Yonge v Toynbee

JurisdictionEngland & Wales
Date1910
Year1910
CourtCourt of Appeal
[IN THE COURT OF APPEAL.] YONGE v. TOYNBEE. 1909 Nov. 12, 13, 15; Dec. 21. SWINFEN EADY J., VAUGHAN WILLIAMS and BUCKLEY L.JJ.

Solicitor - Retainer to conduct Defence to an Action - Lunacy of Client - Determination of Solicitor's Authority - Steps in Action taken by Solicitor in ignorance of Determination of Authority - Implied Warranty of Existence of Authority - Liability of Solicitor personally to pay Plaintiff's Costs - Practice - Appeal - “Matter of practice and procedure” - Judicature Act, 1894 (57 & 58 Vict. c. 16), s. 1, sub-s. 4.

Where an authority given to an agent has, without his knowledge, been determined by the death or lunacy of the principal, and, subsequently, the agent has, in the belief that he was acting in pursuance thereof, made a contract or transacted some business, with another person, representing that, in so doing, he was acting on behalf of the principal, the agent is liable, as having impliedly warranted the existence of the authority which he assumed to exercise, to that other person, in respect of damage occasioned to him by reason of the non-existence of that authority.

Solicitors were instructed by a client to conduct his defence to an action which was then threatened and was afterwards commenced against him. Before the commencement of the action the client became, and was certified as being, of unsound mind. In ignorance of his unsoundness of mind, and of his having been so certified, the solicitors entered an appearance for him in the action, and delivered a defence, to which the plaintiff replied, and other interlocutory proceedings took place in the action. Subsequently, the action not then having come to trial, the plaintiff's solicitor was informed that the defendant had been certified as being of unsound mind; and an application was made on behalf of the plaintiff at chambers for an order that the appearance and all subsequent proceedings in the action should be struck out, and that the solicitors who had assumed to act for the defendant should be ordered personally to pay the plaintiff's costs of the action up to date, on the ground that they had so acted without authority. The Master made an order that the appearance and subsequent proceedings in the action should be struck out, but refused to make an order for payment of the plaintiff's costs by the solicitors personally, which refusal was on appeal affirmed by the judge at chambers. The plaintiff having appealed to the Court of Appeal:—

Held — (1.) (by Buckley L.J. and Swinfen Eady J.) that the appeal was on a matter of practice and procedure within the meaning of the Judicature Act, 1894, s. 1, sub-s. 4, and, therefore, the appeal lay direct to the Court of Appeal, and not to the Divisional Court;

(2.) (by Vaughan Williams L.J., Buckley L.J., and Swinfen Eady J., Vaughan Williams L.J. doubting), that the solicitors who had taken on themselves to act for the defendant in the action had thereby impliedly warranted that they had authority to do so, and therefore were liable personally to pay the plaintiff's costs of the action.

Smout v. Ilbery, (1842) 10 M. & W. 1, questioned.

Collen v. Wright, (1857) 8 E. & B. 647, followed.

APPEAL from refusal by Sutton J. at chambers to order that solicitors, who had assumed to act for the defendant in an action for libel and slander, should personally pay the plaintiff's costs in the action.

The defendant Toynbee in August, 1908, retained Messrs. Wontner & Sons, the respondents in the appeal, to act as his solicitors in the conduct of his defence to an action which he then expected to be brought against him by the plaintiff, and, on several occasions in September, instructions in the matter were given by him to the respondents. On October 8, 1908, the defendant was certified, and a detention order was made against him, as being a person of unsound mind not so found by inquisition. It appeared that the respondents had at that time been informed that the defendant wac suffering from a nervous breakdown, and was in a home and unable to attend to any business, but it was not until April, 1909, that they became aware that he was of unsound mind and that he had been certified as such. On October 26, 1908, the plaintiff brought an action against one Morshead and the defendant for libel and slander. On October 30 the respondents undertook to appear in that action for the defendant, and did, in pursuance of that undertaking, on November 6 enter an appearance for the defendant. The plaintiff, being subsequently advised that the defendant and Morshead were improperly joined as defendants in that action, discontinued that action as against the defendant, and on December 19 commenced a fresh action against him for libel and slander. The respondents on December 21, 1908, undertook to appear for the defendant in this action, and on December 30 entered an appearance accordingly. On February 22, 1909, they delivered a statement of defence in the action, pleading privilege and denying the alleged libel and slander. On February 26, 1909, an order was made in lunacy appointing the defendant's wife receiver of his estate with certain of the powers of a committee thereof. The plaintiff put in a reply to the defence of the defendant, and other interlocutory proceedings in the action took place. Afterwards, on April 5, 1909, the action not having then come to trial, the respondents, having, as before mentioned, become aware that the defendant had been certified as a person of unsound mind, forthwith communicated that fact to the plaintiff's solicitor. Correspondence ensued between the plaintiff's solicitors and the respondents with regard to the appointment of a guardian ad litem for the defendant, but ultimately none was appointed. Application was subsequently made on behalf of the plaintiff to a Master at chambers for an order that the appearance in the action, and all proceedings subsequent thereto, should be struck out, and that the respondents should personally pay to the plaintiff her costs of the action, on the ground that they had acted for the defendant without authority. The Master made an order that the appearance and subsequent proceedings in the action should be struck out, but refused to make an order that the respondents should personally pay the plaintiff's costs of the action. On appeal to Sutton J. at chambers against that refusal, he affirmed the decision of the Master. The plaintiff appealed to the Court of Appeal.

Nov. 12. G. A. Scott, for the respondents, Messrs. Wontner & Sons. There is a preliminary objection to the hearing of this appeal. The application at chambers, as between the plaintiff and Messrs. Wontner & Sons, was not a matter of practice and procedure within the meaning of s. 1, sub-s. 4, of the Judicature Act, 1894, and there is no appeal under that sub-section to the Court of Appeal. Further, any order made upon such an application is a final order, from which there is a right of appeal, and under s. 1, sub-s. 5, the appeal lies to the Divisional Court. In re MarchantF1 is a clear authority on both points. The application did not, in the proper meaning of the phrase, arise out of an action; it was in effect an originating summons, tacked on to the summons in the action which asked that the proceedings should be struck out. It was an application to the summary jurisdiction of the Court, and an order made upon such an application is a final and not an interlocutory order: In re MarchantF2; Hayden v. Cartwright.F3

Montague Shearman, K.C. (Ernest Todd with him), for the appellant, the plaintiff in the action. The true question is not whether the order is final or interlocutory, but whether it was made in or in connection with an action. It is a good practical working rule that such an application, if made in connection with an action, is a matter of practice and procedure; secus, if it is an independent proceeding wholly unconnected with an action: see Annual Practice for 1910, vol. 2, 655, 656. That is the distinction drawn in In re MarchantF2, where the undertaking sought to be enforced against a solicitor was not given in the course of an action. Here the solicitors have brought themselves within the purview of the action by undertaking to accept service of the writ. This application is as much a matter of practice and procedure as a summons to review the taxation of a solicitor's bill of costs, which has been held to be such a matter: In re Oddy.F4

G. A. Scott in reply. Whether this is a matter of practice and procedure or not, it is clear from Hayden v. CartwrightF3 and In re MarchantF2 that this is a final order, from which under s. 1, sub-s. 5, of the Judicature Act, 1894, an appeal must be brought to the Divisional Court and not to the Court of Appeal.

BUCKLEY L.J. I am of opinion that the preliminary objection to this appeal fails. After the issue of the writ in the action Messrs. Wontner & Sons, the defendant's solicitors, undertook to enter, and in due course did enter, an appearance for the defendant. Subsequently the plaintiff applied to Master Wilberforce that the appearance and all the subsequent proceedings in the action should be struck out, and that Messrs. Wontner & Sons should be ordered to pay the plaintiff's costs incurred subsequently to the appearance. The ground of the application was that the defendant was not of sound mind at the time when Messrs. Wontner & Sons undertook to enter an appearance or at the time when they in fact entered it. The Master confined his order to the earlier part of the application and ordered that the appearance and all subsequent proceedings in the action should be struck out; he made no order on that part of the summons which asked for payment of the plaintiff's costs by Messrs. Wontner & Sons. Upon appeal to the judge at chambers the decision of the Master was affirmed. It results that no order has been made on the second part of the summons. The plaintiff's notice of appeal to this Court asks that...

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    ...42Macura, above, at [225]. 43Macura, above, at [226], [234]. 44Macura, above, at [242]. 45Brereton, above, at 245 citing Yonge v Toynbee [1910] 1 KB 215 in which the defendant initially had capacity, but subsequently ceased to have capacity due to unsoundness of mind. The defendant's solici......
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