Ahern & Ors -v- Minister for Agriculture and Food & Ors, [2008] IEHC 286 (2008)

Docket Number:1990 4509 P
Party Name:Ahern & Ors, Minister for Agriculture and Food & Ors
Judge:Laffoy J.

THE HIGH COURT1990 No. 4509P



THE MINISTER FOR AGRICULTURE AND FOOD, IRELAND AND THE ATTORNEY GENERALDEFENDANTSJudgment of Miss. Justice Laffoy delivered on the 11th day of July, 2008.

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

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".

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 24th 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.

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 18th April, 2008. On 14th April, 2008, the former solicitors were given leave by the Court to issue a notice of motion returnable for 17th 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 17th 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."

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.

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 29th July, 2008.

The current...

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