091-NLR-NLR-V-26-FERNANDO-v.-SINGORIS-APPU.pdf
Present : Bertram C. J. and Schneider J.
FERNANDO v. SINGORIS APPU.Application for restitutio in integrum in D. C. Colombo, 11,217.
Proctor and client—Authority to compromise an action—Limitation of
authority—Notice to other side—Restitutio in integrum—Mistake.
Where a proctor under the general authority given to him bya proxy enters into a compromise with regard to an action, such acompromise is binding, upon his client.
The fact that there is a limitation of that apparent authoritydoes not affect the authority to compromise, unless that limitationis communicated to the other side.
There is an exception to the principle enunciated above, viz.:If before the order is drawn up, the Court is satisfied that thereis some equitable* ground of relief such as mistake or surprise, theCourt will not direct the order to be drawn up, but will restorethe case to the list.
IMPLICATION by way of restitutio in integrum to set aside a
judgment entered by the District Judge of Colombo, basedupon a settlement concluded by proctors on both sides, on the groundthat the settlement was contrary to the instructions of the applicant.
( 470 )
It appears that, when the ease was called, the applicant owing to amistake of his proctor was Jiot present. A witness was called, butbefore the witness was examined, the proctor took the responsibilityof acting upon his general authority and coming to a settlementwith the other side.
Weerasuriya, in support.
G. P. Jayatilleke,.contra,
September 22, 1924. Bertram C.J.—
This is an application for restitutio in integrum. The applicationis made that we should set aside a judgment entered by the DistrictCourt based upon a settlement concluded by the proctors on bothsides on the ground that the settlement was contrary to theinstructions of the applicants The application was supported by anaffidavit in which it was stated, " That if the said order was made’ of consent it? is bad, inasmuch as my counsel and proctor wereacting without my instructions on the said day of trial andcontrary to the instructions given by me to. my proctor and setout in my answer. ” Afterwards, in a letter filed in the DistrictCourt by the applicant in person, this statement. was slightlyenlarged, and it- was there stated, “ That the settlement was madecontrary to my express instructions. 99 We can have little doubt,however, in view of the manner in which the instructions were*referred • to in the affidavit, that no question of a compromise hadbeen considered between the applicant and his proctor, that no specific-prohibition of a compromise had been communicated to him, andthat he had received no instructions that any compromise arrivedat must take a particular form.
The position, therefore, is this: That acting in pursuance ofthe general authority conveyed by his proxy the applicant’s proctordid make a settlement of the matter in dispute. The principlesgoverning this question, have been considered in a series of cases—see in particular Silva v. Fonseka, 1 Gunetilleke v. Orr, 2 andPonniahpillai v. Mootaiambij. 3 In this matter our Courts havefollowed the English decisions, the latest of which is Shepherdv. Jlobinson. 4 The most important of the earlier decisions areNeale v. Gordon Lennox 5 and Little v. Spreadtury. e
It appeal's to be clear that, inasmuch as the proctors on * bothsides have, in the absence of any evidence to the contrary, apparentauthority to compromise an action, if in pursuance of that apparentauthority they come to a, compromise, the clients are bound. ' Thefact that there is a limitationof that apparent authority does not
1 (7022) 23 N. L. R. 447.*4 (7020) 1 K. 3. 474.
* (7022) 4 C. L. R. 28.5 {1902) A. C. 465.
a (202*3) 7 Times L. R. 232.4 {1910) 2 K. 3. 658-
1924.
Fernando
v.
Singorie
Appn
( 471 )
affect the authority to compromise, unless that limitation iscommunicated to the other side. Attention was drawn to thisrequirement in the case of Ponniahpillai v. Mootatamby (supra),and it appears to have been overlooked in the case of jSwjic-tilleke v. Orr (supra). To this there is only one exception—if theorder has in fact not been drawn up, and if the Court is satisfiedthat there is some equitable ground such as mistake or surprise. Ifit appears for example, that counsel who settled the ca.se was underthe mistaken belief that his authority was unlimited, whereas in factit was limited—see Shepherd v. Robinson (supra), then the Court willnot direct the order to be drawn up, but will take steps to correctthe mistake and restore the case to the list. In the present case,no doubt, the order had been drawn up, and if it could be shownthat there was some mistake or other equitable ground for relief,the Court would be free to give it. But I am unable to see in thiscase that there has been established any such ground of relief.
It appears from the record that the case was called. The appli-cant owing to a mistake—a mistake which was alleged to be theproctor's—was not present. A witness was called but before thewitness was examined, the proctor took the responsibility of actingupon his general authority and coming to a settlement with theother side. In view of the decisions I have explained above, itseems clear that this Court cannot interfere with the settlement soArrived at.
1924,
BertramC. J.
Fernando
v.
Singoria
Appu
The only question that might be asked is whether a settlementwas in fact arrived at. Mr. Weerasooriya draws attention to theform of the learned Judge's- note. It .says: “ The following settle-ment is ordered." He suggests that the settlement was not infact agreed to by the parties, but that it was imposed on the partiesby the Court. I do not think that the learned Judge's words canjustly be so interpreted. When he said, “ the following settlementis ordered," he clearly must have meant that a settlement beingarrived at between the parties, an order was made in accordancewith the settlement. To rule otherwise would be to imput-i anarbitrary proceeding to the learned Judge which there, is nothingin his position or his judicial methods to justify us in imputingto him. I am of opinion, therefore, that the application must berefused with eosts.
Schneider J.—I agree.
Application refused.