Lapas attēli

CH. XIX. s. 2. and that the relation of counsel and client renders the parties
Contracts of mutually incapable of making any contract of hiring and service
(Counsel). concerning litigation; and this judgment was assumed to be correct

(. Promise of by the Judicial Committee of the Privy Council in Reg. v. client to pay Doutré (h), but with the observation that “ it might be supfees, not binding. ported by usage and the peculiar constitution of the English Bar,

without attempting to rest it upon general considerations of public policy."

The judgment in Kennedy v. Broun is confined to litigious business; but in Mostyn v. Mostyn (i), where a claim for conveyancing fees made in an administration suit failed on the ground that a solicitor has no authority to pledge his client's credit in contracting to pay fees, Giffard, L. J., appeared to be strongly of opinion that counsel's fees for any kind of business are irrecoverable.

There is, however, a manifest distinction between counsel's fees which the client has paid to the solicitor, and fees which he has not so paid, and paid fees have been allowed by a Commissioner in Bankruptcy to be proved for in the bankruptcy of a firm of solicitors (k), but an application to compel an attorney to pay over paid fees to

counsel or return them to the client has been refused (). Consultation Cases also may possibly occur where a client may consult counsel without intervention of

without the intervention of a solicitor, which intervention is necessolicitor. sitated by no rule of law, but founded purely on considerations of

convenience (m). It does not appear to have been expressly decided that fees would not be legally recoverable in such a case, but it seems clear that the principle of Kennedy v. Broun would a fortiori apply to it, and that the fees would be as legally irre

coverable as a promised gift would be. Counsel not For work done by a counsel not acting as such, he is entitled acting as such.

to be paid just as much as anybody else. Thus he may recover remuneration for work done as returning officer at an

election (n). Conveyancers. A certificated conveyancer, if not called to the bar, may recover

fees (), and it may be mentioned here that an uncertificated person who acts as a conveyancer cannot recover anything for his services (p).


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of the services was afterwards set aside in Broun v. Kennedy (1864), 33 L. J., Ch. 342.

(h) Reg. v. Doutré (1884), 9 App. Cas. at p. 751.

(i) Mostyn v. Mostyn (1870), L. R., 5 Ch. 457.

(ke) Hall, In re (1856), 2 Jur., N. S. 1076. (?) Angell, In re (1860), 29 L. J., C.

P. 227.

(m) See Doe d. Bennett v. Hale (1850), 15 Q. B. 71.

(n) Reg. v. Guardians of Kensington Union (1841), 3 Q. B. 935, n.

(0) Pocher v. Norma (1824), 3 B. 8 C. 744.

(p) Steadman v. Hockley (1856), 15 M. & W. 553.

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fees on


The fees of counsel's clerks are mere gratuities and are not Ch. XIX. s. 2. recoverable by action at the suit of the clerks (9). They are

Contracts of

Employment however fully recognized on taxation, R. S. C., Ord. LXV. r. 51, (Counsel). prescribing that “the following fees" [naming them] “are to be Clerks of allowed to counsel's clerks."

counsel. Nor can counsel's fee, if paid, be recovered back for non- Negligence. attendance at a trial (r), or can counsel be sued for negligence of any kind (s).

The fees of counsel are fully recognised on taxation of costs, and Allowance of by a Rule of Court (R. S. C., Ord. LXV. r. 52), “no fee to taxation. counsel shall be allowed on taxation unless vouched by his signature.” In Morris v. Hunt (t), the defendant in person, on taxa- Morris v. tion, took the objection that by law no man is liable to pay for counsel Hurt. at all, but the Court (Bayley, Holroyd, and Best, JJ.) emphatically overruled the objection, Bayley, J., saying that the reason why counsel cannot sue for their fees is that “it is understood that their emoluments are not to depend upon the event of the cause, but to be equally the same whether the event be successful or unsuccessful;" that “they are to be paid beforehand, because they are not to be left to the chance whether they shall ultimately get their fees or not;” that “it is for the purpose of promoting the honour and integrity of the bar, that it is expected that all their fees should be paid at the time when their briefs are delivered ;” and that “it is their duty to take care, if they have fees, that they have them beforehand, and therefore the law will not allow them any remedy if they disregard their duty in that respect." Retaining fees (u) are not allowed as between party and party (x); What sees

allowed. fees for conferences are not allowed without special reason (y); refresher fees are specially provided for ().

As to premature delivery of briefs, it is prescribed by Ord. XLV. Premature r. 49, that “Where a cause or matter shall not be brought on for trial or hearing, the costs of and consequent on the preparation and delivery of briefs shall not be allowed if the taxing officer shall be of opinion that such costs were prematurely incurred.”

The 24 “Rules for Regulating the Practice as to Retainers of The Retainer Counsel," prepared by the Bar Committee, and approved by the



Chelmsford (1860), 5 H. & N. 890.

(t) Morris v. Hunt (1819), 1 Chit. 544. “In England, the general rule is, prepayment” of fees : per Cur., in Kennedy v. Broun (1863), 13 C. B., N. S. at

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(9) Cotton, Ex parte (1848), 9 Beav. 107; 10 Jur. 84 ; and see Teed v. Beere (1859), 28 L. J., Ch. 782, in which embezzled fees were recovered by a barrister from the daughter of his deceased clerk, the Statute of Limitations and distribu. tion of the estate notwithstanding,

(r) Turner v. Phillips (1792), Peake, 122.

(8) Fell v. Brown (1792), Peake, 96 ; 3 R. R. 633 ; and see Swinfen v. Lord

p. 732.

(u) As to amount of these, see Retainer Rules, Ann. Prac. Vol. II.

() Ord. LXV., r. 44.
(y) Ib., r. 45.
(z) Ib., r. 48.

CH. XIX. s. 2. Attorney-General (Sir R. Reid) and by the Council of the Incorpo

Contracts of rated Law Society, are printed at length in the 2nd volume of the Employment. (Counsel). Annual Practice. Of these, Rules 20 and 21, as to “Opinions and

Pleadings," may be inserted here :

The Retainer

20. Counsel who has drawn pleadings or advised, or accepted a brief, during the progress of an action on behalf of any party shall not accept a retainer or brief from any other party without giving the party for whom he has drawn pleadings or advised, or on whose behalf he has accepted a brief, the opportunity of retaining or delivering a brief to him, but such counsel is entitled to a brief at the trial, and on any interlocutory application where counsel is engaged, unless express notice to the contrary shall have been given to him with the instructions to draw such pleadings or advise, or at the time of the delivery of such brief. Provided always, such counsel shall not be entitled to a brief in any case where he is unable or unwilling to accept the same without receiving a special fee.

21. No counsel can be required to accept a retainer or brief or to advise or draw pleadings in any case where he has previously advised another party on or in connection with the case, and he ought not to do so in any case in which he would be embarrassed in the discharge of his duty by reason of confidence reposed in him by the other party, or in which his acceptance of a retainer or brief or instructions to draw pleadings or advised would be inconsistent with the obligation of any retainer held by him, and in any such case it is the duty of the counsel to refuse to accept such retainer or briefs or to advise or to draw pleadings, and in case he has received such retainer or brief inadvertently, to return the same.

Authority of counsel to compiroinise.

The conduct and control of a cause in which he is engaged are necessarily left to counsel, who has complete authority over the cause itself, though not as to collateral matters (a), so that, e.g., in a breach of promise of marriage action the plaintiff's counsel may settle with the defendant's counsel that money be paid by the defendant to the plaintiff, and judgment entered for the defendant, but not, without the express consent of the plaintiff, that the defendant's letters should be given up, and that the plaintiff should not molest him (b). This general authority includes the power to withdraw a juror, and an agreement made in pursuance of it with the counsel on the other side is binding on the client (c). But the general authority may be limited by the client, and if the other side is informed that it has been limited, an act in excess of the limit does not bind the client (d).

Neither counsel nor client is bound by a compromise made under a misapprehension, and the Court will set such a compromise aside, accepting, on the question of the extent of the authority to compromise, the statement of counsel if made from his place at the

Setting aside compromise.

(a) Swinfen v. Lord Chelmsford (1860), 29 L. J., Ex. 382.

(6) Kemshall v. Holland (1895), 14 R. 336, C. A.

(c) Strauss v. Francis (1866), L. R., 1 Q. B, 379.

(d) Ib.

bar, without requiring it to be made on oath (e). But where Ch. XIX. s. 2. counsel by the authority of their clients consent to an order, the Contracts of

Employment. clients cannot arbitrarily withdraw such consent, and the Registrar (counsel). must be directed to proceed to perfect the order, without prejudice Withdrawal to any application which the party withdrawing consent may make of consent of

client to to the Court to be relieved from their consent on the ground of order. mistake or surprise, or other sufficient ground (f).

No action lies against counsel for words spoken by him as such. Freedom of This was held in Hodgson v. Scarlett (9), where the Court was of

speech by

counsel. opinion that for the protection to arise, the words spoken must Munster v. be pertinent to the issue. But in Munster v. Lamb (h), the Court Lamb. went further, and, after considering all the authorities, laid down that no action lies against an advocate even for words spoken maliciously and irrelevantly to every issue of fact before the tribunal. Lord Esher, M.R., observed :

"A counsel's position is one of the utmost difficulty. He is not to speak of that which he knows; he is not called upon to consider, whether the facts with which he is dealing are true or false. What he has to do is to argue as best he can, without degrading himself, in order to maintain the proposition which will carry with it either the protection or the remedy which he desires for his client. If amidst the difficulties of his position he were to be called upon during the heat of his argument to consider whether what he says is true or false, whether what he says is relevant or irrelevant, he would have his mind eo embarrassed that he could not do the duty which he is called upon to perform. Far more than a judge, infinitely more than a witness, he wants protection on the ground of benefit to the public. ... If the rule of law were otherwise, the most innocent of counsel might be unrighteously harassed with suits, and therefore it is better to make the rule of law so large that an innocent counsel may never be troubled, although by making it so large counsel ai included who have been guilty of malice and niisconduct” (i).

SECT. 3.-Medical Practitioners, Dentists, and Chemists.

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The Apothecaries Act, 1815, 55 Geo. 3, c. 194, by s. 20 imposes a Recovery of

fecs by apothepenalty of 201. on any person practising as an apothecary without

caries. a certificate, and by s. 21 enacts that no apothecary may recover his charges, unless he prove on the trial that he has obtained a certificate.

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Ch. XIX. s. 3. The Medical Act, 1886, 49 & 50 Vict. c. 48, s. 6, replacing the

Contracts of repealed s. 31 of the Medical Act, 1858, 21 & 22 Vict. c. 90,
(Medical provides that any registered medical practitioner may recover his

fees and charges, unless he be a fellow of a college of physicians, Recovery of

the fellows of which are prohibited by a bye-law from recovering fees by inedi. cal practi

their expenses, charges or fees, and by s. 32 of the Medical Act, tioners,

1858, no person shall be entitled to recover any charge in any court of law, for any medical or surgical advice, or attendance, or for the

performance of any operation, or for any medicine which he shall if registered. have both prescribed and supplied, unless he shall prove upon the

trial, that he is registered under that act; and this section applies not only to cases where the patient is sued; but also to cases where the action is brought against a third person, by whom the medical man was employed (k). The Court of Common Pleas has held that the medical practitioner will be entitled to recover if he be duly registered at the time of the trial, although he was not registered at the time of the attendances, &c., in respect of which the action is brought (1); but the Court of Queen's Bench that he cannot recover, unless he was registered at the time the services in

respect of which he sues were rendered (m). Unregistered A registered practitioner cannot recover for the services of an assistant.

unregistered assistant (n). Surgeon. The Medical Act, 1858, however, does not repeal the Apothecaries

Act (o); and therefore, a registered surgeon under the Medical Act, 1858, and who as a surgeon only did not hold any other qualification, was held not entitled to recover for medicines and attendance, except in a surgical case (p); but it is submitted that s. 5 of the Act of 1886, which replaces the repealed s. 31 of the

Act of 1858, has altered the law in this respect. Partnership. Where a business was carried on by two partners, one of whom

was registered as a surgeon and apothecary, and the other as a surgeon only: it was held that they might recover on a joint claim for medicine and attendances although the attendances by

(1) De la Rosa v. Prieto (1864), 16 C. B., N. S. 578.

As to removal from register, see Allbutts' case, (1889) 23 Q. B. D. 400, C. A.

(1) Turner v. Reynal (1863), 14 C. B., N. S. 328.

(m) Leman v. Houseley (1874), L. R., 10 Q. B. 66. It is submitted that Turner v. Reynal is the more correct on this point, and that a medical practitioner, not practising as an apothecary, i.e., giving advice only and not medicine also, may recover, if registered at the trial, inasmuch as the Medical Acts impose no penalty for practising without qualification, as the Apothecaries Act

does. This view, which is in accordance with Hatfield v. Mackenzie, 10 Ir. C. L. 289, is no doubt opposed to the spirit of the Act, but the words of it seem to be too express to be got over. If, however, the title of a physician, &c., be taken see S. 40 of the Medical Act, 1858), the case might be different.

(n) Howarth v. Brearley (1881), 19 Q. B. D. 303.

(0) 55 Geo. 3, c. 194, ss. 20, 21 ; and see 37 & 38 Vict. c. 34; Daries y Makuna (1885), 29 Ch. D. 596, C. A.

(P) Leman v. Fletcher (1873), L. R., 8 Q. B. 319.

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