Sullivan v Reilly
| Jurisdiction | Ireland |
| Judge | Mr. Justice Binchy |
| Judgment Date | 13 October 2017 |
| Neutral Citation | [2017] IEHC 667 |
| Date | 13 October 2017 |
| Court | High Court |
| Docket Number | [Record No. 2016/4024 P.] [Record No. 2009/10739 P.] |
[2017] IEHC 667
THE HIGH COURT
Binchy J.
[Record No. 2016/4024 P.]
[Record No. 2009/10739 P.]
AND
AND
Practice & Procedures – O.99, r. 7 of the Rules of the Superior Court – Solicitors Acts 1954-2011 – Release of documents – Payment of professional fees – Compliance with solicitors' undertaking – Costs
Facts: By way of two separate proceedings, the plaintiffs were originally seeking orders from the Court to the effect of directing the defendant to release the case files of the plaintiffs on the ground that the plaintiffs had changed their solicitors. Since the issue had been resolved, the parties were now seeking their respective costs. The defendant contended that the present motion filed by the plaintiffs was futile as the Court should not have made an order against the defendant/solicitor requiring it to return the files to another firm of solicitors in case where the defendant had an outstanding undertaking to a third party, duly authorised by the client.
Mr. Justice Binchy directed the plaintiffs to award the costs to the defendant. The Court noted that it was the decision of the plaintiffs to change the solicitors and nothing was presented to prove that the defendant was negligent in pursuing their proceedings. The Court held that the defendant was under the duty to comply with the given undertaking as its non-compliance could invite a plethora of disciplinary proceedings against the defendant. The Court also observed that the funds advanced by the Claims Finance to the plaintiffs were at an exorbitant rate and the plaintiffs were entitled to institute appropriate proceedings against the Claims Finance.
These matters originally came before the court by way of notice of motion dated 21st November, and returnable initially on 12th October, 2016. By the motion, in each case, the plaintiffs (who are husband and wife) sought an order ‘pursuant to the Solicitors Acts 1954 to 2011 directing Sweeney solicitors, Marlborough House, Marlborough Street, in the County of Cork, their servants and/or agents to release all files, documents, books, records and correspondence which pertain to the plaintiff (S.) herein to Gary Matthews, solicitors.’
As may be inferred from the face of the motion, the plaintiffs had in each case instructed Sweeney solicitors to act on their behalf in the pursuit of proceedings which in each case involved claims for damages in respect of personal injuries allegedly sustained by each of the plaintiffs on different occasions. However, the plaintiffs decided, as is their entitlement, to change their solicitors and instructed Gary Matthews solicitors to act on their behalf. The issues involved in each case are the same: but for the purpose of this decision, and in the interest of convenience, I will confine myself to the specific facts arising in the case of Mr. Sullivan, unless otherwise stated.
Mr. Sullivan instructed Gary Matthews solicitors on 27th July, 2016. At the request of those solicitors, Mr. Sullivan completed a form of authority authorising Sweeney solicitors to transfer his files to Gary Matthews solicitors. The authority is dated 27th July, 2016 and is comprehensive stating, inter alia:-
1. that Gary Matthews solicitors have been appointed by Mr. Sullivan to act on his behalf in the proceedings; and
2. that Sweeney solicitors are authorised to release his files and documents to Gary Matthews solicitors; and
3. that Sweeney solicitors are released from an undertaking given by them on behalf of Mr. Sullivan to Claim Finance Ltd., and instructing Gary Matthews solicitors to give an undertaking to Claim Finance Ltd. in lieu thereof; and
4. that Gary Matthews solicitors are instructed to discharge the reasonable costs incurred by the plaintiff to Sweeney solicitors at the conclusion of the proceedings (in the event of a successful conclusion) and in default of agreement, to refer the determination of costs to a taxing master, for the purpose of taxation of costs on a solicitor and own client basis.
Gary Matthews solicitors wrote, on 28th July, 2016 to Sweeney solicitors, sending a copy of this authority and requesting Sweeney solicitors to release Mr. Sullivan's file. Not having received a reply, Gary Matthews solicitors sent a reminder on 19th August.
On 25th August, 2016, Sweeney solicitors replied stating that the files are ready for collection, but continuing:-
‘However, we attach herewith our professional fee notes for each file and look forward to your proposals regarding discharge of same.’
On the same date, Sweeney solicitors wrote to Claim Finance and Administration Co. Ltd. (‘Claim Finance’) (with a copy to Gary Matthews and Co. solicitors) advising that company, to whom they had given an undertaking in respect of funds advanced to the plaintiff, that Gary Matthews solicitors would be taking over the undertaking and requesting ‘the necessary paperwork to discharge this office from the undertaking and to forward to the new solicitor to take up on behalf of Mr. Sullivan’.
The above gave rise to three letters in reply from Gary Matthews solicitors. In one of those letters it is stated:-
‘The firm of Gary Matthews solicitors will not under any circumstances take over this undertaking or liaise directly with Claim Finance and Administration Co. Ltd. in relation to these matters.
We further write to advise that any attempt by your firm not to release our client's files without the firm of Gary Matthews solicitors providing an undertaking to Claim Finance and Administration Co. Ltd. will be referred to the Law Society of Ireland for their determination.
We look forward to receiving release of our client's files within a period of seven days from that date of this correspondence.’
In a second letter, Gary Matthews solicitors referred to the undertaking given by Sweeney solicitors to Claim Finance and Administration Co. Ltd. This letter went on to say that the agreements between the plaintiff and Claim Finance and Administration Co. Ltd. contravened the torts of maintenance and champerty contrary to the Embracey Act (Ireland) 1634 as retained by the Statute Law Revision Act, 2007, and was also contrary to the National and European Consumer Credit Legislation Regulations and Directives and was therefore unenforceable. The letter also stated that the torts of maintenance and champerty remained a criminal act in this jurisdiction, and therefore the provision of an undertaking in support of the same is aiding and abetting a criminal act. The letter asserts therefore that the undertaking given on behalf of the plaintiff by Sweeney solicitors was illegal and void.
The same letter went on to say that in the event of Claim Finance attempting to recover monies advanced to the plaintiff, then he would join Sweeney solicitors to any such action as the undertaking given by Sweeney solicitors was provided negligently and recklessly in aiding and abetting a criminal act. This letter concluded by again requesting delivery of the files and stating that if they were not delivered promptly, the matter would be brought to the attention of the Law Society, the Central Bank of Ireland, An Garda Síochána and all other regulatory authorities.
The third letter of 30th August, 2016 from Gary Matthews solicitors dealt with the issue of fees claimed by Sweeney solicitors. There is nothing especially controversial about this letter; it states that the plaintiff wishes to exercise his right to have the professional fees of Sweeney solicitors taxed by the taxing master, and in relation to items of outlay, accepts some items and objects to others.
Unsurprisingly, this correspondence provoked a sharp response from Sweeney solicitors, most especially in relation to allegations of champerty and maintenance. These allegations were rejected out of hand. Sweeney solicitors requested the withdrawal of the allegations. They also stated that they were claiming a lien on the plaintiff's files until such time as undertakings given on his behalf to Claim Finance were taken over by Gary Matthews solicitors, and Sweeney solicitors released from the same. They also made proposals in relation to treatment of costs.
This in turn generated a reply of 6th September, 2016 from Sweeney solicitors. This letter stated that at the time of writing their first letter to Sweeney solicitors they did not have a copy of the funding agreements with Claim Finance available, but having obtained a sample copy of such agreements, they repeated the allegations previously made as to the legality and validity of the agreements. They again threatened to refer the matter to the Law Society. On this date they also sent an amended form of authority from the plaintiff omitting the reference to the Claim Finance undertaking appearing in the form of authority previously completed by the plaintiff, i.e. omitting the authority given by the plaintiff to Gary Matthews solicitors to release Sweeney solicitors from their undertaking to Claim Finance, and instructing Gary Matthews solicitors to give an alternative undertaking to Claim Finance. (Of course there could never had been any question of the plaintiff himself releasing Sweeney solicitors from his undertaking to Claim Finance, but by amending the undertaking in this way, the plaintiff was making it clear that, as far as he was concerned, Sweeney solicitors could remain liable on foot of their undertaking, and he would not be accepting any responsibility in connection with the same). There followed some further correspondence, but ultimately, the plaintiff caused the within motion to issue...
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