Background
Brian Kerr and his late brother, David Kerr, purchased an investment property in Dublin in 1996. They were registered as joint tenants, but the plaintiffs allege that their solicitors had been instructed to arrange ownership as tenants in common so that each purchaser’s share could pass under his will. After David Kerr died in 2017, Brian Kerr became sole owner by survivorship, allegedly creating adverse tax consequences.
The conveyance was handled by Finbar Cahill & Company, in which Martin Moran was then a partner. The plaintiffs allege that Moran personally handled the transaction and remained under a duty to rectify or advise them about the title until 2017. Moran disputed his role, contended that other solicitors conducted the conveyance, and argued that he and his present firm had been wrongly sued. He also maintained that the claim, commenced in April 2023, was statute-barred because any loss arose when the conveyance was completed in 1996.
The Court’s Holding
Mr Justice Barry O’Donnell refused to strike out the proceedings under Order 19, rule 28 or the High Court’s inherent jurisdiction. A strike-out application is not a procedure for summarily resolving disputed facts or law and may succeed only where the defendant establishes that the claim is bound to fail or has no reasonable chance of success. The evidence did not establish with the required certainty that Moran lacked responsibility for the transaction: he was a partner in the firm that acted, had at least some involvement, and the plaintiffs maintained that he was the only solicitor they instructed. Those disputes required a trial. Naming Moran as trading under his current firm also did not make the case incurable, because the title could be amended.
The court considered that Moran had a strong argument that actionable damage arose in 1996, when the purchasers received a form of title different from the one allegedly requested. Nevertheless, the plaintiffs also pleaded an ongoing duty to remedy the title problem, and affidavit evidence raised a dispute about an explanation allegedly given by Moran in 2020 concerning the mortgage provider’s requirements. The court expressly noted that there was no formal plea invoking section 71 of the Statute of Limitations 1957. Given the possibility of further evidence through discovery and at trial, the court could not conclude that there was no reasonable prospect of answering the limitations defence. It made no final findings on liability or limitation.
Key Takeaways
- A professional-negligence claim should not be struck out merely because it appears weak; the defendant must show that it is bound to fail or has no reasonable chance of success.
- Whether the claim accrued when the 1996 conveyance closed remained open, particularly because the pleaded case included an alleged continuing duty to correct or advise about the title.
- Disputes over which solicitor handled the transaction, the responsibility of a partner in the firm that acted, and the proper description of the defendant required a trial or could be addressed through procedural amendment.
Why It Matters
The decision illustrates the demanding threshold for disposing of an Irish professional-negligence action on a strike-out motion, especially where limitation and responsibility depend on contested evidence. Even a substantial limitations defence may have to await trial if discovery or oral testimony could materially affect the analysis.
The court directed that the case be progressed urgently and recommended priority in the Non-Jury List. Its provisional view was that the plaintiffs should receive the costs of Moran’s motion, with further costs steps stayed pending determination of the proceedings; no costs order was proposed for the plaintiffs’ unpressed cross-examination motion.