Porter v Kirtlan

• Jurisdiction: Ireland
• Judgment Date: 14 June 1916
• Docket Number: (1914. No. 11037.)
• Date: 14 June 1916
• Court: King's Bench Division (Ireland)

Porter

and

Kirtlan.

K. B. Div.

Appeal.

(1914. No. 11037.)

CASES

DETERMINED BY

THE KING'S BENCH DIVISION

OF

THE HIGH COURT OF JUSTICE IN IRELAND,

AND ON APPEAL THEREFROM IN

THE COURT OF APPEAL,

AND BY

THE COURT FOR CROWN CASES RESERVED.

1917.

Solicitor — Bill of Costs — Retainer — Irish Solicitor undertaking Professional work in Ireland for English Solicitor — Liability for Costs — Custom.

The personal liability of an English solicitor, at whose instance an Irish solicitor undertakes professional work in Ireland for an English client, depends in each case upon whether there is a contract express or implied that the Irish solicitor shall be entitled to recover his costs from the English solicitor.

K., an English solicitor, on behalf of an English client, instructed P., an Irish solicitor, to take proceedings in the King's Bench Division in Ireland against T. S. of Dublin. At the trial of the action, without a jury, Dodd J. held a custom to be proved, that where an English solicitor instructs an Irish solicitor to take proceedings in an Irish court, the latter, in the absence of an express agreement contravening the custom, was entitled to recover from the instructing solicitor the entire outlay and two-thirds of the charges for professional services reasonably and properly Incurred, and entered a verdict and judgment in favour of the plaintiffs accordingly.

Held, by the Court of Appeal (Sir I. J. O'Brien C., Ronan L.J., Molony L.J. diss.) (reversing the decision of the King's Bench Division (Cherry L.C.J., Madden and Boyd JJ.), namely, that the plaintiff was estopped from alleging that the defendant was his client, and that the custom found by Dodd J. would be illegal and repugnant to the ordinary rules governing the relations between solicitor and client), that an express contract by the defendant to pay the plaintiff was established by the correspondence. Held also, that there is nothing inherently illegal in a contract by an English solicitor to pay for professional work carried out in ireland by an Irish solicitor for an English client, and that a bill of costs for such work is taxable.

New Trial Motion.

This was an action by an Irish solicitor against an English solicitor for work done and professional services rendered by the plaintiff. The defence was that the client, and not the defendant, was liable for the costs.

The plaintiff, who practises as a solicitor in Belfast, was, as he alleged, instructed and retained by the defendant, a practising solicitor at Eastbourne, to bring an action in the Irish King's Bench Division at the suit of Kyl Fyre, Ltd., an English firm, and clients of the defendant, against one Thomas Scott, of Dublin. Proceedings were accordingly instituted by the plaintiff, and the result was a verdict for Kyl Fyre, Ltd., on some of the counts, and for the defendant, Thomas Scott, on other counts. The costs were apportioned as follows:—One-fourth to Kyl Fyre, Ltd., and three-fourths to Thomas Scott.

In due course Mr. Porter furnished the defendant with a bill of costs, claiming a balance of £102 15s. 8d., due to him from the English solicitor in respect of the action of Kyl Fyre, Ltd., v. Scott. He allowed credit for a sum of £20, paid during the progress of the action. This payment was made by a cheque of Kyl Fyre, Ltd. The defendant, in his defence, traversed the cause of action, and pleaded that the costs sued for were incurred in the action of Kyl Fyre, Ltd., v. Scott, “in which the plaintiff acted as solicitor for the plaintiffs therein. The defendant, who was acting as English solicitor for the said Kyl Fyre, Ltd., referred them, the said Kyl Fyre, Ltd., to the plaintiff in this action, who was, and is, an Irish solicitor, for the purpose of the said plaintiff acting for them in the said action. The plaintiff herein undertook to act as solicitor in this country in connexion with the said action for the said Kyl Fyre, Ltd., and any costs incurred by him in the aforesaid action were so incurred on behalf of, and as solicitor for, the said Kyl Fyre, Ltd., and the defendant herein will submit that he incurred no liability in respect thereof to the plaintiff in this action.” The defendant further pleaded “that in employing the plaintiff as solicitor in the matters covered by the said bill of costs he was acting, not on his own account, but only as agent for the said Kyl Fyre, Ltd., as the plaintiff, at the time of the employment, well knew.”

The plaintiff, in a reply, pleaded that the defendant was estopped from setting up the foregoing defence, and the grounds of estoppel alleged were as follows:— “After the said costs were incurred, Kyl Fyre, Ltd., were in financial difficulties, and were making an arrangement with their creditors. The defendant informed the plaintiff of the fact that Kyl Fyre, Ltd., were in financial difficulties, and were making an arrangement with their creditors. The defendant did so for the purpose of inducing the plaintiff to give the defendant further time to pay the costs in respect of which this action is brought. The plaintiff gave the defendants further time to pay, but informed the defendant that he (the plaintiff) was not concerned with Kyl Fyre, Ltd., as he was holding the defendant responsible to him for the costs in respect of which this action is brought. The defendant not only did not repudiate his liability to the plaintiff to pay him the said costs, but admitted his liability to pay them, and informed the plaintiff that he (the defendant) was proving in the said arrangement as a creditor of Kyl Fyre, Ltd., in respect of the said costs; and the defendant did in fact prove in the said arrangement as such creditor in respect of the said costs, and obtained, or was declared entitled to, a dividend in respect thereof.”

The case was tried before Dodd J. without a jury, on the 14th May, 1915.

The facts as stated in the judgment of Cherry L.C.J. are shortly as follows:—

On the 2nd September, 1910, the defendant Kirtlan, who is a solicitor practising in England, wrote to the plaintiff Porter a letter, in which, after setting out the facts in dispute between his client Kyl Fyre, Ltd., and Scott, he goes on to say:— “I enclose copy of correspondence, and shall be obliged if you will kindly commence proceedings in the Superior Court claiming £50 damages for trespass. I think you have all the necessary information, but, if not, please let me know what more you require.” Plaintiff replied by a letter of the 3rd September, 1910, stating that he was having proceedings taken, and that he thought the information given him was sufficient. There was no reference in either letter to the payment of costs, but shortly afterwards plaintiff issued a writ in the suit of Kyl Fyre, Ltd., and Scott, in which he described himself as solicitor for the plaintiff company; and he acted throughout the entire proceedings, which were protracted, as such. The only payment, up to the present, made on foot of costs was a sum of £20, for which credit is given in the writ. This payment, it is important to observe, was made by a cheque of Kyl Fyre, Ltd., to plaintiff, which was sent on the 13th June, 1911, by the defendant to the plaintiff in response to a request by the plaintiff for some money on account of costs. Kyl Fyre, Ltd., have since gone into liquidation.

Dodd J. found that a custom was proved that where an English solicitor, on behalf of an English client, instructed an Irish solicitor to take proceedings in an Irish Court, or to act professionally for him in any matter, or conversely, where an Irish solicitor instructed an English solicitor to take proceedings for an Irish client in an English Court, or to act professionally for him in any matter, there being no express agreement contravening the custom, the solicitor who acted upon the instructions was entitled to recover from the solicitor who gave the instructions the entire sums reasonably and properly spent on outlay, and two-thirds of the sum reasonably and properly incurred for professional services. A verdict and judgment were entered in favour of the plaintiff. The defendant moved that this verdict and judgment be set aside, and that judgment be entered for him, or alternatively for a new trial.

Gibson K.C. and Swayne, for the defendant.

Best K.C. and Bartley, for the plaintiff.

The arguments were similar to those in the Court of Appeal.

Gibson K.C. and Swayne, for the defendant.

Best K.C. and Bartley, for the plaintiff.

Cherry L.C.J.:—

The Lord Chief Justice having stated the facts as set out above, proceeded:—

This is an action brought to recover a sum of £102 15s. 8d., balance of a sum of £120 15s. 8d., alleged to be due by the defendant to the plaintiff as solicitor's costs. The endorsement upon the writ claims that sum as due “for professional services rendered and money expended by the plaintiff as a solicitor in and about the business of the defendant and at his request.” The particulars furnished consist of a bill of costs in a suit of Kyl Fyre, Ltd., v. Thomas Scott, in which the plaintiff in the present action acted as solicitor for the plaintiff company. The costs were ordinary party and party costs, claimed by a solicitor from his client; but the alleged client in this case was not a party to the action of Kyl Fyre v. Scott at all, and it seems difficult to see how he can be personally liable for the costs.

The plaintiff claims that the costs incurred on behalf of the insolvent company are really due to him by the defendant, the English solicitor, who introduced Kyl Fyre, Ltd., to him. He bases his claim upon an alleged custom in the solicitors' profession: that an Irish solicitor employed by an English solicitor to conduct litigation on behalf of an English client looks to the English solicitor only for payment, and not to the client; and that he is bound to allow to the English solicitor, by way of commission, one-third of the profit costs, receiving for himself from the English...