21. At para. 45 of the judgment Binchy J. states that, while the plaintiff had multiple grievances, her principal grievance was that counsel continued to act on the instructions of Mr. Power, without confirming that Mr. Power still had authority to act on her behalf following the dissolution of Bernard L. Gaughran & Co Solicitors. Related to this grievance, the plaintiff claimed that Mr. Wade BL took a decision, on her behalf and without her authority, to issue the proceedings. She further complained that Mr. Wade BL should have, but did not, contact her directly in order to advise her of the limitation period. In the view of Binchy J., all of the plaintiff's complaints in this regard were misconceived and were due to her misunderstanding as to the respective roles of solicitor and counsel.
22. Binchy J. states at para. 51 of the judgment that the failure on the part of the plaintiff to maintain contact with her solicitor for a period of approximately twelve months placed the solicitor in a difficult situation about which he quite properly consulted with counsel who gave advice that he considered to be in the best interests of the client. The circumstances required the plaintiff's legal advisors to make a judgment call between one of two choices: do nothing and run the risk that the plaintiff's entitlement to issue proceedings and recover compensation could be forever lost, or, issue proceedings which at worst would protect the entitlement of the plaintiff who could, if she resumed contact (as she did), choose to discontinue the proceedings or amend them as she saw fit upon her return. Binchy J. noted that if the plaintiff's proceedings had become statue barred, this would inevitably have exposed the solicitor and possibly counsel to proceedings in negligence by the plaintiff. Binchy J. also noted that while the plaintiff argued that counsel had miscalculated the statutory limitation period and that at all relevant times she had sufficient time left within which to issue proceedings, any such argument could not avail the plaintiff. This was because it was manifestly not good practise for legal practitioners to defer the issue of legal proceedings to the eleventh hour, and it was manifestly good practise to ensure, if at all possible, that proceedings were issued comfortably within any applicable time limit.
23. At para. 55, Binchy J. notes that in ordinary circumstances a person might well have a valid grievance if legal proceedings were issued in their name without their express authority, not least if the issue of the proceedings gave rise to any form of prejudice, whether financial or personal. However, the circumstances giving rise to these proceedings were not "ordinary" and the actions of the plaintiff's legal advisers were taken in good faith, in her best interests and did not result in any prejudice to her. In the view of Binchy J., the circumstances could not possibly give rise to a sustainable complaint of misconduct, and in the view of the court the plaintiff fell well short of meeting the test for leave in G. v. DPP [1994] 1 I.R. 374 and the trial judge was correct in so holding when dismissing the judicial review proceedings.
24. Separately, in Tinka Zapryanova v. The Commissioner of An Garda Síochána [2024] IEHC 594, the plaintiff sought leave to seek an order of mandamus to compel the Commissioner of An Garda Síochána to provide her with certain information regarding the criminal investigation carried out by An Garda Síochána into the road traffic accident the subject of her personal injuries claim. The plaintiff was aggrieved at the manner in which the investigation was carried out by An Garda Síochána and the alleged failure of An Garda Síochána to keep her updated on the progress of the investigation. The application for leave was opposed by the respondents on several grounds, including the contention that, as a matter of fact, the plaintiff had been kept abreast of progress in the investigation and furthermore that the application for judicial review was moot in circumstances where the plaintiff had been provided with detailed responses to a number of questions that she had posed prior to seeking judicial review. The response from An Garda Síochána indicated that the road traffic accident in question was investigated by the Gardaí, and that a summons was applied for and issued, and the third-party driver was charged with one count of careless driving pursuant to s. 52 of the Road Traffic Act 1961 as amended. The prosecution was heard in Swords District Court on the 11th September 2018, and thereafter the third-party driver brought an appeal to Dublin Circuit Criminal Court on the 31st January 2019. The driver had pleaded guilty before the District Court and was fined €300 and received a three-month driving disqualification. Following the appeal to the Circuit Court, the fine was upheld but the disqualification was overturned.
25. The plaintiff was evidently unhappy with the information with which she was provided by the Gardaí, and she also criticised documents and affidavits provided by the Chief State Solicitor's Office. She believed and contended that certain records should exist, and she criticised what she regarded as their absence. She criticised an affidavit of a superintendent for containing allegedly inaccurate and misleading assertions.
26. Heslin J. heard the leave application in the High Court and gave a comprehensive ex-tempore judgment which I have read. In the course of his judgment, he noted that the plaintiff's various criticisms were not supported by evidence, and that he was unimpressed by the fact that the plaintiff was prepared to make very serious allegations which were in the nature of bare allegations unsupported by credible evidence. At para. 34 of the judgment, Heslin J. notes that the plaintiff had grounded an application for liberty to cross examine the respondents' deponents on an assertion that at least three of the documents provided to her contained what she described as "fraudulent information". This was a very serious allegation which the judge found was not based on any credible evidence, nor did it form part of the case for which the applicant had sought leave.
27. At para. 54 Heslin J. notes that in the course of her submissions, the plaintiff suggested that wrongdoing had been carried out by a range of parties including (1) An Garda Síochána; (2) The Department of Transport; and (3) The National Ambulance Service. Furthermore, criticisms were made of the care she received in respect of the injuries sustained in the accident.
28. Of relevance to the proceedings before me, I note that at para. 67 of the judgment Heslin J. stated the following:
"It also seems to me that the applicant is labouring under a misapprehension as follows. Rather than [having] been given the documents in the manner she has - that is by way of sworn affidavit by the responsible superintendent - the applicant appears to believe and contend that she has some right to receive each document from each author; and the entitlement to require changes to be made to documents with which she disagrees; and to dictate the form which information or documentation takes. In all of this she is, with respect, simply wrong."
29. It seems to me those remarks have a resonance in the case presently before me. Frequently during her submissions, the plaintiff criticised what she regarded as errors and omissions in various documents, including boxes left blank in pro-forma forms. She made repeated submissions premised on an apparent entitlement to require changes to be made to documents with which she disagreed. On occasion, she became very preoccupied with such matters. Unfortunately, this led to the plaintiff focussing unduly on inconsequential and often irrelevant matters, which ultimately meant the hearing took far longer than it should have.
30. The plaintiff was ultimately unsuccessful in the judicial review proceedings against An Garda Síochána. Heslin J. noted in conclusion that the court had to be satisfied on the facts that an arguable case in law could be made that the plaintiff was entitled to the relief which she sought. All the evidence before the court was that the plaintiff had already been provided with the information for which the proceedings had been brought. The proceedings were declared moot and relief was refused.
Order 19, rule 28 of the Rules of the Superior Courts
31. Order 19, r. 28 (as inserted by S.I. 456/2023) states:
"28. (1) The Court may, on an application by motion on notice, strike out any claim or part of a claim which:
i. discloses no reasonable cause of action, or
ii. amounts to an abuse of the process of the Court, or
iii. is bound to fail, or
iv. has no reasonable chance of succeeding.
...
(3) The Court may, in considering an application under sub-rule (1) ... have regard to the pleadings and, if appropriate, to evidence in any affidavit filed in support of, or in opposition to, the application.
(4) Where the Court makes an order under sub-rule (1), it may order the action to be stayed or dismissed, as may be just, and may make an order providing for the costs of the application and the proceedings accordingly."
32. There was no significant dispute between the parties as to the applicable legal provisions. Therefore, I do not propose to review the relevant case law in any great detail.
33. As noted by the authors in Delany and McGrath on Civil Procedure, 5th Ed., (Round Hall, 2024) at para. 16.02:
"Order 19, rule 28 now provides for a wider jurisdiction to strike out proceedings which effectively amalgamates the two previously separate jurisdictions and enables a court to strike out any claim or defence that has no reasonable prospect of success or that constitutes an abuse of process."
34. The plaintiff cites the dictum of Cregan J. in Arnaud Gaultier and Sup Pliable Limited v. Mark Reilly and Aine McGuigan [2024] IEHC 226 wherein he states at para. 10:
"The Courts have made it clear that the power pursuant to Order 19, Rule 28 is to be used sparingly. In Aer Rianta v. Ryanair Limited [2004] 1 IR 506, Denham J. (as she then was) emphasised that the Court should be slow to exercise the jurisdiction under Order 19, Rule 28 and that it should "exercise caution" when doing so."
35. The plaintiff also cites the judgment of Dignam J. in Gleeson v. Ireland and The Attorney General [2024] IEHC 415 where the following overarching principles were emphasised at para. 23:
"... first, it is a jurisdiction to be exercised sparingly, given that it relates to the constitutional right of access to the courts; second, the onus is on the moving party to establish that the pleadings do not disclose a reasonable cause of action or that the case is frivolous or vexatious or bound to fail or that it is an abuse of process, and the threshold to be met is a high one; third, the Court must take the plaintiff's claim at its high-water mark; fourth, the Court must be satisfied not just that the plaintiff will not succeed but cannot succeed; and fifth, the Court must be satisfied that the plaintiff's case would not be improved by an appropriate amendment to the pleadings or through the utilisation of pre-trial procedures such as discovery or by the evidence at trial."
36. The relevant principles were reviewed more recently by Phelan J. in James Guerin v. Gemma O'Doherty [2025] IEHC 140 at paras. 33 - 46 thereof. Phelan J. noted that the burden on a defendant in moving a strike out application is a high one, and the jurisdiction falls to be sparingly exercised and with due regard to a plaintiff's constitutionally protected right of access to the courts.
37. As noted by the plaintiff in her written submissions at para. 21, the right of access to the courts is protected as an implied personal right under Article 40.3.1 of the Constitution. In addition, Article 47 of the EU Charter of Fundamental Rights also guarantees the right to an effective remedy and to a fair trial. Article 6 of the European Convention on Human Rights safeguards the right to a fair trial and the relevant case law of the Strasbourg Court emphasises that access to courts must be effective and practical. As well as the right to institute proceedings, a litigant will ordinarily also have a right to obtain a determination of a dispute (Golder v. United Kingdom no. 4451/70, judgment of the European Court of Human Rights 21st February 1975).
38. The plaintiff also relies upon several cases in support of the proposition that the European Convention is intended to guarantee rights that are not theoretical or illusory, but are practical and effective.
39. I propose to take into account and apply these legal principles to the three applications before the court.
Case pleaded against Rochford Gibbons Solicitors
40. The case pleaded against the first defendant is that the first defendant, their servants or agents were guilty of negligence and breach of duty, including breach of statutory duty, and a "duty of care and duty of loyalty" in that he/they:
"(a) Recklessly misrepresented of [sic] the Plaintiff by issuing an inaccurate, incomplete and misleading "proposed Letter of claim" to AXA Insurance Dac without the Plaintiff's knowledge or consent on 14th November 2017;
(b) Failed to request and/or obtain the Garda report and other relevant information and documentation from the investigating Garda officer - Keith Delaney in respect of the RTA of 13th November 2017, in which the Plaintiff was injured;
(c) Failed to establish if liability for the RTA of 13th November 2017, in which Tinka
Zapryanova was seriously injured, was accepted by Mr. Niperovics (who caused the accident) and his motor insurance providers AXA Insurance Dac;
(d) Failed to provide a [sic] legal advice and explanations to the Plaintiff in respect of the provisions of Section 8 of Civil Liability and Courts Act 2004 and the requirements to issue a Letter of claim to the defendant in the prescribed period;
(e) Failed to obtain instructions by the Plaintiff before issuing the proposed Letter of Claim to AXA Insurance Dac on 14th November 2017;
(f) Failed to furnish the Plaintiff with a copy of the "proposed Letter of claim" after issuing the same to AXA Insurance Dac;
(g) Failed to issue to issue a Letter of claim in timely manner (as required by Section 8 of Civil Liability and Courts Act 2004) containing the accurate factual account of the RTA of 13th November 2017 as per the Plaintiff's representations of 14th November 2017;
(h) Failed to advise Tinka Zapryanova to request an independent technical expert opinion in respect of the damaged Nissan Micra 132-D-3840 to establish the extent of the damages and the mechanism of the personal injuries sustained as a result of the car accident;
(i) Failed in the performance of their fiduciary duty. Failed to act in good faith. Failed to uphold confidentiality. Failed to request and obtain instructions from Tinka Zapryanova in respect of each action taken on her behalf. Failed to act in the best interest of the beneficiary;
(j) The above acts and omissions were caused as a result of professional negligence and breach of duty, including breach of statutory duty on the part of Rochford Gibbons Solicitors, their servants or agents, in the provision of legal advice. With their actions Rochford Gibbons Solicitors caused unnecessary confusion and delay and contributed to the mishandling of the Plaintiff's personal injury claim and the payment of a fair compensation to the Plaintiff;
(k) As a result of the non-compliance with the requirements of section 8 of Civil Liability and Courts Act 2004 the Plaintiff is not in a position to engage legal representation in the litigation process at High Court and potentially Court of Appeal level, because the legal costs should be borne by the Plaintiff personally and she cannot afford it."
Case against the second defendant, Anderson & Gallagher Solicitors
41. The case as pleaded against the second defendant, Anderson & Gallagher Solicitors, is as follows:
"The Defendant, ANDERSON & GALLAGHER SOLICITORS, their servants or agents were guilty of negligence and breach of duty, including breach of statutory duty, duty of care and duty of loyalty in that he/they:-
(a) Failed to request and/or obtain the Garda report from the investigating Garda officer - Keith Delaney in respect of the RTA of 13th November 2017, in which the Plaintiff was injured;
(b) Failed to establish if Mr Martins Niperovics, who caused the RTA on 13th November 2017 by braking [sic] a "Stop" sign, while driving with excessive speed, was subject to any criminal charges and convictions resulting from the said accident;
(c) Failed to establish if liability for the RTA of the 13th November 2017, in which Tinka Zapryanova was seriously injured, was accepted by Mr Niperovics (who caused the accident) and his motor insurance providers AXA Insurance Dac;
(d) Failed to establish that Rochford Gibbons Solicitors issued a "proposed Letter of claim" on behalf of Tinka Zapryanova to AXA Insurance Dac on 14th November 2017 with contents contradicting the account of the accident, as provided by Ms Zapryanova;
(e) Failed to notify Ms Zapryanova, being their client in 2018 and 2019, that Rochford Gibbons Solicitors had issued a "proposed Letter of claim" to AXA Insurance Dac with assertions, which contradicted the account of the accident, as expressed by Ms Zapryanova;
(f) Failed to provide a [sic] legal advice and explanations to the Plaintiff in respect of the provisions of Section 8 of Civil Liability and Courts Act 2004 and the requirements to issue a Letter of claim to the defendant in the prescribed period;
(g) Failed to issue a Letter of claim in a timely manner (as required by Section 8 of Civil Liability and Courts Act 2004) with the accurate factual account of the RTA of 13th November 2017 as per the representations of the Plaintiff;
(h) Failed to establish that the Plaintiff's vehicle, Nissan Micra 132D3840, which was severely damaged in the RTA on 13th November 2017 and was surrendered to AXA Insurance DAC by Tinka Zapryanova on 1st December 2017 in exchange of monetary compensation for the pre-accident value of the same, continued to falsely appear in existence in the Dept of Transport, NVDF database with the legal owner Tinka Zapryanova in the years 2018 and 2019;
(i) Failed in the performance of their fiduciary duty. Failed in good faith. Failed to uphold confidentiality. Failed to request and obtain instructions from Tinka Zapryanova in respect of each action taken on her behalf. Failed to act in the best interests of the beneficiary.
(j) The above acts and omissions were caused as a result of professional negligence and breach of duty, including breach of statutory duty on the part of Anderson & Gallagher Solicitors, their servants or agents, in the provision of legal advice.
With their inappropriate actions and omissions Anderson & Gallagher Solicitors contributed to the mishandling and jeopardising of the personal injury action of Ms Zapryanova, caused [sic] and the payment of a fair compensation in a timely fashion
By reason of the matters aforesaid, the plaintiff has suffered loss, damage, inconvenience and expense."
42. At para. 2.2 of the statement of claim the following is pleaded:
"The Defendant, ANDERSON & GALLAGHER SOLICITORS, their servants or agents were guilty of [the] tort of deceit in that he/they:-
(a) Fraudulently misrepresented the Plaintiff on the "Form A" presented to PIAB on 13th November 2018 and 28th November 2018 knowingly misleading PIAB. Anderson & Gallagher Solicitors were fully aware when, where and how the road traffic accident occurred, what the Registration numbers, makes and models of the vehicles involved were, but deliberately did not disclose this information on the "Form A";
(b) Failed to act in good faith by concealing from Tinka Zapryanova that the "Form A" initially submitted on 13th November 2018, was returned as incomplete.
(c) Failed to act in good faith by not presenting the completed "Form A" to Tinka Zapryanova for approval before submitting the same both on 13th November and 28th November 2018;
(d) Failed to act in good faith by not furnishing Tinka Zapryanova with copies of all documents exchanged with third parties;
(e) The above acts and acts and omissions were caused as a result of reckless representation of fact by Anderson & Gallagher Solicitors with intention to jeopardise the personal injury claim of Tinka Zapryanova by misleading the competent Authority (PIAB)."
Case against the third defendant, Bernard L. Gaughran & Co. Solicitors
43. The statement of claim pleads at para. 3 as follows:
"The Defendant, BERNARD L. GAUGHRAN & CO. SOLICITORS, their servants or agents were guilty of negligence and breach of duty, including breach of statutory duty, duty of care duty of loyalty in that he/they:-
(a) Failed to request and/or obtain the Garda report from the investigating Garda officer - Keith Delaney in respect of the RTA of 13th November 2017, in which the Plaintiff was injured;
(b) Failed to establish if Mr Martins Niperovics, who caused the RTA on 13th November 2017 by braking [sic] a "Stop" sign, while driving with excessive speed, was subject to criminal charges and convictions;
(c) Failed to establish if liability for the RTA of 13th November 2017, in which Tinka Zapryanova was seriously injured, was accepted by Mr Niperovics (who caused the accident) and his motor insurance providers AXA Insurance Dac;
(d) Failed to establish that the Plaintiff's vehicle, Nissan Micra 132D3840, which was severely damaged in the RTA on 13th November 2017 and was surrendered to AXA Insurance DAC by Tinka Zapryanova on 1st December 2017 in exchange of monetary compensation for the pre-accident value of the same, continued to falsely appear in existence in the Dept of Transport, NVDF database with the legal owner Tinka Zapryanova in the years 2019 and 2020;
(e) Failed to discover that Letter of Claim was not issued in respect of the personal injury claim;
(f) Failed to provide a [sic] legal advice and explanations to the Plaintiff in respect of the provisions of Section 8 of Civil Liability and Courts Act 2004 and the requirements to issue a Letter of claim to the defendant in the prescribed period;
(g) Failed to issue a Letter of claim with the accurate factual account of the RTA of 13th November 2017 as per the representations of the Plaintiff;
(h) Failed to advise the Plaintiff about the Statute of limitations period and the deadline until which the Court proceedings need to be issued;
(i) Failed to discover that Anderson & Gallagher Solicitors (previous solicitors) had issued the "Form A" to PIAB with inaccurate and misleading description of the Account of the RTA of 13th November 2017;
(j) Recklessly advised me [sic] that Ms Zapryanova cannot dispute the opinion of Dr Walsh, which was contradictory in itself, as no evidence of pre-existing back problems ever existed;
(k) Failed to explain to the Plaintiff and discuss with her why PIAB had refused to make an assessment of damages in respect of her application;
(l) Failed to review the draft Personal injury summons prepared by Mr Declan Wade BL and to notice discrepancies in respect of Ms Zapryanova's occupation;
(m) Agreed with the draft personal injury summons, which put reliance on the report of Dr Walsh, where Ms Zapryanova had made clear to Mr Power that she strongly disagreed with this report;
(n) Failed to refer Ms Zapryanova for another medical appointment with a relevant specialist to obtain an up to date medical report;
(o) Failed to inform Ms Zapryanova about the planned dissolution of the firm in July 2020;
(p) Failed to return to Ms Zapryanova her legal file at the termination of her contract with Bernard L. Gaughran & Co Solicitors on 10th July 2020;
(q) The above acts and omissions were caused as a result of professional negligence and breach of duty, including breach of statutory duty on the part of Bernard L. Gaughran & Co Solicitors, their servants or agents, in the provision of legal advice. With their actions Bernard L. Gaughran & Co Solicitors caused unnecessary confusion and contributed to the delay in the handling of the Plaintiff's personal injury claim and the payment of the compensation."
44. I will now endeavour to consider the substance of the plaintiff's claim against each of the first three defendants and, in doing so, I will take the plaintiff's pleadings and affidavits at their height, which I think is consistent with the case law. The parties may take it that I have read all relevant materials. I address below the main arguments made by the plaintiff in the course of her submissions. Any points not specifically addressed were either not considered relevant or of sufficient importance to warrant inclusion in my judgment. I will start by making some general observations about the plaintiff's proceedings.
General Observations about the plaintiff's proceedings
45. The first thing to be said is that, in several respects, the plaintiff's proceedings are unusual. The defendants are being sued as a result of the plaintiff's dissatisfaction with the legal service provided by each defendant in respect of an underlying claim that has not yet been heard. Usually in professional negligence cases against solicitors arising from personal injury cases, the complaint is that the underlying proceedings have either been dismissed or compromised at an undervalue, because of some alleged mishandling of the plaintiff's case. Typical examples include where a defendant fails to issue proceedings on time and the claim becomes statute barred, or where a solicitor fails to take sufficient steps to secure witnesses or appropriate expert evidence, leading to a dismissal or perhaps a weakening of the plaintiff's claim. Here, nothing like that has occurred and the way is clear for the plaintiff to proceed with her case.
46. Second, for reasons that are unclear, the plaintiff remains disinclined to bring on her claim for hearing. This is surprising in circumstances where (a) the case is for assessment only, and (b) she claims to be championing her constitutional right of access to the courts. Yet, the plaintiff does not seem unduly anxious to advance her claim with any degree of expedition. In this regard, I questioned the plaintiff on why the personal injuries case was not ready for hearing and found her explanations on this issue to be incoherent and entirely unconvincing. In making that observation, I am conscious that the plaintiff in these dismissal applications is not the party that bears the burden of proof. Rather, the onus at all times remains on each defendant to persuade the court that the high threshold for dismissing the proceedings has been met such that the exceptional relief being sought herein should be granted.
47. The third observation I would make arises in part from the first observation: a major stumbling block facing the plaintiff in the underlying professional negligence claim is the requirement to show an actual loss or consequence that flows from the acts and omissions alleged against each defendant. I am satisfied from the pleadings and the affidavits in the case, all of which I have carefully considered, that the plaintiff has not identified how her personal injury claim has been damaged or adversely affected by the acts or omissions attributed to each of the defendants.
48. Fourth, the plaintiff has brought these actions for professional negligence without first obtaining evidence from an independent expert vouching that there are reasonable grounds for bringing such proceedings. The defendants complain that this amounts to an abuse of the courts process, and in that regard rely on the dictum of Meenan J. in Thomas Loomes Practising as Thomas Loomes & Co. Solicitors v. Rippington & Ors. [2020] IEHC 237. I will come back to this issue later.
49. When the relevant authorities were opened to me, I was anxious to ensure that the plaintiff should be given ample opportunity to obtain a report from an independent expert. I adjourned the matter for several months so that the plaintiff could commission the necessary report. The plaintiff chose not to avail of this opportunity, and indeed on the final day of hearing of the motions confirmed that she does not wish to obtain such a report as she felt same was not necessary. In my view, that is a revealing feature of the case.
50. Fifth, a pervading theme of the plaintiff's submission was the idea that she is the victim of a conspiracy engineered by the defendants, and/or other third parties, who with malign intent have sought to undermine her case and damage her personal and professional standing. Time and again, wherever the plaintiff encountered incomplete documents or a misfiled letter, she was unfortunately inclined to view such matters as sinister and deliberate, rather than simply an error or an inaccuracy that one sometimes encounters in litigation or investigative files. The plaintiff repeatedly showed either an unwillingness or an inability to interpret issues and documentation in an even-handed or objective fashion, frequently rushing to judgment that errors or blanks in documents represented positive proof that the defendants or other third parties had fabricated documents or were otherwise out to get her. None of these suspicions were supported by evidence. I note in passing that this issue featured in some of the other litigation brought by the plaintiff against separate third parties.
51. Sixth, the plaintiff's statement of claim seeks the sum of €1,500,000 in damages against each defendant. It is not clear how this sum is arrived at or how it is broken down. This point serves to highlight the unusual nature of the proceedings and the undeveloped nature of the claim being made against each defendant.
Separate applications by the plaintiff mid-hearing
52. Before assessing the case being made against the defendants, I should also record that on the final day of the hearing, the plaintiff made an application to have all of the defendants' deponents cross-examined on their affidavits. I indicated to the plaintiff that this application had come too late in the day and, in any event, was not appropriate. Any cross-examination order would involve pausing the proceedings and adjourning the defendants' applications for the various deponents to be produced. The necessary groundwork for this had not been laid and the issue was being raised far too late in the day. Moreover, no relevant conflicts on the affidavits were identified that might have warranted cross examination. In my view, the plaintiff's reaction indicated that she fully understood that any such application should have been made long before the hearing date of the defendants' motions.
53. Secondly, towards the end of her presentation the plaintiff sought to make submissions concerning the validity and/or constitutionality of O. 19, r. 28 RSC. I should, in fairness, record that this submission was included in the plaintiff's affidavit replying to the third named defendant's application, sworn 14th December 2024, at paras. 22, 23, 24, 26 and 27 thereof. In my view, it was not appropriate for the plaintiff to include such a challenge in the hearing of the existing motions, and I so ruled. In any event, the legal challenge to the provision was not properly developed beyond the submission that the plaintiff enjoyed a constitutional right of access to the courts, and the contention that a statutory instrument cannot trump a provision of a statute (both of which points are uncontroversial).
54. As I explained earlier in this judgment, I am proceeding on the basis that the plaintiff does indeed have a constitutional right of access to the courts, which includes the right to have her case properly considered and determined. The existence of this right is not inconsistent with a rule of court that permits the dismissal of actions in appropriate cases, on grounds that they disclose no reasonable cause of action, amount to an abuse of the process of the court, are bound to fail, and/or have no reasonable chance of succeeding.
55. Thirdly, in the course of her submissions, the plaintiff emphasised the point that in an application to dismiss, the court must be satisfied that the plaintiff's case would not be improved by an appropriate amendment to the pleadings. At a level of principle, that point is undoubtedly correct. It is well established that when an appropriate amendment would, as it were, "save" the plaintiff's action, the court should not dismiss the proceedings. The principle was discussed by Dignam J. in the recent case of Beades v. KBC Mortgage Finance Unlimited Company & Ors [2025] IEHC 363. At para. 145 of the judgment, Dignam J. states as follows:
"It is long-established that when an appropriate amendment would "save" the action, the Court should not strike out the proceedings (Sun Fat Chan v Osseous Ltd [1992] 1 IR 425; recently Simons J referred to Sun Fat Chan when saying in Mohan v Revenue Commissioners & Ors [2025] IEHC 63 that "[T]he case law makes it clear that a court hearing a strike out application should consider whether the statement of claim admits of an amendment which might, so to speak, save it and the action founded on it; if so, then the action should not be dismissed (Sun Fat Chan v Osseous Ltd [1992] 1 IR 425). This reflects the principle that the jurisdiction to strike out proceedings should be exercised sparingly and as a matter of last resort.""
56. In my view, that principle does not assist the plaintiff on the facts of the present case. In the first instance, the plaintiff has not identified precisely what amendments to the statement of claim should be allowed, or on what basis any new matters sought to be relied upon should be considered by the court. The main point made by the plaintiff was that she should be allowed to add particulars relating to alleged breaches of her rights under the GDPR Directive as implemented by the Data Protection Act 2018. She contended inter alia that the defendants had wrongfully disclosed her personal details, and that she should be allowed to add these complaints into her case against the first three defendants.
57. In my view, this is an unsustainable argument which does not assist the plaintiff in defeating the defendants' motions. I say this for a number of reasons. Firstly, the principle does not extend to an amendment of pleadings in order to make an entirely new case. As pointed out by Dignam J. at para. 146 of Beades, if it were otherwise, the entire purpose of pleadings would be fundamentally undermined. It would give rise to a situation where, facing a motion to dismiss, a plaintiff could simply respond by asserting a right to amend the pleadings and asserting that the proceedings can be saved by an amendment to bring an entirely different case, or to raise matters which are not adverted to in the original pleadings. Dignam J. puts the matter thus at para. 146 of his judgment:
"In my view, that principle does not extend to an amendment to make an entirely new case. If that were the case, the whole purpose of pleading would be fundamentally undermined. It would give rise to a situation where a plaintiff would deliver a Statement of Claim, the defendant would bring a motion to strike out the proceedings on the grounds that they do not disclose a cause of action, are bound to fail, and are an abuse of process, and the plaintiff could, if the defendant's application looked like it was going to be successful, respond at that point by saying that, this may be so, but the proceedings can be saved by the amendment of the pleadings to bring an entirely different case or to raise matters which are not adverted to in any way on the original pleadings. It seems to me that the principle is directed at a situation such as where a claim is sought to be made but has been deficiently pleaded rather than to bring an entirely new claim; to borrow a phrase used by Simons J in Mohan v The Revenue Commissioners & Ors [2025] IEHC 63 "where a deficiency in pleading is masking what would otherwise be a good cause of action." This is supported by the statement in Sun Fat Chan that if a claim is capable of being "rectified" by amended pleadings then the Court should not strike out the proceedings. If a plaintiff has a different case to make, then that should be made in fresh proceedings."
58. Secondly, as I have observed, the plaintiff has not laid the necessary groundwork for amending her pleadings and has not identified with any precision or formality the amendments which she urges should be made. Thirdly, none of the matters raised are part of the cases pleaded in the existing statement of claim.
59. In these circumstances, I am not disposed to accept the plaintiff's argument that the proceedings can be saved by the theoretical possibility of amending the pleadings.
60. I turn now to consider the core elements of the case being made against each of the first three defendants.
Case against the first named defendant, Rochford Gibbons Solicitors
61. I think a reasonable summary of the plaintiff's allegations against Rochford Gibbons Solicitors/Mr. Gibbons are the following:
(a) Failure to issue a letter of claim in a timely manner (as required by s. 8 of the Civil Liability and Courts Act 2004) and/or failed to explain that a letter of claim needed to issue.
(b) Failure to incorporate sufficient or appropriate detail with respect to the accident in the letter of claim and/or failed to seek instructions from the plaintiff with regard to the content of the letter of claim.
(c) Failure to request a garda report in relation to the accident.
(d) Failure to obtain an independent technical expert's report in relation to the plaintiff's motor vehicle.
(e) Failed to establish if liability was accepted by the third-party driver and his insurers, AXA Insurance.
(f) As a consequence of the failures above, the first defendant caused "unnecessary confusion and delay and contributed to the mishandling of the Plaintiff's personal injury claim and the payment of a fair compensation to the Plaintiff."
62. Section 8 of the Civil Liability and Courts Act 2004 (as amended) provides as follows:
"8.—(1) Where a plaintiff in a personal injuries action fails, without reasonable cause, to serve a notice in writing, before the expiration of one month from the date of the cause of action, on the wrongdoer or alleged wrongdoer stating the nature of the wrong alleged to have been committed by him or her, the court hearing the action shall—
(a) draw such inferences from the failure as appear proper, and
(b) where the interests of justice so require—
(i) make no order as to the payment of costs to the plaintiff, or
(ii) deduct such amount from the costs that would, but for this section, be payable to the plaintiff as it considers appropriate.
(2) In this section "date of the cause of action" means—
(a) the date of accrual of the cause of action, or
(b) the date of knowledge, as respects the cause of action concerned, of the person against whom the wrong was committed or alleged to have been committed,
whichever occurs later."
63. In my view, the plaintiff's allegations concerning the letter of claim and s. 8 of the Civil Liability and Courts Act 2004 against this defendant are devoid of merit. The facts disclosed in the affidavits do not support the plaintiff's criticisms of Mr. Gibbons. Letters dated the 14th November 2017 were posted to the third-party driver and AXA Insurance on the 15th and 20th November respectively. It seems to me that the letters comply with the requirements of s. 8. The letter set out that an accident occurred on the 13th November 2017 as a consequence of the third-party driver allowing his vehicle to collide into the plaintiff's vehicle on the R125 Ashbourne to Swords road. There is no universally required template or format for such letters. Furthermore, it is not required that such correspondence sets out exhaustive particulars of negligence or breach of duty being relied upon by the claimant. Such particulars are required in a pleading, not in a s. 8 letter.
64. Nor was any evidence provided to indicate that it is negligent for a solicitor to not seek instructions in advance from a client with regard to the precise contents of a s. 8 letter. It seems to me that the sending of a s. 8 letter is quite a routine matter which falls within a solicitor's retainer and discretion. Such a letter will follow once a solicitor has had a consultation with a client and obtained the necessary description of the accident and the client's instructions. It is perfectly clear that that is what occurred here.
65. The evidence indicates that the plaintiff attended at the offices of Rochford Gibbons Solicitors on the 14th November 2017 and instructed Padraig Gibbons, the principal of the firm, to bring a claim for damages and personal injuries arising out of the accident in question. A detailed attendance was taken from the plaintiff, and she was brought through the process by which a claim for personal injuries would be made, including the initial requirement to make an application to PIAB. The plaintiff had herself made contact with AXA Insurance who insured the third-party driver, and they had corresponded with her by email of the 14th November 2017 confirming their involvement. Mr. Gibbons prepared an initiating letter for the purpose of complying with the provision of s. 8 of the Civil Liability and Courts Act 2004, and a copy of the draft letter (dated the 14th November 2017) was forwarded to AXA Insurance the next day. Subsequently the plaintiff provided Mr. Gibbons with an address for the third-party driver. Mr. Gibbons then sent an initiating letter to the third-party on the 20th November 2017.
66. Mr. Gibbons also wrote to Connolly Hospital for the purpose of seeking a medico legal report in respect of the plaintiff's injuries as the plaintiff had initially been treated there after being brought by ambulance. By letter dated the 30th November 2017, he provided the plaintiff with details of the appointment.
67. It is important to note that the first defendant's retainer came to an end a short few weeks later. By email of the 19th December 2017, the plaintiff withdrew instructions from Mr. Gibbons. It is noteworthy that she expressed her appreciation for the assistance provided by him and also (to her credit) requested a fee note for the work done by the firm to date. All of this is difficult to square with her subsequent decision to sue the solicitor. She was happy with the service provided by the solicitor at the time, and nothing has changed in the intervening period to justify the issuance of proceedings against the first defendant.
68. By letter dated the 19th December 2017, Mr. Gibbons acknowledged the plaintiff's withdrawal of instructions and provided a note of his fees in the sum of €200 plus VAT. The fee invoice was discharged by the plaintiff on the 25th January 2018. Subsequently Mr. Gibbons acknowledged receipt and provided the plaintiff with his file of papers in relation to the matter.
69. In these circumstances, it is difficult to see on what possible basis the plaintiff has brought negligence proceedings against the first defendant.
70. The plaintiff complains that both the third-party driver and AXA Insurance failed to respond to the letter of claim sent to them by Mr. Gibbons. Exactly why that is the fault of Mr. Gibbons, is not clear. In any event, even if there was evidence that the solicitor failed to issue correspondence on a timely basis - which there is not - the same could not ground a claim in negligence unless there was evidence of prejudice or an actual consequence, adverse to the plaintiff's claim.
71. The plaintiff goes on to criticise Mr. Gibbons for not bringing to her attention the suggested failure of AXA Insurance and the third-party driver to respond to Mr. Gibbons's letters. The plaintiff criticises Mr. Gibbons for "withholding from the plaintiff" that the third-party driver and his insurance company had not responded to the correspondence in a timely fashion and were, she alleges, reluctant to accept liability. In my view, all of this underscores the plaintiff's misunderstanding as to how litigation works and how files are routinely conducted. It is not necessary or desirable for clients to be updated about the progress of every letter issued on a file. The management of a solicitor's file will often involve sending routine letters to various addressees, without any need for obtaining individual clearance on every letter from a client. The system operates perfectly well on the basis of solicitors, having obtained full instructions from their client at the initial stages, issuing appropriate correspondence to relevant addressees in the advancement of the client's claim.
72. Separately, the plaintiff alleges that Rochford Gibbons Solicitors, knowing that liability was an issue, failed to gather all documentary and witness evidence from the scene of the accident, Connolly Hospital, Gannons City Recovery and from the Department of Transport in order to obtain an independent assessor's report in respect of the material damage to the vehicle. It is clear to me that these criticisms are also misguided. It would not have been necessary to arrange an independent assessment of the plaintiff's motor vehicle or to seek a report from the Gardaí. All known circumstances of the accident indicated that liability would not be in issue: It was very clear from the outset that the third-party driver was responsible for the accident; the third-party driver was called upon to admit liability in respect of the accident, as was his insurer; and, indeed, the fact that AXA Insurance paid out the material damage aspect of the plaintiff's claim relating to the motor car clearly indicated that liability would not be contested. It was therefore reasonable for the solicitor to await confirmation as to the liability question.
73. The evidence establishes that the plaintiff has been provided with two motor assessor's reports in relation to her vehicle, which was deemed a "write off". She also retained photographs of her vehicle demonstrating the extent of the damage.
74. Even if one were to conclude - which I do not - that there was fault on the part of the first defendant as to the steps taken in advancing the plaintiff's claim, I am entirely satisfied that the plaintiff has failed to identify any consequence or prejudice that is said to flow from any such claimed failure.
75. On any reasonable view of the evidence, it is clear that during the course of the relatively short period in which he was instructed, Mr. Gibbons acted appropriately in accordance with his duties to the plaintiff in advancing her claim. Appropriate letters were sent on her behalf on a timely basis, a medical report was commissioned, she was given initial advice about the process and when the solicitor's retainer was terminated unexpectedly, she was charged a reasonable fee for the work done to date, the quantum of which she does not dispute. The plaintiff has failed to provide any supporting expert opinion substantiating her complaints or demonstrating that any prejudice was caused to her on account of the matters complained about. The claim against the first defendant should not have been brought and, in my view, is doomed to fail.
Case against the second named defendant, Anderson & Gallagher Solicitors
76. The second defendant's retainer lasted from June 2018 until the end of March/beginning of April 2019.
77. The plaintiff alleges that when the "Form A" was submitted by the second named defendant on the 13th November 2018, the form was returned by PIAB as it did not contain the location of the accident. The form was then resubmitted on the 28th November 2018. The plaintiff claims that this was a significant failure which prevented PIAB from making an assessment and therefore, she contends, caused her prejudice. This is not borne out by the evidence. The evidence establishes that PIAB refused to assess the matter because of the interaction between one or more of the plaintiff's injuries, as stated by the plaintiff at para. 25 of her grounding affidavit.
78. The plaintiff complains that the "Form A" was submitted as an "abuse of authority", breaching the duty of the care and confidentiality owed to the plaintiff under Article 5 and Article 6 GDPR. Leaving aside that these matters are not pleaded, there is simply no evidence before the court of any negligence by the second defendant arising from the manner in which the PIAB "Form A" was submitted. It is correct that the location of the road traffic accident was not on the initial form, and that necessitated PIAB asking for the location to be inserted on the form. This request was complied with and the failure to include the required information in the initial form does not give rise to any cause of action, and nor could it.
79. The plaintiff goes further and contends that the second named defendant was guilty of the tort of deceit in that they "fraudulently misrepresented the Plaintiff on the "Form A" presented to PIAB on 13th November 2018 and the 28th November 2018". This simply makes no sense. This allegation seeks to elevate what was an inconsequential clerical error into a high conspiracy, without any basis in fact or evidence. As part of the same criticism, the plaintiff alleges that the omission amounted to a "reckless representation of fact" by the solicitors, with an intention to jeopardise the progression of the plaintiff's personal injury claim by misleading PIAB. There is no indication, still less any evidence, that PIAB was misled or in any way viewed the omission in that light. Nor is there any indication as to why the second defendant would have set out to damage their own client's claim.
80. Separately, the plaintiff complains that both the purpose of her journey at the time of the road traffic accident and the specific details of the accident were matters explicitly required by PIAB, and the suggested failure to provide same resulted in concealment of the true facts of the case and had the effect of misleading PIAB. These claims do not stand up to any rational scrutiny. It is not at all clear why the purpose of the journey would require to be included on the form or indeed required by PIAB at all. In my view, the second defendant is correct in their submission that the details of the accident were provided in the form and PIAB raised no issue with the level of detail of same, beyond requesting the location of the accident.
81. It seems to me that the criticisms which the plaintiff makes of the second defendant with respect to the completion of the PIAB "Form A" illustrate a misunderstanding on her part as to the role of PIAB and the manner in which it deals with personal injury claims. The role of PIAB is to determine the quantum of injuries on the basis of medical reports provided to it in circumstances where a respondent agrees to the authority so assessing the claim.
82. Apart from the absence of any consequence or prejudice flowing from the matters alleged, it is difficult to see on what possible basis it would be in the solicitors' interests to undermine their own client's claim, as implicitly suggested by the plaintiff's entire case. Indeed, this general point could be made about the case pleaded against each defendant.
83. Elsewhere, the plaintiff criticises the second defendant in relation to the solicitors' sending of a letter to AXA Insurance, calling upon them to admit liability. The plaintiff complains that AXA Insurance sent a letter to the solicitors on 26th June 2018, and the second defendant acknowledged the receipt of this letter with a further letter of the 2nd July 2018. However, none of these letters were furnished to the plaintiff. On this basis, the plaintiff suggests that the second defendant deliberately withheld the correspondence in question and that this "deprived her from the right to make informed decisions and act accordingly to resolve the issues". There is no evidence that the suggested failure to furnish this correspondence to the plaintiff resulted in any conceivable harm to the plaintiff or damaged her claim in any way.
84. The plaintiff is aggrieved about a letter the second defendant sent to her dated the 20th June 2018 in which they advised "You might please note that if the proceedings are dismissed by the Court, you could be responsible for the other side's costs". The plaintiff says that the second defendant failed to explain to her how an innocent victim who suffered personal injuries might have her legal action dismissed by the court and end up being liable for the costs of the other side. Again, I think this criticism arises from a misunderstanding on the part of the plaintiff and a misguided inclination to take extreme umbrage and offence whenever presented with advice that she does not agree with.
85. Elsewhere, the plaintiff claims that the requirements of s. 8 of the Civil Liability and Courts Act 2014 were not explained to her, including the requirement to send an initiating letter within a certain period. This criticism fails to consider the timeline of this defendant's retainer. The plaintiff instructed the second defendant in June 2018, at which stage any such initiating letter was outside of the time period stipulated within the section. More to the point, no issue of prejudice of any nature arises from the date on which the letter was sent because the defendant in the personal injury case has already delivered an assessment-only defence and has made no objection concerning the date of the s. 8 letter or indeed any point concerning the notification requirement.
86. The plaintiff also criticises the second named defendant for allegedly failing to obtain a report from the investigating garda in respect of the accident, and for allegedly failing to establish if the third-party driver was subject to any criminal charges resulting from the accident. All of these criticisms fail to appreciate that liability has been conceded and the only issue for determination is the extent of the plaintiff's injuries and the quantum of same. In addition, there was nothing to stop the plaintiff requesting any such information after she had discharged the second named defendant, if indeed same was required.
87. The plaintiff seems to be particularly aggrieved at the manner in which An Garda Síochána did or did not investigate the accident. However, those criticisms have been separately litigated and, as I have already noted, the plaintiff's judicial review proceedings against the Commissioner were unsuccessful. In any event, it is difficult to see how those criticisms could in any sense rebound upon the second defendant.
88. Insofar as the plaintiff apprehends that she may face questioning at the hearing of her personal injuries action to the effect that the accident was never reported or recorded on the PULSE system, it is clearly open to the plaintiff to point to the lengths she went to obtain the relevant information from An Garda Síochána, including bringing judicial review proceedings.
89. In all of the circumstances, it is impossible to conceive of any loss which the plaintiff claims to have suffered arising from the various matters and criticisms pleaded in the statement of claim.
90. Amongst the plaintiff's various complaints, there is one matter which does seem to have arisen from an error on the part of the second defendant. The hearing before me commenced on the 11th February 2025. The case was given an extremely generous four-day hearing slot, presumably reflecting the three applications before the court, the voluminous documentation and the fact that the plaintiff was a litigant in person. On the fourth day of the hearing, the plaintiff issued a data access request which was received by the second defendant on the 14th February 2025. It appears that, in complying with this request, Anderson & Gallagher Solicitors provided a document which had not been furnished with the file to the plaintiff previously. In my view, this was unfortunate. However, there is no evidence that this was done deliberately or that it had any adverse consequences for the plaintiff's claim. Nonetheless, this omission did not help matters. It appears to have fuelled further the plaintiff's overall mistrust of her former advisers.
91. For completeness, I should indicate that a similar data access request was made of the third named defendant, Bernard L. Gaughran & Co. Solicitors, and the court has been provided with affidavits from Emer Doyle of Anderson & Gallagher Solicitors and Bernard L. Gaughran of the third named defendant respectively, exhibiting the relevant documentation the subject of those data requests.
92. Returning to the case against the second defendant, it is evident from the affidavits that an important development occurred on the 26th March 2019 when the plaintiff had a telephone discussion with Mr. Gallagher of Anderson Gallagher Solicitors about her claim. The relationship between the parties appears to have gone sour after this telephone call. The plaintiff has chosen to exhibit an attendance of the phone call in her affidavit sworn on the 16th December 2024. The attendance notes that the plaintiff wished to talk about her claim for loss of earnings. The conversation lasted about thirty minutes. In ease of the plaintiff, I do not propose to go into the contents of the attendance, or of the advice given, in any detail. Suffice to say the attendance indicates the solicitor gave the plaintiff certain advices about her claim which she was unhappy about.
93. In the course of oral submissions to the court, the plaintiff made it very clear that she was unhappy with this advice and disagreed fundamentally with its contents and import. She felt that the advice failed to appreciate that she was a victim of the road traffic accident and that her rights had been interfered with.
94. It is not the role of the court to get into the issue as to the correctness or otherwise of the advice given to the plaintiff by her former solicitor. What is clear, however, is that the advice was given by the second named defendant in good faith and was intended to convey to the plaintiff the importance of ensuring that all aspects of her claim could be stood over, and that "hostages to fortune" should be avoided.
95. In my view, on no account could it possibly be regarded as negligent for the second defendant to provide the plaintiff with cautionary advice, outlining to her the possible consequences of putting forward particular elements of her claim. Sometimes it is necessary for lawyers to give unwelcome advice to their clients. That the plaintiff may not have agreed with this advice, or appreciated how the advice was conveyed, is ultimately not the point.
96. A short time later, the plaintiff decided to terminate the second defendant's retainer. On the 24th April 2019, she engaged the services of the third named defendant.
97. In my view, the case against the second defendant has no reasonable prospect of success and is doomed to fail. The criticisms levelled against the second defendant in respect of the legal service provided are incoherent and unsustainable. There is no indication of negligence nor any evidence of prejudice or damage to her case, as a result of the matters complained of.
Case as pleaded against the third named defendant
98. The case against the third defendant is set out at paragraphs 3 to 4 of the plaintiff's statement of claim. For reasons of brevity, I won't reproduce the entirety of the pleadings. The following paragraphs are a representative sample:
"44. On 16th Jul, 2019 without seeking the instructions of the Plaintiff first and without any valid reason, Mr Power sent a letter to AXA Insurance Dac notifying them on which dates and with which particular doctors Ms Zapryanova had scheduled medical appointments arranged by PIAB....
50. Mr Power put pressure on numerous occasions to Ms Zapryanova to provide him with instructions to issue the personal injury summons to High Court as per the draft work of Mr Wade. In the draft PIS the occupation of Ms Zapronova was totally incorrectly stated as a Tax Advisor. The plaintiff has been qualified ACCA accountant and this information could have been easily verified with her, if it was not within the knowledge of Mr Power or Mr Wade...
52. M. Zapryanova was not informed in advance as required about the planned dissolution of Bernard L. Gaughran in July 2020...
56. Bernard L. Gaughran & Co. Solicitors failed to explain to Ms Zapryanova that PIAB found an issue in respect of the causation of the injuries and therefore refused to make an assessment, which was an inappropriate result of the PIAB procedure considering the fact that Ms Zapryanova had absolutely no fault for the RTA of 13th November 2017...
58. At the dissolution of Bernard L. Gaughran & Co. Solicitors on 10th July 2020, Ms Zapryanova's legal file was transferred to Power & Co Solicitors without the knowledge, consent or instructions of Ms Zapryanova."
Then at paragraph 59, the case against the third defendant is further particularised and broken down into sub paragraphs (a) to (n). I have already listed those particulars and therefore need not repeat them here.
99. There are a few points to be borne in mind from the agreed chronology. The third named defendant firm was wound up on the 10th July 2020. It appears to be accepted that on the 23rd December 2020, Mr. Power of the fourth named defendant issued a letter to the plaintiff, informing her for the first time of the dissolution of the third named defendant firm. In the same letter, he requested that the plaintiff confirm that she was happy for the fourth named defendant to act on her behalf in the contemplated personal injury proceedings.
100. The plaintiff did not respond to that letter, but it is the agreed position that on the 16th February 2021, the personal injury summons issued. A key part of the plaintiff's overall complaint is that those proceedings issued without the plaintiff's express approval. However, it should be noted that that is an allegation levelled against the fourth named defendant, not the third named defendant. The third named defendant firm had been wound up for upwards of six months by the time the personal injuries proceedings issued. It is also of some relevance that from the period January 2020 to June 2020, Mr. Power of the third named defendant had been writing to the plaintiff, requesting her to contact him and provide instructions to issue the proceedings to stop the statute of limitation clock.
101. By letter dated the 9th March 2020, the plaintiff wrote to Mr. Power of the third named defendant firm to inform him that her health was preventing her from engaging with him in relation to the contemplated proceedings. The plaintiff also stated that she wished to "put the process on hold for a few months" until she felt better.
102. By letter dated 12th March 2020, Mr. Power of the third named defendant wrote to the plaintiff to communicate his concerns in relation to the delay in issuing the summons. Mr. Power also referred to the advice that had been provided by counsel. The plaintiff did not respond to this email.
103. Having received no response, Mr. Power sent a series of further letters requesting instructions from the plaintiff on the 18th March, 26th March, 6th April, 27th April, 13th May, 5th June and the 17th June 2020. It would appear from the chronology that the plaintiff did not respond to any of these letters.
104. As I have already said, on the 10th July 2020, the third named defendant firm was dissolved. The affidavit evidence indicates that as part of the dissolution, it was agreed between the partners (Mr. Gaughran and Mr. Power) that each of them would write to their respective clients to inform them of the dissolution of the practice. It was also agreed that the partners would hold the clients' files for safekeeping, pending instructions from the individual clients.
105. It was in these circumstances that Mr. Power, as the partner responsible for the advancement of the plaintiff's personal injury proceedings, obtained possession of the plaintiff's file. On the 23rd of December 2020, Mr. Power of the fourth named defendant firm issued a letter to the plaintiff, informing her of the dissolution of the third named defendant firm.
106. The fourth named defendant, having received the advices of Mr. Wade BL, issued the personal injury summons on behalf of the plaintiff on the 16th February 2021.
107. Subsequently by email dated the 1st April 2021, the plaintiff wrote to the fourth named defendant stating that she had not been in a position to deal with the legal matters to date, as all circumstances after the accident were painful, exhausting and overwhelming. The plaintiff confirmed that she was happy to instruct the fourth named defendant to act on her behalf and requested an update in relation to her claim.
108. Subsequently, by email dated the 22nd April 2021, the plaintiff withdrew her instructions from the fourth named defendant.
109. Turning to the specific criticisms made in the plaintiff's statement of claim, I will deal firstly with the issues pertaining to the letter of claim. At paragraph 3(e) of the statement of claim, the plaintiff alleges that the third named defendant failed to discover that the first and/or second named defendants had failed to serve a letter of claim in accordance with the requirements imposed by s. 8 of the Civil Liability and Courts Act 2004, as amended. In my view, when proper regard is had to the relevant chronology, and the fact that she had discharged the first named defendant as her legal advisors prior to the expiration of the notice period as prescribed by s. 8 of the 2004 Act, no particular cause of action as against the third named defendants is disclosed. Moreover, as with the claim against the first two defendants, no loss, consequence, or prejudice has been identified consequent upon the alleged failure to serve the notice on a more timely basis.
110. The chronology also indicates that, by the time the third named defendant had been instructed to act on the plaintiff's behalf, an application had already been made to PIAB. It is also clear that AXA Insurance were privy to the application that had been lodged with PIAB and were therefore aware of the nature of the claim being made by the plaintiff. Therefore, no statable cause of action arises on foot of this issue.
111. The next allegation against the third named defendant concerns the alleged failure by that defendant to inform the plaintiff that the PIAB "Form A" did not contain "the true facts" thereby, it is said, misleading PIAB. In my view, this criticism is also without substance. In the first instance, the fact of the matter is that the plaintiff had previously signed a declaration confirming that the information contained in the PIAB application "Form A" was, to the best of her knowledge, true and accurate in every respect.
112. Moreover, an amended copy of the plaintiff's PIAB "Form A" did not form part of the file that was provided by the plaintiff to the third named defendant. In circumstances where that document was never provided to that defendant, there can be no question of that firm being negligent in allegedly failing to advise the plaintiff in respect of the contents of the amended form. In any event, even if the error in the original "Form A" were somehow to be attributable to the third named defendant, this could not give rise to a statable claim of negligence against this defendant in circumstances where nothing of substance turned on the error.
113. The next allegation made by the plaintiff is the suggestion that the third named defendant failed to request and/or obtain the garda report concerning the road traffic accident on the 13th November 2017. Again, however, the plaintiff was unable to point to any consequence that was said to flow from that alleged error. From the outset of the matter, it was clear this was always going to be a case in which liability for the accident was not going to be in issue. These early indications turned out to be correct because, as I have said, the third-party insurers have filed a limited defence only. For reasons that remain unclear, the plaintiff fails to regard this development as welcome news and insists that she remains exposed in some way on the liability question.
114. Paragraph 3(k) of the statement of claim alleges that the third defendant failed to explain to the plaintiff and discuss with her why PIAB had refused to make an assessment of damages in respect of her application. This criticism is premised on a misunderstanding on the plaintiff's part as to the nature of the decision made by PIAB. The letter sent by PIAB to the third defendant on the 22nd October 2019 stated that "it would not be appropriate to make an assessment, because of the interaction between one or more injuries arising from different causes". That decision was stated to be made in accordance with s. 17 of the Personal Injuries Assessment Board Act 2003, as amended. This letter makes it clear that PIAB was not in a position to assess the plaintiff's injuries because the medical reports submitted disclosed the existence of one or more causes for the plaintiff's injuries. PIAB at no stage indicated or affirmed that there had been one or more causes for the accident itself, as distinct from her injuries. Again, this aspect of the plaintiff's case is unstateable.
115. Elsewhere, the plaintiff complains of an alleged failure on the part of the third defendant to observe that the draft personal injury summons misdescribed the plaintiff's occupation. This ignores the fact that the document provided by Mr. Wade BL was in draft form during the period of the third named defendant's retainer, and could with the plaintiff's engagement, have been amended. In any event, no material consequence or prejudice to the plaintiff's underlying claim was caused as a result of the said alleged error.
116. The next complaint against the third defendant concerns the delay of communicating the dissolution of the third named defendant firm to the plaintiff. There are several points to be made about this. First, I think it would have been better had the plaintiff been notified earlier about the dissolution of the third named defendant firm. The firm was wound up on the 10th July 2020. However, it appears from the affidavits that the plaintiff was not informed until the 23rd December 2020, when Mr. Power, then of the fourth named defendant, issued a letter to her.
117. However, while this information could have been communicated to her sooner, I fail to see how that gives rise to a cause of action against the third named defendant. The alleged failure did not give rise to any identifiable loss or prejudice, and did not in any sense impact her personal injuries claim.
118. It should also be borne in mind that the delayed notification of the firm's dissolution occurred at a point in time when the plaintiff was failing to engage with Mr. Power who was then a partner of the third named defendant firm, despite Mr. Power issuing repeated letters to the plaintiff requesting her instructions between the period of March 2020 and June 2020. Indeed, it wasn't until the 1st April 2021 that the plaintiff provided any meaningful response to him. It is difficult to see how the plaintiff can justifiably complain about the delayed notification in circumstances where she herself was disinclined to respond to correspondence.
119. Finally, at paragraph 3(p) of the statement of claim, the plaintiff criticises the failure to return her legal file at the termination of her contract with Bernard L. Gaughran & Co. Solicitors on the 10th July 2020 (when the third named firm was wound up). In my view, this is an artificial complaint not supported by any evidence. This complaint does not give rise to any cause of action. Moreover, any such claim is contradicted by the plaintiff confirming by email on 1st April 2021 that she was happy to instruct the fourth named defendant firm to act on her behalf in the furtherance of her personal injury claim. This aspect of the plaintiff's complaint has a ring of an afterthought, and in my view does not ground any claim in negligence. All told, even taking the pleadings at their height, the claim against the third named defendant is incoherent, lacking in substance and doomed to fail.
Other particulars of the plaintiff's claim not specifically addressed
120. I am conscious that I have not specifically addressed in this judgment every single particular of professional negligence and every single criticism levelled against the first three defendants in the plaintiff's affidavits. Rather, I have sought to deal with the plaintiff's complaints in a thematic fashion, focussing on the core elements of her claim. I have carefully considered all aspects of the plaintiff's claim against the first three defendants, and I am entirely satisfied that the claim of professional negligence against each of these defendants can be dismissed on the basis of each of the four alternative grounds mentioned in O. 19, r. 28.1 RSC. I am satisfied that the case against each of the first three defendants:
(i) Discloses no reasonable cause of action;
(ii) Amounts to an abuse of process of the court;
(iii) Is bound to fail; and
(iv) Has no reasonable chance of succeeding.
121. In coming to that conclusion, I am taking into account the important fact that the plaintiff, despite being given an opportunity to do so, has failed and/or refused to obtain a report from an independent expert to substantiate the claims of professional negligence made against the first three defendants. Generally speaking, this is a key requirement of a professional negligence action against a solicitor and one which was clearly not complied with here. I do not wish to exclude the possibility, in an appropriate case, of a plaintiff relying on guidance or ordinance issued by the Law Society as to the duties of solicitors in given situations. It may be that, in an appropriate case, such published guidance or professional ordinance may suffice for the purpose of supporting a claim in professional negligence. However, I do not wish to be taken as reaching a determination on that issue of principle as I feel the issue should be held over for determination in a suitable case.
122. On the facts of the present case, I am satisfied that the failure of the plaintiff to obtain independent evidence to substantiate her claim of negligence against each of the first three defendants is fatal to her claim. In this regard I apply the dictum of Meenan J. at para. 16 of Loomes as follows:
"It is well established that it is an abuse of the process of the court to launch a professional negligence action without first ascertaining that there are reasonable grounds for doing so". In stating that principle, Meenan J. cited the earlier decisions of Cooke v. Cronin & Neary [1999] IESC 54 and Connolly v. James A. Casey and Laura Murphy & An. [1998] IEHC 90.
123. In my view, the failure of the plaintiff to obtain independent evidence is compounded by the plaintiff's willingness to make serious allegations of deliberate wrongdoing and impropriety against the defendants, without providing a jot of supporting evidence or corroboration. This is unfair and reprehensible and amounts to an abuse of the process of the court. The making of an unsubstantiated complaint against a legal practitioner may cause considerable stress, anxiety and financial harm. Such a complaint may impact a practitioner's insurance cover and may also cause reputational damage or necessitate onward notification to regulators or insurers. These are some of the reasons why it is necessary for a complainant to obtain independent evidence to substantiate a claim of negligence before issuing a writ. In my view, it is revealing and not remotely surprising that the plaintiff was unable to obtain such independent evidence in the present case against the first three defendants.
Conclusion
124. I acknowledge that the jurisdiction to dismiss proceedings under O. 19, r. 28 is a jurisdiction to be exercised sparingly, given that it relates to the constitutional right of access to the courts. I am also conscious of the overarching principles identified in the case law indicating that the threshold to be applied in such applications is very high. The onus is on the moving party to establish that proceedings do not disclose a reasonable cause of action and/or that it is an abuse of process. I am also conscious that the court should take the plaintiff's claim at its high water-mark. I have endeavoured to apply these important principles to the analysis that I have carried out.
125. I am entirely satisfied that the plaintiff's claims against each of the first three defendants are doomed to fail and cannot succeed. This is not a situation in which the plaintiff's case would be improved by an appropriate amendment to the pleadings or through the utilisation of pre-trial procedures such as discovery. In my view, for the reasons stated elsewhere in this judgment, the plaintiff's negligence claim against the first three defendants is entirely misconceived. It is, in fact, in the plaintiff's own interest that the proceedings against the first three defendants should be terminated now, as that will ultimately save costs and reduce the plaintiff's exposure.
126. In the circumstances, I propose to grant to each of the first three defendants the orders which they seek, striking out the plaintiff's claim on the grounds that it discloses no reasonable cause of action and/or amounts to an abuse of the process of the court and/or is bound to fail and/or has no reasonable chance of succeeding. I will hear the parties on the question of final orders and on costs.
Signed: Micheál O'Higgins
Appearances
The plaintiff appeared as a litigant in person.
The first named defendant was represented by Tom Clarke BL instructed by Rochford Gibbons Solicitors.
The second named defendant was represented by Paul Gallagher BL instructed by Anderson & Gallagher Solicitors.
The third named defendant was represented by Dan O'Mahony BL instructed by RDJ LLP.
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