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Cite as: [2019] IEHC 927

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THE HIGH COURT

[2019] IEHC 927

[2019 No. 25 SA]

BETWEEN

ADERONKE ADENEKAN AND J.B.S. (A MINOR)

APPLICANTS

AND

ASHIMEDUA OKONKNOWO/CYRIL & CO. SOLICITOR

RESPONDENT

Extempore Ruling of Mr. Justice Kelly, President of the High Court delivered on 2nd

May, 2019

Introduction

1. There are two applicants before the court. The first is Aderonke Adenekan who is an

adult. The second applicant, J.B.S. is a minor who is suing by her mother who is the first

applicant.

2. The principal relief which is sought in this motion is an order directing the respondent to

return three Nigerian passports which are in her possession. The first is an expired

passport of the adult applicant. The second is a current passport of the adult applicant.

The third passport is that of the minor. Whilst other reliefs are identified in the notice of

motion, the principal order being sought is that relating to these passports.

The Respondent

3. The respondent is a solicitor. She has declined to hand over the passports because she

asserts that she is entitled to exercise a retaining lien over them in respect of fees

allegedly outstanding to her.

The application

4. This is an unusual application. Rarely is the court asked to make an order of this sort. It

is even more unusual because in this case there has been an involvement by the relevant

committee of the Law Society of Ireland, namely the Complaints and Client Relations

Committee. That committee, having considered the matter, has recommended to the

respondent that she ought indeed to hand over the passports. That recommendation is

not a binding one but most solicitors, having received such a recommendation, would

comply with it. That is not so in the case of the respondent.

5. What makes the case even more unusual is that the matter has had to be brought to this

court in circumstances where the fee allegedly outstanding is one of €1,500 plus VAT.

Liens

6. A general retaining lien arises in circumstances where any deed or paper or personal

chattel comes into a solicitor’s possession in the course of a professional engagement as a

solicitor. When such property comes into the possession of the solicitor with the client’s

sanction and is the client’s property, a lien may be asserted over it where there is a fee

outstanding to the solicitor.

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The minor applicant

7. There is no dispute but that the minor applicant, J.B.S. was not and could not have been

a client of the respondent solicitor. On that basis alone, there can be no valid assertion of

a retaining lien over the child’s passport. The child has no liability to the respondent for

the alleged fee and thus there can be no valid assertion of a lien over the minor’s

passport. Notwithstanding that, I will consider the position of the minor in the same way

as I will consider the position of her mother, the first applicant, in the course of this

ruling.

Assumptions

8. For the purpose of this ruling I am going to make a number of assumptions in favour of

the respondent. I do so notwithstanding the strange circumstances of the respondent’s

involvement which is apparent from the affidavit evidence.

9. During the course of discussion with counsel, I indicated the importance for any solicitor

to clearly distinguish between a professional relationship and a personal relationship of

friendship where assistance might be tendered to somebody on a voluntary basis. I am

going to assume in the respondent’s favour that the relationship of solicitor and client did

in fact exist between the first applicant and the respondent. I am also, for the purposes

of this ruling, going to assume, although it is very much disputed, that there is in fact a

fee of €1,500 due by the first applicant to the respondent. I wish to make it clear that I

am by no means deciding that this is in fact so. I merely assume it for the purposes of

this ruling.

10. That the respondent solicitor is in possession of these passports is not in dispute.

Passports

11. An interesting question arises as to whether a passport can ever be the subject of a

retaining lien of the type asserted here. The law in this country is that a passport is not

the property of its holder. Rather it belongs to the Minister for Foreign Affairs and Trade.

In other words, it is the property of the State. From such research as I have been able to

carry out in a very short period of time available to me, that appears to be the position in

most common law countries. There has been no evidence put before me to suggest that

Nigerian law on this topic is any different to the law in this jurisdiction and so, as a matter

of private international law, I assume that the law in that country is not any different.

12. There may be a question as to whether a passport can be the subject of a retaining lien

but I do not have to decide it in this case. I will instead assume, in favour of the

respondent, that a passport can indeed be the subject of a retaining lien.

13. It is also clear that a lien may not apply in respect of all client documents which happen

to be in a solicitor’s possession. There may well be circumstances where documents,

although handed over to the solicitor, may exclude the possibility of a lien arising. That is

a strong assertion which is made by the applicants here. It is disputed by the solicitor.

Again, I am going to assume in favour of the respondent that there is an entitlement to

assert the lien in this case, although as I say it is strongly in dispute.

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14. Having assumed the existence of the relationship of solicitor and client, that a passport

can be the subject of a lien, that the fee alleged is due and that the circumstances in

which the passports were given to the respondent are those which would admit of the

existence of a lien, I turn to a consideration of the legal position.

Reasonableness

15. Notwithstanding all of the assumptions which I have made, it may still be unlawful for a

solicitor to assert the existence of a lien. A solicitor cannot in all circumstances validly

assert and maintain a lien. The exercise of the lien must be reasonable.

16. I have come to that conclusion having regard, in particular, to a decision of the High

Court of England and Wales called R (on the application of) Malik Law Chambers

(Solicitors) v. Legal Complaints Service (The Law Society) [2010] EWHC 981. That is a

decision of Saunders J.

17. I cite from paragraph 15 of his judgment to demonstrate the concept which I have just

articulated. This is what he said:-

“In my judgment, there may well be circumstances where it would be unreasonable

to exercise a lien, even bearing in mind that the more valuable the property

withheld then the more likely it is that payment would be obtained. The mere fact

that it is legal for the solicitor to exercise a lien does not mean that it cannot be

unreasonable to do so nor is there any reason why the defendant should not

regulate those occasions. That is in my judgment encompassed in the power given

to the defendant in the Solicitors Act. It does not make sense to me to read the

Law Society Guidance in the way which is suggested by the claimant. If the

exercise of a lien may, in certain circumstances, be unreasonable, then there is no

reason why the defendants should not have the power to direct the solicitor to

return those items which it was unreasonable to retain.”

18. There is no doubt but that passports are extremely valuable documents. In many

instances they are essential documents. I turn to the affidavit evidence which has been

placed before me as to the consequences for these applicants if these passports continue

to be withheld from them.

19. At para. 23 of the principal grounding affidavit the deponent says this:-

“I say and believe that not having access to my passport and my daughter’s

passport is having significant and serious consequences for my family. My

youngest daughter is due to sit her Junior Certificate examination in June. I have

been advised by the school that my daughter cannot be registered for the state

examinations without a PPS number. My daughter has been personally affected by

the uncertainty and stress arising from the situation. I say that such has been the

impact that my daughter became upset in school and I was asked to attend the

school where I explained the situation. While the school has been very supportive,

my daughter remains worried and upset and is trying to prepare for exams while

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not knowing if she will be able to register and sit the exams in June 2019. I say

and believe that as I have not been able to access my passport, I have been unable

to obtain a public services card and to lawfully work in the State. I am at present a

student undertaking a healthcare assistants course and I am eager to gain

employment. I am very anxious to comply with the terms of my residency and to

contribute to the State. I further say that my daughter and I have suffered

extreme financial hardship as a result of being unable to access social welfare for

an extended period. During this time, I was reliant on the goodwill of friends and

charitable donations for housing and supporting. Following interventions by my

local public representative, on my behalf, I have been granted a supplementary

welfare payment being an emergency payment. I am at present in receipt of a

social welfare payment of in or around €227 per week. An application for a social

welfare payment for my eldest daughter has not yet been processed. I say and

believe and am advised that an application for child benefit for my youngest

daughter will not be accepted or processed until she has a PPS number and she

cannot get a PPS number without producing her passport.

Having lived with my friend and her family in rental accommodation for a time, the

landlord required that we move out of the property. My daughters and I are at

present living in emergency bed and breakfast accommodation in Drogheda where

we share a bedroom. I have attended with a local housing and homeless service. I

have been assessed as eligible for council housing and have been assessed as

entitled to apply for a housing assistance payment but am at present assessed as a

two-person household only. As my youngest daughter has no PPS number, she is

not recognised as part of the household. The immediate practical impact of the

position is that my family at present will qualify for a HAP payment of €975 based

on being a two-person household with no provision being made for my youngest

daughter. If I have access to my daughter’s passport and a PPS number for her, I

will be eligible for an increased HAP payment which would be of great assistance in

trying to secure accommodation for my family. I say and believe that given the cost

of renting it is extremely unlikely that I would be able to secure private rental

accommodation for €975 per month.”

20. The affidavit goes on:-

“In addition to holding three passports, the respondent retains the file and

documentation in relation to myself and my daughters in relation to our

applications to the Department of Justice. I further say and believe that the

respondent holds important original documents, including my daughter’s birth

certificate and my divorce certificate. I say that over the past months my primary

concern has been to secure the release of the passports. While I dispute that any

fees are due and owing to the respondent, I am advised that while a dispute is

ongoing, a solicitor may assert a lien over a file or certain documents pending

resolution of the dispute in relation to fees or until otherwise directed by a court.

While I was concerned to access the full file and documents held by the respondent

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my focus has been only on securing the passports. I say and believe, however,

that in recent months my daughter and I received communications from a third

party which has led me to believe that the respondent has disclosed documents and

personal information regarding me and my children to a third party.”

21. It is perfectly clear that in refusing to hand over the passports in support of a claim for a

fee of €1,500 plus VAT there has been extraordinary inconvenience and distress caused to

the two applicants. The withholding of the passports has had profound consequences in

particular for the minor applicant and her ability to sit public examinations in June. The

housing and social welfare entitlements of the first applicant and her children have also

been adversely affected. On any view, the respondent has behaved in a wholly

unreasonable fashion in holding onto these passports and refusing to hand them over to

the erstwhile client. To do so for a fee as little as €1,500 plus VAT is entirely

disproportionate and something that the court could not condone or stand over. In any

event, in my view, there never was any entitlement whatsoever to hold onto the passport

of the minor and thus there has been a wrongful assertion of a lien from the outset by the

solicitor in that regard. In these circumstances, I have no hesitation in making the order

which is sought in respect of the passports and I direct that they be handed over

forthwith.

22. It is very much to be regretted that the solicitor in this case did not follow the wise

recommendation made by the Client Relations Committee of the Law Society. Instead, by

continuing to assert the lien, these proceedings had to be brought with a view to these

passports being secured. I am satisfied that there was nothing unreasonable in the

bringing of the application because if the matter were further pursued before the relevant

committee of the Law Society further delay would result. A question exists as to whether

such committee could ever make a binding determination or whether it is confined to a

non-binding recommendation. But even if there is jurisdiction to make a binding order on

the part of the committee it would not be able to make such in sufficient time to enable

the minor applicant know whether or not she can sit the State examinations which are to

take place next month.

23. I direct the respondent solicitor to forthwith hand over to the solicitors for the applicants

the passports of the first applicant (both the expired and current passport) and also the

passport in respect of the minor applicant.