O'Connor Anor -v- Power [in trust]
High Court
Judgment delivered on June 13th, 2008, by Mr Justice Kelly
JUDGMENT
The plaintiffs were entitled to have an agreement to sell land to the defendant set aside, as he had not abided by the terms of the agreement. Mr Justice Kelly also referred counsel for the defendant to the Bar Council because of her "unacceptable behaviour both prior to and during the trial".
BACKGROUND
The plaintiffs, Patrick and Eileen O'Connor, were an elderly couple who owned land in Co Wexford worth €8.125 million. They had entered into an agreement with the defendant, Martin Power, to sell him the land. The agreement arose in settlement of a previous legal dispute, and included an option date of May 30th, 2007, by which the full sum was to be paid. The date could be extended until June 30th on payment of €25,000, and further extended to July 30th on payment of €50,000. There was no further provision in the agreement for extension of the date. Mr Power extended the option until July 30th under the terms of the agreement.
He then sought to extend it further, and approached the O'Connors' son-in-law, who had power of attorney, but only to perfect documents necessary for the land transfer. The latter contacted the O'Connors, who said they were not willing to extend the option further. The son-in-law communicated this message, and the O'Connors' solicitor also wrote to Mr Power making it clear that there would be no extension of the option. They put the lands on the market.
Mr Power then wrote to their solicitor stating that the agreement was "tainted with deceit and illegality", that legal proceedings between him and the O'Connors were going ahead, and that any potential purchaser should be made aware of this. This letter did not come from his solicitor, but directly from him.
The O'Connors' solicitor responded by stating that they were taking proceedings to confirm that he had no claim whatsoever on the land.
The case came before Mr Justice Kelly in the Commercial Court. Mr Power did not appear at any of the hearings to explain or defend his letter. His counsel, Angela Heavey, put forward two positions: that it could have been written by a crank, while at other junctures attempting to stand over its contents.
Mr Justice Kelly described at length the conduct of the litigation. The proceedings began on October 24th, 2007, and Adam Suzin came on record as a solicitor for the defendant on November 6th.
After orders were made requiring a defence to be entered, and an attempt by counsel for the defendant to reopen on an ex parte basis matters that had already been dealt with in the presence of the plaintiffs, the hearing eventually came on for hearing on January 21st, 2008.
Mr Justice Kelly fixed the trial to begin on April 22nd, requiring both sides to furnish witness statements and other documents within four weeks. The defendant failed to do so.
A further motion was brought, when a statement from the defendant was produced detailing witnesses to be called from 26 different entities, ranging from members of the O'Connor family to "relevant members of Fianna Fáil Advisers on Ethics". None of those described was eventually called.
When the question of the late filing of the witness statement was raised, counsel for the defendant sought to blame the solicitor, Mr Suzin, who gave evidence that the procuring of the witness statement was not done on his advice. "This again underlines the unorthodox relationship between Mr Power and his counsel to the exclusion of the solicitor on record," Mr Justice Kelly said.
By the day before the trial, no submission had been produced by the defendant. On the morning it was due to start, Mr Power's counsel sought to have it adjourned. Mr Justice Kelly refused.
"It was at this stage quite clear to me that from the outset the defendant had attempted to frustrate the O'Connors' efforts to get their case on for trial. I attach no blame to Mr Suzin in that regard. It will be for another body to decide what part Mr Power's counsel may have played in his delaying tactics," Mr Justice Kelly said.
At the opening of the trial, Mr Power's counsel again applied for an adjournment, producing a medical certificate saying that Mr Power was unable to attend court proceedings for at least a week because of a problem with his back. Mr Justice Kelly refused to adjourn the trial on the basis that all the Commercial List procedures had been complied with by the plaintiffs, their son-in-law had travelled from England for the trial, and the defendant had seen all the evidence that would be brought forward by the O'Connors, who had provided full statements of evidence. Their evidence was completed on the first day of the trial (a Tuesday).
Mr Justice Kelly adjourned the trial until the Thursday, when Mr Power would be required to give evidence. He asked that his GP attend to explain Mr Power's state of health. The GP communicated with the court registrar, stating that he was fully fit to attend and give evidence, and explaining that Mr Power had come to his surgery on the evening before the trial (when his counsel's adjournment application had failed) with a complaint of back pain.
He gave the doctor the impression that there was some minor matter before the courts, not that he was the defendant in a High Court action.
"On the second day of the hearing, not merely did Mr Power not turn up, despite having been advised to do so by both his solicitor and his doctor, but neither did his counsel," Mr Justice Kelly said. Mr Suzin told the court he had made numerous attempts to contact the counsel, but she had only responded by text stating that she would not attend and was withdrawing from the case, despite the fact that he pointed out to her she could not do so given that the trial was part heard. He also sought to come off record.
"I have never known of a case where counsel abandoned a trial such as occurred here. She did so despite the entreaties from her instructing solicitor, who quite properly pointed out that it was not open to her to do so," Mr Justice Kelly said.
DECISION
"This was an extremely difficult case to preside over because of the behaviour of the defendant's counsel in refusing to accept the rulings of the court, her constant interruption of counsel for the plaintiff and myself, to say nothing of the allegations of impropriety which she freely made. Her attempts to shout me down and her persistent flouting of the ordinary rules of courtesy and behaviour in the conduct of litigation were quite unacceptable," Mr Justice Kelly said.
Turning to the issues at the centre of the dispute, he said that, while it was difficult to establish what the defendant's counter-claim actually was, nowhere did it seek to have the agreement set aside. He was therefore not going to allow cross-examination relating to events which, under the terms of the agreement, had already been settled. Counsel for the defendant had also attempted to raise the issue of deceit, and Mr Justice Kelly found there was no evidence whatsoever of any deceit.
"I am satisfied that for the reasons which I have already given, that the agreement has not been varied so as to provide for the extension of the option period," he said.
"Nowhere in Mr Power's pleadings did he seek to have the agreement set aside. Neither did he seek to have the return of the monies paid by him. He offered no evidence. None of the numerous witnesses alluded to in his witness statement were called. That being so, I found for the plaintiffs and made the relevant orders in their favour," he said.
He added: "Having regard to the behaviour of Mr Power's counsel, it is my intention to furnish a copy of this judgment to the chairman of the Bar Council so that he may consider its contents."
The full text of the judgment is on www.courts.ie
Martin Hayden SC and Frank Beatty BL, instructed by Mark Keller, Waterford, (for the applicants); Angela Heavey BL, instructed by Adam Suzin, Longford (for the defendant)