'
Solicitor's Lien for Co.~ts on
money.~ recovered by
ltim-Que.~tion of Relationship
or otherwise between Agent
Solicitor and Client of
Principal Solicitor-Summar]}
Power of Supreme Court of the
Gambia to order payment over of
money.~ in his possession by a
Solicitor to his client defined.
The facts of the case are
sufficiently set out in the
judgment.
E. S. B. Betts
for the Appellant. C.
J. Kempson
for the Respondent.
The following judgment was
delivered:-
DEANE, C.J., GOLD COAST.
In this matter the
appellant-defendant ill the
Court below appealed against an
order made by the Supreme Court
of the Gambia ordering him to
pay to the plaintiff the sum of
£221 with costs of the
application.
The application was made under
the summary power of the Court
to order a solicitor to pay over
to his client all moneys which
he has received for or on
account of his client, and
disobedience to it involves a
liability to committal for
default.
The facts of the case appear at
length in the judgment of the
Court below, and all that I need
say is that, a judgment having
been obtained in the \Vest
African Court of Appeal in
Sierra Leone by the plaintiff
(respondent), his solicitor, a
Mr. Barlatt, requested the
appellant a solicitor practising
in the Gambia to take out a writ
of fi fa in the Gambia for the
purpose of realising the
judgment. This he did but the
matter never went to execution,
the judgment debtor paying up
the amount of the judgment which
amounted to £4,420 9s. Od. When
this money came to the hands of
the appellant he did not forward
it to the appeJIant's solicitor
as he had been asked to do with
a statement of his charges, but
retained out of it £221 to which
he alleged he was entitled as
being five per cent of the
amount recovered.
The respondent thereupon wrote
to the appeJIant protesting
against his keeping this £221,
and suggested that he should
either get his bill taxed or,
failing that, should pay him the
amount less £10, which he
suggested was ample to cover the
charges for his work.
The appellant wrote refusing his
offer, and pointed out that he
had been employed not by him but
by Mr. Barlatt, and that he
would render his account, if any
was needed, to that gentleman.
. ,
114
. Appeal Court.
17 October 1934.
Appeal from an Order of the
Supreme Court
of the Gambia.
Michael Adballah in re LadelJOn
Thomas.
115
The respondent thereupon applied
for an order on the Michael
appellant to pay the whole
amount of £221 into Court.
Adballah
On the matter coming before the
Court the appellant, while L
~n re
b d . h' I'
b . I .1
•
d a epon
no ~ an onmg 1S c a1m to e enht
eu to the £221 whlCh he ha
Thomas
retamed, contended that no order
in the summary jurisdiction
could be made against him since
he was not a solicitor of the
Deane, a.J. respondent at the
time he received the money, and
further that
he had a lien on this money in
his own right, and through Mr.
Barlatt, who claimed that he had
not yet been paid.
Now it is clear that ·the
summary jurisclietion of the
Court to order a solicitor to
pay money into Court can only be
exercised if the following
circumstances exist-26 Halsbury
p. 837:-
1. The person applying for the
order must be the client of the
solicitor-it follows that no
order is made when the existence
of the relationship of solicitor
and client between the parties
is denied by the applicant
(Re Ma'rshall
(1857) 5 1V.R. 200).
2. 'l'he relation of solicitor
and client must have existed at
the time when the money in
question was received by the
solici tor.
3. The money in question must
have been received by the
80licitoron behalf of the
applicant, or in other words the
solicitor must have been acting
as solicitor for the applicant
in the transaction in which he
received it.
4. 'fhe money must have been
received by the solicitor in his
capacity as an officer of the
Court.
5. 'fhe solicitor must have
refused, without lawful excuse,
to pay the money over to the
client.
The first three of these
requisites are various aspects
of one proposition viz: that the
relationship of client and
solicitor must exist between the
parties at the time of the
transaction beiore an order can
be made.
N ow in this case it is quite
clear that not only did the
respondent allege that the
appellant was not his solicitor
but the learned trial Judge
himself found that no such
relation existed between himself
and the appellant. On page 49 of
his judgment he states: "Mr.
Ladepon Thomas was employed by
Mr. Barlatt alone and must look
to him only for his costs."
The learned Judge, however,
although he so held seems to
have considered that he was
justified by the case of
E.v parte Edwards
(1887) 8 Q.B.D. 264 in making-
the order. In that case a town
solicitor who had claimed to
keep back certain moneys, which
had come into his hands for Miss
Edwards, in order to satisfy a
general lien which he claimed to
have against the country
solicitor who had instructed him
was ordered to pay over the
money, but the circumstances
under which the Court thought it
had the power to make the order
in that case differed
considerably from the
circumstances here. In that
case the country solicitor
ranged himself
116
Michael Adballah
in re
Ladepon Thomas
Deane, C.J.
Michael Adballah in re Lailepon
Thomas.
with the client, and it was
admitted both by the country
solicitor and the town solicitor
that their costs in the
particular matter had been paid
in full. The Court held that the
only defence of the town
solicitor for retaining the
money being that he had a
general lien on it against the
country solicitor and such
defence being untenable at law
the money must be paid. The
point in fact is that the
country solicitor, whose
solicitor the town solicitor was
and not strictly speaking Miss
Edwards, was supporting Miss
Edwards and therefore there
being no valid excuse the order
might be made.
The law however is clear that
the relation of solicitor and
client must exist, and here we
have a definite denial by the
plaintiff (respondent) that it
does so exist, coupled with a
finding by the Court to the same
effect.
Under the fifth head again it is
clear that the order will not be
made if the solicitor has any
lawful right to retain the
money.
Now here it is clear on the
authority of
Dicas v. Stockley
173 Eng. Rep. 258, that a
solicitor has a lien for his
services upon moneys received by
him by reason of those serviees.
It follows that Mr. Thomas, who
has not been paid for those
services, cannot be ordered to
pay the £221 into Court, thus
defeating his lien.
Again Mr. Barlatt, the
solicitor, has a lien upon the
amount recovered for his
services as a solicitor, and Mr.
Thomas would not be justified in
paying over the £221 after he
had been informed by Mr. Barlatt
of his claim, nor-should the
Court make any order depriving
Mr. Barlatt of the benefit of
such lien. From Mr. Barlatt's
evidence it is clear that the
question of what sum he is
entitled to for his sen' ices as
solicitor of the plaintiff on
the action is still pending',
and until that question is
settled the Court should not
deprive Mr. Barlatt of any right
he may have under his Hen by
ordering Mr. Thomas to pay over
the money.
The fact of the matter is that
the procedure adopted in this
case was quite inappropriate. 'l'he
plaintiff's remedy was not
against Mr. Thomas, who was not
his solicitor, but against Mr.
Barlatt who was. He should have
called upon Mr. Barlatt to tax
his bill, and, that having been
done, he could have applied to
the Court to order summary
payment of the amount, if any,
remaining after payment of the
taxed costs. Mr. Barlatt in turn
would have a similar remedy
against Mr. Thomas after his
bill had been taxed.
That being the case the appeal
must be allowed and the order
made be set aside. 'Vhen it
comes to a question of costs we
cannot however escape from the
conviction that this money has
been retained by Mr. Thomas
under circumstances which do not
commend themselves to us in an
officer of the Court.
Mr. Barlatt who gave evidence
before us on his behalf, and who
is now not on good terms with
the respondent, admitted that he
considered the charge of £221
exorbitant, and as we have seen
the reason given for retaining
it at first was not by way of
lien but
.Michael Adballah in re Ladepon
Thomas.
as payment for services rendered
by him-we think, therefore, that
while he is entitled to the costs
of this appeal, both parties
should be called upon to bear
their own costs in the. Court
below.
The Court below to c!1!ry out.
WEBBER, C.J., SIERRA LEONE.
I
concur.
BUTLER-LLOYD, J.
I
concur.
111
l\-Iichael Adballah in re
Ladepon Thomas
Deane, C.
'Vebber, C.J.T., and
Butler-Lloyd, J.
Ex PARTE MICHAEL ADBALLAH ...
Plaintiff-Respondent .
Solicitor's Lien for Co.~ts on
money.~ recovered by
ltim-Que.~tion of Relationship
or otherwise between Agent
Solicitor and Client of
Principal Solicitor-Summar]}
Power of Supreme Court of the
Gambia to order payment over of
money.~ in his possession by a
Solicitor to his client defined.
The facts of the case are
sufficiently set out in the
judgment.
E. S. B. Betts
for the Appellant. C.
J. Kempson
for the Respondent.
The following judgment was
delivered:-
DEANE, C.J., GOLD COAST.
In this matter the
appellant-defendant ill the
Court below appealed against an
order made by the Supreme Court
of the Gambia ordering him to
pay to the plaintiff the sum of
£221 with costs of the
application.
The application was made under
the summary power of the Court
to order a solicitor to pay over
to his client all moneys which
he has received for or on
account of his client, and
disobedience to it involves a
liability to committal for
default.
The facts of the case appear at
length in the judgment of the
Court below, and all that I need
say is that, a judgment having
been obtained in the \Vest
African Court of Appeal in
Sierra Leone by the plaintiff
(respondent), his solicitor, a
Mr. Barlatt, requested the
appellant a solicitor practising
in the Gambia to take out a writ
of fi fa in the Gambia for the
purpose of realising the
judgment. This he did but the
matter never went to execution,
the judgment debtor paying up
the amount of the judgment which
amounted to £4,420 9s. Od. When
this money came to the hands of
the appellant he did not forward
it to the appeJIant's solicitor
as he had been asked to do with
a statement of his charges, but
retained out of it £221 to which
he alleged he was entitled as
being five per cent of the
amount recovered.
The respondent thereupon wrote
to the appeJIant protesting
against his keeping this £221,
and suggested that he should
either get his bill taxed or,
failing that, should pay him the
amount less £10, which he
suggested was ample to cover the
charges for his work.
The appellant wrote refusing his
offer, and pointed out that he
had been employed not by him but
by Mr. Barlatt, and that he
would render his account, if any
was needed, to that gentleman.
. ,
114
. Appeal Court.
17 October 1934.
Appeal from an Order of the
Supreme Court
of the Gambia.
IN RE G. W. S. LADEPON THOMAS
Defendant-Appellant.
Michael Adballah in re LadelJOn
Thomas.
115
The respondent thereupon applied
for an order on the Michael
appellant to pay the whole
amount of £221 into Court.
Adballah
On the matter coming before the
Court the appellant, while L
~n re
b d . h' I'
b . I .1
•
d a epon
no ~ an onmg 1S c a1m to e enht
eu to the £221 whlCh he ha
Thomas
retamed, contended that no order
in the summary jurisdiction
could be made against him since
he was not a solicitor of the
Deane, a.J. respondent at the
time he received the money, and
further that
he had a lien on this money in
his own right, and through Mr.
Barlatt, who claimed that he had
not yet been paid.
Now it is clear that ·the
summary jurisclietion of the
Court to order a solicitor to
pay money into Court can only be
exercised if the following
circumstances exist-26 Halsbury
p. 837:-
1. The person applying for the
order must be the client of the
solicitor-it follows that no
order is made when the existence
of the relationship of solicitor
and client between the parties
is denied by the applicant
(Re Ma'rshall
(1857) 5 1V.R. 200).
2. 'l'he relation of solicitor
and client must have existed at
the time when the money in
question was received by the
solici tor.
3. The money in question must
have been received by the
80licitoron behalf of the
applicant, or in other words the
solicitor must have been acting
as solicitor for the applicant
in the transaction in which he
received it.
4. 'fhe money must have been
received by the solicitor in his
capacity as an officer of the
Court.
5. 'fhe solicitor must have
refused, without lawful excuse,
to pay the money over to the
client.
The first three of these
requisites are various aspects
of one proposition viz: that the
relationship of client and
solicitor must exist between the
parties at the time of the
transaction beiore an order can
be made.
N ow in this case it is quite
clear that not only did the
respondent allege that the
appellant was not his solicitor
but the learned trial Judge
himself found that no such
relation existed between himself
and the appellant. On page 49 of
his judgment he states: "Mr.
Ladepon Thomas was employed by
Mr. Barlatt alone and must look
to him only for his costs."
The learned Judge, however,
although he so held seems to
have considered that he was
justified by the case of
E.v parte Edwards
(1887) 8 Q.B.D. 264 in making-
the order. In that case a town
solicitor who had claimed to
keep back certain moneys, which
had come into his hands for Miss
Edwards, in order to satisfy a
general lien which he claimed to
have against the country
solicitor who had instructed him
was ordered to pay over the
money, but the circumstances
under which the Court thought it
had the power to make the order
in that case differed
considerably from the
circumstances here. In that
case the country solicitor
ranged himself
116
Michael Adballah
in re
Ladepon Thomas
Deane, C.J.
Michael Adballah in re Lailepon
Thomas.
with the client, and it was
admitted both by the country
solicitor and the town solicitor
that their costs in the
particular matter had been paid
in full. The Court held that the
only defence of the town
solicitor for retaining the
money being that he had a
general lien on it against the
country solicitor and such
defence being untenable at law
the money must be paid. The
point in fact is that the
country solicitor, whose
solicitor the town solicitor was
and not strictly speaking Miss
Edwards, was supporting Miss
Edwards and therefore there
being no valid excuse the order
might be made.
The law however is clear that
the relation of solicitor and
client must exist, and here we
have a definite denial by the
plaintiff (respondent) that it
does so exist, coupled with a
finding by the Court to the same
effect.
Under the fifth head again it is
clear that the order will not be
made if the solicitor has any
lawful right to retain the
money.
Now here it is clear on the
authority of
Dicas v. Stockley
173 Eng. Rep. 258, that a
solicitor has a lien for his
services upon moneys received by
him by reason of those serviees.
It follows that Mr. Thomas, who
has not been paid for those
services, cannot be ordered to
pay the £221 into Court, thus
defeating his lien.
Again Mr. Barlatt, the
solicitor, has a lien upon the
amount recovered for his
services as a solicitor, and Mr.
Thomas would not be justified in
paying over the £221 after he
had been informed by Mr. Barlatt
of his claim, nor-should the
Court make any order depriving
Mr. Barlatt of the benefit of
such lien. From Mr. Barlatt's
evidence it is clear that the
question of what sum he is
entitled to for his sen' ices as
solicitor of the plaintiff on
the action is still pending',
and until that question is
settled the Court should not
deprive Mr. Barlatt of any right
he may have under his Hen by
ordering Mr. Thomas to pay over
the money.
The fact of the matter is that
the procedure adopted in this
case was quite inappropriate. 'l'he
plaintiff's remedy was not
against Mr. Thomas, who was not
his solicitor, but against Mr.
Barlatt who was. He should have
called upon Mr. Barlatt to tax
his bill, and, that having been
done, he could have applied to
the Court to order summary
payment of the amount, if any,
remaining after payment of the
taxed costs. Mr. Barlatt in turn
would have a similar remedy
against Mr. Thomas after his
bill had been taxed.
That being the case the appeal
must be allowed and the order
made be set aside. 'Vhen it
comes to a question of costs we
cannot however escape from the
conviction that this money has
been retained by Mr. Thomas
under circumstances which do not
commend themselves to us in an
officer of the Court.
Mr. Barlatt who gave evidence
before us on his behalf, and who
is now not on good terms with
the respondent, admitted that he
considered the charge of £221
exorbitant, and as we have seen
the reason given for retaining
it at first was not by way of
lien but
.Michael Adballah in re Ladepon
Thomas.
as payment for services rendered
by him-we think, therefore, that
while he is entitled to the costs
of this appeal, both parties
should be called upon to bear
their own costs in the. Court
below.
The Court below to c!1!ry out.
WEBBER, C.J., SIERRA LEONE.
I
concur.
BUTLER-LLOYD, J.
I
concur.
111
l\-Iichael Adballah in re
Ladepon Thomas
Deane, C. |