Supreme Court declines jurisdiction over a costs application, remitting it to the High Court for first instance hearing.

THE SUPREME COURT

[S.C. No: 196/2007]

McKechnie J.

Laffoy J.

Dunne J.

BETWEEN

LETT & COMPANY LIMITED

Plaintiff

AND

WEXFORD BOROUGH COUNCIL, THE MINISTER FOR COMMUNICATIONS, MARINE AND NATURAL RESOURCES, IRELAND AND THE

ATTORNEY GENERAL

Defendants

JUDGMENT of Mr. Justice William M. McKechnie delivered on the 10th day of March, 2015

Background:

1. The firm of solicitors, Matheson, Ormsby, Prentice, now Matheson (“the solicitors”), acting as such, represented the plaintiff

company in complex and lengthy commercial proceedings, at both trial and appeal level. These proceedings were finalised on the 17th

February, 2012 with this Court affirming a finding of liability in its favour and in awarding it damages, albeit reduced by the

substitution of a sum of €650,000.00 for the €1.15m granted in the High Court, all against the second and third named defendants

(“the Minister”). The company was also awarded its costs of the appeal against the same parties with this Court in addition,

“affirming” the existing cost order in its favour as made in the High Court.

2. The plaintiff company, whose family name has been well respected and well recognised for decades in the South East of this

country and elsewhere, has in recent times suffered from serious financial disability. In January, 2014, LSF VIII Pine Investments

Limited (“Pine Investment”) purchased from Irish Bank Resolution Corporation (“IBRC”) and the joint special liquidators of that

corporation, a portfolio of loans and related securities which included the plaintiff’s debt to the former Anglo Irish Bank Corporation

(“Anglo”) and the security, by way of mortgage debenture, given in respect thereof. It is therefore self evident that this company,

although not named in the title, is the principal legitimus contradictor on the application next mentioned, even if the directors of the

plaintiff company also retain a vested interest, by reason of the personal guarantees which they have given for this particular debt.

3. Following the conclusion of the proceedings, the plaintiff’s legal cost accountant drew up a bill of costs on a party and party basis

which was submitted to the Minister in February, 2013: the bill, which was referred to taxation, is presently before the Taxing Master

with the process of taxation not yet concluded. However, in recognition of the evident fact that its liability in respect of costs will be

substantial no matter what, the State, in October, 2013 agreed to pay, in part discharge and on account, the sum of €500,000,

which it did, directly to the solicitors. This money remains in the client’s account, and has not been distributed by way of

disbursement, because of the plaintiff’s insistence in controlling its destination and the recipients thereof: the same very much forms

part of the present application.

4. Prior to October, 2007 it is readily acknowledged that the plaintiff company made periodic payments in respect of fees totalling

almost €1,098,471.55. However, since that date, apart from obtaining an agreed sum in respect of counsel’s brief fee to appear on

the appeal, which they immediately paid over, the solicitors have not received any payment whatsoever. They therefore say that

based on the party and party bill, there remains due in respect of their costs, expenses and outlay to include counsel’s fees, a sum of

€1,128,408.00 (inclusive of VAT).

5. By reason of the debt laden position of the company and in view of the insistence by Pine Investment, that the proceeds of

taxation are expressly covered by the terms of the mortgage deed and thus must be remitted to it, the solicitors are justifiably

concerned about not being able to recover any further sums, in respect of their said costs, fees and outlay. Hence, they make the

following application.

The Application:

6. By Notice of Motion dated 26th March, 2014, the solicitors seek the following reliefs:-

“1. An Order pursuant to section 3 of the Legal Practitioners (Ireland) Act 1876 declaring that the Solicitors of the

Plaintiff are entitled to a charge upon the costs awarded to the Plaintiff pursuant to an Order of this Honourable

Court dated 17th February 2012 in respect of the professional fees, charges, expenses and outlay incurred in

representing the plaintiff in the above entitled proceedings.

2. Further or in the alternative a declaration that the Solicitors for the Plaintiff hold a lien over the costs awarded

to the Plaintiff pursuant to an Order of this Honourable Court dated 17th February 2012 in respect of the

professional fees, charges, expenses and outlay incurred in representing the Plaintiff in the above entitled

proceedings.

3. An Order directing that the funds already received from the Second and Third Defendants in relation to the

Plaintiff’s costs are held in the Plaintiff’s client account by the Solicitors for the Plaintiff are to be paid out to

discharge the professional fees, charges, expenses and outlay of the Solicitors for the Plaintiff, including any and all

fees due to counsel.

4. An Order directing the Second and Third Defendants to pay the balance of the costs awarded to the Plaintiff by

this Honourable Court pursuant to an order dated 17th February 2012 to the Solicitors for the Plaintiff within a

reasonable period of time following the conclusion of the party and party taxation.

5. Further or other relief.

6. Costs.”

7. The application is grounded upon two affidavits of Mr. Stuart Margetson, solicitor, a consultant in the firm, and the various

responding and replying affidavits of Mr. Richard Lett, a director of the plaintiff company, and of Mr. Geoffrey Johnston, a director of

Pine Investment whose affidavit was filed in support of that company. A number of contested issues emerge from these affidavits

both on the factual and on the legal side. It will be necessary at a later point in this judgment to further refer to such matters.

The Issue:

8. At the opening of this appeal a question arose as to whether this Court has jurisdiction to entertain an application made under s. 3

of the Legal Practitioners (Ireland) Act 1876 (“the 1876 Act”), and if so, whether it was appropriate that the same should be

determined by it. By agreement between the parties it was decided that this matter should first be examined, in the nature of a

preliminary issue, with the remaining points being stood down until that matter had been resolved. Submissions, both oral and written

followed. This therefore, is my judgment on the net point as to this Court’s jurisdiction on a s. 3 application, and even if found to exist

on the criteria necessary for its appropriate exercise.

Remedies for Solicitors’ Costs:

9. Disregarding other possible options such as a straightforward debt recovery action or if the occasion arose of proving in

bankruptcy, a solicitor may seek to recover or otherwise secure his costs, by exercising or enforcing a lien in certain circumstances

over his client’s assets or property, or he or she may resort to an application under s. 3 of the 1876 Act. In many situations, as in this

case, the steps taken will involve a combination of both.

10. In general terms, a solicitor has available to him in aid of costs recovery, what has been described as a general lien or a particular

lien. The first, also known as a retaining lien, is a right to retain property already in his possession until he is paid costs due to him in

his professional capacity, and the second is a right to ask the court to direct that personal property recovered under a judgment

obtained by his exertions, should stand as security for his costs of such recovery. Although frequently referred to as a lien, this last

mentioned right is but a “right to apply”, and is not technically a lien, as the requirement of possession or control is absent. In

addition, by statute he has a right to apply to the court, for a charging order on property “recovered or preserved” through his

instrumentality, in respect of his assessed cost arising out of the suit, matter or proceeding which has been prosecuted or defended

by him (Halsbury’s Laws of England (London; Lexis Nexis; 2009; 5th ed.; Vol. 66; “Legal Professions”; para. 996). Whilst the solicitors

at para. 2 of the notice of motion, claim a declaration that they hold a lien over the costs awarded to the plaintiff company, no

examination is necessary of the extent or remit of either a general or particular lien or the distinction(s) between both, as these

matters are not in issue on this aspect of the application. It is however, necessary to note that this relief must in the first instance

be prayed for in the High Court: it is not suggested that enforcement steps, via a common law lien, can be initiated in this Court.

Accordingly, the point of debate is essentially focused on the statutory right of redress.

Section 3 of the 1876 Act:

11. Section 3 of the 1876 Act reads as follows:-

“3. In every case in which an attorney or solicitor shall be employed to prosecute or defend any suit matter or

proceeding in any court of justice, it shall be lawful for the court or judge before whom any such suit matter or

proceeding has been heard or shall be depending to declare such attorney or solicitor entitled to a charge upon the

property recovered or preserved; and upon such declaration being made such attorney or solicitor shall have a

charge upon and against and a right to payment out of the property, of whatsoever nature tenure or kind the same

may be, which shall have been recovered or preserved through the instrumentality of any such attorney or solicitor,

for the taxed costs, charges, and expenses of or in reference to such suit matter or proceeding; and it shall be

lawful for such court or judge to make such order or orders for taxation of and for raising and payment of such

costs charges and expenses out of the said property as to such court or judge shall appear just and proper;…”.

12. It is worth highlighting the width and general scope of some features of this provision:-

(i) It relates to a solicitor acting as such, for any party in respect of any type of issue in any court of justice;

(ii) It states that it “shall be lawful” for the court in which the issue has been heard or is still pending to make the

order sought;

(iii)Such an order has the effect of creating a charge in favour of the solicitor over and against, and of conferring

on him a right to payment from -;

(iv)The property , of whatever nature, which has been recovered or preserved through the instrumentality of his

services in the proceedings in question, in respect of -;

(v) The taxed costs, charges and expenses referable to such proceedings.

The remainder of the section is not further relevant at present but it may have high significance on the follow on substantial

application.

13. The section so far as I can see, has not been statutorily altered or changed in any way since its enactment. Neither has its

meaning or application been influenced by other statutory provisions such as one might expect to find in the Solicitors Acts, rules

made thereunder, or by the general rules of court. Whilst there are a number of cases in this jurisdiction on its provisions, for example

Mount Kennett Investment Co & Anor v. O’Meara & Ors [2012] IEHC 167 and others next mentioned, it is firmly said by the solicitors

that Lismore Buildings Limited v. Bank of Ireland Finance Ltd (No.2) [2000] 2 I.R. 316 (“Lismore”) is a direct and conclusive authority

on the point in issue. Whether that is so and the extent thereof are issues which I will come back to later in this judgment.

14. The section is modelled on and in effect replicates s. 28 of the English Solicitors Act 1860, which has been re-enacted on several

subsequent occasions, such as in s. 69 of the 1932 Solicitors Act, s. 72 of the 1957 Solicitors Act and s. 73 of the 1974 Solicitors

Act. At no point has its legislative substance or form, been altered in any material way. Because of the associated correspondence

between the respective provisions, it is likely that the English jurisprudence on the section would at least have a moderate level of

influence in this jurisdiction: accordingly the following emerges from the case law which has been determined in both jurisdictions:-

(i) If the court by which the property is recovered or preserved (“the relevant court”), is the High Court, then quite

obviously that Court can make the order under the section.

(ii) If the relevant court is the Court of Appeal, then likewise that Court has the same power: Guy v. Churchill

[1887] 35 Ch. D. 489. However, it is not essential to apply to that Court: In Re Deakin, Ex. p. Daniell [1900] 2 Q.B.

489 at p. 495; because the High Court equally has jurisdiction.

(iii)The nature of the power to make the order is discretionary, thus allowing the rights of the client also to be

considered where appropriate: In Re Humphrys, Ex. p. Lloyd-George [1898] 1 Q.B. 520; Wilde v. Petitioning

Creditors & Debtors [1924] 1 O.C.L.J. Ch. 303; In the Estate of Fuld, deceased (No.4) [1967] 3 W.L.R. 314.

(iv)Once the statutory conditions have been satisfied a solicitor is prima facie entitled to the order once he shows

that otherwise he may not be able to recover his costs: Harrison v. Harrison [1888] 13 P.D. 180; this is subject to

any conduct on his part which may deprive him of such right: Roche v. Roche [1892] 26 I.L.T.R. 107, Dallow v.

Garrold, Ex. p. Adams [1884] 14 Q.B.D. 543 at pp. 545 – 546 and Higgs v. Higgs [1934] P. 95 at p. 99; or to

countervailing considerations which would render the making of the order inequitable.

(v)If a solicitor is otherwise entitled to a common law lien for his costs, the section may be regarded simply as being

a more convenient way for enforcing that right: In Re Born, Curnock v. Born [1900] 2 Ch. 433.

(vi)The power under the section is not exercisable until the property is either recovered or preserved: In Re Blake,

Clutterbuck v. Bradford [1945] Ch. 61; which can also result from the proceedings being settled or compromised

(see the Irish case of M’Larnon v. Carrickfergus Urban District Council [1904] 2 I.R. 44); and finally,

(vii)It is beyond doubt but that “property” in the context of the section, includes costs payable by one party to

another, even where such costs, at the date of the application, have not been taxed: J. & G. McGowan Roofing

Contractors Ltd v. Manley Construction Ltd [2011] IEHC 317 (Laffoy J.), Eugene F. Collins v. Gharion [2013] IEHC

316 (Birmingham J.) and In the Estate of Fuld, deceased (No.4).

15. For the purposes of this application, the most important points to note from the above authorities are firstly that the trial court,

at least if a superior court of record, retains jurisdiction to make an order under the section even where the property is not recovered

or preserved by that court, but rather is so by an order of an appellate court: in such a situation both have concurrent jurisdiction.

Secondly, even where costs awarded pursuant to an order have not been taxed, and therefore where the due amount has not been

ascertained, the order in question can nevertheless constitute a fund for the purpose of the section.

The Position of the Parties in the Instant Case:

16. Without broader debate it is said by the solicitors that based on the wording of the section itself and as supported by Lismore,

the Supreme Court has jurisdiction to make the order as sought. On being pressed as to whether such jurisdiction is exclusive to that

Court, the submission becomes somewhat uncertain: on being asked that if such jurisdiction is common with the High Court, what

criteria might be applied in determining which court should hear the application, the answer, whilst asserting a preference for this

Court, remains imprecise and somewhat ill-defined.

17. The plaintiff company and Pine Investment for their part, deny the existence of any exclusive jurisdiction and even doubt whether

this Court has in fact any first instance jurisdiction, either. However, such is not their prime position, which is that the High Court

must at least have a like jurisdiction with this Court on any application under the section. They refer to the relevant constitutional

provisions which they say were not discussed in Lismore, thus depriving that case of being any authority in support of the exclusivity

of the Supreme Court. If they are right in this regard, they say that the factual situation is such that it strongly supports a remittal of

the application to the High Court. If such a course was to be adopted they would not create any objection to that Court hearing both

the application under s. 3 of the 1876 Act and also whichever application might be advanced under the common law doctrine of liens,

whether general or particular as the case may be. They strongly urge such a decision upon this Court.

Decision:

18. In Lismore the Supreme Court’s first involvement with the case was to deal with five appeals from various orders of the High

Court given on a number of applications and cross applications seeking security for costs. In so doing, this Court made cost orders on

each application with the plaintiff being successful in two. Immediately following this decision, the company’s solicitors sought an

order under s. 3 of the 1876 Act and also some unspecified relief “at common law”. The relevant portion of the judgment of Barrington

J., with whom Hamilton C.J. and Baron J. agreed, reads as follows:-

“There is not doubt that a solicitor, whose fees and outlay have not been paid by a client, will normally have a lien

on a property or fund recovered by his efforts to secure professional costs and outlay incurred by him. The same

principle applies to a fund recovered under an order for the payment of costs. For the same reason it is proper for a

court to protect the solicitor’s position by granting him a charge on property or costs recovered or preserved as a

result of his efforts. Section 3 of the Act of 1876, also contemplates that the charging order should be made by the

court which made the order under which the claim to costs arises. The solicitor’s application is therefore properly

made in this court and this court will therefore make an order….” (p. 319)

19. It seems clear from the passage as quoted, that Barrington J., by reference ex facia to the provisions of s. 3 of the 1876 Act

itself, was satisfied that, in circumstances where the relevant cost orders had been made by the Supreme Court, this Court had

jurisdiction to entertain the application. The decision of the learned judge was based solely on the wording of the section which on

any reasonable interpretation I would agree, could give rise to that conclusion.

20. However, there was no reference in the case, or at least in the judgment, to any wider issue such as to whether in the

circumstances, the High Court might also have concurrent jurisdiction to entertain the application or as to the position of the section

within our constitutional structure, which point I will come back to. Or to put the first matter another way, whether the Supreme

Court was the only possible court, and therefore was the exclusive venue for such application. No debate on either such issue seems

to have taken place. Some mention was made of the three cases identified in the report but not in the judgment to suggest that this

might have happened. Clearly, the 1857 decision in Simpson v. Protuero [1857] 26 L.J. Ch. 671 could not be relevant. Having looked

at Fitzpatrick v. DAF Sales Ltd & Anor [1988] I.R. 464 and In Re the Arbitration Acts, 1954 – 1980, Larkin v. Groegor & Anor and The

Governor & Company of the Bank of Ireland v. Larkin [1990] 1 I.R. 461, I am totally satisfied that neither has any contribution to

these points.

21. That being so I believe that Lismore decided simply, in accordance with the section itself, that where the cost order in issue had

been made solely by the Supreme Court, that Court has jurisdiction to entertain the s. 3 application. The case did no more than that

and I see no reason to expand the scope of the decision so as to capture within its authority circumstances which quite evidently

were not covered by it. As so understood and in the limited context in which the issue was both debated and decided, I can readily

understand the decision. It follows however from this analysis that Lismore in my view is not an authority to support the solicitors’

exclusivity argument, if such be their position.

22. Before discussing what respective jurisdiction both the Supreme Court and the High Court might have in the context of s. 3 of the

1876 Act, it will be helpful to try and identify more precisely what the purpose of the section is and what it is intended to deal with.

There is no doubt but that its role is to offer protection to solicitors in seeking remuneration for work undertaken on behalf of a client

in their professional capacity, which had the effect of obtaining or acquiring some benefit or advantage (for the client), in the sense

of leading to the recovery or preservation (for him) of some item of property. Its enactment was a clear recognition that the pre-

existing common law remedies in this area needed strengthening, which it sought to achieve by the addition of a more simple and

straightforward means of securing and enforcing payment.

23. As above stated the section is grounded on equitable considerations, the equity being that professional efforts which secure,

either by acquisition or defence, an asset on behalf of a client, should not, without contrary agreement, go unrewarded. The section

has been variously described as a statutory lien or statutory charge. The former is incorrect, is apt to confuse and should be avoided:

it is properly described as a statutory charge. The same confusion results from the oft and frequently quoted statement, that a

solicitor may also obtain protection, by means of a “particular lien”. Such a term is technically inaccurate as a lien cannot exist unless

one has possession of the subject matter. This will not be so, in circumstances which give rise to a so called “particular lien” (para.

10 supra). Where existing, the same merely afford to a solicitor a right to apply to the court to achieve a certain result: nothing

more.

24. In any event, s. 3 of the 1876 Act undoubtedly is a “charging” section over recovered or preserved property against which

payment can be enforced for outstanding fees. Disregarding the conditionality of the section for a moment, its broad thrust is to

preserve an asset, and to impress upon it an equity in favour of a solicitor for his appropriate costs. It has been described as akin to

a right of salvage because of the recovery aspect of the efforts. It may also be considered as a form of or at least as a step in debt

execution, which bears much similarity in purpose and end, if not in approach, to other forms of execution (O. 42), such as that

provided for by: Orders of Fieri Facias and Sequestration (O. 43), Attachment and Committal (O. 44), Attachment of Debts (O. 45),

Charging orders and Stop Orders (O. 46), all orders being those as contained in the Rules of the Superior Courts (“RSC”). In addition,

reference should also be made to O. 53, r. 17 of the RSC which nominates the President of the High Court as the judge to deal with a

dispute between client and solicitor which, inter alia, includes a claim for the payment of costs or the placement of security therefor.

In each of these examples it is the case that where the preceding right results from a decision of the Supreme Court, all applications

in respect thereof are unquestionably made to the High Court. Whilst it is true that the rules of court so provide, nonetheless I see no

difference in principle between such orders and a s. 3 order, subject only to the express provisions of the section itself.

Jurisdiction of the High Court:

25. The High Court, like the Supreme Court, is a constitutional court and a superior court of record. By virtue of Article 34.3.1. of the

Constitution the High Court is “…invested with full original jurisdiction in and power to determine all matters and questions whether of

law or fact, civil or criminal”. Therefore, the question can be asked whether there is any reason why, at least prima facie, that Court,

in order to give full expression to the provisions of this Article, should not on a s. 3 application involving an order made by its parent

constitutional court, also have jurisdiction in this regard?

26. Some fairly significant debate has been had throughout the years on what the phrases “full and original” and “all matters and

questions”, referred to in the provision, precisely mean. It is clearly well beyond the scope of this judgment to explore this difficult

area in any depth but nonetheless a limited reference to some matters might be helpful. One aspect of the discussion has featured on

whether the High Court, following its establishment in 1961 (the Courts (Establishment and Constitution) Act 1961, in conjunction with

the Courts (Supplemental Provisions) Act 1961), has simply the powers of its predecessors, in respect of matters still justiciable, as

such existed and survived both before and after the enactment of the Courts of Justice Act 1924, or whether it was conferred with a

wider jurisdiction which some suggest the plain wording of the constitutional provision might convey.

27. A majority of the Supreme Court in R.D. Cox Limited v. Owners of M.V. Fritz Raable, (unreported; Supreme Court; 1 August 1974)

(“M.V. Fritz Raable”), took the view that the jurisdiction of the new High Court was more extensive than the aggregate of the

jurisdiction formerly vested in the High Court of Justice. The issue in the case was whether or not the Court had jurisdiction to deal

with a claim in rem regarding a ship’s mortgage which had not been registered under the provisions of the Mercantile Marine Act 1955.

The Court’s predecessor, the Admiralty Court, could only do so if the mortgage was registered under the corresponding provisions of

the Merchant Shipping Acts. Walsh J., with whom Griffin agreed, declined to accept the contrary argument and was satisfied that by

the express wording of Article 34.3.1. itself, the High Court had jurisdiction to deal with the issue. Henchy J. delivered a dissenting

judgment.

28. The meaning of the phrase has also attracted attention in another context, being the enactment of various statutory provisions

which at least on one reading could be viewed as encroaching upon the wider meaning of the phrase: Gannon J. in R. v. R., [1984]

I.R. 296, rejected any such attempt, whereas cases such as Ward v. Kinahan Electrical Limited [1984] I.R. 292, Tormey v. Ireland

[1985] 1 I.R. 289 (“Tormey”) and The People (Director of Public Prosecutions) v. Sweeney [2001] 4 I.R. 102 (“Sweeney”), to name

but some, could be seen as perhaps espousing a more restricted view of the same constitutional provision.

29. For present purposes, nothing turns on how Sweeney or Tormey should be read in light of M.V. Fritz Raable, as the individual

issues in both cases were quite distinct from those in the instant appeal. In Sweeney the point was whether or not the High Court

could make a third party discovery order in criminal proceedings. Tracing the history of such jurisdiction back to the Judicature Acts

and beyond, Geoghegan J., with whom the other members of the court agreed, rejected such a submission largely because he could

not find a basis for its existence at any time during his historical analysis. Article 34.3.1 did not feature in this case.

30. Tormey on the other hand was dealing with a situation where the Oireachtas endeavoured by express provision, to confer

jurisdiction exclusively on a court other than the High Court. The Supreme Court (Henchy J.) concluded that when other provisions of

the Constitution were considered, the Oireachtas, in the circumstances of that case, could so do but it was an important

consideration that the superior courts retained their review and supervisory jurisdiction. The case however is entirely distinguishable

from the instant situation, in that s. 3 of the 1876 Act does not purport to be exclusionary.

31. Whilst there have been other cases such as O’R. v. O’R. [1985] I.R. 367 and Deighan v. Hearne [1986] I.R. 603, these do not

reflect upon the point of issue on this application. What is clear however from the overall case law and notwithstanding the Tormey

line of country, is that the High Court is quintessentially a trial court, a court of first instance. Its range of other jurisdictions does

not in any way impact on this long established and clearly accepted position.

32. Section 3 of the 1876 Act (para. 11 supra) is not as I have said self-excluding: it merely states that “…it shall be lawful…” for the

court seised to hear the application. It does not in my view expressly or by intendment suggest any question of exclusivity. Likewise,

it does not touch upon a situation where the fund might be preserved or retained, not by a court of trial, but via an appellate

process. Furthermore, it does not distinguish between a case which is disposed of or one which is still pending, or where property has

been recovered as distinct from being merely preserved. The section is general in nature and is enabling in purpose but not otherwise.

It confers jurisdiction but does not exclude or restrict it. It leaves that issue open. Therefore, even without regard to the

constitutional provision of Article 34.3.1, I cannot see any inhibition within the section which would deny to the High Court, a superior

court of record and a court of full original jurisdiction, subject only to the Constitution and any permissible statutory restriction which

s. 3 does not purport to be, jurisdiction to entertain such an application as is made in the present case. Guy v. Churchill in

corresponding circumstances, confers jurisdiction on the High Court in England. When one then has regard to Article 34.3.1 the

situation is, I think, even clearer and more conclusive to that end. In fact if the section did not permit of such an interpretation,

grave doubts would have to exist regarding its consistency with the Constitution particularly in light of that provision, as well as

Article 34.4.3 thereof.

“Important Caveat”:

33. It is important to note in this context, that no submission has been made questioning the section’s consistency with the

Constitution either if the exclusivity argument should prevail. The effect of such a finding however, which would be to confer by way

of statutory provision sole jurisdiction on the Supreme Court to the exclusion of the High Court, would have to be seriously

problematic for the constitutional reasons mentioned both above and later in this judgment. In this context it must be observed that,

in accordance with well established jurisprudence, the section does not enjoy any presumption of constitutionality. However, as the

issue has not arisen, I therefore express no view whatsoever on whether the section was carried forward by Article 50 of the

Constitution or not. In making this point and despite the discussion herein on the jurisdiction of both superior courts, I am not

suggesting, or implying, that it is constitutionally suspect but neither am I suggesting or implying that it is constitutionally compliant.

Until the issue arises and the point fully debated, I remain entirely neutral in this regard. It is in that conditional context that my

judgment must be understood.

Concurrent Jurisdiction:

34. On this aspect of the appeal therefore, but subject to what I have just stated, I have come to the conclusion that by virtue of

the wording of s. 3 of the 1876 Act, the Supreme Court has jurisdiction insofar as its cost order gives rise to the recovery of a fund

available for charging. There would of course be no question of that being so without the existence of such order. In addition, I

further conclude that the High Court has concurrent jurisdiction with regard to such fund as evidently it would have in respect of any

fund recovered by its own orders.

35. The question therefore arises as to when and in what circumstances it is appropriate to make an application which in principle is

available to be made to either court. In considering this matter one must look at the principal functions of both courts, the essential

nature of each court’s jurisdiction, the substantive and procedural capacity to effectively discharge such functions, the efficient

dispatch of court business, the overall interest of the administration of justice, the issues which arise from the facts of any given

case and finally, the justice of the situation at inter party level.

36. As the situation of the High Court has already been discussed, it is necessary only at this point to touch upon the essential role

of the Supreme Court.

The Jurisdiction of the Supreme Court:

37. The Supreme Court, as Article 34.4.3 of the Constitution, read in conjunction with Article 34.3.1 (full and original jurisdiction of

the High Court) and Article 34.3.4 (courts of first instance to include courts of local and limited jurisdiction) make clear, is essentially

an appellate court. Such jurisdiction is subject only to what may be found to exist in or what may be correctly deducible from, other

provisions of the Constitution itself. In this context I am disregarding any additional consultative or supervisory jurisdiction, which may

be conferred by statute (para. 42 infra). As Article 34.4.3 states, this jurisdiction is subject to such “exceptions and regulations” as

may be prescribed by law. This phrase has always been understood as applying to statutory provisions which purport to limit in some

way, the Court’s appellate jurisdiction as for example, by prohibiting any appeal from the High Court or by creating some restriction or

other conditionality, whether in scope, time, format or otherwise, in respect thereof,. Much case law has been generated on the

nature and extent of this appellate jurisdiction, including the power of the Oireachtas to circumscribe it. In respect of this restricting

power see para. 6.3.56 of J.M. Kelly: The Irish Constitution (G.W. Hogan and G.F. Whyte (eds.); Dublin; Tottel Publishing; 2006; 4th

ed.) where the subject matter is generously dealt with.

38. Before touching very briefly upon some of these matters, it should be noted that the court also has jurisdiction of quite a specific

nature at first instance. Article 12.3.1, states that the President of Ireland can be prematurely removed from office on incapacity

grounds but only where same have been established to the satisfaction of the Supreme Court with Article 26 empowering the Court to

rule on the constitutional validity of Bills which have been referred to it by the President. This original jurisdiction, which clearly is of

quite an exceptional nature, is expressly granted by the Constitution.

39. It might be thought, at least on first examination, that the Court’s intervention on some occasions could be classified as that of a

first instance court, but on a careful assessment, this has not been the case. Murphy v. The Attorney General [1982] I.R. 241 is a

good example where, having delivered its judgment on the constitutionality of certain provisions of the Income Tax Acts, the Attorney

General reapplied to the Court requesting it to deal with a further two points, namely to decide as and from what date the declaration

of invalidity was to operate and secondly, on the extent of repayments which the plaintiffs, and others, could claim. By majority, with

Henchy J. dissenting, the Court entertained the submission and delivered its decision. However, it is important to note that this

intervention took place before any final order was made and therefore the court’s further involvement can be looked upon as a

continuation of the original appeal. Contrast that situation with one where the Court is asked to interfere with a final order, an

example of which is The Attorney General (at the relation of The Society for the Protection of Unborn Children (Ireland) Ltd) v. Open

Door Counselling Ltd & Anor (No.2) [1994] 2 I.R. 333 (“The Attorney General v. Open Door Counselling”). In that case the Court

refused to intervene with such an order and lift an injunction granted four years earlier, which in effect had been rendered redundant

by the passing of the 14th Amendment of the Constitution Act 1992. See also Belville Holdings Ltd v. The Revenue Commissioners

and Ors.[1994] 1 I.L.R.M. 29. Therefore, I do not believe that cases like Murphy, which of themselves have been very rare indeed,

offer any support to the suggestion that the Supreme Court exercises some wide original jurisdiction.

40. Virtually all of the decisions of the Supreme Court in this context can be explained by the fact that on several occasions the

Court has declared its inherent jurisdiction to regulate and give effect to its own appellate jurisdiction. This directly derives from the

provisions of Article 34.4.3 themselves. Dhand. v. McCrabbe [1962] 96 I.L.T.R. 196, is a case in point as is The People (Director of

Public Prosecutions) v. O’Shea [1982] I.R. 384 where O’Higgins C.J. said that:-

“If the Constitution confers on this Court a particular appellate jurisdiction, it may be assumed that it also confers

the necessary powers to make that jurisdiction effective to remedy what is complained of.” (p. 406)

McCarthy J. was even stronger in Hughes v. O’Rourke & Ors [1986] I.L.R.M. 538 describing the existence of such a power as being

“beyond question”.

41. In furtherance of this power it is undoubtedly so that from time to time, though exceptionally, the Supreme Court will receive

fresh or represented evidence, usually in the form of an affidavit but sometimes orally (B. v. B. [1975] I.R. 54), or by visual inspection

as, for example, the viewing of a scar (Northern Bank Finance Corporation Ltd v. Charlton & Ors [1979] 1 I.R. 149 at p. 188), or will

entertain a point not previously raised or decided upon in the High Court: it may also examine a provision which attempts to regulate

a right of appeal to either that Court or to the High Court: Stokes v. Christian Brothers High School, Clonmel & Anor, [2015] IESC 13.

However, in all of these and other related situations, such is entertained as part of its appellate jurisdiction and not otherwise. Order

58, r. 8 of the RSC is purely facilitatory in this regard. Even then there are limitations involved such as Hay v. O’Grady [1992] 1 I.R.

210. Therefore, whilst the scope of appeals can somewhat vary in certain circumstances, the same is entirely regulated in the manner

and for the reason suggested and is not related to any purported exercise of a first instance jurisdiction.

42. In conclusion on this point, I have no doubt but that its jurisdiction is fundamentally appellate. Its primary, essential and central

role can only be looked at in this way, in contradiction to the basic role of the High Court. The Court’s power as to its original

jurisdiction and other forms of consultative engagement, which are now well delineated and clearly prescribed, are to be found under

the Constitution provisions above mentioned and in certain statutes such as s. 48 of the Courts of Justice Act 1936 and s. 16 of the

Courts of Justice Act 1947. Otherwise it functions as the final court of appeal (The Attorney General v. Open Door Counselling, p.

341) even where such appeals are provided for by statute (s. 23 of the Criminal Procedures Act 2010). Whilst it is true that the steps

mentioned at para. 41 may occasionally be taken, these are entirely explainable as being an essential part of its appellate function.

Therefore, at every critical level of its functioning, it remains a court as envisaged by Article 34.4.3 of the Constitution.

43. This discussion on the Supreme Court is part of the analysis for the purpose of deciding whether or not this Court should exercise

its jurisdiction. It is not intended as a debate on the constitutionality of s. 3 of the 1876 Act, in respect of which, I repeat what is

above stated at para. 33 of this judgment.

44. Against this background it seems to me that where both courts have concurrent jurisdiction, the application in the first instance

should be made to the High Court unless there are strong compelling circumstances to the contrary. There are many reasons for this:

these include firstly, the essential role of each court which points to the application being made in the first instance to the High

Court, which is a court of trial: secondly, such is much more in keeping with the constitutional structure, which thereby preserves a

right of appeal to this Court; thirdly, where issues of contested fact exist, the Supreme Court is singularly an inappropriate venue for

their resolution and; fourthly, such would in almost all cases, constitute a more efficient and effective dispatch of court business and

thus, would be in the interests of the administration of justice, including the interests of the litigating parties.

45. At a specific level the following must be noted: -

(i) the substantive case has concluded: given the finality of this Court’s order dated 17th February, 2012, it is no

longer pending before this Court;

(ii) issues of fact have been raised in the affidavits such as, the undertaking dated 2nd July, 2009, the demand

letter from Pine Investment dated 30th April, 2014, the complaints made about the solicitors handling of the case,

the various discussions had between solicitor and client about the likely level of fees, and the acknowledged

absence of any s. 68 letter. Whilst it may be debated how relevant such matters are and what their consequences

might be, nevertheless they have been raised and will have to be addressed;

(iii)of the four substantive reliefs claimed in the notice of motion, only the s. 3 application can be dealt with in this

Court. This would inevitably give rise to a split hearing with the possibility of this Court being involved, in the same

motion, at both an original and appellate level, and finally;

(iv)a possible issue as to the meaning of this Court’s Order of 17th February, 2012, whereby it “affirmed” that the

existing Order for costs made in the High Court can be avoided if that Court should hear the application.

46. In conclusion, I am of the view for the reasons herein given that this Court should decline jurisdiction to hear the s. 3 application,

and should remit the matter to the High Court so that all issues in controversy between the parties arising out of this application can

be heard and determined by that Court.