Title:	Cadden -v- Vesey & anor
Neutral Citation:	[2016] IESC 75
Supreme Court Record Number:	296/11
High Court Record Number:	2006 5212 P
Date of Delivery:	12/16/2016
Court:	Supreme Court
Composition of Court:	McKechnie J., MacMenamin J., Dunne J.
Judgment by:	McKechnie J.
Status:	Approved
Result:	Appeal dismissed

THE SUPREME COURT

Between /

Introduction:
1. This is an appeal by Mr. Vesey against an order made in the High Court on the 7th June, 2011, directing the payment out to the notice party of the balance of party and party costs then available, which had previously been recovered in personal injury proceedings which I will come to in a moment. In addition, the learned judge, having earlier awarded both the plaintiff and the notice party their costs against the defendant, measured the amounts thereof at €3,000.00, and €4,500.00, respectively, both inclusive of VAT. To understand this appeal it is necessary to set out some of the background which stretches back some twenty years.

Background:
2. On the 9th September, 1996, Mr. Vesey (“the defendant” or “the appellant”) was involved in a road traffic accident on the Stillorgan Road. On the occasion in question his motor vehicle was stationary at traffic lights when a bus, the property of Bus Éireann, drove into the rear of his car. In the resulting proceedings, where liability was not in issue, the High Court, on the 10th November, 2000, awarded the plaintiff the total sum of IR£72,500.00, with the breakdown being:-

(i) General damages £30,000.00

(ii) Loss of earnings to date and into the future £35,000.00

(iii) Special damages £ 7,500.00

3. Being dissatisfied with this award, Bus Éireann served a Notice of Appeal to the Supreme Court, which gave its judgment on the 13th November, 2001 ([2001] 4 I.R. 192). In his decision, with which the other members agreed, Hardiman J. recounted certain findings made by the trial judge which reflected his very strong views of the plaintiff’s lack of integrity, in fact of his downright dishonesty in the evidence which he tendered before the trial court. In particular, the plaintiff’s evidence relating to the disability and physical injuries allegedly suffered as a result of the accident, to his pre-accident medical condition and work history, and also as to the number and extent of his previous accidents, was wholly unsatisfactory and highly dubious. These findings were factually based and had not been sought to be disturbed by Mr. Vesey on appeal.

4. Having considered these findings, and in light of the several inconsistencies also highlighted in his judgment, Hardiman J. came to the conclusion that the award could not stand. In its place was substituted a total sum of IR£30,000.00, representing IR£15,000.00 for general damages, IR£7,500.00 for all loss of earnings and the same sum for special damages. Quite evidently, in light of these figures Bus Éireann had been successful on the appeal and, as would follow, was awarded its costs. However, the Court did not disturb the cost order made in the High Court.

5. Therefore the overall position on this point was that Mr. Vesey had his costs in the High Court, but Bus Éireann had in its favour witnesses’ expenses in that court and the full costs of the appeal, all such costs to be taxed in default of agreement.

6. By mid-2006 both sets of costs had been taxed, with the amount of Mr. Vesey’s party and party costs coming in at approximately €36,031.99, and those of Bus Éireann from both the High Court and the Supreme Court amounting to €18,755.44. In effect, therefore, there was a net balance in favour of Mr. Vesey of just over €17,000.00. It should be noted that the damages award was in Irish Pounds, whereas the costs were of course assessed in Euros.

7. In 1996, Mr. Vesey had retained Messrs. Kent Carty Solicitors to act on his behalf in the prosecution of his road traffic case. On the 27th May, 1999, that firm’s retainer was withdrawn. They had thus acted in preparation for the trial and also when the case was first adjourned in January, 1999, but not on the second occasion, which was on the 9th June, 1999; in addition, as is evident from the actual trial dates, they were not engaged either at the time of the High Court hearing or for the appeal proceedings. The plaintiff in the instant proceedings, Mr. Fabian Cadden, Solicitor, had been retained in their place, most probably by the time of or at least very soon after the events next described. He was thus the instructed solicitor for both court hearings.

8. In order to obtain the relevant papers and files from Kent Carty, Messrs. Cann & Cadden, as the plaintiff was then entitled, gave that firm an undertaking dated the 4th June, 1999, in the following terms:-

“(a) to substitute our undertaking for all the undertakings given by your firm on Mr. Vesey’s behalf relative to this file subject to the availability of funds from the High Court award or settlement proceeds as appropriate;

(b) to discharge your tax bill as same shall be agreed by the defendants and plaintiff’s cost accountants or the Taxing Master, same being apportioned between our respective firms. We confirm that first preference shall be given to the payment of your firm’s bill (as taxed and agreed) from the net costs cheque and proceeds of the claim after the payment of the various undertakings to Bank of Ireland and the other parties, insofar as it relates to work done by your firm to date.”

The Instant Proceedings:
10. By notice dated the 24th November, 2006, Mr. Vesey purported to serve a Notice of Discharge on Mr. Cadden. By way of response he was referred to the irrevocable undertaking above mentioned, and asked to confirm that such notice would be immediately withdrawn. Having had no reply to this request, the within plenary proceedings were instituted on the 30th November, 2006, in which the solicitor sought a variety of orders, some of which have been overtaken by subsequent events. In essence, he sought control over the party and party costs and also looked for court directions in respect of the appellant’s final damages award, which was then standing in the solicitor’s client account. The overall purpose of these orders was, first, to enable Mr. Cadden to discharge the cost undertaking given to Kent Carty, secondly, to discharge a further undertaking given to Bank of Ireland on behalf of Mr. Vesey which effectively he had responsibility for, and, thirdly, to collect fees due to him for the professional services rendered in the personal injury action, if such was achievable.

11. A Notice of Motion returnable for the 18th December, 2006, then issued, grounded upon an affidavit of the plaintiff. In addition, Mr. Cadden swore an affidavit of service in respect of the motion wherein he averred that the same had been served on two ladies who worked in a shop underneath the premises of Mr. McEniry, Solicitor, who it was believed represented the appellant at the time. The accuracy of this affidavit was put in issue by Mr. Vesey in 2010, and ever since has been a source of serious and constant agitation by him. The High Court made an order on the return date, the effect of which was to prohibit all persons with notice thereof from dissipating or otherwise dealing with the taxed costs, stated to be in the sum of €36,036.99, until the proceedings were determined (the “Freezing Order”). This sum, as noted, was subject to a set off in favour of Bus Éireann, the details of which are outlined above (para. 6, supra).

12. The next step of any significance was the issue by Mr. Cadden of a motion dated the 22nd November, 2010, in which he sought to vary the Freezing Order in such a manner as would enable him to collect the net party and party costs, and to pay such costs over to Kent Carty pursuant to the aforesaid undertaking. The reason underlying this move at that time was a concern that unless full control was taken over the costs, their recovery might become statute barred.

13. By the date of this motion matters had moved somewhat from the plaintiff’s point of view: the damages and accrued interest awarded to Mr. Vesey had been paid over to the Bank of Ireland, which had accepted the same in full discharge of the appellant’s debt to that institution. The appellant did not object to this, but claimed it should have been done earlier. As a result, there was no longer in existence any undertaking to the Bank by Mr. Cadden. Moreover, in light of the limited amount of the party and party costs remaining available, Mr. Cadden was satisfied that the entire sum should be paid to Messrs. Kent Carty, thereby in effect discharging his undertaking, even if it meant, as it did, that neither he nor the barristers retained by him on behalf of Mr. Vesey would be paid, nor would the expenses of the witnesses called in the High Court be discharged.

14. On the 10th December, 2010, the High Court made an order directing Mr. Cadden to collect the set off balance of the party and party costs, and to pay the same into court pending further order. Ancillary directions were given as to the filing of affidavits and, in light of Mr. Vesey’s objection to such costs being paid out to either of the firms engaged by him, Messrs. Kent Carty were joined as a notice party to the proceedings. Eventually the outstanding issues set out in that Notice of Motion came on for hearing before and were determined by Clarke J., in a judgment given on the 7th June, 2011. The resulting order of that date reflected what the learned judge decided.

15. Having recited much of the history as above outlined, and having noted the fact that Mr. Cadden was not claiming an entitlement to any portion of the net costs, the learned judge identified the net issue before him as being whether or not such costs should be paid to Messrs. Kent Carty. In light of the Authority and Retainer signed by Mr. Vesey on the 4th June, 1999, which gave rise to the undertaking(s) of the same date furnished on his behalf (paras. 8 and 9, supra), the judge could not identify any basis upon which the monies should not be paid to Messrs. Kent Carty, and accordingly he so ordered (the “Payment Order”).

16. On the question of costs, Clarke J. was satisfied that by reason of Mr. Vesey’s unmeritorious opposition to the payment out to Kent Carty, that firm should be entitled to recover costs against him in the amount above described. With regard to Mr. Cadden, it was noted that at an earlier stage he had expressed a desire to withdraw from any further participation in the proceedings (and in fact did so), and if that had remained the situation he would not have been seeking his costs. However, because of what were described as “accusations of a serious nature” which Mr. Vesey made against him, leave was given to Mr. Cadden to re-engage and participate in the proceedings. Even if such allegations eventually did not turn out to be directly relevant to the narrow issue which the court focused on, nonetheless it was clearly appropriate for the plaintiff to attend. Accordingly, he was also entitled to his costs, again measured in the amount above specified.

The Negligence Proceedings:
17. Before going on to deal with the Notice of Appeal, I should add to the factual background an important event, which is that in November, 2006 Mr. Vesey instituted civil proceedings against both Messrs. Kent Carty and Mr. Cadden, alleging professional negligence against each of them in their respective handling of his personal injury action (2006/5828P). Insofar as the former are concerned, a limited appearance was entered to the summons on their behalf and on receipt of a Statement of Claim, a detailed Notice for Particulars issued. Precisely how the documentation proceeded thereafter is unclear, but what was acknowledged and accepted by the appellant before this Court was that, prior to any substantive hearing of these proceedings, the same were discontinued against Messrs. Kent Carty.

18. The situation is more complicated in the case of Mr. Cadden. On receipt of a Statement of Claim in January 2009, Mr. Cadden asserted that the Plenary Summons had not been served on him. This was denied by Mr. Vesey, who claimed that service was effected by way of registered post on the 28th November, 2006. This led to the issue of a motion in which he sought an order deeming good the service allegedly made. He was unsuccessful in this regard by High Court order dated the 17th May, 2010; such order, however, was set aside and discharged by this Court at a later date. This had the effect that such proceedings continued against Mr. Cadden, with the same being dismissed after a High Court hearing. Since the date of hearing of this appeal that position has now been affirmed by the decision of the Court of Appeal delivered on the 26th October, 2016.

Notice of Appeal - Submissions:
19. The appellant served a Notice of Appeal, dated the 15th July, 2011, against the whole of the order made by Clarke J., which had been perfected on the 24th June, 2011. It ran to ten pages. Its content very much reflected his view of the history of the events which I have attempted to outline objectively above. His challenge to the High Court order was almost exclusively based on alleging various acts of misconduct or impropriety, or of dishonesty on the part of both firms of solicitors, but more heavily directed towards the respondent to this appeal.

20. As coherently as one can paraphrase this Notice, the appellant sets out, first, what in his view are the actions and conduct which verify the allegations made against the respondent. These assert that Mr. Cadden’s denial of the service on him of the Plenary Summons alleging professional negligence was misleading, untrue and, in effect, false. Secondly, he says that the order under appeal was fundamentally flawed because of what he claims was the non-service on him of the Notice of Motion returnable for the 18th December, 2006, and the grounding affidavit upon which it was based. In this context he vociferously challenges – at a deep and personal level of intensity – the accuracy and truthfulness of the affidavit of service sworn by Mr. Cadden in respect of these documents. He also points out that originally Mr. Cadden had said that the motion was served personally on him on the 12th December, 2006, but that this averment was withdrawn in a later affidavit of the 28th March, 2011. He says that his non-presence on the return date was solely due to the alleged non-service. As a result, he claims that the order obtained at the time was inherently flawed from the outset and that this illegality continues to taint all other aspects of this litigation, in particular the order made by the High Court on the 7th June, 2011. He therefore seeks to have that set aside and looks for a re-hearing in its place.

21. Both the original and supplemental submissions filed by Mr. Vesey essentially repeated what I have summarised above, and in addition contained many of the allegations which apparently are set out in his professional negligence action against Mr. Cadden. Whilst Messrs. Kent Carty are left relatively untouched in the Notice of Appeal, the very opposite is the position with regard to the submissions. First, Mr. Vesey denies that this firm is entitled to any fees or outlay, citing the basis of the fee arrangement as being “no foal, no fee”; secondly, he refers to the lateness of the s. 68 letter (Solicitors (Amendment) Act 1994); and, thirdly, he repeatedly refers to numerous complaints which he has regarding their handling of his personal injury file.

22. At least implicit in the submissions is the suggestion that by not outlining the circumstances as asserted by him, Clarke J. was misled by Mr. Cadden during the 2006 application, thereby leading the judge into misdirecting himself in allowing Messrs. Kent Carty to recover the net balance of the party and party costs. Furthermore, the Payment Order is also manifestly unfair in granting both firms costs of the application. Finally, he referred to an English case of The Law Society v. Shaw (no citation is given but it apparently appears in the Gazette of that Society), in which a solicitor was struck off for dishonesty.

23. It is unnecessary to recite in any detail the submissions made on behalf of both Mr. Cadden and Messrs. Kent Carty, as these will emerge from and become evident in the discussion/decision hereinafter reached.

Discussion/Decision:
24. It is abundantly clear that Mr. Vesey has been dissatisfied for many years with the professional services provided to him by both firms of solicitors. His allegations to this end are various and traverse a wide area extending over a long period of his engagement with both. However, these complaints have always been tangential to the within proceedings, with the result that whether the same were in any way sustainable, or were utterly without foundation, is a matter entirely external to this appeal for several reasons. It is sufficient to mention the obvious, namely, that this case is not an appropriate vehicle through which to pursue either the civil redress side or the disciplinary side of the concerns which Mr. Vesey has set out at great length in the several affidavits sworn by him.

25. In addition, and in any event, as previously pointed out, the allegations of professional negligence have been discontinued against Messrs. Kent Carty. It would therefore be entirely abusive, in a legal sense, to both good judicial administration and to the rights of that firm to further permit or in any way entertain such allegations: the civil case against them has been brought to finality and is at an end. The situation involving Mr. Cadden is likewise determined; that is, in light of the decision of the Court of Appeal awaited at the date of the instant hearing – which has since been delivered (para. 18, supra) – it would have been entirely improper for this Court to make any comment on or to further inquire into those proceedings against Mr. Cadden (para. 42, infra).

26. It is obvious from the history of the Bus Éireann proceedings that all did not go well for the appellant, and one can understand the dissatisfaction which he has, at a personal level, with the ultimate outcome. However, it must be said, as has been definitively known since 2001, at the latest, that the fundamental reasons for such outcome were judicially established, first, in the High Court and, secondly, in the Supreme Court, where the original findings regarding credibility were noted and acted upon. In fact, no attempt was made at appellate level to disturb such findings. Therefore it is necessary, or at least would be desirable, if such, even at this late stage, were recognised by Mr. Vesey.

27. When the Notice of Appeal in the instant case is read in conjunction with the submissions and considered in light of the oral argument, it seems highly likely that whilst ostensibly the appeal is against the Payment Order, in reality the principal focus of attacking that order is by making a direct and sustained assault on the Freezing Order. In essence, Mr. Vesey argues that given the circumstances leading up to the hearing in December, 2006, the resulting order of the 18th December of that year is flawed, and as a result has tainted all further and subsequent steps in these proceedings. Therefore, it would appear that a critical aspect of his challenge depends on this Court setting aside the Freezing Order, or at least making a Declaration as to its unlawfulness. For the reasons which I am about to explain, this it cannot do.

28. Under O. 58, r. 3 of the Rules of the Superior Courts (RSC), one may serve a Notice of Appeal from an order of the High Court within 21 days from the date of its perfection. On occasions this time limit may not be adhered to. When that arises, an application can be made to this Court to enlarge the time for the delayed service of an appeal (O. 58, r. 3(4) RSC). The jurisdiction of the Court in this regard is well established and has existed for a great number of years, with Eire Continental Trading Company Limited v. Clonmel Foods Limited [1955] I.R. 170 being the start of the more modern authority in this area. In that case Lavery J., speaking for the court, accepted the submission of counsel that the following conditions were “proper matters for the consideration of the Court in determining whether time should be extended”:

(i) That the applicant must show that he had a bona fide intention to appeal within the permitted time;

(ii) That he must show the existence of something like mistake and that mistake as to procedure, and in particular the mistake of counsel or solicitor as to the meaning of the relevant rule, was not sufficient; and

(iii) That he must establish that an arguable ground of appeal exists.

30. In my view it is not possible for Mr. Vesey to mount a challenge to the Freezing Order at this point in time without at least moving the court under O. 58, r. 3(4) RSC, regard being had to the above mentioned authorities. In this regard, it is clear from the outset that the appellant could not satisfy either of the first two mentioned requirements as specified in the Eire Continental case. This of itself, in the absence of countervailing circumstances, of which there are none, would be sufficient to compel a court to dismiss such an application without any necessity of considering the third requirement.

31. In any event, it must be remembered that no such application has ever been moved by Mr. Vesey, who likewise has made no attempt to address such matters. In fact, his submission on this point is premised on there being no necessity to do so. Quite evidently, he has not at any time served a Notice of Appeal in respect of the Freezing Order. Moreover, if the circumstances alleged by him could have been established and were directly responsible for his non-attendance before the High Court on the 18th December, 2006, an application to have that order set aside could have been made under the Rules of Court. Again, no such application was made. Accordingly, I am satisfied beyond doubt that the appellant cannot on this appeal mount a collateral attack or challenge to the propriety of that hearing conducted before Clarke J., or to the validity of the resulting order.

32. A further matter of some significance is the fact that the Freezing Order did not interfere with any substantive right which Mr. Vesey had or which he could assert. It simply prohibited any further dealing with the party and party costs until the issues raised in the within proceedings were determined. It thus preserved intact such monies, and, accordingly, could have had no impact on their final destination. It is therefore difficult to see how the interests of Mr. Vesey could have been in any way affected, impaired or damaged by such order.

33. Moreover, it must also be pointed out, as Clarke J. did in the judgment under appeal, that the issue of the service of the Notice of Motion leading to the making of the Freezing Order has long since been overtaken by events. As above noted, the only intervening order between that and the Payment Order was one made in December, 2010, in which the learned judge directed that the monies should be paid into court pending the resolution of the continuing dispute. Once again, it is important to say that such an order could not be said to have interfered with any interest or right of Mr. Vesey’s which was material to the ultimate disposal of the issue of party and party costs. Hence, I am satisfied that neither the service issue nor any of the intervening circumstances during the preceding five years had any continuing relevance in 2011; in reality, therefore, these matters are not germane to the order presently under appeal, and which is the subject matter of this judgment.

34. It has long been the jurisprudence of this Court that its appellate jurisdiction is by and large determined by the ambit of the Notice of Appeal. Whilst it has power to look at matters not fully within such a Notice, it will do so only on compelling reasons being established. Therefore, whilst some latitude should perhaps be given to a lay person in a self representation situation, nonetheless such must be consistent with the rights of the other parties to the application. In this case nothing has been advocated to suggest that the ambit of the appeal should not follow the normal procedure. That being so, apart from the question of costs, there is in my view no further issue which remains outstanding in this appeal. However, in deference to Mr. Vesey and in case he may feel that I have overlooked any matter of importance, I propose to briefly address two further points.

35. The learned trial judge held that Messrs. Kent Carty had a right to the balance of the party and party costs, a conclusion which I fully endorse. First, there is no dispute but that Mr. Vesey signed the letter of Authority and Retainer above referred to, and that he was fully aware of what that involved (para. 9 supra). Secondly, and likewise, there is no doubt but that pursuant to such authorisation, the respondent to this appeal furnished an undertaking to the former solicitors with regard to their fees. Accordingly, in the absence of some justifiable impediment as to why that undertaking should not be discharged, it would appear that Mr. Cadden was under a legal obligation to do so.

36. As clearly as one can decipher from the papers, it seems to me that the appellant has challenged the right of Messrs. Kent Carty to receive such fees not only by alleging negligence against that firm, but also by suggesting that the original basis of the retainer was ‘no win, no fee’. Assuming that to be correct for a moment, it is therefore useful to briefly consider the legal position in this regard.

37. It is established law that ‘no foal, no fee’ arrangements are determined if the client moved to another solicitor. A solicitor has a lien on a client’s file. Whilst a solicitor cannot terminate a retainer without good cause and reasonable notice, a client may change solicitors whenever he so wishes and for whatever reason. However, if the retainer is terminated by the client, then the discharged solicitor will, at least generally, be entitled to his fees on a quantum merit basis.

38. As far back as 1837, in Heslop v. Metcalfe (1837) 3 My. & C. 183, Lord Cottonham L.J. said:-

“I then take the law as laid by Lord Eldon, and, adopting that law, must hold that [the solicitor] is not to be permitted to impose upon the plaintiff the necessity of carrying on his cause in an expensive, inconvenient and disadvantageous manner. I think the principle should be, that the solicitor claiming the lien should have every security not inconsistent with the progress of the cause.”

“It is crucial that the client, the former solicitors and the current solicitors understand the purpose and effect of the order I propose to make. It is an order which will facilitate the client in prosecuting his claim in these proceedings, while at the same time preserving the former solicitors’ lien on the files, for what it is worth. It will not in any way affect the liability of the client for costs which have accrued in the conduct of the litigation to date by the former solicitors or the entitlement of the former solicitors to pursue recovery of costs, embracing their own fees and the disbursements which they have made or are committed to making. The former solicitors’ entitlement to recover costs from the client and the client’s liability therefor are matters of contract between the client and the former solicitors …”

40. In addition, it should be pointed out that in its publication, A Guide to Good Professional Conduct for Solicitors, (3rd Ed., October 2013), para. 7.6, the Law Society states:-

“Unless a solicitor is agreeable to do so, there is no reason why the first solicitor should continue to fund a case after the client has left that solicitor. If costs are due, a bill of costs should be furnished without delay. Costs may be agreed, arbitrated or taxed. “No foal, no fee” arrangements are determined if the client moves to another solicitor. It can be implied in these contingency fee arrangements that they are conditional on the first solicitor continuing to have prosecution of the case. The first solicitor will be entitled to his fees for the work done.”

41. Accordingly, in view of Mr. Vesey’s actions in terminating their retainer and in light of the undertaking furnished to Messrs. Kent Carty as authorised by him, that firm was perfectly entitled to their costs, up to the 27th May, 1999, or so much thereof as could be recovered. The appellant’s grievance in this regard is misplaced and entirely unfounded.

42. Finally, it is not altogether clear why the court was referred to the case of The Law Society v. Shaw, or what use it was proposed should be made of it. If it was intended to invite the court to make some sort of condemnatory finding against Mr. Cadden, the same is misconceived in that there is provided a separate and distinct statutory process for any such purpose. On the other hand, if it was intended that Mr. Vesey’s allegations should be referred to a third party, the Court would have no function whatsoever in that regard and in any event could see no justification for such a course.

43. It seems quite clear that the objections advanced by Mr. Vesey to Messrs. Kent Carty obtaining the balance of the party and party costs were rejected by the trial judge. In such circumstances the normal rule is that costs should follow the event: see O. 99 of the RSC. In some situations it may be quite difficult to identify any particular “event” for the purposes of this order, and in others there might be several. The courts have therefore developed a jurisprudence to deal with situations at both ends of the spectrum so that the ultimate award fairly and accurately reflects the preceding judgment. As litigation has become more complicated, this has become necessary.

44. In the instant case, however, there was a very narrow, well defined and single issue for resolution. That was determined definitively against Mr. Vesey. In such circumstances, and in the absence of any significant reasons as to why the normal rule should not apply, I am satisfied that the learned High Court judge was perfectly within his jurisdiction in making the cost orders which he did. Indeed, if anything, the same can only be regarded as quite modest given the measured amount of the awards.

45. In conclusion, I will dismiss the appeal.