( 882 )
Present: Bertram C.J. and De Sampayo J.
In re THE ESTATE OP MALACHAIS
84—D. C. (Inty.) Colombo, 5,416.
Proctor a party—Privilege to instruct counsel himself—Proxy to anotherproctor not necessary—Testamentary actions.
A proctor who is a party to an action may himself instructcounsel to appear on his, behalf, and it is not necessary for him togive a proxy to another proctor for the purpose of instructingcounsel.
facts appear from the judgment.
Hayley (with him Croos-Dabrera), for appellant.—The DistrictJudge was not dealing with Mr. A as an officer of the Court, buthad called upon him to account for moneys received by him asproctor of the petitioner. As the inquiry was in open Court, Mr. Awas entitled, as of right, to be represented by counsel. It was notnecessary for Mr. A to grant a proxy in favour of another proctor,but he was entitled to instruct the counsel himself. Whenever aman is entitled to appear in person, he is entitled to be heard by anagent. The recognized agent to appear in Court is either a proctoror an advocate (section 24, Civil Procedure Code).
( 888 )
A solicitor who is a party to an action appearing for himselfis entitled to tax professional costs and not merely out-of-pocketexpenses. The London Scottish Benefit Sooiety v. Chorley et al,1affirmed in appeal in 13 Q. B. D. 872.
“ All proctors, attorneys, and solicitors are privileged to sue andbe sued in their respective Courts in person …. A proctorof the District Court is not obliged to employ another proctor oradvocate to conduct his suit therein, or to sign his petition of appealhis own signature, with the addition ‘ proctor of the District Court,'being a sufficient compliance with the rule.” Silva v. CoppeTamby. 3 The rule referred to is in the same terms as section 755,Civil Procedure Code.
It is only a matter of etiquette and not a rule of law that a counselshould be instructed by a solicitor. A proxy is required merely todenote that the proctor has authority to appear for his client.
A St. V. Jaytmardene, for the Council of Advocates.—Wherethe appellant is an advocate or proctor, he may draw and sign thepetition of appeal himself. Perera v. Perera.3 Also cited (1911)1 K. B. 87.
January 13, 1920. Bertram C.J.—
This is an appeal from an order of one of the learned DistrictJudges of the District Court of Colombo giving certain directions■ to a proctor who was appearing in a testamentary action on behalfof the petitioner, and who in that capacity and as an officer of theCourt had given a personal undertaking that all moneys collectedby hinn on behalf of the petitioner should be paid into Court.
The learned Judge appears to have scrutinized the record and tohave observed certain matters which he thought required comment.In.so doing I think that the learned Judge was exercising a- verycommendable vigilance. It is much to be desired that DistrictCourt Judges of their own motion should exercise as close as possiblea supervision over the proceedings in testamentary actions. It isvery difficult for the Judge of a busy Court to do this. It is greatlyto the advantage of the administration of justice when such acourse proves possible.
The learned Judge, having noted these points, made a certainminute in the proceedings, and had an order served upon theproctor requiring him to furnish certain information to the Court.It would also appear that an order was made calling upon him tomake payments into Court, but no formal notice was servedupon him of this order. Nevertheless, it does appear chat, whenthe matter came before the learned Judge .in Court, it was understood
i (1884) 12 Q. B. D. 452.* (1848) Bam. 1843-55, page 66.
(1907) 2 A. O. B. 142.
In re theEstate ofMalacfutis
( 884 )
In re theStatute «tMeMMte
by everybody concerned that both the matters, namely, the furnish-ing of information and the payment of money into Court, werebefore the learned Judge.
Tn these circumstances, the proctor, whose conduct had beenthe subject of comment, and who was called upon to take certainaction on the basis that he had been in a certain measure in default,desired to be heard by counsel. The learned Judge ruled that he.oould only be heard by counsel if he first of all gave a prosy toanother proctor, and if then this proctor instructed counsel tobe heard on behalf of his client..
The learned Judge appears to have considered that, by serving anotice upon the proctor, he had, in fact, made him an additionalparty to the case. I do not myBelf take tins view of the proceedings.I do not think that the proctor was a party. It appears to me thatthis was an incidental, proceeding arising in the course of a testa-mentary action, owing to the fact that the proctor, as an officer of theCourt, had given a personal undertaking. In such circumstancesoccasions may arise when the Court may think the conduct of itsoffioer requires criticism. In such a case it would always give anofficer an opportunity of being heard before forming a decision onthe subject, and it is obviously most reasonable and desirable thatin all such cases the proctor should be entitled to be representedby counsel. I do not say that, in all cases in which a Judge requiresan officer of the Court to furnish information, it would be reasonablefor the proctor to ask to be heard by counsel. But in any case inwhich his conduct is impugned, it seems to me, on the face of itdesirable that he should have this privilege.
The learned Judge, I am sure, fully appreciates this, but heformed an impression that it was necessary that a special proxyshould be signed. Whatever be the nature of the proceedings,whether a proctor was an additional party, or whether as I think,he was simply acting as an officer of the Court in a matter whichincidentally arose, I think the learned Judge has overlooked certainprevious authorities which deal with the matter. They are thecase of Silva v. Coppe Tamby,1 and of a more recent case in whichthat case has been followed, Perera v. Perera2
It is established by these cases that the proper practice or,at any rate, the legitimate practice is that if a proctor is himself aparty to any matter, he may himself draw and sign a petition ofappeal, and take any other formal step in the action without himselfaddressing a proxy to another proctor. If a proctor may so act,then it appears clear that he may also instruct counsel to appearon his behalf.
It is easy to see that in this case the proctor, who had veiy ghortnotice of the inquiry which was held by the learned Judge,. mayhave been embarrassed in being deprived of the assistance of counsel.
1 (1846) Bam. 1843-65, page 66.
* (1907) 2 A. O. B. 149.
( 885 )
I am by no means clear myself as to some of the items of theinquiry, and, I think, the right course is that the case should besent back to the District Judge, who will, in light of the authoritiespointed out to him, give an opportunity to the proctor to be repre-sented by counsel, and will conduct the inquiry afresh .with theassistance of counsel, who will then appear.
Db Sampayo J.— I agree.
Inn theEatate ojMalaehaia
In re THE ESTATE OF MALACHAIS