The High Court ordered former solicitor Sean McDonnell to hand over his files in Matthew Reilly and Dermot Kidd’s action, finding that a 16-month period of inactivity amounted to a breach of his duty of diligence and entitled the plaintiffs to treat the retainer as implicitly terminated.
Mr Justice Ryan delivered the judgment on 6 December 2013. The order was for transfer to the plaintiffs’ new solicitors, Giles J Kennedy and Co., on specified conditions. The judge did not determine the final amount of McDonnell’s costs. He said the plaintiffs could seek taxation of those costs if they could not agree an amount, and left open the possibility of agreeing different terms.
The plaintiffs’ action arose from a 2007 agreement to buy land in County Meath from the first defendant. They said they paid a €400,000 deposit to the defendant firm, acting for the vendor and purchaser as stakeholder. The sale did not proceed, and the plaintiffs sought recovery of the deposit. The action was later amended to include claims for damages for breach of retainer or agreement, negligence and breach of duty. Those claims were not decided in this application.
The inactivity at issue ran from October 2010 to February 2012. The plaintiffs said McDonnell had done nothing during that period. He said he was unable to progress the case without files relating to the transaction, following the winding up of the O’Ceallaigh solicitors’ practice. He said he made repeated efforts to obtain them and spoke with the plaintiffs by telephone. The plaintiffs did not make a written complaint or set a deadline.
Mr Justice Ryan accepted that the winding up created complications and that the transaction files were relevant. But McDonnell had not explained whom he contacted, what happened, or why he did not write, apply to court or seek advice on how to obtain the documents. The judge said the plaintiffs’ failure to challenge the inactivity did not excuse it. He found the delay substantially excessive and the explanation inadequate.
The judge also considered McDonnell’s claim for €72,296.67 in costs across this action and earlier matters. He said the affidavits showed a prima facie case that a substantial sum was outstanding, although its amount was disputed. To protect McDonnell’s position, the new solicitors were required to retain from any costs award in the action a sum sufficient to cover his bill for this case up to the change of solicitor. The plaintiffs and their solicitors were also required to retain from any award to the plaintiffs enough to cover costs from earlier proceedings in which McDonnell acted. The plaintiffs were ordered to pay his outlay in the current action.
The transfer order was conditional on those undertakings. If the costs were not agreed, the judge said he was willing to order their taxation at the plaintiffs’ request. In the absence of agreement on costs or variations to the undertakings, the stated conditions would apply.