The High Court struck out a solicitor’s plenary summons and statement of claim and dismissed his action seeking €154,398.24 in legal fees from a former client. The interlocutory injunction over part of the proceeds from a property sale was discharged.
In a judgment delivered on 14 August 2015, Mr Justice David Keane found that the solicitor had begun proceedings before satisfying statutory requirements governing claims for legal fees. The court also found that the summons sought only interim relief, without identifying a substantive claim, and that the later addition of the fee claim in the statement of claim was not permitted in the circumstances.
The solicitor had represented the defendant in four sets of proceedings dating from 2002. He alleged that she had agreed to use her share of the surplus from a property sale to pay his fees. The defendant denied agreeing to pay the claimed amount or to pay it from the sale proceeds.
The property was sold, and the solicitor discovered in March 2011 that approximately €85,000 in net proceeds was due to the defendant. He believed she had instructed another firm in an effort to avoid paying him. On 15 March 2011, he issued a plenary summons seeking injunctions to prevent her reducing or dissipating assets below €154,398.24. The next day, the court made a consent order requiring the mortgagee’s solicitors to retain half of the sale proceeds due to the defendant until further order.
The solicitor did not deliver bills of costs until 1 March 2012, after issuing the summons and delivering his statement of claim in July 2011. His counsel accepted that he was not entitled to maintain the fee action when the statement of claim was delivered. The judgment explained that the law generally required a solicitor to deliver a bill and wait one month before suing, while allowing a court to grant leave to sue early where the statutory test was met. No application for that leave had been made.
The judge also rejected the argument that the fee claim could be added later as an amplification of the summons. The fraud argument did not change the result: fraud had not been pleaded, and the court said the evidence offered to support an inference that the defendant intended to frustrate the claim was far from compelling.
The ruling concerned the validity of the proceedings and the injunction. The court struck out the pleadings, dismissed the action and discharged the injunction; it did not determine whether the defendant owed the claimed fees.