Title: Behan -v- McGinley & Ors.
HIGH COURT
Judgment was given by Ms Justice Irvine on January 24th, 2008.
JUDGMENT
The judge ruled that the application, made by James Behan, against the governor and company of Bank of Ireland, Edward McGinley of Royal & Sun Alliance, Michael O'Kennedy and Charles Corcoran, should be struck out because it was vexatious, frivolous and contained no reasonable cause of action.
BACKGROUND
Mr Behan had been a customer of Bank of Ireland in Carlow for many years where he dealt with branch manager Vincent Power. He owned a 240-acre farm in Athy, Co Kildare, which ran into financial difficulties and he lost his farm in 1984.
The business dealings between Mr Behan and his bank from 1981 to 1985 led to a number of legal proceedings being taken.
In 1990, Mr Behan took a case against the bank claiming Mr Power had breached a verbal agreement made in May 1981. He said the bank had agreed to continue to let him trade out of his difficulties, but had then not honoured his cheques.
During the case, it emerged that the bank had used Mr Behan's accounts to offset its own tax liabilities, as part of a "reduced interest scheme" for farmers introduced by the Government. However, it did not give Mr Behan the benefit of the scheme.
Mr Justice Frederick Morris had ruled that Mr Behan had to be reimbursed almost £20,000, the money he would have got if he had been admitted to the scheme. However, he said Mr Behan had not proved he had a contract with the bank to continue to trade out of his difficulties, and the failure of the bank to include him in the scheme had no overall effect on his ultimate financial position.
Against legal advice, Mr Behan appealed the decision to the Supreme Court and the case was heard in 1998.
The Supreme Court upheld the trial judge's findings.
In July 1998, Mr Behan dismissed, without payment, the late Noel Clancy SC, Michael O'Kennedy SC and Charles Corcoran BL, counsel who had acted for him in the cases, and he took proceedings against them.
Further proceedings were instituted by Mr Behan against the bank in 2001, on similar grounds as the original. Ms Justice Susan Denham ruled that the matter had already been determined by Mr Justice Morris.
In 2002, Mr Behan took a case against Edward McGinley, representing his late senior counsel, Mr Clancy. He said Mr Clancy had been negligent and this led to him not getting proper compensation. A fourth case was taken in 2005 and Mr Behan alleged his counsel deliberately misled him and colluded with the bank to deny him his legal rights.
The bank and Mr Behan's former counsel brought forward a number of motions asking for the cases to be struck out on a number of grounds, including that they were frivolous and vexatious.
DECISION
Ms Justice Irvine said Mr Behan's counsel did "aggressively pursue" in court the verbal agreement Mr Behan said he had with Mr Power. She said it was clear the trial judge had the benefit of sustained and in-depth cross-examination and the plaintiff's claim against his counsel was "without foundation".
She said the court viewed the assertion of negligence against Mr Clancy made by Mr Behan's solicitor as "irresponsible and gravely offensive".
Mr Behan had also alleged that his counsel deliberately misled him and colluded with the bank to deny him his legal rights. He had also said the bank conspired with its own expert witness to mislead the court. Ms Justice Irvine said the assertions were abusive and not supported by the evidence.
"The fact that these serious allegations of professional misconduct are deposed to on oath without a scintilla of evidence against three members of the Bar is, to say the least, regrettable," she said.
"It seems to the court that the plaintiff continues to reject, either deliberately or otherwise, the findings of the High Court and Supreme Court . . . to the effect that he lost the monies . . . as a result of his own non-profitable farming activities."
She said Mr Behan had failed to convince the courts that the bank was not entitled to call in his indebtedness and had sought to ascribe his losses to fraud, negligence, collusion or conspiracy.
"It could not be clearer to the court that the plaintiff was provided with what appears to have been competent and dedicated advice, none of which was ever paid for by the plaintiff," she said.
She ruled that proceedings against Mr McGinley, the bank and Mr Behan's counsel should be struck out on the basis that they were vexatious, frivolous and disclosed no reasonable cause of action.
The full text of this judgment is on www.courts.ie
Solicitors: N Browne (for the applicant); Liam Lavelle, Bank of Ireland Group Legal Services, Holmes, O'Malley & Sexton, Limerick (for the respondents)