Date: Sat, 13 Aug 2005 12:02:49 +0100

From: Eoin O'Dell

Subject: Misfeasance of public office in the Irish Supreme Court

Hi there,

Those interested in misfeasance of public office after Three Rivers DC v Bank of England [2003] 2 AC 1 (here and here) and Odhavji Estate v Woodhouse [2003] 3 SCR 263 might be interested to see how the former - at least - fared in the Irish Supreme Court in Kennedy v Law Society of Ireland [2005] IESC 23 (21 April 2005).

An investigating accountant had been entrusted by the Law Society with what a two-pronged investigation of the appellant firm's accounts. One prong was the ascertainment of whether the appellant had complied with the Accounts Regulations. That was the only disclosed purpose of the investigation. The other prong, however, which was not originally disclosed, was the investigation of suspect litigation processed by the appellant. In earlier stages in the litigation, the Supreme Court had held that this second prong was ultra vires; see: [2001] IESC 35 (4 April 2001) and [2001] IESC 103 (20 December 2001).

In this stage of the litigation, the question was whether the Law Society was liable to the appellant for misfeasance of public office for setting the ultra vires, undisclosed, prong of the investigation in motion. There is some procedural skirmishing about pleadings, but on misfeasance issue, both the High Court (Kearns J, who has since been elevated to the Supreme Court) the Supreme Court adopted the approach of Lord Steyn in Three Rivers and held that the tort had not been made out on the facts. In particular, both courts held that there was no evidence of bad faith on the part of the Law Society which would support an allegation by the appellant of deliberate or reckless behaviour. In passing, Geoghegan J for the Supreme Court (Denham, McGuinness, Hardiman and Fennelly JJ concurring) observed:

"A feature of advocacy in this court in recent years, largely due to the internet, has been the extensive citing of case law from common law jurisdictions such as Australia, New Zealand and Canada quite apart from UK decisions. In cases therefore involving pure common law unmodified by either the Constitution or Irish statute law it would seem to me to be particularly important that considerable respect be paid to any consensus that may have emerged in these common law jurisdictions without in any way surrendering the right to disagree. I do not think that there is any Irish authority which prevents the element of subjective recklessness being introduced into the ingredients of the tort of misfeasance in public office (a tort which has not received much judicial consideration in this jurisdiction at any rate). I would, therefore, favour acceptance in this jurisdiction of that concept in the context in which it is introduced by Clarke J and ultimately in the House of Lords by Lord Steyn."

[I would point out, parenthetically, that this is the third time in 10 years that the tort has been before the Supreme Court, the previous two occasions are Callinan v VHI (Supreme Court, unreported, 28 July 1994) and McDonnell v Ireland [1998] 1 IR 134, though only McDonnell was cited; presumably because it is reported whereas Callinan is not; but neither seems to be available on Bailii].

All the best from Dublin.

Eoin.

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