018-NLR-NLR-V-27-MOONESINGHE-v.-PEREIRA-et-al.pdf
( 76 )
1925.
Present: Jayewardene A.J.
MOONES'INGHE v. PEREIRA et aL
66—C. B. Colombo, 19,715.
Advocate^ Action for refur.d of fees rot maintainable—English law.
An advocate cannot sue or be sued by- a client in respect offees due to him or paid to him.
An advocate in Ceylon stands towards his clients in the samelegal position as a barrister-at-law in England.
The principle la:d ('.own in Kennedy v> Broun 1 applied.
The rules of the Roman-Dutch law on the subject have noapplication 1o local advoc* tes.
^T^HE plaintiff through his proctor retained the defendants'-A- testator, who was a barrister-at-law, an advocate of theSupreme Court, and a King’s Counsel, to appear for him in a casein appeal. Before the appeal could be heard, the advocate died,and it is admitted that no work was done for the fee paid to him.After the death of the advocate, the plaintiff-requested the defend-ants, the advocate’s executors, to return the fee which thedefendants refused. The plaintiff instituted the present actionfor the recovery of the fee, and the learned Commissioner ofRequests gave judgment for the plaintiff.
E. J. Samarawichreme, K.C. (with him R. L. Bartholome'usz), fordefendants appellants.
L. H. de AlwiSy for plaintiff, respondent.
June 17, 1925. Jayewardene A.J.—
This action raises an interesting question affecting the legalprofession, namely, whether an advocate in Ceylon can sue or besued in respect of fees due or paid to him. The plaintiff in thepresent action retained the defendants’ testator who was a barrister-at-law, an advocate of this Court, and a King’s Counsel, to appearfor him in appeal in case No. 101 (S.C.), D.C. Colombo, No. 8,211.Before the appeal could be heard, the advocate died, and it isconceded that no work was done for the fee paid to him. Theadvocate was retained by the plaintiff’s pro6tor who sent a letterto the advocate. The fee was handed to the advocate by the
1 {1863) 7 L. T. 626 {630).
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client (plaintiff) personally. After the death of his advocate, theplaintiff requested the defendants, the advocate's executors, toreturn the fee to enable him to retain other counsel. The executorshad arranged with another advocate to argue this and some othercases in which their testator had been retained, but this arrange-ment was not approved by the plaintiff who desired to retain anddid retain an advocate of his own choice. The defendants refusedto return the fee. The plaintiff instituted the present actionfor the recovery of the fee paid. The defendants in their answerraised various pleas. They denied that the fee was paid by theplaintiff, and said it was paid by his proctor, and that they had madesatisfactory arrangements for the argument of the plaintiff's casein appeal. They also denied that any cause of action had accruedto the plaintiff to recover the money as it was a fee paid to anadvocate. The facts not being in dispute, the main issue raised fordecision was whether an action can be maintained for the refundof fees paid to an advocate ?
The learned Commissioner of Bequests, after hearing someevidence and argument, decided in favour of the maintainabilityof such an action. He held that as under the Roman-Dutch law,which he thought applied to a case of this kind, an advocate cansue for his fees, an advocate in Ceylon can do so, and can also besued for its return, if there has been—as in this case—a total failureof consideration. He also held that although the defendants’testator was a barrister-at-law and a King's Counsel, he hadto take his oath as an advocate of the Supreme Court of thisColony, and that it was in the latter capacity that he practisedhis profession. In his opinion the legal relations between anadvocate and his client in Ceylon were not the same as thosebetween a barrister-at-law and his client in England, where thebanister-at-law has no dealings with his client, but is retainedby his solicitor. The learned Commissioner rightly observed thatunder the English law there is no contractual relationship betweencounsel and client, and that counsel cannot sue the client for hisfees, nor has the client any right of action against counsel in respectof his professional engagements. But, in his opinion, this principlewas inapplicable to advocates in Ceylon.
The decision of the question, it seems to me, must depend uponthe view we take of the legal position of an advocate towards hisclient under the law of Ceylon. Advocates and proctors areadmitted and enrolled in Ceylon not under the Common law—the Roman-Dutch law—but by virtue of the powers conferredon the Supreme Court by the Charter of 1833 (section 17) andaffirmed by the Courts Ordinance, 1889 (section 18). It seems,therefore, to be doubtful whether the principles which regulatedthe rights and obligations of advocates under the Roman-Dutchlaw would be applicable to advocates enrolled under our law.
1025.
Jayewar-DENE A.J.
Moonesinghe
V.
rereira
( 78 )
1925. Under the Roman-Dutch law a party to an action can be.Jayewarrepresented by a proctor, or an advocate, or by both, (Voel 3,3,1.)
dene a.u . This is not possible under our law, for under section 24 of the■UoonetfncjheProcedure Code “ an advocate instructed by a proctor for
v.this purpose (that is, of any appearance, application, or act in any
I’ereiraCourt) represents the proctor in Court.” As regards fees the Civil
Procedure Code makes express provision for their taxation andrecovery. Under section 208, the term costs includes “ fees andcharges of advocates and proctors.” Under sections 72 and 212,the right of a proctor to a lien is recognized, but no such right isgranted to an advocate, although according to Voet 6, 1, 3, anadvocate under the Roman-Dutch law did have such a right, for“ expenses made.” Section 215 of the Civil Procedure Coderecognizes the right of a proctor to bring an action for costs againsthis client. Its material words are as follows :—
“ No proctor shall commence or maintain any action for therecovery of any fees, charges, or disbursements at lawuntil the expiration of one month or more after he shallhave delivered unto the party charged therewith, or leftwith him at his dwelling house or last known place ofabode, a bill of such fees, charges, and disbursementssubscribed by such proctor.”
The proctor includes in his bill the fees, if any, paid by him outof his own money to the advocate. What is due to a proctor iscalled in schedule III. to the Civil Procedure Code “ costs andcharges,” and what is paid to an advocate is called “ fees.”
The right of an advocate to bring an action for his fees is notrecognized by the Code, and no procedure is indicated for theirtaxation at the instance of an advocate. No such provision hasbeen made in the Code, because our law does not recognize theright of an advocate to sue for his fees. Our law does not allowthe appearance of an advocate in Court, unless he is instructed bya proctor. There are, no doubt, certain sections (806, 809 (b),820), in part X. of the Code which provides a “ special procedurefor Courts of Requests ” which appear to recognize the right ofan advocate to act without a proctor in cases instituted in Courtsof Requests, but I believe the Supreme Court firmly put downthe attempt of an advocate at Kegalla to act without a proctorunder one of these sections. Under the Criminal Procedure Codea “ pleader ” means (1) an advocate: (2) any person authorizedunder any law for the time being to practise in such Court, andunder section 287 “ every person accused before any criminal Courtmay of right be defended by a pleader.” It may be contendedthat in view of the definition of the term “ pleader ” an advocatecan defend an accused without being instructed by a proctor.
1 do not think this would necessarily follow, if the rule of the
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profession as recognized by this Court is otherwise. Further, theGeneral Council of Advocates has laid down a rule that no advocateshould accept a fee in any case, civil or criminal, otherwise than onthe instructions of a proctor. See “ The Ceylon Law Review”vol. VII., p. 106.
These rules have no statutory authority, but the Supreme Courtrecognizes the right of the General Council of Advocates to makerules on questions of professional etiquette. In one instance theSupreme Court invited the General Council of Advocates to decidewhether certain practices were consistent with the traditions andetiquette of the profession, and acted on the opinion expressed bythe Council. See “ The Ceylon Law Review” vol. VII., p. 11.
The General Council of Advocates insists on the observance ofthe rule above referred to. The learned Commissioner seems tothink that the English rule has no application here as advocateshave direct relations with clients. The learned Commissioner,I do not think, has practised at the local bar, and his opinion isevidently based on what he has observed in his Court and on thestatement in the evidence that the fee sought to be recovered inthis case was paid direct by the client to his advecate. In Ceylonclients generally insist on taking the fee to their advocates witha letter from the proctor. Clients are not satisfied unless theymeet their counsel and have a few words with them. This practiceseems difficult to stop. I suppose it will disappear gradually.It appears to prevail even in England where the Bar Council hascondemned it as “ undesirable.” But I do not think it affectsthe rule which, I trust, is universally observed that counsel must beretained by the proctor and not by the client. Although theclient may hand the fee personally to the advocate and speak tohim about his case, the advocate accepts the fee on the strength
of the proctor’s letter retaining him.
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In the present case I find that the advocate was retained bythe proctor, although the fee was handed to him by the clientpersonally. The client acted as the proctor’s messenger or as thepost office.
In my opinion an advocate is always retained and must beretained by a proctor as counsel are retained by solicitors in England.If an advocate accepts a fee without being retained by a proctor,he would be guilty of professional misconduct of a serious nature.If such is the position of an advocate, can he be sued for the recoveryof fees paid to him and for which he had done no work ? In myopinion, an advocate in Ceylon stands in the same legal positionas a barrister-at-law in England towards his clients.
Under the English law a barrister-at-law cannot sue or besued by a client in respect of fees due to him or paid to him. The
27,
1925.
Jaybwar-UKtfE A.J.
Mooneeinghe
v.
Pereira
1926,
Jaybwab-DBMS A.J.
Moonesinght
v.
Pereira
( 80 )
law on the subject was laid down in Kennedy v. Broun (supra)by Erie C.J. who said—
“ We consider that a promise by a client to pay money to a counselfor his advocacy, whether made before, or during, or afterthe litigation, has no binding effect; and, furthermore, thatthe relation of counsel and client renders the parties mutuallyincapable of making any legal contract of hiring andservice concerning advocacy in litigation. For authorityin support of these propositions we place reliance on thefact that in all the records of our law, from the earliesttime till now, there is no trace whatever either that anadvocate has ever maintained a suit against his clientfor his fees in litigation, or the client against an advocatefor breach of a contract to advocate ; and as the numberof precedents has been immense, the force of this negativefact is proportionally great. To this we add the traditionand understanding of the profession, both as known toliving memory and as expressed in former times.*’
Pollock on “ Contract/* p. 648 (5th ed.) states the law thus—
“ The decision of the Court of Common Pleas in Kennedy v.Broun (supra) has established the unqualified doctrinethat “ the relation of counsel and client renders theparties mutually incapable of making any legal contractof hiring and service concerning advocacy in litigation.**The request and promises of the client, even if there beexpress promises, and the services of the counsel, “ createneither an obligation nor an inception of obligation, norany inchoate right whatever capable of being completedand made into a contract by any subsequent promise/*
The same question came up for decision before the Privy Councilin a case from Quebec : The Queen v. Doutre.1 There an advocatewho was entitled to practise in his country—not only as “ an advocateand barrister/* but also as “ an attorney, solicitor, and proctor atlaw ”—sued the Crown for the recovery of fees due to him inrespect of professional services. The Crown raised the objectionthat the advocate, who also held the rank of Queen’s Counsel,was incapable of maintaining an action for fees, and relied on thecase of Kennedy v. Broun (supra). In the course of his judgmentLord'Watson dealing with this question of law said (p. 751)—
“ Then as regards the other questions of law raised by theappellant, there is much difficulty. Their Lordships arewilling to assume that the law of England, so far as itconcerns the Bar of England to sue or make agreementsfor payment of their fees, was rightly applied in the caseof jKennedy v. Broun (supra), but they are not preparedI a884) 9 A pp. Cases 745.
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to aocept all the reasons whioh were assigned for thatdecision in the judgment of Erie G.J. It seems to themthat the decision may be supported by usage and thepeculiar constitution of the English Bar, without attempt-ing to rest it upon general considerations of publicpolioy. Even if these considerations were admitted,their Lordships entertain serious doubts whether, in anEnglish Colony where the Common law of England is inforce, they could have any application to the case of alawyer who is not a mere advooate or pleader, and whooombines in his own person the various .functions whichare exeroised by legal practitioners of every olass inEngland, all of whom, the Bar exoepted, oan recover theirfees by an aotion at law.”
Advocates in Quebeo appear to be in the same position asproctors of the Supreme Court in Ceylon who were entitled to dothe work of an advooate in addition to that of a prootor until theCivil Procedure Code (seotion 709) took away their right toappear before the Supreme Court in appeal, and restricted thatright “ to a party in person or his oounsel.”
It will be noted that the Privy Counoil refused to apply therule of English law as laid down in Kennedy v. Broun (supra),where the members of the legal profession are not merely advocatesor pleaders, but are entitled to exercise the functions of solicitorsor proctors. An advooate in Ceylon is not in the same position asan advocate in Quebec, for his functions are limited to advocacyand pleading. In my opinion, therefore, an advocate in Ceylonis in exactly the same position as a barrister-at-law in England,as the separation of the two branohes of the profession are asstrictly maintained here as in England. It is, I believe, owing tothis distinction between the two branches that Ceylon advooateshave been granted the concession of being enrolled as barristers*at-law in England without keeping all the terms and passing anyof the law examinations.
Even in South Africa according to Nathan (Common Law ofSouth Africa, vol. IV.t p. 2015, section 2006) the practice bywhich an advooate oan sue for his fees has become obsolete.Locally, no case can be found in whioh an advocate has sued orhas been sued in respeot of fees due to him or paid to him, andit is generally believed that no suoh aotion oan be maintained.
In Perera v. White1 in which the defendant, alleging that all theleading oounsel had been retained by the plaintiff, applied to thisCourt to apportion counsel to advise him in his defence, basing* hismotion on the Roman-Dutch law (Voet 3, 1, 11), Bonser C.J.thought that the English practice should be followed in retaining» (1900) 4 N. L. R. 209.
19S6.
J AYE WAR-DENE A.'T.
Moonesinghe
v.
Pereira
12(61)29
1925.
Jaykwak-
DENK A.J.
Moonesinghe
v.
Pereira
( 82 )
counsel, and he based his view that the Supreme Court would havethe right to apportion counsel if a party to a litigation should retainthe whole roll of advocates, not on the Roman-Dutch law, but onthe general ground that it would amount to a grave scandal andmight occasion injustice.
Whatever the strict Roman-Dutch law on the subject may be, thatlaw has no application to advocates in Ceylon who are not admittedand enrolled under the Common law, but under the powers con-ferred on this Court by the Charter of 1833 and the Courts Ordi-nance, 1889. Even if the Roman-Dutch law had been applicable,the position of an advocate in Ceylon is so materially differentfrom that of an advocate under the Roman-Dutch law that theapplication of the Roman-Dutch law rules would be impossible.
The written law is based on the principle that an advocate isincapable of suing for fees, and fees due and paid to an advocatecan be recovered by the proctor who is entitled to include suchfees in his bill of costs.
The principle laid down in Kennedy v. Broun (supra) is, in myopinion, applicable, and the present action cannot be maintained.
For these reasons I hold that the conclusion arrived at by thelearned Commissioner is wrong, and that the judgment appealedfrom must be set aside. The appeal is allowed. I do not thinkit necessary to make any order as regards costs-
Appeal allowed.
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