The Gazette 1944-46

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.

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

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