with a view to proving a connection between rumours that he was in financial difficulty with information put out by Connacht Gold managers.

116         Neither side called these two farmers as witnesses in this trial. It is reasonable to assume that they would give evidence of what the mart manager said to them on 11 August 2012 in accordance with what they told John Brady.

117         The first of these farmers stated that he was present at Balla Mart on 11 August 2012 to sell cows and hoped Finbar Tolan would be present to bid as he gave more money than other buyers. There was no sign of Finbar Tolan. He heard rumours from other farmers that he was in financial trouble and had "caught" the mart for a load of money. He asked the mart manager where Finbar Tolan was and he replied: "Don't mention his name to me. That man is finished here."

118         The second of these farmers stated that he also was present at Balla Mart on 11 August 2012 hoping to sell cull cows to Finbar Tolan. The talk among the farmers about Finbar Tolan was bad. He asked the mart manager where Finbar Tolan was and he replied: "Don't mention that man. He will get no more cattle round here."

119         This was significant material. The words alleged to have been spoken implied that Finbar Tolan was barred from the mart because he had not paid for cattle. This would go to proof of one element of malicious falsehood; namely, a statement capable of being shown as likely to cause financial loss to a business. It is difficult to credit that Finbar Tolan and John Brady would not be aware of the potential significance of these statements if it could be proved that the mart manager had wrongfully put it about that Finbar Tolan had left the mart unpaid.

120         Junior counsel provided advice on proofs by email on 11 February 2014. There is a complete conflict of evidence between John Brady and Finbar Tolan as to what, if anything, transpired between them on that date.

121         At 13.22 hours on 11 February 2014 the actuary emailed a letter to John Brady. The background, as set out in this email, was that the actuary understood that John Brady was "conducting a meeting today in relation to this matter. Following the meeting please revert to me so that we can discuss the preparation of formal actuary's report."

122         That comment was a contemporaneous record of the actuary's understanding that John Brady intended to meet with Finbar Tolan that day. John Brady would be unlikely have told the actuary that he would be conducting a meeting that day and needed something from the actuary for this meeting if that were not the case.

123         The actuary provided a preliminary view of Finbar Tolan's likely loss of profits. He used as his base the €119,328 shown as net profit in Finbar Tolan's profit and loss account for 2012. He assumed that this would "remain constant throughout the 10 year period apart from ordinary inflationary increases." The capital value of the of the income stream lost over that period, assuming that tax payable on an award of damages would be the same as on receipt of income over this period, was €1,076,355.

124         This figure of €1,076,355 was very different from the €6,547,376 advanced by Finbar Tolan's financial adviser. His premise of 20% annual increases in turnover year-on-year for ten years led to a conclusion that Finbar Tolan could generate sales of cull cows worth €27,220,410 in the year ending 31 December 2022. His cost of purchasing these cows during that year was estimated at €24,814,724.

125         The idea that any cattle dealer buying cull cows at marts for sale to a factory could generate annual turnover of this magnitude was make-belief. The premise of annual increases of 20% in turnover year-on-year could not be stood-over. This had nothing to do with whether it was appropriate to calculate damage to the business by assessing a capital value of loss of profits, using a base figure of either €119,326 or €155,678.

126         If the actuary had provided a preliminary assessment based on the growth premise and advanced by Finbar Tolan's financial adviser, the capitalised value of the claimed loss of profits over ten years would be €4,985,524. The actuary produced a report based on this premise on 14 February 2014. I am satisfied that the actuary produced this report because Finbar Tolan insisted on it during a face-to-face meeting with John Brady which took place in John Brady's office on the afternoon of 11 February 2014.

127         At 16.44 hours 11 February 2014 John Brady's secretary sent an email to the actuary. The material part of this communication reads as follows: "Subject to our conversation with your office today we would be obliged if you would prepare the Report along the lines of corroborating the figures that [Finbar Tolan's financial adviser] provided to you. We have had a discussion with our client and our instructions are that this is the manner in which your Report is to be prepared." John Brady gave evidence that he dictated this email and that his secretary typed it up and sent it. I accept his evidence on this.

128         At 15.03 hours on 11 February 2014 junior counsel sent an email to John Brady. This comprised a covering letter and his advice on proofs.

129         Counsel stated in his covering letter that "I am aware that you are meeting with the Plaintiff later this afternoon and I would ask that you take instruction from him with respect to the amendment of the statement of claim to include for malicious falsehood as set out in my advice."

130         This comment was a contemporaneous record of counsel's understanding of John Brady's state of mind at that time which was that he would be meeting Finbar Tolan that afternoon and needed his advice on proofs for that purpose.

131         Counsel advised against a suggestion by Connacht Gold's solicitors in a letter dated 7 February 2014 that the trial proceed on liability only as their client was not in a position to investigate Finbar Tolan's large claim for loss of profits. He advised that the Connacht Gold would be justified in seeking to have the matter adjourned to allow more time to address this claim and that as Finbar Tolan's team were only now getting details of quantum and calculation of his loss, they would benefit "from more time to give the issue of damages some more thought."

132         Counsel recommended that the trial be adjourned to ventilate fully the damages issue and exchange of reports "and also, if the Plaintiff agrees, to amend the statement of claim to contain a specific plea of malicious falsehood." Counsel concluded; "Please feel free to contact me this afternoon while you are in consultation with the Plaintiff."

133         Counsel's advice on proofs repeated a number of points already made in his letter dated 30 January 2014. He referred to the proposed evidence of the two farmers who John Brady had interviewed on 5 February 2014. He then repeated word-for-word his earlier advice on the subject of a possible claim for malicious falsehood. This included advice that this ground of claim did not rely on proof of a binding contract between him and the defendant.

134         Counsel advised that introduction of a claim for malicious falsehood would necessitate an application to amend the statement of claim and that Connacht Gold "would be afforded an opportunity to submit a revised defence to address this issue and that the trial date would necessarily push out." This advice on proofs concluded with a direction that "Agent should take instruction from the Plaintiff with regard to the amending of the statement of claim to set out a claim for damages for malicious falsehood."

135         Finbar Tolan disputed in evidence that he met with John Brady at his office on 11 February 2014. His evidence was that he did not attend in John Brady's office that afternoon. He denied knowing about the actuary's letter, or that John Brady ever discussed the content of that letter with him, or that he instructed John Brady to insist that the actuary rely on his financial adviser's projections. He denied that he knew anything about advice to consider introducing a claim for malicious falsehood until he got his file from John Brady in 2022.

136         An issue arose at the trial about the status of manuscript entries in an attendance book kept in the reception area of John Brady's office. One of these entries showed that Finbar Tolan attended with John Brady at his office on 11 February 2014. This document had not been referenced in John Brady's disclosure of documents as a result of a freedom of information request in 2022. I accept John Brady's evidence that this book had been mislaid and was located in his office recently. John Brady's secretary who was on maternity leave was not produced to prove her entries in it. The copy furnished to Finbar Tolan was heavily redacted to include only records of relevant attendances by Finbar Tolan in the office.

137         While this document was provided to Finbar Tolan somewhat late in the day, in my view he had sufficient notice of intention to introduce it at the trial. The relevant entries were admissible as a business records under the statutory rules permitting documentary hearsay. I do not consider that the circumstance that he did not get the folders provided by the defence solicitors until shortly before the trial would justify me in excluding this material from consideration.

138         Finbar Tolan was preparing for trial and was expected to be familiar with his case. I noted during the trial that entry for 11 February 2014 which referred to Finbar Tolan's attendance in John Brady's office was the second last entry for that day. I pointed out to Finbar Tolan that the secretary could be produced for cross-examination if he wished to challenge this document's authenticity. He disavowed that he wanted to make any case that this entry could have been a fabrication inserted on some later date.

139         The extract provided records dates when Finbar Tolan attended at John Brady's office. I accept John Brady's evidence on the methodology of his secretaries in keeping records of clients who attended meetings at his office. This book records that Finbar Tolan met John Brady in office on 11 February 2014 in relation to "Connacht Gold." It also records that Finbar Tolan attended with John Brady in his office on other dates.

140         I accept this as evidence tending to establish Finbar Tolan's attendance on 11 February 2014. It is admissible documentary hearsay which supports John Brady's testimony and contradicts Finbar Tolan's claims that he was not there on that date. I have considered the possibility canvassed by Finbar Tolan that this entry might be a mistake. In light of the other evidence, I consider that the possibility that John Brady's secretary mistakenly recorded a meeting when she made this entry was unlikely.

141         John Brady gave evidence that Finbar Tolan attended with him in his office for some two hours on the afternoon of 11 February 2014. He said that Finbar Tolan arrived after he received the letter from the actuary by email.

142         His evidence was that he and Finbar Tolan were waiting in his office for this advice on proofs to come in and that when it came by email two hard copies were printed. One of these was retained by John Brady and put on the file and the other was given to Finbar Tolan.

143         John Brady also gave evidence that before he received the advice on proofs, he discussed the email from the actuary with Finbar Tolan. He said that Finbar Tolan was very dissatisfied with the actuary's figure for loss into the future.

144         He gave evidence that he telephoned the actuary while Finbar Tolan was present with him and that he explained Finbar Tolan's dissatisfaction. He told the actuary to prepare a report based on the projections provided by Finbar Tolan's financial adviser, as instructed by Finbar Tolan. He said that the actuary stated during the course of this telephone conversation that if he were to called give evidence he would be unable to stand over the figures. John Brady gave evidence that he made Finbar Tolan aware of this.

145         John Brady also gave evidence that when he got the advice on proofs, he discussed the malicious falsehood issue with Finbar Tolan. He said that Finbar Tolan was not prepared to consider amending his pleadings in any way, shape or form. He instructed that his case was to be presented as it was and whatever had to be done to protect the hearing date of 18 February 2014 was to be done.

146         I accept John Brady's evidence on these matters. The content of his email to the actuary at 16.44 hours on 11 February 2014 provides strong support for John Brady's evidence that Finbar Tolan was in contact with him that afternoon and insisted that the actuary provide a report based on his financial adviser's projections.

147         This email is a contemporary communication which demonstrates that John Brady obeyed his client's instructions by telephoning the actuary and requiring him to produce a report on future loss based on the projections provided by his financial adviser.

148         If Finbar Tolan were in John Brady's office that afternoon, as I accept that he was, it is scarcely conceivable that they would not have also discussed the pros and cons of counsel's advice on proofs and his covering email. The main issues which required to be addressed were set out in this email. These were whether to agree to a trial on the liability issue only; whether to put off the trial to facilitate the presentation of a more coherent claim for losses, and whether to amend of the pleadings to advance a claim for malicious falsehood. Counsel also recommended that there be a unitary trial and that this trial be postponed for the purpose of enabling Finbar Tolan to address these issues.

149         I accept John Brady's evidence that on 11 February 2014 Finbar Tolan was not prepared to countenance either a reduction of his claim for damages to €1,076,355 or an adjournment his action against Connacht Gold and that he rejected the option amending his claim to include a claim for malicious falsehood for this reason.

150         Evidence was given that the actuary noticed this issue while preparing to give evidence in 2015 and expressed concerns arising from the low taxable income shown in Finbar Tolan's tax return. I am satisfied that this was explained the actuary at that time. This was not relevant to the events of 11 February 2014.

151         I am satisfied that the actuary's discussion with John Brady in the presence of Finbar Tolan on 11 February 2014 related to the difference between the €1,076,355 and a capitalisation of loss of profits premised on a 20% increase in turnover year-on-year. This is clear from the actuary's report dated 14 February 2014 which was prepared on that revised premise. The discussion on 11 February 2014 had nothing to do with whether the base figure should be adjusted to exclude a charge for depreciation or for unclaimed capital allowances.

152         If the actuary had used the base figure of €155,678 used by Finbar Tolan's financial adviser and applied the methodology set out in his email date 11 February 2014 to that figure, it not likely that this could produce a capitalised figure for loss anywhere close to the figure which he produced in his report of 14 February 2014.

153         My assessment of the evidence is that on 11 February 2014 John Brady had, in Finbar Tolan, a difficult client who knew and understood the pros and cons of adjournment of his action against Connacht Gold and was determined to bull ahead. I accept John Brady's evidence that Finbar Tolan insisted at the meeting on 11 February 2014 that his case proceed to a hearing the following week and would not countenance an adjournment for any reason.

154         It struck me from the evidence and from the manner in which Finbar Tolan has presented this claim that he is generally unwilling to accept "no" for an answer and ignores or refuses to recognise what does not suit him. An example of this was his demand that Connacht Gold executives be subpoenaed for the trial before the President so that they could be called as witnesses by his legal team. He had no statements from these men. His expert witness accepted that it would be folly for his counsel to call them.

155         Finbar Tolan persisted in making this complaint. His new variant at the trial before me was an attempt to assert that his solicitor should have tried to get statements from these executives. This lacked reality. These men were not obliged to submit to interview by his legal team. It was scarcely conceivable that Connacht Gold's legal advisers would have permitted such a course.

156         I am not persuaded that absence of a memo by John Brady of his meeting with Finbar Tolan and a signed note accepting that he was acting contrary to counsel's advice should lead me to determine that John Brady is not a reliable witness on the issue of what did or did not take place between them on 11 February 2014. I agree that John Brady ought to have made a memo of this meeting and got Finbar Tolan to sign it for his own protection, but the absence of this memo is not decisive.

157         I am also not persuaded that the fact that John Brady did not phone counsel on the afternoon of 11 February 2014 should lead me to accept Finbar Tolan's evidence on this issue. I accept John Brady's explanation that there was no reason to phone counsel because Finbar Tolan was adamant that the trial was to proceed on the date fixed. I also accept that the reason why the bill of costs presented to Finbar Tolan did not contain a reference to their meeting on 11 February 2012 was that it was prepared by a secretary on the basis of what was on the file. As the file did not record any meeting with Finbar Tolan on that date, the bill of costs did refer it.

158         If Finbar Tolan's evidence were correct, this would mean that John Brady, off his own bat, led counsel and the actuary to believe that he was awaiting advice on proofs and an actuary's report for use at a meeting with his client on 11 February 2014 when no such meeting was arranged. It would also mean that John Brady unilaterally put pressure on the actuary to advance an unsustainable claim. It would mean that John Brady pretended to the actuary in a telephone call and follow-up email that he had discussed this matter with his client and that the required change was at his client's insistence.

159         If Finbar Tolan's evidence were correct, this would also mean that John Brady ignored counsel's advice that the trial should be adjourned for the reasons set out in his email enclosing the advice on proofs, which included reference to the taking instructions on amending Finbar Tolan's proceedings to introduce a claim for damages for malicious falsehood.

160         I am not impressed by Finbar Tolan's submission that the interaction relating to the actuary's report as described by John Brady in evidence was unlikely to have occurred because it was improper for a solicitor and expert witness to bend to the wishes of a client to alter professional opinion and advance an unsustainable claim. To my mind, this was an attempt by Finbar Tolan to take advantage of the fact that he succeeded in pressuring his professional advisers to act against their better judgment.

161         I do not accept Finbar Tolan's claim that he was a vulnerable client in 2014 and that John Brady took advantage of his poor education and lack of experience. The evidence which I accept in relation to the interchange between Finbar Tolan and John Brady relating to the actuary's report demonstrates that Finbar Tolan was firmly in charge of the direction of his litigation and took advantage of John Brady's inexperience.

162         On 12 February 2014 John Brady prepared a letter with a view to sending it to the solicitors for Connacht Gold: "Please be advised that our client instructs us to agree to the matter proceeding on the 18 February 2014 by way of dealing with the issue of liability only."

163         This was important. I conclude that it was clear to Finbar Tolan on 11 February 2014 that counsel had advised on 30 January 2014 and again in the advice on proofs that his case on proof of damage to his business was in poor shape.

164         The splitting of the trial was raised by counsel in his email enclosing his advice on proofs. This arose as a result of the proposal from Connacht Gold's solicitors that liability be tried first. Finbar Tolan did not suggest in evidence that John Brady did not discuss with him the issue of splitting the trial and leaving over proof of damages.

165         John Brady gave evidence that the context of his letter dated 12 February 2014 was that Finbar Tolan wanted his case to proceed on 18 February 2014 in any way that was possible and was coming to realise that the financial side would not be fully and properly particularised by then. He gave evidence that this letter was ready to be sent on the morning of 12 February 2014.

166         However, it was not sent. The reason for this was that a letter arrived in from the solicitors for Connacht Gold advising a change of mind on splitting the trial and allowing the issue of liability to be decided first. Their counsel now advised that it would be inappropriate to allow liability to be determined first and that an application would be made at the call-over on 13 February 2014 to have the trial adjourned so that Finbar Tolan could particularise his claim.

167         John Brady also gave evidence that at the consultation on 11 February 2014 he expressed the view to Finbar Tolan that there was a possibility of bringing a case for malicious falsehood but that his view was that the statements provided by the two farmers fell below the threshold for this. John Brady did not elaborate on this reasoning and was not cross examined on it.

168         I would have needed more detail to persuade me to accept this aspect of John Brady's evidence.

169         If John Brady intended to advise caution and was emphasising that in order to succeed in a claim for damages for malicious falsehood it would be necessary to prove a number of ingredients which might be difficult to establish, I would tend to agree. If he intended to convey that the words of the mart manager were incapable of meaning that Finbar Tolan was in bad financial standing with the mart, I think that advice would be less sound.

170         Counsels' advice to Finbar Tolan in early 2014 was provided on the basis of limited information. Counsel's understanding was that as a result of it getting out that he was barred from Balla Mart he could not get stock from alternative suppliers. In fact, he continued to buy large numbers of cows from marts and may have been given credit by one mart. He continued to sell these cattle to Dawn Meats.

171         Counsel's letter dated 30 January 2014 and his advice on proofs drew attention to the need to demonstrate the extent of Finbar Tolan's loss of trading capacity as a result of lack of alternative sources of credit. John Brady gave evidence that Finbar Tolan did not produce witnesses from other marts to show a change in attitude in trading with him as a result of Connacht Gold's actions.

172         It is significant that on John Brady's evidence, which I accept, Finbar Tolan was aware of counsel's advice and did not produce potential witnesses from other marts to show that he lost or was refused credit facilities as a result of the actions of Connacht Gold. Back in 2014 and 2015 Finbar Tolan was in the best position to explain to his legal team whether potential witnesses from Castlerea Mart and Tuam Mart would be likely support his claim that he lost credit facilities with them as a result of what the manager of Balla Mart said to farmers on 11 August 2012.

173         Finbar Tolan knew that he had got substantial mart credit from Castlerea Mart and Tuam Marts during 2012. He knew when and why these marts pulled his credit and the reasons which their managers might offer as to why they withdrew it. He also knew that he had not paid these marts for cows he had bought from them on credit in 2012 and that they were suing him for what he owed. There is no evidence that Finbar Tolan explained to John Brady how all of this came about.

174         John Brady gave evidence that the focus in early 2014 was Finbar Tolan's claim that he lost his business with Dawn Meats. I accept John Brady's evidence that he did not know at that stage that Finbar Tolan had continued to supply Dawn Meats or that he was going to other marts after Connacht Gold stopped doing business with him. The evidence shows that proof of Finbar Tolan's special damage at that time was assembled on the basis of his claim that he was unable to supply cows to Dawn Meats and had lost the opportunity to profit on this trade.

175         The evidence establishes that in the interval between the adjournment on 13 February 2014 and the eventual trial, Finbar Tolan was in full control of his litigation against Connacht Gold. This included instructions to his legal team on what documents he was and was not prepared to provide on discovery. He was prepared to provide very limited information relating to his business records. He demanded that his legal team adhere to these instructions. He attended in court in person when counsel was dealing with applications for discovery and to fix dates. He participated in a number of meetings with counsel. His concern remained to get his case on for hearing as soon as possible. His statement of claim in this action also reflects this concern.

176         Finbar Tolan accepted that he got John Brady's bill of costs which made reference to the fact that counsel's advice on proofs was received on 11 February 2014 and that it referred to the fact that counsel advised that instructions be taken in relation to amending the statement of claim to include for issue of malicious falsehood. His evidence was that he did not notice what this related to until he got the advice on proofs from his file in 2022.

177         This is inconsistent with Finbar Tolan's claim that the issue of amending his claim to sue for malicious falsehood was not disclosed by his solicitor to him. I do not accept that this issue was kept from him by his solicitor either deliberately or as a result of failure to bother about it.

178         The overall evidence has led me to a very firm conclusion that Finbar Tolan was a at all stages a demanding client who kept on top of his litigation against Connacht Gold and knew exactly what he wanted. I accept that he knew about the option of amending his proceedings to include the claim of malicious falsehood and chose not to pursue that option. I have little doubt that if he had any real interest in making a case based on malicious falsehood and amending of his proceedings to facilitate this, he would have pursued this with his legal advisers.

179         My conclusion on the evidence is that after 13 February 2014 Finbar Tolan and his legal advisers "forgot" about the suggestion that he could advance an alternative claim against Connacht Gold based on malicious falsehood and concentrated on advancing his original case. I am using the word "forgot" here as meaning that they put this idea behind them and did not pursue it further.

180         The evidence shows that after that date Finbar Tolan met with his solicitor and barristers on a number of occasions and gave clear instructions relating to discovery and the need to get his case on for hearing. His barristers would have been briefed with a copy of the advice on proofs.

181         The suggestion that the pleadings be amended to include a claim for damages for malicious falsehood was never revisited by Finbar Tolan, John Brady or counsel. The adjournment on 13 February 2014 afforded an opportunity to give it further consideration.

182         There is no evidence that the issue of amending Finbar Tolan's to include such a claim was ever mentioned after 11 February 2014 or that any steps were taken to follow up on whether there was evidence available which might prove other elements of that tort.

183         In order to advise on whether there was any real prospect of Finbar Tolan succeeding in a claim for damages for malicious falsehood against Connacht Gold it would be necessary to take detailed instructions. This would require a point-by-point evaluation of whether there was potential evidence to establish each of the constituent elements of the tort of malicious prosecution. The evidence at this trial shows that had his legal team engaged in such an exercise, it would rapidly have become clear that this claim had no real prospect of succeeding.

184         Counsel's advice of 30 January 2012 and 11 February 2012 was provided on the basis of limited information. This advice did not mention that Finbar Tolan refused to pay Connacht Gold €154,830 in retaliation for not being allowed to buy cows on credit.

185         I must examine whether such a claim, had it been advanced before the President, would have had any real prospect of success by reference to the evidence presented to me. What did this evidence prove to me?

186         The President determined that Finbar Tolan was not entitled to buy cows at Connacht Gold marts on mart credit because he had no binding agreement which obliged Connacht Gold to continue to give him credit.

187         Finbar Tolan gave evidence that on 10 August 2012 the manager at Balla Mart asked him for a cheque to cover the price of the cows which he had bought at Balla Mart at the sale which took place two weeks previously and that he was not allowed to attend Balla Mart until Martin Walsh said so. He gave evidence that the manager of Balla Mart told him that he could not do his business as he was previously accustomed to do.

188         He accepted that he sent a text to Martin Walsh on 10 August 2012 which read as follows: "I can't go to Balla now tomorrow and do my bis [sic] the way I always did and was willing to do with the exception of the lodged cheque Monday instead of Friday. Anyway I won't be made a fool of."

189         Finbar Tolan also gave evidence that he phoned Martin Walsh on the morning of 11 August 2011. He told Martin Walsh that he wanted to attend Balla Mart that day and bid for cows on two weeks credit terms and that because Martin Walsh was refusing him to allow him to bid on this basis he was refusing to pay what he owed the mart. He gave evidence that the course of allowing him to bid for cows on two weeks credit was not acceptable to Martin Walsh. He gave evidence that Martin Walsh told him that another buyer would take his place.

190         The position as of 11 August 2012 was that Finbar Tolan refused to pay a debt variously referred during the trials as €104,000, €115,000 and €119,000, which he admitted that he owed for cows bought by him at Balla Mart two weeks previously. He had also countermanded payment of a cheque to Connacht Gold for €18,700 which he had issued on 8 August 2012 to pay for cows which he had bought on credit at Ballinrobe Mart.

191         He texted the manager of Ballinrobe Mart on the morning of 11 August 2012 and told him that he put a temporary stop on this cheque. He also texted: "...I'm keepin that 150 odd thousand I owe ye now if yer breaking our agreement 2day. No Balla 2day, no more money." These intransigent steps were a repudiation of his legal obligation to pay Connacht Gold money which he owed them.

192         In light of this attitude, Finbar Tolan he could not show his face at Balla Mart on 11 August 2012. His refusal to pay Connacht Gold meant his bids for cows would not be accepted.

193         This evidence shows that Finbar Tolan's did not have a sound basis to support an application to amend his pleadings to advance a claim against Connacht Gold for malicious falsehood. Even without the finding by the President that Connacht Gold were entitled to cut his mart credit, there was no legal justification for his refusal to pay what he owed for the cattle bought two weeks previously.

194         On his own case as articulated in his statement of claim he was intending to buy ninety or so cows on credit. His evidence was that, on average, each of these cows would have cost €1,500. He was demanding €135,000 of mart credit from Connacht Gold to buy cows and refusing to pay what he owed them.

195         The nub of the information which the mart manager is said to have conveyed to the two farmers who enquired about whether Finbar Tolan would be present to bid for their cows was that he was prevented from doing business at Balla Mart. While this information carried an imputation that he was in bad standing with Connacht Gold and had left them unpaid, this represented the truth.

196         The mart manager did not communicate any falsehood about the state of Finbar Tolan's business relationship with Connacht Gold. Finbar tolan has not produced any evidence to support a suggestion that he could prove that the mart manager acted out of malice or for any improper purpose. The mart manager was entitled to protect the mart's interests by conveying this information to farmers who came to the mart expecting Finbar Tolan to attend and bid for their cows. The mart manager had no obligation to pretend to these men that he was in good standing with the mart or that he would be back to buy their cows.

197         The position would have been exactly the same if Finbar Tolan had turned up at Balla Mart that day and farmers present observed his bids for cows being rejected because he refused to pay what he owed for cows bought two weeks previously.

198         The only conclusion which I can draw from Finbar Tolan's evidence is that had his proceedings against Connacht Gold before the President included a claim for damages for malicious falsehood or injury to his business reptation based on what the mart manager is alleged to have told farmers on 11 August 2012, this claim would inevitably have been dismissed.

199         Finbar Tolan referred me to a passing comment by the President of a possibility that he might have stateable cause of action for breach of competition law during the trial of his action against Connacht Gold. This comment was made at an early stage in that trial. I am satisfied that as the evidence in that trial developed, it became apparent that there was no prospect that Finbar Tolan could have succeeded in such a claim. No evidence as given at the trial before me which would support such a claim.

200         Finbar Tolan's action did not relate to whether Connacht Gold was dominant in the market for supply of cull cows in Mayo or decided to freeze him out in order to impede competition. No commercial entity is obliged by competition law continue to extend risky credit or do business with a customer who refuses to pay debts properly due.

201         Finbar Tolan gave evidence to me that he was prevented by Connacht Gold management from bidding against another dealer for bullocks and heifers. It is clear that he was told by Connacht Gold representatives that he could not use mart credit to bid for these animals. It would come as no surprise that Connacht Gold would not extend credit to Finbar Tolan to outbid competitors in a different area of trade. This would not be enough to convince me that he could plausibly make a case based on an allegation of uncompetitive practices.

202         The President rejected Finbar Tolan's theory that Connacht Gold deprived him of credit facilities to assist a competitor. His evidence to me on this point was insufficient to show that he could have made a plausible case before the President in the context of a claim for damages for malicious falsehood that this was the real reason why he was not welcome at Balla Mart. It was conspiracy theory, unsupported by an iota of acceptable proof.

203         I have considered, by reference to the evidence which I received during this trial, whether Finbar Tolan has established that he could have advanced a plausible claim to the President that the losses which he claims to have suffered were caused by the alleged malicious falsehood. He claims to me that he has lost the chance that he could prove that he lost his business as a cattle dealer as a result of this action.

204         Any evidence on touching on this issue is also relevant to the issue of whether Finbar Tolan demonstrated to me that could have advanced a plausible claim to the President that his business was solvent on 11 August 2012.

205         in order for Finbar Tolan to have succeeded in his claim for malicious falsehood, he would have had to prove to the President that is business was solvent on that date. This is because the nub of his complaint was that the mart manager falsely imputed to farmers at Balla Mart that his business was insolvent.

206         The evidence I received was insufficient to satisfy me that Finbar Tolan could have made a plausible case before the President that his business was solvent on 11 August 2012 or that it collapsed or was damaged as a result of what the manager of Balla Mart is alleged to have said to farmers on 22 August 2012.

207         Evidence was given by Finbar Tolan both at the trial of this action and at the trial of his action against Connacht Gold that he bought cows on credit from other marts during 2012.

208         Finbar Tolan gave evidence to me that after 11 August 2012 these marts "pulled" his credit. He stated that he had to pay private sellers up-front. It is clear from his documents that his purchases from private sellers were not significant. He paid €8,700 for cattle bought from private sellers during 2012. He stated in evidence that he could not get mart credit terms from other marts.

209         He agreed that Castlerea Mart sued him on 10 October 2012 and that Tuam Mart sued him around the same time. He was unable to tell me how much Castlerea Mart sued him for or how much Tuam Mart sued him for. He said that he did not have those figures to hand. This evidence was very vague and unsatisfactory. This issue had been raised before the President of the High Court. Finbar Tolan's evidence in that forum was unforthcoming.

210         He should have had these figures available for me. It is not credible that he does not know how much he owed Castlerea Mart and Tuam Mart for cows which he bought from them in 2012 and failed to pay for.

211         The mart documents show that Finbar Tolan did not buy any cows at Castlerea Mart after 9 August 2012. He did not buy any cows from Tuam Mart after 26 September 2012.

212         Finbar Tolan did not provide me with evidence which would enable me to conclude that he could have made a plausible case to the President that these marts or any other mart withdrew mart credit or refused him credit terms as a result of what the manager of Balla Mart is alleged to have said to farmers on 11 August 2012.

213         All I have is his bare assertion that Castlerea Mart and Tuam Mart pulled his credit. He did not give me "chapter and verse" which might show that they refused him credit for this reason as opposed to any other reason, such as that he could not pay outstanding bills because of lack of cash flow, or that they were also in course of attempting to reduce their exposure.

214         On any view of Finbar Tolan's potential case relating to damages for loss of his business, he is bound by the finding of the President that he was not entitled to insist that Connacht Gold continue to provide him with mart credit. Assuming that his action for malicious falsehood got to the point where the President was assessing damages, he could not complain about any detrimental effects to his business which arose from absence of credit from Connacht Gold and not being in a position to buy cows at their marts as a result of his refusal to pay them what they were owed.

215         It is significant that the cost of Finbar Tolan's purchases of cattle during 2011 was recorded as €219,772 in the profit and loss account prepared by his agent to support his tax return for that year. The value received from his sales of cattle during the same period was recorded as €275,212.

216         The President accepted evidence that Connacht Gold endeavoured to ensure that cattle dealers do not have any outstanding debt at the end of each calendar year. During 2011 the amount of mart credit which Connacht Gold had out to Finbar Tolan steadily increased. The President received evidence that the end of 2011 he owed €125,000 to Connacht Gold.

217         A statement from Castlerea Mart which Finbar Tolan produced to verify his purchases in 2012 discloses that prior to the start of 2012 he had bought cattle from that mart which cost €77,598 (ex-commission). I got this figure by subtracting the total of Finbar Tolan's purchases for 2012 from the total for purchases supplied by Castlerea Mart, which includes pre-2012 transactions redacted from the statement by Finbar Tolan.

218         In the period between the start of January 2012 and the end of July 2012 the cost of his purchases of cows from the three Connacht Gold marts, Castlerea Mart and Tuam Mart rose to €3,065,286. The value of his sales to Dawn Meats during that period was €3,361,509.

219         How did this come about? These marts allowed Finbar Tolan to run-up debt by allowing him to buy cows on mart credit. Dawn Meats paid Finbar Tolan in arrears for cows which he sold to them for slaughter. He then used receipts from Dawn Meats to pay in arrears for cows which he bought. His trading was a carousel of increasing volumes of purchases and sales funded by mart credit. He gave evidence that he had an overdraft facility of €40,000. This provided inadequate working capital to fund his purchases during 2012. He produced no evidence to show that he had any other source of working capital.

220         In his evidence to me Finbar Tolan said that once Connaught Gold stopped doing business with him he could no longer supply Dawn Meats with cattle. He said that most of his business related to cattle bought on three weeks credit at Balla Mart. He told me that he also bought smaller numbers of cows at Ballinrobe Mart and Ballymote Mart.

221         Mart information which supports Finbar Tolan's figures for purchases of cows shows that after he stopped trading with the three Connacht Gold marts, Castlerea Mart and Tuam Mart, he started to buy large numbers of cows from Ballina-Sligo Mart, Elphin Mart and Headford Mart.

222         During the period from the beginning of January 2012 to the end of July 2012 Finbar Tolan bought cows at Connacht Gold marts having a total value of €2,189,209. He also bought €150,768 worth of cattle from Tuam Mart during this period. He bought cattle worth €716,309 (ex-commission) from Castlerea Mart during this period. The mart statements show me that the total cost of cows bought by Finbar Tolan from these marts (ex-commission Castlerea) during the period between the beginning of January 2012 and the end of July 2012 was in the order of €3,056,286.

223         Sales information presented to me shows that the total value of Finbar Tolan's sales of cows to Dawn Meats during 2012 was €5,319,761. The total value of his sales of cows to Dawn Meats in the period between the beginning of August 2012 and the end of December of that year was €1,958,235.

224         He bought €85,620 worth of cows (ex-commission) from Castlerea Mart at the beginning of August 2012. He bought cattle worth €86,840 from Tuam Mart in the period between 7 August 2012 and 26 September 2012. He bought cattle worth €95,638 from Headford Mart between 8 September 2012 and 15 December 2012. He bought cattle worth €762,342 from Mayo-Sligo Mart at Ballina Mart in the period between 4 September 2012 and 12 December 2012. He bought cattle worth €787,630 in Elphin Mart in the period between 10 September 2012 and 17 December 2012. His evidence to me suggested that Elphin Mart may have allowed him to buy cattle on credit.

225         The total cost of cows bought by Finbar Tolan from these marts between the beginning of August of 2012 and the end of December 2012 was €1,818,070.

226         The cost of cows bought by Finbar Tolan from marts during 2012 on these figures was €4,874,356. He paid commission of €5,481 to Castlerea Mart and made private purchases costing €8,700. These figures produced a total of €4,888,537. This figure, as calculated by me, is slightly different from a figure of €4,900,143 calculated by Finbar Tolan. This difference is not material to my overall conclusions.

227         Finbar Tolan's trading figures for 2013 show that he bought cows costing €512,178 from Elphin Mart, Headford Mart and Ballina Mart in the period between 7 January and 18 February 2013 and sold cows to Dawn Meats for €484,420 in January and February 2013. The total value of his sales to Dawn Meats in the period between May and August 2023 was €64,487. He had no sales to Dawn Meats in the months of March and April 2013.

228         Finbar Tolan's mart statements for 2012 showed a steady increase in purchases of cows between January and June of that year. On his own figures, rounding up to or down from the nearest €1,000 as appropriate, the value of his sales to Dawn Meats between January and July 2012 were €194,000 for January; €220,000 for February; €318,000 for March; €503,000 for April; €621,000 for May, €835,000 for June and €670,000 for July. Finbar Tolan bought nearly all of these animals on mart credit.

229         At one stage during the summer of 2012 Connacht Gold's exposure to Finbar Tolan was in the order of what the President of the High Court described as "a staggering sum of €464,000." As of 9 August 2012 this had reduced to €154,830. Agreed figures for amounts of credit out from other marts to Finbar Tolan as of 9 August 2012 were supplied to the President of the High Court on 15 May 2015 and were referred to in his judgment.

230         Finbar Tolan owed €245,549 to Castlerea Mart. He owed €111,370 to Tuam Mart. He owed €37,643 to Sligo Mart. If these figures are correct, his total indebtedness to Connacht Gold and to Castlerea, Tuam and Sligo Marts for cows bought on mart credit as of 9 August 2012 was €549,392. I could not locate any transactions with Sligo Mart prior to 9 August 2012 in his mart statements and I am inclined to think that €37,643 may have been included by mistake. Even if this was a mistake, he owed €511,749 to marts for cows bought on credit.

231         It is clear that during the first half of 2012 these marts allowed Finbar Tolan to run-up debt. He had the equivalent of a very large unsanctioned and unsecured overdraft which had no upper monetary limit. That any livestock auctioneer would allow a dealer to finance a huge increase in turnover, by taking advantage of uncontrolled access to mart credit, is a recipe for potential disaster. That dealer can outbid any other potential buyer, using the auctioneer's money. This carries a risk that the dealer will make losses on resale. A carousel of trading on unrestricted credit provided by two or three marts increases the level of risk.

232         Finbar Tolan's business model was vulnerable. A mart might terminate credit or place a limit on the amount of credit. A mart might cut back his period of his credit. There might be a seasonal fall in cows available for sale or a reduction in demand. The price which a factory is prepared to pay might reduce. He might pay too much for cows or buy cows which he could not bring-on profitably. Any of these events would adversely affect his solvency.

233         It was inevitable that, sooner or later, Connacht Gold, Castlerea and Tuam Marts would notice that they had allowed Finbar Tolan far too much credit and attempt to reduce their exposure. Each of them would attempt to manage-down his debt in the hope that they would not be left "standing when the music stopped." In the case of Connacht Gold, the President accepted that Finbar Tolan's excessive level of debt was the reason for the meetings in June, July and August 2012.

234         On his own evidence, Finbar Tolan estimated in June 2012 that he needed €200,000, which he borrowed from Ulster Bank, to enable him to continue in business when his credit period to pay for cows bought at Balla Mart was pared back from three weeks to two weeks. This demonstrated that any significant curtailment of his credit, as happened when Connacht Gold cut off his credit, would produce a cash-flow crisis.

235         In answers to me, Finbar Tolan was unclear as to whether he had used up his €200,000 from Ulster Bank on cattle purchases prior to 11 August 2012. This money was credited to his current account in late July 2012. He told me that if he used this money, this did not matter as receipts from sales would have come into in his account. This answer suggested that the €200,000 was used by him to pay for cows prior to 11 August 2012 and that he would have had to rely on later receipts from cattle sales if he were to pay Connacht Gold what h owed them.

236         He also told me that if he sold all of his stock at that point he would be unable to fully liquidate his position because he was feeding-on some of the cows which he had bought. His evidence on whether he ever repaid his loan of €200,000 to Ulster Bank was vague and unsatisfactory. This loan was rolled-over for years and I was left under the impression that it remains outstanding.

237         I am satisfied that the projections produced by Finbar Tolan's adviser in January 2013 are unreliable to the point where they could never be supported by credible evidence. There was nothing in his trading pattern during 2011 and 2012 to support a claim that his business could have grown by 20% in a steady progression year-on-year from 2013 to 2022. This made a nonsense of the claim for loss of profits advanced in the actuary's report dated 14 February 2014.

238         Finbar Tolan did not call any evidence to establish the accuracy of the profit and loss accounts prepared by his tax adviser. His documentation did not include any balance sheets for the years ending, 31 December 2010, 31 December 2011, 31 December 2012 or 31 December 2013 or a balance sheet showing his financial position as of 11 August 2012. He told me that no annual balance sheets were prepared for his business.

239         Without expert evidence based on reliable balance sheet information, stock-takes and proper sets of accounts which could be shown to be derived from accurate business records, there was no proof that Finbar Tolan's business was in fact solvent and capable of being operated profitably either before or after his credit was curtailed by Connacht Gold in August 2012. Finbar Tolan did not give me any evidence which demonstrated that there was a realistic possibility that such proof might be available.

240         I have no evidence which sufficiently vouches that Finbar Tolan could put forward a plausible case that he was in fact balance sheet solvent, or able to pay his debts as they fell due or trading profitably in mid-2012.

241         It should be borne in mind that Finbar Tolan's case is that loss of mart credit during August and September 2012 destroyed his business. He had already used up the €200,000 which he borrowed from Ulster Bank in July 2012. He refused to pay Connacht Gold and two other marts what he owed them. However, he continued to trade. Assuming that he got no mart credit from other marts after August and September 2012, his sources of funding to buy more cows were proceeds of sales of cows which he had bought from the Connacht Gold marts, Castlerea Mart and Tuam Mart and failed to pay for. He used this money to keep trading. His business still failed.

242         Finbar Tolan complained in his outline legal submission that his "case (as advanced to the President) was not fit to carry the heads of damage." He submitted to me that he should be awarded damages for loss of the chance that his claim for loss of his business could have succeeded based on the figures which his legal team assembled to support his claim against Connacht Gold.

243         I cannot entertain this. The evidence establishes that Finbar Tolan insisted on making this claim for damages, which, to his knowledge, was based on an unrealistic premise relating to potential growth in turnover. Furthermore, his financial adviser's view of the successful nature of his business in 2012 was neither given in evidence nor based on information verified by acceptable evidence.

244         The base figures for loss of profit relied on assumed that the simple claim of total loss which Finbar Tolan originally advanced against Connacht Gold could be stood over. This approach was always problematic, as his barrister advised his letter dated 30 January 2014, and in his advice on proofs. Furthermore, it took no account of the effect of the finding of the President that Connacht Gold was within its rights in withdrawing his credit.

245         I received no reliable evidence capable of demonstrating that Finbar Tolan could have made a plausible case to the President that he operated a solvent and sustainable business before or after Connacht Gold stopped allowing him credit in August 2012. His general assertions to me that his business was successful; that banks would have been willing to provide him with whatever overdraft facilities he wanted, and that his escalating debt from trading on mart credit was not a problem because money was always coming in from Dawn Meats to pay marts what they were owed, were not the sort of evidence which could demonstrate to me that he had a realistic prospect of proving any of these matters.

246         Finbar Tolan has not proved to me that he could have made a plausible case to the President that his business failed because Castlerea Mart and Tuam Mart withdrew his mart credit or because he could not get credit terms from other marts as a result of the alleged malicious falsehood. His evidence relating to the circumstances in which Castlerea Mart and Tuam Mart cut his credit was vague and insufficient to show that there was a real prospect that he could have proved to the President that these marts cut his credit because they heard that Connacht Gold had barred him as a result of what was said by the manager of Balla Mart.

247         This judgment is being delivered electronically. My preliminary view is that the costs of this action, including reserved costs, should follow the event and be awarded to the defendants. This will be my order in absence of any contrary submission. If either party wishes to make a contrary submission, this should be notified within twenty one days of delivery of this judgment. In that event I will allocate and notify a date for an oral hearing relating to costs.