Kennedy v Law Society of Ireland (No 4)
|Kennedy v Law Society of Ireland (No 4)|
|Court||Supreme Court of Ireland|
|Full case name||Kennedy v Law Society of Ireland (No 4)|
|Decided||21 April 2005|
|Citation(s)|| IESC 23|
|Appealed from||Judgment of Kearns J (High Court) 30 July 2003|
|Related action(s)||Dismiss appeal|
|Judges sitting||Denham J, McGuinness J, Hardiman J, Geoghegan J, Fennelly J.|
|Decision by||Geoghegan J|
|Misfeasance in Public Office, Subjective Test, Negligence and Public Authorities|
Kennedy v Law Society of Ireland (No 4)  IESC 23 is a reported decision of the Irish Supreme Court that both a) reaffirmed the high threshold applied to claims that public authorities are guilty of negligence in their exercise of statutory powers, and, b) recognised bad faith as a necessary element of the tort of misfeasance (corruption) in public office.
Based on information linking the applicant to a known fraudster, the respondents had initiated an investigation into the affairs of the applicant’s practice as a solicitor, whose scope they had initially concealed from the applicant. The respondents had failed to take legal advice on whether the investigation exceeded the bounds of the statutory investigative power that they had purported to exercise. The Supreme Court ultimately held that the investigation was unlawful (reported at  2 I.R. 458). The matter was remitted to the High Court to determine the applicant’s entitlement, if any, to damages. The High Court dismissed the applicant’s claim; its decision was appealed to the Supreme Court. The two main legal questions raised by Kennedy (4) concerned, respectively, whether the scope of the tort of negligence extended to a public body’s exercise of statutory investigative powers, and whether the test for the tort of misfeasance in public office was subjective in nature.
Supreme Court Decision
Geoghegan J delivered the judgment of a unanimous Court. He held that the tort of negligence would extend to a public body’s exercise of statutory investigative powers only in exceptional circumstances, which did not exist in the present case:
[T]he trial judge should not have embarked on a detailed treatment of the claims in negligence and breach of statutory duty. As a general proposition, it can safely be said that, apart from exceptional circumstances, a body such as the first respondent, carrying out a public function in pursuance of a public duty, is not liable to a private individual in tort unless the authority, in so acting, has committed the tort of misfeasance in public office.
In reaching this conclusion, he noted the overriding public interest in efficient public administration:
[E]ffectively, an administrative body could grind to a halt if it was under some legal obligation to obtain legal advice in relation to every issue that might arise. 
This conclusion was consistent with the then recent decision of the Supreme Court in Glencar Exploration p.l.c. v. Mayo County Council (No. 2)  1 I.R. 84 which had introduced a three-part test for negligence according to which Mayo County Council could not be sued for injury it caused in acting outside its powers to institute a mining ban. But Geoghegan J took care to note that his conclusion that the Law Society could not be sued in negligence was equally consistent with the easier-to-satisfy, two-part test for negligence adopted in the earlier Supreme Court case of Ward v. McMaster  I.R. 337 that had been rejected in Glencar:
Having regard to the constituents of the tort of misfeasance in public office, I think it unlikely that Lord Wilberforce (whose speech in Anns v. Merton London Borough Council is now overruled by the House of Lords) would ever have countenanced a parallel Donoghue v. Stevenson  A.C. 562 private duty of care in a case such as this and I rather suspect that McCarthy J. who had expressed similar views in Ward v. McMaster would have considered that there was a “compelling exemption based upon public policy”….
Turning to the test for the tort of misfeasance in public office, Geoghegan J looked to decisions in the UK and elsewhere to address a doctrinal question that had not recently received judicial consideration in Ireland. Geoghegan J first distinguished misfeasance that consists in targeted malice towards an individual and that which consists in a lesser form of bad faith. Following the UK House of Lords decision in Three Rivers D.C. v. Bank of England (No. 3)  2 W.L.R. 1220, he then held that it did not suffice to establish that it was reasonably foreseeable that a particular act would exceed the relevant statutory power and that it would cause injury to the plaintiff, but that it must also be established that the defendant had been reckless about the consequences of his act, in the subjective sense of, "not caring whether the consequences happen or not."
In applying this test to the fact of the case, Geoghegan J confined his analysis to the question of whether the respondent’s action was within its statutory powers. Geoghegan concluded that the applicant’s case that the respondent had been subjectively reckless as to whether its action was within its statutory powers was, "extremely thin." In doing so, he placed emphasis on the finding of Kearns J in the High Court that the Law Society had initially concealed its motivation from the plaintiff strictly in order to preserve the possibility of an adequate investigation:
It became quite clear that there was no bad faith on the part of the first respondent in initially not disclosing… why it wanted the files. The investigation could have been defeated if there was such disclosure and that appears to have been the only motive.
- "Giles J Kennedy, Applicant v the Law Society of Ireland, Patrick Joseph Connolly and Aisling Foley, Respondents (No 4) -  3 IR 228". Irish Reports. 3: 228–269. 2005 – via Lexis Library.
- Binchy, William; McMahon, Bryan (2014). Law of Torts (4th ed.). Dublin: Bloomsbury Professional. p. 798. ISBN 9781847669179.
- "Giles J Kennedy, Applicant v The Law Society of Ireland, Patrick Joseph Connolly and Aisling Foley, Respondents, (No 3) -  2 IR 458". Irish Reports. 2: 458–492. 2002 – via Lexis Library.
-  3 IR 228 at 259
-  3 IR 228 at 259
- "Glencar Exploration plc v. Mayo County Council  IESC 64;  1 ILRM 481 (19 July 2001)". www.bailii.org. Retrieved 2019-02-12.
- "Ward v. McMaster  IESC 3 (10th May, 1988)". www.bailii.org. Retrieved 2019-02-12.
-  3 IR 228 at 259
- "House of Lords - Three Rivers District Council v. Governor and Company of The Bank of England". publications.parliament.uk. Retrieved 2019-02-11.
-  3 IR 228 at 262
-  3 IR 228 at 263
-  3 IR 228 at 264
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