"Beyond Concerning" - seeking and following advice from the "wrong person"
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A recent High Court decision of Mr. Justice Heslin in Start Mortgages Limited v Michael Ryan and Agnes Ryan[1] , has sounded the klaxon for lay litigants seeking to engage, and concerningly, in some cases pay, legally unqualified persons to assist them in the conduct of their litigation.
Background
The decision was delivered in the context of an appeal brought by the Second Named Defendant (“Mrs. Ryan”) against an Order of the Circuit Court refusing her application for an extension of time to appeal an Order for Possession granted by the County Registrar as against the Defendants in February 2022. The application for an extension of time was issued 5 months following the date of the Order for Possession. The time limited for an appeal of an Order of the County Registrar is 10 days.
In support of the application, Mrs. Ryan swore an affidavit which contained averments relating to “avenues explored” and contact with a number of parties, including a personal insolvency practitioner, MABS, Phoenix Project Ireland and an individual identified as a Mr. Horan of Rockwell Private & Associates Limited and/or Mortgage Arrears Assist. The Court noted that nowhere in her affidavit did Mrs. Ryan aver that Mr. Horan was a solicitor or counsel, or that he had any legal qualification, or that she understood him to have same, yet, unfortunately she chose to take his advice as to how to deal with Start’s claim. In a supplemental affidavit, Mrs. Ryan averred that Mr. Horan was recommended to her by a neighbour “as someone who could assist with mortgage arrears difficulties”. It subsequently transpired that Mr. Horan was a person claiming to be in a position to assist those in mortgage arrears, without holding any legal qualifications to do so, and that Mrs. Ryan paid him €14,000 for these services.
The substance of Mrs. Ryan’s argument was that during the currency of the underlying possession proceedings, Mr. Horan had led her to believe that he was in a position to “take on” Start, that he would prevent an Order for Possession being made as against her property and that he was liaising with a representative of Start with regards to a settlement. She further averred that Mr. Horan had advised her that her attendance at the hearing in February 2022 was unnecessary, that a representative of Start had agreed to adjourn the proceedings and that Counsel would “take care” of the matter. However, unbeknownst to Mrs. Ryan, the County Registrar made the Order for Possession in her absence. She went on to explain that the delay in bringing the appeal was as a result of her understanding that Mr. Ryan was issuing the appeal and delivering same to Start’s solicitors on the evening of 18 March 2022, but it was only discovered on 28 April 2022 (by which stage she had engaged solicitors) that the appeal had not been lodged. She further argued that attempts were made by her solicitors to secure Counsel from 11 May 2022, with alternative Counsel eventually confirming availability to act in the matter on 17 June 2022.
Decision
In refusing the extension of time to appeal, Mr. Justice Heslin focussed heavily on Mrs. Ryan’s choice to engage Mr. Horan, despite knowing that he had no legal qualification, and that while that choice was unfortunate (and one which Mrs. Ryan quite clearly came to regret), the evidence was clear that Mrs. Ryan chose not to comply with her contractual obligations in respect of mortgage payments and chose that course, not based on advice from a qualified solicitor or counsel, but from someone she knew to be neither. As regards Mrs. Ryan’s allegation that she had been deceived by Mr. Horan, the Court noted that she was “seeking advice from the wrong person”, that that there was no duress and that Mrs. Ryan was not mistaken as to the qualifications of Mr Horan or his firm. In considering the Eire Continental principles and specifically, the question as to whether a mistake was made in not lodging the appeal within the time allowed, the Court held that the reason the appeal was not lodged on time was due to Mrs. Ryan’s conscious decision to follow the advice of a non-lawyer and thus did not amount to a mistake.
Comment
Throughout his judgment, Mr. Justice Heslin was careful to state there must be sympathy and that he himself has “personal sympathy” for someone who, for whatever reason, retains the services of a non-qualified person, and even more concerningly, pays them for this service, despite knowing they do not have the relevant qualifications. Despite this sympathy, the decision is a further reminder from the Court that lay litigants should carefully consider who they are retaining to assist and/or advise them in the conduct of litigation. The decision should also be considered in conjunction with Practice Direction HC72 issued by the then Presidents of the High Court and the Court of Appeal in October 2017, to clarify the position of so-called McKenzie Friends. In particular, the Practice Direction clarified that McKenzie Friends have no right to act as advocates or carry out the conduct of litigation and they have no entitlement to payment for their services. Further details of that Practice Direction can be found here.