Sandys & Brophy v Law Society of Ireland

CourtHigh Court
JudgeKearns P.
Judgment Date12 June 2015
Neutral Citation[2015] IEHC 363
Date12 June 2015

[2015] IEHC 363


Sandys & Brophy v Law Society of Ireland





Wills & Probate – Professional Ethics & Regulation – S. 68 (1) of the Solicitors (Amendment) Act 1994 – Fair procedures – Audi alteram partem

Facts: The applicants being the administrators of the estate of the deceased sought an order of certiorari quashing the determination of the Committee of the respondent referring the issue of the applicant's failure to send estimates of costs under s. 68 (1) of the Solicitors (Amendment) Act 1994 to the residuary beneficiary of the estate of the deceased. The applicants sought an order to quash the determination of the Committee directing the applicants for repayment of a certain amount of money to the residuary beneficiary being excessively charged. The applicants contended that the Committee did not follow fair procedures as the applicants were denied an opportunity of fair hearing so that they could not adduce evidence in support of their assertions. The applicants alleged that the Committee had failed to provide reasoned decisions and unlawfully delegated its decision-making function. The applicants contended that they were not bound to issue a letter under s. 68 (1) of the Solicitors (Amendment) Act 1994 as the term ‘client’ does not include residuary beneficiary.

Mr. Justice Kearns P. refused to grant an order of certiorari to the applicants and affirmed the decision of the Committee. The Court held that the Committee afforded full opportunity to the applicants to submit an expert report in support of their assertions, failing which the Committee hired an independent expert at its own expense with the consent of parties and also allowed the parties to make submission regarding the said expert report. The Court found that the Committee being the quasi-judicial body need not elaborate every aspect of its decision and it would suffice if it resolved the core issues between the parties. The Court observed that the term ‘client’ under s. 2 of the Solicitors (Amendment) Act 1994 extended to include a beneficiary to an estate, under a will, intestacy, or trust covering the situations where solicitors were acting in dual capacity of executors and solicitors and any approach contrary to that would defeat the purposes of the legislature leaving the beneficiaries without any recourse or remedy.


JUDGMENT of Kearns P. delivered on the 12th day of June, 2015


The applicants seek an order of certiorari quashing the determination of the Complaints and Client Relations Committee ('the Committee') of the respondent of the 3 rd July, 2013 whereby the issue of the applicant's failure to send an estimate of costs in accordance with section 68(1) if the Solicitors (Amendment) Act 1994 to the residuary beneficiary of the estate of Ms. Maureen O'Connell, deceased, was referred to the Solicitors Disciplinary Tribunal.


Orders are also sought to quash the determination of the Committee that there was evidence of excessive charging by the applicants in respect of three bills submitted to the residuary beneficiary of the estate of the late Ms. O'Connell and directing that the applicants repay the sum of €340,070 to the residuary beneficiary. A further order is sought preventing the referral of the alleged overcharging to the Solicitors Disciplinary Tribunal.


The applicants are both solicitors and members of the respondent Society. They have practised under the style of Sandys & Brophy Solicitors with an address at Sea Road, Galway.


The applicants were retained by Ms. Maureen O'Connell to act as her solicitor during her lifetime and were appointed as executors of her last will and testament. Ms O'Connell passed away on the 5 th May, 1998 and a Grant of Probate in respect of her will was extracted on the 7 th October, 2004. Her estate was valued at approximately €14,000,000 at that time and the Society of St. Vincent de Paul is the sole residuary beneficiary named in the deceased's last will and testament.


Following the death of Ms. O'Connell, the applicant set about the task of administering her estate. The applicants were required to institute High Court proceedings in 1998 seeking to prove the last will and testament of the deceased and to condemn a subsequent will. These proceedings were eventually settled in March 2013. Circuit Court proceedings were also commenced in December 2005 seeking possession of a premises known as O'Connell's Bar at 8, Eyre Square, Galway. This valuable licensed premises constituted the principal asset in the deceased's estate. The defendant in those proceedings issued a counterclaim and those proceedings were ultimately compromised in June 2006 subject to the consent of the Attorney General and the Commissioner for Charitable Bequests and Donations. Once approved, the licensed premises was sold for €14,000,000.


Further professional services were provided by the applicants in connection with the extraction of a Grant of Probate and the conveyance of two separate properties owned by the estate, namely the premises at Eyre Square and a site at Castlegar, Tuam Road, Galway.


Five separate bills of costs were raised by the applicants in relation to the professional services provided and their fees were discharged out of the deceased's estate. On the 23 rd February, 2011 Mr. Cormac Brennan, solicitor for the Society of St. Vincent de Paul, made a complaint to the respondent Society alleging that the applicants had charged excessive fees for the provision of professional services and had failed to furnish the deceased's estate with an estimate of the legal fees as required by section 68 of the Solicitors (Amendment) Act 1994. The complaint was referred to the Committee on the 5 th September, 2011. Correspondence ensued and the applicant was requested by the Committee to provide detailed schedules to their bills of costs, setting out the nature of the work undertaken and the basis upon which the fees were calculated.


Throughout the subsequent months there was a considerable amount of correspondence between the Committee, the applicants and the complainants. Various proposals were put forward as to how to proceed with the matter and how it might be resolved. In January 2012 the Committee suggested that the parties might seek to resolve their differences by agreeing to be bound by the decision of an independent legal costs accountant. However, the parties could not agree as to how the costs for this proposal would be discharged. In July 2012 the Committee engaged the services of Mr. Noel Guiden of Behan & Associates, Legal costs Accountants, to examine the substance of the complaint. By letter of the 12 th September, 2012 the Committee advised the parties that the Society would bear the costs associated with procuring a report from Mr. Guiden and the applicant's solicitors subsequently furnished Mr. Guiden with the applicant's files for the purpose of examining the complaint and preparing his report.


Mr. Guiden delivered his report to the Committee on the 9 th November, 2012. Mr. Guiden's report sets out the five bills of costs which were examined. In relation to the Circuit Court proceedings, for which the applicants had charged €165,000.00 for solicitor's fees, the report states that "I cannot see any circumstances whereby a fee in the magnitude of the fee charged is justifiable…I am of the opinion that the Solicitor's professional fee should have been more in the order of €30,000.00/€35,000.00".


In relation to the extraction of the Grant of probate and administration of the estate, Mr. Guiden recommended a fee in the order of €55,000.00/€65,000.00 rather than the €175,000.00 which had been charged. The professional fee in respect of the conveyance of the property at Eyre Square was €140,070.00. Mr Guiden's report states that if an hourly rate of €300 was applied in respect of the work undertaken, in excess of 460 hours would have to be spent on the conveyance to arrive at the fee charged. Mr. Guiden described this as "highly improbable" and suggested a fee of €35,000.00/€40,000.00 in circumstances where the conveyance was "fairly straightforward".


Mr Guiden did not recommend altering the bills of costs in relation to the High Court proceedings on the basis that the bill had already been compromised and settled. The bill in relation to the conveyance of the Tuam property, for which a professional fee of €1,500.00 was charged, is described as "clearly reasonable". Mr. Guiden's report was sent to the parties in November 2012.


A meeting of the Committee was scheduled to take place on the 6 th February, 2013. However, on the 5 th February, the applicants' solicitors wrote to the Society stating that they were not in a position to have the matter determined at the meeting of the 6 th February. This letter further stated that, after considering Mr. Guiden's report, the applicants wanted an opportunity to submit a report prepared by their own legal costs accountant and former Taxing Master. A number of issues with Mr. Guiden's report were highlighted, including that it did not consider the level of fees charged before the recession in 2008 and that the report failed to consider the importance of the Circuit Court proceedings to the eventual sale of the property at Eyre Square for a favourable price. An issue was also raised in relation to the requirement to send a s.68 letter to beneficiaries of an estate. At the meeting of 6 th February, 2013 the Committee indicated that no additional report of a legal cost accountant of the applicants' choosing could be submitted but that their submissions to the Committee could be informed by such a report.


On the 8 th April, 2013,...

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