S.M. v HM
| Jurisdiction | Ireland |
| Judge | Mr. Justice Twomey |
| Judgment Date | 26 October 2017 |
| Neutral Citation | [2017] IEHC 655 |
| Docket Number | [2012 No. 3M] |
| Court | High Court |
| Date | 26 October 2017 |
[2017] IEHC 655
THE HIGH COURT
FAMILY LAW
Twomey J.
[2012 No. 3M]
IN THE MATTER OF THE FAMILY LAW (DIVORCE) ACT 1996
Family - The Family Law (Divorce) Act 1996 - Interlocutory application - Legal fees charged for judicial separation - Discovery of documents
Facts: In the present divorce proceedings, the applicant/husband filed a motion for seeking copies of documents in the possession of respondent/wife and her lawyers, and the recordings of hearings before the High Court and the Taxing Master. The applicant contended that the respondent paid very high legal fees to her lawyers and thus, breached the court order/undertaking wherein she stated that she could only pay a certain amount.
Mr. Justice Twomey held that the solicitor of the respondent would swear an affidavit, addressing all the concerns raised by the Court in the present judgment, pertaining to the charging of high level of legal fees and exemption of those fees from tax. However, the Court refused to provide the DAR hearings as in the opinion of the Court, it would not serve any purpose. The Court further held that the affidavit of the solicitor of the respondent should disclose all the notes of the conversations and documents between the respondent and her solicitor that related to the legal or other experts' costs and the taxation of those costs.
This is an interlocutory hearing, and so this Court does not have a full factual background, but nonetheless during the course of the hearing there were a number of issues raised which were of prima facie concern to this Court, namely:
- the incurring by the wife in these matrimonial proceedings (Mrs. M) of fees of €635,000 for a judicial separation, which was granted by MacMenamin J. on the 29th July, 2010;
- notwithstanding the fact that there is a court order that Mrs. M could pay €200,000 in legal fees (as a result of an application by her lawyers) pending the review of those legal fees as part of the taxation process, some €436,000 extra appears to have been paid by the wife to her lawyers, even though she was described by MacMenamin J. as someone who was not "financially minded" and she has averred in an affidavit for this hearing that she does not have enough money to buy a house;
- as part of the taxation process, Mrs. M, although acknowledging that the level of fees made her " gasp in horror", nonetheless stated that did not wish to have them reduced, even though this runs counter to her own financial interests.
These issues were raised by Mr. M in the interlocutory hearing before this Court which dealt with motions issued by Mr. M in relation to proceedings issued by him, in which he seeks a divorce from Mrs. M. In these motions he seeks copies of documents in the possession of his wife and/or her lawyers and recordings of hearings before the High Court and the Taxing Master.
In support of his motions, Mr. M refers to the fact that Mrs. M is seeking financial provision from Mr. M and that Mrs. M is not a 'financially minded person' when it comes to, inter alia, the legal fees which she is paying. This description of Mrs. M arise from the judgment of MacMenamin J. dealing with their judicial separation ( HM v SM and The P. Trust Ltd, unreported, High Court, 29th July, 2019). At paragraph 54 of that judgment, he stated:
'A further duty of a court is to ensure that the resources allocated to either spouse are protected from mismanagement. In this context there are a number of salient features.
First, it is clear that [Mrs M], objectively speaking, is not a 'financially minded' person. This observation is not made in any critical sense. Nor is it made by any process of invidious comparison with [Mr. M] who comes very much within that description. By way of illustration, the applicant appears to have no specific recollection of the substantial financial transactions to which she herself was a party. She did not have any great appreciation of the potential ultimate value of G. had the flotation actually succeeded.'
The first motion is dated 20th July, 2017, and in it Mr. M seeks an order for discovery of all documents between Mrs. M and her solicitor relating to her legal costs and the taxation of them between 2011 and 2017.
Mr. M has raised issues of prima facie concern to this Court regarding both the level and payment of these legal fees, albeit that this Court, at this stage in the proceedings, is not in a position to make any findings of fact in relation to these issues. The issues of concern will be dealt with in turn.
First, as a general point, there is something profoundly depressing about witnessing a couple who have had the misfortune of having a marriage break-up, undergo the double misfortune of having to pay what is, to any normal person, an inordinate amount of money in legal fees, in this case €635,000, even it is caused by the unreasonableness of one or both of the parties.
In this case, Mrs. M's fees were €635,000 for the judicial separation alone, as the costs of the divorce are separate ( albeit that Mr. M. provided uncontroverted evidence to the Court that the Taxing Master reduced these fees by €127,000, which would leave the fee in the region of €508,000 for the judicial separation).
As the level of legal fees charged to clients, or permitted by the Taxing Master, is not a matter in which the courts are normally involved and particularly as family law proceedings are held "in camera", this Court is not in a position to say whether this level of fee for a judicial separation is most unusual.
The decision of the Taxing Master in this case was subject to an application by Mr. M for review by Noonan J. in the High Court in a case reported as H.M. v S.M. and the PTC Limited [2015] IEHC 727. This application was unsuccessful and the High Court decision is currently under appeal to the Court of Appeal.
For his part, Mr. M believes that the reduction by the Taxing Master should be greater. Mr. M has pointed to the fact that he was legally represented for the separation proceedings and while Mrs. M was charged €635,000, he was charged €127,038, a fifth of Mrs. M's fees. Mr. M is no longer legally represented and in light of the costs involved, it is perhaps no great surprise that he is now a lay litigant. It is to be noted that it is not just Mr. M who is critical of the legal fees incurred by Mrs. M in the separation proceedings, since MacMenamin J. was critical of the level of legal costs incurred in the couple's judicial separation and at paragraph 57 of his judgment of 29th July, 2010 ( H. M. v. S. M. and The P. Trust C. Ltd), he states:
'... it is estimated that the applicant's legal costs by the conclusion of this case will be a multiple of the respondents by a factor of four. The Supreme Court has commented on the level of costs in cases of this type. Very substantial sums of money are involved here as costs. Other than having received a broad outline from her solicitor at the outset of the proceedings, the applicant took no steps to ascertain her own potential financial exposure as to costs. She is not to be criticised for placing herself 'in the hands of her lawyers', but nowadays it might be expected that any client would seek some form of ongoing information as to the costs which primarily she would be incurring. In this context I do not think there was any real justification for the bringing of two interlocutory motions, one seeking to bar the husband from the family home. I do not think such a radical measure was warranted.'
It is important to note that MacMenamin J. also attributed blame to Mr. M for the high level of legal fees, since at paragraph 84 of the same judgment, he states:
'There was late provision of financial information from the husband. This added to the length of the case by a factor of three or four days. The husband chose not to retain an accountant. This again would have shortened the case and reduce costs.'
In this regard it is also important to record what Noonan J. stated regarding the conduct of Mr. M when he was asked to review the decision of the Taxing Master on the application of Mr. M. Thus in H.M. v S.M. and the PTC Limited [2015] IEHC 727 at paragraph 23, Noonan J. stated:
'It is in my opinion appropriate that I should express my view as to the manner in which this application was conducted by [Mr. M]. As I have noted, [Mr. M] made extremely serious allegations against the solicitor for the costs. Not only were these unsupported by evidence but they were in effect flatly contradicted by the client whose bill is the subject of the taxation, [Mrs. M]. I've already alluded to the fact that the order of MacMenamin J. was unusual and quite possibly unique. Indeed, the taxing master in one of his rulings stated that he had never encountered such an order.'
Having expressed concern about the level of fees, in a subsequent hearing on the 22nd July, 2011 ( HM v SM and P Trust C Ltd), MacMenamin J. held at page 4 of his judgment that, in light of Mr. M's obligation to make provision for Mrs. M:
'I think he has a legitimate interest in seeking to ensure that the costs are minimised.'
For this reason, MacMenamin J. then made what has been described by Noonan J. on the 25th November, 2015 as an " unusual and quite possibly unique" order (at paragraph 24 of his judgment), since he gave Mr. M the right to make representations to the Taxing Master in relation to the taxation of Mrs. M's costs, because he had an interest in those costs not being excessive. MacMenamin J. ordered that Mrs. M's costs be taxed. On an application by counsel for Mrs. M,...
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