The High Court authorised three solicitors practising as Dundon Callanan to negotiate, tax and recover costs awarded to Butler Homes Limited against Limerick City Council in an arbitration. Any money recovered must be held to the order of the court until separate High Court proceedings between the solicitors and the company conclude, or the parties reach an agreement approved by the court.
Mr Justice Max Barrett delivered the judgment on 5 May 2017. The application was brought under section 3 of the Legal Practitioners (Ireland) Act 1876 and section 21(7) of the Arbitration Act 2010. The solicitors sought declarations and orders concerning their claimed entitlement to costs and a charge over them.
The underlying arbitration concerned the council’s compulsory acquisition of company lands. An award made on 24 November 2011 included €110,000 for Butler Homes and an award of costs against the council. The judgment said the solicitors and others involved in the arbitration had acted on a “no foal, no fee” basis, but the agreement was not put in evidence. The court said this left it unclear whether all the fees covered by the requested charge were owed to the solicitors.
The company’s director, Michael Butler, alleged in affidavit evidence that the company had not received the award monies and that money received had been used to settle legal fees without authority. The judge stressed that these allegations had not been established and might be untrue. Solicitor James Dundon denied them in his affidavit and said the Law Society had investigated and rejected the allegation.
Butler Homes was not represented by lawyers at the hearing. The judge found there was insufficient evidence to establish exceptional circumstances that would permit Mr Butler, as a company director, to represent it. The court therefore proceeded under the rule restricting company representation by non-lawyers, while counsel for the applicants read Mr Butler’s affidavit and presented the issues raised.
The court authorised the applicants to negotiate and settle the costs due from the council, take part in and conclude their taxation in place of Butler Homes, and seek payment and enforce the costs award directly against the council. It did not determine the final amount recoverable. It said the applicants should seek costs previously identified as recoverable by Connolly Lowe, the cost accountants engaged by the Butler family, together with any further amount the solicitors considered recoverable; on the evidence before it, the court did not see that additional costs were recoverable.
The applicants may apply to have some or all of recovered funds released to third-party service providers if those parties are established to be entitled to payment. The judgment did not resolve the dispute over the solicitors’ fees or determine who was ultimately entitled to the funds.