A solicitor who claims a couple owe almost €246,000 in fees, costs and outlay for an unsuccessful High Court planning case is entitled to summary judgment orders for €150,000 of that sum, the Court of Appeal has ruled.
It also upheld a decision directing a full hearing concerning whether Douglas Kelly, based in Swinford, Co Mayo, is entitled to the remaining €96,000 from Peter and Nancy McNicholas, of Cuilmore, Swinford.
Mr Kelly is seeking €245,916, including costs of barristers, arising from proceedings by the couple against Mayo County Council, heard by the High Court over five days in 2007 and dismissed in 2009.
Mr Kelly had in 2013 brought summary judgment proceedings against the couple over failure to pay a bill of costs submitted in late 2010 for the 2007 case.
In July 2014, then High Court president Nicholas Kearns said the credibility of assertions from Mr McNicholas, representing the couple, about entitlement to recover fees was undermined by “multiple different versions” of what they contended for.
Mr McNicholas had claimed, inter alia, it had been agreed he would pay outlay and that fees would only be recoverable if the case against the council was successful; costs would be payable out of Compulsory Purchase Order proceeds and that Mr Kelly had accepted an offer of €75,000 plus VAT for fees within a specific time frame.
Mr Kelly denied the various claims. Mr Justice Kearns concluded Mr Kelly was entitled to summary judgment for €150,000 and sent the balance of the claim to plenary hearing.
The Supreme Court put a stay, pending appeal, on the summary judgment order on condition €50,000 was put in an escrow account and the couple provide a registered charge over 30 acres of forestry land in Co Mayo.
On Wednesday, a three-judge Court of Appeal dismissed all grounds of the couple’s appeal and directed immediate payment out to Mr Kelly of the €50,000. Giving the court of Appeal judgment, Ms Justice Máire Whelan said the High Court decision represented a “just and reasonable” approach, having due regard to the inconsistent stances of the appellants.
Their credibility was “fatally eroded” by advancing a wide array of inconsistent scenarios and alleged agreements, all directed towards a proposition they either had no obligation at all, or had some deferred arrangement for payment of the fees, costs and outlay demonstrably incurred by Mr Kelly in respect of the conduct of “complex and difficult” planning litigation over a number of years, she said.
Dismissing a core claim that Douglas Kelly was not himself entitled to pursue the fees claim, she said the bill of costs was in respect of work done by the firm Douglas Kelly & Son, of which Mr Kelly became principal in February 2009.
His father Charles retired from the firm in 2011 and the mere fact Douglas Kelly changed the firm’s name is not material as it had continued in existence, she held.
Earlier, she noted the couple were represented in the 2007 proceedings by the firm, in which their daughter Marilyn was employed as a solicitor between June 2006 and August 2009. Marilyn, who said she was asked to take on carriage of the 2007 litigation file, supported her parents in opposing the fees claim.
The 2007 case arose after some of the couple’s lands at Cuilmore, Swinford, were acquired by the council via a compulsory purchase order for development of the Charlestown bypass on the N5 road. The main issue was whether an appropriate alternative means of access to their home had been provided. The access provided was an overbridge onto the property from a local road rather than an underbridge as the couple had sought.
In a 2009 judgment, Mr Justice Brian McGovern dismissed their claim and ruled the CPO scheme was valid. Their appeal against his decision was dismissed by the Supreme Court.
