The Gazette 1990

GAZETTE

' APRIL 1990

Solicitor's charging lien - priorities and practice

any right to be heard. If the solicitor had appeared in his own right, would the result have been any different? James Bibby appears to hold that a solicitor who had not applied for a charging order could not be heard at all. It was argued in Fitzpatrick that James Bibby " . . . a solicitor who seeks to intervene without having obtained a charging order is on grave risk conflicts wijth earlier English authorities* but in fact nearly all of these ft/ere cases where the solicitor had been granted, or at least applied for, a charging order. However, there are two Irish Circuit Court decisions, Fleming -v- Ironmonger and Lord Herbert 9 and Temple Press Ltd. -v- Blogh 10 where a conditional order of garnishee was discharged on a solicitor's objection that his lien for costs had priority, although from the reports it does not appear that either had applied for a charging order. On the face of it, these cases cannot be reconciled with James Bibby and therefore must be taken to have been overruled by Fitzpatrick. As a further complica- tion, in Fitzpatrick, O'Hanlon J.

The solicitor's general retaining lien - to hold documents of a client until paid his costs - is a straightforward form of security. The only real risks lie either in parting with possession without expressly preserving the solicitor's rights or, as in the recent case of Re Galdan Properties Ltd., 1 a Court finding as a matter of law that no lien was created. Far more problematic is the charging lien: the right to apply to the Court to charge with the solicitor's costs property recovered or preserved through the solicitor's efforts. Two recent Irish cases Fitzpatrick -v- DAF Sales Ltd. 2 and Larkin -v- Groeger 3 illustrate the risks involved in failing to act swiftly to preserve such rights and the danger of losing priority even if swift action is taken.

for costs is misleading, in that lien implies possession, whereas the solicitor, without the Court's intervention, may have no fund or

Statute and C ommon Law The matter is somewhat compli- cated by the fact that there are two separate bases for the solicitor's right: (i) the inherent jurisdiction of the Court at common law to pro- tect the solicitor: (ii) the statutory right contained in Section 3 of the Legal Practitioners (Ireland) Act, 1876 to apply to the Court for a Charging Order. In Re Born; Curnock -v- Born 4 it was held that the statutory right should be re- garded merely as a convenient method of enforcing the common law lien. It is not the only method of enforcement: In Campbell -v- Campbell 5 the solicitor's claim was so vaguely worded that it " . . . there ere two separate bases for the solicitor's [lien] " could be regarded either as a claim under the statute or at common law: the Court of Appeal treated the application as one at common law and granted the relief sought. Whether the two forms of relief can be regarded as identical is doubtful: for example, it has been held that Section 3 is wide enough to cover property of every kind, including real property, which could not be charged at common law. 6 In practice, however, any application to enforce a lien would probably be treated as an application under Section 3. When the Right Arises It has been stated 7 that the term lien in respect of a solicitor's charge

By Christopher Doyle Barrister-at-Law

property in his possession. As a logical extension of this, it has been held that no right comes into exist- ence until the solicitor seeks the Court's assistance. In James Bibby Ltd. -v- Woods and Howard 8 a judgment debtor appealed against the making of a garnishee order absolute on the ground that his solicitor at the hearing claimed (through the Debtor) that his lien for costs had priority. The appeal was dismissed on the ground that at the time the absolute order was made the solicitor had neither sought nor been granted a charging order and accordingly had no right to set against the judgment creditors. In Fitzpatrick -v- DAF Sales Ltd., O'Hanlon J. followed James Bibby in making a conditional order of garnishee ab- solute notwithstanding the judg- ment debtor's objection that his solicitor's lien had priority. These judgments raise a number of difficulties. In the first place, the solicitor was not a party to the hearing in either case, and each Court had grave doubts as to whether the judgment debtor had

Christopher Doyle.

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