Cadden v Vesey
| Jurisdiction | Ireland |
| Judge | Mr. Justice William M. McKechnie |
| Judgment Date | 16 December 2016 |
| Neutral Citation | [2016] IESC 75 |
| Docket Number | [296/2011] |
| Court | Supreme Court |
| Date | 16 December 2016 |
[2016] IESC 75
THE SUPREME COURT
McKechnie J.
McKechnie J.
MacMenamin J.
Dunne J.
[296/2011]
Costs – Personal injury – Misconduct – Appellant seeking to appeal against an order directing the payment out to the notice party of the balance of party and party costs – Whether order was almost exclusively based on alleging various acts of misconduct or impropriety, or of dishonesty
Facts: The defendant/appellant, Mr Vesey, appealed to the Supreme Court against an order made in the High Court on the 7th June, 2011, directing the payment out to the notice party, Kent Carty Solicitors, of the balance of party and party costs then available, which had previously been recovered in personal injury proceedings. In addition, the judge, having earlier awarded both the plaintiff/respondent, Mr Cadden, and the notice party their costs against the defendant, measured the amounts thereof at €3,000.00, and €4,500.00, respectively, both inclusive of VAT. The appellant’s challenge to the High Court order was almost exclusively based on alleging various acts of misconduct or impropriety, or of dishonesty on the part of firms of solicitors, but more heavily directed towards the respondent to this appeal.
Held by McKechnie J that there was a very narrow, well defined and single issue for resolution. McKechnie J held that the issue was determined definitively against Mr Vesey. In such circumstances, and in the absence of any significant reasons as to why the normal rule should not apply, McKechnie J was satisfied that the High Court judge was perfectly within his jurisdiction in making the cost orders which he did. McKechnie J held that, if anything, the same could only be regarded as quite modest given the measured amount of the awards.
McKechnie J held that he would dismiss the appeal.
Appeal dismissed.
This is an appeal by Mr. Vesey against an order made in the High Court on the 7th June, 2011, directing the payment out to the notice party of the balance of party and party costs then available, which had previously been recovered in personal injury proceedings which I will come to in a moment. In addition, the learned judge, having earlier awarded both the plaintiff and the notice party their costs against the defendant, measured the amounts thereof at €3,000.00, and €4,500.00, respectively, both inclusive of VAT. To understand this appeal it is necessary to set out some of the background which stretches back some twenty years.
On the 9th September, 1996, Mr. Vesey (‘the defendant’ or ‘the appellant’) was involved in a road traffic accident on the Stillorgan Road. On the occasion in question his motor vehicle was stationary at traffic lights when a bus, the property of Bus Éireann, drove into the rear of his car. In the resulting proceedings, where liability was not in issue, the High Court, on the 10th November, 2000, awarded the plaintiff the total sum of IR£72,500.00, with the breakdown being:-
(i) General damages £30,000.00
(ii) Loss of earnings to date and into the future £35,000.00
(iii) Special damages £ 7,500.00
An order for costs was made in his favour, but by reason of two earlier adjournments the defendants in such proceedings were allowed all witness expenses incurred by them up to a particular date.
Being dissatisfied with this award, Bus Éireann served a Notice of Appeal to the Supreme Court, which gave its judgment on the 13th November, 2001 ( [2001] 4 I.R. 192). In his decision, with which the other members agreed, Hardiman J. recounted certain findings made by the trial judge which reflected his very strong views of the plaintiff's lack of integrity, in fact of his downright dishonesty in the evidence which he tendered before the trial court. In particular, the plaintiff's evidence relating to the disability and physical injuries allegedly suffered as a result of the accident, to his pre-accident medical condition and work history, and also as to the number and extent of his previous accidents, was wholly unsatisfactory and highly dubious. These findings were factually based and had not been sought to be disturbed by Mr. Vesey on appeal.
Having considered these findings, and in light of the several inconsistencies also highlighted in his judgment, Hardiman J. came to the conclusion that the award could not stand. In its place was substituted a total sum of IR£30,000.00, representing IR£15,000.00 for general damages, IR£7,500.00 for all loss of earnings and the same sum for special damages. Quite evidently, in light of these figures Bus Éireann had been successful on the appeal and, as would follow, was awarded its costs. However, the Court did not disturb the cost order made in the High Court.
Therefore the overall position on this point was that Mr. Vesey had his costs in the High Court, but Bus Éireann had in its favour witnesses' expenses in that court and the full costs of the appeal, all such costs to be taxed in default of agreement.
By mid-2006 both sets of costs had been taxed, with the amount of Mr. Vesey's party and party costs coming in at approximately €36,031.99, and those of Bus Éireann from both the High Court and the Supreme Court amounting to €18,755.44. In effect, therefore, there was a net balance in favour of Mr. Vesey of just over €17,000.00. It should be noted that the damages award was in Irish Pounds, whereas the costs were of course assessed in Euros.
In 1996, Mr. Vesey had retained Messrs. Kent Carty Solicitors to act on his behalf in the prosecution of his road traffic case. On the 27th May, 1999, that firm's retainer was withdrawn. They had thus acted in preparation for the trial and also when the case was first adjourned in January, 1999, but not on the second occasion, which was on the 9th June, 1999; in addition, as is evident from the actual trial dates, they were not engaged either at the time of the High Court hearing or for the appeal proceedings. The plaintiff in the instant proceedings, Mr. Fabian Cadden, Solicitor, had been retained in their place, most probably by the time of or at least very soon after the events next described. He was thus the instructed solicitor for both court hearings.
In order to obtain the relevant papers and files from Kent Carty, Messrs. Cann & Cadden, as the plaintiff was then entitled, gave that firm an undertaking dated the 4th June, 1999, in the following terms:-
‘(a) to substitute our undertaking for all the undertakings given by your firm on Mr. Vesey's behalf relative to this file subject to the availability of funds from the High Court award or settlement proceeds as appropriate;
(b) to discharge your tax bill as same shall be agreed by the defendants and plaintiff's cost accountants or the Taxing Master, same being apportioned between our respective firms. We confirm that first preference shall be given to the payment of your firm's bill (as taxed and agreed) from the net costs cheque and proceeds of the claim after the payment of the various undertakings to Bank of Ireland and the other parties, insofar as it relates to work done by your firm to date.’
On the same date, Mr. Vesey signed an Authority and Retainer which expressly authorised Mr. Cadden to give these precise undertakings, and which further provided that he, the client, ‘…will not discharge his Retainer as my solicitor in connection with the foregoing transaction unless and until I have procured from Messrs. Kent Carty, Solicitors, his effective release from the obligations imposed by such undertaking…’ Accordingly, as can be seen, the appellant agreed that he would take no steps whatsoever to discharge Mr. Cadden from acting as his solicitor until he had been released, inter alia, by Messrs. Kent Carty from the obligations specified in such undertaking. In addition, the undertaking to the Bank of Ireland should be noted.
By notice dated the 24th November, 2006, Mr. Vesey purported to serve a Notice of Discharge on Mr. Cadden. By way of response he was referred to the irrevocable undertaking above mentioned, and asked to confirm that such notice would be immediately withdrawn. Having had no reply to this request, the within plenary proceedings were instituted on the 30th November, 2006, in which the solicitor sought a variety of orders, some of which have been overtaken by subsequent events. In essence, he sought control over the party and party costs and also looked for court directions in respect of the appellant's final damages award, which was then standing in the solicitor's client account. The overall purpose of these orders was, first, to enable Mr. Cadden to discharge the cost undertaking given to Kent Carty, secondly, to discharge a further undertaking given to Bank of Ireland on behalf of Mr. Vesey which effectively he had responsibility for, and, thirdly, to collect fees due to him for the professional services rendered in the personal injury action, if such was achievable.
A Notice of Motion returnable for the 18th December, 2006, then issued, grounded upon an affidavit of the plaintiff. In addition, Mr. Cadden swore an affidavit of service in respect of the motion wherein he averred that the same had been served on two ladies who worked in a shop underneath the premises of Mr. McEniry, Solicitor, who it was believed represented the appellant at the time. The accuracy of this affidavit was put in issue by Mr. Vesey in 2010, and ever since has been a source of serious and constant agitation by him. The High Court made an order on the return date, the effect of which was to prohibit all persons with notice thereof from dissipating or otherwise dealing with...
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