Doyle v Buckley (t/a J Buckley & Company Solicitors)

• Jurisdiction: Ireland
• Judge: Mr. Justice Charleton
• Judgment Date: 25 March 2013
• Neutral Citation: [2013] IEHC 292
• Court: High Court
• Docket Number: Record No 6056P/2011
• Date: 25 March 2013

[2013] IEHC 292

The High Court

Record No 6056P/2011

Doyle v Buckley (t/a J Buckley & Co Solicitors)

Between

Denis Doyle

Plaintiff

And

Joe Buckley (Practicing under the Style and Title of J Buckley and Company Solicitors)

Defendant

GALLAGHER SHATTER & CO, STATE v DE VALERA 1986 ILRM 3 1984/7/2212

OSBORN v OSBORN 1911-13 AER 877 1913 3 KB 862

SMYTH v MONTGOMERY UNREP BLAYNEY 7.7.86 1986/8/1775

ATTORNEYS & SOLICITORS (IRL) ACT 1849

PRACTICE AND PROCEDURE

Costs

Taxation - Solicitor and client - Plenary proceedings by client against former solicitor - Breach of contract - Breach of fiduciary relationship - Fee dispute - Fees deducted from monies held for client - Interlocutory application - Plaintiff seeking order for taxation - When taxation of costs available - Obligation of solicitor to prepare bill of costs - Requirement that valid bill of costs be in accordance with rules - Centrality to proceedings of issue of how much solicitor entitled to charge - Documents relating to fees not before court - Whether court entitled to refer previous transaction between parties to taxation - State (Gallagher Shatter & Co) v de Valera [1986] ILRM 3; In re Osborn v Osborn [1913] 3 KB 862 and Smyth v Montgomery (Unrep, Blayney J, 7/7/1986) considered - Rules of the Superior Courts 1986 (SI 15/1986), O99, r 29(5) - Solicitors (Ireland) Act 1849 (12 & 13 Vict), s2 - Matters referred to taxation (2011/6056P - Charleton J - 25/3/2013) [2013] IEHC 292

Doyle v Buckley

Facts: This application concerned the level of professional fees owed by the plaintiff to the defendant, in respect of legal work that had been carried out by the latter in his role as a solicitor. This was an interlocutory motion to overall proceedings brought by the plaintiff against the defendant claiming breach of contract, fiduciary relationship, trust, and misrepresentation. It was the plaintiff"s contention that he had been overcharged by the defendant between 1998 and 2011, with payment being deducted without his consent. The application sought an order for taxation pursuant to s.2 of the Attorneys and Solicitors (Ireland) Act 1849, as amended by the Legal Practitioners (Ireland) Act 1876, or alternatively an order under the inherent jurisdiction of the High Court referring the defendant's bills of costs to the Taxing Master.

Proceedings were issued following the findings of a cost accountant, instructed by the plaintiff, who had investigated the bills that had been paid to the defendant. In support of the application, the plaintiff highlighted in particular the circumstances surrounding an agreement he had entered into for the sale of land to a company known as Sandystream Developments Ltd. A deposit of €600,000 was paid in May 2006 which was held by the defendant, and which the plaintiff subsequently became entitled to when the purchaser defaulted. The plaintiff claimed that he asked for the release of the deposit monies in March 2010 but that this was denied by the defendant who claimed it was being held against outstanding fees. Disclosure by the defendant subsequently showed that only €45,146.99 of the deposit remained.

Held by Charleton J. that it was considered appropriate to refer the matter for taxation. If it was found that the defendant had charged the appropriate amounts of legal fees, and therefore he was entitled to retain the deposit monies, then certain uncertainties of the overall proceedings could possibly be clarified. There were two disputed bills of costs in relation to the Sandystream Developments Ltd transaction that had been labelled D215 and D226 for the purposes of the proceedings. These were referred for taxation.

The plaintiff had also asked for all payments from 1998 to 2011 to be referred. The court ruled that it was not prepared to go as far back as 1998 and refer payments the plaintiff made to the defendant made at that time to determine whether a proper bill of costs had been made on each occasion. The fact that there was no dispute that the fees were paid by the plaintiff at that time suggested to the court that the amount charged had been accepted as reasonable. There was certainly no warrant for exercising the inherent jurisdiction of the court to order taxation of costs.

It was however determined that it would be for the Taxing Master to adjudicate on the issue of costs from 2000 onwards, and where necessary, decide whether proper bills of costs were given by the defendant, and whether there was evidence of voluntary payment by the plaintiff in respect of each instance. There was to be taxation of each matter during this time period unless it was proven that a proper bill of costs had been furnished, together with a voluntary payment of that bill by the plaintiff.

1 Mr. Justice Charleton delivered on the 25th of March, 2013.

2 For over ten years the defendant was the plaintiffs solicitor. They have now fallen out in a bitter dispute about fees. As to what may be due, very little is agreed between them. The plaintiff points to payments he made to the defendant between 1998 and 2011 amounting to €900,000 and claims that this is obvious overcharging. Further, he says that he did not really pay these fees but, rather, that they were deducted without his consent. The defendant replies that all fees were agreed and that whereas some fees for conveyancing transactions may have exceeded the professionally recommended level of percentage charge, these were specifically sanctioned by the plaintiff as client. At this stage, I have no view on any of this.

3 The plaintiff seeks an order for taxation pursuant to s.2 of the Attorneys and Solicitors (Ireland) Act 1849, as amended by the Legal Practitioners (Ireland) Act 1876, or alternatively an order under the inherent jurisdiction of the High Court referring the defendant's bills of costs to the Taxing Master.

Background

4 Among the problems that this application poses are that many of the disputed bills of costs are old. In respect of some, the charges are said to be supported by a detailed bill and in a number of these the plaintiff, as client, appears to have not only paid but signed off on the transaction.

5 The immediate background to these proceedings is that in November 2010 the plaintiff appointed a firm of cost accountants to investigate the bills he had paid to the defendant as his solicitor. Whatever dialogue followed was unsatisfactory to the plaintiff. The plenary summons which initiated this action was issued on the 5 ^th July, 2011 and was followed by a statement of claim that was delivered on the 19 ^th August, 2011.

6 That statement of claim describes the alleged problem that led to this litigation. One of the many transactions on which the defendant acted as solicitor for the plaintiff related to the sale of land to a company called Sandystream Developments Ltd. A deposit was needed for this sale and so in May 2006 the plaintiff paid over to the defendant a sum of €600,000 on the basis, it is claimed, that this would be held in the defendant's client account to the credit of the plaintiff. Proceedings were then issued against that company as purchaser. The deposit was forfeited by the purchaser and released to the credit of the defendant on behalf of the plaintiff.

7 Because the purchaser company had been liquidated, agreed fees of €35,000 had then to be paid. The plaintiff claims that from January 2010, the defendant held the sum of €565,000 as monies on behalf of the plaintiff. In March 2010, the plaintiff claims that he asked for the release of these funds but was told by the defendant that the vast bulk of same had been used up in fees. Correspondence was exchanged. In the course of this, the plaintiff sought assurances that the money was still being held. According to the defendant, it was being held, but "against fees and expenses and interest properly due to this firm...