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Cite as: [2015] IESC 24

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Judgment


Title:	Lett & Company -v- Wexford Borough Council & ors
Neutral Citation:	[2015] IESC 24
Supreme Court Record Number:	196/07
High Court Record Number:	2004 7059 P (2005 56 COM)
Date of Delivery:	10/03/2015
Court:	Supreme Court
Composition of Court:	McKechnie J., Laffoy J., Dunne J.
Judgment by:	McKechnie J.
Status:	Unapproved


Judgments by	Link to Judgment	Result	Concurring
Dunne J.	Link	Appeal allowed	Laffoy J.
McKechnie J.	Link

___________________________________________________________________________

THE SUPREME COURT

[S.C. No: 196/2007]

McKechnie J.
Laffoy J.
Dunne J.

BETWEEN

LETT & COMPANY LIMITED

Plaintiff

AND

WEXFORD BOROUGH COUNCIL, THE MINISTER FOR COMMUNICATIONS, MARINE AND NATURAL RESOURCES, IRELAND AND THE ATTORNEY GENERAL

Defendants

Judgement of Ms. Justice Dunne delivered the 10th day of March, 2015

An application was brought before this Court by the solicitors for the plaintiff herein (Matheson) seeking an order pursuant to s. 3 of the Legal Practitioners (Ireland) Act 1876 (the 1876 Act) declaring that the solicitors for the plaintiff are entitled to a charge upon the costs awarded to the plaintiff pursuant to an order of this honourable Court dated the 17th February, 2012 in respect of the professional fees, charges, expenses and outlay incurred in representing the plaintiff in the above entitled proceedings together with ancillary relief at paras. 3 and 4 of their Notice of Motion. In addition, the solicitors for the plaintiff also sought a declaration that they held a common law lien over the costs awarded to the plaintiff pursuant to the order of this Court of the 17th February, 2012 in respect of the professional fees, charges, expenses and outlay incurred in representing the plaintiff in the proceedings.

When these proceedings were first listed for hearing before the Court, the Court sought submissions from the parties as to the jurisdiction of the Supreme Court to deal with an application such as this ab initio. The parties have furnished written submissions on this issue.

S. 3 of the 1876 Act provides as follows:

“In every case in which an attorney or solicitor shall be employed to prosecute or defend any suit, matter, or proceeding in any court of justice, it shall be lawful for the court or judge before whom any such suit, matter, or proceeding has been heard or shall be depending to declare such attorney or solicitor entitled to a charge upon the property recovered or preserved, and upon such declaration being made such attorney or solicitor shall have a charge upon and against and a right to payment out of the property, of whatsoever nature, tenure, or kind the same may be, which shall have been recovered or preserved through the instrumentality of any such attorney or solicitor, for the taxed costs, charges, and expenses of or in reference to such suit, matter or proceeding; and it shall be lawful for such court or judge to make such order or orders for taxation of and for raising and payment of such costs, charges and expenses out of the said property as to such court or judge shall appear just and proper; and all conveyances and acts done to defeat or which shall operate to defeat such charge or right shall, unless made to a bona fide purchaser for value without notice, be absolutely void and of no effect against such charge or right: Provided always, that no such order shall be made by any such court or judge in which the right to recover payment of such costs, charges, and expenses is barred by any Statute of Limitations.”

Background
It would be helpful to set out in some detail the background to the application pursuant to s.3 of the 1876 Act. The costs at the heart of this application arise from two orders: one being an order of the High Court made on the 22nd day of June, 2007 (Clarke J.) in which it was ordered “That the plaintiff do recover as against the second and third named defendant its costs of this action (including reserved costs the costs of discovery the costs of stenography and the costs of the provision of visual aids at the hearing herein) when taxed and ascertained”; an order was made in favour of the first named defendant as against the plaintiff for its costs and the plaintiff obtained an order over against the second and third named defendants in respect of those costs. Following the order of the High Court which included an award of damages against the second and third named defendant, an appeal was brought to this Court and by order of the 17th February, 2012, the amount awarded to the plaintiff in the High Court was reduced and it was further ordered:

“That the High Court order in relation to costs do stand affirmed that the plaintiff do recover against the second and third named defendants the costs of this appeal when taxed and ascertained . . .”

The application pursuant to s. 3 of the 1876 Act was grounded on an affidavit of Stuart Margetson, a consultant in the firm of Matheson Solicitors. Matheson had represented the plaintiff in the proceedings before the High Court. The background to those proceedings is that the plaintiff was a company involved in mussel farming in Wexford. A decision was taken to upgrade sewage facilities for Wexford town and its environs together with the construction of a waste treatment plant. The plaintiff issued the proceedings seeking damages for a breach of its legitimate expectation that it would receive compensation by reason of the imposition of an exclusion zone of five hundred metres radius around an outfall pipe for the proposed waste treatment plant which encompassed the plaintiff’s mussel beds in Wexford Harbour.

The proceedings in the High Court were heard over twenty nine days between the 4th July, 2006 and the 8th February, 2007. On the 23rd May, 2007 damages in the sum of €1,150,000 were awarded to the plaintiff to be paid by the second named defendant and the order for costs was made in favour of the plaintiff as against the second and third named defendants in the terms set out above.

The second, third and fourth named defendants appealed the judgment of the High Court and the appeal was allowed as to quantum only with the result that the award to the plaintiff was reduced to the figure of €650,000 by way of compensation. An order for costs was made in favour of the plaintiff in respect of the appeal in the terms set out above.

Mr. Margetson in his affidavit said that a balance of approximately €1,128,408 (inclusive of VAT) remains due and owing to Matheson in relation to the professional fees, costs and expenses (including counsel’s fees) incurred in representing the plaintiff. The plaintiff has been invoiced in respect of professional fees but not in the full amount due and owing. The reason for this was explained as being due in part to discussions with the plaintiff as a result of which it became apparent that the plaintiff was in severe financial difficulties. If Matheson continued to issue invoices for the outstanding balance, Matheson would become liable for substantial sums in respect of VAT.

Mr. Margetson accepted that the plaintiff had paid substantial sums in respect of professional fees at various stages during the currency of the proceedings. He then set out details of the sums now said to be due and noted that the taxation of the party and party costs in respect of the High Court and the Supreme Court was now proceeding before the Taxing Master on the plaintiff’s instructions. He further noted that the plaintiff had not paid any sum due by way of professional fees since 2007 with the exception of a sum paid on account to senior counsel in respect of the Supreme Court appeal which sum was paid in June 2011.

In May 2012, the plaintiff received the sum of €908,950.16 directly into their bank account from the State. This was made up of the sum of €650,000 being the amount of the award determined by the Supreme Court together with interest in the sum of €258,950.16. The sum of €650,000 was paid over to IBRC (to whom the plaintiff is indebted). €56,000 was paid into pension funds of the plaintiff’s directors. A sum of €170,000 was retained to discharge potential stamp duty liability in respect of the taxation of costs. The plaintiff offered to pay a sum of €30,000 to the solicitors but this did not in fact occur.

Mr. Margetson has expressed concern that any further sum paid to the plaintiff by the State in respect of costs will be paid to IBRC. In those circumstances, Matheson seek a charge over the costs pursuant to s. 3 of the Legal Practitioners (Ireland) Act 1876 given that Matheson was instrumental in obtaining the order for costs in favour of the plaintiff.

During the taxation of costs, a sum of €500,000 was paid on account to Matheson and was lodged by them in the plaintiff’s client account with Matheson. It was stipulated by the State that if the costs taxed at less than €500,000, any balance would be refunded to the State and this was agreed to in writing by Matheson in a letter dated the 2nd October, 2013.

A dispute has arisen between the plaintiff and Matheson as to how that sum should be dealt with and ultimately, Matheson complied with the request from the plaintiff to retain the same sum and not to apply it towards any outstanding invoices. It appears that the plaintiff wanted to use some €270,000 of that figure to pay IBRC and trade creditors. It is in these circumstances that Matheson initiated this application seeking an order pursuant to s. 3 of the 1876 Act and further ancillary relief is sought in the notice of motion before this Court directing that the funds already received from the second and third defendants in relation to the plaintiff’s costs and held in the plaintiff’s client account are to be paid out to discharge the professional fees, charges, expenses and outlay of the solicitors for the plaintiff including the fees due to counsel. A further order is sought that the balance of any sum found to be due in respect of party and party costs are paid to Matheson given the fear that if any such sum was paid direct to the plaintiff, it would be paid in a similar manner by the plaintiff as previously occurred. In other words it would be paid by the plaintiff to creditors to the detriment of solicitors and counsel.

A number of replying affidavits were filed in response to the affidavit of Mr. Margetson. The first of those was sworn by Geoffrey Johnston of LSF Pine Investments Limited (Pine Investments). He outlined the details of the plaintiff’s borrowings from Anglo Irish Bank Corporation Plc, subsequently known as IBRC. IBRC went into special liquidation on the 7th February, 2013. Pine Investments purchased a portfolio of loans from the liquidators of IBRC including that of the plaintiff in an arrangement completed in January 2014.

Pine Investments relies on a provision in a mortgage debenture made between Anglo (as it then was) and the plaintiff to contend that the costs payable to the plaintiff are “receivables” within the meaning of the debenture and that, as a consequence, Pine Investments is entitled to enforce its security in respect of the costs. By letter of the 13th April, 2014, Pine Investments notified the plaintiff that “For the avoidance of doubt, the monies which are due and owing to you by the second named defendant/appellant in discharge of an order for costs in proceedings bearing record No. 2004/7059P and Supreme Court Appeal No. 2007/196P, the amount of which is due to be ascertained by the Taxing Master, must be remitted to us in full by virtue of Clause 4.4 of the debenture, such monies to be applied to reduce the loan balance under the facility letter”.

Thus it is contended by Pine Investments that the monies over which Matheson seek an order pursuant to s. 3 of the 1876 Act represents money payable to the plaintiff which is the property of Pine Investments under the mortgage debenture. Mr. Johnston added that Mr. James Lett of the plaintiff agreed that the costs are receivables and should be remitted to Pine Investments.

Mr. Richard Lett swore an affidavit on behalf of the plaintiff. He described various discussions with the company’s legal representatives prior to the commencement of the proceedings. It was clear that a bank loan would be required in respect of legal fees. Complaint was made by him that no “section 68” letter was provided by Matheson. He said that the case took twenty eight to twenty nine days before the High Court in contrast to the twelve to fourteen days hearing that was suggested by Matheson and counsel in advance of the proceedings. Funding was provided by Anglo supported by personal guarantees of three directors of the plaintiff. That funding was limited to €750,000 and it was not possible to obtain further funding from Anglo. Thus costs incurred beyond that figure were paid from the day to day working capital of the plaintiff causing a severe impact on the plaintiff.

Mr. Lett went on to describe the manner in which the sum received by way of damages of €650,000 plus interest was dispersed. He referred to the fact that it had been necessary to fund a sum of €30,250 (including VAT) for counsel in respect of the appeal before this Court. Reference was made to an e-mail of the 30th May, 2011 in this context in which Matheson acknowledged that the sum of €30,250 was funded by taking that sum out of the directors’ pension funds. Because of tax implications, the sum of €56,550 had to be withdrawn from the pension funds and Matheson in an e-mail to the plaintiff stated:

“I confirm that, assuming a successful outcome to the appeal, that we agree that the refund of your pension fund monies will be the first item to be paid out of any judgment sum received in this case.”

Mr. Lett went on to describe the concern and disappointment of the plaintiff over the duration of the case in the High Court and the consequences of that in respect of costs. That concern was communicated to Matheson on a number of occasions.

Mr. Lett went on to explain that following receipt of the sum of €500,000 from the State defendants on account of costs, a series of meetings took place between Matheson and representatives of the plaintiff to attempt to agree on “a fair distribution of the payment on account”. These discussions were obviously unsuccessful. Finally, Mr. Lett criticised the lack of a VAT invoice for the balance of costs due, leaving the plaintiff in the position that it does not know what the final remaining bill will be. His last observation was to note that there have been severe reductions and cutbacks in costs on taxation. He urged the Court in all the circumstances to refuse the reliefs sought by Matheson.

Mr. Margetson swore a further affidavit on the 14th May, 2014 taking issue with a number of the matters disposed to by Mr. Lett and Mr. Johnston in their affidavits. In particular, he referred to a letter from Matheson Ormsby Prentice as Matheson was then known dated the 2nd July, 2009 This letter was addressed to Anglo in connection with the sum of €750,000 being borrowed by the plaintiff to fund the litigation and the letter stated:

“We hereby undertake, on behalf of Lett and Company Limited to pay to Anglo Irish Bank Corporation Plc (“the Bank”), out of the net proceeds of any settlement agreement with any or all of the defendants to these proceedings or any damages awarded to Lett & Company Limited by the Supreme Court against any or all of the defendants, if and when received by us, and having deducted all proper charges due to this office, or other charges which may be required by law to be deducted, the balance of any award or settlement to be held to the credit or Lett & Company Limited by the Bank.

We confirm that we have our client’s irrevocable authority to provide this undertaking.”

Mr. Margetson noted that the undertaking was to pay the balance of any award or settlement following the deduction of all proper charges due to Matheson. Mr. Margetson expressed the view that the undertaking as accepted by Anglo made it clear that it was never contemplated that Anglo might be entitled to receive payment of any costs recovered when such costs were still outstanding to Matheson.

Mr. Margetson also dealt with the issue of the refunding of the sum of €56,000 approximately to the pension fund and suggested that the refund should have been confined to the sum of €30,250 and was stated to be payable from any “judgment” and not costs.

A final affidavit was then sworn by Mr. Lett in which he reiterated that the definition of receivables contained in the mortgage debenture between Anglo and the plaintiff was such as to include any costs awarded. Further, he made the point that the undertaking furnished by Matheson and sought by Anglo was without prejudice to Anglo’s rights under the mortgage debenture. He contended that no monies would have been advanced by Anglo if Matheson was to have an entitlement to the award of damages over and above the entitlement of Anglo.

A number of observations may be made at this stage. The first observation to make is that the reliefs sought herein are confined to the costs of these proceedings. No issue arises as to any disbursements made out of the sum awarded for damages together with interest. Therefore, the application before this Court concerns only the sum of €500,000 already paid on account in respect of costs and such further sum (if any) found to be due by way of costs on the completion of the party and party taxation.

The second observation to make is that it is somewhat surprising given that an affidavit was sworn on behalf of Pine Investments herein that Pine Investments chose not to be represented at the hearing of this application notwithstanding that it has acquired the interests of Anglo under the mortgage debenture and stands to benefit if the contentions of the plaintiff in the interpretation of the mortgage debenture are correct. Equally, there was no appearance on behalf of the State defendants given that they are the parties who will be making the payment if a further sum is found to be due by way of costs on the completion of taxation. The final observation to make is that this judgment is only concerned with the jurisdiction of this Court to consider an application pursuant to s.3 of the 1876 Act. The merits of the application await a further hearing.

Discussion on the question of jurisdiction
The jurisdiction contained in s. 3 of the 1876 Act to make a charging order on property is conferred on “the Court or Judge before whom any such suit, matter, or proceeding has been heard or shall be depending . . .”. Thus the Court or Judge concerned may make such order over the “property recovered or preserved”. The word “depending” may seem to be somewhat unusual but clearly means “pending”, a view which is supported by the provisions of s. 32 of the Arbitration Act 1954 (now repealed) but which provided:

“Section 3 of the Legal Practitioners (Ireland) Act, 1876, (which empowers a court before which any proceeding has been heard or is

pending

to charge property recovered or preserved in the proceeding with the payment of solicitors' costs) shall apply as if an arbitration were a proceeding in the Court, and the Court may make declarations and orders accordingly”. (emphasis added)

The order for costs made in favour of the plaintiff against the State defendants in this case comes within the meaning of property recovered and preserved as provided for in s. 3 of the 1876 Act. Cordery on Solicitors, 5th edition 1961 considered the scope of the equivalent section in England and Wales, saying at page 399 as follows:

“The section only confers jurisdiction on the court which heard the proceedings wherein the property was recovered or preserved: thus where an administrator recovered judgment in the common pleas against beneficiaries who afterwards had the estate administered by a county court the application was properly made to the court of common pleas, and where judgment was recovered in the High Court, and the judgment debtor having become bankrupt, his estate was administered in the county court, that court had no jurisdiction under the section.”

Cordery further commented at p. 399:

“One object of the section is to secure a judicial inquiry into the extent to which property should be charged, which can only be done properly by the judge who heard the case, and therefore the application should, where possible, be made to him even though other judges have equal jurisdiction . . ..”

Cordery was considering the provisions of s. 72 of the U.K. Solicitors Act 1957 which mirrors closely the provisions of s. 3 of the 1876 Act which, in turn, was in similar terms to the provisions of s. 28 of the Solicitors Act 1860.

The decision of the Court of Appeal in Guy v. Churchill [1887] 35 Chancery Div. 489 provides some guidance. That was a case in which there was an action brought by the plaintiffs seeking an account from the defendants. The action was dismissed with costs which were taxed and then paid to the defendants. On appeal that judgment was reversed. The defendants were ordered to repay to the plaintiffs the costs they had received and to pay to the plaintiffs the cost of the appeal. The plaintiffs then became bankrupt. An application was brought to the Court of Appeal pursuant to s. 28 of the Solicitors Act 1860 (the predecessor of s. 72 of the Solicitors Act 1957) on the basis that the costs paid under the order of the court below and ordered by the Court of Appeal to be refunded were property recovered within the meaning of s. 28. The solicitors were successful in that application. Cotton L.J. at page 491 stated:

“The other question relates to a lien on a sum which had been ordered by the Court below to be paid by the Plaintiffs to the Defendants, but was ordered by this Court to be repaid. The question is a nice and novel one, but I think that it is governed by the principle that a solicitor has a lien on what is recovered in an action, although the recovery of this sum was not the direct result of the action. This Court ordered the refunding of a sum which had been paid under an order of the Court below, and I think that this was a sufficient recovery, though it was not the general result of the suit. The lien of a solicitor is grounded on the principle that it is not just that the client should get the benefit of the solicitor's labour without paying for it. Here the official receiver wishes to get the benefit of the solicitor's exertions by which the £298 7s. 1d. has been recovered, without paying for them.”

Accordingly, it was found that the solicitors were entitled to succeed in their application. Thus the case is authority for the proposition that an appellate court when reversing a costs order is “recovering or preserving” property within the meaning of the section. The Court of Appeal in that case had jurisdiction to deal with the application in circumstances where it had reversed the order made in the court below.

Lismore Buildings Ltd. v. Bank of Ireland Finance Ltd. (No. 2) [2000] 2 IR 316 provides further support for the proposition. This was the only authority cited by the parties before this court. That was a decision of the Supreme Court in which an application was made by the solicitors acting for the plaintiff seeking an order pursuant to s. 3 of the 1876 Act. The solicitors contended that as the plaintiff company was insolvent they would have difficulty in recovering costs unless they could do so from the taxed costs awarded to the plaintiff. They further contended that the third, fourth and fifth defendants intended to issue garnishee proceedings in order to attach the sums due to the plaintiff from the first two defendants. The Supreme Court granted the relief sought in the notice of motion. In that case the High Court had made five orders relating to security for costs. The orders were then appealed to the Supreme Court. On appeal, orders for costs in respect of the appeals were made in favour of the plaintiff against the first two defendants. In addition orders for costs were made in favour of the third, fourth and fifth defendants against the plaintiff. In the circumstances, the plaintiff’s solicitor applied for the order pursuant to s. 3 of the 1876 Act. Barrington J. giving the judgment of the Court (with which Hamilton C.J. and Barron J. agreed) stated at page 319 as follows:

“There is no doubt that a solicitor, whose fees and outlay have not been paid by his client, will normally have a lien on a property or fund recovered by his efforts to secure professional costs and outlay incurred by him. The same principle applies to a fund recovered under an order for the payment of costs. For the same reason it is proper for a court to protect the solicitor's position by granting him a charge on property or costs recovered or preserved as a result of his efforts. Section 3 of the Act of 1876, also contemplates that the charging order should be made by the court which made the order under which the claim to costs arises. The solicitor's application is therefore properly made in this court and this court will therefore make an order charging all monies recovered under the said first and second orders of this court dated the 11th February, 1998, with the payment of all costs and outlay due and owing by the plaintiff to his solicitor arising out of the solicitor's conduct of these proceedings.”

The Supreme Court in this case made an order on the 17th February, 2012 providing for costs in relation to the appeal before the Supreme Court and also made an order affirming the order in relation to costs made in the High Court. I am satisfied that the High Court costs, subsequently affirmed by the Supreme Court, and the Supreme Court costs constitute “property recovered or preserved” as a result of the appeal to this Court in accordance with the decisions in the cases of Guy v. Churchill and Lismore Buildings Ltd. v. Bank of Ireland Finance Ltd. (No. 2).

The statutory power conferred by s. 3 of the 1876 Act empowers the court which made the order by which property was recovered or preserved to charge that property. Thus, it appears to me that in relation to property recovered or preserved by virtue of an order of the Supreme Court, it is to that court the application pursuant to s. 3 of the 1876 Act should be made. That being so, it is difficult to see how it could be said that the High Court could have jurisdiction to make an order over an award of costs made in the Supreme Court. It may be the case that in circumstances where an order is made in the Supreme Court affirming the order of the High Court that the High Court has jurisdiction to make an order over that element of the costs awarded but I cannot see the basis upon which it could be said that the High Court has jurisdiction to make an order pursuant to s. 3 in respect of an award of costs made by the Supreme Court. Thus, by virtue of the order made on the 17th February, 2012, this Court has jurisdiction to make an order pursuant to s. 3 of the 1876 Act.

It could be suggested that by virtue of the decision in Re Deakin [1900] 2 QB 489 that the High Court has jurisdiction to make an order under s. 3 of the 1876 Act in respect of orders of the High Court and Supreme Court which had the effect of recovering or preserving costs. Rigby L.J., in the course of his judgment in that case at page 495 commented:

“I was somewhat alarmed at the suggestion that, because the Court of Appeal made the order by means of which the property of the debtor was recovered or preserved, that Court alone could make the charging order. I have never heard it doubted that any judge of the court which had seisin of the suit, matter, or proceeding was entitled to make the charging order.”

The other two judges of the Court of Appeal in that case did not deal with that issue. The gravamen of the decision was that any judge of the High Court, whether sitting in bankruptcy or not can make a charging order under s. 28 of the Solicitors Act, 1860; and, semble, so also can a judge who is a judge of the Court of Bankruptcy alone, where in the course of bankruptcy proceedings property has been “recovered or preserved”. That case is authority for the proposition that the application for the order need not necessarily be made to the particular judge who heard the suit, matter, or proceeding. In the circumstances, I am not satisfied that the obiter comment of Rigby L.J. in that case is authority for the proposition that the High Court has jurisdiction to make an order under s. 3 of the 1876 Act in respect of an order for costs made in the Supreme Court. Indeed, it would be difficult to come to such a conclusion in the light of the decision of this court in Lismore.

Having said that, the argument was also put forward on behalf of the plaintiff that there was a constitutional element to this issue and that the application should be remitted to the High Court for hearing, thus providing for the possibility of an appeal to any party dissatisfied with the outcome of the hearing. At first sight, this may seem to be an attractive proposition. However, it is the case that this court from time to time hears applications which arise for the first time in this court but which arise out of existing proceedings. The fact that parties aggrieved by a decision of this court on such an application have no right of appeal does not create a constitutional impediment to the hearing of such applications. Thus, in the case of an application pursuant to Order 58, R. 8 of the Rules of the Superior Courts to admit further evidence, the application is heard and determined by this court and any party aggrieved by the order cannot appeal from the decision as this is the Court of Final Appeal as provided in Article 34. 4.6 of Bunreacht na hÉireann. S.3 of the 1876 Act confers jurisdiction on the Court which heard the proceedings wherein the property was recovered or preserved. In this case, the property consisting of the costs was recovered by virtue of the order of this court which made an order affirming the order for costs made in the High Court and made the order for costs in respect of the appeal before this court. Accordingly, I am satisfied that there is jurisdiction to deal with this application in this court, ab initio.

In coming to this conclusion, I should emphasise that I am satisfied that this Court has jurisdiction to deal with an application by virtue of s. 3 of the 1876 Act and to make any appropriate ancillary orders but I am not of the view that Matheson is entitled to enforce its common law lien before this court. There is no statutory provision conferring jurisdiction on this court to grant such relief.

JUDGMENT of Mr. Justice William M. McKechnie delivered on the 10th day of March, 2015

Background:
1. The firm of solicitors, Matheson, Ormsby, Prentice, now Matheson (“the solicitors”), acting as such, represented the plaintiff company in complex and lengthy commercial proceedings, at both trial and appeal level. These proceedings were finalised on the 17th February, 2012 with this Court affirming a finding of liability in its favour and in awarding it damages, albeit reduced by the substitution of a sum of €650,000.00 for the €1.15m granted in the High Court, all against the second and third named defendants (“the Minister”). The company was also awarded its costs of the appeal against the same parties with this Court in addition, “affirming” the existing cost order in its favour as made in the High Court.

2. The plaintiff company, whose family name has been well respected and well recognised for decades in the South East of this country and elsewhere, has in recent times suffered from serious financial disability. In January, 2014, LSF VIII Pine Investments Limited (“Pine Investment”) purchased from Irish Bank Resolution Corporation (“IBRC”) and the joint special liquidators of that corporation, a portfolio of loans and related securities which included the plaintiff’s debt to the former Anglo Irish Bank Corporation (“Anglo”) and the security, by way of mortgage debenture, given in respect thereof. It is therefore self evident that this company, although not named in the title, is the principal legitimus contradictor on the application next mentioned, even if the directors of the plaintiff company also retain a vested interest, by reason of the personal guarantees which they have given for this particular debt.

3. Following the conclusion of the proceedings, the plaintiff’s legal cost accountant drew up a bill of costs on a party and party basis which was submitted to the Minister in February, 2013: the bill, which was referred to taxation, is presently before the Taxing Master with the process of taxation not yet concluded. However, in recognition of the evident fact that its liability in respect of costs will be substantial no matter what, the State, in October, 2013 agreed to pay, in part discharge and on account, the sum of €500,000, which it did, directly to the solicitors. This money remains in the client’s account, and has not been distributed by way of disbursement, because of the plaintiff’s insistence in controlling its destination and the recipients thereof: the same very much forms part of the present application.

4. Prior to October, 2007 it is readily acknowledged that the plaintiff company made periodic payments in respect of fees totalling almost €1,098,471.55. However, since that date, apart from obtaining an agreed sum in respect of counsel’s brief fee to appear on the appeal, which they immediately paid over, the solicitors have not received any payment whatsoever. They therefore say that based on the party and party bill, there remains due in respect of their costs, expenses and outlay to include counsel’s fees, a sum of €1,128,408.00 (inclusive of VAT).

5. By reason of the debt laden position of the company and in view of the insistence by Pine Investment, that the proceeds of taxation are expressly covered by the terms of the mortgage deed and thus must be remitted to it, the solicitors are justifiably concerned about not being able to recover any further sums, in respect of their said costs, fees and outlay. Hence, they make the following application.

The Application:
6. By Notice of Motion dated 26th March, 2014, the solicitors seek the following reliefs:-

“1. An Order pursuant to section 3 of the Legal Practitioners (Ireland) Act 1876 declaring that the Solicitors of the Plaintiff are entitled to a charge upon the costs awarded to the Plaintiff pursuant to an Order of this Honourable Court dated 17th February 2012 in respect of the professional fees, charges, expenses and outlay incurred in representing the plaintiff in the above entitled proceedings.

2. Further or in the alternative a declaration that the Solicitors for the Plaintiff hold a lien over the costs awarded to the Plaintiff pursuant to an Order of this Honourable Court dated 17th February 2012 in respect of the professional fees, charges, expenses and outlay incurred in representing the Plaintiff in the above entitled proceedings.

3. An Order directing that the funds already received from the Second and Third Defendants in relation to the Plaintiff’s costs are held in the Plaintiff’s client account by the Solicitors for the Plaintiff are to be paid out to discharge the professional fees, charges, expenses and outlay of the Solicitors for the Plaintiff, including any and all fees due to counsel.

4. An Order directing the Second and Third Defendants to pay the balance of the costs awarded to the Plaintiff by this Honourable Court pursuant to an order dated 17th February 2012 to the Solicitors for the Plaintiff within a reasonable period of time following the conclusion of the party and party taxation.

5. Further or other relief.

6. Costs.”

7. The application is grounded upon two affidavits of Mr. Stuart Margetson, solicitor, a consultant in the firm, and the various responding and replying affidavits of Mr. Richard Lett, a director of the plaintiff company, and of Mr. Geoffrey Johnston, a director of Pine Investment whose affidavit was filed in support of that company. A number of contested issues emerge from these affidavits both on the factual and on the legal side. It will be necessary at a later point in this judgment to further refer to such matters.

The Issue:
8. At the opening of this appeal a question arose as to whether this Court has jurisdiction to entertain an application made under s. 3 of the Legal Practitioners (Ireland) Act 1876 (“the 1876 Act”), and if so, whether it was appropriate that the same should be determined by it. By agreement between the parties it was decided that this matter should first be examined, in the nature of a preliminary issue, with the remaining points being stood down until that matter had been resolved. Submissions, both oral and written followed. This therefore, is my judgment on the net point as to this Court’s jurisdiction on a s. 3 application, and even if found to exist on the criteria necessary for its appropriate exercise.

Remedies for Solicitors’ Costs:
9. Disregarding other possible options such as a straightforward debt recovery action or if the occasion arose of proving in bankruptcy, a solicitor may seek to recover or otherwise secure his costs, by exercising or enforcing a lien in certain circumstances over his client’s assets or property, or he or she may resort to an application under s. 3 of the 1876 Act. In many situations, as in this case, the steps taken will involve a combination of both.

10. In general terms, a solicitor has available to him in aid of costs recovery, what has been described as a general lien or a particular lien. The first, also known as a retaining lien, is a right to retain property already in his possession until he is paid costs due to him in his professional capacity, and the second is a right to ask the court to direct that personal property recovered under a judgment obtained by his exertions, should stand as security for his costs of such recovery. Although frequently referred to as a lien, this last mentioned right is but a “right to apply”, and is not technically a lien, as the requirement of possession or control is absent. In addition, by statute he has a right to apply to the court, for a charging order on property “recovered or preserved” through his instrumentality, in respect of his assessed cost arising out of the suit, matter or proceeding which has been prosecuted or defended by him (Halsbury’s Laws of England (London; Lexis Nexis; 2009; 5th ed.; Vol. 66; “Legal Professions”; para. 996). Whilst the solicitors at para. 2 of the notice of motion, claim a declaration that they hold a lien over the costs awarded to the plaintiff company, no examination is necessary of the extent or remit of either a general or particular lien or the distinction(s) between both, as these matters are not in issue on this aspect of the application. It is however, necessary to note that this relief must in the first instance be prayed for in the High Court: it is not suggested that enforcement steps, via a common law lien, can be initiated in this Court. Accordingly, the point of debate is essentially focused on the statutory right of redress.

Section 3 of the 1876 Act:
11. Section 3 of the 1876 Act reads as follows:-

“3. In every case in which an attorney or solicitor shall be employed to prosecute or defend any suit matter or proceeding in any court of justice, it shall be lawful for the court or judge before whom any such suit matter or proceeding has been heard or shall be depending to declare such attorney or solicitor entitled to a charge upon the property recovered or preserved; and upon such declaration being made such attorney or solicitor shall have a charge upon and against and a right to payment out of the property, of whatsoever nature tenure or kind the same may be, which shall have been recovered or preserved through the instrumentality of any such attorney or solicitor, for the taxed costs, charges, and expenses of or in reference to such suit matter or proceeding; and it shall be lawful for such court or judge to make such order or orders for taxation of and for raising and payment of such costs charges and expenses out of the said property as to such court or judge shall appear just and proper;…”.

12. It is worth highlighting the width and general scope of some features of this provision:-

(i) It relates to a solicitor acting as such, for any party in respect of any type of issue in any court of justice;

(ii) It states that it “shall be lawful” for the court in which the issue has been heard or is still pending to make the order sought;

(iii)Such an order has the effect of creating a charge in favour of the solicitor over and against, and of conferring on him a right to payment from -;

(iv)The property , of whatever nature, which has been recovered or preserved through the instrumentality of his services in the proceedings in question, in respect of -;

(v) The taxed costs, charges and expenses referable to such proceedings.

The remainder of the section is not further relevant at present but it may have high significance on the follow on substantial application.

13. The section so far as I can see, has not been statutorily altered or changed in any way since its enactment. Neither has its meaning or application been influenced by other statutory provisions such as one might expect to find in the Solicitors Acts, rules made thereunder, or by the general rules of court. Whilst there are a number of cases in this jurisdiction on its provisions, for example Mount Kennett Investment Co & Anor v. O’Meara & Ors [2012] IEHC 167 and others next mentioned, it is firmly said by the solicitors that Lismore Buildings Limited v. Bank of Ireland Finance Ltd (No.2) [2000] 2 IR 316 (“Lismore”) is a direct and conclusive authority on the point in issue. Whether that is so and the extent thereof are issues which I will come back to later in this judgment.

14. The section is modelled on and in effect replicates s. 28 of the English Solicitors Act 1860, which has been re-enacted on several subsequent occasions, such as in s. 69 of the 1932 Solicitors Act, s. 72 of the 1957 Solicitors Act and s. 73 of the 1974 Solicitors Act. At no point has its legislative substance or form, been altered in any material way. Because of the associated correspondence between the respective provisions, it is likely that the English jurisprudence on the section would at least have a moderate level of influence in this jurisdiction: accordingly the following emerges from the case law which has been determined in both jurisdictions:-

(i) If the court by which the property is recovered or preserved (“the relevant court”), is the High Court, then quite obviously that Court can make the order under the section.

(ii) If the relevant court is the Court of Appeal, then likewise that Court has the same power: Guy v. Churchill [1887] 35 Ch D 489. However, it is not essential to apply to that Court: In Re Deakin, Ex. p. Daniell [1900] 2 QB 489 at p. 495; because the High Court equally has jurisdiction.

(iii)The nature of the power to make the order is discretionary, thus allowing the rights of the client also to be considered where appropriate: In Re Humphrys, Ex. p. Lloyd-George [1898] 1 QB 520; Wilde v. Petitioning Creditors & Debtors [1924] 1 O.C.L.J. Ch. 303; In the Estate of Fuld, deceased (No.4) [1967] 3 W.L.R. 314.

(iv)Once the statutory conditions have been satisfied a solicitor is prima facie entitled to the order once he shows that otherwise he may not be able to recover his costs: Harrison v. Harrison [1888] 13 PD 180; this is subject to any conduct on his part which may deprive him of such right: Roche v. Roche [1892] 26 I.L.T.R. 107, Dallow v. Garrold, Ex. p. Adams [1884] 14 Q.B.D. 543 at pp. 545 - 546 and Higgs v. Higgs [1934] P. 95 at p. 99; or to countervailing considerations which would render the making of the order inequitable.

(v)If a solicitor is otherwise entitled to a common law lien for his costs, the section may be regarded simply as being a more convenient way for enforcing that right: In Re Born, Curnock v. Born [1900] 2 Ch 433.

(vi)The power under the section is not exercisable until the property is either recovered or preserved: In Re Blake, Clutterbuck v. Bradford [1945] Ch. 61; which can also result from the proceedings being settled or compromised (see the Irish case of M’Larnon v. Carrickfergus Urban District Council [1904] 2 I.R. 44); and finally,

(vii)It is beyond doubt but that “property” in the context of the section, includes costs payable by one party to another, even where such costs, at the date of the application, have not been taxed: J. & G. McGowan Roofing Contractors Ltd v. Manley Construction Ltd [2011] IEHC 317 (Laffoy J.), Eugene F. Collins v. Gharion [2013] IEHC 316 (Birmingham J.) and In the Estate of Fuld, deceased (No.4).

15. For the purposes of this application, the most important points to note from the above authorities are firstly that the trial court, at least if a superior court of record, retains jurisdiction to make an order under the section even where the property is not recovered or preserved by that court, but rather is so by an order of an appellate court: in such a situation both have concurrent jurisdiction. Secondly, even where costs awarded pursuant to an order have not been taxed, and therefore where the due amount has not been ascertained, the order in question can nevertheless constitute a fund for the purpose of the section.

The Position of the Parties in the Instant Case:
16. Without broader debate it is said by the solicitors that based on the wording of the section itself and as supported by Lismore, the Supreme Court has jurisdiction to make the order as sought. On being pressed as to whether such jurisdiction is exclusive to that Court, the submission becomes somewhat uncertain: on being asked that if such jurisdiction is common with the High Court, what criteria might be applied in determining which court should hear the application, the answer, whilst asserting a preference for this Court, remains imprecise and somewhat ill-defined.

17. The plaintiff company and Pine Investment for their part, deny the existence of any exclusive jurisdiction and even doubt whether this Court has in fact any first instance jurisdiction, either. However, such is not their prime position, which is that the High Court must at least have a like jurisdiction with this Court on any application under the section. They refer to the relevant constitutional provisions which they say were not discussed in Lismore, thus depriving that case of being any authority in support of the exclusivity of the Supreme Court. If they are right in this regard, they say that the factual situation is such that it strongly supports a remittal of the application to the High Court. If such a course was to be adopted they would not create any objection to that Court hearing both the application under s. 3 of the 1876 Act and also whichever application might be advanced under the common law doctrine of liens, whether general or particular as the case may be. They strongly urge such a decision upon this Court.

Decision:
18. In Lismore the Supreme Court’s first involvement with the case was to deal with five appeals from various orders of the High Court given on a number of applications and cross applications seeking security for costs. In so doing, this Court made cost orders on each application with the plaintiff being successful in two. Immediately following this decision, the company’s solicitors sought an order under s. 3 of the 1876 Act and also some unspecified relief “at common law”. The relevant portion of the judgment of Barrington J., with whom Hamilton C.J. and Baron J. agreed, reads as follows:-

“There is not doubt that a solicitor, whose fees and outlay have not been paid by a client, will normally have a lien on a property or fund recovered by his efforts to secure professional costs and outlay incurred by him. The same principle applies to a fund recovered under an order for the payment of costs. For the same reason it is proper for a court to protect the solicitor’s position by granting him a charge on property or costs recovered or preserved as a result of his efforts. Section 3 of the Act of 1876, also contemplates that the charging order should be made by the court which made the order under which the claim to costs arises. The solicitor’s application is therefore properly made in this court and this court will therefore make an order….” (p. 319)

19. It seems clear from the passage as quoted, that Barrington J., by reference ex facia to the provisions of s. 3 of the 1876 Act itself, was satisfied that, in circumstances where the relevant cost orders had been made by the Supreme Court, this Court had jurisdiction to entertain the application. The decision of the learned judge was based solely on the wording of the section which on any reasonable interpretation I would agree, could give rise to that conclusion.

20. However, there was no reference in the case, or at least in the judgment, to any wider issue such as to whether in the circumstances, the High Court might also have concurrent jurisdiction to entertain the application or as to the position of the section within our constitutional structure, which point I will come back to. Or to put the first matter another way, whether the Supreme Court was the only possible court, and therefore was the exclusive venue for such application. No debate on either such issue seems to have taken place. Some mention was made of the three cases identified in the report but not in the judgment to suggest that this might have happened. Clearly, the 1857 decision in Simpson v. Protuero [1857] 26 L.J. Ch. 671 could not be relevant. Having looked at Fitzpatrick v. DAF Sales Ltd & Anor [1988] I.R. 464 and In Re the Arbitration Acts, 1954 - 1980, Larkin v. Groegor & Anor and The Governor & Company of the Bank of Ireland v. Larkin [1990] 1 I.R. 461, I am totally satisfied that neither has any contribution to these points.

21. That being so I believe that Lismore decided simply, in accordance with the section itself, that where the cost order in issue had been made solely by the Supreme Court, that Court has jurisdiction to entertain the s. 3 application. The case did no more than that and I see no reason to expand the scope of the decision so as to capture within its authority circumstances which quite evidently were not covered by it. As so understood and in the limited context in which the issue was both debated and decided, I can readily understand the decision. It follows however from this analysis that Lismore in my view is not an authority to support the solicitors’ exclusivity argument, if such be their position.

22. Before discussing what respective jurisdiction both the Supreme Court and the High Court might have in the context of s. 3 of the 1876 Act, it will be helpful to try and identify more precisely what the purpose of the section is and what it is intended to deal with. There is no doubt but that its role is to offer protection to solicitors in seeking remuneration for work undertaken on behalf of a client in their professional capacity, which had the effect of obtaining or acquiring some benefit or advantage (for the client), in the sense of leading to the recovery or preservation (for him) of some item of property. Its enactment was a clear recognition that the pre-existing common law remedies in this area needed strengthening, which it sought to achieve by the addition of a more simple and straightforward means of securing and enforcing payment.

23. As above stated the section is grounded on equitable considerations, the equity being that professional efforts which secure, either by acquisition or defence, an asset on behalf of a client, should not, without contrary agreement, go unrewarded. The section has been variously described as a statutory lien or statutory charge. The former is incorrect, is apt to confuse and should be avoided: it is properly described as a statutory charge. The same confusion results from the oft and frequently quoted statement, that a solicitor may also obtain protection, by means of a “particular lien”. Such a term is technically inaccurate as a lien cannot exist unless one has possession of the subject matter. This will not be so, in circumstances which give rise to a so called “particular lien” (para. 10 supra). Where existing, the same merely afford to a solicitor a right to apply to the court to achieve a certain result: nothing more.

24. In any event, s. 3 of the 1876 Act undoubtedly is a “charging” section over recovered or preserved property against which payment can be enforced for outstanding fees. Disregarding the conditionality of the section for a moment, its broad thrust is to preserve an asset, and to impress upon it an equity in favour of a solicitor for his appropriate costs. It has been described as akin to a right of salvage because of the recovery aspect of the efforts. It may also be considered as a form of or at least as a step in debt execution, which bears much similarity in purpose and end, if not in approach, to other forms of execution (O. 42), such as that provided for by: Orders of Fieri Facias and Sequestration (O. 43), Attachment and Committal (O. 44), Attachment of Debts (O. 45), Charging orders and Stop Orders (O. 46), all orders being those as contained in the Rules of the Superior Courts (“RSC”). In addition, reference should also be made to O. 53, r. 17 of the RSC which nominates the President of the High Court as the judge to deal with a dispute between client and solicitor which, inter alia, includes a claim for the payment of costs or the placement of security therefor. In each of these examples it is the case that where the preceding right results from a decision of the Supreme Court, all applications in respect thereof are unquestionably made to the High Court. Whilst it is true that the rules of court so provide, nonetheless I see no difference in principle between such orders and a s. 3 order, subject only to the express provisions of the section itself.

Jurisdiction of the High Court:
25. The High Court, like the Supreme Court, is a constitutional court and a superior court of record. By virtue of Article 34.3.1. of the Constitution the High Court is “…invested with full original jurisdiction in and power to determine all matters and questions whether of law or fact, civil or criminal”. Therefore, the question can be asked whether there is any reason why, at least prima facie, that Court, in order to give full expression to the provisions of this Article, should not on a s. 3 application involving an order made by its parent constitutional court, also have jurisdiction in this regard?

26. Some fairly significant debate has been had throughout the years on what the phrases “full and original” and “all matters and questions”, referred to in the provision, precisely mean. It is clearly well beyond the scope of this judgment to explore this difficult area in any depth but nonetheless a limited reference to some matters might be helpful. One aspect of the discussion has featured on whether the High Court, following its establishment in 1961 (the Courts (Establishment and Constitution) Act 1961, in conjunction with the Courts (Supplemental Provisions) Act 1961), has simply the powers of its predecessors, in respect of matters still justiciable, as such existed and survived both before and after the enactment of the Courts of Justice Act 1924, or whether it was conferred with a wider jurisdiction which some suggest the plain wording of the constitutional provision might convey.

27. A majority of the Supreme Court in R.D. Cox Limited v. Owners of M.V. Fritz Raable, (unreported; Supreme Court; 1 August 1974) (“M.V. Fritz Raable”), took the view that the jurisdiction of the new High Court was more extensive than the aggregate of the jurisdiction formerly vested in the High Court of Justice. The issue in the case was whether or not the Court had jurisdiction to deal with a claim in rem regarding a ship’s mortgage which had not been registered under the provisions of the Mercantile Marine Act 1955. The Court’s predecessor, the Admiralty Court, could only do so if the mortgage was registered under the corresponding provisions of the Merchant Shipping Acts. Walsh J., with whom Griffin agreed, declined to accept the contrary argument and was satisfied that by the express wording of Article 34.3.1. itself, the High Court had jurisdiction to deal with the issue. Henchy J. delivered a dissenting judgment.

28. The meaning of the phrase has also attracted attention in another context, being the enactment of various statutory provisions which at least on one reading could be viewed as encroaching upon the wider meaning of the phrase: Gannon J. in R. v. R., [1984] I.R. 296, rejected any such attempt, whereas cases such as Ward v. Kinahan Electrical Limited [1984] I.R. 292, Tormey v. Ireland [1985] 1 I.R. 289 (“Tormey”) and The People (Director of Public Prosecutions) v. Sweeney [2001] 4 IR 102 (“Sweeney”), to name but some, could be seen as perhaps espousing a more restricted view of the same constitutional provision.

29. For present purposes, nothing turns on how Sweeney or Tormey should be read in light of M.V. Fritz Raable, as the individual issues in both cases were quite distinct from those in the instant appeal. In Sweeney the point was whether or not the High Court could make a third party discovery order in criminal proceedings. Tracing the history of such jurisdiction back to the Judicature Acts and beyond, Geoghegan J., with whom the other members of the court agreed, rejected such a submission largely because he could not find a basis for its existence at any time during his historical analysis. Article 34.3.1 did not feature in this case.

30. Tormey on the other hand was dealing with a situation where the Oireachtas endeavoured by express provision, to confer jurisdiction exclusively on a court other than the High Court. The Supreme Court (Henchy J.) concluded that when other provisions of the Constitution were considered, the Oireachtas, in the circumstances of that case, could so do but it was an important consideration that the superior courts retained their review and supervisory jurisdiction. The case however is entirely distinguishable from the instant situation, in that s. 3 of the 1876 Act does not purport to be exclusionary.

31. Whilst there have been other cases such as O’R. v. O’R. [1985] I.R. 367 and Deighan v. Hearne [1986] I.R. 603, these do not reflect upon the point of issue on this application. What is clear however from the overall case law and notwithstanding the Tormey line of country, is that the High Court is quintessentially a trial court, a court of first instance. Its range of other jurisdictions does not in any way impact on this long established and clearly accepted position.

32. Section 3 of the 1876 Act (para. 11 supra) is not as I have said self-excluding: it merely states that “…it shall be lawful…” for the court seised to hear the application. It does not in my view expressly or by intendment suggest any question of exclusivity. Likewise, it does not touch upon a situation where the fund might be preserved or retained, not by a court of trial, but via an appellate process. Furthermore, it does not distinguish between a case which is disposed of or one which is still pending, or where property has been recovered as distinct from being merely preserved. The section is general in nature and is enabling in purpose but not otherwise. It confers jurisdiction but does not exclude or restrict it. It leaves that issue open. Therefore, even without regard to the constitutional provision of Article 34.3.1, I cannot see any inhibition within the section which would deny to the High Court, a superior court of record and a court of full original jurisdiction, subject only to the Constitution and any permissible statutory restriction which s. 3 does not purport to be, jurisdiction to entertain such an application as is made in the present case. Guy v. Churchill in corresponding circumstances, confers jurisdiction on the High Court in England. When one then has regard to Article 34.3.1 the situation is, I think, even clearer and more conclusive to that end. In fact if the section did not permit of such an interpretation, grave doubts would have to exist regarding its consistency with the Constitution particularly in light of that provision, as well as Article 34.4.3 thereof.

“Important Caveat”:
33. It is important to note in this context, that no submission has been made questioning the section’s consistency with the Constitution either if the exclusivity argument should prevail. The effect of such a finding however, which would be to confer by way of statutory provision sole jurisdiction on the Supreme Court to the exclusion of the High Court, would have to be seriously problematic for the constitutional reasons mentioned both above and later in this judgment. In this context it must be observed that, in accordance with well established jurisprudence, the section does not enjoy any presumption of constitutionality. However, as the issue has not arisen, I therefore express no view whatsoever on whether the section was carried forward by Article 50 of the Constitution or not. In making this point and despite the discussion herein on the jurisdiction of both superior courts, I am not suggesting, or implying, that it is constitutionally suspect but neither am I suggesting or implying that it is constitutionally compliant. Until the issue arises and the point fully debated, I remain entirely neutral in this regard. It is in that conditional context that my judgment must be understood.

Concurrent Jurisdiction:
34. On this aspect of the appeal therefore, but subject to what I have just stated, I have come to the conclusion that by virtue of the wording of s. 3 of the 1876 Act, the Supreme Court has jurisdiction insofar as its cost order gives rise to the recovery of a fund available for charging. There would of course be no question of that being so without the existence of such order. In addition, I further conclude that the High Court has concurrent jurisdiction with regard to such fund as evidently it would have in respect of any fund recovered by its own orders.

35. The question therefore arises as to when and in what circumstances it is appropriate to make an application which in principle is available to be made to either court. In considering this matter one must look at the principal functions of both courts, the essential nature of each court’s jurisdiction, the substantive and procedural capacity to effectively discharge such functions, the efficient dispatch of court business, the overall interest of the administration of justice, the issues which arise from the facts of any given case and finally, the justice of the situation at inter party level.

36. As the situation of the High Court has already been discussed, it is necessary only at this point to touch upon the essential role of the Supreme Court.

The Jurisdiction of the Supreme Court:
37. The Supreme Court, as Article 34.4.3 of the Constitution, read in conjunction with Article 34.3.1 (full and original jurisdiction of the High Court) and Article 34.3.4 (courts of first instance to include courts of local and limited jurisdiction) make clear, is essentially an appellate court. Such jurisdiction is subject only to what may be found to exist in or what may be correctly deducible from, other provisions of the Constitution itself. In this context I am disregarding any additional consultative or supervisory jurisdiction, which may be conferred by statute (para. 42 infra). As Article 34.4.3 states, this jurisdiction is subject to such “exceptions and regulations” as may be prescribed by law. This phrase has always been understood as applying to statutory provisions which purport to limit in some way, the Court’s appellate jurisdiction as for example, by prohibiting any appeal from the High Court or by creating some restriction or other conditionality, whether in scope, time, format or otherwise, in respect thereof,. Much case law has been generated on the nature and extent of this appellate jurisdiction, including the power of the Oireachtas to circumscribe it. In respect of this restricting power see para. 6.3.56 of J.M. Kelly: The Irish Constitution (G.W. Hogan and G.F. Whyte (eds.); Dublin; Tottel Publishing; 2006; 4th ed.) where the subject matter is generously dealt with.

38. Before touching very briefly upon some of these matters, it should be noted that the court also has jurisdiction of quite a specific nature at first instance. Article 12.3.1, states that the President of Ireland can be prematurely removed from office on incapacity grounds but only where same have been established to the satisfaction of the Supreme Court with Article 26 empowering the Court to rule on the constitutional validity of Bills which have been referred to it by the President. This original jurisdiction, which clearly is of quite an exceptional nature, is expressly granted by the Constitution.

39. It might be thought, at least on first examination, that the Court’s intervention on some occasions could be classified as that of a first instance court, but on a careful assessment, this has not been the case. Murphy v. The Attorney General [1982] I.R. 241 is a good example where, having delivered its judgment on the constitutionality of certain provisions of the Income Tax Acts, the Attorney General reapplied to the Court requesting it to deal with a further two points, namely to decide as and from what date the declaration of invalidity was to operate and secondly, on the extent of repayments which the plaintiffs, and others, could claim. By majority, with Henchy J. dissenting, the Court entertained the submission and delivered its decision. However, it is important to note that this intervention took place before any final order was made and therefore the court’s further involvement can be looked upon as a continuation of the original appeal. Contrast that situation with one where the Court is asked to interfere with a final order, an example of which is The Attorney General (at the relation of The Society for the Protection of Unborn Children (Ireland) Ltd) v. Open Door Counselling Ltd & Anor (No.2) [1994] 2 I.R. 333 (“The Attorney General v. Open Door Counselling”). In that case the Court refused to intervene with such an order and lift an injunction granted four years earlier, which in effect had been rendered redundant by the passing of the 14th Amendment of the Constitution Act 1992. See also Belville Holdings Ltd v. The Revenue Commissioners and Ors.[1994] 1 I.L.R.M. 29. Therefore, I do not believe that cases like Murphy, which of themselves have been very rare indeed, offer any support to the suggestion that the Supreme Court exercises some wide original jurisdiction.

40. Virtually all of the decisions of the Supreme Court in this context can be explained by the fact that on several occasions the Court has declared its inherent jurisdiction to regulate and give effect to its own appellate jurisdiction. This directly derives from the provisions of Article 34.4.3 themselves. Dhand. v. McCrabbe [1962] 96 I.L.T.R. 196, is a case in point as is The People (Director of Public Prosecutions) v. O’Shea [1982] I.R. 384 where O’Higgins C.J. said that:-

“If the Constitution confers on this Court a particular appellate jurisdiction, it may be assumed that it also confers the necessary powers to make that jurisdiction effective to remedy what is complained of.” (p. 406)

McCarthy J. was even stronger in Hughes v. O’Rourke & Ors [1986] I.L.R.M. 538 describing the existence of such a power as being “beyond question”.

41. In furtherance of this power it is undoubtedly so that from time to time, though exceptionally, the Supreme Court will receive fresh or represented evidence, usually in the form of an affidavit but sometimes orally (B. v. B. [1975] I.R. 54), or by visual inspection as, for example, the viewing of a scar (Northern Bank Finance Corporation Ltd v. Charlton & Ors [1979] 1 I.R. 149 at p. 188), or will entertain a point not previously raised or decided upon in the High Court: it may also examine a provision which attempts to regulate a right of appeal to either that Court or to the High Court: Stokes v. Christian Brothers High School, Clonmel & Anor, [2015] IESC 13. However, in all of these and other related situations, such is entertained as part of its appellate jurisdiction and not otherwise. Order 58, r. 8 of the RSC is purely facilitatory in this regard. Even then there are limitations involved such as Hay v. O’Grady [1992] 1 I.R. 210. Therefore, whilst the scope of appeals can somewhat vary in certain circumstances, the same is entirely regulated in the manner and for the reason suggested and is not related to any purported exercise of a first instance jurisdiction.

42. In conclusion on this point, I have no doubt but that its jurisdiction is fundamentally appellate. Its primary, essential and central role can only be looked at in this way, in contradiction to the basic role of the High Court. The Court’s power as to its original jurisdiction and other forms of consultative engagement, which are now well delineated and clearly prescribed, are to be found under the Constitution provisions above mentioned and in certain statutes such as s. 48 of the Courts of Justice Act 1936 and s. 16 of the Courts of Justice Act 1947. Otherwise it functions as the final court of appeal (The Attorney General v. Open Door Counselling, p. 341) even where such appeals are provided for by statute (s. 23 of the Criminal Procedures Act 2010). Whilst it is true that the steps mentioned at para. 41 may occasionally be taken, these are entirely explainable as being an essential part of its appellate function. Therefore, at every critical level of its functioning, it remains a court as envisaged by Article 34.4.3 of the Constitution.

43. This discussion on the Supreme Court is part of the analysis for the purpose of deciding whether or not this Court should exercise its jurisdiction. It is not intended as a debate on the constitutionality of s. 3 of the 1876 Act, in respect of which, I repeat what is above stated at para. 33 of this judgment.

44. Against this background it seems to me that where both courts have concurrent jurisdiction, the application in the first instance should be made to the High Court unless there are strong compelling circumstances to the contrary. There are many reasons for this: these include firstly, the essential role of each court which points to the application being made in the first instance to the High Court, which is a court of trial: secondly, such is much more in keeping with the constitutional structure, which thereby preserves a right of appeal to this Court; thirdly, where issues of contested fact exist, the Supreme Court is singularly an inappropriate venue for their resolution and; fourthly, such would in almost all cases, constitute a more efficient and effective dispatch of court business and thus, would be in the interests of the administration of justice, including the interests of the litigating parties.

45. At a specific level the following must be noted: -

(i) the substantive case has concluded: given the finality of this Court’s order dated 17th February, 2012, it is no longer pending before this Court;

(ii) issues of fact have been raised in the affidavits such as, the undertaking dated 2nd July, 2009, the demand letter from Pine Investment dated 30th April, 2014, the complaints made about the solicitors handling of the case, the various discussions had between solicitor and client about the likely level of fees, and the acknowledged absence of any s. 68 letter. Whilst it may be debated how relevant such matters are and what their consequences might be, nevertheless they have been raised and will have to be addressed;

(iii)of the four substantive reliefs claimed in the notice of motion, only the s. 3 application can be dealt with in this Court. This would inevitably give rise to a split hearing with the possibility of this Court being involved, in the same motion, at both an original and appellate level, and finally;

(iv)a possible issue as to the meaning of this Court’s Order of 17th February, 2012, whereby it “affirmed” that the existing Order for costs made in the High Court can be avoided if that Court should hear the application.

46. In conclusion, I am of the view for the reasons herein given that this Court should decline jurisdiction to hear the s. 3 application, and should remit the matter to the High Court so that all issues in controversy between the parties arising out of this application can be heard and determined by that Court.

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