The High Court has allowed an appeal by John Flanagan and Lazarus Investments Limited and directed Patrick F. Molony & Company Solicitors to make discovery of a conveyancing file relating to a 2008 property transaction in Liscannor, County Clare.
The order is conditional on the plaintiffs’ solicitors giving written undertakings to preserve the non-party firm’s asserted lien over the files, return them when the proceedings conclude or the retainer ends if requested, and actively prosecute the case. The plaintiffs must also discharge the firm’s costs of complying with the discovery order. If the undertakings are not provided, the discovery obligation will not take effect.
The underlying Circuit Court proceedings concern a dispute over what land the parties agreed to transfer. The plaintiffs plead that Flanagan agreed in May 2008 to purchase property from Patrick Considine for €100,000, and that the purchase money was paid. They seek an order requiring Considine to transfer part of a property registered in County Clare. Considine admits an agreement was made but disputes that it covered the full area shown on a map attached to the claim. Those issues remain for the Circuit Court.
The requested file was created by M. O’Shea & Co, which was later subsumed into Patrick F. Molony & Company. The plaintiffs said it was necessary to fairly determine the property dispute. The solicitors opposed discovery on the basis that they held the files under a lien for disputed, allegedly unpaid fees. The judgment records that the bills exceeded €50,000 and that separate proceedings to recover fees, issued in 2012, had not been progressed. The High Court did not determine whether any fees were due or whether the lien was valid; it proceeded on the basis that the lien had been asserted and remained claimed.
Justice Barry O’Donnell said the conveyancing file was likely to be critical and that without it the plaintiffs might be unable to prosecute their case. He concluded that the balance of justice favoured discovery while the undertakings would protect the asserted lien as far as practicable. The discovery order does not affect any client liability for costs or the firm’s right to pursue recovery in separate proceedings.
The court reserved the question of costs. Its provisional view was that the plaintiffs should receive their costs of the motion and appeal in the High Court and the court below. The parties were directed to notify the Registrar by 22 January 2024 if they sought an alternative order; if they disagreed, the matter would be listed for final argument.