Court rejects bid to strike out broadcaster's negligence claim against barrister

In her judgment Ms Justice Phelan said that there has been inordinate delay in advancing the proceedings. However, she said that the balance of justice was in favour of the case proceeding.
Court rejects bid to strike out broadcaster's negligence claim against barrister

High court reporters

The High Court has dismissed a barrister's bid to strike out a negligence action brought against him by broadcaster Gemma Ni Chionnaith over the handling of an unsuccessful unfair dismissal claim she brought against RTÉ.

Ms Ní Chionnaith, who has worked as a presenter for TG4's 'Seo Spoirt' programme and on Radio Na Gealtachta (RNG), has sued Co Galway-based barrister John Fahy as well of the National Union of Journalists trade union, of which she had been a member.

They deny the allegations against them.

Ruling on a pretrial motion seeking to strike out the claim on grounds of delay Ms Justice Siobhan Phelan said that there was no proper basis to dismiss the proceedings at this stage, and that the balance of justice favoured the case being allowed to proceed to a full hearing.

Unfair dismissal action

The broadcaster's damages claim arises out of advice allegedly received from the defendants in relation to an Unfair Dismissals action she took against RTÉ, arising out of her time with RNG, in 2010.

She claims that she worked as a co-presenter for RNG's 'Geill Sli' programme under a series of fixed term contracts between 2005 and 2010.

She claims that in late 2009 RTÉ decided not to renew her fixed term contract, which was due to expire in early 2010, or confirm that she was entitled to a contract of indefinite duration.

She sought legal advice from a firm of solicitors, who in turn instructed Mr Fahy.

It is claimed Mr Fahy met her in July 2009 and again, and in May 2010.

Advice

It is alleged that he provided her with certain written advice in relation to her employment in May 2010, including his views on her chances of succeeding in a claim pursuant to the provisions of the Unfair Dismissals Acts.

It is claimed that he advised her that she would have acquired the right to a contract of indefinite duration but did not advise her to secure the said right by bringing a claim pursuant to the 2003 Protection of Employees Act.

She also claims that in reliance with Mr Fahy's advice and with the assistance and services of the NUJ she launched an unfair dismissal claim against RTE in June 2010.

The claim was rejected by a rights commissioner with the then Labour Relations Commission in 2011, who held her complaint was brought out of time, as it had not commenced after her final fixed term contract had expired.

No appeal was brought against that decision.

It is claimed that she proceeded to make further application to another Rights Commissioner seeking an extension of time within which to bring claim pursuant to the 2003 Protection of Employees Act.

That application was refused in January 2012 after the commissioner held that application had been brought outside the six-month statutory time limit in the Act for the plaintiff to bring a claim.

As a result, she sued both Mr Fahy, who she claims was negligent and in breach of duty in the advice which he furnished to her, and the NUJ, which she claims was negligent in the manner it provided services to her.

The proceedings were commenced in 2013.

Ms Ni Chionnaith, who currently works as a senior business development manager and resides in Castlegar Co Galway, claims she has suffered loss and damage due to the defendants' alleged actions.

The claims are fully denied.

In a pre-trial motion Mr Fahy's lawyers claimed the broadcaster had failed to progress her claims and that it should be struck out due to an inordinate and inexcusable delay of several years in progress her claim and that the delay has prejudiced Mr Fahy.

Ms Ní Chionnaith, represented in court by Brendan Kirwan SC, rejected the claims and argued that the case should be allowed proceed to a full hearing.

In her judgment Ms Justice Phelan said that there has been inordinate delay in advancing the proceedings, some of which has not been satisfactorily explained or excused.

However, she said that the balance of justice was in favour of the case proceeding.

The court added that Ms Ni Chionnaith was entitled to her costs of the motion.

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