BOOK V.-DIVISION III. STATUTES CONTAINING SPECIAL PROVISIONS AS Objects of torneys' and Short title. The Attorneys' and Solicitors' Act, 1870. 8. 1. Interpretation clause. Attorneys' and Solici tors' Act, 1870, s. 3. CHAPTER III. PROCEEDINGS UNDER THE ATTORNEYS' AND SOLICITORS' ACT, 1870. In the year 1870 an Act of Parliament was passed (33 & 34 Vict. c. 28) to amend the law relating to attorneys and solicitors. It would be impossible to summarise here the whole of the contents of the Act, but those which will be referred to in County Court practice are as follow. A short title to the Act is provided by the following section : "This Act may be cited as 'The Attorneys' and Solicitors' Act,' 1870."-33 & 34 Vict. c. 28, s. 1. The Act also contains the following interpretation clause :"In the construction of this Act, unless where the context "otherwise requires, the words following have the significations hereinafter respectively assigned to them; that is to say, "The words attorney or solicitor' mean an attorney, "solicitor, or proctor, qualified according to the pro"visions of the Acts for the time being in force, relating to the admission and qualification of attor"neys, solicitors, or proctors: (a) 66 "Person' includes a corporation : "Client' includes any person who, as a principal or on "behalf of another person, retains or employs, or is "about to retain or employ, an attorney or solicitor, "and any person who is or may be liable to pay the bill of an attorney or solicitor for any services, fees, "costs, charges, or disbursements."-33 & 34 Vict. c. 28, s. 3. 66 (a) "The Supreme Court of Judicature Act, 1873," provides that Attorneys and Proctors are to be called Solicitors of Supreme Court (sect. 87, amended by 58 & 39 Vict. c. 77, s. 14). 66 66 Solicitor may make written agreement with his client as to remuneration. may make a written with a client as to charges, but amount agreed not to be paid till agreement allowed by By subsequent sections of the Act an agreement as to the solicitor's remuneration, which was formerly illegal, is rendered valid if it be in writing and allowed by a taxing master. Such sections are as follow:--"An attorney or solicitor may make an agreement in "writing with his client respecting the amount and manner of A solicitor payment for the whole or any part of any past or future "services, fees, charges, or disbursements in respect of business agreement "done or to be done by such attorney or solicitor, whether as "an attorney or solicitor or as an advocate or conveyancer, "either by a gross sum, or by commission or per-centage, or by salary or otherwise, and either at the same or at a greater "or at a less rate as or than the rate at which he would other"wise be entitled to be remunerated, subject to the provisions "and conditions in this part of this Act contained: Provided a taxing always, that when any such agreement shall be made in officer. respect of business done or to be done in any action at law Attorneys or suit in equity, the amount payable under the agreement "shall not be received by the attorney or solicitor until the agreement has been examined and allowed by a taxing officer of a Court having power to enforce the agreement; and if it "shall appear to such taxing officer that the agreement is not "fair and reasonable he may require the opinion of a Court or a Judge to be taken thereon by motion or petition, and such "Court or Judge shall have power either to reduce the amount "payable under the agreement or to order the agreement to be "cancelled and the costs, fees, charges, and disbursements in respect of the business done to be taxed in the same manner as if no such agreement had been made."-33 & 34 Vict. c. 28, s. 4. 66 66 66 66 66 66 66 66 66 66 Such an agreement shall not affect the amount of, or any "rights or remedies for the recovery of, any costs recoverable "from the client by any other person, or payable to the client "by any other person, and any such person may require any "costs payable or recoverable by him to or from the client to be taxed according to the rules for the time being in force "for the taxation of such costs, unless such person has other"wise agreed: Provided always, that the client who has "entered into such agreement shall not be entitled to recover from any other person under any order for the payment of any costs which are the subject of such agreement more than "the amount payable by the client to his own attorney or "solicitor under the same."-33 & 34 Vict. c. 28, s. 5. 66 "Such an agreement shall be deemed to exclude any further "claim of the attorney or solicitor beyond the terms of the "agreement in respect of any services, fees, charges, or dis"bursements in relation to the conduct and completion of the "business in reference to which the agreement is made except ** such services, fees, charges, or disbursements, if any, as are and Solici tors' Act, 1870, 8. 4. And the rights of third parbe affected by such agreement. ties shall not Id., s. 5. But all claims by solicitor beyond those agreed for to be excluded. Id., s. 6. Reservation of responsibility for negligence. Id., s. 7. Prohibition of certain stipulations. Id., s. 11. Not to give which may enforce agree- Act. The Attorneys' and Solicitors' Act, 1870, 8. 8. Id., s. 9. 66 expressly excepted by the agreement."-33 & 34 Vict. c. 28, 8. 6. "A provision in any such agreement that the attorney or "solicitor shall not be liable for negligence, or that he shall be "relieved from any responsibility to which he would otherwise "be subject as such attorney or solicitor, shall be wholly void." -33 & 34 Vict. c. 28, s. 7. 66 66 66 66 Nothing in this Act contained shall be construed to give validity to any purchase by an attorney or solicitor of the interest, or any part of the interest, of his client in any suit, "action, or other contentious proceeding to be brought or maintained, or to give validity to any agreement by which an "attorney or solicitor retained or employed to prosecute any "suit or action, stipulates for payment only in the event of success in such suit, action, or proceeding."-33 & 34 Vict. c. 28, s. 11. 66 66 66 Nothing in this Act contained shall give validity to any disposition, contract, settlement, conveyance, delivery, deal"ing, or transfer, which may be void or invalid against a "trustee or creditor in bankruptcy, arrangement, or composition, under the provisions of the laws relating to bankruptcy." -33 & 34 Vict. c. 28, s. 12. Bargain between solicitors and their clients having been thus made legal, the Act goes on to give the Courts jurisdiction either (1) To examine and enforce such agreements, or (2) To set aside or re-open such agreements. First, jurisdiction to examine and enforce agreements under the Act is conferred by the following enactment : 66 66 66 "No action or suit shall be brought or instituted upon any "such agreement; but every question respecting the validity or effect of any such agreement may be examined and deter"mined, and the agreement may be enforced or set aside, with"out suit or action, on motion or petition of any person, or the representative of any person, a party to such agreement, or being or alleged to be liable to pay, or being or claiming to "be entitled to be paid, the costs, fees, charges, or disburse"ments in respect of which the agreement is made, by the "Court in which the business, or any part thereof, was done, "or a Judge thereof, or if the business was not done in any "Court, then where the amount payable under the agreement "exceeds fifty pounds, by any Superior Court of law or equity or a Judge thereof, and where such amount does not exceed fifty pounds, by the Judge of a County Court which would "have jurisdiction in an action upon the agreement."—33 & 34 Vict. c. 28, s. 8. 66 66 66 66 66 66 Upon any such motion or petition as aforesaid, if it shall appear to the Court or Judge that such agreement is in all respects fair and reasonable between the parties, the same may be enforced by such Court or Judge by rule or order in 66 66 such manner and subject to such conditions, if any, as to the "costs of such motion or petition as such Court or Judge may "think fit; but if the terms of such agreement shall not be deemed by the Court or Judge to be fair and reasonable, the "same may be declared void, and the Court or Judge shall thereupon have power to order such agreement to be given "up to be cancelled, and may direct the costs, fees, charges, "and disbursements incurred or chargeable in respect of the "matters included therein to be taxed in the same manner and 66 according to the same rules as if such agreement had not "been made; and the Court or Judge may also make such "order as to the costs of and relating to such motion or peti"tion, and the proceedings thereon, as to the said Court or "Judge may seem fit."-33 & 34 Vict. c. 28, s. 9. Secondly, power to set aside an agreement made under the Act in cases where such agreement appears improper, exists as follows: (2.) Jurisdiction to set aside agreement under Act. In cases where the money due from the client under the Act has not been paid, and proceedings are taken under section 8, power to set aside such agreement is, it will be noted, expressly nothing paid. given by the latter portion of section 9 (just set out). -Where But in cases where payment has been made under the agree- -Where ment of the amount due thereunder, power to reopen the agree- payments ment is derived from the following section : 66 66 have been made. In special cases. The Attor neys' and Solicitors' "When the amount agreed for under any such agreement "has been paid by or on behalf of the client, or by any person chargeable with or entitled to pay the same, any Court or "Judge having jurisdiction to examine and enforce such an "agreement may, upon application by the person who has paid such amount, within twelve months after the payment Act, 1870, thereof, if it appears to such Court or Judge that the special s. 10. "circumstances of the case require the agreement to be "re-opened, re-open the same, and order the costs, fees, charges, "and disbursements to be taxed, and the whole or any portion " of the amount received by the attorney or solicitor to be re"paid by him, on such terms and conditions as to the Court or "Judge may seem just. 66 "Where any such agreement is made by the client in the capacity of guardian, or of trustee under a deed or will, or of "committee of any person or persons whose estate or property " will be chargeable with the amount payable under such agree"ment, or with any part of such amount, the agreement shall "before payment be laid before the taxing officer of a Court "having jurisdiction to enforce the agreement, and such officer "shall examine the same, and may disallow any part thereof, "or may require the direction of the Court or a Judge to be "taken thereon by motion of petition; and if in any such case "the client pay the whole or any part of the amount payable "under the agreement, without the previous allowance of such Jurisdiction of the County Court limited to £50. Parties. -To application to enforce or set aside agreement. -In cases where the solicitor dies. The Attorneys' and Solicitors' Act, 1870, 8. 13. 66 66 "officer or Court or Judge as aforesaid, he shall be liable at any time to account to the person whose estate or property is charged with the amount paid, or with any part thereof for "the amount so charged; and if in any such case the attorney "or solicitor accept payment without such allowance, any "Court which would have had jurisdiction to enforce the agree"ment may, if it think fit, order him to refund the amount so "received by him under the agreement."-33 & 34 Vict. c. 28, 66 s. 10. It is to be noticed that, by this section, the jurisdiction of the County Court, under "The Attorneys and Solicitors Act, 1870," arises where the amount payable under the agreement does not exceed £50, but that, even then, the County Courts have no jurisdiction where any part of the business, in respect of which the agreement is made, arose in any Court other than a County Court. As regards the parties to proceedings under the Act, the following points require notice. Applications to have an agreement enforced or set aside may be made by "any person, or the representative of any person, a party "to such agreement, or being or alleged to be liable to pay, or being or claiming to be entitled to be paid, the costs, fees, charges, or "disbursements in respect of which the agreement is made" (b). Moreover, application also may be made to the Court in case of the death of a solicitor who has entered into an agreement under the Act after something has been done by him under it, but before the agreement has been completely performed by him. 66 66 66 66 66 66 "Where an attorney or solicitor has made an agreement with "his client in pursuance of the provisions of this Act, and anything has been done by such attorney or solicitor under the agreement, and before the agreement has been completely performed by him, such attorney or solicitor dies or becomes incapable to act, an application may be made to any Court "which would have jurisdiction to examine and enforce the agreement by any party thereto, or by the representatives of any such party, and such Court shall thereupon have the same power to enforce or set aside such agreement, so far as "the same may have been acted upon, as if such death or incapacity had not happened; and such Court, if it shall deem "the agreement to be in all respects fair and reasonable, may "order the amount due in respect of the past performance of "the agreement to be ascertained by taxation, and the taxing "officer in ascertaining such amount shall have regard so far as may be to the terms of the agreement, and payment of the "amount found to be due may be enforced in the same manner "as if the agreement had been completely performed by the attorney or solicitor."-33 & 34 Vict. c. 28, s. 13. 66 66 (3) 33 & 34 Vict. c. 28, s. 8. ante, p. 968. |