Condon -v- Law Society, High Court;Judgment was given by Mr Justice Nicholas Kearns on February 23rd, 2010
Judgment
The definition of “client” in S 2 of the Solicitors (Amendment) Act 1994 must include beneficiaries of a will, where the solicitor is the executor, so that a beneficiary obtains all the protections under the Act which any other client of a solicitor would obtain.
Background
The case arose when three beneficiaries of a will, where the applicant solicitor was the executor, brought complaints to the Law Society of inadequate professional service against the solicitor, John Condon, practising as McMahon and Tweedy.
He was appointed executor and trustee of the last will of Reginald Joseph Moorhead, his client, who died on August 5th, 2002. He left his entire estate to his five children in equal shares as tenants in common, naming Mr Condon as executor and trustee with powers “of retention, sale, realisation, management superintendents and control” of his estate, mainly consisting of a house in Wainsfort Road, Terenure, Dublin.
Three of the five children lived there at the time of the death. Relations between the five were not always harmonious, and it took some time to reach consensus that the house should be sold and proceeds distributed. Before that consensus was achieved, a beneficiary, Brian Moorhead, had lodged a caveat in the Probate Office in 2005, which was not removed until July 2007. The grant of probate was issued to Mr Condon on July 18th, and the property was sold on July 24th for €975,000.
Also in 2005, another brother, Neil Moorhead, made a complaint of delay to the Law Society, which was not upheld. The applicant’s response was that the society’s Complaints and Client Relations Committee (CCRC) lacked jurisdiction to adjudicate upon the complaint having regard to S 8 of the Solicitors (Amendment) Act 1994.
Mr Condon contended that, as the “client” in this instance was himself as executor of the will, and not the complainant, the statutory provision did not give jurisdiction to the CCRC to adjudicate on the complaint.
A second complaint was made by Brian Moorhead in April 2007, relating to costs, the choice of auctioneer and the asking price for the sale of the house. Daragh Buckley, solicitor for the CCRC, requested that the applicant furnish a “Section 68” letter and his bill of costs. Mr Condon responded by saying the beneficiaries were not “clients” to whom a “Section 68” letter was owed.
In September 2007 a further complaint was received from a third brother, David Moorhead, which the committee decided to hear with the second complaint. It heard oral evidence about lack of information, alleged lack of advice as to the sale price of the house, and a further complaint that communication with the applicant was proving very difficult.
He reiterated his earlier response that they were not “clients” under the Act.
There was a further meeting of the committee in November, which was adjourned until January 2008. At this meeting Mr Condon said he was in a position to distribute the estate, and would “sign off” on it when the tax issues were resolved, within four weeks. The matter was adjourned.
On February 29th the committee requested the “final account”. Reminders were sent on March 10th and 18th, and on April 9th Ms Buckley wrote to Mr Condon stating that the matter would be discussed at the next meeting of the committee on April 16th.
Further complaints were raised by David Moorhead in April. Mr Condon replied to the CCRC, stating he and his solicitor would be unable to attend the meeting on April 16th.
The meeting made a number of findings, including one of inadequate professional service, ordering him to hand over the entire file and pay a contribution towards the society’s costs of €1,500.
He responded explaining why he was unable to produce a final account and again stated the committee had acted without jurisdiction, and had not afforded him a reasonable opportunity to be heard and to cross-examine witnesses. Between January and April he had been engaged in correspondence with the Revenue in connection with the sale of the property, thereby saving the beneficiaries a potential CGT liability of €75,000. However, the directions of the committee were not complied with, and these judicial review proceedings were launched in July 2008.
In the judicial review he argued that the definition of “client” in S 2 of the Act (which includes “a beneficiary to an estate”) also includes the words “unless the context otherwise requires”, and should be read in conjunction with S 8 of the Act, which specifically grants jurisdiction to the Law Society to investigate a complaint about inadequate professional services only in connection with a matter in which he “has been instructed” by the client.
The beneficiaries did not instruct the applicant as solicitor. In S 9 of the Act, on complaints re costs, there was no requirement the complainant be a client “who has instructed” the solicitor. He argued that in relation to a complaint about service, only a client who had instructed the solicitor could complain. The applicant was both executor and solicitor. As executor he was the client.
In the alternative, he submitted that the decision of the committee was made in breach of natural and constitutional justice, as he was not present at the meeting where the adverse decision against him was made.
Counsel for the society argued the whole point of S 2 of the Act was to ensure a solicitor could not argue he was non-accountable to beneficiaries in respect of services provided to them. The applicant’s interpretation would produce the bizarre outcome that the only person who could make a complaint about the services was the applicant himself.
Decision
Mr Justice Kearns said the definition of “client” in S 2 of the Act, including beneficiary, “is deliberately framed to cover situations where solicitors are acting in the dual capacity of executors and solicitors, because, absent such a provision, a definition confined to the ‘normal client’ would mean that an executor solicitor could not be held accountable to beneficiaries in respect of services which he provides to them”.
The sole purpose of S 2 was to ensure a beneficiary obtained all the protections under the Act which any other client of a solicitor would obtain. It would be absurd to have a situation whereby the beneficiaries would be entitled to have the applicant removed as executor, but not to advance a complaint.
In all the circumstances he did not see how the applicant was disadvantaged in any way, and he dismissed the applicant’s claim.
The full judgment is on www.courts.ie
Robert Haughton SC and Tim Dixon BL instructed by Giles Kennedy Co, solicitors, for the applicant; Paul Coffey SC and Paul Anthony McDermott BL, instructed by Joan O’Neill, solicitor, for the Law Society