Leahy v McNally & Ors (Approved)

Factual and Procedural Background

The proceedings were instituted in July 2020 by Plaintiff against Defendant Law Society and two law firms, hereafter referred to as the first and second firms of solicitors. The claims arise from legal representation provided to Plaintiff's son, a minor at the time of the initial events, who suffered significant medical injuries following premature birth in January 2003. The son experienced a moderate to severe fluctuating hearing loss, necrosis leading to partial loss of his left foot following arterial line insertion, and possible colonisation with MRSA.

The first firm of solicitors was initially retained around June 2003 and obtained several medical reports between 2003 and 2015 concerning the son's injuries. The hearing loss claim was pursued and settled in 2015 with court approval, with Plaintiff acting as next friend but not as a party. Subsequently, Plaintiff sought to bring a second claim regarding the foot injury and engaged the second firm of solicitors, who had a limited retainer and sought expert medical reports but did not obtain a supportive report and ended their retainer in July 2019.

The present proceedings were commenced by plenary summons in July 2020. Defendants applied to dismiss the proceedings on various grounds, including standing, procedural irregularities, and limitation issues. Plaintiff sought judgment in default and leave to amend the statement of claim. The dismissal applications were heard in December 2022, with judgment reserved.

Legal Issues Presented

1. Whether Plaintiff has standing to maintain proceedings alleging negligence by the two law firms in failing to advance a medical negligence claim on behalf of her son.
2. Whether the proceedings are properly characterised as a professional negligence action or as a personal injuries action brought by Plaintiff herself.
3. Whether the proceedings comply with mandatory procedural requirements, including those under the Personal Injuries Assessment Board Act 2003 and Civil Liability and Courts Act 2004.
4. Whether the claims against the Law Society are admissible given Plaintiff's withdrawal of complaints and failure to exhaust alternative remedies.
5. Whether the proceedings disclose any cause of action or are bound to fail, justifying dismissal as an abuse of process.

Arguments of the Parties

Defendants' Arguments

• The Plaintiff lacks standing to bring claims on behalf of her son, who is the proper party to pursue damages for personal injuries.
• The proceedings are irregular in form and should have been issued by way of personal injuries summons if Plaintiff intended to pursue a personal injuries claim for herself.
• The claims are statute-barred or otherwise bound to fail due to failure to comply with procedural prerequisites, including the requirement for a supportive independent expert report in professional negligence claims.
• The complaints against the Law Society were withdrawn by Plaintiff, and she failed to exhaust statutory remedies before instituting proceedings.
• The proceedings amount to an abuse of process and should be dismissed under the Rules of the Superior Courts and the court's inherent jurisdiction.

Plaintiff's Arguments

• Plaintiff contends she is not pursuing a claim on behalf of her son but is instead bringing a personal injuries claim on her own behalf.
• She disputes the adequacy of legal representation by both law firms in failing to advance a claim relating to the son's foot injury.
• Plaintiff challenges the decision to limit the original claim to hearing loss and criticises the settlement process and transfer of files between solicitors.
• She maintains that the proceedings are not a professional negligence claim but a personal injuries action.

Table of Precedents Cited

Court's Reasoning and Analysis

The court began by outlining the test for dismissal applications, emphasising that dismissal is appropriate only if the proceedings disclose no cause of action or are bound to fail, and that a plaintiff need only show a credible basis for the facts asserted.

Applying these principles, the court examined the nature of the claim, which alleges negligence by the two law firms in failing to pursue a medical negligence claim on behalf of Plaintiff's son regarding his foot injury. The court found that any claim for damages arising from such negligence is a claim for loss of opportunity and is therefore properly vested in the injured son, who is the appropriate plaintiff.

The court rejected Plaintiff's contention that the proceedings are personal injuries claims brought by her personally, noting the pleadings do not allege any injury to Plaintiff herself and that any such claim would require compliance with mandatory procedures under the Personal Injuries Assessment Board Act 2003 and Civil Liability and Courts Act 2004, which had not been followed.

Regarding the claims against the Law Society, the court found that Plaintiff had withdrawn complaints on multiple occasions and failed to exhaust statutory remedies, rendering those claims unsustainable. Additionally, the form of proceedings was irregular, as judicial review would have been the appropriate route.

The court declined to address other grounds raised, such as the absence of an independent expert report supporting the negligence claim against the solicitors, noting that such issues may arise in future proceedings properly brought by the son.

Holding and Implications

The court's final decision was to DISMISS the claims against the two law firms and the Law Society.

The dismissal against the law firms was based primarily on Plaintiff's lack of standing to maintain a claim for damages on behalf of her son and the failure to comply with procedural requirements for personal injuries claims if Plaintiff sought to claim for herself.

The dismissal against the Law Society was grounded on Plaintiff's withdrawal of complaints, failure to exhaust statutory remedies, and procedural irregularities.

The direct effect is that Plaintiff's proceedings are terminated without prejudice to the son pursuing his own claims. No new legal precedent was established by this decision.