Clarke (T/A Ledwidge Solicitors) v Stevens

• Jurisdiction: Ireland
• Judge: Justice Clarke
• Judgment Date: 19 June 2008
• Neutral Citation: [2008] IEHC 203
• Docket Number: 666 $/2007
• Court: High Court
• Date: 19 June 2008

[2008] IEHC 203

THE HIGH COURT

666 $/2007

Clarke (T/A Ledwidge Solicitors) v Stevens

BETWEEN

PHILIP CLARKE PRACTISING UNDER THE STYLE AND TITLE OF LEDWIDGE SOLICITORS

PLAINTIFF

AND

GERALD STEVENS

DEFENDANT

FIREARMS ACTS 1924 - 2000

FIRST NATIONAL COMMERCIAL BANK v ANGLIN 1996 1 IR 75

BANQUE DE PARIS v DE NARAY 1984 1 LLOYD'S REP 21

NATIONAL WESTMINSTER BANK PLC v DANIEL 1993 1 WLR 1453

ACC BANK PLC v MALOCCO 2000 3 IR 191

AER RIANTA CPT v RYANAIR LTD 2001 4 IR 607

PRACTICE AND PROCEDURE

Summary summons

Summary judgment - Fees for legal services - Leave to defend - Whether bona fide defence - Cogency of evidence - Credibility of defence - Counsels' fees - Fees determined on taxation - Assertion that fees sought exceeded sums in initial fee notes - âÇÿNo foal no fee' practice - Delay between determination of costs and payment - Solicitor's fees - Assertion that charges made for work after termination of solicitor's retainer - Failure to refer fees to taxation - Discretion to refer matter to taxation - Costs - Success in respect of large proportion of claim - Failure to take opportunity to refer fees to taxation - First Commercial Bank Plc v Anglin [1996] 1 IR 75, Banque de Paris v De Naray [1984] 1 Lloyd's Rep 21, National Westminster Bank plc v Daniel [1993] 1 WLR 1453, ACC Bank plc v Malocco [2000] 3 IR 191 and Aer Rienta cpt v Ryanair Ltd (Unrep, Kelly J, 5/12/2002) considered - Judgment in respect of portion of claim and remainder referred to taxation (2007/666SS - Clarke J - 19/6/2008) [2008] IEHC 203

Clarke v Stephens

Facts: the plaintiff had acted as solicitor for the defendant in judicial review proceedings which were successful. The defendant was awarded the costs of the judicial review which were taxed by the Taxing Master in respect of counsel’s fees but not in respect of the plaintiff’s own fees as he had only begun to act for the plaintiff after the successful conclusion of the judicial review proceedings. The defendant had refused to send the issue of the plaintiff’s own costs to taxation after having been invited to do so by the plaintiff and refused to discharge the legal costs claimed by the plaintiff on his own behalf and on behalf of counsel. The plaintiff applied for summary judgment.

Held by Mr Justice Clarke in granting judgment for the plaintiff that, in deciding whether to grant summary judgment, a court had to look at the whole situation to ascertain whether the defendant had satisfied the court that there was a fair or reasonable probability of the defendant having a real or bona fide defence. The credibility of the defence was an essential element in granting leave to defend.

Reporter: P.C.

JUDGMENT of

Justice Clarke

delivered on the 19th day of June, 2008

2 1.1 The plaintiff ("Mr. Clarke") is a solicitor. The defendant ("Dr. Stevens") is a retired physician who was formerly a client of Mr. Clarke. In these proceedings Mr. Clarke sues Dr. Stevens for fees which are said to be due principally to counsel but also, to a limited extent, to himself arising out of successful judicial review proceedings brought on behalf of Dr. Stevens. In those proceedings certain convictions under the Firearms Acts made in July of 1999 in the District Court against Dr. Stevens were quashed. It will be necessary to refer in more detail to the circumstances surrounding the representation of Dr. Stevens in those proceedings in due course. However, for present purposes it is sufficient to note that as a result of his success in those proceedings Dr. Stevens was awarded the costs of the relevant proceedings against the State and has, in somewhat unusual circumstances, recovered substantial sums from the State as a result of that costs order.

3 1.2 The application currently before me and to which this judgment is directed is an application on behalf of Mr. Clarke for summary judgment in these proceedings. In substance, therefore, the issue which I have to determine is as to whether Dr. Stevens has shown the sort of arguable defence required by the jurisprudence in this area so as to be given leave to defend. In those circumstances it is appropriate to refer, firstly, to the procedural history of this case.

2 2.1 These proceedings were commenced by summary summons issued on 23^rd April, 2007, claiming a total of €51, 534.27 being the sum described as "due and owing by (Dr. Stevens) to (Mr. Clarke) in respect of fees for legal services, VAT and outlays and for work done and services…" The sums are said to be as set out in a bill of costs served on Dr. Stevens on 21^st March, 2007. There has been a variation in the sum now claimed. In substance, and in broad terms, the amounts now asserted to be due are the same as those set out in the original bill of costs to which I have referred and in the special endorsement of claim on the original summary summons but same are subject to the fact that a reduction is agreed to be properly made in respect of the sums which were due to counsel. I will refer to this further in due course. It is also appropriate to note that Mr. Clarke further claimed interest pursuant to statute.

3 2.2 In circumstances where it appeared that Dr. Stevens was seeking to obtain payment of the costs ordered in his favour arising out of the judicial review proceedings to which I have referred, directly to himself, Mr. Clarke sought to obtain a Mareva type injunction which would have the effect of preventing the payment of those costs to Dr. Stevens pending the resolution of these proceedings. As a result of that application I made an order which, in substance, permitted the costs concerned to be paid to Dr. Stevens provided that an appropriate proportion of the relevant costs was paid into a bank account and remained frozen there by order of the court pending these proceedings. However, nothing now turns on those facts.

4 2.3 In the ordinary way a motion for summary judgment was brought before the Master of this Court by Mr. Clarke. Judgment was resisted by Dr. Stevens and in the circumstances the Master considered it appropriate to put the case into the judges list to determine whether Dr. Stevens had established an arguable defence sufficient to justify giving him leave to defend. As the substantive Mareva injunction application had been heard by me, the Master directed that the motion for summary judgment should also be listed before me.

5 2.4 It should be noted that at the hearing before me Dr. Stevens represented himself. Various difficulties were encountered when the case first was heard which it is unnecessary to set out here. Suffice it to say that I considered it appropriate to adjourn further hearing and to allow the parties to put in further affidavits. As I have already indicated this judgment is, therefore, directed to the question of whether, on the one hand, Mr. Clarke is entitled to judgment or, on the other hand, Dr. Stevens should be given leave to defend. Before going on to the basis upon which Dr. Stevens claims to be entitled to defend these proceedings it is appropriate, by way of background, to deal briefly with the judicial review proceedings as it is the costs of those proceedings that are at the heart of this case.

2 3.1 The relevant proceedings bore High Court record No. 1999 No. 387 J.R. Dr. Stevens was applicant and Judge Michael Connellan and the Director of Public Prosecutions were respondents. Those proceedings are the subject of a final order made on 21^st December, 2001, by McKechnie J., in which orders of certiorari were made quashing various orders previously made by the learned District Judge against Dr. Stevens in proceedings brought under the Firearms Acts by the Director of Public Prosecutions. The order of McKechnie J. of 21^st December, 2001, also awarded Dr. Stevens the costs of the proceedings (including the costs of written submissions and reserved costs) when taxed and ascertained.

3 3.2 It is clear that Dr. Stevens was initially represented by Frank MacGabhann, Solicitor, up and until January, 2002, at which time Mr. MacGabhann ceased to practise as a private solicitor and took up a position in the State sector. Therefore, up to and including the final order of McKechnie J. to which I have referred, Mr. MacGabhann was the solicitor acting on behalf of Dr. Stevens. Senior and junior counsel had been instructed in the proceedings and, as will be seen when looking at the content of the claim now made, the bulk of the sums now claimed to be due are in respect of the fees of those counsel. It is also clear that, on the retirement of Mr. MacGabhann from private practise, Mr. Clarke took over certain files of Mr. MacGabhann including the file in respect of the judicial review proceedings to which I have referred. On 6^th March, 2002, a notice of change of solicitor was filed thus making Mr. Clarke the solicitor on record for Dr. Stevens. In substance, and on the evidence, it is clear that as of the time of Mr. Clarke taking over the file there still remained a possibility of the State defendants appealing the decision of McKechnie J. and, in any event, the question of the ascertainment and recovery of the costs which had been awarded to Dr. Stevens also arose. While the judicial review proceedings were completed, so far as this Court was concerned, there was, therefore, still work to be done.

4 3.3 It also appears to be common case that, arising out of differences between Mr. Clarke and Dr. Stevens unconnected with these proceedings or indeed the judicial review proceedings, Dr. Stevens withdrew Mr. Clarke's retainer on 14^th October, 2004, and thereafter was, in one manner or another, represented by both Ken Smyth & Company and, thereafter, Messrs. Hackett Solicitors. There does not, however, appear to be any evidence that a notice of change of solicitor was filed so that it would seem that Mr. Clarke...