A Pleading Two-Step, Part 1: The Dangers of Dispensing With Counsel, 1866

From the Evening Freeman, 28 July 1866 and the Cork Constitution, 30 July 1866:

Mr Hardy applied to have the defence filed in the case of Tedcastle v Stockholme set aside on the ground that it was informal and embarrassing.

Mr O’Driscoll said he held a brief for the defendant, but he would save much trouble by stating that the defence was not maintainable.  It was framed in the old style and pleaded the general issues.

Mr Justice Keogh – Who prepared it?

Mr O’Driscoll – It was drawn by a barrister, the only one in town at the time.  He is a member of the Bar, but I have never seen him.

Mr Hardy – I have never seen him either, although he was called to the Bar in 1834.  He seems to have been asleep since. (laughter)

Mr Justice Keogh – Who is the attorney?

Mr O’Driscoll – Mr Geary.

Mr Justice Keogh – Is Mr Geary here?

Mr O’Driscoll – He is not, but his son is.

In reply to the learned judge, a little boy stated that his father, Mr Geary, was at the Head-Police-Office.  After a lapse of about half an hour, and when the business of the court was about to conclude, Mr Geary was called, and did not answer.

Mr Driscoll – I suppose Mr Geary will be here yet.

Mr Hardy – I do not think he will. (laughter)

Mr O’Driscoll – That is a very pert observation.  He is labouring from physical infirmity and I believe he is a very respectable man.  I do not think any gentleman at the Bar should make such an observation.

Mr Justice Keogh – I do not like to say anything about it, but I concur with Mr Hardy. I require an express affidavit from the gentleman at the Bar who signed that defence, and an affidavit from Mr Geary himself, if necessary.  It has been sought to suppress all discussion by declaring that the thing was indefensible.

Mr O’Driscoll – I did not intend to do so.  I had no object in doing so.  

Mr Justice Keogh – There is an old French maxim ‘Qui s’excuse s’accuse.’

Mr O’Driscoll – Your lordship used a hard expression.

Mr Justice Keogh – I deliberately used that expression.”

The matter resumed the following Tuesday, when the court was furnished with an Affidavit from Mr Thomas Barrington Geary, of no 22 Peter Street, stating that he had drafted a defence, and taken it to the residence of Mr Curran BL for approval, only to be told that Mr Curran was at the Tullamore Assizes, and that, although the defence could be sent down to him there, it would take two days for it to be signed and returned.  As the defence had to be in the following day, Mr Geary then recollected Mr Thomas W Reilly, a member of the Bar whom he had known for many years and who, after having been paid the proper and usual fee, signed the defence in his presence.  

Also read out in court was a letter from Mr Reilly:

“DEAR GEARY I need not say how much concerned I was upon reading the Irish Times of Saturday last, to perceive that the draft defence to which I attached my signature had been the subject of such serious animadversion.  I can only remark that if I made an error in the pleading it was an inadvertence that, perhaps, might occur to any other barrister.  All I can say is, that, considering your long experience, I did not very attentively examine the draft and felt myself perfectly secure in putting my name to it when you brought it to me, accompanied by the usual fee which you paid me on the 19th inst, the day on which you signed the defence.  I hope this letter will answer the purpose.”

Judge Keogh said that the fact that Mr Reilly was not known at the bar as a practising barrister had caused him to fear that a name had been put to the defence without Counsel signing it.  His only anxiety in the matter was the the legitimate rights of the Bar should be respected.  It would appear that Mr Reilly put his name to the pleadings without judging himself of their contents.  It was to be regretted that any professional gentleman would make himself the instrument of an attorney by attaching his name to a document without taking the proper pains to see if it were correct.  Mr Reilly’s letter contained an admission that he had acted in a most improper manner, and he was sure it would be condemned by every member of the Bar in far stronger terms than he had just used.

The question of defences unsigned by Counsel had been troubling Irish courts generally for some years.  It was a requirement of General Rule 33d that all pleadings subsequent to summons and plaint be so signed, the fee on taxation, for advising and preparing on such pleadings, to be not less than one guinea. 

Purportedly developed to prevent defences being filed purely for the purposes of delay, the rule was strictly enforced by the judiciary, former barristers themselves, with an eye to preventing any abrogation of the Bar’s privileges.   A defence filed without Counsel’s signature would be struck out, and a solicitor who signed Counsel’s name on their behalf – even if out of town – could expect to be heavily censured.

In 1862, the Court of Common Pleas took it on itself to inquire as to the purported signature of Mr Tuckey, a conveyancing and chamber barrister in Cork, on a defence described by Chief Justice Monahan as ‘such an extraordinary attempt at pleading that it is doubtful any member of the Bar ever prepared it.’  In response, Mr Robert Martin, solicitor, admitted that Mr Tuckey had not signed the defence, but said that he had, in other cases, given him authority to put his name to pleadings if he could not get to Dublin in time to sign them, something which was denied by Mr Tuckey.  

Mr Martin received a fine of £15, and a severe dressing down from the Chief Justice, who remarked that the case would of course have been much more serious if the court had been of the opinion that there had been an understanding between the two men that Mr Martin would be at liberty to place the name of Mr Tuckey to documents of this kind.

The requirement that Counsel’s signature appear on the defence was removed by the Supreme Court of Judicature (Ireland) Act 1877, which must have resulted in a drying-up of income for any non-practising barristers ready willing and able to append their names for a guinea.  Mr Reilly’s embarrassing fate must have served as a reminder to all members of the Bar to read any solicitor-drafted pleadings carefully before signing – and to keep up to date with professional developments!

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