Dowling and Others v Ireland and Others

• Jurisdiction: Ireland
• Judge: Ms. Justice Eileen Roberts
• Judgment Date: 07 June 2023
• Neutral Citation: [2023] IEHC 303
• Court: High Court
• Docket Number: 2013 No. 2708P

Between

Gerard Dowling, Padraig McManus, Piotr Skoczylas and Scotchstone Capital Fund Limited

Plaintiffs

and

Ireland, The Attorney General and The Minister for Finance.

Defendants

[2023] IEHC 303

2013 No. 2708P

THE HIGH COURT

Constitutional challenge – Credit Institutions (Stabilisation) Act 2010 – Come off record – Solicitors on record for the fourth plaintiff seeking to come off record – Whether the High Court should depart from the decision and rationale of the Court of Appeal

Facts: The proceedings were instituted by way of plenary summons on 14 March 2013. They comprised a constitutional challenge to certain provisions of the Credit Institutions (Stabilisation) Act 2010. The first and second plaintiffs, Mr Dowling and Mr McManus, settled their claim. The third plaintiff, Mr Skoczylas, was a director of the fourth plaintiff, Scotchstone Capital Fund Ltd (the Company), and, although authorised by the Company’s Memorandum of Association to represent the Company in judicial proceedings, he could not do so in Ireland as he was not a solicitor on the role of solicitors in Ireland. Mr Skoczylas was previously refused his application to represent the Company in these and other proceedings before the Irish courts. It was therefore necessary for the Company to be represented by a solicitor in the proceedings. Up until October 2022 the Company had solicitors on record who were engaged to represent the Company in what had been described as a “technical/limited” capacity whereby the solicitor on record adopted in full on behalf of the Company the submissions of Mr Skoczylas, who represented himself. A notice of change of solicitor dated 7 October 2022 was filed in the proceedings by Doran W. O’Toole & Co solicitors on behalf of the Company on 10 October 2022. Two days later, the solicitors indicated that they intended to come off record. A motion before the High Court issued on 26 October 2022 and sought an order allowing the solicitors for the Company to come off record. A similar notice of change of solicitor was filed in the same time period by the same solicitors for the Company in related proceedings before the Court of Appeal in Scotchstone Capital Fund Ltd v Ireland [2023] IECA 129. The application by Mr O’Toole of Doran W. O’Toole to come off record for the Company in those proceedings was heard on 2 February 2023. Given the similarities between the applications before the High Court and the Court of Appeal, Roberts J reserved judgment in the proceedings to await the judgment of the Court of Appeal. The Court of Appeal delivered its judgment on 25 May 2023 and Roberts J delivered her judgment in relation to the virtually identical application before her noting that the decision of the Court of Appeal was binding on the High Court.

Held by Roberts J that the extent of any ongoing litigation was perhaps the only point of distinction between the proceedings and those before the Court of Appeal. However, Roberts J did not believe that it was a sufficient point of difference or factor to depart from the decision and rationale of the Court of Appeal, which was binding on the High Court. Roberts J held that the evidence in the case was that all the legal submissions for trial had already been filed on behalf of the Company. Roberts J held that Mr Skoczylas remained free to source alternative solicitors willing to take on the matter for the Company on the terms he sought.

Roberts J adopted the analysis and decision of the Court of Appeal in Scotchstone and acceded to Mr O’Toole’s application that he be permitted to come off record as solicitor for the Company.

Application granted.

JUDGMENT of Ms. Justice Eileen Roberts delivered on 7 June 2023

Introduction

1 . This judgment relates to an application by the solicitors on record for the fourth named plaintiff to come off record.

2 . The motion ran for one day before this court on 15 March 2023. Six affidavits (with extensive exhibits) were filed by the parties. I refused an application on the morning of the hearing for the solicitors on record to be permitted to introduce a further affidavit and the hearing therefore proceeded on the basis of the papers filed.

3 . The proceedings themselves were instituted by way of plenary summons on 14 March 2013. They comprise a constitutional challenge to certain provisions of the Credit Institutions (Stabilisation) Act 2010. The first and second named plaintiffs have settled their claim. Accordingly, the only two remaining plaintiffs are the third named plaintiff, Mr Skoczylas, and the fourth named plaintiff, Scotchstone Capital Fund Ltd (the “ Company”).

4 . Mr Skoczylas is a director of the Company and, although authorised by the Company's Memorandum of Association to represent the Company in judicial proceedings, he cannot do so in Ireland as he is not a solicitor on the role of solicitors in Ireland. Mr Skoczylas was previously refused his application to represent the Company in these and other proceedings before the Irish courts. It is therefore necessary for the Company to be represented by a solicitor in these proceedings.

5 . Up until October 2022 the Company had solicitors on record who were engaged to represent the Company in what has been described to the court as a “ technical/limited” capacity whereby the solicitor on record adopted in full on behalf of the Company the submissions of Mr Skoczylas, who is representing himself.

6 . The present application relates to a notice of change of solicitor dated 7 October 2022 which was filed in these proceedings by Doran W. O'Toole & Co solicitors on behalf of the Company on 10 October 2022. Two days later, the solicitors indicated that they intended to come off record. The motion before this court issued on 26 October 2022 and seeks an order allowing the solicitors for the Company to come off record.

7 . A similar notice of change of solicitor was filed in the same time period by the same solicitors for the Company in related proceedings before the Court of Appeal in Scotchstone Capital Fund Ltd v Ireland [2023] IECA 129. The application by Mr O'Toole of Doran W. O'Toole to come off record for the Company in those proceedings was heard on 2 February 2023. Given the similarities between the applications before this court and the Court of Appeal, I reserved judgment in these proceedings to await the judgment of the Court of Appeal. The Court of Appeal delivered its judgment on 25 May 2023 and I now deliver this judgment in relation to the virtually identical application before me noting that the decision of the Court of Appeal is binding on this court.

The Evidence before this court

8 . The evidence before this court was that Mr O'Toole, the principal of Doran W O'Toole & Co Solicitors was contacted by Mr Skoczylas on 3 October 2022 and asked to come on record for the Company “ immediately”. A telephone call took place to discuss the background to the proceedings and some case files were sent by Mr Skoczylas to Mr O'Toole.

9 . There is a dispute regarding the extent of the information provided and as to precisely what was discussed on the call. Mr O'Toole says he was told that his role would be “ more an administrator” and that Mr Skoczylas “ would do everything”. He says that the background to the cases provided by Mr Skoczylas was “ vague and evasive”. He says he “ was pressured due to the urgency to file the notice of change of solicitor as drafted by Piotr Skoczylas” (para 3, grounding affidavit of Doran W O'Toole sworn 26 October 2022). Mr Skoczylas says he provided significant information to Mr O'Toole and that access to the case files was not limited, as alleged.

10 . There is a dispute as to whether the financial arrangements were agreed before Mr O'Toole agreed to act. Mr Skoczylas says he was clear at all times that the solicitors would take on the case on a “ no foal no fee” basis and that this extended to outlay as well as to professional fees. He says he advised Mr O'Toole on the initial call that he would not be paid by the Company unless...