Re Grey
| Jurisdiction | England & Wales |
| Judgment Date | 1892 |
| Year | 1892 |
| Date | 1892 |
| Court | Court of Appeal |
Solicitor - Breach of Duty - Failure to Pay over Money to Client - Judgment recovered by Client - Disciplinary Jurisdiction of Court - Summary Order for Payment.
Where a solicitor has committed a breach of professional duty in failing to pay over money received by him for his client, the fact that the client has brought an action against him and recovered judgment for the money does not take away the disciplinary jurisdiction of the Court summarily to order payment of the money to the client.
In re Corbet Davies (
APPEAL from the decision of a Divisional Court (Grantham and Charles, JJ.), refusing to make an order against a solicitor for payment of a sum of money within four days.
The facts were as follows: The appellant retained the solicitor to (inter alia) bring an action for goods sold and delivered on his behalf. Such action being brought, judgment therein was recovered by the appellant for the amount of 268l. 17s. 9d., which amount was received by the solicitor under the judgment. He claimed to retain the amount so received by him in respect of a bill of costs of greater amount delivered by him to the appellant. The appellant, however, alleged that he was not indebted in respect of the full amount of the costs claimed, on the ground that a special arrangement had been made between him and the solicitor that the latter should only charge costs out of pocket and a commission of 5 per cent. on amounts recovered; and that, giving credit to the solicitor for such costs and commission, a balance of 156l. remained due from him. The appellant brought an action against the solicitor to recover such balance. The solicitor counter-claimed the amount of his bill of costs. The appellant, in his reply, set up the special arrangement. The jury found a verdict in favour of the appellant for 156l., and judgment was entered thereon. Execution by fi. fa. was issued on the judgment, but proved ineffective, the judgment debtor having two days before the trial executed a bill of sale of all his effects to secure a loan of 250l. and interest. He stated in an affidavit filed by him that the bill of sale was given in respect of a loan, which had been hastily raised for a pressing matter totally unconnected with the action against him, and was not made either by way of anticipation of the verdict against him, or to defeat any possible execution in such action; but was given quite bonâ fide, and for an entirely different purpose. The appellant applied at chambers for an order that the solicitor should pay over the amount of the judgment debt to him within four days after service of the order; but the application was refused by the master, whose refusal was affirmed on appeal by the judge at chambers. The Divisional Court, on appeal to them, thought that they were bound by authority to hold that, judgment having been recovered for the amount of the debt, they had no jurisdiction to make the order for payment in the exercise of their summary jurisdiction over the solicitor as an officer of the Court.F1
French, Q.C., and Avory, for the appellant. The Divisional Court refused the application on the authority of In re Corbet DaviesF2; in which case it seems to have been held that, if the client elects to take his legal remedy by action, and recovers judgment, the disciplinary jurisdiction of the Court to make an order summarily for payment of the money is gone, because the original debt is merged in the judgment debt, and the judgment debt is not due from the solicitor as such. But it is submitted that that decision cannot stand after the decision of the Court of Appeal in In re FrestonF3 and In re Dudley.F4 Those decisions shew that the disciplinary jurisdiction of the Court to enforce performance by its officers of their duty, is quite independent of the legal right of the client, and cannot be affected by an alteration of such right.
Beddall, for the solicitor. It is not suggested that the fact that judgment has been recovered for the amount takes away the disciplinary jurisdiction of the Court. If there really had been dishonest conduct by the solicitor, the Court would still have jurisdiction on the application of the client to suspend him or strike him off the rolls, or to call upon him to answer the matter of an affidavit. If an application of that kind were made the Court would order an inquiry before a master. In such inquiry, the question would arise as to the existence of the special arrangement, which the solicitor denies, and which he is, and always has been, willing to have inquired into in that way. The power to make a summary order on a solicitor for payment of money only exists where he owes money in his character as a solicitor. The client having elected to treat the debt as an ordinary debt, and having recovered judgment, the original debt is merged, and the solicitor does not owe the judgment debt in his character as a solicitor. The client has abundant remedies on the judgment. He can apply for a commitment order under the
[He cited In re Ball.F5]
French, Q.C., was not called on to reply.
LORD ESHER, M.R. It seems to me that the true way of dealing with this case is to deal with it according to the principle which was laid down by this Court in In re FrestonF6, and recognised and approved of in In re Dudley.F7 The principle so laid down is that the Court has a punitive and disciplinary jurisdiction over solicitors, as being officers of the Court, which is exercised, not for the purpose of enforcing legal rights, but for the purpose of enforcing honourable conduct on the part of the Court's own officers. That power of the Court is quite distinct from any legal rights or remedies of the parties, and cannot, therefore, be affected by anything which affects the strict legal rights of the parties. Such was the principle laid down in the cases to which I have referred, and which were decisions of the Court of Appeal, and therefore are binding on us till overruled by the House of Lords. So, if a solicitor obtains money by process of law for his client, quite irrespective of any legal liability which may be enforced against him by the client, he is bound, in performance of his duty as a solicitor, to hand it over to the client, unless he has a valid claim against it. If he spends it, or if, still having it, he refuses to hand it over, he commits an offence as an officer of the Court, which offence has nothing to do with any legal right or remedy of the client. Here the solicitor does not deny that he received this money, but he sets up a claim in respect of it, which, if valid...
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