The High Court has refused an interlocutory application by Patrick Connolly seeking orders that O’Dwyer Solicitors LLP transfer and preserve files relating to property transactions in County Mayo.
In a judgment delivered on 7 April 2022, Mr Justice Mark Sanfey said he did not consider it appropriate to grant the relief sought. The court was asked to require the firm to send files about the purchase and mortgage of Mayo lands and a house at 14 Cornaroya Manor, Ballinrobe, to Connolly’s new solicitors, and to preserve those materials pending further order.
Connolly’s plenary proceedings against the firm also seek damages for alleged negligence, breach of duty, detinue and breach of retainer. He said he needed the documents to help pursue separate proceedings against receivers appointed over the properties by Everyday Finance DAC, which had been assigned the original mortgage. Connolly had obtained an interim injunction in those proceedings in May 2021. The judgment does not determine that separate case.
The solicitors said the transaction files had been destroyed in the ordinary course of records management. Evan O’Dwyer, a partner, said the firm had found an undertaking and a letter of discharge relating to the Cornaroya property, but held no other documents concerning the transactions. The firm said it would release those two documents on receipt of a signed and witnessed authority. It maintained that consent was needed from both Connolly and Michael Finnegan, who had also instructed the firm on the transactions.
Connolly disputed the account that the files had been destroyed and pointed to what he said were inconsistencies in the firm’s correspondence. His counsel argued that the firm should have retained conveyancing files for 13 years and that the alleged failure could support a claim for negligence and breach of retainer. The firm disputed that Connolly had shown a strong case for the orders, and argued that the application sought final relief at an interlocutory stage.
Justice Sanfey said the court had not been given the pleadings or evidence from the receiver proceedings, so it could not assess Connolly’s claimed need for the files or how their absence affected that case. He also noted that Connolly had not yet delivered a statement of claim in the proceedings against the firm. The judge said the application was, in effect, an unusual request for accelerated discovery to assist another case.
Taking O’Dwyer’s affidavit evidence at face value, the judge said there would be little point in making an order when the firm said it had no further relevant documents. He also noted that the firm was willing to release the two documents it held subject to suitable authority, and that Connolly had not explained his delay in bringing the application.
The judge gave a preliminary view that costs should be awarded to the firm, but allowed either side seven days to make written submissions before finalising the costs order.