Tolan v Brady & anor

UNAPPROVED NO REDACTION NEEDED THE COURT OF APPEAL Court of Appeal Record No.: 2025/88 High Court Record No.: 2018 10665 P Neutral Citation No.: [2026] IECA 52 Binchy J. Pilkington J. O’Moore J. BETWEEN/ FINBAR TOLAN APPELLANT/ PLAINTIFF - AND - JOHN BRADY AND JOHN DILLON-LEETCH BOTH TRADING UNDER THE STYLE AND TITLE OF DILLON-LEETCH AND COMERFORD SOLICTORS RESPONDENTS/ DEFENDANTS JUDGMENT of Mr. Justice Binchy delivered on the 27th day of March 2026 1. The appellant is a cattle dealer who was unsuccessful in proceedings that he brought against Connacht Gold Co-operative Society (“Connacht Gold”) in which proceedings the respondents had acted on his behalf. Those proceedings were dismissed following a full hearing before the then President of the High Court, Kearns P. in May 2015. The appellant then appealed that dismissal to this Court, but that appeal was unsuccessful and was dismissed by this Court in a judgment of Peart J. of 5th May 2016 ([2016] IECA 131). The -2- appellant’s application for leave to appeal to the Supreme Court was also refused [2016] IESCDET 107. 2. Thereafter, the appellant issued proceedings claiming damages against the respondents asserting that they had been negligent in their conduct of the proceedings in two respects; one related to the alleged failure to call relevant witnesses, and the other related to a claim of what the appellant described as “reverse bias”, which the appellant claimed tainted the proceedings before the then President, on the grounds of his relationship by marriage with a former partner in the practice of the respondents. Those proceedings were dismissed by the High Court (Gearty J.) on 16th September 2021. The appellant appealed to this Court from that decision, and it was only in the period between the hearing before Gearty J. and the hearing of that appeal that he succeeded in procuring his file which had until then been held by the respondents. In that file he discovered a document which he said he had not previously been aware of, namely an advice on proofs provided by junior counsel in his proceedings against Connacht Gold. 3. In those advices, counsel had advised that consideration should be given to amending his proceedings against Connacht Gold to include a claim for damages on the grounds of malicious falsehood. In his appeal to this Court from the judgment of Gearty J., the appellant sought liberty to amend his proceedings against the respondents, so as to include a claim that the respondents were negligent in failing to amend his proceedings against Connacht Gold, having been advised to do so by counsel. By order made on 12th July 2022 this Court upheld the decision of Gearty J. dismissing the proceedings on the basis of the claim originally advanced against the respondents, but ordered that the appellant should have liberty to bring a motion before the High Court for the purpose of amending his proceedings in order to plead this additional ground of professional negligence. -3- 4. That application came on for hearing before Barr J. in the High Court, and in a judgment delivered on 16th March 2023, Barr J. granted the plaintiff liberty to make the amendments that he sought to the pleadings. Following upon that judgment, the appellant served an amended statement of claim by which he alleged that the respondents were negligent in failing to act upon the advice on proofs of counsel by obtaining the instructions of the appellant in relation to the amendment to the pleadings proposed by counsel, and thereafter in failing to so amend the pleadings, to the detriment of the appellant. 5. The amended statement of claim was served by the appellant on 11th April 2023, and following the service of a notice for particulars by the solicitors for the respondents on 27th April 2023, and the delivery of replies thereto on 28th April 2023 by the appellant, the solicitors for the respondent delivered an amended defence on 31st May 2023. The single outstanding issue in the proceedings then came on for trial in the High Court before Owens J. on 29th October 2024. The trial ran for four days, and in a reserved judgment delivered on 26th February 2025, Owens J. dismissed the appellant’s claim and it is from that judgment that the appellant now appeals. Connacht Gold Proceedings 6. In his proceedings against Connacht Gold, the appellant sought damages against Connacht Gold on the grounds of an alleged breach of contract, specifically an agreement which the appellant claims he reached with Connacht Gold on 16th July 2012. That was an agreement whereby his credit terms with Connacht Gold in relation to purchase of cattle at its marts were reduced from three weeks to two. It was the appellant’s case that Connacht Gold breached that agreement just a few weeks later when, on 9th August 2012 Connacht Gold representatives informed him that unless he was prepared to agree to a further curtailment of his terms of credit, he would not be permitted to purchase any further cattle -4- at any Connacht Gold marts, with immediate effect. The appellant would not agree, and it was his case that the conduct of Connacht Gold had the effect of destroying his business overnight. 7. The appellant issued his proceedings against Connacht Gold on 27th November 2012. A statement of claim was delivered on his behalf on 18th December 2012. In those proceedings the appellant claimed that Connacht Gold had breached the contract of 16th July 2012. He sought an order for specific performance and damages. The proceedings were issued on behalf of the appellant not by the respondents, but by another firm of solicitors. While the appellant had consulted with a then partner in the respondents’ firm in September 2012, the solicitor concerned had explained that owing to a disability he would be unable to attend court on behalf of the appellant and so (according to the appellant) that solicitor’s involvement was limited to writing a letter to Connacht Gold and advising the appellant with a view to exploring the possibility of a resolution of the dispute. In any case it appears that the firm that issued the proceedings on behalf of the appellant must have come off record soon after delivery of the statement of claim, because the defence to the proceedings delivered on 10th May 2013 was addressed to the appellant personally. There was some disagreement about precisely when the appellant returned to the respondents’ firm but nothing turns on this for present purposes. What is not in doubt is that from November 2013 at the very latest, the first named respondent, Mr. Brady, then an assistant solicitor in Dillon- Leetch and Comerford, and relatively recently qualified, was the solicitor with responsibility for dealing with the proceedings on behalf of the appellant. Importantly, at the time that Mr. Brady took over the handling of the file, a trial date of 18th February 2014 had already been obtained by the appellant. 8. On 30th January 2014, counsel sent an email to Mr. Brady advising, amongst other things, of the possibility that the appellant might have grounds to make a case that the loss -5- of his business was as a result of a malicious falsehood emanating from Connacht Gold. Counsel so advised on the basis of instructions given by the appellant that his business had been ruined as a result of comments made by Connacht Gold personnel about the appellant at Balla Mart (a mart operated by Connacht Gold, at which the appellant had, until relations fractured, purchased most of his cattle) on 11th August 2012. Such a plea, counsel advised, might be a useful alternative to a case based solely on breach of contract. Counsel advised that any such claim would need to be pleaded and particularised and he suggested that he and Mr. Brady might discuss the matter the following Monday 3rd February 2014, when he understood Mr. Brady was due to be in the Four Courts. 9. Ultimately the proceedings continued in their original form without any amendment to the proceedings, i.e. on the basis of a claim for breach of contract. They came on for hearing before Kearns P. in May 2015 and were heard over four days. Kearns P. dismissed the proceedings on the basis that he was not satisfied that the document signed by the parties on 16th July 2012 was a binding contract obliging Connacht Gold to allow the appellant to purchase animals on credit. As already mentioned, the appellant appealed, unsuccessfully, from the judgment of Kearns P. to this Court, which dismissed the appeal on 5th May 2016. These Proceedings 10. At the trial of these proceedings, the appellant claimed that the first that he became aware of the letter of counsel of 30th January 2014 to Mr. Brady was when he received delivery of a folder of documents from the respondents shortly before the trial. However, Mr. Brady gave evidence that he handed over the entirety of his file to the appellant in 2022. The Judge accepted the evidence of Mr. Brady over that of the appellant on this issue. In any event, he said, it was not a matter of significance because the appellant had had sufficient -6- opportunity to study whatever documents were delivered to him by Mr. Brady in advance of the trial. 11. More substantively, Mr. Brady maintained that he had discussed counsel’s advice dated 30th January 2014 with the appellant at the time, although Mr. Brady accepted that he had no record or memorandum of that discussion. Nor did Mr. Brady follow up on the discussion by way of a letter to the appellant confirming what Mr. Brady understood to be the appellant’s instructions. Mr. Brady gave evidence that the appellant was in almost daily contact with him during the period and that because of the urgency of the matter, with the trial date fast approaching, his business was dealt with immediately. Specifically, Mr. Brady said that he discussed with the appellant the potential for a claim of malicious falsehood against Connacht Gold, and that the appellant instructed him that he would be able to get witnesses to give evidence as to what was said about the appellant by the mart manager at Balla Mart on 11th August 2012. Mr. Brady gave evidence that he interviewed two such potential witnesses identified to him by the appellant, namely a Mr. Coyne and a Mr. Julian. The High Court judge concluded that, as a matter of probability, the appellant produced these witnesses because he was following up on the suggestion of counsel that potential witnesses should be obtained with a view to proving a connection between rumours that the appellant was in financial difficulty, with what was said about the appellant at Balla Mart. 12. While neither of the two witnesses concerned gave evidence at the trial, Owens J. said that it was reasonable to assume that had they done so, they would have given evidence in accordance with what they told Mr. Brady. The Judge then proceeded to summarise what they told Mr. Brady. This information appears to have been gleaned by the Judge from attendance notes on Mr. Brady’s file. Each of the witnesses informed Mr. Brady that they had been at Balla Mart on 11th August 2012. They each made enquiries as to the whereabouts of the appellant, and the response that they got from the manager of the mart was that they -7- should not mention the appellant’s name, that “that man is finished here” and “he will get no more cattle around here”. 13. In the judgment under appeal, the Judge observed that this was “significant material” and the words alleged to have been spoken implied that the appellant was barred from the mart because he had not paid for cattle. If established in evidence, the Judge said, this would go to prove one element of malicious falsehood, i.e. a statement capable of being shown as likely to cause financial loss to a business. Mr. Brady interviewed these witnesses on 5th February 2014, and, the Judge noted, he immediately forwarded the contents of his attendances to counsel. 14. On 11th February 2014, Mr. Brady received an advice on proofs from counsel by email. In the usual way, counsel advised on the steps necessary to be taken to prepare for the trial on the basis of the pleaded case. The advices also identified the difficulties that the appellant might have in succeeding with his claim that his business had collapsed owing to the refusal of Connacht Gold to continue to trade with the appellant on the terms that the appellant claimed had been agreed on 16th July 2012. Having regard to difficulties identified in his advices, counsel again advised that the appellant might have grounds to advance a claim against Connacht Gold on the basis of malicious falsehood, that falsehood being that Connacht Gold had maliciously put out word that the appellant was in financial difficulty, with the result that other marts refused to trade with the appellant believing that this was so. Counsel advised, inter alia, that in order to succeed with a claim for malicious falsehood, a plaintiff must show that (a) the statement attributed to the defendant was false, (b) that the defendant was motivated by malice and had intended to cause damage to the plaintiff’s business interests and (c) the plaintiff had suffered special damages as a result. 15. Counsel noted that malicious falsehood had not been pleaded in the statement of claim, and advised that if the appellant wished to pursue that as an alternative ground of claim then -8- it would be necessary to make an application to amend the statement of claim setting out the details of the rumours and the comments allegedly made by the Connacht Gold mart manager on 11th August 2012. Counsel advised that if the appellant were to rely on this ground of claim it would not be necessary for him to prove that the appellant had a binding agreement with Connacht Gold and therefore the plea could be a useful alternative in the event that a court were to hold against the appellant on the issue of the existence of a binding contract with Connacht Gold. Counsel specifically advised that the respondents should take instruction from the appellant with regard to amending the statement of claim in order to plead malicious falsehood. 16. In these amended proceedings against the respondents, it is the appellant’s contention that the respondents did not provide him with a copy of counsel’s advice on proofs and did not discuss with him or take his instructions regarding the amendment of his pleadings so as to plead malicious falsehood on the part of Connacht Gold. As a result, the appellant claims, he suffered loss. The respondents on the other hand contend that the appellant was advised of the advice on proofs and of its contents on 11th February 2014. In their amended defence, the respondents plead that the difficulties in making out such a claim were discussed and weighed, and that the appellant decided to proceed with the action as constituted in light of the likely delay that would result from amending the proceedings to include such a claim. The respondents plead that no instructions to bring an application to amend the pleadings were given by the appellant. Judgment of the High Court 17. In his evidence in the court below, Mr. Brady stated that the appellant was adamant that he wanted to keep the scheduled hearing date of 18th February 2014, and that nothing should be done to jeopardise that date. The trial judge accepted Mr. Brady’s evidence in this -9- regard. At hearing before this Court, the appellant agreed that he was anxious to preserve the hearing date, but not, he said, at any cost and he maintained that had he been aware of this possible alternative claim against Connacht Gold, he would have been prepared to vacate the hearing date of 18th February 2014, in order to make that case in the alternative, as advised by counsel. 18. It is thus apparent that at the core of this limb of the appellant’s case is the question of whether or not Mr. Brady took instructions from the appellant on counsel’s suggestion regarding the amendment of the statement of claim. Clearly, if Mr. Brady discussed the issue with the appellant, and if the appellant instructed Mr. Brady that he did not wish to make an application to amend the proceedings, then the claim should fail in its entirety. Having heard the evidence of both the appellant and Mr. Brady, and having had regard to contemporaneous documentation on the solicitor’s file (which I address below) the High Court judge was left in no doubt that, not only was the appellant in attendance with Mr. Brady in his offices on 11th February 2014 (which the appellant denied), but also that he discussed this issue with Mr. Brady and instructed him not to apply to amend the pleadings and instead to proceed with preparations for the hearing of the proceedings the following week. 19. I should add that in arriving at this conclusion, the Judge also placed some reliance on an office diary kept by the respondents’ receptionist which indicated that the appellant had attended the office of the respondents on 11th February 2014 in connection with the proceedings. The diary was a matter of some controversy because it was not produced until a short number of days before the trial. This has given rise to a separate ground of appeal, which I address below. 20. While the conclusion that the appellant had attended with Mr. Brady on 11th February 2014 and given instructions not to make an application to amend the pleadings was in itself - 10 - sufficient to justify the dismissal of the claim. The High Court judge also dismissed the claim for two other reasons. Firstly, he held that if the appellant had amended the pleadings so as to advance a claim for malicious falsehood against Connacht Gold, any such claim would have been doomed to fail and would have been dismissed. Before arriving at this conclusion, the Judge had considered the elements of the tort of malicious falsehood. He noted that the ingredients of the tort are set out in s. 42 of the Defamation Act, 2009. At para. 14, he stated: - “14. A plaintiff who sues for damages for malicious falsehood must prove that the defendant made a false, that is to say untrue, statement to others about that plaintiff’s property, trade or business. That plaintiff must also prove that as a result of that false statement he or she suffered special damage or that the statement was both calculated and likely to cause financial loss in respect of his or her property, trade or business. It is also necessary to prove that the maker of the statement complained of acted maliciously. The term “maliciously” connotes improper objective or lack of honest belief in the truth of the statement complained of.” 21. The Judge distinguished the tort from the tort of defamation, while noting that the two torts have some common ingredients and defences. He noted that in this action, the appellant claims that Mr. Brady deprived him of an opportunity to advance a claim for malicious falsehood. At paras. 38 and 39 the Judge observed: - “38. An action for substantial damages against a solicitor for failing to advance a legal claim can only succeed if the plaintiff is able to demonstrate that the omitted claim, had it been advanced, had some realistic prospect of being upheld. 39. In order for a plaintiff to succeed in a claim such as this one, it is not sufficient to point to [the] (sic) presence of evidence to establish one element of the tort of malicious falsehood, such as that a person made a statement which was likely, to that person’s - 11 - knowledge, to damage that plaintiff’s business. The plaintiff must also demonstrate that there was a real prospect of establishing that the statement complained of was both false and malicious.” 22. The Judge formed the view that any claim of malicious falsehood that the appellant might have advanced against Connacht Gold was doomed to fail because on 11th August 2012 the appellant was refusing to pay Connacht Gold for cows which he had bought at Balla Mart and Ballinrobe Mart two weeks previously. Accordingly, Owens J. held, the statement made by the manager at Balla Mart to farmers on 11th August 2012 that the mart was not prepared to do business with the appellant was true, and such action was justified and in protection of the interests of Connacht Gold. The statement could not therefore constitute a malicious falsehood. For this reason, even if he had concluded that Mr. Brady had failed in his duty to the appellant by not taking further steps to explore advancing a claim for malicious falsehood against Connacht Gold, he would only have awarded the appellant nominal damages for breach of contract because the claim was, in the words of the trial judge “always doomed to fail” (para. 30). 23. The third reason that Owens J. dismissed the proceedings is that he considered that there was a deficit of reliable evidence to support the appellant’s claim for loss. The Judge observed that the statements allegedly made by the manager of Balla Mart on 11th August 2012 implied that the appellant’s business was insolvent. Accordingly, the Judge held, the appellant bore the onus of proving that his business was not insolvent in any action for malicious falsehood against Connacht Gold. However, following a detailed analysis of the evidence placed before him, the Judge concluded that the evidence fell well short of establishing that this was so; on the contrary, the Judge inclined to the conclusion that the evidence suggested the opposite. - 12 - 24. The Judge also held that the appellant had failed to adduce any evidence that his credit had been withdrawn at marts other than those operated by Connacht Gold, and specifically Castlerea and Tuam marts, as a result of what was said at Balla Mart on 11th August 2012. The absence of such evidence was fatal to any claim that the appellant might have made that he had suffered any loss by reason of the alleged malicious falsehood. This was because in circumstances where the appellant claimed that his business had been destroyed by the comments made at Balla Mart on 11th August 2012, on the basis of the claim as advanced by the appellant this could only have been because his credit had been stopped at other marts, i.e. marts other than those operated by Connacht Gold. For this reason also the appellant could not establish any link between the collapse of his business and the comments made by the manager of Balla Mart. 25. Furthermore, the Judge held, the appellant failed to establish that he had any reasonable prospect of proving that the statement made by the manager at Balla Mart on 11th August 2012 was malicious. He observed that the law did not oblige the mart manager to make excuses for the absence of a dealer (the appellant) who was refusing to pay Connacht Gold what he owed it, in answer to questions from farmers who expected the appellant to be present to bid for their cows, and who were enquiring as to his whereabouts. So in summary therefore, and in reverse order, the Judge concluded that any action that the appellant might have brought claiming damages for malicious falsehood on the part of Connacht Gold was doomed to fail because there was no evidence that the statement relied upon had been made maliciously, there was no evidence that his business had been damaged or that he had suffered loss as a result of that statement, and the statement itself was true. The appellant could not establish any one of the elements of the tort, never mind all three. - 13 - Notice of Appeal 26. In his notice of appeal filed on 9th April 2025 the appellant raised 81 grounds of appeal. When his written submissions are considered together with his oral submissions to this Court on appeal, I think that it is accurate to say that these grounds may be reduced to eight substantive grounds, by which the appellant claims that the High Court judge erred as follows: 1. In finding that the appellant attended at the offices of the respondents on 11th February 2014 and that Mr. Brady took instructions from the appellant in relation to the advice on proofs of counsel received on that date, and in particular on the question of making application to the court to amend his pleadings so as to plead malicious falsehood on the part of Connacht Gold; 2. In failing to hold that the respondent should have reviewed the issue of amendment pleadings following the adjournment of the proceedings in February 2014; 3. In admitting into evidence and relying upon the receptionist’s diary produced by the respondent very shortly prior to the hearing in the High Court; 4. In failing to have regard to expert evidence adduced by the appellant, namely the evidence of Mr. Sean Sexton, solicitor; 5. In failing to treat with the appellant as a vulnerable litigant in person; 6. In concluding that the appellant was refusing to pay debts that he owed to Connacht Gold in August 2012, so that any claim against Connacht Gold of malicious falsehood was bound to fail, or alternatively would have resulted in an award of nominal damages only; 7. In finding that the appellant was insolvent as of August 2012; and, 8. In his application of the law relating to claims based upon loss of chance. - 14 - Attendance with Mr. Brady on 11th February 2014 27. This is by far the most contentious issue between the parties, not just because of its importance to the resolution to the dispute, but also because it directly engages their credibility. It is stating the obvious to observe that it is a great pity that there is no contemporaneous record of the attendance, whether in the form of a file attendance note or a letter from Mr. Brady to the appellant, but if everybody did things perfectly there would be very little need for courts on the civil side. Mr. Brady was focused on preparing for trial. File attendance notes and letters to the client for the purpose of recording advices, while very important, and helpful to solicitor and client alike, do nothing to progress the litigation. 28. As it happens however, in this case there are three documents, relied upon by the High Court judge, that serve to demonstrate beyond any doubt the appellant’s attendance with Mr. Brady in his offices on 11th February 2014, and assist in resolving what might otherwise have been a very difficult issue to resolve with any confidence. These are an email from counsel to Mr. Brady (sent at 15:03) attaching his advice on proofs an exchange of emails between Mr. Brady’s office and an actuary retained by Mr. Brady to assist in proving the appellant’s claim for losses and the diary kept by the respondents’ receptionist. 29. In his email attaching advice on proofs, counsel stated: “I am aware that you are meeting with the Plaintiff later this afternoon and I would ask that you take instruction from him with respect to the amendment of the statement of claim to include for malicious falsehood as set out in my advice.” The letter concluded: “Please feel free to contact me on my mobile this afternoon while you are in your consultation with the Plaintiff.” The Judge observed that this was a contemporaneous record of counsel’s understanding of Mr. Brady’s state of mind at the time, which was that he would be meeting with the appellant that afternoon and that Mr. Brady needed his advice on proofs for that purpose. - 15 - 30. The emails exchanged between Mr. Brady and the actuary also indicate that Mr. Brady was meeting with the appellant that same afternoon. At 13:22, the actuary emailed a letter to Mr. Brady in which he stated that he understood that Mr. Brady was “conducting a meeting today in relation to this matter. Following the meeting please revert to me so that we can discuss the question of the preparation of a formal actuary’s report.” The Judge observed that that comment was a contemporaneous record of the understanding of the actuary that Mr. Brady was to meet with the appellant later that day. 31. The Judge then referred to a further email sent by Mr. Brady’s secretary to the actuary at 16:44 on 11th February 2014 in the course of which Mr. Brady stated: - “Subject to our conversation with your office today we would be obliged if you would prepare the Report along the lines of corroborating the figures that [Finbar Tolan’s financial adviser] provided to you. We have had a discussion with our client and our instructions are that this is the manner in which your Report is to be prepared.” 32. The emails referred to above demonstrate that two independent parties – independent of each other and also of both the appellant and Mr. Brady – had been informed by Mr. Brady that he was meeting with the appellant that same afternoon. 33. Moreover, the later email from Mr. Brady to the actuary, recording an instruction taken by Mr. Brady from the appellant since his first email to the actuary later in the day, makes it clear that Mr. Brady had had a discussion with the appellant in the meantime. The instruction referred to was that the appellant wanted the actuary to prepare his report of estimated losses on the basis of the report provided by the appellant’s financial advisor, which had been prepared on the basis of extravagant predictions of growth in turnover of 20% year-on-year, the effect of which was to increase the losses claimed enormously. Whereas the actuary had opined that based on the loss of profits for the previous year, future losses (over a ten-year period) would be of the order of €1,076,355, this would increase to €6,547,376 when - 16 - prepared on the basis of the financial advisor’s growth estimates, which the High Court judge described as “make-belief” (para. 125). 34. The High Court judge relied on this correspondence, as he was entitled to do, in reaching his conclusion that the appellant did indeed meet with Mr. Brady in his office on 11th February 2014. He also placed reliance on the receptionist’s diary, holding that it was admissible hearsay supporting Mr. Brady’s testimony and contradicting that of the appellant that he did not attend with Mr. Brady in his offices on 11th February 2014. He noted that the entry referring to the appellant’s attendance on that day was the second last entry for the day, and that it recorded the appellant’s attendance with Mr. Brady in connection with “Connacht Gold” on that date as well as other dates. 35. The Judge also noted that he informed the appellant that the secretary who kept the diary could be produced for cross-examination if the appellant wished to challenge the document’s authenticity, but the appellant disavowed that he wanted to make any case that the entry could have been a fabrication inserted on some later date. The Judge considered the possibility, as suggested by the appellant, that Mr. Brady’s secretary may have made a mistake in recording a meeting as having taken place between the appellant and Mr. Brady on that date, but he rejected that possibility having regard to other evidence. As already mentioned above, the question of the admissibility of the diary gave rise to a separate ground of appeal, which I address below. 36. The Judge referred to the evidence of Mr. Brady that the appellant attended with him in his office for some two hours on the afternoon of 11th February 2014. According to Mr. Brady, the appellant arrived after receipt of the email from the actuary. Mr. Brady gave evidence that he and the appellant were waiting in Mr. Brady’s office for counsel’s advice on proofs and that when the advices arrived, two copies were printed, one of which was put on the file and the other was given to the appellant. Mr. Brady also gave evidence that before - 17 - the advice on proofs have been received, he had discussed the email from the actuary with the appellant and had taken the appellant’s instructions in regard to the same. 37. The most important part of Mr. Brady’s evidence was that, upon receipt of the advice on proofs, he discussed with the appellant the question of whether or not to apply to amend the pleadings so as to plead malicious falsehood on the part of Connacht Gold, and that the appellant had instructed that he was not prepared to consider amending his pleadings in any “way, shape or form”. The appellant’s firm instruction, according to Mr. Brady, was to present the case as it was and to do whatever was necessary to keep hearing date of 18 th February 2014. This instruction was given against a background where particulars claiming losses of €6,537,736 had only been delivered two weeks previously, on 4th February 2014, and the solicitors for Connacht Gold had, by letter of 7th February 2014, stated that if the appellant was serious about claiming such a loss, they would be applying for an adjournment in order to be afforded the opportunity to investigate the same. In the event, that application was made and granted. 38. The Judge accepted Mr. Brady’s evidence in respect of these matters noting that his evidence was supported by the contents of the emails exchanged with the actuary, which he observed demonstrated that Mr. Brady had obeyed his client’s instructions by contacting the actuary and requiring him to produce a report on future loss based on projections provided by the appellant’s financial adviser. The Judge observed that if the appellant was in attendance with Mr. Brady that afternoon, it was scarcely conceivable that they would not have discussed counsel’s advice on proofs and his covering email. 39. It is apparent from the foregoing that the conclusions of Owens J. on what was a very stark conflict in the evidence of the parties are supported by credible contemporaneous evidence in the documentary record. As such, the principles enunciated by the Supreme Court in Hay v. O’Grady [1992] 1 I.R. 210 apply. These principles were reiterated and - 18 - approved by a further judgment of the Supreme Court in The Leopardstown Club Limited v. Templeville Developments Limited and anor [2017] IESC 50, in which MacMenamin J. stated at paras. 6-8: - “6. What follows from this, and the authorities cited above, is that appeal courts are bound by a trial judge’s findings of fact, when they are based on cogent evidence. Moreover, again applying the principles enunciated in Hay v. O’Grady, appeal courts should be slow to adopt inferences other than the trial judge’s, again where they are based on factual material. 7. Save where there is a clear non-engagement with essential parts of the evidence, therefore, an appeal court may not reverse the decision of a trial judge, by adverting to other evidence capable of being portrayed as inconsistent with the trial judge’s primary findings of fact. 8. “Non-engagement” with evidence must mean that there was something truly glaring, which the trial judge simply did not deal with or advert to, and where what was omitted with (sic) went to the very core, or the essential validity of his findings. There is, therefore, a high threshold. In effect, an appeal court must conclude that the judge’s conclusion is so flawed, to the extent that it is not properly “reasoned” at all. This would arise only in circumstances where findings of primary fact could not “in all reason” be held to be supported by the evidence… . “Non-engagement” will not, therefore, be established by a process of identifying other parts of the evidence which might support a conclusion, other than that of the trial judge, when there are primary facts, such as here. Each of the principles in Hay v. O’Grady are to be applied.” 40. In this instance, it has not even been suggested by the appellant that there was any “non-engagement” by the High Court judge with any evidence, never mind “truly glaring” “non-engagement”. It is apparent that the Judge engaged in a detailed consideration of the - 19 - oral testimony and the documentary evidence. His conclusions were based upon credible evidence, following a detailed and scrupulous analysis of the same. There is no basis whatsoever upon which this Court could set aside the conclusions of the Judge that, contrary to the evidence given by the appellant, he did attend the offices of the respondents on 11th February 2014; that he did discuss the correspondence received from the actuary and the advice on proofs received from counsel that same afternoon, and that he did give instructions to Mr. Brady how to progress matters with the actuary and, crucially, that he did not wish to make an application to amend his pleadings so as to advance a claim for malicious falsehood, in view of the imminency of the trial date. I would therefore dismiss all grounds of appeal related to this issue. Failure to Review Decision after Adjournment 41. While not accepting that he met with Mr. Brady and discussed counsel’s advices on 11th February 2014, the appellant submits that even if this occurred, and even if he had instructed Mr. Brady not to make application to amend the pleadings so as to preserve the hearing date of 18th February 2014, Mr. Brady was negligent in failing to address the issue again (with the appellant) following the adjournment of the proceedings on the application of Connacht Gold. It will be recalled that Connacht Gold successfully applied to adjourn the proceedings in the light of the very late presentation of a claim for damages in the sum of €6,547,376. 42. The Judge addressed this issue at paras. 178-182 as follows: - “178. The overall evidence has led me to a very firm conclusion that [the appellant] was at all stages a demanding client who kept on top of his litigation against Connacht Gold and knew exactly what he wanted. I accept that he knew about the option of amending his proceedings to include the claim of malicious falsehood and chose not - 20 - to pursue that option. I have little doubt that if he had any real interest in making a case based on malicious falsehood and amending of his proceedings to facilitate this, he would have pursued this with his legal advisers. 179. My conclusion on the evidence is that after 13 February 2014 [the appellant] and [its] legal advisers “forgot” about the suggestion that he could advance an alternative claim against Connacht Gold based on malicious falsehood and concentrated on advancing his original case. I am using the word “forgot” here as meaning that they put this idea behind them and did not pursue it further. 180. The evidence shows that after that date [the appellant] met with his solicitor and barristers on a number of occasions and gave clear instructions related to discovery and the need to get his case on for hearing. His barristers would have been briefed with a copy of the advice on proofs. 181. The suggestion that the pleadings be amended to include a claim for damages for malicious falsehood was never revisited by [the appellant], John Brady or counsel. The adjournment on 13 February 2014 afforded an opportunity to give it further consideration. 182. There was no evidence that the issue of amending [the proceedings] to include such a claim was ever mentioned after 11 February 2014 or that any steps were taken to follow up on whether there was evidence available which might prove other elements of that tort.” 43. There is no disagreement that the issue was not re-visited after the adjournment. The question is whether or not Mr. Brady had any obligation to re-visit it, in circumstances where the reason for not making application to amend the pleadings was that the appellant had been very anxious to keep the trial date of 18th February 2014, and that rationale evaporated upon the adjournment the proceedings. As the Judge observed, the adjournment afforded an - 21 - opportunity to give the issue further consideration. Earlier in his judgment, at para. 175, the Judge had held as follows: - “175. The evidence establishes that in the interval between the adjournment on 13 February 2014 and the eventual trial, [the appellant] was in full control of his litigation against Connacht Gold. This included instructions to his legal team on what documents he was and was not prepared to provide on discovery. He was prepared to provide very limited information relating to his business records. He demanded that his legal team adhere to these instructions. He attended in court in person when counsel was dealing with applications for discovery and to fix dates. He participated in a number of meetings with counsel. His concern remained to get his case on for hearing as soon as possible. This statement of claim in this action also reflects this concern.” 44. While at the hearing of this appeal the appellant argued that the Judge erred in failing to find that he was of vulnerable client to whom Mr. Brady owed a special duty of care (an issue I address in the next section of this judgment) the appellant did not take issue with the factors relied upon by the High Court judge in this paragraph of the judgment that indicated the appellant was indeed in full control of his litigation. I am satisfied that the Judge had sufficient evidence before him to arrive at this conclusion, and that there is no basis upon which this court should interfere with it. 45. In circumstances where the Judge found that Mr. Brady had discussed and taken the appellants instructions on the question of amending the pleadings on 11th February 2014, and the appellant had given clear and unambiguous instructions not to make such an application, and continued to play an active part in the management of his litigation after the adjournment, I am satisfied that it was open to the judge to conclude, as he did, that both the appellant and his legal advisers had (as the Judge put it) “put this idea behind them” and - 22 - decided not to pursue any further the possibility of advancing a claim based on malicious falsehood (para. 179). I would therefore dismiss this ground of appeal. The Diary 46. The only concern raised by the appellant in the Court below regarding the receptionist’s diary was that the entry showing his attendance at the offices of the respondents on 11th February 2014 must be erroneous. In discussion with the High Court judge, he expressly stated that he was not suggesting that it was a forgery. He has now changed his mind, and at ground of appeal no. 71 the appellant pleads that it appears that the document “may have only been created for the purposes of the hearing before Mr Justice Owens in October 2024, and may not have been in existence in 2014 as alleged to be. However, an Expert examination on inspection of this document should verify to this court whether this is a genuine diary or not… .” 47. It is clear from the transcript, from which I quote extensively below, that the appellant was afforded the opportunity by the Judge to challenge the provenance of the diary, and he expressly declined that opportunity, instead asserting that the entry relied upon by the respondents could be erroneous. If the appellant had objected to the introduction into evidence of the diary, it might well have been that the Judge would have required the respondent to prove the same formally, and indeed the transcript shows that the Judge asked Mr. Brady if the receptionist who kept the diary could be called for that purpose, if necessary. Mr. Brady replied affirmatively, although he observed that that person was at that time on maternity leave. Had the appellant pressed the issue at that point it might well be that it could have been laid to rest definitively by the evidence of the person who kept the diary, but this course was not taken because the appellant made it crystal clear that he was making no allegations of foul play. - 23 - 48. The following extracts from the transcript, Day 4, demonstrate the lengths the Judge went to in order to afford the appellant every chance to object to the introduction of the diary into evidence: - P.179, lines 16-18: Judge: “Can I ask you, Mr. Tolan, do you accept the diary page’s genuineness? Because, I mean, the defence can always bring up the secretary to… .” The appellant stated in reply (lines 19-21): “Well, Judge, all I can say about the diary page is, if Mr. Brady produces a diary page, he produces a diary page. I’m not going to criticise... .” P.180, lines 14-15: Judge: “Now, either the secretary actually forged the thing… .” Line 16: Appellant: “Oh, I wouldn’t accuse anyone of that.” P.181, lines 1-5: Judge: “…you’re essentially saying in relation to the diary page that somebody has written in two lines to make it look as if you were there and that somebody else was there immediately after.” Lines 6-7: Appellant: “Judge, I’m not making an allegation of anything, I’m saying categorically I wasn’t there.” Lines 8-13: Judge: “Well then you either have to accept it or you don’t accept it and take the risk that they’ll call that witness to deal with it, because it’s a serious allegation that - 24 - somebody would put something into a diary page about you being in the office for a consultation and that not taking place, Mr. Tolan.” Lines 16-17: Appellant: “…I’m not accusing anybody of forging anything. What I did say was that there was mistakes made earlier and there was errors… .” Lines 25-27: Judge: “But it means you have to accept the entry and the bona fides of the person who made the entry, do you understand me?” Line 28: Appellant: “I do, Judge, I certainly do.” P. 182, lines 3-6: Judge: “And I take a dim view, I have to say, of suggestions that a diary page – – it could be fabricated or anything like that without giving the person an opportunity to deal with that.” Lines 7-11: Appellant: “No, Judge, I never would accuse anybody of fabricating anything here. But what I’m simply saying is that Mr. Brady is relying on a diary page, right, knowing that it could be possible an error was made on it.” 49. As I have said above, the appellant has since changed his mind about alleging forgery. In doing so, it appears that according to himself, this is because he actually paid a visit to the household of the receptionist subsequent to the High Court hearing and he claims that she informed him that she was not on maternity leave at the time Mr. Brady was giving his evidence, and furthermore he claims she said that other persons also had input into keeping the diary. As a result, the appellant made application to the President, prior to the hearing - 25 - of this appeal, to adduce new evidence to this effect at the hearing of this appeal, but, the appellant informed this Court, the President refused the application because he had not produced any evidence from the receptionist herself to support the application, i.e. his application was grounded upon his own affidavit as to his conversation with her, which of course was hearsay. 50. The appellant also submitted that the Judge erred in concluding at para. 140 of the judgment that the diary constituted admissible documentary hearsay. The appellant appears to contend that it does not meet the requirements of s. 13 of the Civil Law and Criminal Law (Miscellaneous Provisions) Act, 2020, but he does not explain why this is so, although he did purport to do so, impermissibly, when providing (after the hearing of the appeal) other information requested by the court at the conclusion of the hearing of the appeal. In any case the problem with this line of argument is that it was not made during the course of the hearing in the High Court, notwithstanding that the appellant was given the opportunity by the judge to insist that the author of the diary should be called to give evidence. 51. Having afforded the appellant ample opportunity to object to the introduction of the diary in evidence and to object to its authenticity, and the appellant having spurned those opportunities, the Judge was in my view both entitled to and correct to admit it in evidence, and to rely upon it in arriving at his conclusion that the appellant attended with Mr. Brady on 11th February 2014. I would therefore reject this ground of appeal. 52. My conclusions on the issues discussed above, i.e. the giving of instructions by the appellant to Mr. Brady on 11th February 2014 not to apply to amend the pleadings, on the non-review by Mr. Brady of that decision following the adjournment of the proceedings and on the admissibility of the diary, when taken together, are dipositive of the appeal. Nonetheless, I consider it appropriate to address also the other grounds of appeal summarised above, not least because it is apparent that even if Mr. Brady had not taken the appellant’s - 26 - instructions on the issue, it is apparent from the exhaustive analysis undertaken by the Judge that his conclusion that any claim the appellant might have advanced against Connacht Gold on the ground of malicious falsehood would indeed have been doomed to fail, for all the reasons identified by the Judge. Failure to have Regard to the Expert Evidence of Mr. Sexton 53. The appellant correctly submits that the Judge made no reference in the judgment under appeal to the evidence of Mr. Sean Sexton, solicitor, and he claims that the Judge erred in failing to address this evidence. However, Mr. Sexton’s evidence was premised on Mr. Brady not having advised the appellant that he should consider amending the proceedings to include a claim of malicious falsehood, as advised by counsel. In such a scenario, Mr. Sexton opined, Mr. Brady would have been negligent. In circumstances where the Judge found that Mr. Brady had informed the appellant of counsels’ advices, had taken his instructions and had acted upon them, the evidence of Mr. Sexton was no longer of any relevance and did not require to be addressed by the Judge. The Appellant’s Claim to Have Been a Vulnerable Litigant 54. The appellant had argued in the High Court that he was a vulnerable client to whom the respondent owed a special or heightened duty of care. In advancing this argument he submitted that at the time he was under a lot of pressure because his business had failed and he was being sued by a lot of people. He also submitted that he was of limited education and left school without a leaving certificate. He placed reliance upon the Law Society of Ireland’s Solicitor’s Guide to Professional Conduct in which it is stated that: “The solicitor has a special duty of care in respect of vulnerable clients. As the relationship between solicitor a and a client is of a fiduciary nature, a solicitor should be cognisant of - 27 - characteristics that make a client more vulnerable… .” The appellant’s central point in relation to this issue, as he put it in this appeal, is that since he was a vulnerable client, Mr. Brady needed to take special care to ensure that the appellant fully understood all of the key issues arising in the proceedings, and that he should have copper-fastened his advices by setting them out in writing so as to ensure that the appellant had sufficient time and opportunity to consider and understand the advices. That the appellant had not done so in relation to the amendment to the pleadings which had been recommended by counsel is not in dispute. 55. Leaving aside altogether the question of whether or not the appellant was a vulnerable client as he suggests, the relevance of the point is not readily apparent in circumstances where the appellant’s central point so far as this issue is concerned is that Mr. Brady did not discuss with the appellant at all counsel’s advice on proofs, and specifically the question of amending the pleadings. It is not about the quality of the advice or how well the issue was explained by Mr. Brady to the appellant. 56. The appellant also relied upon five medical reports two of which were addressed directly to the respondents (those being reports dated 18th November 2014 and 3rd October 2014) and it is apparent that a third report dated 24th June 2014 had also been sent to the respondents because it is referred to as having been sent in the later report of 3 rd October 2014. A fourth report dated 8th April 2014 is addressed to the appellant himself, but is clearly prepared for the purpose of reliance in the court proceedings. The fifth report, dated 20th January 2015 is addressed “To whom it may concern”. 57. These reports, from the appellant’s general practitioner, state, inter-alia, that the appellant is attending his general practitioner regularly with anxiety and depression which has been brought on since losing his livelihood and income. They express concern for the appellant’s physical and mental health welfare. They refer to his treatment with medications - 28 - and counselling. Each of the first four of the reports expresses concern about how long the litigation had been drawn out and the impact that it was having upon the appellant’s health, and expresses the importance of getting the case on for hearing. 58. The first four reports appear to have been obtained in order to support the appellant’s efforts to get the case on for hearing. The fifth report is different in that it recommends deferring a court date pending cardiac investigations necessitated as a result of chest pains. The appellant’s submissions in the High Court regarding his alleged vulnerability were expressed to be because of pressure brought on by the loss of his business and his limited education. In reply to questions from the appellant, Mr. Brady did not accept that the appellant was a vulnerable client, and the trial judge also rejected that proposition finding that the appellant was firmly in charge of the direction of his litigation and that he “took advantage of John Brady’s inexperience” (para. 161 of the judgment). 59. There can be no doubt that the appellant was a person labouring under very significant financial and litigation pressures at the time of the events relevant to these proceedings, and it appears from the medical reports that he provided to this Court that these pressures were having a detrimental effect on his health. Such pressures, it must be observed, are not uncommon in litigation and very many clients are to one extent or another vulnerable for these reasons, and no doubt their legal advisors need to be alert to these vulnerabilities and to advise in a manner appropriate to the same. 60. I have already found that the conclusion of the High Court judge that Mr. Brady had discussed and taken the appellant’s instructions on counsel’s advice on proofs was one based on credible evidence and is not one with which this Court should interfere. The question as to whether or not to apply to adjourn the proceedings so as to make an application to amend the proceedings was not one of any great complexity and there can be little doubt but that - 29 - the appellant would have fully understood what was involved. Indeed, he has not suggested otherwise. What he has said was that the appellant did not discuss the issue with him at all. 61. While it would clearly have been better practice for the respondent, Mr. Brady, to put this advice in writing, even if only from his own point of view, once it was established to the satisfaction of the Judge that he had discussed the issue with the appellant, and that the appellant had given clear and unambiguous instructions not to apply to amend the proceedings so as not to jeopardise the hearing date, the appellant’s claim that he was a vulnerable client to whom the appellant owed heightened duty of care became irrelevant. That aside, the High Court judge, having heard all the evidence as well as having observed the appellant present his case and make his submissions was entitled to conclude, as he did, that the appellant was not a vulnerable client in the sense in which he claimed he was in 2014. I would therefore dismiss this ground of appeal. Conclusion the Appellant was Refusing to Pay Connacht Gold 62. On 11th August 2012, the appellant sent a text message to Mr. Tom McGuire of Connacht Gold, stating, amongst other things: - “Just 2 let u know that i have put a tempary Stop on that cheque that i paid n Ballinrobe wed until ye get yer buls…. …sorted and realise ye wont make a fool out of me. I dont car whats comin r not, we have a written agreement n place 4 this yr and unless i can do my bis as normal until then i’ll never realise a penney 2 ye again…. im keepn that 150 odd thousand i owe ye now if yer breaking our agreement 2day No Balla 2day’ no more money. Nobody will make an idiot of me.” 63. The appellant contends that the High Court judge erred in failing to recognise that it was not the case that he was refusing to pay Connacht Gold what he owed, but rather that Connacht Gold, in refusing to allow him attend the mart at Balla on 11th August 2012, - 30 - prevented him from doing so, in accordance with the agreement of 16th July 2012. The appellant further claims that the judge erred in failing to realise that the text message quoted from above, and also other text messages sent by the appellant at this time, had been sent by the appellant in desperation, in the hope of persuading the management of Connacht Gold to permit him to attend the mart at Balla on 11th August 2012, so that he could pay what he owed from the previous Saturday week in accordance with the agreement, and purchase more cows as usual. 64. The difficulty for the appellant is that the text message constitutes credible evidence upon which the Judge was entitled to reach his conclusions. At the time that he sent this message, the appellant, according to his own evidence in the High Court, owed Connacht Gold of the order of €154,000. The cheque which he had cancelled was in the amount of €18,702. At the hearing of this appeal the appellant argued that he cancelled this cheque only so that he could pay the same sum again outside Balla Mart (or in any case anywhere other than at the Mart itself from which he was banned) on Saturday 11th August 2012, together with the amount outstanding from the previous Saturday week. He claimed that he had been so directed by Mr. Murphy. However, this is entirely at odds with the content of the text message which it is difficult to interpret as anything other than a clear refusal to pay what he owed until the appellant got his own way, or, put more benignly, at least until such time as matters were resolved to his satisfaction. 65. No doubt the appellant was very aggrieved with what he saw as the breach by Connacht Gold of what he considered to be a binding agreement – a claim rejected by Kearns P. in the High Court and again by this Court on appeal – but, as the High Court Judge held (at para. 24): - “A party to a contract is not entitled to refuse performance or dishonour accrued legal obligations on grounds that the other party is in breach of an unconnected obligation. - 31 - Two wrongs do not make a right. If Connacht Gold was not entitled to refuse to extend mart credit to Finbar Tolan, his remedy was to seek damages for loss as a result of their failure to perform that obligation. He did not have a right to withhold payment of money due and owing by him to Connacht Gold.” 66. The High Court judge added that the appellant was not entitled to withhold payment of what he owed in retaliation for the decision by Connacht Gold not to allow him to buy cows on credit. Had the appellant attended at Balla Mart that afternoon, the judge said at para. 26 that the manager “would have been fully within his rights to ask [the appellant] to leave and to refuse his bids.” This led the judge to conclude that there could have been no question of Kearns P. awarding the appellant damages for malicious falsehood or loss of reputation as a result of any communication by the manager of Balla Mart on 11th August 2012 which conveyed to farmers that he was barred from the mart. This was because any imputation from whatever words were spoken that the appellant refused or was unable to pay Connacht Gold what he owed them represented the truth, and could not be said to be “a falsehood”. 67. I see no error of fact or of law in these conclusions of the High Court judge. While the appellant’s refusal to pay Connacht Gold may well have been a reaction to being barred from the mart on 11th August 2012, the fact is that he had informed the management of the mart that for this reason he did not intend to pay Connacht Gold what he owed, with the result that any statement implying that he was not welcome at the mart for this reason or reasons of this kind was true, and it therefore followed that the appellant had no prospect of succeeding with a claim against Connacht Gold for the tort of malicious falsehood. The reasons why the appellant was refusing to pay Connacht Gold were immaterial in this context. - 32 - Error in Finding the Appellant Insolvent 68. The High Court judge also gave consideration to whether or not the appellant would have been able to advance a plausible claim in the High Court for losses sustained by reason of the alleged malicious falsehood. He noted that the appellant claimed that as a result of the respondents’ negligence he had lost the chance to prove that he had lost his business as a cattle dealer as a result of the malicious falsehood perpetrated by Connacht Gold. In considering this issue, the judge stated, at para. 205, that in order for the appellant to have succeeded with a claim for malicious falsehood, he would have to have satisfied Kearns P. that his business was solvent as of 11th August 2012. The Judge said that “This is because the nub of his complaint was that the mart manager falsely imputed to farmers at Balla Mart that his business was insolvent.” 69. In considering the issue, the judge noted that the appellant’s own evidence that he bought cows on credit from Connacht Gold and other marts. This credit, the appellant said, was “pulled” after 11th August 2012, and he could not get credit terms from other marts. On 10th October 2012, Castlerea Mart issued proceedings against him, and Tuam Mart sued him at around the same time. The appellant was unable to inform the court for how much he was sued by these parties, even though the same issue had been raised in the proceedings before Kearns P. 70. The Judge noted that the appellant had not called any evidence to establish the accuracy of the profit and loss accounts prepared by his tax adviser. He said that without expert evidence based on reliable balance-sheet information, there was no proof that the appellant’s business was in fact solvent and capable of being operated profitably either before or after its credit was curtailed by Connacht Gold in August 2012. He noted that as of 9th August 2012, the appellant’s total indebtedness to Connacht Gold, Castlerea, Tuam and Sligo marts was €549,392. He described this is a very vulnerable business model, and - 33 - observed that it was inevitable that sooner or later the various marts would notice that they had allowed the appellant far too much credit and attempt to reduce their exposure. In arriving at these conclusions, the Judge conducted a detailed analysis of the information provided by the parties regarding the purchase and sale of cattle by the appellant in the years 2011 and 2012. 71. The Judge also referred to the appellant’s submission that he should be awarded damages for loss of chance against the respondents because his claim for loss of his business could have succeeded as against Connacht Gold, based on the figures which his legal team had assembled to support his breach of contract claim against Connacht Gold. The Judge rejected the proposition, holding that it was based on an unrealistic premise relating to potential growth in turnover. He stated that the appellant’s financial adviser’s view of the successful nature of his business in 2012 was neither given in evidence nor based on information verified by acceptable evidence. 72. Furthermore, the appellant’s financial adviser’s opinion took no account of the effect of the finding made by Kearns P. that Connacht Gold was entitled to withdraw credit from the appellant. This was particularly significant in view of the appellant’s evidence, referred to at para. 220 of the judgment that once Connacht Gold stopped doing business with him, he could no longer supply Dawn Meats with cattle, because most of his business related to cattle bought on three weeks credit at Balla Mart. The Judge noted that while the appellant had secured an overdraft of €200,000 from Ulster Bank, the evidence suggested that that money had been used by the appellant to pay for cows prior to 11th August 2012, and the appellant has not suggested that this was an erroneous conclusion. The upshot was that the appellant would have to rely on later receipts from cattle sales in order to pay Connacht Gold what he owed them. - 34 - 73. Ultimately the Judge concluded, at para. 245, that he had received “no reliable evidence capable of demonstrating that Finbar Tolan could have made a plausible case to the President that he operated a solvent and sustainable business before or after Connacht Gold stopped allowing him credit in August 2012.” While the appellant disagrees with this conclusion of the Judge, he fails to identify any errors in his analysis. 74. The response of the appellant to the analysis of the Judge could be summed up as being that he had been able, up until 11th August 2012, to pay his bills within his agreed credit terms, and therefore it follows that he was solvent. But he failed to address in any way the very significant indebtedness that he by this time accumulated, and the inevitable fact that the mart operators would sooner or later attempt to “manage-down” his debt, as the Judge put it, as happened in August 2012 when Connacht Gold reined in his credit. It was at this point that the solvency of the appellant fell for scrutiny. 75. The third ingredient of the tort of malicious falsehood is that the falsehood caused the claimant loss. If the appellant was already insolvent, he could not hope to establish such a loss. The conclusion of the High Court judge that the appellant could not have made a plausible case to Kearns P. that he was solvent on 11th August 2012 was one grounded on credible evidence, and was arrived at by the Judge following an exhaustive analysis of the appellant’s affairs, even though, as the Judge observed, he had not been provided by the appellant with important and basic financial information such as balance sheets for relevant years. For all of these reasons, I am satisfied that the conclusion reached by the Judge on this issue also is not one that should be interfered with by this Court, having regard to Hay v. O’Grady. 76. The Judge further identified another compelling reason why the appellant could not possibly hope to have succeeded with a claim based on malicious falsehood. At para. 246, he held as follows: - - 35 - “Finbar Tolan has not proved to me that he could have made a plausible case to the President that his business failed because Castlerea Mart and Tuam Mart withdrew his mart credit or because he could not get credit terms from other marts as a result of the alleged malicious falsehood. His evidence relating to the circumstances in which Castlerea Mart and Tuam Mart had cut his credit was vague and insufficient to show that there was a real prospect that he could have proved to the President that these marts had cut his credit because they had heard that Connacht Gold had barred him as a result of what was said by the manager of Balla Mart.” 77. The appellant has not appealed from the anything said by the Judge in this paragraph, which gets to the heart of any claim for losses that the appellant might have advanced on the basis of malicious falsehood. In simple terms that claim could only have been that he lost his business with other marts because of the malicious falsehoods uttered by the manager of the Balla Mart on 11th August 2012, and that, as a result, his business failed entirely. In the absence of any evidence that he had lost his business with those other marts because of whatever was said by the manager at Balla Mart on 11th August 2012, any claim that he might have advanced against Connacht Gold under this heading was doomed to fail, as the High Court judge concluded. Principles Applicable to Claims for Loss of Chance 78. The appellant contended that the Judge failed to apply correctly the principles associated with loss of chance cases, as approved in the context of medical negligence cases in Philp v. Ryan [2004] IESC 105. He claimed that the Judge approached the issue as though it were necessary to determine, hypothetically, the outcome of the trial against Connacht Gold, had malicious falsehood been pleaded. - 36 - 79. Firstly, this ground of appeal is rendered moot in light of the conclusion that I have already reached that the Judge was entitled to conclude on the evidence before him that Mr. Brady had in fact discussed counsel’s advices with him, and the appellant had firmly instructed him not to make an application the pleadings. Nonetheless, in the interests of completeness, I will address the point briefly. 80. The appellant contends that the error of the High Court judge in this regard is illustrated by his conclusion (at para. 30) that even if he had concluded that Mr. Brady had failed in his duty as a solicitor by not taking further steps to explore whether a claim could be made against Connacht Gold for malicious falsehood, he would have awarded the appellant only nominal damages of €0.01, because the evidence before him established that such a claim would have been vexatious and was always doomed to fail. The appellant submitted that this illustrates that the Judge evaluated the respondents’ liability in these proceedings on an all or nothing basis instead of evaluating the probability of a successful outcome, as contemplated by Philp v. Ryan in cases involving loss of chance. 81. I consider this argument to be misconceived. At paras. 38-39, the Judge held that - “38. An action for substantial damages against a solicitor for failing to advance a legal claim can only succeed if the plaintiff is able to demonstrate that the omitted claim, had it been advanced, had some realistic prospect of being upheld. 39. In order for a plaintiff to succeed in a claim such as this one, it is not sufficient to point to presence of evidence to establish one element of the tort of malicious falsehood, such as that a person made a statement which was likely, to that person’s knowledge, to damage the plaintiff’s business. The plaintiff must also demonstrate that there was a real prospect of establishing that the statement complained of was both false and malicious.” - 37 - 82. I did not understand the appellant to disagree with these principles. On the contrary, in his speaking note to the Court, the appellant submitted: “Once breach and causation are found, it is only then that damages arise and should reflect the value of the opportunity lost, provided that opportunity had a real and substantial prospect of success rather than a negligible one”. As applied to the issues in this case, this is indistinguishable from the requirement articulated by the Judge that there must be a “real prospect of establishing that the statement complained of was both false and malicious”. 83. Having set out the applicable principles, however briefly, the Judge then proceeded to explain why he considered that the appellant had no prospect of success in a claim of malicious falsehood on the basis of the available evidence. In my view the fact that the Judge conducted a detailed evaluation of the evidence in order to establish whether or not the appellant would have had any realistic prospect of success does not mean that he crossed the line and required the appellant to establish, on the balance of probabilities, that he would have succeeded with such an action. His detailed analysis made it plain that the appellant had no prospect of success at all in such an action with the result that, even if he had succeeded in establishing negligence on the part of Mr. Brady, any damages that he would have recovered could only have been nominal. Accordingly, this ground of appeal too must be dismissed. Conclusion 84. While the appellant advanced other grounds of appeal, which I have considered, it is unnecessary to address them in order to determine this appeal. The conclusions reached above are reached on what I consider to be those grounds that were central to the appeal, and I am satisfied for the reasons explained above that all of those grounds and the appeal as whole should be dismissed. - 38 - 85. Since the respondents have been entirely successful in this appeal, it would in the ordinary course follow that they are entitled to an order, pursuant to s. 169 of the Legal Services Regulation Act, 2015, directing the appellant to discharge their costs incurred in this appeal. If the appellant wishes to contend for a different order then he should do so by filing written submissions, not to exceed 1,500 words, within 21 days from the date of delivery of this judgment, and in such event the respondents shall file replying submissions, also not to exceed 1,500 words, within a further period of 21 days. 86. As this judgment is being delivered electronically, Pilkington and O’Moore JJ. have authorised me to indicate their agreement with it.