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dicta. In Williams
v.
Barnett (16 L.T. N.S. 672)
Blackburn, J., said "His (the attorney's) position
would have been better if he had only asked 2/-
which we understand (after consulting with the
Master) is always allowed for a letter before writ
when the debt is under £20. Here he charges
5/- or 150 per cent. more. However, it seems he
was entitled to something." In Caine v. Coulson
(7 L.T.N.S. 636) Martin, B., said "It was not
unreasonable that an attorney should demand
some remuneration for his trouble in applying for
a debt; but he had no legal claim for it from the
person to whom he applied. Most respectable
attorneys did so apply and no blame attached
for requesting such costs to be paid or in so
writing. Such is however no debt." The judicial
dicta cited above denied the legal obligation of a
debtor to pay anything on foot of costs, provided
that the debt is tendered or paid before the
institution of proceedings, but recognised the
right of solicitors to apply for the costs of the
preliminary letter in ease of their clients, the
creditors. However, in 1873 the question was
raised in the Irish Courts in the case of Alien
v.
O'Callaghan (10 I.L.T.R. 131) and the judges
in the course of the argument expressed the
emphatic opinion
that such applications for
costs should not be made. The following is an
extract from the report. "Dowse, B. 'Suppose an
attorney writes a letter to a debtor asking him to
pay an account claimed to be due, can he also
make the debtor pay the costs of that letter?'
Johnston, Q. C. (for plaintiff) 'In that case the
debtor might perhaps put him at arm's length
but the custom has been to pay the costs.'
Palles, C. B. 'If these costs cannot legally be
demanded it becomes a serious question whether
attorneys, who are officers of the Court, should
continue habitually to make a demand for a sum
of money that the Court has decided could not
be demanded. If there were a solemn decision
of the Court that these sums were not a legal
demand the officers of the Court should follow
that decision and not be asking persons who are
not aware of how the law stands to pay this
demand for the costs of letters before action
brought.' Dowse, B. 'I agree entirely with my
Lord Chief Baron. I have continually seen
instances mentioned in the newspapers of poor
people, debtors and others, having demands for
10/- and 15/- made upon them in this way, and
paying these demands rather than being dragged
into law. If the demand is not legal the attorney
should not be allowed to levy what he might
consider "benevolence" from these parties. It
should be understood that ^attorneys have no
right to make this demand for costs when merely
applying for a debt.' Palles, C. B.
'Costs are
recoverable by an attorney only after action
brought."
If it were not for the emphatic opinions ex
pressed by the eminent judges in Alien v. O'Cal
laghan, it would appear that the right of solicitors
to apply for such costs could not be questioned
either on ethical or legal grounds, any more than
the right to apply on a client's instructions for
payment of a statute barred debt. Solicitors
cannot be expected to conduct their business on
"principles of pure benevolence," and are paid in
such cases either by their clients the creditors, or
by the debtors. The question seems to have been
regarded as if solicitors stand to make a personal
profit from such applications which is not the
case. The question is merely whether such costs
shall be charged as between party and party or as
between solicitor and client. It may be more
convenient for a solicitor to recover his costs from
the debtor together with the debt rather than
from his client, particularly in the case of small
debts, but in the abstract the matter is of concern
to the public rather than the profession. It would
seem, therefore, that the strictures expressed or
implied in the reported dicta of some of the
judges failed to take account of the actual position
of solicitors in this matter. Furthermore, the
debtor who objects to paying such costs has often
availed of various devices to delay payment and,
having put his creditor to the expense of employ
ing a solicitor, can claim no sympathy himself
on equitable grounds. Whatever opinions, how
ever, may be
held as
to
the
injustice of
onerating creditors with costs incurred through
the recalcitrance of their debtors, it is the duty
of solicitors as officers of the Court to respect and
follow the law as it exists, and to act in accordance
with the authoritative opinions of the judges of
the Irish Court in the case of Alien
v.
O'Callaghan
cited above. The gravamen of the criticism of
such letters is the expressed or implied threat of
proceedings to induce payment of a sum of money
which is not legally due. A letter demanding
payment of the debt in such terms as to lead the
debtor to believe that the costs also are legally
due would be open to the same objection. In order
to avoid the objection the fact that the amount
of the debt alone is legally due would have to be
so clearly expressed that the letter would be
ineffective in so far as the costs are concerned,
and in this regard not worth writing.
It is, however, clear that it is not improper on
the part of a solicitor for a creditor to make it a
condition precedent on the acceptance of pay
ment of a debt by instalments that the debtor
shall indemnify the creditor against his costs.
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