High Court of Ireland Decisions

1. In these proceedings, the Plaintiffs seek an Order directing the Defendant, their former solicitor, to deliver to them all title deeds, correspondence and attendances in his possession relative to the premises known as No. 8 Nicholas Church Lane, otherwise Nicholas Church Place, Cork ("the Premises"). The Defendant contends that he is entitled to withhold the said documents on foot of his common law retaining lien.

2. In 1986, the Plaintiffs and a number of private limited companies, in which the Plaintiffs owned the entire equity or a majority stake in the equity, retained the Defendant as their solicitor and, in connection with that retainer, files and documents belonging to the Plaintiffs and to the companies were transferred by the Plaintiffs' and the companies' former solicitors to the Defendant. Amongst documents transferred were the title deeds to the Premises. It is not in issue that the Premises are owned by the Plaintiffs in their personal capacities and, accordingly, that the title deeds belong to the Plaintiffs in their personal capacities.

3. The Plaintiffs and the companies terminated the Defendant's retainer on 4th July, 1989. It is not in dispute that at that stage costs were due to the Defendant by the Plaintiffs and also by the companies. The Defendant retained Messrs. Cyril O'Neill & Company, Legal Cost Accountants, to prepare bills of costs. This was done and the aggregate amount claimed as due to the Defendant on six bills of costs as drawn by Messrs. Cyril O'Neill & Company was £34,116.50. The Plaintiffs and the companies retained Messrs. Behan Fitzpatrick, Legal Cost Accountants, to examine the six bills. There followed discussions between the two firms of costs accountants which resulted in agreement as to deductions to be made from the bills. The outcome of these discussions was summarised in a letter dated 7th June, 1990 from Messrs. Cyril O'Neill & Company to the Defendant, in which there was set out the amount which both firms were prepared to recommend to their respective principals on each of the six individual bills for solicitor and own client costs. One of the bills related to the Plaintiffs and the amount agreed for recommendation in respect of that bill was £1,492.42. Of the other five bills, one related to two companies, Enmare Limited and Kaylon Limited, another two related to Kaylon Limited and the other remaining two related to Ringsun Blinds Limited and Security Shutters Limited respectively. The aggregate amount agreed for recommendation in respect of the six bills was £29,710.82 which, it was stated in the letters, after giving credit for a payment on account of £2,200.00 paid to the Defendant, would leave a balance of £27,510.82 due to the Defendant on foot of the six bills. The principals accepted the recommendations and the amount of the costs properly chargeable by the Defendant on each bill is agreed. However, the global balance due by the Plaintiffs and the companies to the Defendant as stated in the letter of 7th June, 1990 has been disputed by the Plaintiffs and the companies who contend that they are entitled to further credit.

4. The Defendant's position is that he is entitled to retain the title deeds to the Premises until the full amount of £27,510,82 in respect of all six bills has been paid. The Plaintiffs, by a Demand Draft drawn on AIB Bank dated 1st August, 1996, tendered payment of the sum of £2,089.38 to the Defendant in respect of their personal liability, comprising the sum of £1,492.42 together with a sum of £596.96 in respect of interest claimed by the Defendant, which was expressed to be tendered strictly without prejudice to the Plaintiffs' right to dispute the claim for interest. The Demand Draft has been retained by the Defendant but, apparently, not negotiated.

5. The Defendant's contention is that he has a general lien on the title deeds to the Premises, the property of the Plaintiffs, not only in respect of costs due by the Plaintiffs, but also in respect of the costs due by Enmare Limited, Kaylon Limited, Ringsun Blinds Limited and Security Shutters Limited. The basis of the Defendant's contention, as I understand it, is that the Plaintiffs and the companies entered into a composite settlement with the Defendant in the early summer of 1990 to pay the balance of £27,510.82 to the Defendant and that this composite settlement is not severable. It is contended that subsequent dealings by the Defendant with the Plaintiffs and the companies through their current solicitors, Messrs. Maurice Leahy & Company, and in particular various offers made by that firm on behalf of their clients on 4th December, 1990, on 25th August, 1993 and on 19th January, 1996 evidence and confirm this.

6. The nature and extent of a solicitor's retaining lien is well settled. At common law, he has a right to retain property already in his possession until he is paid costs due to him in his professional capacity by his client against whom the lien is claimed. The retaining lien is general in the sense that it extends to all costs due to the solicitor from the client, whether or not the property was acquired in connection with the matter for which the costs were incurred. This point is illustrated by the authority relied on by Mr. Bradley on behalf of the Defendant - Carroll -v- Fleming 57 I.L.T.R. 75. However, the retaining lien extends only to costs incurred by the client against whom it is claimed and this is illustrated by the authority relied on by Mr. Hussey for the Plaintiffs - Turner -v- Deane [1849] 6 Dow & L 669. In that case, it was held that an attorney with whom title deeds, the property of a member of a firm, had been deposited by that member in the course of professional business done on his private account, had no lien on them for a debt due from the partnership. By analogy, the Defendant has no lien on the title deeds to the Premises for costs due by the companies to the Defendant, irrespective of the fact that the companies are wholly owned or controlled by the Plaintiffs.

7. As a matter of law, the extent of the Defendant's general lien on the title deeds to the Premises had crystallised on the termination of the Defendant's retainer in July 1989 and, in my view, nothing which occurred after that date could have varied the extent of the Defendant's general lien. I think it is important to emphasise that the Defendant's refusal to return the title deeds to the Premises is justified solely in reliance on his general lien at common law.

8. Accordingly, in my view, the Defendant, having received and retained the Demand Draft dated 1st August, 1996 which covers the agreed amount due for costs by the Plaintiffs to the Defendant, the Plaintiffs are entitled to the return of the title deeds to the Premises. Accordingly, I will make an Order directing the Defendant to deliver all title deeds, correspondence and attendances relevant to the Premises in his possession to the Plaintiffs through their solicitors, Maurice Leahy & Company, not later than 5 p.m. on 25th July, 1997. The Defendant is free to and can negotiate the Demand Draft at any time. I express no view as to whether the Defendant is entitled to the sum of £596.96 included in the draft in respect of interest.