The price of justice

A legal battle between a songwriter and his former solicitor again raises the question of legal fees and the bearing they have on legal outcomes, writes Michael Clifford.

THERE were times yesterday when Johnny Duhan’s voice trembled on the edge of song. The singer/songwriter, who penned the well-known tune, The Voyage, had at his fingertips all the elements required for a good ballad.

He was pursuing justice at the Solicitors Disciplinary Tribunal, pitted against elements of a powerful profession. All he had in his corner was his daughter, Eve, up against a battery of pin-striped legal types. The tribunal was sitting in a converted friary, behind locked gates, which once kept the peasants at bay. Meanwhile, next door, Capuchin monks handed out the daily bread to a growing battery of the needy. If Johnny hadn’t been so preoccupied, he surely would have had a song fomenting in his head.

Of course, the solicitor who was the subject of the hearing would be entitled to claim that he was the one suffering an injustice, whatever about Duhan’s facility for a catchy lyric.

The Voyage was what had driven Johnny onto the rocks of this hearing. The song, most famously recorded by Christy Moore, had been used in a video and CD, featuring The Three Tenors. Duhan was entitled to royalties, which he hadn’t received. So he went to solicitor Eddie McGarr in 2001 to help recoup his earnings.

Thereafter, things got messy. The case dragged on for years. Litigation was commenced, but ran into difficulty in 2006, when the High Court denied a discovery order against the defendants, a Dutch TV company, TV Matters.

A settlement was offered the following year. Fifty grand, which was to include his own legal fees. Sounds good for Johnny until he hears that maybe his own legal fees might gobble up the whole fifty grand. Cue major falling out between solicitor and client, which ended up in front of the disciplinary tribunal.

At the kernel of the case is a question that is often raised, but rarely aired in any detail: do legal fees have a major bearing on the direction and pursuit of justice in the court system?

The first day of the hearing was held last January, with the completion taking place yesterday.

Duhan represented himself. McGarr had his solicitor son Simon and another colleague by his side, along with senior counsel Padraig McCartan, who was a brother-in- law of the late Ronnie Drew, who in turn once said Johnny was his favourite songwriter.

Most of the day was taken up with Duhan cross-examining his former solicitor. The exchanges got testy. Duhan recalled the day of the settlement proposal, Mar 12, 2008. McGarr had told him of the offer, adding “the costs will not be small”. Duhan says he replied: “What do you mean the costs won’t be small?”

Both men agree that two days later, McGarr’s son, Simon, told Duhan that the costs “could be up to fifty thousand”. Duhan went into a spin. His complaint is based around a belief that the solicitor pitched the potential costs at a high value in order to persuade him to pursue litigation, which would most likely result in the solicitor getting generous costs against the defendant if they won. McGarr denied any such motivation.

Duhan tried to find out specifics of how much of the €50,000 would go to his solicitor, but he had no luck. Addressing the solicitor, he said he was “under your clutches, the way that my wife couldn’t sleep at night”. At one stage, a few months after the offer was made, Duhan proposed that he and his solicitor carve up the offer together.

“At this juncture, you were pressing me to split the offer with you,” McGarr said to Duhan.

McGarr wasn’t having it. Finally in Nov 2008, he informed Duhan that the cost would be €16,131.50, but emphasised that this was again an “estimate”, just as the fifty grand cited had been an estimate.

Why the huge discrepancy between the two figures? “There are two reasons,” McGarr said. “I would have been happy to see the back of you by Nov 2008. I noted that you kept telling me what you would pay me and I didn’t take kindly to that.” He says it wasn’t possible to give his client a specific bill through all that time.

Further, correspondence between the two men saw relations deteriorate further. Yesterday, Duhan characterised one letter as “blackmail”.

“My wife wanted to ring him up and wring his neck,” he said. McGarr denied any blackmail. He maintains that his only motivation was to get the best deal for his client in court, and he hadn’t at the outset been interested in pursuing a settlement.

“If you told me that you were not willing to go to trial, I would never have worked for you,” he said.

Summing up his complaint, Duhan told the tribunal: “To write a real song — a credible song — you must go to the nub of the subject… the heart and soul of the lyric that will convince the listener that what you are singing about is true. What I have tried to do in this tribunal is bring the same level of truth to these proceedings.”

McGarr’s lawyer told the tribunal that the solicitor had delayed in providing an estimate of costs, but this did not amount to misconduct.

The chairman of the tribunal, Michael Lanigan, said that he appreciated that this was stressful on all those involved, and a ruling would be issued this afternoon.