Browne v Black
| Jurisdiction | England & Wales |
| Year | 1912 |
| Date | 1912 |
| Court | Court of Appeal |
Solicitor - Bill of Costs - Delivery of Bill - One Month before Action - “Sent by the post” - Time -
By s. 37 of the Solicitors Act, 1843, no solicitor shall commence any action for the recovery of any fees, charges, or disbursement “until the expiration of one month after such …. solicitor …. shall have delivered unto the party to be charged therewith, or sent by the post to or left for him at his counting-house, office of business, dwelling-house, or last known place of abode, a bill of such fees, charges, and disbursements.”
By s. 48 “month” means calendar month.
Held (by Vaughan Williams L.J. and Kennedy L.J., Buckley L.J. dissenting), that a bill is not “sent by the post” to the party to be charged one month before action unless it was posted at such a time that it would in the ordinary course of post be delivered to the party to be charged one clear calendar month before the commencement of the action.
APPEAL from the judgment of a Divisional Court (Ridley and Channell JJ.) on an appeal from the Mayor's Court.F1
The action was brought by a solicitor to recover the amount of a bill of costs for professional services rendered by him to the defendant as his solicitor. The defendant pleaded (so far as material) that the plaintiff did not one calendar month before action deliver to the defendant, being the party to be charged therewith, or send by post to or leave for him at his counting-house, office of business, dwelling-house, or last known place of abode, a bill of such fees, charges, and disbursements subscribed by the plaintiff or enclosed in or accompanied by a letter signed by him, as required by s. 37 of the Solicitors Act, 1843.F2
At the trial before the Common Serjeant it was proved that the plaintiff on the afternoon of February 15, 1910, posted a signed bill of costs addressed to the defendant at his place of business in the City, which in the ordinary course of post was delivered to the defendant on the morning of February 16. The action was commenced on March 16.
The Common Serjeant held that the word “month” in s. 37 meant a clear month, and that the words “sent by the post” were not complied with unless the bill was posted at such a time that in the ordinary course of post it would be delivered to the party chargeable one clear month before the commencement of the action. He accordingly held that the action was premature and was not maintainable.
The Divisional Court affirmed his decision.
Foote, K.C., and H. M. Sturges, for the plaintiff. The natural meaning of the words “sent by the post” is “put into the post.”
They do not mean “delivered through the post.” There is no ground for construing the words otherwise than in their natural meaning. The statute says nothing about the bill being posted at such time that a clear month shall have elapsed between the date on which it would be delivered in the ordinary course of post and the commencement of the action. Take the converse case, and suppose that the provision had been that the solicitor must sue within a month after the date when the bill was sent by the post. would it have been then contended with success that the time would not begin to run from the date when the bill was posted? The fact that the construction contended for by the plaintiff would involve that the interval of time between the actual delivery of the bill and action brought might be a day less than it would be if one of the other alternatives given by the section were adopted is really not a substantial objection to the plaintiff's contention. Having regard to the varying length of the different calendar months, on any construction of the section the interval which the client would have before he could be sued would vary by a day or two according to the month in which the bill was delivered. Suppose the solicitor died after posting the bill on the same day, could he be said to send the bill on the next day? The intention was that delivery to a trusty messenger, namely, the public post, should be equivalent to leaving the bill at the client's address. [They cited Dunn v. HalesF3; Macgregor v. KeilyF4; Blunt v. HeslopF5;
[VAUGHAN WILLIAMS L.J. referred to Reg. v. Inhabitants of Slawstone.F7]
Lewis Thomas, K.C., and Neilson, for the defendant. Sect. 37 of the Solicitors Act, 1843, is an enactment intended to be in favour of the client, and to ensure his having a certain interval of time for consideration of the bill before an action can be brought against him; and it ought, therefore, to be construed favourably to the client, and not so that, if one of the alternative modes of delivering the bill be adopted by the solicitor, a shorter period would be allowed him. [They cited Engleheart v. MooreF8; Reg v. Recorder of RichmondF9; In re Railway Sleepers Supply Co.F10]
VAUGHAN WILLIAMS L.J. The words of 2 Geo. 2, c. 23, s. 23, were as follows: “No attorney or solicitor of any of the Courts aforesaid shall commence or maintain any action or suit for the recovery of any fees, charges, or disbursements at law or in equity, until the expiration of one month or more after such attorney or solicitor respectively shall have delivered unto the party or parties to be charged therewith, or left for him, her, or them, at his, her, or their dwelling-house or last place of abode a bill of such fees, charges, and disbursements,” &c. It will be seen that that section gave to the solicitor two alternatives. He might either deliver the bill to the client in person, or he might leave it for him at his dwelling-house or last place of abode. The words of s. 37 of the Solicitors Act, 1843, are these. [The Lord Justice here read the section.] Sect. 48 of the Act provides that the word “month” as used therein shall mean a calendar month. The difference between the earlier Act and the later Act is that the latter enables the solicitor to send his bill by post, and, when dealing with the places at which the bill may be left, mentions his “counting-house” and “office of business,” as well as his “dwelling-house, or last place of abode.” I mention those matters as being not unimportant, when we have to deal with the construction of the later statute and to see how far the various modes of delivering the bill of costs are in contrast to one another. Now the Act of George II. interfered with the common law rights of solicitors, and forbade the bringing by a solicitor of an action for his bill of costs until the expiration of one month or more after delivery of his bill in the manner therein described. I cannot myself doubt that the additional words in the Solicitors Act, 1843, s. 37, “sent by the post to,” were introduced in the interest of, among others, attorneys and solicitors, in order to enable them to avail themselves of the increased postal facilities. I cannot agree with the suggestion which has been made as to the spirit in which we should construe those words. It has been suggested that we ought to construe them against the solicitor, and in favour of the party to be charged, because the section is one which was manifestly introduced in favour of that party. It is equally true that the section is one which infringes on the common law rights of a certain class, and, that being so, ought to be construed strictly, and so as not to infringe on those rights any further than was manifestly on the face of the section intended. I am of opinion that the words “sent to”...
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