Monday 22 January 2018

High Court strikes out negligence action against celebrity solicitor Gerald Kean

Tim Healy

THE High Court has struck out a professional negligence action against celebrity solicitor Gerald Kean after a judge found it had no reasonable chance of succeeding.

A company called Rayan Restaurant Ltd of Tullamore in Co Offaly had brought the action over advice it received from Mr Kean, of Kean solicitors, Upper Pembroke Street, Dublin, and from barrister Francis McGagh, who was engaged by Keans to present a case on behalf of the company in Circuit Court proceedings in 2003 and 2004.


It was claimed Mr McGagh and Mr Kean failed to properly advise the now insolvent Rayan, whose directors were Djamel Mennad and Fatima Zohra Azizi, of its rights and remedies in the case brought after the landlord of a restaurant they had in Athlone, Co Westmeath, took possession of the premises in a dispute over rent.


In the Circuit Court case, a judge ruled in 2004 that the landlord of the restaurant had lawfully taken possession of it.  Rayan appealed that decision to the High Court and also brought proceedings against its former lawyers saying it did not receive proper legal advice in relation to that matter.


Mr Kean and Mr McGagh denied the claims and asked the High Court to strike out Rayan's action for damages for alleged professional negligence on grounds that it was frivolous and vexatious and was an attempt to re-litigate the Circuit Court proceedings.  Rayan opposed the application saying the High Court case was different in character.


Mr Justice Michael White ruled this latest case by Rayan had "all the hallmarks of a collateral attack" on that previous court decision which was not permissible.


The Circuit Court decision was well merited, the judge said. He was satisfied the restaurant business was in a perilous financial position as far back as 2003.


He was also satisfied the action against the defendants was vexatious in that it had no reasonable chance of succeeding.

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