076-NLR-NLR-V-22-WIJESURIYA-v.-KALUAPPU.pdf
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Present: Bertram C.J.and Schneider A.J.
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WIJESURIYA v. KALUAPPU.
33—D. C. {Inly.) OdUe, 14,790.
Proctor—Lien—Proctor paying advocate'e fees and for stomps.
A proctor who personally pays the advocate’s fees and forstamps on behalf of his olient has a lien oh the money which hasbeen recovered by his exertions for such disbursements.
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HE faots are set put in the Judgment of the District judge(L. W. C. Schrader, Esq.):—
In this matter a. purchaser in execution who moved this Court to beput in possession was cast in costs of the first defendant, respondent, inthe matter of his application. The bill was taxed at Rs. 338 46, andthe amount paid in to first defendant’s account on October 21, 1919.Of this, stamp fees and advocate’s fees were seized at the instance ofplaintiff on October 24. The first defendant’s proctor states that hehas a lien on the advocate’s fees Rs'. 73*60 and Rs. 13 *80 for stampsbecause he paid personally.
The question is, Does ibis lien extend to money advanced on behalf ofa client ? Section 75 speaks of “ costs payable to him ” (the proctor)“ under the decree ”; section 212 likewise. Advocate’s fees are payableto the advocate, and are usually received in-advance from-the client bythe solicitor who engages and pays counsel.
Counsel cannot recover by action. The authority given by theClient to the solicitor includes that of engaging counsel, and fees arerecoverable against the client by inclusion in the taxed bill.. If the. proctor advances the fees of counsel or surveyor’s fees, has he the samehen as for “ costs payable to him ? ”
– According to Haisbury XXVI., 1336, the costs in respect of whichthe solicitor’s lien arises must be taxable costs, charges, and expensesincurred by him as solicitor for his cliept, including advances, which maybe disallowed Or moderated on taxation. But this paragraph refers'tothe retaining lien on a client’s papers and documents, and has noreference to the particular lien on the, proceeds of a decree. Thatcomes in at paragraph 1342. The lien over proceeds of- any judgmentsobtainedisa particular lien; it-is not available for the-general balance,of account between suitor and client; it extends only to the costs ofrecovering or preserving the property in question (in a case), includingthe costs of protecting the solicitor’s rights to such costs, and of establish-ing the lien.
Now, the lien which exists-in Geylon law is that" over costs payableto .him ” (the proctor) “ under the decree ” {11 N. L. R. 1), that is,his costs, and “*only such costs as the taxing master has a rightto consider or moderate {15 N. L. R. 51). Advocate’s fees -andsurveyor’s bills are both subject to this scrutiny and surcharge^ But,primarily, heither of them are due to the proctor. The question is,Whether he is entitled to advance and claim a lien as his due ?
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1920. The proxy authorizes him to appoint counsel, but if he does so.without being paid the fee by his client, is it part of his proper functions
Wtieauriya as proctor to advance the amount ? In IX C. 12,4351 had the questionv. Kaluappu 0f surveyor’s account paid by a proctor. And I there held that therecovery made on that account was payable to the proctor, who haddisbursed, as the surveyors looked to the proctors for their fee if1 theclients failed to pay. But that case was-not an advance I believe, buta payment of'the bill out of recoveries made from costs dtte. It was, inany case, due to the proctor. So that this does not exactly definitelytouch the question* whether a proctor has this lien mentioned in sections75 and 212 of the Code for moneys advanced in the interest of hisclient.
I should always be inclined to hold definitely that the surveyor’s billand counsel’s fees are not part of the costs payable to the proctor.Certainly, it is not the custom for the proctor to advance these itemsor inour these costs.* If they do so, are they entitled to claim this' particular lien ?, I am of opinion that I could not so hold withoutholding that it was part of their duty to help suitors with funds in orderto carry on their litigation. I hold there is no such lien, and that it isa matter of good faith or other security if a proctor assists his clientfinancially.
I therefore disallow Mr. Weerasuriya’s claim to the amount Its. 87*30,qnd allow the plaintiff’s claim to the seized amount Its; 153*46, with'costs.. ."
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H. E. Garvin (with Mm Keuneman), for the appellants—Proctor’slien for costs is recognized by the Code in sections 75 and 212. Costsinclude all legitimate disbursements; See Halsbury, vol. XXVI.,section 1342; Civil Procedure Code, section 208. Advocate’s feesand' money spent oh stamps are legitimate disbursements. In reMetcalfel1 Lien extends to all costs taxed. Perera v. Per era;2Appu Sinno v. De Silva?
Cooray9 for the respondent*—The question is only as to. theextent of the lien. The lien extends to costs recoverable by the* client and payable by him to the proctor. The advocate’s costs arepayable to the client, as they are primarily paid by him .; they do •not therefore come within the costs recoverable by the proctor. Theproctor is not expected to advance advocate’s fees. He has no lienfor such advances.
July 27, 1920. Bertram C.J.—
The question raised in this case is whether a proctor’s lien forcosts extends to disbursements made as part of his professionalduty, or whether itis confined to payments for his personal services?I do not think that there can be the least doubt in the matter. Thq.nature of a proctor’s lien for costs has been explained by previousjudgments of this Court, in particular by the judgments in the
(1862) 30 Beav. 406.* {1907) U N. L. Rl h
8 (1911) 16 N. L. B. 61.
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qases of Perera v. Perera1 and Appu Sinno v. De Silva? A summaryof the law may be found in the Article on Solicitors i^. Lord Hals-bury’s Lam of England, section 1342. It is there explained thatthe lien attaches to all property recovered or preserved by theexertions of the proctor. There can be no question that the fundin Court, whioh we are considering in this case, was brought intoCourt through the professional exertions of the proctor in the case.The property liable to the lien is, as I have said, property recovered .or preserved by the proctor’s professional exertions. It extends toall eosts of recovering or preserving the property. We haveto ask ourselves then, in the first place, is the fund in Court afund to which the lien applies; and, in the second place, what are theitems which the proctor is entitled to claim by virtue of the lien ?The answer to the second question is: "All costs legitimately in-curred for the purpose." Then oomes the question, What is meantby costs ? I understand that the word includes all sums whiohmay properly be included in a bill of oosts for taxation.
It has been long settled by authority that a distinction must bedrawn between professional disbursements and non-professionaldisbursements; that the former may be included in a bill of costs,and that the latter may not be so included, and that both counsel’sfees and stamps for the purpose of Court fees are professionaldisbursements, which may be legitimately included in a hill of costs.Mr. Garvin has referred us to the* case /» re Metcalfe8 as an expressauthority on that point.
Further, I may draw attention to the fact that our own Code(section 208) defines costs as including both “ the expense of stamps ”and “ fees and charges for advocates.” In several places our Codemakes allusion to the proctor’s lien for costs. Wherever theseallusions occur, the word “ costs ” must be interpreted by thedefinition contained in section 208, which is entirely in'accordancewith the English rules governing the matter.
I can have no doubt, therefore, that in this case the DistrictJudge’s judgment is’based upon a misconception, and I am ofopinion that the appeal should be allowed, with costs, here andbelow.
Schneider A.J.—I agree.
Appeal allowed.
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1 (1907) 11 N. L. R. 1.* (1911) 16 N. L. r'61.
8 (1862) 30 Beav/406.
1920.
Bsbxbah
O.J.
Wijeettriya>. Kalmppu