Ahern and Others v Minister for Agriculture and Others

• Jurisdiction: Ireland
• Judge: Miss. Justice Laffoy
• Judgment Date: 11 July 2008
• Neutral Citation: [2008] IEHC 286
• Court: High Court
• Date: 11 July 2008

[2008] IEHC 286

THE HIGH COURT

[No. 4509P/1990]

Ahern & Ors v Min for Agriculture & Ors

BETWEEN

AND

JOHN AHERN AND OTHERS

PLAINTIFFS

AND

THE MINISTER FOR AGRICULTURE AND FOOD, IRELAND AND THE ATTORNEY GENERAL

DEFENDANTS

RSC O.7 r3(1)

MULHEIR & ANOR v GANNON UNREP HIGH LAFFOY 17.7.2006 2006/42/8892

IN RE GALDAN PROPERTIES LTD (IN LIQ) 1988 1 IR 213

HUGHES v HUGHES 1958 P 224

GAMLEN CHEMICAL COMPANY v ROCHEM LTD 1980 1 ALL ER 1049

HESLOP v METCALFE 1837 3 MY & C 183

DUFF v MIN AGRICULTURE & FOOD 1997 2 IR 22

SOLICITOR

Costs

Application for client file to be delivered to new solicitors - Application for deferral of payment of costs to former solicitors - Undertaking from solicitors on record to pay agreed costs - Whether client discharged retainer - Entitlement to recover costs - Contract - Jurisdiction of court - Solicitors' lien - Ability of client to prosecute claim - Mulheir v Gannon [2006] IEHC 274 (Unrep, Laffoy J, 17/7/2006), In re Galdan Properties Ltd [1988] 1 IR 213, Hughes v Hughes [1958] P 224, Gamlen Chemical Company v Rochem Ltd [1980] 1 All ER 1041, Heslop v Metcalf (1837) 3 My & G 183 and Duff v Minister for Agriculture and Food (No 2) [1997] 2 IR 22 considered - Rules of the Superior Courts 1986 (SI 15/1986), O 7 - Delivery of file ordered with undertaking by solicitors on record to hold files subject to former solicitor's lien (1990/4509P - Laffoy J - 11/7/2008) [2008] IEHC 286

Ahern v Minister for Agriculture and Food

Facts: The client plaintiff sought an order that a solicitors firm deliver files to a different firm currently on record for him. He also sought an order that the payment of the taxed costs and outlay of the solicitors be deferred to the outcome of the claim subject to an undertaking to be given. The proceedings were brought by 98 plaintiffs seeking damages and declarations arising of the implementation of the milk quota regime prior to 1990.

Held by Laffoy J. that an order would be made directing the former solicitors to deliver to the current solicitors an undertaking in writing to hold files subject to a lien and to return them on the conclusion of the plaintiffs’ claim in the proceedings. The delivery of the files would be without prejudice to the claim for costs against the client. The former solicitor’s entitlement to recover costs from the client was a matter of contract. The application for the deferral of the payment of such costs was misconceived.

Reporter: E.F.

1 Miss. Justice Laffoy delivered on the 11th day of July, 2008 .

2 The applicant on this application, James Kavanagh, is the fortieth named plaintiff in these proceedings. I will refer to him as "the client".

3 On the notice of motion initiating this application the client seeks an order that Alan Donnelly & Co., referred to as his former solicitors, do deliver forthwith his files to David McAvin and Co., described as his current solicitors of record. He also seeks an order that payment of the taxed costs and outlay of the former solicitors "be deferred to the successful outcome of" his claim, subject to an undertaking being given by his current solicitors "to discharge the same following that outcome".

4 These proceedings, which were commenced in 1990, were brought by 98 individual plaintiffs seeking declarations and damages arising out of the implementation of the milk quota regime prior to 1990. The client was originally represented by Lavelle Coleman solicitors. In 1997 the former solicitors came on record for him. The uncontradicted evidence of Andrew J. O'Donnelly, a partner in the former solicitors firm, in an affidavit sworn by him on 24 ^th June, 2008, is that at that time the client paid a sum of IR£2, 000.00, of which IR£1, 200.00 was paid to Lavelle Coleman to discharge their costs and outlay and the balance of IR£800.00 was retained by the former solicitors as their retainer. The former solicitors continued to act for the client and remained on record in the proceedings until April, 2008.

5 As regards the client's claim in the proceedings, a preliminary issue between the client, on the one hand, and the defendants on the other hand was listed for hearing on 18 ^th April, 2008. On 14 ^th April, 2008, the former solicitors were given leave by the Court to issue a notice of motion returnable for 17 April, 2008 seeking an order permitting them to come off record on behalf of the client and another of the plaintiffs for whom they acted. On 17 ^th April, 2008, there being proof of service on the client, that application was heard as regards the client. It was grounded on an affidavit of Patrick Cosgrave, a partner in the former solicitors' firm. The ground on which the order to come off record was sought was put as follows in that affidavit:-

"I say and believe that unfortunately, notwithstanding the fact that this office has been acting on behalf of the thirteenth and fortieth named plaintiffs in these proceedings for a considerable number of years, relations between the parties have irretrievably broken down subsequent to a detailed consultation that took place on Friday last. While I have been in communication with my clients subsequent to the said consultation, I am absolutely satisfied that the unfortunate state of affairs that now exists is such that our clients no longer wish to retain the services of Alan Donnelly & Co., Solicitors, to act on their behalf in respect of these proceedings."

6 The client did not file any affidavit in response to that affidavit and there was no appearance by or on behalf of the client when the application was heard. An order was made in the terms sought in relation to the client. The Court had jurisdiction to make that order under Order 7, Rule 3(1) of the Rules of the Superior Courts, 1986.

7 On the day following the making of that order, the current solicitors appeared and informed the Court that they were coming on record for the client. The hearing of the preliminary issue did not proceed. It is intended that it will be given a date for hearing on 29 ^th July, 2008.

8 The current application is grounded on the affidavit of the client sworn on 5 ^thJune, 2008, which, apart from containing some comments in relation to advice received by the client which, in my view, should not have been included, contained very little else of relevance except that it exhibited a letter dated 29 ^th May, 2008 from the former solicitors. In that letter the former solicitors intimated that they were not prepared to defer payment of their costs and outlay pending the determination of the proceedings. They pointed out that, when they took over the file, the previous solicitors' costs had to be discharged. They also referred to the Law Society's Practice Direction in relation to transferring files to other solicitors, although that document was not invoked in the submissions made to the Court on this application. The client averred that he had not received any bill for legal costs from the former solicitor nor any fee note of counsel for payment.

9 Mr. Donnelly's affidavit to which I have referred earlier was made in response to this application. Mr. Donnelly averred that the client's file and papers had been submitted to a cost drawer for the purpose of having a solicitor and client bill of costs drawn. It was averred that the estimate of...