The High Court refused an accountant’s application to obtain access to two files held by his solicitor, ruling that he must seek access through separate plenary proceedings already brought against the solicitors.
In a judgment delivered on 30 May 2016, Mr Justice Twomey considered whether the client could use a special summons under Order 3, rule 19 of the Rules of the Superior Courts to obtain files for a proposed expert review in negligence proceedings.
The client sought files relating to three cases conducted on his behalf by the first defendant solicitor and, he alleged, by the second defendant. The second defendant denied providing legal services, and the proceedings had not been served on him. At the hearing, the first defendant undertook to give a legal expert access to the O’Meara file. The dispute before the court was therefore limited to the Mount Kenneth and Fitzpatrick v Tobin files.
The client said he needed the files urgently to brief an expert for his negligence claim. He had issued plenary proceedings against the defendants, but those proceedings had not been served. The first defendant asserted a common law lien over the files pending payment of fees, outlay and taxes, while agreeing that a legal costs accountant could inspect them for the purpose of preparing for taxation.
The judgment also noted that alleged costs exceeding €680,000 were the subject of a separate special summons brought by the first defendant. The Master of the High Court had rejected that summons, and an appeal had not yet been heard. A taxation process had begun, but a hearing before the Taxing Master had not commenced.
Justice Twomey held that Order 3, rule 19 permits a special summons for delivery of a solicitor’s documents only where there is no pending proceeding in which the application may be made. Because the client had brought plenary proceedings, the court said he had a procedure available within those proceedings, likely under the discovery rules.
The court rejected reliance on other rules allowing special summonses, finding that they did not override rule 19’s express condition or apply where another procedure was available. It refused the relief sought. The judgment did not determine the negligence allegations, the dispute over fees, or the client’s ultimate entitlement to the files.