Consider a shoe repairer. You leave your shoes with the repairer to have new soles put on. If you are like the writer, you want rubber soles glued to the original leather sole. (By implication, the shoes are brand new).
Under the Constitution of Ireland the protection of private property is guaranteed. The shoes are your private property.
You return to the repairer and ask for your shoes. The repairer declines to return them; there is the small question of payment for the work done. That work was done on your private property.
Under contract law, the repairer is entitled to payment for the work done (and the cost of the material affixed to the shoes).
The repairer seems unreasonable; he/she is not happy with your assurances of payment in a weekâs time. (Your references to your declared intention to win the lottery during the forthcoming week and make payment from the proceeds have had a less than reassuring affect).
These are the circumstances of the refusal to return your property.
So, a solicitor is consulted; he/she advises you that the repairer has a lien on the shoes to secure payment for the work done. You are advised that the right to litigate (the repairerâs right to litigate) is not the only security available to the repairer. He/she has a lien by operation of law. In short, there are principles applicable to the situation that were not the subject of discussion with the repairer when you left in the shoes.
It does not matter; if you want the shoes you must pay for them. You must pay the cost of the work done.
This is fair. If it were otherwise, unscrupulous persons would demand their property and leave the repairer unpaid. A right to litigate for payment is a poor security to a tradesperson.
The same rules apply to solicitors (or accountants), but with modifications.
The papers and documents held by your solicitor are your property. However, if you ask for them and you owe your solicitor money for fees or outlays, your solicitor may decline to give you the papers or documents until you pay the bill.
A solicitor is not exactly like a shoe repairer. In the case of the latter you knew what the charge was going to be (or you had a very good idea). Not so for a solicitor. Frequently, nobody knows what the cost of a solicitorâs services are going to be. The reason for this is the common (but not invariable) difficulty of knowing what work will be done to address the clientâs problem. It might entail litigation in the High Court, on to the Supreme Court, and back down to the High Court.
This problem was addressed in Victorian times and the âtaxation of costsâ? system was established to ascertain lawyersâ costs in litigation. Under this system a solicitorâs bill in litigation must be approved by a court official before it becomes due and payable.
Until this happens (and until payment) the solicitor is entitled to exercise the common law lien over the clientâs papers as security for the payment of costs.
While this is fair, it has potential to effect injustice, (which, in the case of a shoe repairer would be improbable).
Firstly, it is possible a genuine disagreement exists as to the terms agreed between the solicitor and the client, or that the solicitor may be using the clientâs difficulties to impose unilateral terms on the client. (Or, the solicitor is acting on inaccurate legal advice; see HERE and HERE and HERE.
Secondly, without the papers, the client may be unable to progress litigation, say, and thereby be denied access to justice.
Thirdly, no client should be placed or left in a position where, despite loss of faith or trust in the solicitor the client is obliged to continue in relationship with the solicitor. (Solicitors would generally subscribe to this principle also, but substituting âsolicitorâ? for âclientâ?).
The Law Society of Ireland has made suggestions to deal with these circumstances. It has issued guidelines to be followed by solicitors acting for the client. The guidelines are directed to the âoldâ? solicitor and the ânewâ? solicitor. The ânewâ? solicitor, it is suggested, will forthwith pay any outlay (money already spent by the solicitor) to the âoldâ? solicitor and offer an undertaking to the âoldâ? solicitor to pay the fees due, on the conclusion of the litigation. (Observe that the ânewâ? solicitor will pay the outlay; terms must be agreed therefore, between the ânewâ? solicitor and the client).
If there is a disagreement as to the amount of fees due, the guidelines suggest availing of the âtaxation of costsâ? process to determine those.
This is fair to all, even in circumstances where the client claims that the âoldâ? solicitor is answerable to the client in negligence, say. After all, that claim can be litigated separately.
Unfortunately, not every solicitor (or, occasionally, client) is willing to adopt these guidelines.
There is a remedy for this also. See HERE for a good example of the application of the remedy.
Generally speaking therefore, a solicitorâs claim for fees will not be permitted to preclude the client from seeking justice in court.