A solicitor's retention of the passports of a Nigerian woman and her teenage daughter, currently in emergency accommodation, in a dispute over €1,500 fees, has been overturned as "wholly unreasonable" by the High Court.
The court president, Mr Justice Peter Kelly, ordered that the Nigerian passports, allegedly retained by the solicitor since late 2017, be returned "forthwith".
The retention of such important documents over such a "miniscule" sum was "disproportionate and wholly unreasonable" and was causing great distress and hardship for the mother, who denies any fees are owing, and the daughter, he said. Because neither can get a PPS number without a passport, the mother is unable to work while the 14-year-old daughter has been told by her school she cannot sit the Junior Cert exam next month unless she has a PPS number, he noted.
The mother, who also has a 16-year-old Irish citizen daughter, said in an affidavit she was pursuing a healthcare assistance course, wanted to work, to comply with the terms of her residency and “to contribute to the State”.
Her younger daughter was very distressed about not having a PPS number and became so upset in school recently it had asked the mother to attend there where she explained what was happening, she added.
The absence of passports also affected the level of housing assistance payment payable to the family and access to social welfare payments and child benefit for the youngest girl, she said.
The mother and younger daughter went to the High Court seeking return of the passports and other documents, including the girl’s original birth certificate, after Ashimedua Okonkwo, practising as Cyril & Co Solicitors, refused to return them.
Caroline McGrath, instructed by Phelan Branigan solicitors, argued there was no entitlement to claim a lien over such vital documents and the solicitor’s actions were unreasonable.
There were also concerns, arising from communications to her clients from a third party, the solicitor may have disclosed documents and personal information about the applicants to a third party, counsel said.
Opposing the application, counsel for the solicitor argued she was entitled to exercise a claim or lien over the documents because some €1,500 fees, plus VAT, was due from the mother as a client of hers. Counsel accepted the daughter could not be described as a client.
Not binding
In his ruling, the judge said this was an unusual application for reasons including it related to a dispute over just €1,500, plus VAT, and because the Law Society Complaints and Client Relations Committee (CCRC) had recommended the solicitor should return the passports. That recommendation was not binding but most solicitors would comply with it, he observed.
He said a general retaining lien arises when any deed or paper or personal chattel comes into a solicitor’s possession in the course of their employment which is the client’s property and a solicitor can assert a lien when there is a fee outstanding.
There was no dispute the child was never a client of this solicitor and on that basis alone the solicitor could not validly claim a retaining lien over her passport or birth certificate, he ruled. If he was wrong in that, he would consider the position of the child on the same basis as her mother, he said. For the purposes only of this ruling, he was making certain assumptions in favour of the solicitor, including that the mother was a client, there was an entitlement to a lien over passports and the €1,500, plus VAT, was owed.
He stressed he was not deciding any of those issues, about which there was much dispute. The law also clearly shows it may be unreasonable for a solicitor to assert a lien, he said. In this case, the mother and daughter were entitled to have their passports returned because of the serious and significant consequences of their retention which have caused extraordinary inconvenience and distress, he said.
A decision concerning what is to happen to other documents held by the solicitor will be made later and they must be handed into court in the interim.
On foot of the affidavit evidence, the judge stressed the importance for solicitors of clearly distinguishing between a professional relationship and one of personal friendship or assistance which may be tendered voluntarily.
Eugene O’Sullivan, representing the Law Society, said he would refer the ruling to the CCRC as its proceedings concerning this matter were not concluded. Regulatory and other matters may have to be considered and the judge’s ruling may be used as the basis for a direction to solicitors concerning the treatment of passports and other documents, he said.
