|  NICh 1
|Judgment: approved by the Court for handing down||Delivered:||21/02/2019|
|(subject to editorial corrections)*|
 NICh 1
(a) The defendant prepared a Will for Philomena Grew, deceased (“"the deceased”") in 2010.
(b) The plaintiff was the Executrix and sole beneficiary under the last Will and Testament of the deceased, dated 9 August 2010 (“"the 2010 Will”").
(c) In or around 2014 Southern Area Hospice Services Ltd (“"the Hospice”") sought to challenge, via High Court proceedings (“"the 2014 proceedings”"), the validity of the 2010 Will on the grounds that the deceased lacked testamentary capacity and asserted the legitimacy of an earlier Will made by the deceased dated 23 January 2006 (“"the 2006 Will”").
(d) The defendant was retained by the plaintiff to act in respect of the administration of the estate and in respect of her defence of the 2014 proceedings.
(e) During the course of the 2014 proceedings the plaintiff sold her home and moved to the deceased’'s former home at 44 Dukes Grove, Armagh (“"the property”"). The property was the main asset owned by the deceased at the date of her death.
(f) The 2014 proceedings were settled by Terms of Settlement dated 9 June 2017. These provided, inter alia, that the property was to be sold and after payment of both parties’' reasonable costs and costs of the administration of the estate, each party was to receive 50% of the net estate. These terms were conditional upon the plaintiff obtaining an order granting Probate in Solemn Form for the 2010 Will.
(g) After the Terms of Settlement were entered into, Mr Haughey, solicitor, gave evidence before the court and Horner J then pronounced the Will in Solemn Form.
(h) It further appears from the evidence presented to this court that:(i) The plaintiff had the benefit of experienced senior and junior counsel in respect of the 2014 proceedings.(ii) There was competing expert medical evidence regarding the deceased’'s capacity to make the 2010 Will.(iii) The deceased’'s GP had indicated that he was unable to give evidence that the deceased had capacity to make a Will in 2010.(iv) The plaintiff informed Mr Haughey prior to the hearing as appears from paragraph 11 of her affidavit sworn on 15 November 2018:-“"Only one of my three witnesses could come to trial, but he did not want to come …”"(v) The plaintiff, was an unregistered carer for the deceased and was in receipt of payment for the care she provided to the deceased.(vi) This was a small estate comprising approximately £100,000.(vii) The trial was likely to last 2-3 days and therefore the costs were likely to be significant in proportion to the size of the estate.
(i) The plaintiff lodged a complaint against Mr Haughey on 7August 2017.
(j) On 10 August 2017 the defendant wrote to the plaintiff outlining that she had been uncooperative in respect of the sale of the property and then stated as follows:-“"In light of your complaint you should now instruct another firm of solicitors to apply for a Grant of Probate to enable you to administer the deceased’'s estate.”"
(k) On 10 October 2017 the defendant again corresponded with the plaintiff enclosing their Bill of Costs and advised the plaintiff to make arrangements to instruct another solicitor to administer the deceased’'s estate.
(l) On 15 February 2018 the defendant lodged a complaint against Mr Haughey with the Law Society for Northern Ireland in relation to the advices he had given her in respect of the 2014 proceedings.
(m) On 16 April 2018, the Hospice issued a Writ of Summons seeking specific performance of the Terms of the Settlement (“"the 2018 proceedings”"). These proceedings are pending before the court and are now the subject of case management.
(n) On 26 September 2018 the plaintiff instructed Hool Law solicitors to act on her behalf in respect of the 2018 proceedings.
(o) By letter dated 17 October 2018 Hool Law requested relevant papers from the defendant.
(p) The defendant by letter dated 22 October 2018 advised that the papers would be made available for collection when its costs were discharged or when a satisfactory undertaking was given for the discharge of its costs.
(q) At the beginning of this hearing Mr Hopkins informed the court that if the defendant provided the relevant files and papers, the plaintiff’'s solicitors would undertake to retain them for 4-6 weeks for inspection by solicitor and barrister, for the sole purpose of advising the plaintiff and would thereafter return the papers to the defendant, uncopied and would further undertake not to provide the papers to the plaintiff.
(i) As noted by Moore-Bick J in Ismail at page 514 (e):“"It has long been recognised that, subject to any agreement to the contrary, a solicitor is entitled to exercise a general lien in respect of his costs on any property belonging to his client which properly comes into his possession in his capacity as a solicitor …The basic rule is that a solicitor has the general right to embarrass his client by withholding papers in order to force him to pay what is due and the court will not compel him to produce them at the instance of his client.”"
(ii) Solicitors as officers of the court are subject to its supervisory jurisdiction and the court can therefore interfere with the enforcement of the common law lien on equitable principles.
(iii) The law in relation to the exercise of the solicitor’'s lien has been developed through a number of decided cases. In the 1800s there were a number of cases in which a practice developed whereby, if a solicitor discharged himself in the course of ongoing litigation the court usually ordered the solicitor to hand over to the new solicitors the papers which he held, on the undertaking of the new solicitors to preserve his lien on the papers for costs and to redeliver the papers to him at the end of litigation. This approach was classically expressed by Malins VC in Robins, when he was giving judgment on a client’'s application for delivery up of papers at page 442, when he stated:-“"Now it is well settled that where a solicitor is discharged by the client he has a lien for his costs upon the papers in his hands, and can retain them till he is satisfied; but it is different where the discharge is by the solicitor … it is clear that a solicitor is not entitled to stop litigation, because he cannot obtain funds to enable him to carry it on. … Being, therefore, of opinion that the case is clear and that I have only to apply the rules laid down by Lord Eldon in Colegrave v Manley which was followed in Heslop v Metcalfe and on which I acted in In re Faithful, the order must be to deliver up the papers to (new solicitors), on their undertaking to receive and to hold them without prejudice to any right of lien, and to return them undefaced and also to allow (the old solicitor) access to them for the purpose of his action.”"
(iv) This practice was carefully considered by the English Court of Appeal in Gamlen. Whilst Goff LJ refused to overrule Robins, it appears that he did so, on the basis that he regarded “"the overriding principle being that a solicitor who has discharged himself is not allowed so to exert his lien as to interfere with the course of justice.”" (page 1057(j) to 1058 (a)). Templeman LJ agreed and at page 1058 (g) – 1059 (a) stated:“"Where the solicitor has himself discharged his retainer, the court then will normally make a mandatory order obliging the original solicitor to hand over the client’'s papers to the new solicitor against an undertaking by the new solicitor to preserve the lien of the original solicitor.I wish to guard myself against possible exceptions to this general rule. The court in fact is asked to make a mandatory order obliging the original solicitors to hand over the papers to the new solicitors. An automatic order is inconsistent with the inherent, albeit judicial discretion of the court, to grant or withhold a remedy which is equitable in the character. It may be, therefore that in exceptional cases the court might impose terms where justice so required. … Much would depend on the nature of the case, the stage which the litigation had reached, the conduct of the solicitor and the client respectively, and the balance of hardship which might result from the order the court is asked to make.”"
It is clear from these passages that he recognised that the court, in the exercise of its equitable jurisdiction, had adopted this practice, “"in order to save the client’'s litigation from disaster”". Consequently, he accepted that, “"when justice so demanded”", the court could impose terms on any order it made for files to be handed over.
“"… I am prepared to accept, on the authorities, that there is no reason, in principle, why, in appropriate circumstances, the court should not be able to interfere in the enforcement of the common law lien, on equitable principles, even where it is the client rather than the solicitor who has terminated the retainer.”"
“"(a) That a litigant should not be deprived of material relevant to the conduct of his case and so driven from the judgment seat, if that would be the result of permitting the lien to be sustained, and
(b) That litigation should be conducted with due regard to the interests of the court’'s own officers, who should not be left without payment for what is justly due to them.”"
- When, why and who ended the solicitor/client relationship?
- The nature of the case.
- The stage litigation has reached.
- The conduct of the solicitor and client respectively.
- The balance of hardship which might result from the order the court is asked to make.
- The fact the value of the solicitor’'s lien is likely to be considerably diminished if the papers required for pending litigation are handed over – see Ismail at page 524C-D.
Submissions of counsel
(a) the plaintiff was seeking the papers for a limited purpose;
(b) the solicitor had terminated the retainer, and
(c) the papers were required to properly advise the plaintiff in on-going litigation.
“"A question or issue relating to or connecting the subject matter of the action and which should be determined not only between the plaintiff and the defendant but also between either or both of them and the third party.”"
(a) The defendant acted for the plaintiff in the 2014 proceedings when there was a clear conflict of interest in that he was a key witness in respect of the testamentary capacity of the deceased.
(b) The defendant failed to advise the plaintiff as to the terms and effect of the terms of settlement.
(c) The defendant failed to properly advise the plaintiff in respect of the sale of her home and the risks involved with her intention to reside at the property.
- The plaintiff does not require the papers to defend the 2018 proceedings. This position was accepted by the plaintiff and by her counsel.
- The plaintiff has sufficient information available to her from the papers already in her possession to enable her and her legal advisors to make an informed decision about whether to issue a Third Party Notice.
- Even if the absence of papers prevents the plaintiff making an informed decision about issuing a Third Party Notice she is not driven from the judgment seat as she can bring a separate claim against the defendant for negligence and or breach of contract.
- To direct the delivery of the papers at this stage would be tantamount to giving pre-action discovery and therefore would place the plaintiff in an advantageous position viz a viz other litigants.
(i) An order that within 14 days of the plaintiff executing a charge over her interest in the property at 44 Dukes Grove, Armagh, in favour of the defendant up to the value of £28,461.50 (“"the Charge”") as security for payment by the plaintiff to the defendant of all costs due to the defendant, either as agreed between the parties or as assessed by the court on taxation, on foot of its bill of costs dated 9 October 2017, the defendant shall deliver up to the plaintiff’'s solicitors the plaintiff’'s papers and the file held by the defendant relating to the following matters:
(a) the estate of Philomena Grew (Deceased);
(b) proceedings between Southern Area Hospice Services Limited and Evelyn Donaghy bearing Court Reference 2014 No. 52579; and
(c) proceedings between Southern Area Hospice Services Limited and Evelyn Donaghy bearing reference 2018 No. 40482.