Gundry v Sainsbury
| Jurisdiction | England & Wales |
| Date | 1910 |
| Court | Court of Appeal |
Costs - Solicitor and Client - Agreement as to Solicitor's Remuneration - Verbal Agreement that Client should pay no Costs - Right to recover against a Third Party -
A solicitor, who was acting for a client in a county court action in which the client was plaintiff, verbally agreed with him that he, the client, should not pay the solicitor any costs. At the trial of the action the jury returned a verdict for the plaintiff with damages. The county court judge, on the application of the defendant, entered judgment for the plaintiff for the amount of the verdict without costs on the ground that under the proviso to s. 5 of the Attorneys and Solicitors Act, 1870, the plaintiff was not entitled to recover from the defendant more costs than were payable by the plaintiff to his solicitor under the agreement:—
Held, first, apart from the Act of 1870, that the plaintiff could not recover from the defendant more costs than he was liable to pay his solicitor, inasmuch as party and party costs were awarded as an indemnity only; secondly, upon the construction of the Act, that for the purpose of applying the proviso to s. 5 it was not necessary that the agreement should be in writing; consequently that the county court judge had rightly entered judgment for the plaintiff without costs.
APPEAL from the decision of a Divisional Court (Darling and Bucknill JJ.).F1
The action was brought in the Wandsworth County Court to recover damages for injuries alleged to have been sustained by the plaintiff through having been bitten by the defendant's dog. The plaintiff, who was a labourer, gave evidence at the trial, and in the course of cross-examination he stated, in answer to a question by the defendant's counsel, that he could not pay costs, and that he had arranged with his solicitor not to pay the costs of the action. The july found for the plaintiff with damages 15l. Counsel for the defendant thereupon asked the county court judge to enter judgment for the plaintiff for 15l. without costs on the ground that, there being according to the plaintiff's evidence an agreement between the plaintiff and his solicitor that the plaintiff should pay the solicitor no costs, the plaintiff was under the proviso to s. 5 of the Attorneys and Solicitors Act, 1870F2, not entitled to recover from the defendant more costs than were payable by the plaintiff to his solicitor under the agreement, and that was nothing. The county court judge adjourned the further argument of this question to a later day, when it was contended for the plaintiff that, as the agreement was verbal, the proviso to s. 5 had no application. The county court judge reserved his decision, and on the day appointed by him for the delivery of his judgment a application was made to him by counsel for the plaintiff that the solicitor of the plaintiff be allowed to give evidence as to the terms on which he had agreed to act for the plaintiff. The county court judge declined to allow the solicitor to give evidence. He found as a fact that there was a verbal agreement between the plaintiff and his solicitor that the plaintiff should not pay the solicitor any costs, and he gave judgment for the plaintiff for 15l. without costs, holding, on the authority of Clare v. JosephF3, that for the purpose of applying the proviso to s. 5 of the Act the agreement need not be in writing.
The plaintiff appealed to the Divisional Court. The Court dismissed the appeal substantially on the grounds given by the county court judge.
The plaintiff appealed to the Court of Appeal.
Moyses and A. H. Forbes (in the absence of Eric Dunbar), for the appellant. The judgment of the Divisional Court proceeded upon a misapprehension of the effect of Clare v. Joseph.F4 All that the Court of Appeal there decided was that s. 4 of the Attorneys and Solicitors Act, 1870, did not affect the position of a client who sets up an agreement as to costs with a solicitor. The only effect of s. 4 is to empower a solicitor to make an agreement in writing with his client; it has no application at all to an agreement which is being set up by the client, and the view of the Court in Clare v. JosephF4 was that if a solicitor was going to set up an agreement with his client as to costs he must produce an agreement in writing, but that if the client was setting up the agreement it need not be in writing because s. 4 was unnecessary and irrelevant. Sect. 4 was passed to relieve the disability of the solicitor and was not required for any other purpose, and the ratio decidendi was that where a client was setting up a verbal agreement it was not within s. 4 at all. But if the agreement was not an agreement within s. 4 it was not within s. 5.
[BUCKLEY L.J. It is an agreement within s. 4, but if the client sets it up the statutory enactment is not required to support it.]
The only agreement which is within s. 4 is an agreement in writing, and consequently the words “such an agreement” at the commencement of s. 5 imply that the...
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