Carthy v Boylan
|Ms. Justice Máire Whelan
|14 July 2022
| IECA 145
|Court of Appeal (Ireland)
|Appeal Number: 2020/125
Appeal Number: 2020/125
COURT OF APPEAL
Terms of settlement – Enforcement – Alternative dispute resolution – Appellants appealing against orders made in aid of enforcement of terms of settlement – Whether the trial judge erred in making final orders where there were conflicts in the affidavit evidence before the court which were not capable of resolution without cross-examination
Facts: The appellants, Mr Boylan, Ms O’Connor, a partnership trading under the style and title of Michael Boylan Litigation Law Firm (MBLLF) and Ms McPhillips, appealed to the Court of Appeal against certain orders made by O’Connor J in the High Court on the 12th May, 2020. Same were made in aid of enforcement of terms of settlement of a compromise concluded under a voluntary alternative dispute resolution process executed by the parties on 26th July 2018 and which was received and filed in the High Court on 27th July 2018 and annexed to the court order. The appellants contended that the trial judge erred in making final orders where there were conflicts in the affidavit evidence before the court which were not capable of resolution without cross-examination. The appellants contended that the trial judge erred in finding Augustus Cullen Law (ACL) was not obliged to provide bills of costs to their former clients.
Held by Whelan J that the making of the final orders in the case required the judge to take a view on the facts; the facts he identified as material were not the subject of conflicting evidence placed before the court on affidavit. Insofar as an assertion was made that the appellants were engaged in “frustrating the process” under Clause 6(c) of the terms of settlement, Whelan J held that such assertions and any contested facts pertaining to same did not have a bearing on the orders which the court ultimately made as the judgment made clear. Whelan J held that the motion judge was required to make a determination as to whether the provisions and dispute resolution mechanism provided for in Clause 6(c) had arisen; it clearly had as he correctly found. Whelan J held that ACL were not required to provide bills of costs to the appellants as part of the costs resolution process pursuant to Clause 6 of the terms of settlement either pursuant to ACL’s obligations under s. 152 of the Legal Services Regulation Act 2015 and/or as an implied term of the settlement agreement; accordingly no basis had been identified for interfering with the terms of the orders made by the High Court judge.
Whelan J held that the respondents, Ms Carthy, Mr Cullen, Mr Hart and Mr Lavelle, a partnership trading under the style and title of ACL and Cullen Solicitors Services Ltd, were entitled to their costs in respect of the appeal to be ascertained in default of agreement.
JUDGMENT of Ms. Justice Máire Whelan delivered on the 14 th day of July 2022
. This is an appeal against certain orders made by Mr. Justice O'Connor in the High Court on the 12 th May, 2020. Same were made in aid of enforcement of terms of settlement of a compromise concluded under a voluntary alternative dispute resolution (ADR) process executed by the parties on 26 th July 2018 and which was received and filed in the High Court on 27 th July 2018 and annexed to the court order.
. The parties are solicitors. The respondents are partners in Augustus Cullen Law (“ACL”). The first and second appellants are former partners in ACL and have now established, operate and are partners in the third appellant solicitors' firm, Michael Boylan Litigation Law Firm (MBLLF). The fourth appellant was hitherto a solicitor employed in ACL and is now a partner in MBLLF.
. The partnership, employment and professional working relationship between ACL and the appellants came to an end in July 2018 when the first, second and fourth named appellants resigned from the firm. On the 19 th July, 2018 ACL instituted plenary proceedings seeking, inter alia, extensive injunctive reliefs against the appellants. By Notice of Motion, ACL further sought interlocutory orders against the appellants. The motion seeking interlocutory injunctions was returnable for hearing before the High Court on the 27 th July, 2018. Both sides were legally represented throughout the said process by solicitors and senior and junior counsel. Prior to the hearing the parties entered into a mediation process and an experienced mediator was appointed. On the 26 th July, 2018 the proceedings were compromised through the mechanism of their chosen voluntary ADR process and a formal settlement agreement was entered into and executed by the parties.
. In her grounding affidavit of the 10 th July, 2019 the first named respondent deposes at para 6-:
“… a mediation between all of the relevant parties took place in which Brian O'Moore SC acted as mediator. Late on the evening of 26 July 2018 a settlement was reached and recorded in writing between the parties.”
In his affidavit sworn on 31 st July, 2019 the first named appellant deposes at para. 3:-
“Ms. Carthy's affidavit describes the circumstances of the mediation and settlement of the dispute between the parties in July 2018. That settlement was recorded in an agreement which was received and filed in Court on 27 July 2018.”
. On 27 July 2018 the court was informed that a settlement of the litigation had been reached and, accordingly, granted orders by consent including an order giving “Liberty to apply to all parties for the purposes of enforcing the said settlement”.
. The Mediation Act, 2017 came into operation on 1 January 2018 as provided by Mediation Act, 2017 (Commencement) Order 2017 ( S.I. No. 591 of 2017). The Act was thus in force prior to the institution of the within proceedings on 19 th July, 2018. The Rules of the Superior Courts (Mediation) 2018 S.I. No.13 of 2017 came into operation on 22 January 2018.
. Under Grounds 1 and 2 of the Notice of Appeal the Appellants had contended, inter alia, that the order made on the 27 th July, 2018 striking out the proceedings had rendered the High Court functus officio in respect of all subsequent applications and that a provision granting “liberty to apply to enforce the terms of settlement” was not sufficient to confer jurisdiction on the High Court. They had further contended that the Mediation Act of 2017 did not confer jurisdiction on the High Court to make the orders as sought by the respondent.
. This Court was informed that Grounds 1 and 2 of the Notice of Appeal were not being pursued. The Court was further informed that Ground 7 did not now arise as the dispute between the parties regarding the quantum of the capital account of ACL had been resolved. This court makes no determination with regard to Grounds 1, 2 or 7 of the appellant's notice of appeal. The court was informed that the cross appeal was compromised between the parties on the basis that same would be struck out with no order as to costs.
. The mediated agreement made comprehensive provision for the transfer of particular files pertaining to clients of ACL to MBLLF and identified a process for the determination of costs due and owing by MBLLF to ACL in respect of each client file transferred.
. Clause 6 is of significance in the appeal. It provides –
“6. ACL agrees to transfer the files referred to in Schedule A hereto to MBLLF where MBLLF has already either (a) delivered a signed authority from a client of ACL requesting that the client's file be transferred to MBLLF and / or MBLLF has served Notice of Change of Solicitor. MBLLF shall provide to the plaintiffs by 10.30 am on Friday 27 th July, 2018 a list of all authorities which the parties agree may include a small number of authorities not contained in Schedule A. In respect of all such files referred to in this paragraph and any future files the subject of a similar authority, Mr. Boylan, Ms. O'Connor and MBLLF agree and undertake that the following protocol shall apply:
(c) In default of agreement between the two nominated Legal Cost Accountants the quantum of such costs shall be determined by a third Legal Cost Accountant to be appointed by Mr McMahon and Mr Fitzpatrick and the determination of such independent Legal Cost Accountant shall be binding on the parties.” (emphasis added)
. Mr. Anthony E. McMahon was the Legal Cost Accountant retained by the respondent ACL. Mr. Stephen Fitzpatrick was the Legal Cost Accountant retained by the appellant MBLLF. Their task in the first instance was to endeavour to reach agreement as between them concerning the costs due to ACL in respect of files being transferred.
. In the affidavit grounding the application before the High Court sworn on the 10 th July, 2019 the first respondent deposed, inter alia, as follows:
At para. 35 she deposes –
“The purpose of such meeting was to try and advance the process for the determination of legal costs as set out in the settlement agreement. Our solicitors indicated that our legal cost accountant would conclude this review of the eight files which had been the subject of initial discussions between the costs accountants. A final effort would be made between them to agree such costs and failing that they would have to nominate a third legal cost accountant as provided for at paragraph 6(c) of the...
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