114-NLR-NLR-V-16-TIMES-OF-CEYLON-CO.-v.LOW.pdf
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4M3.Present: Wood Benton A.C. J. and Ennis J.
TIMES OF CEYLON CO. v. LOW.
361—C. B. Colombo, 36,111.
Proxy in favour of a proctor and hie two assistants not working in
partnership—Civil Procedure Code, s. 27.
A proxy in favour of several proctors trading in partnership isgood.
The appointment by a single proxy of two or more proctors notconstituting a firm and not standing in any professional relationshipto each other as the proctors of one and the same client is open toobjection. But there is no objection to the appointment of aproctor and one or more qualified .assistants in the same proxy.
The Supreme Court directed the proxy in this case to be amendedto show on the face of it that two out of the three proctors Wereassistants of the other.
rjlHE facts appear from the judgment.
Hayley, for plaintiffs, appellants.—The section of the Code relat-ing to the appointment of proctors is section 27. It does not makeany reference to proctors practising in partnership. Yet no objec-tion has ever been taken to a single proxy being granted to proctorspractising in partnership. The singular, “a proctor,” is used insection 27. But the singular includes the plural—see InterpretationOrdinance, The form in the Code (Form 7) indicates that severalproctors may be appointed by one proxy.
If partners may file a single proxy, there is nothing in principlewhich would make the present proxy bad. The fact that a seniorproctor instead of sharing the profits gives a monthly salary doesnot make any difference in principle.
The filing of proxies like the present, when there are severalCourts where the proctors may have to appear at almost the sametime, is an advantage, both from the point of view of the Court andthe practitioners.
The case relied on by the Commissioner of Bequests, Letchimananv. Christian,1 does not decide the question now before the Court.In that case one proctor appointed another proctor by proxy toappear for him.
Counsel also referred to Habibu Lebbe v. Punohi Etiena,2 Rossiterv. Elphinstone.s
Stanley Obeyesekere, C.C., amicus ounce.—If several proctors areallowed to file one proxy in their favour, the Government would be
1 (1898) 4 N. L. B. 823.2 (1894) 8 C. L. B. 84.
* (1881) S. C. C. 68.
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defrauded of the stamp revenue. [Ennis J.—How is the Govern- 1918.ment defrauded?] Counsel referred to section 6 of the Stamp Timesof(Ordinance. [Ennis J.—-But that refers to several distinct matters CeyUm Co. e.contained in one document. This is one appointment.] The ***°schedule to the Stamp Ordinance contemplates a single proctor, andprescribes a stamp duty for that. In the case of a partnership thereis only one person.
Each proctor may tax his costs when several appear for oneclient; there is nothing to prevent that. The responsibility wouldbe divided, and the Court cannot hold any one of them responsiblefor any act.
Hayley, in reply.—A firm of proctors are not a legal entity.
They are separate proctors in the eye of the law. All the objectionsurged will apply with equal force to a firm of proctors.
Cur. adv. vvlt.
October 16, 1913. Wood Bextok A.C.J.—
This case has been referred by my brother Ennis to a Bench oftwo Judges. It involves an important question of practice. Theplaintiffs-appellants, the Times of Ceylon Company, Limited, suethe defendant for the recovery of a sum of Es. 8.55 on a moneyclaim. Their plaint is signed by Mr. Hislop. Their proxy is madeout in the names of Mr. Osmund Tonks, Mr. B. W. Hislop, andMr. Hellard, “ Proctors of the Supreme Court of the Island ofCeylon, jointly and severally.’'’ The statement of account for-warded to the defendant is signed by Mr. Hellard. The learned* Commissioner of Bequests refused to accept the plaint; in thepresent form, and returned it to be amended within seven days bythe deletion of the names of two proctors, and the attachment ofthe proxy in favour of the. one who was retained. The plaintiffsappeal from this order.
The grounds of the decision are thus stated by the learnedCommissioner of Bequests:—
“ These three gentlemen do not constitute a firm, and theproxy itself purports to appoint them jointly andseverally. In fact, this is a modest invitation to theCourt to assist professional men to achieve the somewhatdifficult task of being present in three Courts, at once.The Supreme Court has already pointed out that therecan be only one proctor in a case. See 4 N. L. R. 323.”
The case referred to is that of Letchimanan v. Christian.1 In that,case Sir John Bonser C.J. held that no proctor is entitled to appearfor a client unless he has a proxy signed by such client, that therecannot be more than one proctor at the same time on the record*
i (1898) 4 N. L. R. 888.
mz.
Wood
Rhnton
A.C.J.
Times ofCeylon Co. vho10
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and that the form of proxy (No. 7) scheduled to the Civil ProcedureCode, in so far as it refers to one proctor appointing another proctorin a case, is not justified by section 27 of the Code. This ruling is,of course, based on the provision in section 27 that the appointmentof a proctor to make any appearance or application or do any acton behalf of a party in any Court shall be in writing signed by theclient. But it does not touch the question of the appointment ofmore than one qualified proctor by a single proxy. It is wellsettled (see Rossiter v. Elphinstone l) that a proxy in favour ofseveral proctors trading in partnership is good. There is noauthority in Ceylon for the appointment by a single proxy of twoor more proctors not constituting a firm, and not standing in anyprofessional relationship to each other, as the proctors of one andthe same client, and such an appointment would be open to twosubstantial objections, pointed out by Mr. Obeyesekere, CrownCounsel, who acted as amicus curies on the hearing of this appeal.In the first place, it would defraud the revenue of the stamp dueunder Schedule B, Part II., of Ordinance No. 22 of 1909, on everyappointment of a proctor; and in the next place, we should haveintroduced into an action several independent proctors, each ofwhom would be in a position to throw upon the other responsibilityfor any act which was called in question. I do not see, however,any substantial objection to the appointment of a proctor and oneor more qualified assistants in the same proxy. The proctor whoseassistants they are would remain responsible to the client and to theCourt for everything done by them under the proxy. The provisionin section 28 of the Civil Procedure Code, that, on the death of anyproctor appointed under section 27, no further proceeding shall betaken in the action against the party for whom , he appeared untilthirty days after notice to appoint another proctor has been givento that party, either personally or in such other manner as theCourt directs, would not, in my opinion, give rise to any difficultyin this matter. If the death even of one of several partners acts aBa revocation of a proxy granted in favour of a firm, the death ofthe principal proctor, where a proxy was granted in favour of aproctor and one or more of his assistants, would have a similareffect. No form of proxy is prescribed by the’ text of the CivilProcedure Code itself, although Form No. 7 appears in the schedule.I see no reason why the plaint with which we are here concernedshould not be accepted on the proxy being amended so as to readas follows:—
“ We, the Times of Ceylon Company, Limited, have nominated,constituted, and appointed, and do hereby nominate,,constitute, and appoint, Osmund Tonks and his Assistants'Robert Hislop and John Alexander Hellard, Proctors ofthe Honourable the Supreme Court,” Ac.
* {1881) 4 S. C. C. 68.
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I would send the case back to the Court of Bequests with adirection that the plaint, account, and proxy should be accepted onthe proxy being amended in that sense.
It is eminently desirable that nothing should be done to diminishthe professional responsibility of proctors to their clients and the .Court, but where that responsibility is fully safeguarded there is noneed to refuse formal recognition to a relaxation of the existingpractice, which will be of the utmost convenience both to proctorsand to their clients.
1918.
Wood
Bbstok
A.C.J.
Times of
Ceylon Co. «.Low
Ennis J.—
This is an appeal from an order of the Court of Bequests, Colombo,returning a plaint for amendment upon refusing to accept a proxyin favour of three proctors on the ground that there can be onlyOne proctor in a case. The second- and third-named proctors in theproxy are assistants to, and practice exclusively for and on behalfof their principal, Osmund Tonks, the first-named proctor, at theaddress given for service of process.
I do not see any legal or practical objection to such a proxy.The object of these proxies is to show the Court that the proctorappearing for a party is duly authorized by that party. There isno express provision in the Code limiting the number of proctorsto be appointed on a proxy. Section 24 provides that any applica-tion, act, or thing to be made or done by a party may be made ordone by a proctor duly authorized.
Under the proxy before us every one of the three proctorsmentioned is “ duly authorized,’* and any one of them could makeapplication, &c., for the party be represents without a contraventionof the terms of this section.
The practice in Ceylon already allows the members of a partnershipof prdptors to be jointly and severally appointed on a proxy. Themembers of such a partnership are associated in the partnershipby their own agreement, and in the case by the authority of theirclient. In the proxy before us the three proctors named areassociated as principal and assistants by their own agreement, andthey are associated in the case by the authority of their client. Itseems to me that if there is no practical objection in the case ofpartners, there can be none in the present case.
I concur with the order proposed by my brother the ActingChief Justice.
Sent bach.
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