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Correct test was applied in determining summary judgment application
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Court of Appeal dismisses appeal and upholds decision of the High Court granting summary judgement to the respondent in the sum of €150,000 together with costs, and remitting the balance of the claim to plenary hearing, on the grounds that: (a) the appellants had not demonstrated that the respondent is not entitled to bring proceedings for recovery of fees due and owing in respect of services which the appellants do not deny were rendered, despite the solicitor who represented the appellants retiring; (b) a typographical error on the notice of motion which understated the fees claimed by €900 caused no prejudice to the appellants; (c) it would give rise to an injustice to construe the Rules of the Superior Courts as requiring that the proceedings be struck out for not expressly stating that the bill of costs had not been signed by the respondent in circumstances where the appellants had full knowledge of the bill of costs, chose to ignore it and never sought to tax the costs; and (d) the trial judge was correct in his assessment that a fair and reasonable probability that the appellants had a real or bona fide defence was not made out.
Whelan J (nem diss): Summary judgement - appeal of a decision granting summary judgement to the respondent in the sum of €150,000 together with costs and remitting the balance of the claim to plenary hearing - on the 20th March, 2012 the respondent, a solicitor, instituted proceedings by way of summary summons against the appellants seeking to recover the sum of €245,916.94 in respect of fees and outlay alleged to be outstanding - appellants were unhappy with conduct of his original case for which the fees were due and owing - whether the fact that the solicitor who had represented the appellants had retired meant that recovery of debt proceedings could be brought by new principal of the firm - whether an error on the face of the motion caused prejudice to the appellant - whether the correct principles for summary judgement were applied - appeal dismissed.
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