The High Court ordered Alan Donnelly & Co. to deliver James Kavanagh’s case files to his current solicitors, subject to a written undertaking preserving the former firm’s lien over the papers. The order facilitates Kavanagh’s claim in long-running milk quota proceedings but does not defer or decide his liability for the former solicitors’ costs.
In a judgment delivered on 11 July 2008, Miss Justice Laffoy said the files must be delivered within two weeks after the current solicitors give the undertaking. They must hold the files subject to the former firm’s lien and return them when Kavanagh’s claim concludes. Delivery is without prejudice to the former solicitors’ claim for costs.
Kavanagh is the fortieth named plaintiff in proceedings begun in 1990 by 98 individual plaintiffs seeking declarations and damages arising from implementation of the milk quota regime before 1990. A preliminary issue in his claim had been listed for 18 April 2008, but did not proceed. The judgment said it was intended to assign it a hearing date of 29 July 2008.
The former solicitors had acted for Kavanagh since 1997 and remained on record until April 2008. They obtained an order allowing them to come off record after telling the court that relations had irretrievably broken down. Kavanagh did not file an affidavit or appear at that application. His current solicitors came on record the following day.
The former firm said it would release the files in return for an undertaking to pay its agreed or taxed costs by 1 December 2008. Its affidavit estimated solicitors’ fees at more than €40,000. At the hearing, counsel said a bill had recently been prepared claiming about €120,000 in fees and outlay, including €44,000 plus VAT due to the former firm. Those figures were presented to the court but were not supported by affidavits. Kavanagh’s counsel said he owned farmland but could not pay the sum; that submission also was not on affidavit.
Laffoy said the affidavit evidence did not establish that Kavanagh had expressly discharged the former solicitors, nor could it resolve whether there had been an implied discharge or whether the solicitors ended the retainer for reasonable cause. She therefore proceeded on the basis that the former firm had ended the retainer for reasonable cause and applied the court’s equitable jurisdiction to protect the progress of the litigation while preserving the lien.
The court dismissed the part of Kavanagh’s application seeking to defer payment of costs until the successful outcome of his claim. The judgment said the order did not affect his potential liability or the former firm’s right to pursue recovery; those contractual matters were outside the scope of this application. It noted that his claim involved an assessment of compensation following the Supreme Court’s decision in Duff and the remittal to the High Court.