Condon -v- Law Society, [2010] IEHC 52 (2010)

Docket Number:2008 903 JR
Party Name:Condon, Law Society
Judge:Kearns P.
 
FREE EXCERPT

THE HIGH COURT

JUDICIAL REVIEW2008 903 JR

BETWEEN

JOHN F. CONDONAPPLICANTAND

THE LAW SOCIETY OF IRELANDRESPONDENTJUDGMENT of Kearns P delivered on the 23rd day of February, 2010

The applicant is a solicitor who qualified in 1976 and who practices under the name or style of McMahon and Tweedy. He was appointed executor and trustee of the last will of Reginald Joseph Moorhead, a client of the applicant, who died on 5th August, 2002 having made his last will on 15th October, 1998.

By the terms of his will the testator devised his entire estate to his executor and trustee upon trust for sale with power to postpone sale upon trust for such of his five named children as should survive him in equal shares as tenants in common. In addition to the power arising under the Settled Land Acts, the will conferred extensive powers on the trustee, including "the fullest power of retention, sale, realisation, management, superintendents and control in all respects as if they (i.e. the trustee) were the absolute owners thereof". Under clause 9 of the will, the applicant was entitled and empowered to charge for professional services provided by him during the course of the administration of the estate.

The principle asset of the testator was a residential property at Wainsfort Road in Terenure in Dublin. Four of the five children have resided in the house, and three continued to reside there at the time of death and asserted to varying degrees that they had expended monies on the property.

It is not really in dispute but that relations between the beneficiaries were not always harmonious and there was some considerable delay in dealing with the administration as efforts were made to achieve consensus amongst the children. Eventually it was agreed that the house would be sold and the proceeds distributed in an agreed manner between the various beneficiaries.

Prior to that time one of the beneficiaries, Brian Moorhead, had lodged a caveat in the Probate Office in 2005 and this was not removed until July 2007. The grant of Probate issued to the applicant as sole executor on 18th July, 2007. The sale of the property at Wainsfort Road was closed on 24th July, 2007 for the sum of 975,000. Brian Moorhead remained in occupation of the house until mid 2007.

An initial complaint of delay against the applicant was made to The Law Society by Neil Moorhead in June, 2005. This was dealt with by the respondent's Complaints and Client Relations Committee which concluded in February 2006 that the complaint did not disclose evidence of inadequate professional services. That particular complaint and investigation is not the subject of any challenge in the present proceedings, but is relevant in that the applicant at that time submitted that the respondent Committee lacked jurisdiction to adjudicate upon the particular complaint having regard to the terms of the Solicitors (Amendment) Act, 1994 and in particular s.8 thereof.

Section 8 of the Act of 1994 provides:-"-(1) Where the Society receive a complaint from a client of a solicitor, or from any person on behalf of such client, alleging that the legal services provided or purported to have been provided by that solicitor in connection with any matter in which he or his firm had been instructed by the client were inadequate in any material respect and were not of the quality that could reasonably be expected of him as a solicitor or a firm of solicitors, then the Society, unless they are satisfied that the complaint is frivolous or vexatious, shall investigate the complaint and shall take all appropriate steps to resolve the matter by agreement between the parties concerned and may, if they think fit, following investigation of the complaint, do one or more of the following things, namely-

(a) determine whether the solicitor is entitled to any costs in respect of such legal services or purported services, and if he is so entitled, direct that such costs in respect of such services shall be limited to such amount as may be specified in their determination;

(b) direct the solicitor to comply, or to secure compliance, with such of the requirements set out in subsection (2) of this section as appear to them to be necessary as a result of their investigation;

(c) direct the solicitor to secure the rectification, at his own expense or at the expense of his firm, of any error, omission or other deficiency arising in connection with the said legal services as the Society may specify;

(d) direct the solicitor to take, at his own expense or at the expense of his firm, such other action in the interests of the client as the Society may specify;

(da) direct the solicitor to pay to the client a sum not exceeding 3,000 or the prescribed amount, whichever is the greater, as compensation for any financial or other loss suffered by the client in consequence of any such inadequacy in the legal services provided or purported to have been provided by the solicitor, provided that any such payment made in compliance with the direction shall be without prejudice to any legal right of the client;

(e) direct the solicitor to transfer any documents relating to the subject matter of the complaint (but not otherwise) to another solicitor nominated by the client or by the Society with the consent of the client, subject to such terms and conditions as the Society may deem appropriate having regard to the circumstances, including the existence of any right to possession or retention of such documents or any of them vested in the first-mentioned solicitor or in any other person."The gravamen of the applicant's submission in respect of the 2005 complaint was to the effect that as the "client" was the applicant as executor, and not the complainant, the particular statutory provision did not give jurisdiction to the Committee to adjudicate upon the complaint.

While this complaint was rejected by the Committee a second complaint was made to The Law Society by Brian Moorhead by letter dated 28th April, 2007. This complaint raised issues about the applicant's proposed costs, the choice of auctioneer, and the asking price for the sale of the house. In the ensuing correspondence between the various parties, there were further generalised complaints advanced on behalf of the Moorhead family to the effect that the applicant had been unhelpful.

By letter dated 27th June, 2007, Ms. Daragh Buckley a solicitor for the Committee requested that the applicant furnish a copy of the "Section 68"...

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