Swinfen v Lord Chelmsford

JurisdictionEngland & Wales
Judgment Date08 June 1860
Date08 June 1860
CourtExchequer

English Reports Citation: 157 E.R. 1436

IN THE COURTS OF EXCHEQUER AND EXCHEQUER CHAMBER

Patience Swinfen
and
Lord Chelmsford

S. C. 29 L. J Ex. 382, 6 Jur. (N S) 1035, 8 W R. 545, 2 L T 406 Discussed, Strauss v. Francis, 1866, L. R 1 Q. B. 382. Applied, Malthews v. Munster, 1887, 20 Q B D. 143. Referred to Connectrcut Fire Assurance Company v. Kavanagh, (1892) A. C 473; Neale v. Gordon-Lennox, (1902) 1 K B. 838; Nocton v. Lord Ashburton, (1914) A C 968.

[890] patience swinfen v. lord chelmsforb June 8, 1860 -No action lies against a counsel who, employed to conduct a cause at Nisi Piius, enters into a compromise and withdraws a juror, even though contrary to his client's instructions, provided it ia done bona fide.-If a counsel employed in a cause, contrary to the instructions of his client, acting bona fide, enters into a compromise of the suit, which is a nullity because it embraces matters in respect of which the counsel had no authority ; though his client is put to expense in resisting legal proceedings taken by the other side to enforce such compromise, the counsel is not liable to an action ; because, first,-subjecting a person to legal proceedings without malice is not a cause of action; and, secondly,-there is no legal damnification^ inasmuch as the Court in which the proceedings to enforce the compromise are taken will award such costs to the successful party as the law allows.-An advocate at the Englrsh bar by accepting a brief in the usual way undertakes a duty, but does not enter into any contract express or implied. The conduct and control of the cause in which he is engaged are necessarily left to counsel. But, although he has complete authority over the suit and the mode of conducting it and all that is incident to it, he has not by virtue of hrs retainer, any power over matter's that are collateral to it -Semble, that an advocate rs rrot responsible for ignorance of law or any mistake of fact, or being less eloquent or less astute than he was expected to be, and, per Pollock, C. B., and Watson, B., that, if he 5H&N. 891. SWINFEN V. LORD CHELMSFORD 1437 is acting with perfect good faith and with, a single view to the interests of his client, he is not responsible for any mistake or indiscretion or error of judgment of any sort, and if he imagines he has an authority to compromise a case when in reality he has not, it is a mistake either in law or fact, or, if in spite of instructions, he enters into a compromise^beheving that it is the best course, and that the interest of his client requires it, it is but an indiscretion or error of judgment if done honestly -A declaration alleged that the defendant, a barrister, was retained by the plaintiff to conduct a cause, and undertook to perform his duty as the plaintiffs counsel, that during the progress of the cause, well knowing that he had no authority from the plaintiff to enter into any terms of compromise, he wrongfully and fraudulently entered into what purported to be a compromise of the cause and withdrew a juror, alleging, as special damage, that proceedings were taken to procure an attachment, &c., against the plaintiff to enforce the compromise, whereby she was put to expense At the trial the plaintiffs counsel opened and endeavoured to prove that the defendant, to serve his own purposes and from improper motives, entered into the compromise. When the summing up of the learned Judge was almost concluded, and not before, the plaintiffs counsel urged that the defendant was liable even if he acted bona fide, and offered to tender a bill of exceptions to the Judge's ruling, which however was afterwards abandoned.-Held: First, that as the point was suggested before the case was finally left to the jury it was in time Secondly, that if a declaration discloses a state of facts upon which an action may be maintained although there be neither malice nor fraud, the plaintiff is not bound to prove either though both be alleged, and may recover on the liability which the facts disclose though both fraud and malice be disproved. [S. C. 29 L. J Ex. 382 , 6 Jur. (N S ) 1035 , 8 W R. 545 , 2 L T. 406 Discussed, Strauss v. Fiancu , 1866, L. R 1 Q B 382. Applied, Matthews v. Munttei, 1887, 20 Q B D. 143. Referred to, Connecticut Fi'te Assntance Company v Kavanagh, [1892] A. C 473; Neale v. Gordmi-Leniuxr, [1902] 1 K B. 838; Nodon v. Lard Ashbuiton, [1914] A C 968] Declaration. That whereas, before the committing of the grievances, &c., Samuel SAfinfen, by his last will, gave and devised his estate at Swinfen to the plaintiff, her heirs, &c., and that, after the de.ith of the said testator, F. H. Swinfen, claiming to be eatitled to the said estate, as heir at law to the said testator, and impeaching the validity of the said will, on the ground that the testator did not possess a proper testamentary capacity, tiled a bill in Chancery against the now plaintiff, and, pursuant to an order in the suit, made by the Master of the Rolls, a writ was issued [8913 ou^ of the Court of Common Pleas, in which the plaintiff affirmed, and the said F. H. Swinfen denied, that the said S Swinfen did, by a certain writing, dated the 7th of July, 1854, purporting to be his last will, devise the said estate, and the issue was brought on to be tried at the Assizes held at Stafford, before Sir C. C and Sir G. B., Justices, &c., and the now defendant, being then a barnster-at-law, was, before arid when the issue came on to be tried, retained and employed by the plaintiff to act as her leading counsel upon the trial of the said issue, and, as such counsel, to maintain and support the affirmative of the said issue, arid to state, manage and conduct the case for the plaintiff before the Court and jury upon the said trial, and to produce, exhibit and examine before the said Court and jury certain witnesses and evidence prepared and collected by and on behalf of the plaintiff in support of the affirmative of the said issue, and was duly instructed by the plaintiff in that behalf; and the defendant then accepted such retainer and employment, and entered thereupon, and uadertoak to the plaintiff to perform his duty to her, as such leading counsel, in the conduct and management of her case at the trial of the said issue, pursuant to his instructions Yet the defendant, after the said trial had begun, and during the pfogress thereof, he well knowing that he had no authority from the plaintiff to enter into the terms of compromise hereinafter mentioned, or into any other teims of compromise on her behalf, without the authority and against the will of the plaintiff, and contrary to her instructions and directions in that behalf, wrongfully duel fraudulently, and in negleet and violation of his duty to the plaintiff, entered into what purported to be an arrangement or agreement with the said F H. Swinfen, through his counsel, to compromise the said cause and the right and claim of the plaintiff under the said 1438 SWINFEN v. LORD CHELMSFORD 5 H & N 892. will, and wrongfully and fraudulently, and without [892] the authority and against the will of the plaintiff', and contrary to her instructions in that behalf, arranged aud concluded what purported to be certain terms of compromise in that behalf, which were then drawn up in writing, and signed by the defendant, put potting to act on the behalf of the plaintiff and the then Attorney General on behalf of the said F. H. Swinfen, and which said terms were in the words following (that is to say).- " $unnfen v Smnfen. Terms of compromise. Juror to be withdrawn Estate (meaning the said estate devised by the said will) to defendant (meaning the said F. H. Swinfen) in fee Defendant to secure to plaintiff an annuity for her life, on the estate, of 10001 a year," &c. And the defendant afterwards, under and by colour of the same terms of compromise, wrongfully and fraudulently, and without the authority and against the will of the plaintiff, and contrary to her instructions in that behalf, and purporting to act on her behalf, consented to a juror being withdrawn in the said cause ; and a juror was withdrawn accordingly ; and the defendant thus failed and neglected to perform his duty to the plaintiff as leading counsel, pursuant to his instructions as aforesaid ; and by reason of the premises, the said tiial was not proceeded with, and certain evidence which the plaintiff had prepared to submit to the Court and jury, and which the defendant had been duly instructed, as her counsel, to submit to the jury, in support of the affirmative of the said issue, was not submitted to the jury, and no verdict was given by the said jury on the said issue , and the plaintiff was, by reason of the wrongful act of the defendant, deprived of the opportunity of trying the said issue at the said Assizes, and then obtaining the verdict of a jury thereupon, in pursuance of the writ and direction of the Master of the Rolls, &c. There was, a second count charging the defendant with entering into the compromise under undue influence and [893] by collusion with the learned Judge who tried the cause, and the declaration concluded by stating that, by means of the several premises, and by colour of the prefended arrangement, an order of Nisi prms (which was set out) was drawn up, and afterwards made a rule of the Court of Common Pleas, without the consent of the plaintiff that proceedings were had to attach the plaintiff for contempt or disobedience of the rule. that F. H. Swinfen filed a supplemental bill in Chancery against the plaintiff to enforce performance of the terms of the pretended compromise, whereby the plaintiff was put to great trouble and expense, and the costs incurred on the trial became wholly useless, and that she was kept out of possession of the estate, &c Pleas. First ò Not guilty Second That at the time of the entering by the defendant into, and arranging and concluding the said terms of compromise, &c , the defendant did not know that he had no...

To continue reading

Request your trial
39 cases
  • Waugh v H.B. Clifford & Sons Ltd
    • United Kingdom
    • Court of Appeal (Civil Division)
    • 21 de dezembro de 1981
    ...the heir-at-law— 1859 28 LJQB 849) sued her former counsel for damages arising out of the abortive compromise. This is reported as Swinfen -v- Lord Chelmsford 5 H & N 890. It directly raised the question whether and to what extent a barrister or solicitor has an implied authority, as betwee......
  • Lai Cheng Chong v PP
    • Malaysia
    • High Court (Malaysia)
    • 1 de janeiro de 1993
  • Lai Cheng Chong v PP
    • Malaysia
    • Unspecified court (Malaysia)
    • Invalid date
  • Kelley v Corston
    • United Kingdom
    • Court of Appeal (Civil Division)
    • 10 de julho de 1997
    ...considerably influenced by the phrase "the conduct and management of the cause" derived from the unanimous opinion of the court in Swinfen v Lord Chelmsford 5 H & N 890, in which the action against counsel was based on his alleged mishandling and settlement of litigation, references to stat......
  • Request a trial to view additional results
1 firm's commentaries
  • Defensive Advising Strategies For Legal Professionals (Video)
    • United Kingdom
    • Mondaq UK
    • 18 de maio de 2021
    ...and client; and (4) A risk checklist. Watch this space. Footnotes 1. [1914] AC 932. 2. (1792) Peake 131. 3. Swinfen v Lord Chelmesford (1860) 5 H. & N. 890. 4. Rondel v Worsely [1967] 1 AC 5. A Lance for Liberty, Harrap (1961). 6. By John Campbell, Pimlico (1983). To download and read this ......
4 books & journal articles
  • MEC for Economic Affairs, Environment and Tourism, Eastern Cape v Kruizenga 2008 6 SA 264 (Ck) MEC for Economic Affairs, Environment and Tourism, Eastern Cape v Kruizenga 2010 4 SA 122 (SCA) : recent case law
    • South Africa
    • De Jure No. 44-1, January 2011
    • 1 de janeiro de 2011
    ...compromise (Chown v Parrot (1863) 14 CB (NS) 74 83). Similar powersextend to counsel in English law (eg Swinfen v Lord Chelmsford (1860) 5H & N 890 921).Midgley (1994 SALJ 420) concludes that our courts, under theinfluence of English law, have distinguished between settlements on theone han......
  • 2005 index
    • South Africa
    • South African Criminal Law Journal No. , August 2019
    • 16 de agosto de 2019
    ...26R v Stoddart 2 Cr App R 233 .................................................................... 294Swinfen v Lord Chelmsford 157 ER 1436 ................................................ 97UNITED STATESCommonwealth v Conaghan 433 Mass 105 (2000) ................................ 265United ......
  • Legal Practitioner
    • Nigeria
    • DSC Publications Online Sasegbon's Laws of Nigeria. Volume 15 Legal Practitioner
    • 10 de julho de 2016
    ...Nigeria Ltd (1986) 3 N.W.L.R. (Pt. 32) 767; Fawehinmi v. N.B.A . (1989) 2 N.W.L.R. (Pt. 105) 494,545 and Swinfeen v. Lord Cheimsford 157 E.R.1436. He even has power to filibuster per Eso J.S.C. in the case Mosheshe General Merchant Ltd .v. Nigeria Steel Products Limited (1987) 2 N.W.L.R. (P......
  • Case Review: Criminal Procedure
    • South Africa
    • South African Criminal Law Journal No. , August 2019
    • 16 de agosto de 2019
    ...guaranteed right to a fair trial, courts can no longer support the approach adopted by the English Court in Swinfen v Lord Chelmsford 157 ER 1436 where it was held (at 1449) that‘a counsel has complete authority over the suit, the mode of conducting it, and all that is incident to it - such......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT