Mason Hayes and Curran v Queally

JurisdictionIreland
JudgeMr. Justice McDermott
Judgment Date26 October 2018
Neutral Citation[2018] IEHC 614
Docket Number[2010 No. 345 S.]
CourtHigh Court
Date26 October 2018
BETWEEN
MASON HAYES

AND

CURRAN
PLAINTIFF
AND
MARIE LOUISE QUEALLY
DEFENDANT

[2018] IEHC 614

[2010 No. 345 S.]

THE HIGH COURT

Legal services – Liability – Breach of contract – Plaintiff seeking the balance of fees said to be due and owing to the firm by the defendant – Whether the defendant was liable for the amount claimed

Facts: The plaintiff, Mason Hayes and Curran, is a firm of solicitors which merged with Arthur O’Hagan & Company solicitors in 2010. The defendant, Ms Queally, retained Ms O’Brien, an experienced family law solicitor and a partner in Arthur O’Hagan & Company, to act on her behalf in the course of matrimonial proceedings which were eventually compromised in 2008. The plaintiff claimed the balance of fees said to be due and owing to the firm by the defendant for legal services, advice and representation rendered while retained in the course of those proceedings. The defendant denied liability for the amount claimed and counterclaimed for damages for loss allegedly caused by the negligence and breach of duty of her former solicitors and breach of contract.

Held by the High Court (McDermott J) that the plaintiff was entitled to judgment in the amount of €64,818.70. McDermott J was not satisfied on the evidence that the defendant had established on the balance of probabilities that the plaintiffs or Ms O’Brien were negligent or acted in breach of duty or contract by failing to protect the defendant’s interests in the drafting of clause 4 of the terms of the settlement or failing to secure the enforcement of clauses 4 and 11. McDermott J was satisfied that the terms of clause 11 provided an effective legal mechanism for the sale of the property situated at Dunquinn, County Kerry, and that the defendant and her father were requested to provide the necessary instructions to take the necessary steps to apply to the High Court to do so at a time which would have secured the proceeds of sale for the discharge of the husband’s liability to the bank. McDermott J was also satisfied that those instructions were not given by the defendant at all. Had they been given McDermott J was satisfied that they would have been acted upon in a timely and effective way by Ms O’Brien and the plaintiffs and most likely before September 2009. In addition McDermott J was not satisfied that the failure to register clause 11 and the order of 7th November 2008 as a burden on the Dunquinn property in the circumstances of the case amounted to negligence or breach of duty.

McDermott J held that the defendant’s counterclaim would therefore be dismissed.

Relief granted.

Judgment of Mr. Justice McDermott delivered on the 26th day of October 2018
1

The plaintiff is a firm of solicitors (which merged with Arthur O'Hagan & Company solicitors in 2010). The defendant retained Ms. Jennifer O'Brien an experienced family law solicitor and a partner in Arthur O'Hagan & Company to act on her behalf in the course of matrimonial proceedings which were eventually compromised in 2008. The plaintiff's claim is for the balance of fees said to be due and owing to the firm by the defendant for legal services, advice and representation rendered while retained in the course of those proceedings. The defendant denies liability for the amount claimed and counterclaims for damages for loss allegedly caused by the negligence and breach of duty of her former solicitors and breach of contract.

The Retainer
2

On 15th July, 2005 the defendant attended Ms. Jennifer O'Brien in Arthur O'Hagan & Co. solicitors and retained her to act on her behalf in matrimonial proceedings concerning her judicial separation and subsequent divorce from her husband, Mr. Michael Casey. Arthur O'Hagan & Co. subsequently merged with the plaintiff firm of solicitors and at all material times continued to represent Ms. Queally until 23rd March 2011, when a Notice of Change of Solicitor was served by Nolan Farrell and Goff, solicitors.

3

By letter dated 22nd July, 2005 to Ms Queally, Ms. O'Brien, following an initial consultation, set out a summary of the issues then believed to exist between the defendant and her husband arising from their marital breakdown. There were four children of the marriage aged at that time between two and nine years. The family home was a large residence in Malahide, County Dublin and Ms. Queally (and her former husband) also owned property in Spain.

4

Ms. Queally instructed her solicitors that the family had moved to the house in Malahide in August, 2003 where they remained for approximately one year before moving to Spain in May, 2004. She rented accommodation there. She then returned to Ireland in August, 2004 subsequently returning to Spain in September, 2004 where the children attended school.

5

Ms. Queally was also a minority shareholder in a family group of companies the other shareholders being her parents, siblings and cousins. She was therefore the owner of substantial assets and in receipt of a significant income. Her husband operated an interior plant and maintenance business which was very successful at the time. This enabled him to invest in other business interests and in particular, property development. He also had substantial assets. Ms. O'Brien informed the defendant that it would be necessary when addressing various issues in the matrimonial proceedings to determine Ms. Queally's annual income and the value of her assets. It would, of course also be necessary to examine her husband's income, assets and liabilities. This would provide the evidence upon which the court would be required to assess their respective financial positions and enable her solicitors to advise her as to what a fair and reasonable financial outcome of her case might be in the circumstances.

6

The letter also set out for Ms. Queally the basis upon which legal fees would be charged by the firm. This part of the letter which was clearly composed in order to comply with the requirements of s. 68 of the Solicitors (Amendment) Act 1994 stated:-

‘Costs and Fees:

On the question of costs, this was discussed at our meeting and your responsibilities are now set out more fully in writing as we are obliged to either give you an estimate of fees or to inform you of the basis on which charges are incurred. If you wish to retain Arthur O'Hagan to act on your behalf, you must be responsible for the legal fees due for all work done on your behalf on a solicitor/client basis. The fees chargeable will be calculated mainly by reference to all time spent by me and other personnel dealing with this matter. To this end all time spent on the file is recorded. Time includes advising, attending on you and others by telephone and in person, dealing with papers, correspondence, telephone calls, travelling and waiting times. Unfortunately, with the volume of business being processed in the family Courts there can be delays and a lot of time spent at Court waiting for cases to be called on for hearing. As explained, I am the partner in charge of the family law group and my current charge out rate is €275 per hour. The cost will also reflect the complexity and urgency of the case, the value of the transaction and the priority with which you wish the matter to be treated.

If an application is made to the Courts counsel's fees are also payable by you. Likewise, if an accountant is instructed to carry out a review of financial documentation their fees are also payable by you. There may also be fees for property valuations and pension advice. I will discuss these aspects with you again when other persons need to be consulted.’

7

The plaintiff gave detailed instructions to Ms. O'Brien concerning her case. It is clear from the instructions and from the affidavits later exchanged between the parties that this was a difficult and highly contentious matrimonial dispute. It involved allegations and counter allegations between the plaintiff and her former husband. It involved serious issues concerning the welfare of the children. It also concerned issues relating to maintenance and property. Both husband and wife had extensive property interests which had to be fully analysed by accountants retained by each side. To that end the solicitors instructed Mr. Des Peelo of Peelo and Partners to advise in relation to all financial aspects of the case including the assessment of her husband's income, the value of his assets and the calculation of the value of the plaintiff's shareholding in the family business, her other assets, if any, and any income that was potentially to be derived therefrom or otherwise, all of which were understood to be substantial. Following a consultation on 2nd September, 2005 instructions were given to issue a special summons. It was issued on the same date. A grounding affidavit was sworn on 7th December, 2005.

The Family Law Proceedings
8

Ms. O'Brien advanced the High Court proceedings. Disclosure and discovery were sought in relation to the husband's financial situation and reciprocal information was sought from her. Mr. Alan Shatter of Gallagher & Shatter, solicitors represented the defendant's former husband. This work largely concerned the determination of the value of the assets and liabilities of each party and the clarification of same in advance of the High Court hearing. The exchange of information and the raising of queries continued throughout 2006.

9

On 2nd February, 2007 Ms. Queally attempted to reach an agreement with her husband without the involvement of her solicitors. This proved unsuccessful. She complained to her solicitor that her husband became extremely aggressive towards her at this time. Her solicitors expressed concern at possible attempts to manipulate her into an agreement against her interests. The defendant claimed that her husband failed to discharge maintenance payments of €10,000.00 per month which he had agreed to pay and pressed for some action on this aspect of the case: she...

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