Guinan v Curneen
| Jurisdiction | Ireland |
| Judge | O ' Hanlon J.,O'Hanlon J. |
| Judgment Date | 07 October 1993 |
| Neutral Citation | 1994 WJSC-HC 2953,1998 WJSC-HC 7719 |
| Date | 07 October 1993 |
| Court | High Court |
| Docket Number | No. 9445P/1990,No. 9445p/1990 |
BETWEEN
AND
1994 WJSC-HC 2953A
THE HIGH COURT
Synopsis:
PROFESSIONS
Solicitors
Costs - Claim - Dispute - Client - Litigation - Client's assertion that only party and party costs payable to solicitor - Solicitor and client costs claimed by solicitor - Refusal of client to sign requisition for taxation of solicitor and client costs - (1990/9445 P - O'Hanlon J. - 7/10/93)
|Guinan v. Curneen|
CONTRACT
Terms
Dispute - Litigant - Litigation - Solicitor - Services - Remuneration - Solicitor claimed solicitor and client costs - Client alleged agreement for party and party costs - (1990/9445 P - O'Hanlon J. - 7/10/93)
|Guinan v. Curneen|
Citations:
CASTLE BRAND LTD, IN RE 1990 ILRM 97
O'NEILL & CO V MALONEY & CO UNREP (EX TEMP) COSTELLO 26.3.92
GILL ON COSTS 184
COBBETT V WOOD 24 TLR 615
GALLAGHER SHATTER & CO V DE VALERA 1986 ILRM 3
LAW SOCIETY MEMORANDUM, RE CHARGING OF FEES 21.2.85
RSC (1962) SI 72/1962 O.99 r12(1)(2)
RSC 1986 SI 15/1986 O.99 r11(1)(2)
SMYTH V MONTGOMERY UNREP BLAYNEY 7.7.86 1986/8/1775
The Plaintiff is a retired auctioneer. He was involved in a motor accident on the 25th November, 1979, in which he suffered significant injuries. Early in the following year, 1980, he instructed the Defendants, who are a firm of solicitors practising in Dublin, to bring proceedings on his behalf in the High Court claiming damages in respect of the injuries, loss and damage caused to him in consequence of the said accident. He claims that the Defendants agreed to act for him on the basis that they would accept such party and party costs as could be recovered against the proposed defendant in the case, in the event of the case being prosecuted to a successful conclusion, and would make no further claim against the Plaintiff.
The action came on for hearing in the High Court in the year 1984 and was tried by a judge sitting without a jury. The claim was successful and the Plaintiff was awarded a sum of £47,000 damages, and the costs of the proceedings. The Plaintiff was dissatisfied with the amount of the award and gave instructions to the Defendants to prosecute an appeal the Supreme Court. This took place in the year 1986 and the Plaintiff was again successful. A new trial was ordered in relation to the assessment of damages. It took place on the 23rd and 24th of June, 1987, commencing before a judge sitting with a jury, but ultimately being dealt with by the Judge sitting on his own without a jury.
On this occasion a much higher award of damages was made, 1 gross figure of £123,274 including an award of £50,000 in respect of loss of earnings up to the date of trial and £25,000 in respect of loss of earnings continuing into the future. No award whatever had been made in respect of the claim for loss of earnings on the occasion of the first trial. The Plaintiff was also awarded costs against the defendant in respect of the first and second trial, and the appeal to the Supreme Court.
When the costs came to be taxed the present Defendants action in their capacity as solicitors for the Plaintiff engaged to services of Messrs. Cyril O'Neill and Co., Legal Accountant to draw up a Bill of Costs, and when the bill had been prepared for taxation discussion took place between the Cost Accountants representing both sides and agreement was reach on a figure of £40,285, so that it became unnecessary to proceed further with taxation of costs.
In due course the Defendants received the cheques in respect of the damages and agreed costs. A very large proportion on the award of damages had to be utilised in discharge of indebtedness of the Plaintiff to his bankers, in compliance with undertakings the Defendants had previously given to the banks on the instructions of the Plaintiff. The balance of the sum awarded for damages was then paid over by the Defendants to the Plaintiff save for a sum which was withheld by the Defendants pending determination of their own outstanding claims against the Plaintiff in respect of solicitor and client costs. These costs were claimed by them against the Plaintiff in respect of the said proceedings and also in respect of other work they had done for the Plaintiff in relation to past renewals of his auctioneering licence, and in respect of other proceedings in which they had acted as solicitors for the Plaintiff.
The Plaintiff claims that the sum so withheld by the Defendants amounts to a sum of £7,500, and he further claims that this sum is being unlawfully withheld from him; that he has no liability to the Defendants for solicitor and client costs as claimed by the Defendants, and that he is not liable to reimburse the Defendants for the charges of a Legal Cost Accountant as claimed by the Defendants. In these proceedings he claims against the Defendants damages for breach of contract and for conversion, and further claims payment over to him of the said sum of £7,500 and upwards as money unlawfully withheld by the Defendants, together with interest thereon.
The Defendants in their Defence deny that they ever agreed that their claim against the Plaintiff for acting for him in the said personal injuries action would be confined to party and party costs. They claim that the Plaintiff is under a legal liability to pay solicitor and client costs, and confirmed this agreement in writing during the currency of the proceedings. They claim to have a lien for costs in respect of such moneys as are withheld by them and that the Plaintiff is also indebted to them in respect of solicitor and client costs in respect of other matters as outlined in a Bill of Costs prepared on behalf of the Defendants, but in respect of which the Plaintiff has refused to sign the necessary requisition to refer the same for taxation by one of the Taxing Masters. They say that the sum remaining on hands after disbursements already made by them out of the damages awarded in favour of the Plaintiff amounts to £4,138.53, together with a sum for interest of £1016.71 on part of the damages which has been retained in an interest-bearing account, and not the sum of £7,500 and upwards referred to in the Statement of Claim. They counterclaim for a sum of £8,459.93 in respect of legal costs which they say is the sum remaining due to them by the Plaintiff over and above the party and party costs they have already received.
These are the issues which arise for determination between the parties. Order 99, Rule 11, sub-rules ( 1) and (2) of the Rules of the Superior Courts, now read as follows:-
11. (1) On a taxation as between solicitor and client, all costs shall be allowed except in so far as they are of an unreasonable amount or have been unreasonably incurred.
(2) Any costs which in the circumstances of the case are of an unusual nature and such that they would not be allowed on a taxation of costs as between party and party shall, unless the solicitor shall have expressly informed his client in writing before they were incurred that they might not be so allowed, be presumed, until the contrary is shown, to have been unreasonably incurred.
These Rules came into effect on the 1st October, 1986. The corresponding provision in the earlier Rules was contained in Order 99, Rule 12, sub-rules ( 1) and (2) as follows:-
12. (1) On a taxation as between solicitor and client, all costs shall be allowed except in so far as they are of an unreasonable amount or have been unreasonably incurred.
(2) Any costs which in the circumstances of the case are of an unusual nature and such that they would not be allowed on a taxation of costs as between party and party shall, unless the solicitor shall have expressly informed his client before they were incurred that they might not be so allowed, be presumed, until the contrary is shown, to have been unreasonably incurred.
On the 1st October, 1986, when the amended Rules came into effect the personal injuries action had not only been initiated on behalf of the Plaintiff by the Defendants but had come to fruition insofar as a trial of the action had already taken place in the year 1984 resulting in an award of damages in favour of the Plaintiff, and the matter had been further processed by way of an appeal to the Supreme Court and a second trial of the action was then pending.
The hearing of the appeal to the Supreme Court took place on the 14th April, 1986. The Defendants were extremely apprehensive about the possible outcome of the appeal, having regard to the very large commitments entered into by the Plaintiff and his apparent inability to meet same out of his own resources. They wrote to the Plaintiff earlier in that year asking him to come in as a matter of urgency accompanied by his wife, to discuss the whole situation. The Plaintiff arrived on the 25th February, 1986, without making any prior appointment.
At that stage the second-named Defendant claims that he drafted a letter for signature by the Plaintiff and had it typed up, together with a three-page list of expenses and outlay already incurred on behalf of the Plaintiff.
I agree to pay your fees on a solicitor and client basis as prepared by Cyril O'Neill and Co., Costs Drawers, to be taxed in default of agreement.... I agree to discharge your fees and all costs and outlays incurred by you in respect of the Supreme Court Appeal on a solicitor and client basis, same to be prepared by Cyril O'Neill and Co., Costs Drawers, and are to be taxed in default of agreement, credit being given for all party and party costs received.
The second-named Defendant said that he gave the entire document to the Plaintiff to read and drew his attention in...
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