086-NLR-NLR-V-62-MOHIDEEN-ALI-Petitioner-and-HASSIM-Respondent.pdf
BASNAYAEXE, C.T.—JHohideen Alt v. Hassim
457
1960Present :Basnayake, C.J., and Sansoni, J.
MOHIDEEN ALT, Petitioner, and HASSIM, Respondent
S. C. 524—In the matter of an Application for Restitutio in Integrum in
C. Colombo 43561JM
Compromise, of action—Counsel—Proxy given to Proctor—Absence therein of authority
to consent to judgment—Right of Counsel, nevertheless, to consent to judgment—
Civil Procedure Code, ss. 24, 27.
On 30th April 1959 Counsel who appeared for the defendant obtained apostponement on agreeing that if the costs of the day were not pre paid to theother side before 10 a.rn. on the next trial date judgment should be enteredfor the plaintiff as prayed for. Although the proxy given by the defendantto his Proctor did not give the Proctor authority to consent to judgment in tormsof Form ??o. 7 of the Schedule to the Civil Procedure Code, the client, who wasin Court, raised no objection when the undertaking and consent to judgmentwere given by Counsel. Nor did the Proctor take any steps to repudiate theundertaking.
On the next trial date, evidence was led for the plaintiff that costs wore notpaid as agreed. The evidence was not contradicted by the defendant. There-upon judgment was entered in favour of the plaintiff.
Xt was contended in appeal that the authority of the Proctor of a party to asuit v»as limited by tho terms of the instrument of appointment and that assection 24 of the Civil Procedure Code provided that an. Advocate instructedby a Proctor represents the Proctor in Court the Advocate’s authority couldnever be greater than that given to the Proctor.
Held, that, despite the restricted torms of the proxy, tho plaintiff was entitledto judgment in his favour in terms of the consent given by the defendant’sCounsel. An extension of the written authority contained in the proxy couldbe given orally or be inferred from the client’s conduct.
Application for restitutio in integrum in respect of an actioninstituted in the District Court, Colombo.
H. V. Per era, Q.C., with P. Manikkavasagar, for Defendant-Petitioner.
II. W. Jayewardene, Q.C., with M. T. M. Sivardeen, for Plaintiff-Respondent.
Cur. adv: vult.
December 19, 1960. Basnayake, C.J.—
. The only question for decision on this application is whether a partyto a civil suit is bound by the action of his counsel in consenting to judg-ment against Kim on his failure to pay the agreed costs of the opposing20—lxii
2J. 2f. H. 15S4Q—2,033 (3/61)
458
BASNAYAKJE, C.J.—Mohideen AH v. Hassim
party which he has undertaken to pay before a stated time on a stated dayon condition a postponement is granted to him to enable him to summona material witness.
Shortly the facts are as follows :—The petitioner (hereinafter referredto as the defendant) is the defendant in an action for damages for injuriessuffered by the plaintiff, a minor. When the case was taken up fortrial on the 30th April 1959 the defendant’s counsel applied for a post-ponement of the trial. The relative minute in the record reads :
“ Mr. Subramaniam begs for a date. He says that a material witnessfor him could not be summoned for today as his name was ascertainedfrom the Police only today. He consents to pre-pay the costs of theother side, which is agreed on at Rs. 150/-.
It is also agreed that if costs are not paid before 10 a.m. on thetrial date (15/10/59) judgment should be entered for plaintiff as prayedfor.
Trial is refixed for 15/10/59.”
When the case was taken up on 15th October 1959 counsel for theplaintiff stated that the costs had not been paid and moved for judgmentin terms of the order of 30th April 1959. The relative minute reads :
“Mr. Hassan says that the pre-payment order made on the last trialdate 30.4.59 has not been carried out and that costs had not beenpaid as agreed. He moves that judgment be entered for plaintiff asagreed on on that date.
Mr. Subramaniam says that he is unable to admit this as his proctoris absent today. He moves for an adjournment.
Mr. Hassan objects and says he is able to prove that the costs havenot been paid. He points to the fact that the defendant is also presentand would himself know whether or not he paid the costs. ”
Thereafter the plaintiff’s counsel called evidence. He first called hisproctor who stated that on 30th April 1959 the defendant moved for adate and consented to pre-pay Es. 150 before 10 a.m. oh 15th October1959, and that the costs had not been paid and that it was also agreedthat judgment should be entered as prayed for by the plaintiff. Thenext friend gave evidence to state that the defendant agreed to pre-payRs. 150 before 10 a.m. on 15th October 1959 but no costs had been paideither by the defendant or by his Proctor. Mr. Subramaniam then statedthat he was not in a position to call any witnesses. The learned Judgethen made the following order:—
“ On the last trial date, 30/4/59, the defendent obtained a dateconsenting to pre-pay costs agreed on at Rs. 150 before 10 a.m. today.He also agreed that judgment should be entered for the plaintiff asprayed for if he failed to pay these costs. Mr. Sheriff* proctor for tho
BASNAYAJCE, C-J.—Mohideen A.li v. Hassim
459
plaintiff, and the plaintiff’s next friend, have given evidence on oaththat these costs have not been paid as agreed. I accept this evidencewhich is not contradicted. In terms of the order of 30/4/59 I enterjudgment for plaintiff as prayed:lfor. ”
Learned counsel for the defendant submits that as the defendant hadnot, by the instrument appointing him, given the proctor authority toconsent to judgment, counsel appearing for him had no authority to do so.Learned counsel invited our attention to sections 24 and 27 of the CivilProcedure Code and the form of appointment of a proctor in the Scheduleto the Code. He submitted that the authority of the proctor of a partyto a suit was limited by the terms of the instrument of appointment andthat as section *24 provided that an advocate instructed by a proctorrepresents the proctor in Court the advocate’s authority could never begreater than that given to the proctor. He compared the forms ofappointment of a proctor in the Schedule to the Code with the instrumentof appointment in the instant case and pointed out that the words “ andconsent to a judgment being entered against …. as to ….
said Proctor shall appear fit and proper ” in the form in the Scheduledid not appear in the instrument of appointment given by the petitioner,and that the proctor had therefore no authority to consent to judgment.
Although the Schedule to the Code contains a form of appointmentgiving specific authority to the proctor as in the case of a power of attorney,section 27 does not contemplate such an appointment. It states :
The appointment of a proctor to make any appearance or applica-
tion, or do any act as aforesaid, shall be in writing signed by theclient, and shall be filed in court ; and every such appointmentshall contain an address at which service of any process whichunder the provisions of this Chapter may be served on a proctor,instead of the party whom he represents, may be made.
When so filed, it shall be in force until revoked 'with the leave of
Court and after notice to the proctor by a writing signed by theclient and filed in court.
An authority granted by a lay client to his Proctor in writing (commonlyknown as a Proxy) undoubtedly limits the Proctor’s authority. Hecannot go counter to it; but I do not think that it can be said that thewriting is exhaustive of his powers nor is the lay client precluded fromenlarging the scope of the powers granted by the writing either expresslyor impliedly. Such extension of the proctor’s authority may be givenorally or may be inferred from the lay client’s conduct. In the instantcase the lay client was in Court both when the undertaking was givenand when his counsel consented to judgment. He chose not to giveevidence when the plaintiff did so. The affidavit of the plaintiff’s Proctorshows that he called at the office of. the defendant’s Proctor on threeoccasions and requested him to forward a cheque for Rs. 150 from hisclient as costs in compliance with the order of 30th April 1959 and the
460
SANSOTsTT, J.—Mohideen Ali v. flassim
defendant’s Proctor’s clerk informed him that his employer had beeninformed of his visits to his office and that a cheque would be sent.There is no counter affidavit from the defendant’s Proctor and X see noreason to reject the statements made by the plaintiff’s Proctor. TheProctor knew about the undertaking but took no steps to repudiate it.It must therefore be presumed that the Advocate acted not only with theauthority of the lay client who was present in Court and who accordingto the plaintiff’s affidavit was consulted by his counsel but also that of hisProctor who did nothing to repudiate his counsel’s action before the nextdate on the ground that he had acted in excess of his authority and outsidehis instructions. In the instant case even if the writing is regarded asexhaustive—and I have already stated above it is not—the petitionerand his proctor by their conduct must be taken to have ratified theiradvocate’s action.
The application is refused with costs.
Sansoni, J.—
I cannot accej>t the interpretation which Mr. H. V. Pcrera seeks to giveto section 24 of the Code, which says that an advocate instructed by aproctor “ for this purpose ” represents the proctor in Court. I find itimpossible to say what the words “ for this purpose ” mean in the context.
I think this sentence in the section was only intended to say that the advo-cate and not the proctor should conduct the case of his client in Court.
X do not accept the proposition that the advocate, by reason of this section,is merely the agent of the proctor who has retained him to appear. Thelimitation which Mr. Perera seeks to impose on an advocate’s authorityis something quite revolutionary, and it is opposed to a long line ofdecisions in which the powers of counsel have been considered and laiddown.
This Court has always accepted the view that an advocate has the sameauthority as a counsel who appears in the English Courts. In Mathews v.Munster 1, Lord Esher, M.R., said that when a client^ has requestedcounsel to act as his advocate “ he thereby represents to the other sidethat counsel is to act for him in the usual course, and he must be bound bythat representation so long as it continues, so that a secret withdrawal ofauthority, unknown to the other side, would not affect the apparentauthority of counsel.” He also pointed out that while counsel has nopower over matters that are collateral to the suit, his consent to a verdictagainst his client is a matter within his authority. “ If the client is inCourt and desires that the case should go on and counsel refuses, if afterthat he does not withdraw his authority to counsel to act for him, andacquaint the other side with this, he must be taken to have agreed to thecourse proposed.”
1 {1S87) 20 Q. B. D. 141.
KanapcUhipillai v. Subramaniam
4GI
In my view, when an advocate is retained and briefed by a proctorhe has complete authority over the action. The manner of conductingit, whether he should abandon it or not, whether he should enter into acompromise, are all matters withSn his discretion. He is not the meremouthpiece either of his client or of his proctor. His authority is a generalone, which includes the power to compromise or to make an admission.If any limitation is placed on his authority, it must be communicated tothe other side in order to be effective. “ He has the power to actwithout asking his client what he shall do. He has no master, but he isthe conductor and regulator of the whole thing. 5,1 I do not think it isnecessary to cite further authority, for these propositions are too wellknown.
There is no merit in the present application, because when the order of30th April, 1959, was made, the defendant was present in Court, and thisis an added circumstance which renders the agreement entered into onthat day binding on him. I agree that the application should be refusedwith costs.
Application refused.