Wednesday 21 August 2019

Security must be provided before appeal against High Court ruling can go ahead

Gerald Kean
Gerald Kean

A COMPANY must put more than €80,000 as security for legal costs before it can go ahead with an appeal over the striking out of a claim of alleged professional negligence against celebrity solicitor Gerald Kean and a barrister.

A three-judge Court of Appeal today ruled the security must be provided before the appeal against the earlier High Court ruling can be heard.

Rayan Restaurant Ltd of Tullamore, Co Offaly, wants to appeal the dismissal of its case against Mr Kean and barrister Francis McGagh.

The appeal court ruled €40,528 each, for the costs of Mr Kean and Mr McGagh, must be put up by Rayan.

The Rayan case has already been throught the Circuit and High Courts.

The action was over advice it claimed it received from Mr Kean, of Kean solicitors, Upper Pembroke Street, Dublin, and from Mr McGagh, who was engaged by Keans to present a case on behalf of the company in Circuit Court 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.  

This advice related to the company's 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 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 claiming 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.

They argued the action was frivolous and vexatious and an attempt to re-litigate the Circuit Court proceedings. 

Rayan opposed the application.

The High Court ruled Rayan's case had "all the hallmarks of a collateral attack" on the Circuit Court decision which was not permissible.    It also found the case was vexatious and had no reasonable chance of succeeding.

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