The Court of Appeal has dismissed Peter and Nancy McNicholas’s appeal against a High Court order requiring them to pay solicitor Douglas Kelly €150,000, together with costs. The order was for part of Kelly’s fees claim; the remaining balance was remitted for a plenary hearing and remains unresolved.
Kelly began summary proceedings in 2012, seeking €245,916.94 for fees and outlay relating mainly to legal work for the McNicholases in litigation over access to their property after land was acquired for the Charlestown Bypass in Co Mayo. In July 2014, the High Court granted judgment for €150,000 and sent the balance to a full hearing.
The McNicholases disputed that they owed the fees on the terms claimed. Peter McNicholas said the firm had agreed that he would pay out-of-pocket expenses, while fees would be recovered from Mayo County Council only if the underlying case succeeded. Their daughter, solicitor Marilyn McNicholas, had also written that costs would be paid from compensation for the compulsory purchase of land. Kelly denied that the alleged conditional-fee agreement had been made.
The Court of Appeal said the clients had advanced several inconsistent accounts of when and how fees were payable. It upheld the High Court’s conclusion that they had not established a fair or reasonable probability of a real, credible defence sufficient to prevent summary judgment. The court also rejected their challenge to Kelly’s right to sue, finding that he could pursue the fees after becoming principal of the firm.
The appeal raised an error in the notice of motion, which stated a claim of €245,016.94 rather than the €245,916.94 in the supporting affidavit. The Court of Appeal treated the difference as a typographical error that caused no prejudice and did not undermine the partial judgment. It also rejected an argument that the summary summons was invalid because it did not expressly say a signed bill of costs had been served. The court noted that the firm had failed to provide a required fee letter, but said the Law Society had addressed that omission by reducing the professional fee by about 10 per cent. The clients had not used the available process to have the bill taxed.
The court was not satisfied that the McNicholases’ negligence allegations justified setting off a potential claim against the fees at this stage. Separate negligence proceedings were instituted after the 2014 summary judgment, but the judgment records that litigation had not progressed. The Court of Appeal dismissed the appeal, leaving the €150,000 judgment and costs in place and the balance for plenary hearing. Its decision did not determine that remaining balance or the separate negligence proceedings.