( 209 )
PERERA v. WHITE.D. C., Colombo, 14,093.
Advocate and client—Retainer and fee—Application to Supreme Court to appor-tion counsel to advise applicant in conduct of his case—Refusal ofcounsel to lake up a case.
A retainer given to an advocate in a case means that he is to holdhimself ready to accept a brief with a fee.
If the retainer is not followed by a brief and fee, the counsel is atliberty to appear on the other side upon retainer and fee.
An advocate cannot decline a fee capriciously.
If a party to a litigation should retain the whole roll of advocates, soas to leave his opponent without the advice and aid of counsel, itwould amount to a public scandal, and the Supreme Court would feeljustified in interfering to apportion advocates to such party.
But where a plaintiff has retained several advocates, and there areother members of the bar of standing and position who have not beenapplied to by the defendant,—
Held, on motion made by the defendant to apportion counsel to advisehim in his defence, that the Supreme Court had no reason to interfere.
N the 10th October, 1900, Elliott appeared for the defendant,Mr. Herbert White, the Acting Mayor and Chairman of the
Municipal Council of Colombo, against whom an action for allegedlibel had been brought by Mr. Charles Perera, a Member of theMunicipal Council of Colombo, and moved the Supreme Court, inthe circumstances set forth in a petition of the defendant sup-ported by an affidavit of his proctor, to apportion to the defendantadvocates to advise him in his defence in the said case.
It appeared that the plaintiff’s action was for the recovery ofRs. 30,000 as damages for libel said to be contained in certainmemoranda written by the defendant in reference to mattersconnected with the Municipal Council of Colombo, of which the
( 21Q )
1900. petitioner was Acting Chairman; that summons had been servedOctober 10. on him to appear before the District Court of Colombo and answerthe plaint oh the 10th October, 1900; that the petitioner hadappointed the firm of Messrs. Julius & Creasy, Proctors, to act foehim in the said action, and had instructed them to engage advo-cates of merit and experience to advise, plead for, and supporthim in his defence to the said action; that Mr. Frank Liesching,a partner of the firm of Julius & Creasy, sought to engage theservices of the Acting Attorney-General, Mr. H. L. Wendt, onbehalf of the petitioner, but was informed that as a Law Officerof the Crown he thought it best not to act for either plaintiff ordefendant, and that he had already informed the plaintiff so; thatin view of the above expression of opinion on the part of theAttorney-General, Mr. Liesching did hot think it advisable “ to“ apply to any of the Crown Counsel, but sought to engage the“ services of Advocates J. R. Weinman,Walter Pereira,B.W.Bawa,“ and H. J. C. Pereira, but they, one and all, informed me ”(Mr. Liesching averred in 'his affidavit) “ that they had been“ consulted as to the above action by the said Charles Perera, and
did not think that under these circumstances they could act for“ the said Herbert White; that the plaint in the said action has been“ settled by Advocates T. Sampayo and James van Langenberg,“ and Advocates R. H. Morgan, A. de A. Seneviratne, James Peris,“ and H. Jayawardena are all Members of the Colombo Municipal“ Council, and they feel that they cannot under the circumstances“ fittingly act as counsel for either party, especially as it may be“ necessary to call upon one Or more of them to give evidence in“ this action. The advocates named or referred to above are, 1“ believe, all those now regularly practising in the Colombo Courts“ on their civil side, who are generally considered leading members“ of the bar. I verily believe that if the help of one or more of“ the said advocates consulted by the said Charles Perera is not“ apportioned to the said Herbert White, the said Herbert White“ will be prejudiced in liis defence of the said action by reason of“ his being unable to secure the services of an advocate of skill, age,“ and experience to advise and appear for him in the said action.“ The said Herbert White has accordingly instructed me to apply“ to the presiding Judges of the Ceylon Courts to apportion to him" the help of two of the advocates above referred to.”
Elliott, for applicant.—My motion that defendant be appor-tioned counsel to help him in his defence before the DistrictCourt of Colombo is justified by our Common Law practice asdeclared by Voe.t in his Commentary on the Pandects (3. 1. 11.).The counsel named in the affidavit have all declined to appear
( 211 >
for reasons stated therein. [Bonser, C.J.—But did yourproctor tender them a retainer and fee?] He ashed them whetherthey would appear, and they declined. [Bonser, C.J.—But that isnot giving counsel a retainer. The ordinary practice is for asolicitor or proctor to send to the chambers of the barrister oradvocate a retainer, which means that counsel is to hold him-self ready to accept a brief with a fee.] What happened wasthis: our proctor asked each of them, ” Will you appear on behalfof the defendant? ” and they replied, “ We have been alreadyretained by the plaintiff.” [Bonser, C.J.—If the retainer is notfollowed by a brief and fee, the counsel is free to appear for theother side upon retainer and fee. It will be time enough toconsider your motion when a retainer and fee have been actuallyoffered to the counsel named in the affidavit and refused.] Theyhave constructively refused the retainer and fee. [Bonser,C.J.—An advocate is not at liberty to decline a fee capriciously.Have you served notice on the advocates whose malpractice yousuggest?] I do not say there has been any malpractice. Ionly say that, on the strength of this affidavit, we are unableto secure the services of any leading member of the bar. TheActing Attorney-General, on behalf of himself and his brotherofficers, think that they had better not appear. [Bonser, C.J.—That is his own opinion only. I see no reason whatever why theLaw Officers of the Crown should not appear in this case. Assum-ing that it is desirable for the Attorney-General to keep himselffree to give advice to the Government, you have not applied tothe other Law Officer of the Crown, who is the Solicitor-General,nor to any of the Crown Counsel.] We assumed that they stoodin the same category as the Attorney-General. [Bonser, C.J.—I see there are about thirty-two advocates on our roll.] That istrue, but without casting any slur upon my brethren we desire tohave the services of a senior member or two. [Bonser, C.J.—In this country is there any difference between seniors andjuniors?] Unlike in England, where the distinction betweenseniors and juniors rests on the practice of taking silk, Voet reststhe distinction upon age, merit, and experience. [Moncreiff, J.—“ Junior ” is a man who takes junior briefs, and a “ senior ” is onewho takes leading briefs. In the Scotch Bar there is no takingof silk.] What we want is an advocate who takes leading busi-ness. We cannot get the services of one such. [Bonser, C.J.—.It seems to me you are entirely out of court, because you havenot applied to the Solicitor-General or to the Crown Counsel,nor offered a retainer and fee to the other counsel you havenamed. I cannot understand the reason given by some of them
( 212 )
1900. that, because they have been consulted by the other side, theyOctober 10. cannot appear for your client. If no fee was given to them atthe time of consultation, it would not be a breach of etiquette toaccept a fee proffered for the other side.] If I am to take yourLordship’s opinion as .a ruling on the etiquette of the profession,it will relieve me of a considerable difficulty.
This is a mere speculative or, I may say, a sporting application-What the real object of it is I am unable to say, but I am deter-mined that this Court shall not be made a theatre in which personsdesirous of becoming so may make themselves (notorious. Ifthey wish for this, they have the columns of the public pressopen to them, which will afford them ample opportunity for anysuch purpose.
The application is one, so far as I know, without a precedent inthis Island. It is said that the plaintiff has engaged a certainnumber of advocates, whose names are mentioned, who are allrespectable men in respectable practice to appear for him, andthat others who are equally respectable have declined to appearfor the plaintiff because they are afraid that they may in someway or other be involved in litigation. It is said that the ActingAttorney-General thought it advisable not to act for either partyin view of his being a Law Officer of the Crown. I do not quitesee how his being a Law Officer of the Crown is an impedimentto his appearing in this case. But he is not the only Law Officerof the Crown. It may be that it is desirable that one of themshould be free to take an unprejudiced view so as to be able toadvice the Government, but there is another Law Officer of theCrown and it does not appear that any application was made tohim or to any of the Crown Counsel. I notice, too, that there areother members of the bar of standing and position, who have notbeen applied to by the defendant, and under these circumstancesI do not see that there is any foundation whatever for thisapplication, even if it had been quite clear that this Court had theright to interfere. I do not say that it lias no right to interfere.If a party to litigation should retain the whole roll of the advo-catesr it would amount to. a public scandal and might occasioninjustice. In that case, this Court might feel justified in interfering,but no such case has been shown to have arisen here. There area number of competent advocates who have not been applied to,and there is no reason that I know of why these gentlemen shouldnot take up the case.
Moncueiff, J.—I am of the same opinion.
PEEEBA v. WHITE