Mulheir and Arnold v Gannon

• Jurisdiction: Ireland
• Judge: Miss Justice Laffoy
• Judgment Date: 17 July 2006
• Neutral Citation: [2006] IEHC 274
• Date: 17 July 2006
• Court: High Court
• Docket Number: [2005 No. 608 SP]

MULHEIR & ARNOLD v GANNON T/A CLAFFEY GANNON SOLICITORS

BETWEEN/

MICHAEL MULHEIR AND MARIE ARNOLD

PLAINTIFFS

AND

GERARD GANNON, PRACTISING UNDER THE STYLE AND TITLE OF CLAFFEY GANNON SOLICITORS

DEFENDANT

[2006] IEHC 274

NO. 608 SP/2005

THE HIGH COURT

PROFESSIONS:

Solicitors

Costs - Lien - Solicitor discharging himself for reasonable cause - Nature of lien -Undertaking - Whether solicitor entitled to unconditional undertaking from new firm in respect of costs and disbursements - Whether disbursements should be reimbursed prior to release of file - Gamlen Chemical Ltd v Rochem Ltd [1980] 1 WLR 614, Heslop v Metcalfe (1837) 3 My & C 183 and Robins v Goldingham (1872) LR 13 Eq 440 followed -Delivery of file subject to conditions ordered (2005/608Sp - Laffoy J - 17/7/2006) [2006] IEHC 274

Mulheir v Gannon

Facts: The plaintiffs, who were former clients of the defendant solicitor, sought inter alia delivery of all files held in the possession of the defendant relating to the plaintiff. The defendant claimed to have a common law lien on the files in issue. The plaintiff contended that the existence of the lien depended upon there being a taxed bill of costs, which there was not.

Held by Laffoy J., that the existence of a lien was not dependant upon a taxed bill of costs. An order would be made directing the defendant to deliver the file to the plaintiffs new solicitors, subject to reimbursement of the outlay incurred to the defendant and an undertaking to the defendant to hold the files subject to the lien, without prejudice to the defendant's claim for costs against the plaintiff.

Reporter: E.F.

CAULFIELD v BOLGER 1927 IR 117

BOND v HOLTON 1959 IR 302

RSC O.3 r19

RSC O.53 r22

RSC O.53 r17

RSC (SOLICITORS (AMDT)) ACT 2002 2004 SI 701/2004

SOLICITORS (AMDT) ACT 1994 S68(1)

RSC O.99 r7

GAMLEN CHEMICAL LTD v ROCHEM LTD 1980 1 WLR 614

ROBINS v GOLDINGHAM 1872 LR 13 EQ 440

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS

HESLOP v METCALFE 1837 3 MY & C 183

RSC O.7 r2

1 Judgment of Miss Justice Laffoy delivered on 17th July, 2006

The proceedings

2 There are some unsatisfactory procedural aspects of these proceedings, which were initiated by special summons which issued on 9th December, 2005 and which are being prosecuted by the plaintiffs in person. I will deal with those aspects at the outset.

3 First, each of the plaintiffs is a former client of the defendant who practises as a solicitor in Castlerea, County Roscommon. When this matter was first before the court on 8th May, 2006, the plaintiffs" claim was set out in the special endorsement of claim on the special summons as follows:

"The plaintiffs" claim is for the delivery by the defendant(s) of all files, documents, papers, exhibits, including all originals held in the possession of the defendant(s) relating to the plaintiffs in all matters, including the proceedings before the court(s) and any matters in which items are held and which are not before any court.

The plaintiffs seek an order from the court that the defendant(s) shall deliver all such items within seven days, or such period of time as the court feels is reasonable."

4 The special summons, as filed in the Central Office, did not disclose the grounds on which the plaintiffs were pursuing the relief they sought.

5 At the hearing on 8th May, 2006 counsel for the defendant argued that the application should be refused on the basis that the claim was not properly pleaded and cited two authorities: Caulfield v. Bolger [1927] I.R. 117; and Bond v. Holton [1959] I.R. 302. The plaintiffs represented to the court that grounds of claim had been included on a separate page in the summons. The first plaintiff handed into court a document which he represented was a replica of the page in question. Frankly, I believe that the plaintiffs misrepresented the position to the court on that occasion and that the special summons as filed and served on the defendant did not contain grounds of claim. In any event, the plaintiffs were given leave to serve an amended special endorsement of claim. When the matter was before the court on 3rd July, 2006 counsel for the defendant made no further objection to the sufficiency of the pleading and dealt with the matter on the merits.

6 Secondly, on the amended endorsement of claim the plaintiffs invoke O. 3(19) of the Rules of the Superior Courts as entitling them to bring the proceedings by way of special summons. That category of application which may be brought by special summons covers:

"Applications for taxation and delivery of bills of costs and for the delivery by any solicitor of deeds, documents and papers where there is no pending proceeding in which the application may be made."

7 While the affidavit evidence as to the number and status of actions which are pending in this Court at the suit of the plaintiffs is anything but clear, there is no doubt, on the basis of the first plaintiff's response to a question put to him on 3rd July, 2006 which I had verified, that there are proceedings pending in the court in which this application could have been brought. However, as no objection was taken on behalf of the defendant to the invocation of O. 3(19), I propose dealing with this matter on the basis that the defendant accepts that the court has jurisdiction to deal with it by way of special summons. However, in adopting this approach I am not overlooking a submission made by counsel for the defendant at the hearing on 3rd July, 2006 that the matter should be remitted to plenary hearing, the intention of the defendant being to bring an application for security for costs. Having regard to the approach I propose adopting to the controversies which have arisen between the parties, I do not consider that it is necessary, in the interests of justice, that this matter go to plenary hearing.

8 Fourthly, in his written legal submissions the defendant, who claims to have a common law lien on the files in issue, submitted that, if the court were minded to order the defendant to effect delivery of the files to the plaintiff in spite of the existence of the lien, he would seek to rely on O. 53, r. 22 of the Rules, which I understand to be intended to be a reference to O. 53, r. 17 (as substituted by the Rules of the Superior Courts (Solicitors) (Amendment) Act, 2002) 2004 (S.I. No. 701 of 2004). That provision permits an application for the delivery by a solicitor to an applicant client or former client of a cash account, or the payment of monies or securities, which the respondent solicitor has or had in his custody or control, to be made to the President of the High Court by notice of motion. As the plaintiffs have not pursued an application under that provision, in my view, it is of no relevance. In any event, it would appear not to apply to files. Further, the jurisdiction thereby conferred is vested in the President of the High Court. This Court was not asked to transfer this matter to the President. In any event, I understood the defendant's position to be that he did not require the amount of the costs which he alleges is owed by the plaintiffs to him to be lodged in court.

The relevant facts

9 I found it very difficult to extract the relevant facts from the affidavits filed on this application. They raise matters which are irrelevant to the issue before the court, which is whether the defendant should be ordered to deliver the plaintiffs" files to them and, if so, on what terms. As regards that issue, the evidence is disjointed and incomplete. Having said that, the relevant facts appear to be as follows:

10 • In November, 1998 both plaintiffs instructed the defendant to initiate proceedings on their behalf against State authorities arising out of a search of their home on 5th November, 1998. On foot of those instructions, High Court proceedings were initiated by the defendant on their behalf. However, the proceedings have not gone beyond plenary summons stage.

11 • In May, 2003 the defendant recommended to the plaintiffs that they retain alternative legal representation, thereby effectively terminating his retainer. The defendant has averred in these proceedings that the plaintiffs" relationship with his office deteriorated due to the manner in which they behaved and that he had no alternative but to adopt that course. The plaintiffs refute that last contention. Obviously, it is impossible to resolve that conflict on affidavit evidence.

12 • The issue of the outlay incurred by the defendant during, and the costs due to the defendant in respect of, his retainer arose after May, 2003. The plaintiffs have exhibited the second page only of a letter of 17th July, 2003 from the defendant to the plaintiff in the penultimate paragraph of which the defendant made the following offer to the plaintiffs:

"In ease of you however and despite our unhappy experiences with you to date we are prepared to release the papers in exchange for reimbursement of all outlays incurred on your behalf or on behalf of Marie Arnold to date and the payment on account of costs and which we would assess at the sum of 4,000 euros with VAT thereon at 21%. Release of papers will involve an amount of photo-copying the cost of which will require to be met over and above at the rate of 20c per page."

13 Around that time the plaintiffs retained a Dublin firm of solicitors, Keans, to act for them. On 6th August, 2003 Keans requested a detailed bill of costs from the defendant. The defendant's response dated 25th August, 2003 has not been exhibited. However, it was referred to in the next letter from Keans to the defendant, a letter dated 28th August, 2003, in which Keans confirmed to the defendant that he should expect to receive no further communication from the first plaintiff. Keans asked to be contacted...