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against the solicitor, for £10 as money received
to her use. After reserving judgment, McCarthy,
D.J., dismissed the claim, on
the ground that
there was no satisfactory evidence that the solici–
tor had made himself personally liable for pay–
ment of this item.
The
legal principles governing
this question
are simple and well settled, although their appli–
cation may on occasion be difficult. In Halsbury's
Laws of England
(Vol. 26, par. 1360) the matter
is thus stated :
"If he (the solicitor) acts under
the authority of his client, he is not, as a general
rule, personally liable in matters of contract, such
as, for example, the payment of witnesses' expen–
ses". But, of course, "The solicitor may, if he
choose, bind himself personally, e.g., to pay the
expenses of witnesses" Gordery on Solicitors,
fourth edition, p. 171.
The cases cited in support of these principles
go back over a long period; they include Robbins
v Bridge (1837) 3 M. & W. 114; Lee v Everest
(1857) 2 H. & N. 285; Hallet v Mears (1810) 13
East. 15; Fendall v Noakes (1840) 3 Jur. 726
(referred to in Lee v Everest); Evans v PhillpotSj
9 G. & P. 270; Bates v Sturges (1832) 2 Moo. &
Sc. 172; Miller v Appleton (1906) 50 Sol. J. 184.
In Robbins v Bridge
(supra)
the headnote
states :
"The attorney in a cause is not personally
liable to a witness whom he subpoenas to give
evidence in a cause for his expenses of atten–
dance," and in the course of the judgment it is
pointed out that a witness can insist on getting
his expenses in advance, and, if he does not do
so, he cannot sue the attorney. The same thing-
applies to work done at the solicitor's request by
an intending witness in order to qualify himself
to give evidence: Lee v Everest (supra). The
principles applicable are those applicable in any
other case of a contract by an agent, made on
behalf of a known principal, the agent does not
bind himself unless he offers to do so by express
words. Moreover, such an offer, in order to be
binding upon the solicitor, must be made before
the work is done by the witness :
i.e., in most
cases before the trial. A promise to pay, made
after the trial, is not enforceable as there is no
consideration for the promise: Bates v Sturges
(supra).
solicitor was held liable to pay a medical witness
his expenses of attendance where the solicitor
had conducted the case throughout on the basis
of not looking to his client (the plaintiff) for any
remuneration and taking his chance of recovering
his costs from the other side; the County Court
Judge took the view that in that case the solicitor
had constituted himself the principal and was
accordingly liable to the witness. An exception to
the general rule is also made in the case of cash
transactions, where
the ordinary assumption
is
that payment will be made by the solicitor. In
Wakefield v Duckworth (1915) 1 K. B. 218, an
action by a photographer who had
supplied
photographs for the purpose of litigation,
the
principles applicable were stated by Lord Cole–
ridge (at p. 220) as follows :
"There are. certain
exceptional cases in which, although one party to
a contract knows that the other is a solicitor
acting for a client, yet the solicitor is personally
responsible,
for
instance,
in cash
transactions,
where it is to be assumed that the solicitor has no
authority to pledge the credit of his client
. . .
Another case
in which the solicitor might be
personally responsible is where a custom can be
proved that he should be so. It is for the judge to
say in any particular case whether such a custom
has been proved, and if it were proved it would
override the ordinary incidents of law so far as
that case is concerned." The photographer's action
against the solicitor was dismissed.
In the District Court case referred to at the
beginning of this article the fact that the bill
was settled at a compromise figure did not, ap–
parently, affect
the
issue. The solicitor could
not in any event have been held liable in the
absence of a definite promise by him to pay, made
before the trial. The client presumably remained
liable for the full amount of the expenses not–
withstanding the compromise. The only way in
which the matter might be affected by the com–
promise of the bill would be where the promise
to pay the witness was expressly qualified by
being made conditional on the full costs being
recovered :
in such a case, owever, the witness
might well make the case that the bill could not
be validly compromised to his detriment without
his consent.
In Evans v Phillpots (supra) the solicitor was.
held liable to pay the witness's expenses on foot
A form of defence to an action by a valuer
of an action for money had and received. There
against a solicitor for his expenses in connection
the solicitor had made a personal promise to pay with an action will be found
in Bullen and
prior to the trial. Again in Miller v Appleton
Leake's Precedents of Pleadings
(1935 ed.) at
(reported in the form of a short note in 60 Sol.
p. 819.
[The Irish Law Times and Solicitors
Jo. 184), an English County Court case,
the
Journal,
Vol. 74, p. 317].
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