The Gazette 1990

GAZETTE

' APRIL 1990

Solicitor's charging lien -

priorities and practice

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

Galdan Properties

Ltd.,

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.

and

Larkin -v- Groeger

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.

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

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

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.

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

that the term

lien in respect of a solicitor's charge

for costs is misleading, in that lien

implies possession, whereas the

solicitor, without the Court's

intervention, may have no fund or

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

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

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

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

and

Temple Press Ltd. -v- Blogh

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.

Christopher Doyle.