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EX PARTE
MICHAEL ADBALLAL IN RE G. W. S. LADEPON THOMAS
WEST AFRICAN COURT OF APPEAL HOLDEN AT FREETOWN, SIERRA LEONE
17TH DAY OF OCTOBER, 1934
2PLR/1935/24 (WACA)
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OTHER CITATION(S)
2PLR/1935/24 (WACA)
(1934) II WACA PP. 114 – 117
LEX (1934) – II WACA PP. 114-117
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BEFORE THEIR LORDSHIPS:
DEANE, C.J., GOLD COAST
WEBBER, C.J., SIERRA LEONE
BUTLER HOYD, J.
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BETWEEN/MATTER
EX PARTE MICHAEL ADBALLAL — Plaintiff-Respondent
AND
IN RE G. W. S. LADEPON THOMAS — Defendant-Appellant
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REPRESENTATION
E. S. B. Betts — for the Appellant
C. J. Kempson — for the Respondent
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ISSUE(S) FROM THE CAUSE(S) OF ACTION
ETHICS — LEGAL PRACTITIONER:- Solicitor’s Lien for Costs on moneys recovered by him — Question of Relationship or otherwise between Agent Solicitor and Client of Principal Solicitor — Summary Power of Supreme Court of the Gambia to order payment over of money in his possession by a Solicitor to his client defined — How properly exercised
DEBTOR AND CREDITOR — LIEN:- Recovery of money retained by a legal practitioner in the exercise of lien — Person entitled to bring an application to recover same — Conditions precedent and procedure thereto — Relevant considerations
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MAIN JUDGMENT
The following judgment was delivered:-
DEANE, C.J., GOLD COAST.
In this matter the appellant-defendant in the Court below appealed against an order made by the Supreme Court of the Gambia ordering him to pay to the plaintiff the sum of £221 with costs of the application.
The application was made under the summary power of the Court to order a solicitor to pay over to his client all moneys which he has received for or on account of his client, and disobedience to it involves a liability to committal for default.
The facts of the case appear at length in the judgment of the Court below, and all that I need say is that, a judgment having been obtained in the West African Court of Appeal in Sierra Leone by the plaintiff (respondent), his solicitor, a Mr. Barlatt, requested the appellant a solicitor practising in the Gambia to take out a writ of fi fa in the Gambia for the purpose of realising the judgment. This he did but the matter never went to execution, the judgment debtor paying up the amount of the judgment which amounted to £4,420 9s. 0d. When this money came to the hands of the appellant he did not forward it to the appellant’s solicitor as he had been asked to do with a statement of his charges, but retained out of it £221 to which he alleged he was entitled as being five per cent of the amount recovered.
The respondent thereupon wrote to the appellant protesting against his keeping this £221, and suggested that he should either get his bill taxed or, failing that, should pay him the amount less £10, which he suggested was ample to cover the charges for his work.
The appellant wrote refusing his offer, and pointed out that he had been employed not by him but by Mr. Barlatt, and that he would render his account, if any was needed, to that gentleman.
The respondent thereupon applied for an order on the appellant to pay the whole amount of £221 into Court.
On the matter coming before the Court the appellant, while not abandoning his claim to be entitled to the £221 which he had retained, contended that no order in the summary jurisdiction could be made against him since he was not a solicitor of the respondent at the time he received the money, and further that he had a lien on this money in his own right, and through Mr. Barlatt, who claimed that he had not yet been paid.
Now it is clear that the summary jurisdiction of the Court to order a solicitor to pay money into Court can only be exercised if the following circumstances exist-26 Halsbury p. 837:
1. The person applying for the order must be the client of the solicitor — it follows that no order is made when the existence of the relationship of solicitor and client between the parties is denied by the applicant (Re Marshall (1857) 5 W.R. 200).
2. The relation of solicitor and client must have existed at the time when the money in question was received by the solicitor.
3. The money in question must have been received by the solicitor on behalf of the applicant, or in other words the solicitor must have been acting as solicitor for the applicant in the transaction in which he received it.
4. The money must have been received by the solicitor in his capacity as an officer of the Court.
5. The solicitor must have refused, without lawful excuse, to pay the money over to the client.
The first three of these requisites are various aspects of one proposition vix: that the relationship of client and solicitor must exist between the parties at the time of the transaction before an order can be made.
Now in this case it is quite clear that not only did the respondent allege that the appellant was not his solicitor but the learned trial Judge himself found that no such relation existed between himself and the appellant. On page 49 of his judgment he states:
“Mr. Ladepon Thomas was employed by Mr. Barlatt alone and must look to him only for his costs.”
The learned Judge, however, although he so held seems to have considered that he was justified by the case of Ex parte Edwards (1887) 8 Q.B.D. 264 in making the order. In that case, a town solicitor who had claimed to keep back certain moneys, which had come into his hands for Miss Edwards, in order to satisfy a general lien which he claimed to have against the country solicitor who had instructed him was ordered to pay over the money, but the circumstances under which the Court thought it had the power to make the order in that case differed considerably from the circumstances here.
In that case, the country solicitor ranged himself with the client, and it was admitted both by the country solicitor and the town solicitor that their costs in the particular matter had been paid in full. The Court held that the only defence of the town solicitor for retaining the money being that he had a general lien on it against the country solicitor and such defence being untenable at law the money must be paid. The point in fact is that the country solicitor, whose solicitor the town solicitor was and not strictly speaking Miss Edwards, was supporting Miss Edwards and therefore there being no valid excuse the order might be made.
The law however is clear that the relation of solicitor and client must exist, and here we have a definite denial by the plaintiff (respondent) that it does so exist, coupled with a finding by the Court to the same effect.
Under the fifth head again it is clear that the order will not be made if the solicitor has any lawful right to retain the money.
Now here it is clear on the authority of Dicas v. Stockley 173 Eng. Rep. 258, that a solicitor has a lien for his services upon moneys received by him by reason of those services. It follows that Mr. Thomas, who has not been paid for those services, cannot be ordered to pay the £221 into Court, thus defeating his lien.
Again Mr. Barlatt, the solicitor, has a lien upon the amount recovered for his services as a solicitor, and Mr. Thomas would not be justified in paying over the £221 after he had been informed by Mr. Barlatt of his claim, nor should the Court make any order depriving Mr. Barlatt of the benefit of such lien. From Mr. Barlatt’s evidence it is clear that the question of what sum he is entitled to for his services as solicitor of the plaintiff on the action is still pending, and until that question is settled the Court should not deprive Mr. Barlatt of any right he may have under his lien by ordering Mr. Thomas to pay over the money.’
The fact of the matter is that the procedure adopted in this case was quite inappropriate. The plaintiff’s remedy was not against Mr. Thomas, who was not his solicitor, but against Mr. Barlatt who was. He should have called upon Mr. Barlatt to tax his bill, and, that having been done, he could have applied to the Court to order summary payment of the amount, if any, remaining after payment of the taxed costs. Mr. Barlatt in turn would have a similar remedy against Mr. Thomas after his bill had been taxed.
That being the case the appeal must be allowed and the order made be set aside. When it comes to a question of costs we cannot however escape from the conviction that this money has been retained by Mr. Thomas under circumstances which do not commend themselves to us in an officer of the Court.
Mr. Barlatt who gave evidence before us on his behalf, and who is now not on good terms with the respondent, admitted that he considered the charge of £221 exorbitant; and as we have been the reason given for retaining it at first was not by way of lien but as payment for services rendered by him–we think, therefore, that while he is entitled to the costs of this appeal, both parties should be called upon to bear their own costs in the Court below.
The Court below to carry out.
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WEBBER, C.J., SIERRA LEONE.
I concur.
BUTLER-LLOYD J.
I concur.
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CASES OF THE WEST AFRICAN COURT OF APPEAL & PRIVY COUNCIL