From the Dublin Daily Express, Tuesday 11 December 1917:

“£2000 for Breach of Promise: Dublin action settled at Nisi Prius

Yesterday before the Lord Chief Justice the case of Nita Martin and Daniel Kirk MacFarren was mentioned for the purpose of making a consent a rule of court. The action was brought by a widow whose residence was given as Lincoln Place, Dublin, to recover damages from the defendant, a manufacturer, of the Rosebank Weaving Company, Crumlin Road Belfast and residing at Gardiner Villas, Whitehead County Antrim for breach of promise of marriage.

Mr Moriarty, instructed by Messrs C & H Jefferson, said that he appeared for the plaintiff, who had only recently divorced her husband. The defendant was a very successful businessman in Belfast. The case had been settled upon terms of the defendant agreeing to pay the plaintiff £2,000 in discharge of all her claim including costs .

Counsel said that, as his Lordship could see, when the defendant entered into the realms of Cupid he was not as successful as he was at business.

The Lord Chief Justice – You cannot say that of the plaintiff (laughter)

Mr Moriarty –  I cannot, my Lord. There are other matters mentioned in the consent, which your Lordship is asked to make a rule of court. Mr Anderson, instructed by Messrs. Carson and McDowell, is engaged for the defendant, but I don’t suppose he wishes to say anything more in the matter.

The Lord Chief Justice – Well, you seem to have acquired suitable relief for a broken heart.

Mr Moriarty – I dare say the sum of £2,000 is some small consolation to the lady and I also dare say that the defendant will not again tread the primrose path of dalliance (laughter).

The Lord Chief Justice made the consent a rule of court.”

Unfortunately for the witty Mr JF Moriarty, this was not the end of the matter.

The following Friday, the Irish Independent reported as follows:

“Judge and Conduct of Counsel

The very grave matter to which the Lord Chief Justice alluded in the Niisi Prius Court on Wednesday was fully unfolded in the Court yesterday.  It consisted of a statement by his Lordship that Mr Moriarty, who had been acting for another council for the plaintiff in a case on Monday, had moved that a consent be made a rule of court although the agreement provided that the defendant’s counsel should move in the matter; that contrary to this agreement Mr Moriarty had had the terms ruled in open Court in the presence of the Press and in the absence of the original consent…

THE CASE STATED

[T]he Lord Chief Justice… said when Mr Moriarty at the rising of the court on Mon. at 4 p.m. made an application, to which his lordship acceded,  to have a consent made a rule of court it had occurred to him that it was rather peculiar, having regard to the nature of the case, that the terms of the consent and the names of the parties were mentioned, and that several gentlemen of the Press were in attendance at that time of day.  The particulars appeared in the Press next morning and he was then informed by Mr Andrews that Mr Moriarty had made the application in violation of the understanding between the parties. It was the invariable practice of the Court that when a consent of this kind was sought to be made a rule of court the counsel moving should be in possession of the original document.  His lordship had ascertained that at no time was Mr Moriarty in possession of the original consent and therefore the application was irregular.  His lordship was not informed that Mr Moriarty had the original consent but he assumed that was so as in the ordinary course of practice.  The original consent contained a paragraph that the application should be made not by the plaintiff but by the defendant.  Mr Moriarty failed to draw his attention to that condition in the consent.   

RIGHT TO RESCIND

His lordship had also ascertained that the Associate of the Court had called Mr Moriarty’s attention to the provision in the consent that the application should be made by counsel for the other side and that Mr Moriarty had replied that he was going to make the application because he intended to have publicity in the Press.  These were the facts and before he made any comment he would hear Mr Moriarty.    His lordship wished to know if Mr Andrews would make any application on behalf of his client and Mr Andrews replied that the amount payable under the consent was far greater than would conceivably be awarded by a jury and though satisfied he had the right to have the consent rescinded, neither his client nor his solicitors desired to make an irregularity for which the plaintiff was not responsible a ground for rescinding the agreement. The Lord Chief Justice said he did not think there was any court that would not set aside the agreement if asked by the defendant to do so.

MR MORIARTY’S EXPLANATION

Mr Moriarty said he was only acting as locum tenens for another barrister, Mr Joseph O’Connor, and the brief had been handed to him only at 3pm on Monday.  He was told that the plaintiff was anxious that the terms of consent should be mentioned in court and when he read the consent he saw there was no provision against doing so.  He asked Mr Andrews when he was going to move in the matter and Mr Andrews refused to tell him. ‘ I take it that you intend to move it behind my back?’ said Mr Moriarty.  ‘You can take it that way if you like’ said Mr Andrews.  He went down to the Associate, told him what had occurred and was informed that the time to move was at the rising of the Court.  He subsequently met Mr Andrews in the gangway and said that if he did not move in the matter he would do so. At the rising of the Court he looked around and as Mr Andrews was not there,  he took it to mean that he was deliberately remaining away so that he might, when the plaintiff’s counsel was away, up and move the consent.  That being so, he moved it. He had no intention of concealing from his lordship that the consent was to be moved by the defendant. There was no provision in the consent against publication.

The lady was a humble woman, and was entitled to as much consideration as the wealthy defendant. She was anxious her friends should know she had succeeded and that the case was not settled for £5 or £50.  He had acted in the way he thought right and it was possible he was wrong in what he did.  If what he had done met his lordship’s censure no one would regret it more, as  nothing would be more abhorrent to him than to break any rule of the Bar or etiquette of the court. During the 10 years he had been at the Bar no judge or barrister had ever made any charge against him of anything approaching impropriety of conduct.

MR ANDREWS’ VERSION

Mr Andrews said he was instructed by his solicitors that as the consent was entered into at the object of avoiding publicity it should be handed in by the defendant’s counsel without reading its terms. Having regard to the terms of the consent, he was surprised when Mr Moriarty approached him in the Law Library regarding the matter. He inquired how it was that Mr Moriarty was interested, and was informed that he received a brief in place of Mr Joseph O’Connor who had been previous counsel. Mr Moriarty asked him when he would make the application and he replied he could not then say.  The time at which it should be made was, he thought, purely a matter for himself. Mr Moriarty expressed his indignation that one member of the Bar should treat another in this way and to deprive him of his brief and fee.  He replied that Mr Moriarty’s relation with this solicitor would, he was certain, make it unnecessary to return brief or fee.  He asked Mr Moriarty directly to tell was there any reason why he wanted to appear in the motion other than to advertise the terms of the settlement and he said he would see that it was properly published.

EMPHATIC CONTRADICTION

Subsequently at 3:10 p.m., he met Mr Moriarty in the gangway and, in reply to his inquiry as to the case at hearing, Mr Moriarty said the two speeches of Counsel would take at least an hour.  He left and went to the Library. The full significance of the reply became apparent to him afterwards.  He contradicted emphatically the statement that Mr Moriarty informed him the time for making the application was at the rising of the Court and that if he did not make it, Mr Moriarty would make it.

At 4 o’clock Mr Moriarty’s solicitor’s agent came to him and asked him for the original consent for the Associate, as Mr Moriarty had made the application at the rising of the Court.  He was dumbfounded and refused to hand over the consent and as his lordship had risen he was unable to deal with the matter as he would have wished. The result was that the provisions of the consent were published broadcast, and all the papers, with one exception, reported that Mr Moriarty stated that he (Mr Andrews) was engaged for the defendant, but he did not suppose he wished to say anything more in the matter.

SOLICITOR EXONERATED

Continuing, Mr Andrews said his client’s solicitors Messrs Carson and McDowell, Belfast had spoken to Mr Jefferson, solicitor for the plaintiff who had stated that he gave no instructions to counsel to appear, that he simply wrote to his agent informing him of the settlement, and that the consent would be made a rule of court on his (Mr Andrews’s) application. He gladly acquitted Mr Jefferson of responsibility.  He had himself been put in a position of embarrassment with his client and solicitors whose wishes he had failed to carry out… 

Mr Moriarty said as far as he knew there was only one reporter in court when the application was made and he had no communication with any reporter.  The report was accurate but he thought he did not mention that Mr Andrews was instructed by Messrs. Carson and McDowell.

“EXCEEDINGLY INDISCREET’

The Lord Chief Justice said the conflict of recollection between counsel might, perhaps, be investigated elsewhere. The established and universal practice was to hand in the original consent when making the application.  He thought Mr Moriarty’s action, to say the least, exceedingly indiscreet.  He could not understand how a professional gentleman of his experience could have thought it was consistent with his duty to omit all reference to that important provision in the clause.  The judges were largely dependent on the good faith of the Bar; he was proud to be able to say that confidence was seldom abused; he thought it was abused on this occasion.  

It was most painful to have to deal with this matter.  Mr Moriarty was a gentleman of standing and position. While at the Bar and since he came to the bench his lordship had never had the slightest occasion to criticise in any way his conduct, which was always that of a gentleman and a barrister. The fact that he was on that day acting for another counsel was largely responsible for what had occurred. He accepted the consent moved by Mr Andrews and made it a rule of Court.”

It can indeed be dangerous to accept instructions at short notice, but the shortness of the notice in this case begs its own question – given that Mr Moriarty had not previously acted for the plaintiff, where did he get his information about the importance to her of the settlement being made public? His instructing solicitor was quite happy, after all, for Mr Andrews to move the application. 

Did Mr Moriarty behave as he did because he was anxious to secure a fee, because of personal animosity towards Mr Andrews, or because he had some personal acquaintance with the plaintiff? 

If Lord Chief Justice Molony had desired to tease out the matter further, he might profitably have asked Mr Moriarty’s absent friend, the barrister who negotiated the settlement, Mr Joseph O’Connor, as to his discussions – or lack thereof – with Mr Moriarty regarding his client!

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