Fitzpatrick v Byrne

• Jurisdiction: Ireland
• Judge: Mr. Justice Twomey
• Judgment Date: 30 May 2016
• Neutral Citation: [2016] IEHC 284
• Docket Number: [2015 No. 355SP]
• Court: High Court
• Date: 30 May 2016

BETWEEN:

ANTHONY J. FITZPATRICK

PLAINTIFF

-AND-

DANIEL J. BYRNE, TARA BYRNE, PRACTISING UNDER THE STYLE AND TITLE OF DANIEL J. BYRNE SOLICITORS

DEFENDANTS

[2016] IEHC 284

[2015 No. 355SP]

THE HIGH COURT

Practice & Procedure – O 3, r. 19 of the Rules of the Superior Courts – Delivery of documents during non-pendency of proceedings – Pre-condition – Summary summons – Access to the solicitor's files

Facts: Following the initiation of the proceedings by the plaintiff/client against the defendants/solicitors for negligence, the plaintiff sought an order by way of summary summons, compelling the first named defendant to deliver certain files relating to three cases dealt by the said defendant on behalf of the plaintiff. The plaintiff contended that he was entitled to seek possession of the files pursuant to o. 3, r. 19 of the Rules of the Superior Courts.

Mr. Justice Twomey refused to grant the relief sought by the plaintiff. The Court observed that it was clear by the language of o. 3, r. 19 that an application under the special summons procedure for a solicitor's files could not be made if there were pending proceedings in which the application might be made. The Court noted that the pre-condition given to access the solicitor's files was to the effect that procedure by plenary summons was mandatory. The Court held that it could not depart from the strict wordings of the o. 3, r. 19 as the plaintiff's case squarely fell under the said rule and he had instituted plenary proceedings against the defendants, which obliged the plaintiff to seek those files pursuant to those proceedings. The Court concluded that the plaintiff was not entitled to bring special summons to seek access to the solicitor's files as he had instituted pending proceedings in which the application could be made.

JUDGMENT of Mr. Justice Twomey delivered on the 30th May, 2016.

Introduction

1 This case involves an application against a solicitor by a client by way of summary summons. The client, Mr. Fitzpatrick seeks possession of his files pursuant to Order 3, rule 19 of the Rules of the Superior Courts. At its heart, the case concerns the interpretation of Order 3, rule 19 and in particular whether an application by way of summary summons by a client for his files from his own solicitor should be granted, where there are other proceedings (in this case a negligence action) between that client and his solicitor, pursuant to which the application for possession of the files could be made by that client.

2 This is an issue for this Court's consideration because the express terms of Order 3, rule 19 permit an application by way of summary summons for ‘ the delivery by any solicitor of deeds, documents and papers where there is no pending proceeding in which the application may be made’ (emphasis added). This case involves a consideration of the meaning of this rule in the particular circumstances of this case.

Background

3 The plaintiff is an accountant and the first defendant is a solicitor who acted for the plaintiff. The second defendant is a solicitor, who does not hold a practising certificate and the plaintiff alleges that he provided legal services in conjunction with the first defendant, even though he did not hold a practising certificate at the relevant time. The proceedings have not been served on the second named defendant. The first defendant denies that the second defendant provided any legal services to the plaintiff.

4 At the hearing of this matter, the plaintiff clarified that he was not seeking an order for discovery, notwithstanding that this is set out in his Special Endorsement of Claim. Rather, he is seeking an Order compelling the first defendant to deliver certain files relating to the following three cases conducted on his behalf by the first defendant and, he alleges, by the second defendant:

• Mount Kenneth, High Court record number 2005/1657P, Supreme Court Appeal, record number 242/251

• Fitzpatrick v. Tobin, Record No. 2010 8636P

• O'Meara v. Fitzpatrick Record No. 2010 8525P

Further or in the alternative the plaintiff is seeking an order compelling the first defendant to permit the plaintiff's solicitor to photocopy the files referred to above, at the plaintiff's expense.

5 In the Special Endorsement of Claim in this case, the plaintiff refers to a Plenary Summons which he has issued against the defendants, Record No. 2015 4918 in which he claims, inter alia, negligence. This allegation of negligence relates to the legal services provided in connection with the foregoing cases, by the first defendant and, he alleges, by the second defendant, even though he did not have a practising certificate at the relevant time. These plenary proceedings have not been served on either of the two defendants.

6 There are costs in excess of €680,000 which are allegedly due from the plaintiff to the first named defendant arising from the work done on these files. These alleged costs are subject to a Special Summons Record No. 2012/2323S issued by the first named defendant against the plaintiff, which Special Summons was rejected by the Master of the High Court but this rejection is subject to an appeal to the High Court which has not yet been heard.

7 These alleged costs are also subject to the taxation...