Naylor [Otherwise Hoare] v Maher

• Jurisdiction: Ireland
• Judge: Mr Justice Oisín Quinn
• Judgment Date: 21 November 2024
• Neutral Citation: [2024] IEHC 667
• Court: High Court
• Docket Number: Record No. 2008/11089P

In the Matter of An Application Pursuant to Section 3 of the Legal Practitioners (Ireland) Act, 1876

Between:

William Naylor (Otherwsie Hoare)

Plaintiff

and

Jean Maher

Defendant

[2024] IEHC 667

Record No. 2008/11089P

THE HIGH COURT

JUDGMENT of Mr Justice Oisín Quinn delivered on the 21 ^st day of November, 2024

I. Introduction

1 This judgment concerns an application made on behalf of a firm of solicitors, James Lucey & Company (the “Firm”), for orders pursuant to section 3 of the Legal Practitioners (Ireland) Act, 1876 in respect of unpaid fees due from the plaintiff for litigation, being this probate case.

2 Section 3 of the 1876 Act is a charging provision which entitles the court to make an order declaring that a solicitor who has litigation costs due from a client is entitled to a charge in respect of those outstanding costs against both property and an order for costs recovered for the client as a result of that litigation.

3 This application was initiated by way of a Notice of Motion issued on 14 June 2024 and heard by this court on 8 and 12 November 2024. The application was grounded on an affidavit sworn by Mr. Lucey, the principal solicitor in the Firm. There was an affidavit sworn by the plaintiff in opposition to the application and then a further supplemental affidavit of Mr. Lucey. Those affidavits disclose a significant factual dispute as to the nature of the arrangement claimed to have been agreed in relation to fees.

4 The outstanding legal costs in question relate specifically to the fees of counsel incurred when acting for the plaintiff in these probate proceedings, firstly in the High Court and then in the Court of Appeal between 2011 and 2018. During the proceedings the plaintiff was represented by a different firm of solicitors whose fees (excluding the bulk of Counsels' fees) were ultimately discharged by means of an agreement reached between the plaintiff and that original firm of solicitors. After the proceedings had concluded, the plaintiff was then represented by a different firm of solicitors, which firm then ceased practice and then the file passed to the Firm making this application. There were further legal disputes concerning the estate to which the plaintiff was a notice party.

5 As a result of the litigation the Plaintiff recovered a 122 acre farm and was granted an order for 75% of his High Court costs and all of his Court of Appeal costs, which were ordered as “costs in the administration of the Estate”. The Firm seeks a section 3 order over both the costs and the farm.

II. Background

6 The underlying proceedings concerned a claim by the plaintiff (the “former client”) challenging the last will of his late father (the “Deceased”) who died on 7 April 2007. The defendant is the sister of the plaintiff, and she was originally the executrix of the Deceased's estate, until being removed in 2019 by the High Court.

7 The Deceased's estate included a farm of some 122 acres in Tipperary (the “Farm”). The last will of the Deceased made on 9 November 2006 left the Farm to the defendant. A previous will made on 30 September 2005 had left the Farm to the plaintiff. The plaintiff claimed that he was entitled to the Farm on two grounds. Firstly, that he had been promised the Farm for many years and had worked on the Farm for decades for minimal pay and that, consequently, a proprietary estoppel arose. Secondly, he sought to have the last will struck down on the grounds that it was extracted by duress and undue influence.

8 The case ran in the High Court before Mr. Justice O'Keeffe for 21 days between 19 October 2011 and 3 February 2012. Judgment was delivered by O'Keeffe J. on 14 September 2012; see [2012] IEHC 408. A consideration of the judgment indicates the deep-rooted origins of some of the matters in dispute between the parties.

9 The plaintiff succeeded on the proprietary estoppel ground and was found to be entitled to ownership of the 122 acre Farm and was entitled accordingly to be registered as full owner of the Farm, being the lands contained in Folios 21455 and 18131 of the Register of Freeholders, County Tipperary. The plaintiff was unsuccessful in his challenge to the last will. Both the plaintiff and the defendant were granted orders for their costs “in the administration of the estate” by Order of O'Keeffe J. make on 21 January 2013.

10 The defendant appealed the proprietary estoppel finding of the High Court and the appeal was ultimately heard by the Court of Appeal on 18 December 2017. By Order of 7 February 2018, the Court of Appeal dismissed the appeal and affirmed the order of the High Court, except that the plaintiff was required, as a condition of receiving the transfer of the entire Farm to disclaim a bequest of €150,000 in the last will (the last will had not left the Farm to the Plaintiff, but rather just provided for this bequest) and, in addition, the costs order made by the High Court was varied to provide that the plaintiff recover 75% of his costs in the High Court (on the grounds that the duress and undue influence argument had been unsuccessful). The plaintiff was awarded his full costs of the Court of Appeal, and both sets of the plaintiff's costs were made “costs in the administration of the Estate”. In addition, the defendant's costs in the Court of Appeal were also made “costs in the administration of the Estate”.

11 Unfortunately, there has been further litigation in relation to this estate. The solicitor who had acted for the defendant as executrix in these proceedings brought proceedings in 2018 to have her removed as executrix. Those proceedings were successful and accordingly, by Order of the High Court made on 5 March 2019 the defendant was removed as executrix and Mr. Gilvarry, the solicitor, was appointed as administrator in her place. Subsequently, Circuit Court proceedings commenced between the administrator and the defendant concerning another property in the estate. This led to further costs being incurred in the administration of the estate.

12 As a result of all of the foregoing, the position now is that the estate has become insolvent and cannot discharge all of the costs that have been incurred. Indeed, according to the Administrator, the funds in, and likely to be realised by, the estate are estimated to probably be insufficient to meet even the costs of the executrix and latterly the administrator, much less the costs of the plaintiff herein, which have also been ordered by the court as “costs in the administration of the Estate”.

13 Consequently, Mr. Gilvarry, as administrator of the Deceased's estate, has then brought further proceedings, this time, against the plaintiff herein by way of Special Summons record number 2023/311, seeking orders as to the priority to be applied in respect of the various costs that have arisen. Judgment in that matter has also been delivered today by this Court in which I have concluded that the executor's and administrator's costs take priority.

14 As a result of the litigation, the plaintiff is now the owner of the Farm. He also has an entitlement to 75% of his costs in the High Court and his costs in the Court of Appeal, both of which have been ordered as “costs in the administration of the Estate”.

15 The plaintiff reached an agreement with and discharged an agreed sum to the initial firm of solicitors who represented him in the High Court and the Court of Appeal. He also paid an initial sum of €30,000 to his senior counsel in advance of the High Court hearing. According to the applicant Firm herein, a further total sum of €351,853.50 is due for the balance of the fees due to counsel for the High Court and Court of Appeal hearings. This figure was gleaned by counsel for the Firm referring to fee-notes exhibited in an affidavit of the plaintiff filed in the Special Summons proceedings referred to above (in which the plaintiff herein is the defendant).

16 According to the judgment of O'Keeffe J. at para 3, the evidence was that as of February 2011 the Farm was worth €525,000.00.

17 According to the parties, the Farm is currently not charged or encumbered in any way. It is not disputed that the Farm is being farmed by the plaintiff, and it is said, without dispute, that the plaintiff has no intention of disposing of or otherwise encumbering the property. Nor is the application based on any apprehension by the Firm that the plaintiff intends to or is considering selling or otherwise encumbering the Farm.

18 In relation to the costs outstanding, the grounding affidavit of Mr. Lucey states that Bills of Costs incorporating Counsels' fees have been filed with the Office of the Legal Costs Adjudicator and a hearing date for adjudication is currently awaited.

19 Accordingly, the Firm seeks orders pursuant to section 3 of the 1876 Act declaring that the Firm is entitled to a charge, and the consequential right to payment out, for these fees over:-

• (i) the order for costs made in favour of the plaintiff in both the High Court and Court of Appeal;

  and more particularly (in light of the insolvency of the estate)

• (ii) the Farm, being property recovered by the plaintiff in the proceedings.

III. Submissions

20 Fundamentally, the plaintiff says that the Orders sought are not necessary. Specifically, on behalf of the plaintiff, it is said that a number of issues with these costs have been raised. These are summarised in a letter from the plaintiff exhibited by Mr. Lucey at JL4 of his second Affidavit and are deposed to in the plaintiff's Affidavit. The principal objection is a fundamental one. The plaintiff's starting position is that having paid the sum of €30,000 to his senior counsel in advance of the trial in the High Court his understanding was that it was agreed that the balance of Counsels' fees were thereafter to be discharged from the Estate. This, it is said, it not a bare assertion. The plaintiff's position...