J & G McGowan Roofing Contractors Ltd v Manley Construction Ltd

• Jurisdiction: Ireland
• Judge: Miss Justice Laffoy
• Judgment Date: 25 July 2011
• Neutral Citation: [2011] IEHC 317
• Docket Number: [No. 120MCA/2010]
• Court: High Court
• Date: 25 July 2011

[2011] IEHC 317

THE HIGH COURT

[No. 120MCA/2010]

J & G McGowan Roofing Contractors Ltd v Manley Construction Ltd

BETWEEN

J. & G. McGOWAN ROOFING CONTRACTORS LTD.

PLAINTIFF

AND

MANLEY CONSTRUCTION LTD.

DEFENDANT

LEGAL PRACTITIONERS (IRELAND) ACT 1876 S3

LISMORE BUILDINGS LTD v BANK OF IRELAND FINANCE LTD (NO.2) 2000 2 IR 316

ARBITRATION ACT 1954 S32

ARBITRATION ACT 2010 S4

O'CALLAGHAN THE LAW ON SOLICITORS 2000 PARA 9.96

PROFESSIONS

Solicitors

Lien - Arbitrator's award - Whether precondition that costs be taxed - Whether making of charging order under s3 merely declares right to charge - Whether entitled to party to party or solicitor to client costs - Legal Practitioners (Ireland) Act 1876 s 3; Arbitration Act 1954 (No 26), s 32; Arbitration Act 2010 (No 1), s 4 - Application allowed (2010/120 MCA - Laffoy - 25/7/2011) [2011] IEHC 317

J & G McGowan Roofing v Manley

Miss Justice Laffoy

1 The application which was before the Court on 4^th July, 2011 and which is dealt with in this judgment was brought in these proceedings, which were initiated in 2010 under the Arbitration Acts 1954 - 1998. The outcome of the two applications which have already been determined in the substantive proceedings, which were heard by Murphy J., as reflected in the order of the Court of 7^th March, 2011, which was perfected on 15^th June, 2011, insofar as it is pertinent to the issues before this Court on this application, was that -

2 a) it was ordered that the award of Anthony Hussey (the Arbitrator), made on 18^th February, 2010 be enforced;

3 b) it was ordered that the plaintiff (McGowan) do recover against the defendant (Manley) -

(i) the sum of €136,672.15,

4 (ii) interest on the sum of €88,150.86 at 8%per annum compounded yearly on 16^th September from 7^th March, 2011 to date of payment, and

5 (iii) simple interest on the sums of €23,962.86 and €21,215.75 at 8%per annum from 7^th March, 2011 to date of payment; and

6 (c) it was ordered that McGowan recover against Manley the costs of the proceedings before the Court to be taxed in default of agreement.

7 2. The award dated 18^th February, 2010 was an interim award. There were earlier High Court proceedings, which were referred to in the interim award, which were stayed. The defendant was ordered to pay the costs of those proceedings in the interim award, the costs to be taxed in default of agreement or measured by the arbitrator.

8 3. The Arbitrator made a final award on 15^th September, 2010, in which he awarded -

9 (a) costs of the arbitration, to be taxed in default of agreement, to McGowan, and

10 (b) re-imbursement to McGowan of monies paid by McGowan in respect of arbitration fees and expenses, together with simple interest.

11 He also measured McGowan's costs of the High Court proceedings and he directed Manley to pay interest on the sum measured (€17,049.35) at 8%per annum. Unfortunately, having regard to the paucity of evidence before the Court, I am unclear as to how the sums set out at (b)(iii) in paragraph 1 above relate to the awards of the arbitrator, which will have to be clarified.

12 4. The application before the Court on 4^th July, 2011 was brought by Mary Cowhey, solicitor, practising under the style and title of Mary Cowhey & Co. Solicitors (the applicant), who, as I understand the position, acted for McGowan in the earlier High Court proceedings, in the arbitration and on the applications in these proceedings before Murphy J.

13 5. There was proof of service of the application on McGowan and on Manley before the Court, but neither appeared on the hearing of the application. At the hearing of the application the position of McGowan and Manley as regards the application was represented as follows:

14 (a) Counsel for the applicant informed the Court that the applicant had been informed that Manley did not intend appearing on the hearing of the application.

15 (b) The Court was handed in a copy of an undated letter from McGowan (signed by Joseph McGowan, who was described as a director) addressed to the applicant, which acknowledged receipt of the notice of motion and the affidavit in respect of a hearing "on Monday 4^th July next". The letter stated that the plaintiff did not intend appearing on the application and does not "seek taxation of costs sought by Mary Cowhey & Co., Solicitors". That letter should be exhibited on affidavit.

16 Because of the non-appearance of both parties to the substantive proceedings, I reserved judgment with a view to making clear the basis on which the Court is addressing the orders sought.

17 6. The primary reliefs claimed by the applicant are declarations that the applicant -

18 (a) has a lien (meaning a common law lien) over, and

19 (b) is entitled pursuant to the provisions of the Legal Practitioners (Ireland) Act 1876 (the Act of 1876) to a charge upon -

20 (i) the judgment, interest payments and costs ordered by the order of 7^th March, 2011 made in these proceedings, and

21 (ii) such other sums (including costs) awarded and directed to be paid by Manley to McGowan in the final award dated 15^th September, 2010 of the Arbitrator,

22 for the unpaid costs incurred by McGowan with the applicant (meaning costs for which McGowan is liable to the applicant) in recovering such funds to include -

(I) the costs herein, and

23 (II) the costs of the prior arbitration.

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