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Hi, I was involved in an inheritance case in 2005, in which

Hi, I was involved in an...
Hi,
I was involved in an inheritance case in 2005, in which land in Galway was ‘frozen’ by my solicitor until the matter went to court. There was a Circuit Court hearing in Loughrea in 2006, where the decision went against me. An immediate appeal was lodged with the High Court due to be heard in 2007. Outside the court on the day of the hearing, an out of court settlement was agreed. My questions are:
1/ would the ‘frozen’ order on the land automatically be cancelled as the Circuit Court decision went against me?
2/ would my solicitor have had to seek a further order for the land to be ‘frozen’ until the High Court hearing. (That is, the period between the Circuit Court judgement in 2006 and High Court hearing in 2007).
3/ if the order was automatically cancelled, would the solicitor for the other side be under any obligation to let my solicitor know that a mortgage on the land was being sought and later granted before the High Court hearing?
4/ if the order would still be place until the High Court hearing, would the solicitor for the other side have to seek permission from me via my solicitor for a mortgage to be taken out?
5/ If permission had to be sought from me via my solicitor, would my solicitor have to confirm consent IN WRITING to the solicitor for the other side before the mortgage could be obtained?
6/ in your experience, when the other side applied for a mortgage on the land, where the claim had yet to be determined, would the solicitor for the other side have to have put anything IN WRITING to the bank to clarify that there was a claim on the land? Would he have also had to include consent for the mortgage from MY solicitor, or would the bank accept a verbal assurance over the phone from him?
7/ at the time of the out of court settlement in 2007, my barrister and I were unaware that a mortgage had been taken out on the land and entered into the settlement without this knowledge. Should, as a matter of course, this have been disclosed by the other side during negotiations?

Many thanks,
Elizabeth
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Answered in 2 hours by:
10/11/2012
Buachaill
Buachaill, Lawyer
Category: Republic of Ireland Law
Satisfied Customers: 10,795
Experience: Barrister 17 years experience
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1. At the outset you need to realise here that what you really have is a cause of action against your solicitor for negligently failing to register a lis pendens on the land when the land was in dispute. A lis pendens should have been registered against the land to prevent dealings with it, including mortgaging it, so that your position with the litigation would not be prejudiced. Your solicitor clearly did not register a lis pendens with the result that you settled the action to your detriment. You need to realise that the golden rule is that there is nothing to prevent any party to an action dealing with the land during the course of the proceedings. This includes mortgaging it. All lawyers are aware of this fact so special procedures, such as the registration of a lis pendens need to be taken to ensure that the client is not prejudiced.
2. A lot of your questions miss the point. They are really irrelevant. The other side owed you no duty of disclosure that they had taken out a mortgage. The bank giving the mortgage did not have to get your consent merely because you were suing over the land. You and your solicitor ought to have safeguarded your position.
3. YOu need to get yourself a new solicitor to sue the one you litigated the action with. This new solicitor should take up the file from your old solicitor and see what is the true situation. My guess is that your solicitor has not told you the full truth. That is why you are asking questions about the period between the Circuit Court & High Court hearings. You need to act speedily as you only have six years to sue your old solicitor. As at least five years have now elapsed, you need to act promptly.
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Buachaill
Buachaill, Lawyer
Category: Republic of Ireland Law
Satisfied Customers: 10,795
Experience: Barrister 17 years experience
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