Dr James Barry, who was sued by 36 former female patients who alleged he sexually or indecently assaulted them, failed in his High Court claim yesterday that he should be indemnified for costs and damages by the Medical Defence Union (MDU).
Miss Justice Mella Carroll in a 50-page reserved judgment said extensive correspondence revealed that Dr Barry had never made personal contact - as required - with the MDU to give instructions about his claims. Dr Barry did not have any right of choice of his own solicitor and counsel.
The judge said Dr Barry, who is in his late 70s, of Lauriston Lodge, Glanmire, Cork, was sued by three former patients in the Circuit Court. Those proceedings were defended by his solicitors. He was also sued by 36 other former patients in the Circuit Court between 1995 and 1999.
In two of those cases, Dr Barry also took judicial review proceedings and three High Court actions were initiated against him by former patients in 1995 and 1996. In addition he unsuccessfully challenged notices of disciplinary proceedings under the Medical Practitioners Act 1976.
Dr Barry, who claimed he bought professional indemnity insurance from the MDU for over 20 years until his retirement in 1995, sought a series of declarations that he was entitled to be indemnified for any damages or costs obtained against him.
The MDU denied that Dr Barry had purchased professional indemnity insurance or that he was entitled to be indemnified. The organisation claimed it could give a member advice or legal assistance or defend any matter which affected the professional character or interests or his conduct in a professional capacity.
It also stated that a member making a request was bound to abide absolutely by every decision of its board of management on the conduct or defence of a matter and should not, without prior consent, take any steps without referring the organisation to such a matter.
The MDU claimed Dr Barry failed to date to co-operate with the MDU by personally providing information and instructions in relation to the legal proceedings in which he was involved and the circumstances giving rise to them. It also had agreed to offer advice and legal assistance in relation to the disciplinary proceedings subject to conditions that the legal assistance be provided by solicitors and counsel appointed by the MDU.
The judge said the MDU in November 1995 wrote to Dr Barry that it required a personal approach from the doctor. A letter written by new solicitors for Dr Barry, which was described by the judge as "very intemperate", stated the firm was committed to defending all proceedings brought against Dr Barry.
Ms Justice Carroll in her review of the correspondence said it could be seen that Dr Barry never made personal contact with the MDU despite that being a key requirement before any assistance could be given.