Boulting v Condon
| Jurisdiction | Ireland |
| Judge | Kearns P. |
| Judgment Date | 31 July 2015 |
| Neutral Citation | [2015] IEHC 503 |
| Docket Number | [2014 No. 106/SA] |
| Court | High Court |
| Date | 31 July 2015 |
IN THE MATTER OF THE ESTATE OF JENNIFER MAUD ELINOR DAVIDSON, DECEASED, LATE OF ARDSILLA, DELGANY IN THE COUNTY OF WICKLOW
IN THE MATTER OF THE ESTATE OF JAMES NORRIS GODDARD DAVIDSON, LATE OF DONARD DEMENSE, DONARD IN THE COUNTY OF WICKLOW, RETIRED FILM PRODUCER
[2015] IEHC 503
[2014 No. 106/SA]
THE HIGH COURT
Wills & Probate – Contempt of Court – Practice & Procedure – O.42, r.7 of the Rules of the Superior Courts – Whether order for committal to prison justified
Facts: The applicant sought an order for attachment and committal of the respondent to the prison for failing to comply with an order of the Court that required the respondent to pay a certain amount of money to the applicant in relation to the administration of two estates for which the services of the respondent were availed.
Ms. Justice Kearns P. granted an order for the committal of the respondent to the prison until he would purge his contempt by paying the required amount of money to the applicant in terms of the order of the Court. The Court in consonance with the principles laid down in Laois County Council v. Hanrahan [2014] 3 JIC 1406 held that the imposition of punishment in civil cases would not be ordered unless there was a clear vindication of the orders of the Court demonstrated by the conduct of the respondent and there must be an involvement of public interest. The Court found that the conduct of the respondent by seeking almost 20 adjournments and making blatant lies would seriously injure the trust that the public had in the judiciary and hence, the respondent must be punished for defying the order of the Court and it would be coercive punishment.
This is an application for attachment and committal of the respondent solicitor for failing to comply with an order of this Court made on 18th May, 2015 that he pay over the sum of €23,000 to the applicant which he had been holding along with other monies in respect of fees allegedly due for work connected to the administration of two estates.
The applicant is the executor of the last will and testament of Ms. Jennifer Maud Eleanor Davidson made on 4th August, 1989 in respect of which probate issued on 26th April, 1994, and of the last will and testament of Mr. James Norris Goddard Davidson made on 31st August, 2004 in respect of which probate issued on 13th June, 2003. Ms. Davidson and Mr. Davidson were the applicant's aunt and uncle and passed away on 25th December, 1993 and 22nd April, 1998 respectively.
The respondent solicitor was instructed in relation to the administration of the two estates. However, in or about November 2007 the applicant instructed Mr. Joseph M. Bowe of Beauchamps Solicitors to take over from the respondent, citing frustration with delays to the administration on the respondent's part. Issues subsequently arose in relation to the transfer of the various documents and assets. Mr. Bowe wrote to the respondent on 15th December, 2009 and enclosed two letters of authority signed by the applicant which terminated the retainer of the respondent in respect of both estates. The respondent was directed to deliver up to the office of Beauchamps Solicitors all files, papers, deeds, accounts, assets, and documents held in relation to the estates.
The applicant was not satisfied with certain aspects of the transfer of the file to Beauchamps and made a complaint to the Law Society in 2010. Ultimately, on 16th December, 2010 this Court directed that all relevant files be handed over by the respondent to Beauchamps. The respondent solicitor complied with this order but retained certain funds in relation to the estates as a result of certain undertakings he had provided. The applicant contended that these undertakings were given without his consent and therefore set about obtaining a statement of account from the respondent outlining all sums held by him on behalf of the estates and details of the various undertakings.
By notice of motion dated 24th July, 2014 the applicant sought an order directing the respondent to deliver an account of all monies or securities which the respondent had in his custody or control in relation to the estates and an order directing him to pay over all monies held in respect of the estates. The matter has since come before the Court on approximately twenty separate occasions.
On 3rd November, 2014 it was ordered that the respondent would, within one month, deliver to the applicant an account of all money or securities held in relation to the estate. When the matter came before the Court on 8th December, 2014 the Court was told that the statement provided was difficult to understand and the matter was adjourned to allow the respondent to clarify certain matters, particularly in respect of obligations outstanding to the Revenue Commissioners. On 20th January, 2015 an order was made directing the exchange of affidavits between the parties detailing communications and correspondence with Revenue over the previous six months in relation to the undertaking.
On 2nd February, 2015 the applicant informed the Court that a cheque had been handed over by the respondent in Court for the vast majority of the sum claimed. The respondent indicated that a sum had been retained in respect of fees and the matter was adjourned for one week. On 9th February, 2015 the Court was informed that a sum of €35,000 had been retained by the respondent in respect of fees which he claimed were due and owing and the applicant sought a compete breakdown of how this figure was arrived at. The respondent indicated that there would be no difficulty with this and the matter was adjourned peremptorily for 21 days to allow the respondent to furnish a detailed bill of costs.
On 2nd March the Court was informed that while the respondent had undertaken to provide a bill of costs, this undertaking was not complied with as Mr. Condon had been hospitalised in the intervening period. A further adjournment for a period of three weeks was grantedand it was directed that the respondent furnish a bill of costs to the applicant before the matter next came before the Court.
On 23rd March the Court was informed that no breakdown of the €35,000 charged by the respondent in respect of outstanding fees, over and above its previous fee notes which had been paid, had been provided to the applicant. The respondent had issued seven previous fee notes in connection with the administration of the estates totalling €88,732.50 which were discharged in full. Counsel for the respondent told the Court that a new legal costs accountant had been retained and was in the process of compiling the bill of costs but would require time to do so. The matter was adjourned to 13th April, 2015 by which time the Court indicated the bill should be furnished.
The applicant was eventually served with a bill of costs on the morning of 13th April and requested that the matter be adjourned to allow time to consider it. On 20th April the Court was informed that there was a dispute in relation to the fees and the matter was fixed for hearing on this point.
The matter was subsequently adjourned on three occasions before being heard on 18th May, 2015. On that date, after hearing submissions from both sides in relation to the level of fees and the nature of the work completed the Court directed that the respondent pay over the sum of €23,000 to the applicant within seven days with the option to either side to pursue legal proceedings in respect of any outstanding disputed balance. On 8th June, 2015 the Court was informed that the respondent had failed to comply with the order of the Court. The matter was adjourned for one week and the Court indicated that non-compliance with the order could have serious consequences for the respondent. It is important to record that the respondent did not plead inability to pay nor did he appeal the order of the Court or request any...
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