Goodman v J. Eban Ltd
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE DENNING,THE MASTER OF THE ROLLS |
| Judgment Date | 05 March 1954 |
| Judgment citation (vLex) | [1954] EWCA Civ J0305-4 |
| Docket Number | 1952. G. No. 3243 |
| Court | Court of Appeal |
| Date | 05 March 1954 |
[1954] EWCA Civ J0305-4
The Master of the Rolls
(Sir Raymond Evershed),
Lord Justice Denning and
Lord Justice Romer.
In the Supreme Court of Judicature
Court of Appeal
Counsel for the Appellant: MR. M.O'C. STRANDERS and MR. MALCOLM MILNE (instructed by Messrs G. Lebor & Co.)
Counsel for the Respondent: MR. LEONARD HALPERN (instructed by Messrs Goodman Monroe).
This was an action to recover the Bum of £50. 9s. 6d. alleged to be due to a Solicitor for performing services according to a bill claimed to nave been duly delivered on the 23rd June, 1952, The Plaintiff, Mr. Charles Goodman, carries on, and carried on at all material times, the business of a solicitor under the name of Goodman, Monroe & Co. He was the sole proprietor of the business – as is sometimes said, the "sole partner". The Defendants raised a number of defences to the claim, including allegations that they had never retained the Plaintiff, that the services had never been rendered, and that the Plaintiff had promised to make to charge for any services which he had performed. Upon all these matters (which were questions of fact) the learned Judge wholly disbelieved the evidence on the Defendants' part and accepted the evidence of the Plaintiff. The Defendants, however, raised a further defence of a technical nature, namely, that the bill sued upon, not having satisfied the conditions in Section 65(2) of the Solicitors Act, 1932, could not form the subject matter of an action to recover the sum claimed under subsection (1) of the same Section. The material terms of Section 65 are as follows: (1) Subject to the provisions of this Act, no action shall be brought to recover any costs due to a solicitor until one month after a bill thereof has been delivered in accordance with the requirements of this section": there follows a proviso which is not here material. "(2) The said requirements are as follows:-(1) The bill must be signed by the solicitor, or, if the costs are due to a firm, one of the partners of that firm, either in his own name or in the name of the firm, or be enclosed in, or accompanied by, a letter which is so signed and refers to the bill".
By Section 64 subsection (2) it is provided that for the purposes ( inter alia) of Section 65, "the expression 'solicitor' includes the executors, administrators and assignees of the solicitor in question".
It was the case of the Defendants in the Court below, and has been their case argued in this Court, that the Plaintiff's bill did not satisfy the requirements I have quoted In subsection (2) of Section 65 in two respects; first, because the "signature" at the end of the Plaintiff's letter of June 23rd, 1952, enclosing his bill, was not written by him in his handwriting but was impressed by means of a rubber stamp, on which was engraved a facsimile of the signature "Goodman, Monroe & Co": and, second, because the so-called "signature was that of the Plaintiff's business name and not that of his own name. The Plaintiff proved in evidence (and, as above stated, his evidence was accepted by the Judge) that the impressing of the stamped signature on the letter had been done by the Plaintiff personally, who kept the stamp looked up in his own room so as to be available only for his own use. It did not appear in evidence whether the stamped signature was a representation or facsimile of the Plaintiff's own handwriting, but no point was taken below to the contrary effect, and the argument in this Court has proceeded upon the basis that the signature in question is a facsimile of the Plaintiff's own handwriting.
The learned Judge rejected these technical defences on the Defendants' part as he had rejected their defence on the merits, and gave judgment accordingly to the Plaintiff for the sum claimed.
I have found the questions raised matters of some difficulty: and although, for reasons which will appear, I agree with the view taken by His Honour and think accordingly that the bill sued upon was properly delivered in accordance with the Act, I am bound to say that as a matter of good practice the "signature" of a bill of costs, or of a letter enclosing such a bill, by means of a rubber stamp seems to me in general undesirable, There is no doubt that the Parliamentary purpose in enacting Section 65 was to impose upon the Solicitor(or upon one of the members of a partnership firm of Solicitors) personal responsibility for any bill of costs delivered: and although there are other provisions in the Act for the protection of the client, including a right on his part to have the bill taxed as provided by the Act, it is no doubt also true to say that the client was intended to have the assurance by means of the personal authentication of the Solicitor (or of a partner in a firm) that the bill delivered was a proper bill.
The matters which I have last sated are significant since they constitute the background against which the Section must be construed: and I confess that if the matter were res Integra I should be disposed to think, as a matter of common sense and of the ordinary use of language, that when Parliament required that the bill should be "signed" by the Solicitor, it was intended that the Solicitor should personally "sign" the bill or letter in the ordinary way by writing his name (or, where appropriate, the name of his firm) In his own hand with a pen or pencil.
The matter is, however, not free from authority. The learned Judge in the Court below relied upon the case of Bennett v. Brumfitt (Law Reports, 3 Common Fleas, page 28). That was an appeal to the Court of Common Pleas from a decision of the Revising Barrister for the Borough of Liverpool, who had been of opinion that the objection of the respondent to a name being retained on the List of Voters for the Borough was a valid objection within Section 17 of the Statute 6 Victoria, chapter 18, which enacted "that the notice of objection shall be signed by the person objecting". In that case (as in the present) the objector's name had been affixed by him to the notice by means of a stamp upon which was engraved his ordinary signature. The Court affirmed the view of the Revising Barrister, and I will cite in full the Judgment of the Chief Justice, Sir William Bovill. "The question In this case iswhether the notice of objection was 'signed by the person objecting', within the meaning of the 17th section of the 6 Victoria, chapter 18. The name of the objector was affixed to the notice by himself by means of a stamp upon which was engraved his ordinary signature. I am of opinion that that was a perfectly good signature within this statute. It is clear that it would be a good signature within the statute of Frauds. It is equally clear that it would have been a good signature to a will. The decision of the revising barrister was therefore in ray judgment perfectly correct. The ordinary mode of affixing a signature to a document is not by the hand alone, but by the hand coupled with some instrument, such as a pen or a pencil. I see no distinction between using a pen or a pencil and using a stamp, where the impression is put upon the paper by the proper hand of the party signing. In each case it is the personal act of the party, and to all intents and purposes a signing of the document by him. If the objector here had used a pencil or a paint-brush, it would hardly have been contended that he had not signed the notice. I think the requirement of the statute has been sufficiently complied with".
The other Members of the Court were of the same opinion. "The using of a stamp", said Mr. Justice Willes, "is only a compendious way of writing the party's name". Mr. Justice Byles agreed with the Chief Justice that such a signature would be sufficient for the purposes of the Statute of Frauds and the statute of Wills. Finally, Mr. Justice Keating observed: "I see no reason why a different construction should be put upon signing under this Statute from that which it has received under the Statute of Frauds and the Statute of Wills …. I am at a loss to see bow the genuineness of a notice of objection is better authenticated by a signature by means of a pen than by means of an Impression of a stamp affixed by the party's own hand". The relevant language in the Statute of Frauds is wellknown – the memorandum or note must be "signed by the party to be charged". In the case of the wills Act, the relevant formula In Section 9 is "it shall be signed at the foot or end thereof by the testator". In the case of the latter Act, the authority cited – ( In bonis Jenkins 3 Swabay & Tristram's Reports, page 93) – may usefully be referred to: for in that case the testator had, towards the end of his life, had his usual signature engraved, so that it sight be stamped on letters and other documents requiring his signature, and the two codicils in question were so stamped in the testator's presence and by his direction by another person. Sir C. Cresswell in the course of his judgment said: "It has been decided that a testator sufficiently signs by making his …. Now, whether the mark is made by a pen or by some other instrument cannot make any difference. Neither can it in reason make a difference that a facsimile of the whole name was impressed on the will instead of a mere mark or cross. The mark made by the instrument or stamp used was intended to stand for and represent the signature of the testator".
In the case last cited it will be observed that the stamp had been impressed not by the Testator himself but by another in the Testator's presence and by his direction; and there is added to the formula which I have quoted from Section 9 of the Wills Act words authorising such a vicarious signing. Similarly there was added to the corresponding formula, in the Statute of Frauds the well-known words "or by some person...
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