Request for Circuit Court but Solicitor issuing High Court proceedings

Discussion in 'Askaboutlaw' started by elainem, Nov 15, 2017.

  1. elainem

    elainem Frequent Poster

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    If you are within the jurisdiction for Circuit Court, and don't want to go beyond it, and have asked a solicitor to draft Civil Bill, but he has drafted High Court Plenary Summons - what is this about? Are solicitors not supposed to follow client instructions, or is this suddenly not relevant. Can they go and issue High Court proceedings even though I have absolutely told them not to issue them, and to only issue CC proceedings. I find this bizarre!
     
  2. Leo

    Leo Moderator

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    What did the solicitor say when you asked them?
     
  3. DirectDevil

    DirectDevil Frequent Poster

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    The solicitor should advise the client clearly of the reason for issuing proceedings in the High Court.
    You will probably find that counsel was retained and that they drafted the Summons on the basis that it is a High Court matter.
    Generally, the jurisdiction of the Circuit Court is €75,000 but not for everything.
    If you issue Circuit Court proceedings for a case worth more than €75,000 on full value you are deemed to be waiving the excess amount.
    One possibility is to have the matter tried in the Circuit Court with an unlimited jurisdiction. This should be possible if all parties to the action consent to it. In practical terms this means that the matter is tried by a Circuit Court judge sitting with the jurisdiction of a High Court judge.
     
  4. elainem

    elainem Frequent Poster

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    The case is only for 69/70k, and I made it known from the outset that I did not want to go to the High Court as I knew the amount was within the Circuit Court, yet they drafted HC proceedings. The amount was never going to be over 70k. They are now refusing to act unless I go the HC route, which I am not going to do. What happens to fees in this regard.
     
  5. Bronte

    Bronte Frequent Poster

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    Why are they refusing to act if you don't go the HC route. You'll be liable for their fees up to this point and can take your business elsewhere. I presume you know what the fees so far are?
     
  6. Ravima

    Ravima Frequent Poster

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    Perhaps they are worried that you are selling yourself short. they certainly do not want to be on the hook if you realise this later.

    Another point to note is that whilst limit in Circuit Court is up to €75K with certain exceptions, unless you have documentation, ie receipts coming up to €69/70K, it is unlikely that a judge would award that sum in GENERAL damages. This is a public forum, so don't go into too much detail, but what is the nature of the claim? Personal Injury/Defamation/Damage to property???
     
  7. elainem

    elainem Frequent Poster

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    Hi! Ravima, I have all of the receipts. The amount is not over the Circuit Court limit. I made it known from the start that I did not want to go HC route. They told me that it would take 2 yrs to get to HC anyway, and I said due to cancer history, I might not be around in 2 years, and did not want to wait that long for compensation anyway, as I knew the CC was a lot easier to get into, and the amount I was seeking was within CC limits. It felt as if they really wanted to go HC route for extra fees.
     
  8. DirectDevil

    DirectDevil Frequent Poster

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    Sorry to see that you have been afflicted by that medical condition.

    I have seen this scenario dealt with by an application to have a matter like yours assigned a priority date for hearing on the basis of your medical prognosis. Procedurally, I think that you need to get the pleadings closed as promptly as is possible, serve a Notice of Trial pronto and then follow that with an application for a priority hearing.

    Some defendants will tarry deliberately on the basis that if you are not alive at date of trial they will have no liability for compensation for pain and suffering if that is relevant.
    Other defendants could negotiate a settlement with you now but on the basis that they are obliging you with an early settlement for which they might expect a discount as a quid pro quo.
    Any claim for most special damages would survive for the benefit of the estate anyway.

    I am sorry if some of this sounds cold and clinical but I would rather see you get this out of the way if there are reasonable terms on offer. This should be talked through with your solicitor.

    Finally, I remind you of the previous suggestion of a CC case with unlimited jurisdiction if both parties agree.
    I have not seen this for a while but you could close the HC pleadings and have the case remitted to the CC. AFAIK any remitted HC case automatically enjoys unlimited jurisdiction in the CC.
     
  9. Ravima

    Ravima Frequent Poster

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    As Directdevil says, seek priority hearing given your illness. You might get listed for the next sessions, if you get all paperwork in order.
     
  10. elainem

    elainem Frequent Poster

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    Thanks Ravima and Directdevil, I didn't know I could get priority hearing, and neither did my solicitor, which is concerning. This might seem very strange, but as my solicitor won't act unless I go HC, can I put in my own Civil Bill - my cousin is a barrister and has checked it over - she doesn't act for family, otherwise we would have her inundated. I am really sick of all this solicitor stuff. Is this a mad idea - would it be a big deal to do this and represent myself?
     
  11. Ravima

    Ravima Frequent Poster

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    To be honest, you would be very foolish to try to do it yourself, given the amount of money involved.

    if not happy with the solicitor, get another one.
     
  12. DirectDevil

    DirectDevil Frequent Poster

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    Excellent advice. +1.

    The solicitor's lack of awareness concerns me too. As far as not acting unless you go to the HC goes, a solicitor is obliged generally to comply with the client's instructions once the client has been fully informed and advised of their rights and obligations.

    I don't know what stage you are at in the pleadings but I would now be inclined to either ;

    1. Discontinue your instructions to the solicitor on the basis that you are not happy with the service and then instruct a new solicitor OR

    2. Set out in writing to your solicitor all of your precise issues and concerns and request a formal written opinion from counsel on all of the matters that are of concern as well as the inherent merits of whatever the substance of the case may be. It may be necessary to have a consultation with the solicitor and counsel to work through all of this prior to preparing a considered opinion.

    In connection with 2 above you might be able to bring your learned cousin along to the consultation ostensibly for moral support and assistance. What I would really like her to do is to form a private view of whether or not the solicitor and counsel are actually up to the job. Professionally and ethically this might be awkward and uncomfortable for some but you are the client and your needs are a priority.
     
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  13. cremeegg

    cremeegg Frequent Poster

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    Surely she would suggest a selection of competent solicitors
     
  14. elainem

    elainem Frequent Poster

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    My cousin is on the Western Circuit - and is not too familiar with solicitors here in the greater Dublin area. My solicitor now won't move - won't follow my instructions to issue CC proceedings. I need the money back as soon as possible, as it was my children's college fund, and my daughter is going to college next year. The solicitor has known this since the start - back in Feb of this year. He also won't formally write to the other side, though they have written a letter saying they would consider settling if terms were right. If I move to another solicitor, it could take ages, and they would be just as bad - hence thinking of just putting in the CC proceedings myself to move things along.
     
  15. Ravima

    Ravima Frequent Poster

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    and what will you do if you get a quick trial date? You cannot have your cousin BL represent you as BL's can only take instructions from a solicitor. Therefore you will run case yourself? What if you have erred in a document or point of law and you lose the case in full?

    Why not make appointment with another solicitor - hundreds in the phone book and most will give a free first consultation - and at least have your case start on solid ground.
     
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  16. Bronte

    Bronte Frequent Poster

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    This doesn't make any sense to me. A barrister would know solicitors who could recommend a good solicitor in Dublin. It's not like the country is so big !

    In addition Elainem you've vast experience yourself of solicitors, as far as I recall you've been to court many many times. Did this solicitor not act for you before?

    On what basis will your solicitor not now move? Did the solicitor put this in writing? Did you get a written fee quotation from him?
     
    torblednam and Ravima like this.
  17. Ravima

    Ravima Frequent Poster

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    This doesn't make any sense to me.

    me neither.