Re Le Brasseur and Oakley
| Jurisdiction | England & Wales |
| Year | 1896 |
| Date | 1896 |
| Court | Court of Appeal |
Solicitor and Client - Costs - Taxation - Common Order - Moneys received by Solicitor for Client - Counsel's Fees.
The provision in the common order to tax a solicitors' bill, that the solicitor “do give credit for all sums of money by him received of or on account of” the client, includes and is confined to all moneys which the solicitor, in his character of solicitor or agent of the client, has received, or is legally or equitably liable to pay over to the client, and against which (if sued for by the client) the solicitor could set off his costs when taxed.
Consequently the solicitor is not bound to give credit for moneys received by him and applicable to the payment of fees due by him to the client as counsel in matters not connected with the bill of costs.
Observations on the honorary character of counsel's fees.
MOTION to discharge an order made by the Taxing Master on April 21, 1896.
Messrs. Le Brasseur & Oakley had acted as solicitors for Mr. F. A. Hull Terrell, who was a member of the Bar, in some conveyancing matters. On January 14, 1896, he obtained the common order for delivery and taxation of their bill of costs. This order contained the following clause: “It is ordered that the said solicitors do give credit for all sums of money by them received of or on account of the petitioner.”
Mr. Terrell had been employed by the solicitors as counsel in the proceedings before a Parliamentary Committee in relation to bills promoted by two railway companies. He alleged that his fees in relation to those matters had not been paid, and, in the course of the proceedings under the order to tax, he made an affidavit in which he said he was informed and believed that the solicitors had received from their clients moneys more than sufficient to cover the amount of his fees, and that they ought to have applied those moneys in paying his fees. In the proceedings before the taxing master, Mr. Terrell contended that the solicitors ought to give credit for the moneys which he alleged that they had thus received. The solicitors denied that they had received any such moneys, and said that there were not any fees owing by them to Mr. Terrell. The taxing master expressed an opinion that the solicitors should file an affidavit relating to Mr. Terrell's claim, and should produce to him or his solicitor all correspondence and accounts relating to the said bills or the promotion thereof.
On April 24 the solicitors gave the following notice of motion before Kekewich J.: “That the order dated April 21, 1896, by the taxing master, whereby he directed that the said solicitors should file an affidavit relating to the claim of Frank Arnold Hull Terrell (the petitioner named in the order of January 14, 1896), to have credit in the said taxation for fees alleged to be due to him in respect of the Great Northern and City Railway Bill and the London, Walthamstow and Epping Forest Railway Bill, and should produce to the said Frank A. H. Terrell or his solicitor all correspondence and accounts relating to the expenses of the said bills, or the promotion thereof, may be discharged, and that the taxing master be directed to proceed with the said taxation without regard to such claim.”
Warrington, Q.C., and G. Cave, for the solicitors.
P. O. Lawrence, Q.C., and Cababé, for the client.
KEKEWICH J. was of opinion that the motion was irregular, but he thought it better to express his opinion on the point of substance at issue between the parties. He accordingly declined to make any order on the motion; but the order as drawn up expressed the opinion of the Court “that in the said taxation the taxing master ought not to include any item alleged to have been received by the said solicitors on behalf of the said F. A. Hull Terrell as counsel's fees.”
Mr. Terrell appealed.
Cababé, for the appellant. The solicitors ought to give credit in their cash account for the sums which they have received for the purpose of paying counsel's fees.
[LOPES L.J. Could the client have sued the solicitor for money had and received to his use?]
[Warrington, Q.C., for the solicitors. I contend that he could not.]
The question has been raised in an irregular way. The proper course would have been to carry in objections to the taxing master's certificate when made.
Warrington, Q.C., and G. Cave, for the solicitors. The learned judge has expressed his opinion on the matter of substance, and this Court will decide that point. The clause in question in the common order must be limited by reference to the subject-matter — that is, to moneys which the solicitor has received as solicitor or agent for the client. The account cannot be extended to moneys which the solicitor has received outside that relation. The earliest authority on the subject restricted the account to matters connected with the bill which was ordered to be taxed, but this limit has been extended since: Jones v. JamesF1; In...
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Re Yap Peter
...legal proceedings to recover his fees: at [11].] Kennedy v Broun (1863) 13 CB NS 677; 143 ER 268 (folld) Le Brasseur and Oakley, In re [1896] 2 Ch 487 (folld) Morris v Hunt (1819) 1 Chit 544 (folld) Rondel v Worsley [1969] 1 AC 191 (folld) Legal Profession Act (Cap 161, 1985 Rev Ed) ss 80 (......
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Rondel v Worsley
...without attempting to rest it upon general considerations of public policy. 33The rule was again recognized in the Court of Appeal in Le Brasseur v. Oakley [1896] 2 Ch. 487 where it was firmly held that the Court could not and should not lend its assistance to barristers to recover their f......
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Rondel v Worsley
...addition, the reason given for the rule was bad. Both Judges and text–writers "aid it was because he could not sue for his fees, see Re Le Brasseur & Oakley, 1896, 2 Ch. at p. 494 by Lord Justice Lindley, Halsbury's Laws of England (3rd Edition) Vol.III p. 46. Yet in other professions it ha......
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D'orta-Ekenaike v Victoria Legal Aid
...16 (1988) 165 CLR 543 at 604 per Toohey J. 17 [1969] 1 AC 191 . 18 [1980] AC 198 . 19 (1988) 165 CLR 543 at 555 per Mason CJ; In re Le Brasseur and Oakley [1896] 2 Ch 487 at 494; Robertson v Macdonogh (1880) 6 LR Ir 433 at 438; cf Rondel v Worsley [1969] 1 AC 191 at 260–264. 20 (1988) 165......