Lett & Company Ltd v Wexford Borough Council


[2015] IESC 24

Supreme Court

McKechnie J.

[S.C. No. 196 of 2007]

Lett & Company Limited,
Wexford Borough Council, The Minister for Communications, Marine and Natural Resources, Ireland and The Attorney General,

Eoin McCullough S.C. (with him Derry Hand) for the applicant solicitors.

John Hennessy S.C. (with him Darren Lehane) for the plaintiff.

Cur. adv. vult.

Cases mentioned in this report:-

The Attorney General v. Open Door Counselling Ltd. (No.2) [1994] 2 I.R. 333; [1994] 1 I.L.R.M. 256.

B. v. B. [1975] I.R. 54.

Belville Holdings v. Rev. Commissioners [1994] 1 I.L.R.M. 29.

Blake, In re. Clutterbuck v. Bradford [1945] 1 Ch. 61; [1945] 1 All E.R. 1; (1945) 114 L.J. Ch. 129.

Born, In re. Curnock v. Born [1900] 2 Ch. 433.

Collins v. Gharion [2013] IEHC 316, (Unreported, High Court, Birmingham J., 9 July 2013).

Dallow v. Garrold (1884) 14 Q.B.D. 543.

Deakin, In re. Daniell, Ex parte [1900] 2 Q.B. 489.

Deighan v. Hearne [1986] I.R. 603.

Dhand. v. McCrabbe (1962) 96 I.L.T.R. 196.

Fitzpatrick v. DAF Sales Ltd. [1988] I.R. 464; [1989] I.L.R.M. 777.

Fuld, decd (No. 4), In the Estate of [1967] 3 W.L.R. 314; [1967] 2 All E.R. 649; [1968] P. 727.

Guy v. Churchill (1887) 35 Ch. D. 489.

Harrison v. Harrison (1888) 13 P.D. 180.

Hay v. O'Grady [1992] 1 I.R. 210; [1992] I.L.R.M. 689.

Higgs v. Higgs [1934] P. 95.

Hughes v. O'Rourke & Ors. [1986] I.L.R.M. 538.

Humphreys, In re. Lloyd-George & George, Ex parte. [1898] 1 Q.B. 520.

J. & G. McGowan Roofing Contractors Ltd. v. Manley Construction Ltd. [2011] IEHC 317, (Unreported, High Court, Laffoy J., 25 July 2011).

Larkin v. Groeger [1990] 1 I.R. 461.

Lismore Buildings Ltd. v. Bank of Ireland Finance Ltd. (No. 2) [2000] 2 I.R. 316.

M'Larnon v. Carrickfergus U. D. Council [1904] 2 I.R. 44.

Mount Kennett Investment Company v. O'Meara [2012] IEHC 167, (Unreported, High Court, Clarke J., 29 March 2012).

Murphy v. The Attorney General [1982] I.R. 241.

Northern Bank Finance v. Charlton [1979] I.R. 149.

O'R. v. O'R. [1985] I.R. 367.

The People v. O'Shea [1982] I.R. 384; [1983] I.L.R.M. 549.

The People (Director of Public Prosecutions) v. Sweeney [2001] 4 I.R. 102; [2002] 1 I.L.R.M. 532.

R. v. R. [1984] I.R. 296.

R.D. Cox Ltd. v. Owners of M.V. Fritz Raabe (Unreported, Supreme Court, 1 August 1974).

Rocheand Roche (1892) 26 I.L.T.R. 107.

Stokes (a minor) v. Christian Brothers High School Clonmel [2015] IESC 13, [2015] 2 I.R. 509; [2015] E.L.R. 113.

Sympson v. Prothero (1857) 26 L.J. Ch. 671.

Tormey v. Ireland [1985] I.R. 289; [1985] I.L.R.M. 375.

Ward v. Kinahan Electrical [1984] I.R. 292.

Wild v. Petitioning Creditors and Debtor (1934) 103 L.J. Ch. 303.

Practice and procedure — Costs — Solicitor — Charge — Jurisdiction — Jurisdiction to declare charge over award of costs in favour of solicitor — Statutory interpretation — Whether Supreme Court having jurisdiction to hear application for charge over costs order made by Supreme Court — Whether Supreme Court having exclusive jurisdiction to hear application for charge over costs order made by Supreme Court — Whether Supreme Court having jurisdiction to declare entitlement to common law lien — Legal Practitioners (Ireland) Act 1876 (39 & 40 Vict., c. 44), s. 3 — Constitution of Ireland 1937, Article 34.

McKechnie J. 10 March 2015


[1] The firm of solicitors, Matheson Ormsby Prentice, now Matheson (“the solicitors”), acting as such, represented the plaintiff in complex and lengthy commercial proceedings, at both trial and appeal level. These proceedings were finalised on 17 February 2012, with this court affirming a finding of liability in its favour and in awarding it damages, albeit reduced by the substitution of a sum of €650,000.00 for the €1.15 million granted in the High Court, all against the second and third defendants (“the Minister”). The plaintiff was also awarded its costs of the appeal against the same parties, with this court in addition “affirming” the existing cost order in its favour as made in the High Court.

[2] The plaintiff, whose family name has been well respected and well recognised for decades in the south east of this country and elsewhere, has in recent times suffered from serious financial disability. In January 2014 LSF VIII Pine Investments Ltd. (“Pine Investment”) purchased from Irish Bank Resolution Corporation Ltd. (“IBRC”) and the joint special liquidators of that corporation a portfolio of loans and related securities which included the plaintiff's debt to the former Anglo Irish Bank Corporation plc (“Anglo”) and the security by way of mortgage debenture given in respect thereof. It is therefore self evident that this company, although not named in the title, is the principal legitimus contradictor on the application next mentioned, even if the directors of the plaintiff also retain a vested interest by reason of the personal guarantees which they have given for this particular debt.

[3] Following the conclusion of the proceedings, the plaintiff's legal cost accountant drew up a bill of costs on a party and party basis which was submitted to the Minister in February 2013. The bill, which was referred to taxation, is presently before the Taxing Master with the process of taxation not yet concluded. However, in recognition of the evident fact that its liability in respect of costs will be substantial no matter what, the Minister, in October 2013, agreed to pay, in part discharge and on account, the sum of €500,000 which it did directly to the solicitors. This money remains in the client's account and has not been distributed by way of disbursement because of the plaintiff's insistence in controlling its destination and the recipients thereof: the same very much forms part of the present application.

[4] Prior to October 2007 it is readily acknowledged that the plaintiff made periodic payments in respect of fees totalling almost €1,098,471.55. However, since that date, apart from obtaining an agreed sum in respect of counsel's brief fee to appear on the appeal, which they immediately paid over, the solicitors have not received any payment whatsoever. They therefore say that based on the party and party bill, there remains due in respect of their costs, expenses and outlay to include counsel's fees a sum of €1,128,408.00 (inclusive of VAT).

[5] By reason of the debt laden position of the plaintiff and in view of the insistence by Pine Investment that the proceeds of taxation are expressly covered by the terms of the mortgage deed and thus must be remitted to it, the solicitors are justifiably concerned about not being able to recover any further sums in respect of their said costs, fees and outlay. Hence they make the following application.

The application

[6] By notice of motion dated 26 March 2014, the solicitors seek the following reliefs:-

  • “1. An order pursuant to s. 3 of the Legal Practitioners (Ireland) Act 1876 declaring that [the solicitors] are entitled to a charge upon the costs awarded to the plaintiff pursuant to an order of this honourable court dated the 17 February 2012, in respect of the professional fees, charges, expenses and outlay incurred in representing the plaintiff in the above entitled proceedings;

  • 2. further or in the alternative, a declaration that [the solicitors] hold a lien over the costs awarded to the plaintiff pursuant to an order of this honourable court dated 17 February 2012, in respect of the professional fees, charges, expenses and outlay incurred in representing the plaintiff in the above entitled proceedings;

  • 3. an order directing that the funds already received from [the Minister] in relation to the plaintiff's costs and held in the plaintiff's client account by [the solicitors] are to be paid out to discharge the professional fees, charges, expenses and outlay of [the solicitors], including any and all fees due to counsel;

  • 4. an order directing [the Minister] to pay the balance of the costs awarded to the plaintiff by this honourable court pursuant to the order dated 17 February 2012 to [the solicitors] within a reasonable period of time following the conclusion of the party and party taxation;

  • 5. further or other relief; and

  • 6. costs.”

[7] The application is grounded upon two affidavits of Mr. Stuart Margetson, solicitor, a consultant in the firm, and the various responding and replying affidavits of Mr. Richard Lett, a director of the plaintiff and of Mr. Geoffrey Johnston, a director of Pine Investment whose affidavit was filed in support of that company. A number of contested issues emerge from these affidavits both on the factual and on the legal side. It will be necessary at a later point in this judgment to further refer to such matters.

The issue

[8] At the opening of this motion a question arose as to whether this court has jurisdiction to entertain an application made under s. 3 of the Legal Practitioners (Ireland) Act 1876 (“the 1876 Act”) and if so, whether it was appropriate that the same should be determined by it. By agreement...

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