The Gazette 1967/71

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.

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. "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). In Robbins v Bridge (supra) the headnote states : In Evans v Phillpots (supra) the solicitor was. held liable to pay the witness's expenses on foot of an action for money had and received. There prior to the trial. Again in Miller v Appleton (reported in the form of a short note in 60 Sol. Jo. 184), an English County Court case, the

A form of defence to an action by a valuer against a solicitor for his expenses in connection

in Bullen and (1935 ed.) at

the solicitor had made a personal promise to pay with an action will be found

Leake's Precedents of Pleadings

[The Irish Law Times and Solicitors

p. 819.

Journal, Vol. 74, p. 317]. 23