Carr v O'Gorman
| Jurisdiction | Ireland |
| Judge | Ms Justice Faherty |
| Judgment Date | 28 April 2017 |
| Neutral Citation | [2017] IEHC 302 |
| Docket Number | [2016 No. 239 SP] |
| Court | High Court |
| Date | 28 April 2017 |
[2017] IEHC 302
THE HIGH COURT
Faherty J.
[2016 No. 239 SP]
Professional Ethics & Regulations – Solicitor's possessory lien – Financial outlay – Practice of Court – Release of file
Facts: The plaintiff sought an order from the Court to the effect of directing the defendant/solicitor to return the plaintiff's file pursuant to execution of contract between the plaintiff and the defendant. The defendant claimed that he would return the file subject to the payment of his relevant expenses by the plaintiff. The plaintiff objected to that payment and argued that she was not liable to make such payment as the defendant had accepted the case on no foal no fee basis. The Law Society of Ireland had already made a determination in favour of the defendant and directed the plaintiff to pay the relevant expenses of the defendant.
Ms. Justice Faherty directed the defendant to release the plaintiff's file provided that the plaintiff's new solicitor would give an undertaking that they would include the defendant's costs, the specific outlay of money and other outlay as part of any settlement or award made by a Court and to furnish such sums to the defendant's firm as and when received by the plaintiff's new solicitors. The Court held that the solicitor's lien was subject to the practice of the Court in order to save the client's litigation from becoming catastrophic to him.
This matter comes before the Court by way of special summons which issued on 15th June, 2016. The plaintiff seeks the release of her personal injury file which is presently in the hands of the defendant. The background is set out below.
The plaintiff was involved in a road traffic accident on 29th January, 2009, following which she retained the services of Holmes O'Malley Sexton Solicitors and later retained Sweeney McGann Solicitors to take over her personal injury file from Holmes O'Malley Sexton.
On 5th December, 2011, the plaintiff made contact with the defendant's firm for the purposes of taking over her file from Sweeney McGann. The defendant duly accepted instructions from the plaintiff in respect of her personal injuries action.
On 3rd January, 2012, the defendant wrote to the plaintiff advising her of a proposed course of action to progress her personal injury proceedings, and additionally advising her in relation to other proceedings which, it appears, the plaintiff was contemplating against other individuals. The latter advises are not germane to the within proceedings.
Insofar as the defendant accepted instructions to take over the plaintiff's personal injury proceedings, he advised as follows:
‘Going back to the instructions that we have accepted from you ie the road traffic accident …, I confirm that I am taking this case on a ‘no foal no fee’ basis. In other words, you are not responsible for any of your legal costs. I did not make the application to PIAB so there is no charge for that. In short all of your legal costs will be recovered from Insurance Company and if that changes I will advise. However, as you may be aware, while I am telling you that costs I recover I will recover from the Insurance Company they are strictly speaking your costs and in that regard I must set out the basis upon those costs are being charged. The position is that they are being calculated on a time and complexity basis. I attach for your attention a brochure prepared by the Incorporated Law Society. This brochure sets out any questions you might have in relation to costs. In short in the event that there is a dispute in relation to a bill of costs then it can be decided by an independent authority called the Taxing Master. All of this should not in fact worry you overly by reason of the fact that I have stated to you that will not be responsible for any legal costs to this office. You should also be aware that in the unlikely event that you lose this case and it is hard to see that you would, you are exposed to costs of the Defendant which would be measured presumably on an equal basis or on a time basis. Again I don't see that you have anything to worry about in that regard but I am obliged to advise you of that position.’
Between January, 2012 and February, 2015, the defendant's firm acted for the plaintiff in respect of her personal injury litigation. On 1st August, 2012, the defendant was constrained to write to the plaintiff advising ‘Clearly you have lost confidence that this firm can represent you. We also have lost confidence in fact that we can properly represent you. In those circumstances, I attach herewith our bill of costs and would be grateful if you would please arrange to drop a bank draft into the office and collect the file’. This appears to have been in the context of issue having been taken by the plaintiff as to how her case was being handled. Thereafter the parties appear to have reconciled their differences.
On 24th November, 2014, Ms Audrey Browne of the defendant's firm wrote to the plaintiff in connection with certain instructions which had been given by the plaintiff to the defendant regarding her orthopaedic surgeon. Ms Browne referred to a communication which was received by the plaintiff from the orthopaedic surgeon in response to certain matters which had been raised by the plaintiff with him. The plaintiff was advised by Ms Browne of the potential delay in getting her personal injury action heard as a result. The plaintiff was also reminded of the defendant's request of 5th March, 2014 to be put in funds to the tune of €500, to take up the report of the said orthopaedic surgeon. The plaintiff's numerous correspondences to the effect that she would not be paying the requested contribution towards the medical report and to her belief that the defendant was obliged to pay for the reports and outlay was noted. The letter went on to state:
‘On 2nd day of October 2014 you were advised that if you were not willing to pay for the reports that we would apply to come off record. By letter dated 24th of October 2014 you made it very clear that you would not be paying for the reports.
In all the circumstances outlined above it appears from correspondence that the Solicitor Client relationship has irretrievably broken down and in those circumstances we feel that it would be appropriate for us to apply to come off record in relation to this accident.’
The plaintiff was advised to treat the letter as notice of the defendant's intention in this regard.
On 25th November, 2014, the plaintiff advised Ms Browne that she was not taking issue with the medical opinion but rather with what she alleged was a misrepresentation of a crucial fact in that opinion. Furthermore, she advised that nothing that had gone before in correspondence gave the defendant grounds to come off record. In a follow-on letter of 26th November, 2014, she repeated the alleged misrepresentation of her diagnosis in the medical opinion and advised that she would be dealing with this matter separately.
On 27th November, 2014, the plaintiff wrote to the defendant taking issue, inter alia, with Ms Browne's threat to come off record on the basis of the absence of an orthopaedic report, stating that there was ‘an abundance of orthopaedic reports’
By letter of the same date, Ms Browne advised:
‘We refer to the above matter and to my letter of 24th November 2014 advising you that we were applying to come off record in relation to the above matter. We have received a note the contents of various faxes. We note that you are anxious that we do not apply to come off record. You have stated that you believe that we can come to some accord.
As you are no doubt aware an amount of work has been expended on your file and we note from your file that you were surprised at how large the file was.
I discussed the matter directly with Dan O'Gorman and he has advised that if you are willing to pay the sum of €5,000 on account then, in those circumstances, we will not apply to come off record. Mr. O'Gorman is quite adamant that if the said €5,000 is not paid then I am to proceed with my Notice of Motion to come off record in relation to this matter.’
On 3rd December, 2014, the plaintiff wrote to the defendant taking issue, inter alia, with the delay in the progress of her case and requesting the defendant ‘to put this case in order’ and that ‘[a] contract is a contract’. The defendant's response of the same date noted that the plaintiff had ‘failed to address the issue of a contribution towards [her] costs in the sum of €5,000 plus VAT’ and that if the said sum was not received within seven days a motion to come off record in her personal injury action would issue.
On 5th December, 2014, the plaintiff requested the defendant to ‘PERFORM THE CONTRACT’ between them without further delay and to state what steps had been taken in furtherance of same, failing which the plaintiff would take legal proceedings. In relation to the request for €5,000 plus VAT, on 13th January, 2015, the plaintiff wrote to the defendant reminding him that that their contract was on the basis of ‘no foal no fee’.
It is common case that pursuant to a notice of motion dated 12th January 2015, the defendant applied to the High Court to come off record in relation to the plaintiff's personal injury proceedings. In the affidavit grounding the application to come off record, Ms Browne avers as follows:
‘I say … that … O'Gorman Solicitors have endeavoured to progress the proceedings but same has been greatly complicated by the fact that a number of medical issues which the Plaintiff has, not all of which of referable the subject matter of these proceedings.
However, during the course of 2014 I say that relations between Messrs. O'Gorman...
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