SOERTSZ A.J.—Karunaratne v. Velaiden.
1935Present: Soertsz A.J.
KARUNARATNE v. VELAIDEN.112—C. R. Negombo, 41,539.
Prescription—Action by proctor to recover fees—Three years from cause ofaction—Completion of services.
An action by a Proctor to recover his fees is prescribed in three yearsfrom the time of the completion of his services.
PPEAL from a judgment of the Commissioner of Requests, Negombo.
N. Nadarajah, for defendant, appellant.
Croos da Brera, for plaintiff, respondent.
Cur. adv. vult.
October 17, 1935. Soertsz A.J.—
This action was brought by the plaintiff-respondent to recover fromthe defendant a sum of Rs. 21 being the amount of costs taxed by theofficer of the Court as payable by the defendant to his proctor theplaintiff.
On the question of fact, I agree with the Commissioner that thedefence has not proved payment. But on the question of law, namely,whether the “ plaintiff’s claim is prescribed ”, I think the defendant isentitled to succeed. There is no evidence on the record to show that theplaintiff’s services as proctor were retained by the defendant on anyother than the usual terms, that is to say, on the terms that he wouldbe entitled to be paid when his work is completed.
In thid case, it is clear that in October, 1925, the plaintiff completedhis work for the defendant in connection with this case and a cause ofaction accrued to him to recover his dues. That cause of action enabledhim to bring an action for recovering the amount due to him beforethree years had elapsed from the date of its accrual. But this action wasnot instituted till November, 1934, over nine years after the cause ofaction had arisen. The contention that the cause of action arose onlyupon the taxing of the bill is not sound. In Coburn v. Colledge1 LordEsher M.R. said as follows:—“In the case of a person who is not aSolicitor, and who does work for another person at his request on theterms that he is to be paid for it, unless there is some special term to thecontrary, his right to payment arises as soon as the work is done ; andthereupon he can at once bring his action. Before any enactmentexisted with regard to actions by the Solicitors for their costs, a Solicitorstood in the same position as any other person who has done work foranother at his request, and could sue as soon as the work which he wasretained to do was finished without having delivered any signed bill ofcosts or waiting for any time after the delivery of such a bill. Then towhat extent does the Statute alter the right of the Solicitor in such a case,and does the alteration affect or alter the cause of action ? It takesaway, no doubt, the right of the Solicitor to bring an action directly the
1 (1897) 1 Q. B. 702.
SOERTSZ A.J.—Karunaratne v. Velaiden.
work is done, but it does not take away his right to payment for it,which is the cause of action. The Statute of Limitations itself does notaffect the right to payment, but only affects the procedure for enforcingit in the event of a dispute or refusal to pay. Similarly, I think thatsection 37 of the Solicitor’s Act deals not with the right of the Solicitor,but with the procedure to enforce that right
Now section 37 of the Solicitor’s Act is the same as section 215 of ourCode of Civil Procedure which enacts that “ no proctor shall commenceor maintain any action for the recovery of any fees …. untilthe expiration of one month or more after he shall have delivered untothe party charged therewith …. a bill of such fees subscribedby such proctor ”. That is the procedure to be taken to enforce the rightwhich accrued on the completion of that work, and the proctor has tofollow that procedure and sue for his fees within three years of the right
I would, therefore, allow the appeal. The defendant is entitled to thecosts of this appeal, but there will be no costs in the lower Court becausethe defendant failed on the issue of payment.
KARUNARATNE v. VELAIDEN