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Kean courts rare publicity setback

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Gerald Kean

Gerald Kean

Gerald Kean

IT was Irish author Brendan Behan who said there is no such thing as bad publicity (except your own obituary).

But can 'celebrity solicitor' Gerald Kean snatch a victory from the jaws of his failed High Court appeal against a finding of professional misconduct? Yesterday, the President of the High Court, Mr Justice Nicholas Kearns, upheld a finding by the Solicitors Disciplinary Tribunal that Mr Kean had been involved in what Judge Kearns described as a "cover-up" after he made a mistake in relation to a client's case.

Judge Kearns refused to impose a recommended €20,000 fine on Kean, citing publicity around the case as punishment enough for Ireland's self-styled solicitor to the stars. The dispute between Mr Kean and his former client, Christopher O'Neill, is complicated.

At heart, Mr Kean was accused by Mr O'Neill - embroiled in 2005 in litigation over repairs to a boat he owned called 'Windrift' - of misleading him into believing the solicitor had put in a defence to a District Court debt case after a firm of marine surveyors obtained a debt judgment against Mr O'Neill. Mr O'Neill had wanted to contest the marine surveyors' claim and disputed that he owed them any money. The failure to notify an intention to defend a case is not usually fatal. And, as Judge Kearns pointed out, such a mistake can easily be corrected on consent between parties or by asking a court to set aside the judgment if there is an error. This was not done, however, judgment was ultimately obtained in default of defence against Mr O'Neill and no appeal was lodged. Mr O'Neill testified that Mr Kean told him "somebody at the courts screwed up" when Mr O'Neill inquired about the appeal's apparent progress.

Mr Kean provided a cheque in May 2006 from his own funds to the value of €1,048.17 to the marine surveyors' firm who obtained the judgment debt against Mr O'Neill in full discharge of the judgment.

The judgement debt had been settled without Mr O'Neill's written instructions and, critically, after time to lodge an appeal had run out. Mr O'Neill later told the tribunal that Kean paid the debt in full because "he realised he [Kean] had screwed up".

Having paid the debt out of his own pocket, Mr Kean subsequently wrote to the surveyors stating that he intended to appeal the decision and was "instructed" by his client to appeal for an extension of time for leave to appeal. This prompted a perplexed reply from the surveyors, who pointed out that Mr Kean had in fact settled the debt in full a week earlier. The tribunal found there was no evidence Mr Kean was anything more than negligent in his initial failure to submit the notice of appeal and did not make a finding of misconduct in respect of this. But it said Mr Kean subsequently acted in "a reprehensible manner".

In particular, it described his letter to the surveyors' solicitors settling the debt from his own pocket as "highly unusual" and found that Mr Kean paid the debt to avoid having to disclose that he had not filed the appeal. Judge Kearns, upholding three findings of misconduct, ruled that the initial omission - had it been addressed - would not have led to a finding of misconduct. Rather, it was Mr Kean's misguided attempt to mislead Mr O'Neill - described as the "cover up" of the true facts - which gave rise to the misconduct findings.

This went to the heart of the "fundamental trust" between solicitors and their clients, said Judge Kearns, a man who has a long history in dealing with solicitors who have appeared before the Tribunal.

On one level, the dispute - in monetary terms at least - seems paltry. But the consequences for Kean, who has successfully weathered previous claims by former clients, are anything but.

Last year, for example, the High Court struck out a professional negligence action against him after a judge found it had no reasonable chance of succeeding.

Even though there was clearly a breakdown in relations between Mr Kean and Mr O'Neill, the Tribunal - which found several of Kean's explanations "unconvincing" - felt the evidence adduced by Mr O'Neill told another, "more credible story". This can only strike a blow to the standing of one of the country's best-known lawyers, who disputes the tribunal's findings and strenuously denied any misconduct. Mr Kean's high-rolling lifestyle is usually the fixture of social columns, but Judge Kearns's ruling is one item of publicity he may not wish to court.

Irish Independent