Solicitor Maura Derivan, who is the current President of the Law Society, and her husband, Patrick, were criticised in court Thursday for attempting to frustrate the hearing of a €50,000 defamation action against them.
Barrister David Kearney, counsel for the plaintiff in the case, Robert (Bobby) Fitzgerald, chartered accountant and head partner of Fitzgerald Fleming Long Accountants, Carrick on Suir, Co Tipperary, told the Circuit Civil Court the couple had “acted in a manner akin to obstruction” in the way they had dealt with the case.
Mr Kearney, who appeared with Sharon Delaney of Beauchamps Solicitors, Dublin, told Judge John O’Connor that Fitzgerald, who initiated the defamation case against the Derivans and another defendant 13 years ago, said his client for the fourth time was asking the court to set a date for a three to four day trial of the case.
Shortage of judges
When Judge O’Connor said, because of a shortage of judges, he could not at this stage give a trial date, Mr Fitzgerald, sitting at the back of the court was heard to say: “Aw for f***’s sake.”
Judge O’Connor asked Mr Kearney to have a word with his client and Fitzgerald’s counsel apologised for the remark. Mr Kearney’s instructing solicitor, Ms Delaney, then walked to the back of the court and, sitting beside Mr Fitzgerald, was seen to speak with him.
The defamation case was also taken out against plasterer Bernard Brophy, of Owning, Hilltown, Co Kilkenny, a client in 2009 of Ms Derivan’s legal company, Derivan, Sexton and Co, solicitors, New Street, Carrick on Suir.
Another solicitor, Mr Niall Brehany, representing Mr Brophy, told Judge O’Connor that his client had stood to one side in the action to allow the parties try and settle the matter.
“He is extremely frustrated because it is five years since a notice of trial was served against him and it has caused him great stress and money,” Mr Brehany said. “He needs to get the matter dealt with if only for the sake of his own health.”
Richard Downey, counsel for the Law Society President and her husband, told the court he had been brought late into the case and the court had already identified difficulties which his clients had in dealing with the case.
He said it was not obstruction on his clients’ part at all that scheduled settlement talks meetings had not taken place. Unfortunately they had not come to pass.
“It is a case of some antiquity and there has been no obstruction whatsoever,” he said.
Mr Downey said if a trial date was set for some time in the future the parties could engage on foot of that. He said he had been instructed to ask for time into the future as the case was expected to take three to four days.
Possible resolution
He said the court had already adjourned the case with on the basis that it would take some time and hopefully it would, in the meantime, resolve itself.
Mr Kearney said the case had come before the court on multiple occasions and meetings for talks had been set between the parties but the first and second defendants had not engaged.
“We want a date fixed,” he said. He told Judge O’Connor he had been instructed to seek his costs on the basis of the conduct of the first and second defendants (the Derivans) “which is akin to obstruction in the way they have dealt with this matter.”
Mr Kearney told the court his solicitor had written on numerous occasions to the first and second defendants attempting to set up several meetings and had not received replies to any correspondence.
He said Mr Fitzgerald had been trying to get the case on for hearing since 2018 but the first and second defendants had failed to engage.
Judge O’Connor said that due to the shortage of judges he was unable to set a date and adjourned Mr Fitzgerald’s application until April for mention again. “I can do no more than put it in for mention,” he said.
The case, which was moved from the South Eastern Circuit to Dublin on the application of Mr and Mrs Derivan, who practice as Derivan Sexton and Co Solicitors, arises from written correspondence allegedly initiated and published by Derivan Sexton and Co in matters relating to their client Mr Brophy concerning the proposed purchase of a development unit by Brophy and involving Fitzgerald’s company.
Mrs Derivan was elected the new President of the Law Society of Ireland on 11th November last year and prior to her election she was senior vice president.
A full defence, denying all and any issues relating to the alleged defamation against Fitzgerald, was entered on behalf of the Derivan’s and Brophy.
