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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> Barry v. Medical Defence Union Ltd. [2004] IEHC 62 (31 March 2004) URL: http://www.bailii.org/ie/cases/IEHC/2004/62.html Cite as: [2004] IEHC 62

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THE HIGH COURT

2001 No 1991P

BETWEEN

JAMES M. BARRY

PLAINTIFF

AND MEDICAL DEFENCE UNION LIMITED

DEFENDANT

JUDGMENT of Ms. Justice Carroll delivered the 31^st day of March, 2004.

The Plaintiff who is a medical doctor issued a plenary summons in this matter on 9^th February, 2001. In his statement of claim delivered 23^rd February, 2001 the Plaintiff claims that he purchased professional indemnity insurance from the Defendant (referred to as the MDU) for over twenty seven years until his retirement in 1995, by way of annual sums, entitling him to an indemnity in respect of any order for damages or costs obtained by a patient or former patient in respect of negligence or breach of duty of the Plaintiff as a medical practitioner; also for costs incurred in defending any such claim or in defending any disciplinary proceedings brought against him under Part 5 of the Medical Practitioners Act, 1978. He claims that he was entitled to the exercise of good faith by the MDU in its dealings with him and that in making any determination in such dealings the MDU would act in accordance with the requirements of natural and constitutional justice.

In the alternative he claims there was a contract preliminary or collateral to his becoming a member of the MDU whereby the MDU bound itself to provide the same entitlements.

Alternatively the Plaintiff claims that the MDU made warranties and representations to the Plaintiff in the terms already stated in order to induce the Plaintiff to pay sums to the MDU.

The Plaintiff was sued by three former patients in the Circuit Court, which actions were defended by the Plaintiff's solicitors, Messrs. Denis O'Sullivan & Co. He was also sued by thirty six other Plaintiffs, former patients, in the Circuit Court, in the years between 1995 and 1999. The Plaintiff also took judicial review proceedings in two of those cases (E309/96 and E388/95). In addition, three High Court actions were initiated against him by former patients in 1995 and 1996.

Notice of Inquiries under Part 5 of the Medical Practitioners Act, 1976 dated 17^th November, 1995 and 21^st February, 1996 were served and judicial review proceedings in respect of those inquiries were brought (ultimately unsuccessfully).

A claim for personal injuries was not pursued.

By way of relief the Plaintiff claims inter alia a series of declarations that he is entitled to be indemnified for any damages or costs obtained against him in any of the actions mentioned, including the judicial review proceedings, and also for the costs incurred in defending any of the civil actions or prosecuting the related judicial review actions. He also claims the costs of defending the disciplinary proceedings and prosecuting the related judicial review proceedings.

The MDU in its defence delivered 21^st June, 2001 denies the Plaintiff purchased professional indemnity insurance or that the Plaintiff is entitled to any indemnity as claimed. It also denies any preliminary or collateral contract. The defence says that the Plaintiff was a member of the MDU and his entitlements were subject to the terms and conditions set out from time to time in the Memorandum and Articles of Association. It claimed the MDU could give to a member advice or legal assistance or defend any matter affecting the professional character or interests or conduct in a professional capacity or raising a question of professional principle. The person making a request was bound to abide absolutely by every decision of the Board of Management of the MDU (or other authorised person or committee) on the conduct or defence of the matter and should not without prior consent take any steps with reference to such matter.

The MDU claims that under Article 48 (which is set out in its material parts, in the Defence) an indemnity may be granted in whole or in part with regard to actions affecting the professional character or interests or conduct in a professional capacity of a member raising a question of professional principle but only on such terms and conditions as the Board of Management should think proper, the Board of Management (or other authorised person or committee) to have an absolute discretion to limit or restrict the grant of such indemnity or altogether to decline to grant the same or to determine any indemnity granted without giving any reason.

The MDU claims that while the Plaintiff requested indemnity in respect of the civil actions, it has not to date agreed to provide the indemnity. It claims the Plaintiff has to date failed to co-operate by providing information and instructions in relation to the proceedings and the circumstances giving rise to them, in spite of repeated requests. The MDU denies that it acted otherwise than in good faith and also denies that the rules of natural and constitutional justice have any application to the dealings between the parties, their relationship being governed by the terms of the Memorandum and Articles of Association.

The MDU admits the Plaintiff through his agent (i.e. his solicitors) sought an indemnity in respect of the disciplinary proceedings under the Medical Practitioners Act, 1978 and said it agreed by letter dated 29^th April, 1997 that it was prepared to offer advice and legal assistance subject to conditions that the legal assistance would be provided by solicitors and counsel appointed by the MDU, that the Plaintiff would provide full co-operation by means of a full disclosure of the facts and that his instructions would be given directly to those appointed. The MDU said it could not grant assistance in relation to costs and expenses incurred to date. That offer was not accepted by the Plaintiff.

The MDU also said that while a request was made for indemnity in respect of the costs incurred as a result of the judicial review proceedings in relation to the disciplinary proceedings, the MDU declined to grant indemnity, as it was entitled to do.

It denied it acted wrongfully or in breach of contract or otherwise than in good faith in its dealings with the Plaintiff and claims that all requests by the Plaintiff for advice, assistance or indemnity were properly and fairly considered by the MDU on the basis of the information and material furnished by or on behalf of the Plaintiff.

It claims it reconsidered the matter on 24^th July, 2001 and told the Plaintiff it would assist his request for assistance if specified information was provided by him.

In his reply the Plaintiff joins issue with the MDU, claiming the MDU is estopped from denying their liability and by amendment he claims the decisions of 31^st May, 2000 and 18^th July, 2001 were made in bad faith and in violation of natural and constitutional justice and used as a device in litigation and were unfair in that the MDU refused an offer of the Plaintiff to personally attend its office for interview when the MDU attributed pre-eminent importance to such interview in deciding whether to allow an indemnity. In relation to the decision of 31^st May, 2000 the Plaintiff claims it was unfair as it was kept secret from the Plaintiff. In relation to the decision of 18^th July, 2001 the Plaintiff claims it must be regarded as tainted by the MDU's own concerns and that the persons making the decision were affected by bias.

There are certain matters that can be disposed of at the start.

The Plaintiff did not give any evidence at all and as far as the court is aware did not attend the trial.

Evidence by Mr. Thomas Russell, a Consultant Neurosurgeon in Edinburgh, was offered. He said that he heard of the MDU when he was at university in 1975 and he was going to say what was said to him. I ruled that what was said to him about the MDU was irrelevant.

The other witness on behalf of the Plaintiff was Mr. Brendan Phelan, a civil servant in the Department of Health. He said he was responsible for medical insurance since 1990.

A group scheme was put out to tender in 1992 and the MDU did not tender. The MDU tendered in 1995. He was familiar with the Memorandum and Articles of association of the MDU and the absolute discretion provided for. He raised the issue of the discretionary nature of the indemnity. Three insurance companies and the MDU tendered and the MDU was the preferred supplier. There was a medical indemnity agreement concluded on 12^th June, 1996 subject to the MDU's Memorandum and Articles of Association. He agreed the MDU was not an insurance company and was not covered by insurance legislation.

Apart from that evidence which did not advance the Plaintiff's claim one whit, the evidence on behalf of the Plaintiff consisted of agreed correspondence and the Memorandum and Articles of Association.

Since there was no evidence given by the Plaintiff, the question of a contract preliminary or collateral to the Plaintiff becoming a member of the MDU or of implied terms simply does not arise. This is quite apart from the question of whether there could be implied terms which would contradict the provisions of the Memorandum and Articles of Association. Therefore, the only contract which falls to be interpreted is the Memorandum and Articles of Association of the MDU. It was admitted that the Plaintiff was a member of the MDU.

Another question which can be dealt with at this stage is whether the rules of natural and constitutional justice are applicable in this case. The Plaintiff relies on Glover v BLN [1972] I.R. 388 and Garvey v Ireland [1981] I.R. 75. These are representative of a type of case relating to employment law and dismissal. The MDU relies on Carna Foods Limited v Eagle Star Insurance Company Ireland Limited [1995] 1 I.R. 526 (affirmed on appeal to the Supreme Court [1997] 2 I.R. 193). In the High Court, McCracken J. held (at p. 531) that he did not consider that any principle of natural justice or constitutional justice applied to a decision of an insurance company to give reasons for its decision to cancel a policy of insurance. He said that to decide otherwise would be a serious interference in the contractual position of parties in a commercial contract and with very wide-ranging consequences.

In my opinion there is no justification for extending what is essentially public law to the area of private contract. The principles of natural law do not lie easily in private contract law. For example concerning the principle "nemo iudex in causa sua", it may well be that someone who has to make a decision at a lower level may also be involved at a higher level, for example, a bank manager who refuses a loan or an insurance official who refuses to pay out on a policy, may also take part in a discussion and decision at a higher level. Likewise the submission on behalf of the Plaintiff concerning the principle audi alteram partem, that the Plaintiff had to have a person represent him at the various levels which dealt with his case, is unsustainable. The MDU was entitled to reach a decision on the information furnished by the plaintiff.

Constitutional justice, as represented by fair procedures, concerns public matters. As McCracken J. points out in Carna Foods, where a decision is taken to exercise a function in the public realm, the person affected is entitled to know the reasons for the decision. This is because statutory powers must be determined and exercised reasonably. The same principle does not apply to private contract matters.

What is not disputed by the MDU is that it must deal fairly in considering the Plaintiff's application. This however is on the basis that it may not act unreasonably in carrying out its obligations under its contract with the Plaintiff rather than that it was constrained by the Constitution to apply fair procedures.

Another plea which does not arise relates to estoppel. Since there was no evidence given by the Plaintiff, there is no evidence of any representation relied on by the Plaintiff to his detriment.

The issues which are left are, what are the parameters of the Plaintiff's entitlements under the Memorandum and Articles of Association and, as conceded by the MDU, whether the Plaintiff was treated fairly by the MDU in its dealings with him or whether there was absence of good faith on its part.

The MDU is a company limited by guarantee incorporated in the UK. It has a large number of medical practitioners in this State who are members. Each member pays an annual subscription, the amount depending on which category of subscriber they belong to.

Article 47 and Article 48 of the current Articles of Association, which are materially identical to earlier editions of the Articles provide as follows.

Article 47

"The Board of Management or any member of the Board of Management or employee or agent or committee of the MDU authorised by the Board of Management for the purpose may subject to the limits of any such authority give advice or legal assistance or defend or take part in advising, assisting or defending in respect of any matter cause or proceeding, concerning or affecting whether directly or indirectly the professional character or interests or conduct in a professional capacity of any member, any applicant for election to membership, any former member, or any deceased member (who was at the date of his death a member or who was not at the date of his death a member but had formally being a member and had ceased to be such) or in respect of any matter cause or proceeding which raises directly or indirectly a question of professional principle;

provided that –

(1) The Board of Management or such member of the Board of Management or employee or agent or committee shall be satisfied that in a case involving a member, applicant for election to membership, former member or deceased member the matter originated or the cause or proceedings arose during the period when the person concerned was a member of the MDU or an applicant for election to membership.

(2) If the Board of Management or such member of the Board of Management or employee or agent or committee decides to act in accordance with this Article the person making a request that it do so shall abide absolutely by every decision of the Board of Management or any such member of the Board of Management or employee or agent or committee on the conduct or defence of the matter and shall not himself without prior consent of the Board of Management or any such member of the Board of Management or employee or agent or committee take any steps with reference to such matter or the determination thereof.

For the purpose of proviso (1), in the case of an application by a former member for reinstatement on any register or for restoration of a licence or entitlement to practice the profession previously carried on by him or the lifting of a suspension the matter shall be deemed to have originated immediately before the date upon which his name was erased from such register or his licence or entitlement so to practice was withdrawn or cancelled or upon which his registration in such register, licence or entitlement was suspended as the case may be.

Article 48

(1) The Board of Management or any member of the Board of Management or employee or agent or committee of the MDU authorised by the Board of Management for the purpose may subject to the limits of any such authority and subparagraph (3) of this Article and subject also to the like conditions as are specified in the provisos of the proceeding Article, grant from the funds of the MDU to any member or any applicant for election to membership or former member or the personal representatives of any deceased member, an indemnity wholly or in part with regard to any action proceeding claims or demands by or against them in respect of any matter concerning or affecting whether directly or indirectly the professional character or interests or conduct in a professional capacity of any such member, applicant for election to membership or former member or deceased member as the case may be or which raises directly or indirectly a question of professional principle and such indemnity may extend to all incidental or consequential losses, damages, costs, charges and expenses but excluding fines and penalties.

(2) The Board of Management or any authorised committee or agent may determine any such indemnity at any time by notice in writing to the member or applicant for election to membership or former member (or if the member, applicant or former member dies subsequent to the granting of the indemnity, his personal representatives) or the personal representatives of the deceased member concerned as the case may be.

(3) Any such indemnity may be granted or determined by resolution of the Board of Management or any authorised committee or decision of any authorised agent and the grant of indemnity in every case shall be made only upon such terms and conditions as the Board of Management committee or agent shall think proper and it shall rest only in the absolute discretion of the Board of Management, committee or agent in every case to limit or restrict the grant of such indemnity or altogether to decline to grant the same or to determine any indemnity so granted without assigning any reason.

By virtue of Section 14 of the UK Companies Act 1985 (equivalent to Section 25 of the Companies Act 1963) the Memorandum and Articles of Association bind each member as if they respectively had been signed and sealed by each member and contained covenants on the part of each member to observe all the provisions of the Memorandum and Articles.

The question of whether the MDU was an insurer was considered in the case of MDU v. Department of Trade [1980] CH 82. It was held by McGarry V.C. that the MDU was not an insurance company which carried on any class of insurance business for the purposes of the Insurance Companies Act 1974.

In Rafter v. Solicitors Mutual Defence Fund Limited ([1999] 2 I.L.R.M. 305) it was held by McCracken J.(approving MDU v. Department of Trade) that the Solicitors Mutual Defence Fund Limited (which was modelled on the MDU scheme) did not provide policies of insurance to its members. He said (at p. 313) "An obligation to pay on the happening of a specified event is essential to the existence of a contract of insurance". He was also satisfied that no contract of indemnity existed. The indemnity was discretionary.

I am satisfied that the plaintiff's rights were limited to those expressly set out in the Memorandum and Articles of Association. In MDU v. Department of Trade McGarry V.C. said at p. 693 … "the right of a member in relation to both proceedings and to indemnities is merely a right to have his request fairly considered by the council or one of its committees. Only if the request is granted is a member is entitled to have the proceedings conducted by the Union and to have an indemnity; subject to the provisions of the Articles and not least Article 44(3)" (equivalent to Article 48(3)) "for the purposes of this case I do not think it matters whether the right is a right to have the request heard and determined "fairly" or "in good faith". It is common ground that it must not be dealt with by whim or caprice and it is not contended that such a right is valueless".

Therefore the entitlement of the plaintiff as a member of the MDU under the Memorandum and Articles of Association was to have his request for assistance and indemnity fairly considered by the Board of Management or the person or committee duly authorised. The plaintiff on his part was obliged to abide absolutely by every decision on the conduct or defence of the matter and not to take any steps with reference to the matter without the prior consent of the Board (or other authorised person or committee). (See Article 47 (2))

The agreed correspondence which is proffered by the Plaintiff as evidence in his behalf, extended over a number of years and I have attempted to summarise it.

31^st July 1995 The Plaintiff's solicitor wrote to the MDU enclosing copies of two letters (dated 18^th July 1995) from Messrs Cuddigan Joyce and Co. Solicitors on behalf of two ex-patients of the Plaintiff making a claim for damages. The Plaintiff's solicitor said that they had taken no steps in the matter in accordance with the Plaintiff's policy of insurance.

4^th August 1995 The MDU (per Dr. Catherine E. James) wrote directly to the Plaintiff acknowledging receipt of these letters. She said she would ask Messrs McCann Fitzgerald (who were their nominated solicitors) to liaise with him and Messrs Cuddigan Joyce & Co in respect of the two ex patients. She said they needed considerably more information than was in Messrs Cuddigan Joyce & Co's letter. She said a solicitor in Messrs McCann McFitzgerald would get in touch with him. She asked if he would provide her with a full copy set of notes relating to both patients as soon as possible. A copy of this letter was sent to the Plaintiff's solicitors.

22^nd August 1995 Messrs McCann Fitzgerald wrote directly to the plaintiff asking for a statement and copy of the relevant medical records relating to the treatment of the two ex patients.

22^nd August 1995 Messrs McCann Fitzgerald wrote to the Plaintiff's solicitor asking for any further documents in the matter.

30^th August 1995 The Plaintiff's solicitors wrote to Messrs. McCann Fitzgerald to say they had received the original medical file of the two patients and asked for confirmation that it was in order to furnish it to them.

4^th September 1995 This confirmation was given

6^th September 1995 Messrs McCann Fitzgerald wrote to the Plaintiff's solicitor asking for the original file and to contact them to discuss the claims being made against the plaintiff.

6^th September 1995 Messrs McCann Fitzgerald wrote directly to the Plaintiff to tell him plenary summonses had been served and they expected the statements of claim would shortly be served. They would send a copy for his comments and asked him to contact them if he wished.

11^th September 1995 The Plaintiff's solicitors sent the files of the two patients to Messrs McCann Fitzgerald.

18^th September 1995 Messrs McCann Fitzgerald wrote to the Plaintiff to say they had difficulty deciphering his clinical notes and asking could he have them typed up.

9^th October 1995 The Plaintiff's solicitor wrote to say the Plaintiff had retired from practice and was a patient in St. Gabriel's Hospital in Dublin. If they required further information from the Plaintiff they could contact him at the hospital. He was under the care of Dr. Peter Fahy, Psychiatrist.

13^th October 1995 This letter was acknowledged by Messrs McCann Fitzgerald.

25^th October 1995 The MDU (per Melissa Hackett, Claims Handler) wrote to the Plaintiff's solicitor to say his letter of 9^th October had been passed to the MDU and they did not wish to harm the plaintiff's recovery. She asked if he could advise if it would be appropriate to contact the Plaintiff.

8^th November 1995 The MDU (per Dr. D.N.L. Beresford) again wrote to the Plaintiff's solicitor confirming that the Plaintiff was a member and had been since December 1963. He said, subject to being instructed by the Plaintiff, he would be entitled to the discretionary benefits of membership. Dr. Beresford said the MDU was not an insurance company but a non profit making mutual association and he promised to forward the Memorandum and Articles of Association. He mentioned the numerous allegations by patients reported in the press and said in order to offer assistance within the terms of membership, they required a personal approach from the plaintiff seeking assistance and providing the necessary instructions. He asked the Plaintiff's solicitor if they would indicate whether or not a direct approach to the Plaintiff by the MDU to seek instructions would be appropriate. He said they were unable to approach Dr. Peter Fahy because of professional confidentiality. He finished by saying they did not intend to take any further action on behalf of the Plaintiff before hearing from him or his solicitor on his behalf.

13^th November 1995 The Plaintiff's solicitor replied that there was no question of the Plaintiff being in a position to give the detailed instructions which the MDU obviously required. He said they (i.e. his firm) were satisfied they had authority which pre-dated his recent collapse authorising them to defend any proceedings for malpractice. He assured the MDU that each and every claim was being fully defended and the MDU's position would in no way be affected. The letter concluded by saying he presumed the MDU had caused their solicitors to deliver a full defence in the actions by the two patients.

23^rd November 1995 The Plaintiff's solicitor asked for a reply to his letter of 13^th November. He said proceedings had been served in relation to claims by former patients of the Plaintiff and were being defended. If further details were required he asked the MDU to advise.

31^st January 1996 The Plaintiff's solicitor sent a reminder to the MDU about the letter of 23^rd November 1995. This was copied to Messrs McCann Fitzgerald with a covering letter of the same date.

7^th February 1996 Messrs McCann Fitzgerald acknowledged the letter of 31^st January. They said before they could take any further steps on behalf of the Plaintiff they must have authority from him personally and must meet him to take proper instructions.

14^th February 1996 Dr. Beresford on behalf of the MDU replied to the Plaintiff's solicitor, apologising for the delay. He said before they could consider the grant of discretionary assistance they required a personal approach from the Plaintiff seeking assistance and providing necessary instructions. He said the Plaintiff's solicitor had not answered his request in the letter of 8^th November. He said without the Plaintiff's personal instructions or at least some explanation from his solicitor why he was not in a position to give instructions, the MDU could not offer discretionary assistance. If he was incapable of providing instructions, they required an explanation of the Plaintiff's solicitor's authority to provide those instructions on his behalf to defend any proceedings for malpractice brought against the Plaintiff. He asked for details of the dates of the alleged incidents and the context of the claims already known to them. In addition he required details of other proceedings which the Plaintiff's solicitor had indicated in his letters of the 13^th and 23^rd November had been served and in respect of which they had gone on record.

He said that without substantive replies to the points raised, the MDU would not be responsible for any costs incurred by the Plaintiff's solicitor on his behalf. He also said that in the absence of specific and satisfactory replies, their solicitors would take steps to come off record on the grounds that the Plaintiff was not in a position to provide instructions. He referred to newspaper accounts of defamation proceedings issued against a newspaper on behalf of the Plaintiff when it appeared the Plaintiff was not available to give instructions. He looked for clarification.

15^th March 1996 Dr. Beresford (for the MDU), reminded the Plaintiff's solicitor that no reply had been received to his letter of the 14^th February. He referred to a newspaper report that the Plaintiff had returned to the jurisdiction and would be likely to be in a position to provide instructions. He reiterated that while they were willing to offer assistance subject to the absolute discretion of the Board, they did require the Plaintiff's personal written instructions and an undertaking to accept the MDU's advice and that of his lawyers and to offer all necessary co-operation by the provision of full information.

21^st March 1996 The Plaintiff's solicitor served notice of change of solicitor on Messrs McCann Fitzgerald.

9^th July 1996 The Plaintiff's solicitor wrote this letter which I consider to be very intemperate, accusing the MDU that at no stage were they willing to offer assistance and further accusing the MDU, concerning the reference in the letter of the 14^th February about proceedings in defamation having being issued when it appears the Plaintiff was not available to give any instructions, as putting in issue the integrity of the writer and his firm with a scandalous allegation. The Plaintiff's solicitors said the reports of numerous actions against their client were untrue. There were three actions in the High Court which he described as moribund and three actions in the Circuit Court which were being defended. He enclosed copy of these proceedings.

He then mentioned an inquiry to be conducted by the Medical Council. He said their firm and counsel retained by them were committed to defending all proceedings brought against the Plaintiff and thus far had been successful. He claimed that if the MDU had been involved hundreds of thousands of pounds would have been distributed on foot of false allegations.

He said they were instructed by the Plaintiff to apply for discretionary assistance in relation to costs and expenses in relation to defences in relation to each matter and which they would continue to sustain even if the MDU did not offer suitable support. He enclosed authority from the Plaintiff authorising the firm to make the communication.

The authority enclosed reads as follows:-

Authority.

"I Dr. J.M. Barry MB PhD confirm that the firm of Messrs Denis O'Sullivan & Co Solicitors at St. Patrick's Buildings, 64 Patrick Street, in the City of Cork, have at all times acted with my complete authority in relation to all proceedings commenced or defended by me and I authorise and request my said solicitors to make an application for discretionary assistance in the terms of the letter dated 9^th July 1996.

Dated this 9^th day of July 1996.

Signed James Barry 12 Sydney Place Cork."

14^th January 1997 The Plaintiff's solicitor wrote asking for a reply to the letter of 9^th July.

29^th January 1997 Dr. Beresford replied apologising for his serious omission in failing to reply. He took issue over the assertion of bad faith and reviewed the correspondence to date. He pointed out the Plaintiff's solicitors were aware of the condition which applied to MDU discretionary assistance when they said they had taken no action in accordance with the Plaintiff's "policy of insurance". He said the letter of 13^th November 1995 was received with surprise and concern. Their letter of 14^th February 1996 set out the MDU's position clearly and sought urgent clarification. He said it was reasonable to interpret service of notice of change of solicitor on Messrs McCann Fitzgerald that the Plaintiff no longer desired the assistance of the MDU.

With regard to the new matter, the inquiry by the Medical Council, he said they did not get copies of the correspondence with the Medical Council. He said the MDU was willing to consider discretionary assistance within the benefits of membership. He asked for full documentation to date, full details of the allegations, supporting statements and details of any High Court applications. He stressed they would require full instructions from the Plaintiff in respect of the allegations. He would then bring it before the Board of Management to seek confirmation of discretionary assistance. He said he would at the same time place before the committee the renewed request for assistance in civil proceedings but stressed it was likely to be a requirement that the Plaintiff instructed the MDU's specialist solicitor and lawyers and that it was not the usual practice to assist with legal fees incurred without authority.

3^rd February 1997 The Plaintiff's solicitor replied stating that the MDU was willing to abandon the Plaintiff. He said he rejected the suggestion in the letter that his firm and its lawyers were not qualified. He rejected the innuendo about the competence and abilities of the senior counsel retained. He said there were no criminal proceedings pending against the Plaintiff and that the High Court proceedings had not been further prosecuted. He said three actions in the Circuit Court were set down for hearing, another commenced and more threatened. He also said they were taking judicial review in relation to the anonymity granted in these actions. He enclosed a full set of papers relating to proceedings before the Medical Council, the High Court, the Supreme Court and the President of the High Court. He asked the MDU to specify how his firm's conduct and that of counsel were "substandard" having regard to its "specialist" requirements.

14^th February 1997 In the absence of Dr. Beresford the receipt of this letter was acknowledged.

10^th March 1997 The Plaintiff's solicitors again wrote giving details of the outcome of two applications for certiorari, one refused, one granted.

14^th March 1997 Dr. Beresford replied to the letter of 3^rd February, thanked the Plaintiff's solicitor for the enclosures and said he would present the Plaintiff's request for discretionary assistance to the committee of the Board of Management (likely to be heard on 15^th April). He refuted the allegations about the MDU. He referred to the state of the various actions against the Plaintiff and reminded the Plaintiff's solicitors that discretionary assistance was not sought until the letter of the 19^th July 1996; he said he would seek this at the committee of the Board of Management but was not optimistic.

He then reviewed the course of events in relation to the Medical Council's enquiries, noting the Plaintiff sought voluntary removal of his name from the Medical Register on 31^st July 1995 after which the Medical Council was alerted to the Plaintiff's conduct. A preliminary notice of inquiry was sent to the Plaintiff on 13^th October 1995. Further complaints were raised, resulting in another notice of inquiry dated 21^st February 1996.

Dr. Beresford said it was difficult to understand why these matters were not drawn to the attention of the MDU and its assistance sought. The response of the Plaintiff's solicitor to the letters of 14^th February 1996 and 15^th March 1996 was to serve notice of change of solicitors upon Messrs McCann Fitzgerald. He said clearly the Plaintiff's solicitor were at this stage able to obtain the Plaintiff's instructions on these matters. He referred to a judicial review proceeding and requested clarification. He said he presumed that at a resumed hearing before the Medical Council Fitness to Practice Committee the Plaintiff would wish that his solicitors and senior and junior counsel already instructed to continue the conduct of the case. He asked for confirmation that that presumption was correct as he would need to place that particular request specifically before the committee. He said he would ask consideration to be given to retrospective reimbursement of costs incurred since formal application for assistance in July 1996. But he referred to the Articles of Association and said it would be unlikely, that if granted, payment of costs would not extend from the beginning to July 1996 nor would the costs of the judicial review necessarily be considered. He thought it likely the committee would bear in mind the second proviso contained in Article 47. He asked for observations before 15^th April.

8^th April 1997 The Plaintiff's solicitor replied expressing their outrage and saying that proceedings against the MDU were contemplated. He confirmed they had not received a statement of claim in any High Court proceeding. He enclosed 31 Civil Bills served in March 1997 saying appearances were being entered and notice for particulars being served. The judicial review against the Medical Council was refused in the High Court and was being appealed to the Supreme Court. He enclosed a further copy of a conditional order of certiorari in judicial review proceedings.

11^th April 1997 Dr. Beresford replied referring to previous correspondence and documents which had either been sent or not sent. He referred to the forthcoming committee of the Board of Management on 15^th April and said in the absence of any comment on the detailed chronology of their correspondence set out in his letters of 29^th January, 1997 and 14^th March, 1997 he took it that the Plaintiff's solicitor accepted its factual accuracy. If this was not so he asked for a reply by fax. He also asked the Plaintiff's solicitor to address the question of the Plaintiff's wishes in respect of representation before the Medical Council Fitness to Practice Committee which he would need to specifically place before the committee.

14^th April 1997 The Plaintiff's solicitor replied that he did not accept allegations made in the letter of 14^th March 1997. He said the proceedings before the Medical Council stopped because of the Plaintiff's health and because criminal charges were pending. He accused the MDU of evading its responsibility. He said he advised on 9^th July when Medical Council proceedings were about to be reactivated of their continued existence and did not get a substantive reply until 14^th March, 1997. He enclosed a further copy of proceedings against the Plaintiff and quoted from his letter of 9^th July concerning his request for discretionary assistance and enclosing the Plaintiff's authority.

29^th April 1997 Dr. Beresford replied to say the committee of the Board of Management considered the Plaintiff's request for assistance on 15^th April. The committee's recommendations were adopted by the Board of Management which met on 22^nd April. In relation to the inquiry before the Medical Council Fitness to Practice Committee the Board of Management was prepared to offer advice and legal assistance subject to the following conditions which were required in the Board's absolute discretion in accordance with the Memorandum and Articles of Association. The conditions were (a) that legal assistance would be provided by the solicitor and counsel appointed by the MDU and (b) that the Plaintiff provide full co-operation by means of full disclosure of the facts and his instructions directly to those appointed. The Board decided in its absolute discretion not to grant assistance in relation to costs and expenses incurred in respect of these matters to date.

In respect of the three Circuit Court actions by named Plaintiffs and 31 further proceedings the Board of Management was prepared to consider the question of future discretionary assistance within the benefits of membership. The MDU required full information directly from the Plaintiff in respect of each of his patients including full disclosure of clinical records and full co-operation in meeting with the lawyers appointed by the MDU to secure his full instructions.

7^th May 1997 The Plaintiff's solicitor replied to say proceedings were being drafted against the MDU for breach of contract, breach of trust, negligence, fraud and other breaches of duty and asked for solicitors to be nominated within the jurisdiction to accept service.

14^th May 1997 The Plaintiff's solicitor again wrote and asked for a firm of solicitors to be nominated. He also enclosed papers in a judicial review proceeding in an action by one of the Plaintiff's patients.

19^th May 1997 Dr. Beresford replied to say he was awaiting senior management advice concerning the nomination of solicitors and acknowledged receipt of the document.

4^th June 1997 Messrs Arthur Cox, Solicitors on behalf of the MDU, wrote asking the Plaintiff's solicitor to specify what complaints the Plaintiff had against the MDU and saying any proceedings would be fully defended.

6^th June 1997 The Plaintiff's solicitor wrote to the MDU asking for solicitors to be nominated to accept service.

23^rd July 1997 The Plaintiff's solicitor wrote concerning an approach from the solicitor (Mr. Martin Harvey) acting for 35 of the patients who were suing the Plaintiff. He forwarded "without prejudice" proposals given to Mr. Harvey which included an opening offer of contribution to the ex-patients' costs of £18,500. He asked for a reply as a matter of urgency.

25^th July 1997 Messrs Arthur Cox replied to this letter on the behalf of the MDU saying the position was set out clearly in the letter of 29^th April. Full information had not been forthcoming and accordingly the MDU were not in a position to consider future discretionary assistance in relation to civil claims. It was therefore a decision that Dr. Barry and not the MDU would have to make in relation to the proposed settlement.

28^th July 1997 The Plaintiff's solicitor acknowledged receipt and suggested the MDU had abandoned the plaintiff and refused to reply to correspondence.

23^rd September 1999 The Plaintiff's solicitor wrote to the MDU saying he understood it represented the Plaintiff as insurers. He enclosed a letter dated 6^th September, 1999 addressed to the Plaintiff by Messrs Eugene Carey and Company, Solicitors on behalf of an ex patient claiming the Plaintiff behaved in a negligent unsuitable and inappropriate manner towards their client and threatening proceedings in the absence of an adequate offer of compensation. The Plaintiff's solicitor also enclosed a statement of the Plaintiff dated 10^th March 1999 in relation to the said patient.

On the same date a copy of the correspondence was sent to Messrs McCann Fitzgerald.

28^th September 1999 Messrs McCann Fitzgerald replied to say they had no instructions to act on the Plaintiff's behalf in this matter.

4^th October 1999 The Plaintiff's solicitor sent to the MDU a similar letter from the same firm of solicitors, Messrs Eugene Carey & Co., dated 21^st September 1999 on behalf of another patient. He enclosed a statement by the Plaintiff in relation to the said patient dated 10^th March, 1999

A copy of this correspondence was also sent to Messrs McCann Fitzgerald.

4^th October 1999 The Plaintiff's solicitors sent to the MDU a copy of a Civil Bill

served on the Plaintiff and asked for acknowledgement of the letter of 23^rd September 1999.

He also sent a copy of the Civil Bill to Messrs McCann Fitzgerald.

7^th October 1999 Dr. David Morgan on behalf of the MDU replied to the letter of 23^rd September. He asked if the plaintiff's solicitor could confirm whether he represented the Plaintiff, what was the nature of his instructions and what assistance was being requested.

8^th October 1999 Dr. David Morgan again wrote to the Plaintiff's solicitor in reply to the letter of 4^th October. He said the statement of the patient referred to by the Plaintiff in his statement of 10^th March was not included and asked for it to be forwarded.

22^nd October 1999 The Plaintiff's solicitor replied to the letter of 7^th October, 1999 he referred to the issue of proceedings against the Plaintiff and said that Dr. Morgan might not be aware of their previous requests for assistance on behalf of the Plaintiff and would be obliged if he would consult their files. He said the assistance they required on behalf of the Plaintiff was indemnity in respect of any relevant damages, judgments and in respect of the costs of defending himself against civil disciplinary or criminal proceedings arising out of his practice. He regretted that previous correspondence ended on an acrimonious note and said their involvement in the matter was forced on them by the fact that the Plaintiff was a longstanding client of the office who suffered a nervous breakdown and they bore the burden of protecting his interests in circumstances where he had no hope of being able to pay them for their services. He had no difficulty in handing over all civil files to their nominated solicitors if they would to agree to indemnify Dr. Barry. They would expect to be paid a reasonable remuneration in respect of work done to date. He referred to a doctor whose services they had obtained and also the doctor who had advised 33 claimants referred to and the investigation of her conduct by the medical council.

In relation to the disciplinary and criminal proceedings he said the plaintiff had the right to have lawyers of his personal choice retained. He added if there was any step or thing which the MDU required them to do, which they could properly do for the purpose of meeting their requirements for indemnity for the Plaintiff, they would comply with such requirements.

5^th November 1999 Dr. Morgan replied on behalf of the MDU saying Dr. Beresford had retired and he was dealing with the matter. He said he had been able to access previous files. He referred to the assistance required for the Plaintiff. He said his colleague Dr. Beresford had carefully explained the MDU's position in the letter dated 14^th February 1996 and he said for the avoidance of doubt he reiterated the essential of what he wrote at the time. In order that the Board of Management could consider a grant of discretionary assistance they required a personal approach from the Plaintiff seeking assistance and providing necessary instructions. If the Plaintiff was not capable of providing instructions, the MDU wished to have authorisation from a valid power of attorney in respect of the Plaintiff's affairs. The MDU required details of the individual cases and details of the dates of the alleged incident or incidents to consider any request. The MDU also required details in relation to the Medical Council and criminal matters. He said at that stage the MDU was unable to indicate what discretionary benefit (if any) could be provided. The MDU would expect not only to instruct solicitors but experts of their own choice and no undertaking could be given to pay for previous legal costs incurred. The MDU was unable to fund the work involved in the provision of the details mentioned and he reiterated the importance of receiving the Plaintiff's instructions.

15^th December 1999 The Plaintiff's solicitor replied to the letter of 5^th November 1999. In relation to civil proceedings he said they had prepared copies of the files of the 36 actions in the Circuit Court, three actions in the High Court and an action which they had successfully defended. They prepared photocopies where initiating letters had been written and files where proceedings were commenced but where notice of discontinuance was served.

In relation to judicial review, proceedings in respect of anonymity orders had been adjourned pending the outcome of criminal prosecution. He said copies of the files were being forwarded by surface mail. He considered the disclaimer by the MDU of responsibility for expenses incurred in providing information as mean and petty. He noted the requirement that it was a condition of the MDU being willing to indemnify the Plaintiff that its nominated solicitors should act and said that was a reasonable requirement. They would advise the Plaintiff to comply with any requirement that the civil matters be dealt by Messrs McCann Fitzgerald subject to the MDU accepting responsibility to indemnify the Plaintiff in respect of any judgment obtained against him and in respect of his costs of defending these actions including his costs incurred to date. He said they were in possession of considerable background information which they were willing to share. He said if a satisfactory accommodation could not be reached with the MDU they would issue third party proceedings claiming indemnity in respect of any judgment obtained and payment in respect of their costs of defending the action.

Re the disciplinary proceedings, he said they had been adjourned pending the outcome of the criminal prosecutions brought against the Plaintiff. Also he said the decision of the Medical Council upheld by the Supreme Court in judicial review proceedings to hold their inquiry in private was being considered by the European Court of Human Rights.

Re criminal prosecutions he referred to the letter dated 9^th July 1996 that certain criminal prosecutions had been successfully defended by the Plaintiff. In November 1997 the State brought a series of prosecutions for indecent assault (247 incidents alleged against 43 women over a 30 year period) against the Plaintiff. This was met with judicial review proceedings still pending before the High Court. They were forwarding a full set of papers in these proceedings.

He said that pending the outcome of the criminal prosecutions, neither the disciplinary proceedings nor the civil proceedings could proceed because of the danger of prejudicing the outcome of the criminal prosecutions. In regard to the requirement of a "personal approach" he said they were at a complete loss to understand what they meant when they said they required a personal approach from the Plaintiff seeking their assistance and providing necessary instructions. He said as solicitors acting on behalf of the Plaintiff they had his instructions which they had consistently communicated to the MDU. He said other judicial authorities accepted their authority and their instructions from the Plaintiff but the MDU consistently failed to do so. He said the MDU was acting under some misconception which they could not fathom. He referred to the written authority from the Plaintiff sent with the letter of 9^th July 1996 and he said if by "personal approach" the MDU wished Dr. Barry to attend at its offices then this could be arranged. But if this was what was required to specify the same. Concerning information in the Plaintiff's possession he said there are his medical files but nothing else. He said that the matter must be brought to a conclusion and if it would be of assistance the writer (i.e. the Plaintiff's solicitor) would be willing to travel to England for discussions on an entirely "without prejudice" basis. He concluded by stressing the seriousness of the situation from the Plaintiff's point of view.

5^th January 2000 Dr. Karen Dalby Senior Medical Claims Handler replied on behalf of the MDU to the letter of the 15^th December. Concerning their request for direct contact from the Plaintiff, she said this is a requirement of the MDU when considering offering assistance and is set out in the Memorandum and Articles of Association as previously advised. She noted they were authorised to act on behalf of Dr. Barry and she suggested they leave matters as they are for the moment. In due course they might require an alternative form of contact. She noted the civil cases were on hold awaiting the outcome of the criminal prosecutions and judicial review proceedings were pending. She said the work on the criminal cases would be at the Plaintiff's own expense. As a result she understood there was little active work that could be undertaken on the civil claims until these proceedings were concluded. She said they would be able to advise of the MDU's position regarding its assistance in respect of the civil claims when the outcome of the criminal prosecutions were known and she asked to be advised when the information was to hand.

13^th January 2000 The Plaintiff's solicitor, further to the letter of 15^th December 1999, enclosed a copy of a civil bill received by the Plaintiff from another litigant. They had asked for a full and complete statement from the plaintiff and for a copy of the medical file. When they received the documents they would forward them.

19^th January 2000 Dr. Dalby asked for confirmation that the letter of 5^th January 2000 had been received.

8^th March 2000 The Plaintiff's solicitor acknowledged the letter of 5^th January 2000. He said they were pleased at what they felt was a conciliatory tone of the letter. They were disposed to allow the matter to rest provided the MDU agreed that the withholding of proceedings against the MDU would not afford any defence based on the Statute of Limitations or laches. He said they did not accept that the work on the criminal cases would be at the Plaintiff's expense. He said there was necessary ongoing management of the civil cases and he asked if the MDU required to be kept appraised or would a report on inquiry be sufficient.

21^st March 2000 Dr. Dalby replied that their position was as set out in the letter of 5^th January and said it was a matter for the Plaintiff's solicitor to decide the extent to which he wished to continue investigating civil cases.

7^th April 2000 The Plaintiff's solicitor replied to that letter saying they had no alternative but to issue proceedings to prevent the MDU being able to raise a defence of laches or the Statute of Limitations and he also enquired about solicitors to accept service of proceedings.

10^th April 2000 Dr. Frances Szekely, Senior Medical Claims Handler, replied on behalf of the MDU. She indicated they were disappointed with the position taken as previous correspondence indicated the Plaintiff's solicitor was content to await the outcome of criminal proceedings. She asked if it was the intention to issue proceedings against the MDU in respect of their position on assisting the Plaintiff with the criminal proceedings. She confirmed in open correspondence that the MDU would not take any point on limitation in any subsequent proceedings issued on this matter. She asked for clarification.

18^th May 2000 The Plaintiff's solicitor reiterated that the liability of the MDU to the Plaintiff extended to indemnities in respect of the costs and expenses of defending civil proceedings and of the disciplinary proceedings, before the Medical Council and of criminal prosecutions and also indemnity in respect of liability of the Plaintiff for compensation costs or expenses incurred in the civil proceedings. He said they did not propose to litigate the issue of the MDU's liability at that time on the understanding that the MDU would not raise a defence of limitation or delay in respect of any of the identified claims. They did not accept the MDU's contention that they were entitled to defer assistance pending the outcome of criminal proceedings.

2^nd June 2000 Dr. Szekely replied on behalf of the MDU. She said the position of the MDU had been clearly stated on a number of previous occasions. With respect to civil claims they would not indemnify the Plaintiff for any legal costs incurred to date. They would only consider providing assistance if they were provided with full, frank and unrestricted co-operation by the Plaintiff. This would be direct co-operation and not through any third party. It would involve a disclosure of all materials relevant to the claims including documents photographs and video tapes. The Plaintiff would be required to give his full and open co-operation to any legal representative they appointed on his behalf. They were not of opinion that such co-operation had been forthcoming in the past and they would require immediate direct contact from the plaintiff. She said they should note that in the event of it being decided that the circumstances which gave rise to the claims fell outside the provision of ordinary medical services, they would normally withdraw their assistance and not indemnify members for damages which would arise as a result of such claims. She asked that they would acquaint the Plaintiff with the contents of the letter without delay. If the plaintiff's solicitor was instructed to issue proceedings, she asked to be advised so they might nominate solicitors to accept service.

24^th January 2001 The Plaintiff's solicitor said they had been instructed to commence proceedings against the MDU and setting out the headings of such claims.

13^th February 2001 The plenary summons in this matter was served on the MDU's solicitors Messrs Arthur Cox & Co.

Correspondence relating to particulars and discovery ensued.

14^th June 2001 Messrs Arthur Cox wrote to the Plaintiff's solicitor referring to correspondence regarding requests for assistance made to the MDU on behalf of the Plaintiff. They said the MDU's position was clearly stated on a number of occasions in previous correspondence. Before the Plaintiff's request for assistance could properly be considered by the Board of Management direct personal co-operation and instructions of the Plaintiff with the MDU was essential. He said unfortunately such

co-operation and instructions had not been forthcoming to date. Entirely without prejudice to its powers and entitlements under its Memorandum and Articles of Association and without prejudice to its defence of the proceedings already instituted, the MDU was prepared to offer the Plaintiff a further opportunity to co-operate in the matter and to put his clients request for assistance before the Board of Management. The appropriate committee of the Board of Management would consider the Plaintiff's request at its meeting on 17^th July 2001 with its recommendation being put before the Board for approval at its meeting on 24^th July 2001. They asked that the following would be provided to Dr. Julia Nield, the Head of Claims Handling, in advance of the committee meeting and no later than 13^th July 2001 as follows

1. The Plaintiff's personal instructions as to the matters giving rise to the various proceedings in respect of which assistance was sought.

2. The present status of the criminal proceedings

3. Whether any civil claims have been successful

4. The total number of civil claims now outstanding

5. The status of any disciplinary proceedings

6. Confirmation of full and unrestricted access by the MDU to the Plaintiff.

She said even if the above was not forthcoming it was still intended to put the matter before the Board of Management on 24^th July 2001 but it would be in the Plaintiff's interests to provide the information as requested. If there was any additional matter which he wished to draw attention to, it would be put before the Board.

25^th June, 2001 The Plaintiff's solicitor replied to Messrs. Arthur Cox to say the letter of 14^th June, 2001, was unusual in that it ignored the existence of litigation and that it was a device in that litigation. He alleged that reconsideration of their position could only be regarded as tainted by their own concerns in the present litigation. He said it was scandalous to assert the plaintiff's co-operation and instructions were not forthcoming. When they said the plaintiff was willing to travel to England to meet the MDU's representatives they rejected the offer. As to the six items listed he said the MDU had been given full particulars of or co-operation in the same. He confirmed there was no change in this status of the criminal proceedings and disciplinary proceedings and no civil claim had succeeded.

3^rd July, 2001. Messrs Arthur Cox replied saying it was clear no useful purpose could be served by further correspondence but rejected the allegations in a letter. They said the plaintiff's request for assistance would be considered at the appropriate committee of the Board of Management on 17^th July, 2001 and its recommendations put before the Board on 24^th July. The decision would be communicated.

5^th July, 2001 The plaintiff's solicitor acknowledged receipt and made further allegations.

1^st August, 2001 Messrs Arthur Cox wrote to the plaintiff's solicitors to say the Board of Management on 24^th July, 2001, adopted the recommendation of the Advisory Management Committee made on 18^th July, 2001, that the plaintiff be not assisted with his case.

It can be seen from this correspondence that the plaintiff never made personal contact with the MDU to give instructions or with Messrs McCann Fitzgerald, despite that being a key requirement of the MDU. Requests for the plaintiff to make personal contact and to give personal instructions were mentioned in the letter to the plaintiff from Messrs McCann Fitzgerald, dated 22^nd August, 1995, (to which no reply was received) and thereafter to the plaintiff's solicitor in letters dated 8^th November, 1995, 7^th February, 1996, 14^th February, 1996, 15^th March, 1996, 29^th January, 1997, 29^th April, 1997, 25^th July, 1997, 5^th November 1999, and 2^nd June, 2000.

Much emphasis has been laid by the plaintiff that in the letter of 15^th December, 1999, the plaintiff's solicitor (having said he was at a complete loss to understand what the MDU meant when they said they required a personal approach from the plaintiff providing the necessary instructions) said if the MDU wished the plaintiff to attend its offices it could be arranged. In reply dated 5^th January, 2000, the MDU (Dr. Karen Dalby) said the request for direct contact was a requirement of the MDU when considering offering assistance. Her suggestion that they leave matters as they were for the moment was made in the context that her understanding was that little active work could be undertaken on the civil cases until the outcome of the criminal prosecution was known. She also said in due course they might require an alternative form of contact. In due course on 2^nd June, 2000, the MDU did require direct co-operation by the plaintiff and not through a third party. This was never forthcoming. There is not a single letter written by the plaintiff himself. The only communication from him was the authority signed by him on 9^th July, 1996, authorising his solicitor to make an application for discretionary assistance.

It is difficult to understand the attitude of the plaintiff's solicitor. How could a solicitor not understand what was meant by requiring a personal approach from the plaintiff to give necessary instructions? He was obviously aware at the very start (see letter of 31^st July, 1995) that it was not appropriate for his firm to take any steps because he mentions the plaintiff's "policy of insurance". It would be very normal in insurance cases that the insurance companies want to brief their own solicitor and counsel. Even though the MDU was not an insurance company it followed the same practice. It reacted promptly to that first letter by appointing Messrs McCann Fitzgerald as the solicitors to represent the plaintiff. But it never received direct instructions or co-operation from the plaintiff at any time. Also the plaintiff never received authority from the MDU to engage his own solicitor and counsel.

On behalf of the MDU evidence was given by Mr. David Eric Markham, an orthopaedic surgeon. He qualified in 1961 and became a member of the Medical Protection Society. In 1977 he was invited to join the council of the MDU and he moved his membership to the MDU. He said the MDU had been formed 125 years ago and it was always a discretionary mutual members' company. He was a member of the Cases Committee in 1977, he became the chairman in 1992 for five years, then he became vice chairman of the company and was then elected chairman and president in 2001 and he still holds those offices. When he was chairman of the Cases Committee it met once a month. Papers were circulated to 40 or 50 members who were across all specialities. He would have a briefing meeting for one hour before the meeting with the staff who were to present the cases. There would be 24 to 25 case summaries with additional papers. Some cases were straightforward and others clinically complex. It would be impossible to predict which cases would generate discussion. In this case there had been difficulty in getting to first base, namely getting basic information from the member. They needed records and correspondence. There had to be dialogue in full detail so that the committee could assess if the case merited assistance. They do not want contact through a third party. It has to be directly with a member unless there is a death. Even there they would insist on disclosure of all records. The MDU would regard steps taken on a member's behalf before there was recourse to the MDU, as a worry. The Articles state "take no step" (this is a reference to article 47 proviso 2). He said there was no summary judgment made. They look as hard as they can to see if they can assist and do not look to refuse assistance. They would not pay costs incurred here because they had no input into that solicitor. They would assist with the disciplinary body if the member co-operated and gave all the facts. It was normal protocol to instruct solicitors appropriate to those facts. The MDU orchestrate from beginning to end. Only by getting the right solicitor with competence in the field could they be doing their best for the member and for the membership as a whole.

There was the Cases Committee meeting on 15^th April, 1997, at which Mr. Markham was in the chair and Dr. Beresford was present. The case summary sets out the details of the correspondence and records the recommendation to the Board of Management as:

(a) do not pay legal costs to date,

(b) assist with IMC if member co-operates and gives full disclosure of the facts,

(c) if (b) not achieved, withdraw assistance,

(d) if assistance provided to do so with MDU appointed solicitors only and

(e) seek further information in relation to civil claims.

The decision of the Board of Management on 22^nd April, 1997, records that the Cases Committee recommendation be approved. Mr. Markham was present at the Board of Management meeting as a board member.

Between 1997 and 2000 there was a reform of the decision-making apparatus of the MDU. Two additional committees were set up, the Claims Management Committee (CMC) and the Advisory Management Committee (AMC). The old Cases Committee which met once a month had a very large caseload and was not able to process cases as quickly as the rules required. The new CMC met once a week and discussed clinical aspects. It would decide if further information was needed or if solicitors would be instructed. The AMC met once a week. It was a telephone committee and dealt with disciplinary and criminal matters. He said the plaintiff's case bridged both systems and was dealt with by the AMC. The Cases Committee continued but with a smaller number of complex cases.

There was an AMC meeting on 31^st May, 2000. (This is the one to which the plaintiff objected because he had not been notified. This was after the plaintiff threatened to sue the MDU and the letter of 18^th May 2000 from the plaintiff's solicitor setting out what indemnity he required.)

There was a case summary. It was not considered in isolation, but with the earlier case summary. The whole matter was revisited that the member had not co-operated. They were taken through the facts of the case with reference to the previous committee. He said there was discussion and Dr. Szekely presented the case. The recommendation of the AMC to the Board of Management was:

(a) do not assist with civil claim/criminal charges,

(b) do not assist with legal costs to date and

(c) inform member's solicitor that MDU assistance cannot be considered unless full details are provided.

Mr. Markham said that paragraph (c) left the door open if full details were provided. Dr. Szekely's letter of 2^nd June, 2000 set out their concern that their member would know and that they were saying please ensure that the plaintiff knows what is required of him.

The recommendation of the AMC of 31^st May, 2000, was approved by the Board of Management meeting on 27^th June, 2000. Mr. Markham was present.

In cross examination following a weekend interval Mr. Markham said he could not say if he was present at the AMC meeting on 31^st May 2000.

When this aspect was revisited the next day he was asked how he could give evidence about what happened at a meeting he had not attended. Mr. Markham said he could now say he had chaired the AMC meeting on 31^st May 2000. He had had time to reflect and he could assure the court he had chaired the meeting.

He was criticised strongly by counsel for the defence, however I am satisfied he gave his evidence in good faith and to the best of his ability and I accept his explanation.

The next meeting of the AMC in relation to this matter was the 18^th July, 2001. It was noted that proceedings had been served on 19^th February, 2001, against the MDU and that the MDU had recently written to the plaintiff's solicitors requesting information and the deadline for receipt of this information was 13^th July, 2001. The reason for the reference was to ask the AMC to consider the plaintiff's request for assistance in the light of the above and any response received. Jill Harding presented the background detail. In the summary it is recorded that when asked if there was any reason why the plaintiff could not provide instructions personally, Jill Harding replied that the plaintiff had recently attended a conference with counsel on a case with which he was being assisted by the MDU. The AMC recommendation to the Board of Management was not to assist.

The matter was considered by the Chairman's Committee on 24^th July, 2001. This committee had delegated authority from the Board of Management to review all cases from the AMC. It could approve and send on to the Board or could send back to the AMC. It was another check. It vets and filters and then passes on to the Board matters for final consideration.

The Board of Management met on 18^th September, 2001, and accepted the recommendation. Mr. Markham was present. He said he had not seen the letter of 23^rd July, 1997 concerning a possible compromise of the cases but he said it was irrelevant. The plaintiff had never complied with their requests.

He said the MDU had no pecuniary interest in the outcome of the disciplinary proceedings and he denied there was any conflict of interest. He said a solicitor who is instructed, when giving an opinion in an individual case, would not take into consideration the membership as a whole.

Dr. Beresford who was a member of the Medical Secretariat from 1987 to 1999, went through the correspondence he had with the plaintiff's solicitor. He confirmed that he prepared a written summary to place before the Cases Committee on 15^th April, 1997. He was not present at the meeting of the Board of Management. He said that after receiving the letter of 7^th May, 1997, threatening proceedings against the MDU he passed the correspondence to his manager as he could not deal with it.

He accepted that there was a six month delay in replying to the plaintiff's solicitor's letter of the 9^th July, 1996. But he said in fairness, the point that the MDU should be responsible for the period of delay was put to the Committee. He also said to the Committee that the plaintiff wanted his own lawyers to continue.

Dr. Cathy James, also a medical doctor, joined the MDU in 1987. She wrote the initiating correspondence to the plaintiff to establish contact with him. There had been several previous contacts with the plaintiff. One was a medical council enquiry. The plaintiff had initiated contact personally. The MDU instructed solicitors in Ireland to assist him. There was communication directly with the plaintiff who was assisted in drafting a reply to the medical council, who took it no further. She went through the correspondence she had in this matter. She said Melissa Hackett was a non medical claims handler who wrote the letter of 25^th October, 1995, after discussing the case with her.

She (Dr. James) next became involved as Head of Case Decisions at the AMC meeting of 3^rd May, 2000. She participated in that decision. There was full discussion before the recommendation. She said co-operation is essential. It is first base. She was also at the AMC meeting on 18^th July, 2001, at which Jill Harding presented the case. She said the plaintiff had applied in June, 2001, for assistance in another matter. He gave clinical details and co-operation. He was assisted in the usual way. A formal decision was not required. He had also attended a conference with counsel in relation to another claim. There were two existing matters in which he was co-operating fully.

Regarding the decision of 18^th July, 2001, she said they wished to look again notwithstanding litigation. She said litigation is not a bar to giving legal assistance. It was not the motivating factor. She refuted the suggestion that there was a conflict of interest for solicitors appointed by the MDU. She said they are there for the benefit of the member involved. Their sole duty is to assist the member with that matter.

Dr. Joseph Smith, a consultant urologist joined the council of the MDU in 1969. He as a member of the council from 1969 to 1987. In 1987/88 he chaired the Cases Committee. From 1988 to 1992 he was Treasurer. He became a member of the Board of Management in 1990, vice-president in 1996 and chair of the Board of Management and president of the MDU from 1997 to 2001. Now Mr. Markham is chair and president. At the board meeting on 18^th July, 2001, he retired and
Mr. Markham took over. He could not see any conflict of interest in the appointment of solicitors and counsel by the MDU. He said they are doctors for doctors and lean over backwards to give assistance.

In my opinion what is provided by the MDU under its Memorandum and Articles of Association and what the plaintiff was entitled to was discretionary assistance. As a first step the MDU required direct access to them by the plaintiff and full co-operation. This was the first base referred to by MDU and the plaintiff never got there. The Department of Health accepted the MDU as the preferred supplier by agreement of 12^th June, 1996, knowing of the absolute discretion and knowing it was not an insurance company.

It was submitted that the decision of April, 1997, was not taken in good faith. As I have already held the principles of natural and constitutional justice do not apply. The decision of April, 1997, was taken first by the AMC on 15^th April and their recommendation was approved by the Board of Management on 22^nd April.

The failure of Dr. Beresford to reply to correspondence for six months between July, 1996, and 29^th January, 1997, can certainly be criticised but it is also to be noted that the plaintiff's solicitor sent no reminder until 4^th January, 1997. No doubt if he had, six months would not have elapsed. The delay in replying is not evidence of bad faith. Dr. Beresford did make the submissions to the AMC he promised. It was the AMC not Dr. Beresford who reached the decision. The recommendation of 15^th April, and decision of 22^nd April, was not arbitrary because it required assistance to be provided by their appointed solicitor and counsel. In this they have been completely consistent with their practice. The plaintiff did not have any right of choice of his own solicitor and counsel.

The defence alleges in written submissions that "there may be a conflict of interest involved because the defendants might attempt to use an adverse result in the disciplinary proceedings for the purpose of evading their liability to indemnify the civil proceedings and lawyers retained by the defendants would owe a duty to their employer which might be in conflict with that owed to the member".

I reject this contention completely. I have no doubt that the solicitors and counsel appointed by the MDU would act for the benefit of the client they are representing not for the benefit of the MDU, as indeed Dr. James said. Mr. Markham specifically rejected the suggestion that the MDU had a pecuniary interest in the outcome of the disciplinary proceedings. I fully accept that this is indeed the case.

The plaintiff's submissions in relation to the significance of the offer in the plaintiff's solicitor's letter of 15^th December, 1999, that a visit of Dr. Barry to the MDU's office could be arranged, has been blown out of all proportions. The MDU never resiled from its requirement that there must be a personal approach and co-operation by the plaintiff. The reply of Dr. Dalby of 5^th January, 2000, emphasised that direct contact is a requirement of the MDU when considering offering assistance. All she suggested was to leave matters on hold to await the outcome of the criminal proceedings. There was never any suggestion that a direct approach was no longer required. The letter of 2^nd June, 2000 from Dr. Szekely again required direct co-operation and not through a third party. There was no response to this until 24^th January, 2001, when the plaintiff's solicitors said they were instructed to sue the MDU.

Mr. Markham had no doubt that the letter of 15^th December, 1999, was drawn to the attention of the AMC. But whether it was or not, is neither here nor there. The subsequent action of the plaintiff in not making direct contact when required to do so by letter of 2^nd June, 2000 throws doubt on the genuineness of the offer to attend the MDU's offices.

The suggestion that the Board of the MDU could not meet to consider the situation when litigation was threatened without notifying the defendant in advance, bears no basis in reality. The plaintiff's solicitor threatened legal proceedings on 7^th April, 2000. In answer to a request for clarification, he sets out in a letter of 18^th May, 2000, all the indemnities which were required but said they did not propose to litigate at that time on the basis that the MDU would not raise a defence of the Statute of Limitations or delay in respect of any of the identified claims. Of course the Board of Management were entitled to consider the matter without first notifying the plaintiff. They did consider it and the letter from Dr. Szekely of 2^nd June, 2000, fairly sets out the decision of the Board of Management. The decision is totally consistent with the attitude of the MDU all along: namely requiring direct contact and full co-operation. There was nothing unfair in the way the Board of Management reached their decision.

The decision of 18^th July, 2001 which has been categorised by the plaintiff as "a device in litigation" adds nothing to the situation. It is totally consistent with everything that had gone before. The reason given by Dr. James for holding the AMC meeting on 18^th July, 2001 was to look again at the matter notwithstanding the litigation, because the plaintiff had applied in June, 2001 for assistance in another matter and had co-operated and was given assistance in the usual way. As it turned out the decision was totally consistent with the previous decisions.

There is no evidence that the decision was tainted by the MDU's concerns with litigation, was made for their own benefit and was affected by bias. Nothing changed as a result of this decision and no advantage was obtained. If this decision had not been made, the outcome of the litigation would be identical.

The plaintiff has failed to prove his case. The action is dismissed.