Kelly v McNicholas Court of Appeal

• Jurisdiction: Ireland
• Judge: Ms. Justice Máire Whelan
• Judgment Date: 13 November 2019
• Neutral Citation: [2019] IECA 283
• Court: Court of Appeal (Ireland)
• Docket Number: Appeal No. 2014/1314
• Date: 13 November 2019

[2019] IECA 283

THE COURT OF APPEAL

Whelan J.

Baker J.

Costello J.

Appeal No. 2014/1314

BETWEEN/

DOUGLAS KELLY

PLAINTIFF/RESPONDENT

- AND -

PETER McNICHOLAS & NANCY McNICHOLAS

DEFENDANTS/APPELLANTS

Summary judgment – Plenary hearing – Bona fide defence – Appellants seeking to set aside summary judgment – Whether the appellants demonstrated that there was a fair and reasonable probability that they had a real or bona fide defence

Facts: The respondent, Mr Kelly, a solicitor based at Swinford, County Mayo, on the 20th March, 2012, instituted proceedings by way of summary summons against the appellants, Mr and Ms McNicholas, seeking to recover the sum of €245,916.94 in respect of fees and outlay alleged to be outstanding. The claim was disputed by the appellants and a motion seeking summary judgment came on for hearing before the President of the High Court, Kearns P, on the 17th July, 2014. The claim primarily pertained to fees due for professional services rendered to the appellants in respect of proceedings instituted in 2007 entitled Peter McNicholas and Nancy McNicholas v Mayo County Council & SIAC Wills JV Limited (High Court Record No. 2007/6160P). The President granted summary judgment to the respondent in the sum of €150,000 together with costs and remitted the balance of the claim to plenary hearing. The appellants appealed to the Court of Appeal seeking to set aside the President’s decision. The grounds of appeal included that the President: (i) failed to apply the principles appropriate to an application for summary judgment; (ii) erred in granting summary judgment in the sum of €150,000; (iii) erred in refusing to remit the entire claim to plenary hearing; (iv) erred in dismissing the appellants’ claim as “extraordinary and failing to consider whether, if established at the trial of the action, such a claim would amount to bona fide defence”; (v) erred in accepting that the respondent was the appropriate party to bring the claim; (vi) erred in failing to consider and determine whether the appellants had a credible defence to the claim; (vii) failed to consider whether any counter claim in negligence could amount to an equitable set off; (viii) erred in construing the affidavit evidence; (ix) erred in granting costs.

Held by Whelan J that the respondent did have locus standi and was entitled to maintain proceedings seeking recovery of the fees due and owing. Regarding the error on the notice of motion, Whelan J held that this issue was first raised on appeal and it was clear from a perusal of all of the affidavits and exhibits that it represented a typographical error in the notice of motion where the figure “€245,916.94” was mistyped as “€245,016.94”; it did not amount to inconsistent claims or errors of the kind under consideration by Irvine J in Ulster Bank Ireland Ltd v Grimes [2015] IECA 346. Whelan J was satisfied that the appellants had failed to meet the test well established in Ireland’s jurisdiction and articulated clearly in cases such as First National Commercial Bank v Anglin [1996] 1 IR 75, Aer Rianta cpt v Ryanair Ltd [2001] 4 IR 607 and Harrisrange Ltd v Duncan [2003] 4 IR 1 which require parties in the position of the appellants to demonstrate to the satisfaction of the courts that there is a fair and reasonable probability that they have a real or bona fide defence and further that the said defence is credible. Whelan J held that the credibility of the appellants was fatally eroded, as the President noted, by the advancing of a wide array of different and inconsistent scenarios and alleged agreements, all directed towards a proposition that they had either no obligation at all or some deferred arrangement for payment of the fees, costs and expenses demonstrably incurred by the respondent in respect of the conduct of the clearly complex and difficult planning litigation which continued over a number of years. Whelan J held that the bare assertion on the part of the first appellant of a “no foal no fee” type arrangement was not credible and was fundamentally contradicted by the emails sent by the appellants’ daughter and exhibited in the affidavits of the respondent. Whelan J was satisfied that the President was entitled to reach his conclusion which was just and ought not to be interfered with.

Whelan J held that the appeal would be dismissed.

Appeal dismissed.

JUDGMENT of Ms. Justice Máire Whelan delivered on the 13th day of November 2019

1 This appeal seeks to set aside the decision of the former President of the High Court, Kearns P., of the 17th July, 2014 granting summary judgment to the respondent in the sum of €150,000 together with costs and remitting the balance of the claim to plenary hearing.

Background

2 On the 20th March, 2012 the respondent, a solicitor based at Swinford, County Mayo, instituted proceedings by way of summary summons against the appellants seeking to recover the sum of €245,916.94 in respect of fees and outlay alleged to be outstanding. The claim was disputed by the appellants and a motion seeking summary judgment came on for hearing before the President on the 17th July, 2014. The claim primarily pertained to fees due for professional services rendered to the appellants in respect of proceedings instituted in 2007 entitled Peter McNicholas and Nancy McNicholas v. Mayo County Council & SIAC Wills JV Limited (High Court Record No. 2007/6160P) (the 2007 proceedings).

History of 2007 proceedings

3 In 2004 six parcels of the appellants' lands at Cuilmore, Swinford, County Mayo had been acquired by way of compulsory purchase order by Mayo County Council in furtherance of construction of the Charlestown Bypass on the N5 roadway, the national primary route between Longford and Westport. Mayo County Council made a compulsory purchase order and same was confirmed by An Bord Pleanála pursuant to s.51 of the Roads Act, 1993 on or about the 10th November, 2004. The bypass cut across the access road to the appellants' residence and property. At issue in the 2007 proceedings was whether an appropriate alternative means of access to the appellants' said residential property had been provided. The access provided comprised an overbridge onto the property from the local road L-13032-0 rather than an underbridge as the appellants had sought. They contended, inter alia, that same did not constitute suitable alternative access to their lands as required by the provisions of the Roads Act, 1993. The action was heard over five days in the High Court and judgment was delivered on the 31st July, 2009 by McGovern J. ( [2009] I.E.H.C. 379).

4 The said judgment noted that the appellants had never challenged the bypass scheme and CPO which had been approved by An Bord Pleanála. McGovern J. determined the CPO scheme to be valid. The judgment noted that appellants had sought direct access from their property onto the bypass, but this was never an option. He found that the newly constructed access road, although built in accordance with a valid permission granted by An Bord Pleanála, appeared to be substandard and had been constructed on lands insufficient for the purpose. Nevertheless, he concluded that a suitable access way to the property of the appellants could have been constructed had they behaved in a more reasonable manner and that they had to bear responsibility for their own conduct. He refused to make any declaratory orders or grant injunctive reliefs as had been sought by the appellants.

5 The retainer of the respondent solicitors' firm was confined to the High Court proceedings only.

6 The decision was appealed to the Supreme Court and the judgment of that court was delivered by Dunne J. on the 1st June, 2017 as set out hereafter. She dismissed the appeal and allowed the cross-appeal brought by Mayo County Council.

Summary proceedings before the High Court

7 On the 7th June, 2013 the respondent issued a motion for judgment in the summary proceedings seeking liberty to enter final judgment in the sum of €245, 016.94 together with interest thereon from 10th November, 2010. There were eight affidavits before the High Court, two sworn by Douglas Kelly, the respondent, the 28th May, 2013 and the 4th November, 2013 and an affidavit of his father Charles Kelly sworn 4th November, 2013. Five affidavits were filed on behalf of the appellants. Peter McNicholas swore three affidavits on the 8th October, 2013, 28th January, 2014 and the 28th February, 2014 respectively. His daughter Marilyn McNicholas, herself a solicitor previously employed by the firm Douglas Kelly & Son, swore two affidavits on the 8th October, 2013 and the 28th January, 2014 supporting her parents' position and opposing the claim for fees.

Position of appellants before the High Court 17th July 2014

8 It is clear from the transcript of the hearing of the motion for summary judgment that the eight affidavits were opened in full before the President of the High Court. Prior to the hearing, the appellants had discharged their solicitors and Mr. McNicholas was a litigant in person. He was assisted in presenting his defence by Mr. Alan Lynskey, husband of his daughter Marilyn McNicholas. Mr Lynskey acted as McKenzie Friend for Mr. McNicholas also at the hearing of this appeal. Mrs. McNicholas was indisposed on the date of the hearing.

9 It was contended on behalf of the appellants that the indorsement of claim in the summary summons failed to expressly state that a signed bill of costs had been served upon them. Whilst the signed bill of costs was exhibited by the respondent in his first affidavit, it was contended that in addition Order 19, rule 3 of the Rules of the Superior Courts (RSC) required the pleadings to contain a statement of the material facts and the failure of the summary summons to expressly state that a signed bill of costs had been served was fatal to the claim.

10 Emphasis was placed by the appellants on the fact that...