family law

High Court issues comprehensive statement on solicitors’ duty in family law litigation

Mason Hayes and Curran v Queally [2018] IEHC 614

 

Judgment of McDermott J delivered on 26 October 2018

In 2005, the defendant retained an experienced family law solicitor from Arthur O'Hagan & Company solicitors to act on her behalf in the course of family law proceedings which were ultimately compromised in 2008. In 2010, Arthur O'Hagan & Company merged with the plaintiffs. They continued to represent the defendant until a Notice of Change of Solicitors was served in 2011.

The present case involves a claim by the plaintiffs for the balance of fees owed. The defendant denied liability for the amount claimed and indeed, counterclaimed for loss arising from negligence, breach of duty and breach of contract. This presented an ideal opportunity for the trial judge to state the law on the duties owed by solicitors when conducting family law litigation.

Following an initial consultation in July 2005, the defendant was issued with a letter summarising the issues at hand arising from the breakdown of her marriage. There were four children and the family home was situated in Malahide, County Dublin. They also owned property in Spain. The letter also set out the basis upon which fees would be charged by the firm. A section at the end of this letter entitled 'costs and fees' was clearly designed to comply with s 68 of the Solicitors (Amendment) Act 1994, and spelled out that the current charge out rate was 275 EUR per hour.

At the time the settlement was reached in November 2008, an invoice in the amount of €228k was issued to the defendant to add to an outstanding balance of around €13k. The defendant reached separate agreements with counsel and with the accountants for a reduction in fees. This left a balance of €64k in respect of solicitor’s fees which are said to be outstanding since November 2008. In a letter dated 2 December 2009, Ms Queally offered to pay €52k in full settlement of the solicitor’s fees as in a ‘final attempt to resolve the matter on an amicable basis’.

In respect of the negligence counterclaim, the defendant admitted that had Mason Hayes and Curran accepted the offer for a reduction in fees then she would not have initiated or maintained an action seeking damages for professional negligence. The original counterclaim alleged negligence on the part of the plaintiff in advising the defendant to settle the proceedings upon terms which no reasonably competent solicitor would have agreed to.

As per Roche v Peilow [1985] IR 232: ‘The standard of care required of a solicitor in carrying out the business entrusted to him by his client is the ordinary level of degree of skill and competence generally exercised by reasonably careful colleagues in his profession’. This test was then affirmed by Finlay CJ in the medical negligence case of Dunne v National Maternity Hospital [1990] IR 91.

But what if counsel is retained during the matrimonial proceedings? A solicitor is entitled to rely upon the advice of counsel who has been properly instructed. The solicitor is under a duty to reject counsel’s advice where it is ‘obviously or glaringly wrong’. Moreover, a solicitor may be found negligent if, in following the general professional practice they subjected their client to a ‘foreseeable and readily avoidable risk’. And lastly, a practitioner will also be negligent where the generally approved practice is inherently defective for the purpose at hand but they opt to follow it anyways.

In his concluding remarks at paragraph 174, the trial judge noted that the plaintiffs were entitled to judgment in the amount of €64k. Moreover, he also stated that he was not satisfied on the evidence that negligence had been established. Accordingly, the defendant’s counterclaim was dismissed.

The judgment may be accessed in full here.

 

 

Note: This is intended to be a fair and accurate report of a judgment made public by a court of law. Any errors should be notified to the editor and will be dealt with accordingly. This post is for general information only and should not be relied upon as legal advice.

 

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