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Court of Appeal in Northern Ireland Decisions |
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You are here: BAILII >> Databases >> Court of Appeal in Northern Ireland Decisions >> McGoldrick v Gilmore & Ors (2002) NICA 53(1) (14 December 2001) URL: http://www.bailii.org/nie/cases/NICA/2001/53(1).html Cite as: McGoldrick v Gilmore & Ors |
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BETWEEN:
(Plaintiff) Respondent;
(Defendant) Appellant;
(Defendants) Respondents.
NICHOLSON LJ
I respectfully agree that the appeal against the order of McLaughlin J should be dismissed.
Firstly, the joinder of the appellant as a co-defendant in the (plaintiff) respondent's action was not an abuse of process. Originally the plaintiff did not wish to join the appellant as a co-defendant because he was a friend and was, I infer, probably uninsured. Subsequently he was advised by senior counsel that he should do so and, no doubt reluctantly, he did so. Before he obtained that advice his solicitors had written on his instructions to the appellant stating that he did not intend to sue him and asked him whether he would/would not be willing to provide a witness statement. The appellant was given the choice to make a statement or not. Nothing in the statement made by him was damaging to him. Nothing in it added to the knowledge of the respondent's legal advisers about the facts of the case. There was no sharp practice and no detriment to the appellant. If there had been any savour of sharp practice or if the statement made by the appellant had been in any respect to his detriment I would not necessarily have regarded the joinder of the appellant as an abuse of the process of the court as I consider that the nature and extent of the sharp practice or detriment need to be examined in the circumstances of the particular case.
Secondly, I respectfully agree that if 'promissory estoppel' is applicable to this case the appellant did not alter his position to his detriment and, therefore, it is not inequitable for the plaintiff to act inconsistently with his promise. It is not, therefore, necessary to decide whether promissory estoppel applies to the relationship between the appellant and the respondent.
I agree that it is too narrow a statement of the law to say that promissory estoppel applies only where there is a pre-existing contractual relationship. But I am not convinced that every legal relationship will allow one party to rely on promissory estoppel against the other. For example, there may be cases where a promise is made in circumstances where it would be inequitable to allow the promisee to rely on it because of the dominant position of the promisee in the legal relationship.
As the respondent does not argue against the imposition of a condition that the original and all copies of the appellant's statement and notes of attendance on him by the respondent's solicitors should be delivered up to the appellant's solicitors and that an undertaking is given by the respondent's counsel that no use will be made of them in the trial of this action, I agree with the Lord Chief Justice that the condition should be imposed.
BETWEEN:
(Plaintiff) Respondent;
(Defendant) Appellant;
(Defendants) Respondents.
