( fil )
Present; Lascelles C.J. and Middleton J.1911.
APPU SINNO et ah e/DE SILVA.
164—D. C. dalle, 10,353.Proctor's, Uen for costs onmoneydepositedin Courtfor theuseofhis
client—Claim for set-off by party depositing money—Civil Procedure
Code, 75 and 212—Taxation of bill of costs.
Defendant deposited inCoarta sumof Rs.200for theuseofthe
plaintiffs. Judgment was enteredfor plaintiffs for that sum, but
plaintiffs wer: ordered to pay defendant’s coats.
Held, that plaintiffs* proctor had a lien on the sum depositedfor his costs.
Middleton J.—Here the defendant seeks to set off his order. forcosts against the sumdecreed by theCourttobe paidbyhimto
the plaintiffs; and I* think section 212 preserves the plaintiffsproctor's, lien on that sum.
Aa regards the proctor’s coats not having, been taxed at the timethe motion was madeasserting therightoflien, Icannotsee
how this would prevent the right of lien arising, which apparentJjextends no further than for the amount of the coats taxed.
fJlHE facts are set out in the judgment.
Bawa, for the plaintiffs, appellants.—The money was deposited in
Court to plaintiffs' credit. The ninth appellant, who is the proctor
i L. R. 3 Tr. 299.
( 52 )
1911.for the plaintiffs, has alien over thatsum for costsdue to him
, —r.from the plaintiffs. SeeCivil ProcedureCode, sections75 and 212,
Appu Smnor •
v. De Silva and Perera v. Perera.1
A solicitor who succeeds in an action has a lien over the amountrecovered; the lien may be compared to salvage over propertyrecovered at sea. See Charlton v. Charlton. *
[Their Lordships stopped counsel and called up9n the respondent.]
. A. St. V. Jayewardene, for the defendant, respondent.—The lienthat is now claimed does not exist under the Roman-Dutch law.See Thomson’8 Institutes, vol. I., p. 556; Pereira’s Laws of Ceylon,vol. II., p. 486; 2 Maas. 254.
Seotions 75 and 212 do not apply toa case of thiskind. They
contemplate a decree forcosts in favourof the client of the proctor
claiming the lien. In the present case there is no such decree, .Perera v. Perera1 also does not apply to the facts of this case.
The ninth appellant must bring a separate action to recoverhis costs, and the procedure laid down in section 215 of the CivilProcedure Code must be followed.
The bill of costs was not taxed at the time when the motion wasmade to have the lien made a matter of record; no lien can existwith respect to an unascertained sum.
Bawa, in reply.—It will be unreasonable to hold that becausethe plaintiffs have been denied their costs that their proctor has nolien over the money recovered by him.
Sections 75 and 212 do not create the lien; they only, recognizethe lien. [Lascelles, C.J.—If the money was in the proctor’s handsthere may be a'lien, but if the money was deposited -in Court,would the proctor have a lien?] ' The money was won for theplaintiffs by the proctor. The principle of salvage applies to aproctor who has succeeded in an action.
Sections 75 and 212 have not been carefully worded. See theobservations of Hutchinson C.J. in Perera v. Perera.1
The words “ under the decree ” in the sections have no specialmeaning, and may be disregarded.
Section 215 only indicates the manner of proceeding to recovercosts; it does not affect the lien.
The Roman-Dutch law as to a proctor's lien was not adopted inCeylon. It is the English law that applies.
The fact that the bill of costs was not taxed at the time when themotion was made does not matter. Counsel cited De Bay v. Griffin;3Greer v. Young;* In re Sufjield;s Pereira's Laws of Ceylon, vol. II.;p. 417.
Cur. adv. vult.
> (1907) 11 N. L. R. 1.3 (1875) 2 L. R. Ch. 891.
» (1883) 52 L. J. Ch. 971.* 24 Ch. D. 687.
* (1858) 80 Q. B. D. S9S.
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November 29, 1911. Lascellbs C.J.—1911.
This appeal raises the question whether the plaintiffs* proctor is Appu Sinnoentitled to a lien lor the costs on a sum paid into Court by thedefendant in discharge of the claim, in a* case where the plaintiffswere ordered to pay the defendant's costs.
On December 21, 1910, the defendant deposited Bs. 200 in Courtfor the use of the plaintiffs. Judgment for that amount was enteredin favour of the plaintiffs on March 15, 1911, the plaintiffs beingordered to pay the defendant's costs. The defendant on May 4 gothis bill of costs taxed, and on May 9 the ninth appellant, who isthe plaintiffs' proctor, moved the Court that his lien on the sum ofBs. 200 be made matter of record.
Some delay took place in taxing the ninth appellant’s bill of costs,and before taxation the defendant on July 17 seized the sum ofBs. 200 under Efs writ. When the matter came on for discussion,the learned District Judge decided adversely to the lien claimed bythe ninth appellant, and the present appeal is against this decision.
It appears to be at least doubtful whether the Boman-Dutch lawwould allow the lien for which the appellant contends. Accordingto Maasdorp (9 Maasdorp 254), an attorney or conveyancer hasa lien on documents in his possession for the costs of professionalservices rendered by him or expenses incurred by him upon or withrespect to such documents,- but it does not appear to be settledthat a legal practitioner has such a lien for his costs upon theamount of a' judgment obtained by him in favour of his client.
The appellants' case thus depends upon the view that the CivilProcedure Code has by implication introduced the principle of theEnglish common law with regard to a solicitor's lien for costs ratherthan upon any principle of_ the Boman-Dutch law.
The only sections of .the (3ivil Procedure Code which bear bn thequestion are sections 75 (e) and 212. These sections run as follows.
Section 75 (e):“ When the defendant sets up a claim in reconven-
tion, the answer must contain a plain and a concise statement of thefacts constituting the ground of such claim which the defendant makesin reconvention. A claim in reconvention duly set* up in the answershall have the same effect as a plaint in a cross action so as to enablethe Court to pronounce a final judgment in the same action both onthe original and on the cross claim; but it shall not affect the lienupon the amount decreed of any proctor in respect of the costspayable to him under the decree." ■ Section 212: " The Court maydirect that the costs payable to one party by another shall be set offagainst a sum which is admitted or is found in the action to be duefrom the former to the latter. But such direction shall not affectthe lien upon the amount decreed of any proctor in respect of thecosts payable to him under the decree. "
The construction of these sections is not free from difficulty,as decrees, under the practice which prevails in Ceylon, do not
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Appu Sitmot. De Silva
specifically direct the payment of costs to the proctor. Thedifficulty appears to arise from the phraseology of section 111 of theIndian Civil Procedure Code of 1882 having been adopted withoutthe modification required by the procedure in force in Ceylon.
In Perera v. Perera1 Hutchinson C.J., commenting on thesesections, observed:“ What are the costs payable to him under the
decree? The decree never orders any costs to be paid to theproctor. I do not see what the phrase can mean, unless it meanssuch 6F~the costs which the other party is ordered to pay to th.eproctor’s client, as the proctor is entitled to recover from his client.These enactments appear to me to assume that for those costs theproctor has a lien or charge on the amount decreed, and to enact thatthat charge shall not be affected by a claim in reconvention or a set-off. I do not see how any effect can be given to these enactmentswithout holding that a proctor ha3 such a charge. I therefore holdthat a proctor has such a charge. ”
For the appellants it is contended that it is a necessary inferencefrom the language of sections 7$ and 212 that the principles of theEnglish common law as embodied in the Solicitors’ Act (23-24 Viet,c. 127) have been recognized and incorporated into our system, andthat the proctor has a pharge in the nature of salvage upon propertyrecovered or preserved by him, and we were referred to Greer v.Young,2 In re Suffield,3 Charlton v. Charlton,* and other cases citedin the Annual Practice.
It is true that sections 75 and 212 assume the existence of the liencontended for only as regards costs directed to be paid by the decree;But assuming, as we are bound by the decision in Perera v. Perera%to assume,- that a proctor possesses a lien on the fruits of litigationfor costs decreed to be paid to his client, can a distinction be drawnbetween costs which the opposing proctor is ordered to pay to theproctor’s client and' costs which the proctor is entitled to havetaxed and to recover from his own client? It seems to me that sucha distinction would be artificial and unfair. The lien which isrecognized, not created, by sections 75 and 212 can hardly be anyother than the lien which is allowed by English law', a right depend-ing upon the principle that a proctor is entitled to a charge uponproperty recovered or preserved when meritorious services of theproctor result in such recovery or preservation.
It is difficult to think of any good reason why a plaintiff’s .proctorshould be entitled to a charge for his costs when the action succeeds’’and the Court orders the defendant to pay the plaintiff’s costs, butthat he should not have such a charge if the defendant brings intoCourt the amount claimed and so saves an order as to costs. Ineither case the principle of salvage is involved, for it is by reason ofthe proctor’s service that the money has been made available. I
» (1907) 11 N. L. B. 1.» (1888) 20 Q. B. D. 693.
2 2i Ch. Die. 646. .*52 U. Ch. 971.
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■would set aside the order of the District Judge, and declare that the 1W1«plaintiffs’ proctor has a charge, to the extent of his taxed costs, on the 1.40^^money brought into Court by the defendant. The appellants are Q-J-•entitled to the costs of this appeal and to costs of the application Appu Sinnoin the District Court.De Silva
This was an appeal against an order of the District Judge holdingthat the plaintiffs’ proctor had no lien for costs as against his clientsupon a sum of Es. 200 paid into Court by the defendant in satis-faction of the plaintiffs’ claim in the action, on the ground that theproctor had no lien against a creditor of his clients, and that theproctor’s bill had not been taxed.
In the action itself the plaintiffs had been given judgment for theEs. 200 paid into Court, but bad been ordered to pay the defendant’scosts, and the defendant’s proctor had taxed his bill and moved for acharging order on the money in Court, and halving subsequentlyobtained a writ seized the money in Court, when the plaintiffsmoved for and obtained discussion of the question of their proctor’slien on the money in question, upon which the order appealed fromwas made. Subsequently to this order the plaintiffs’ proctor taxedhis costs.
The Eoman-Dutch law wpuld not appear to give a proctor a lienon the instruments of the cause—presumably documents—exceptfor expenses incurred on suoh documents. Voet 3, 1, 6; Thompson,vol. I., p. 536; Pereira, vol. II., p. 486.
The decision, however, in Anderson v. Loos1 and sections 75and 212 of the Civil Procedure Code seem to recognize' theproctor’s lien for costs, both as regards documents and upon theamount of a decree, derived no doubt from the principles of theEnglish common law on this question, now embodied, as regards alien on a fund recovered, in the Solicitors’ Act (1860), section 28.
Kay L.J.,.in Ex parte Collier, In re Taylor,a quotes Sir ThomasPluner as saying in 1820 (Worrall v. Johnson?) “ there are two kinds•of lien which a solicitor has for his bill of costs, one on the fundsrecovered and the other on the papers in hands ”… and the LordJustice added that the lien extends to all those items which areproperly included in the bill of costs, or, as the learned Lord Justiceamplified it, to all such claims against his client as the taxing masterlas a right to consider and if necessary moderate.
Ih Mackenzie v. Macintosh* ft was held that a solicitor’s lien on a■fund recovered extends only to the costs of recovery of the particularfund, while a lien on documents may extend to all costs due to himfrom his client.
1 (1392) 2 C. L. R. 66.* (J89I) 1 Ch. 599.
a 2 Jacob <£ Walker 214, 218.4 84 Loco Times 706 (C. A.).
( se )1911.
AppuSinno«. De Silva
The wording of the two sections of our Code in regard to thequestion before us is unfortunate, but in my opinion the readingsuggested by Mr. Bawa is the correct one, i.e., that the words“ under the decree ” are both surplusage and out of place.
It is clear no costs are ever decreed to be paid to a proctor, andthat the words “ under the decree ” are unnecessary, even if theywere placed following the word “ decreed,” but in that position theydo no more than excessively emphasize and reiterate the precedingword.
I cannot see that the point raised by Mr. Jayewardene is appli-cable, i.e., that there must be a decree to create the lien. There is,in fact, a decree in the action itself to the effect that the sum broughtinto Court be paid by the defendant to the plaintiffs.
It must be remembered also that under the Bnglish law the rightof lien is said to be a charge in the nature of salvage (Greer v. Young')and applies to property of the proctor’s client, and sometimes even tomOney paid into Court for his benefit (Hunt v. Austin,x Emden v.Carte3). Under the decree in the action here the plaintiffs are heldentitled to have the Bs. 200 paid out of Court to them. I cannot,therefore, see' that it is proposed to extend the lien as against thecreditor of the plaintiffs, as the District Judge holds.
In Perera v. Percm* Hutchinson C.J. construed the words ofsections 75 and 212 as enacting that the proctor has a lien or chargeon the amount decreed, and that that charge was not to be affectedby a claim in reconvention or a set-off, and that no effect could begiven to the enactment unless it was held a proctor had such acharge. With his view not only do I entirely agree, but we arebound by it.
Here the defendant seeks to set off his order for costs against theplaintiffs as against the sum decreed by the Court to be. paid by himto the plaintiffs; and I think section 212 preserves the plaintiffs’’proctor’s lien on that sum.
As regards the proctor’s costs not having been taxed at the time,the motion was made asserting the right of lien, I cannot see howthis would prevent the right of lien arising, which apparentlyextends no further than for the amount of costs as taxed (De Bagv. Ghiffin3).
In my opinion the order of the District Judge should be set aside,and the motion of the plaintiffs and the proctor allowed to the extentof the taxed costs in this action for the recovery of the money nowin Court. The defendant must pay the costs of this appeal andof the discussion and order in the Court below.
1 24 Ch. Div. 455 at page 552.* 19 Ch. Div. 311.
* 9 Q. B. D. 598.* (1907) 11 N. L. R. 1.
(1875) L. R. 10 Ch. 291.
APPU SINNO et al. v. DE SILVA