ASKARAN CHOUTMAL Vs. EIRYAND CO

JUDGEMENT

(1.) This motion raises a question of general interest and importance relating to the authority of counsel to compromise a suit. The material facts are simple and can readily be ascertained. The suit out of which this motion arises was brought to recover a sum of Rs. 3,117-13 as damages for the non-deli-very of a consignment of ghee which the defendant company had accepted for transportation. Oil the 11 November, 1924 the suit was in the list for hearing, but was adjourned by consent. On the 20 or 21 November, Mr. A. K. Roy, counsel for the plaintiff, and Mr. S.K. Gupta, counsel for the defendant, in the presence of Mr. Sushil Sen, solicitor for the plaintiff, held a meeting in the Bar Library for the purpose of negotiating a settlement of the suit. Mr. Gupta suggested that the claim should be settled for Rs. 1,500; Mr. Boy asked for Rs. 2,000, and eventually it was agreed that a decree should be passed for Rs. 1,750 in full settlement of the plaintiff's claim and costs. On the 24 November, Mr. Sen requested Mr. Gupta to move the Court that the terms of settlement be recorded, and a decree passed in accordance therewith. Mr. Gupta expressed his willingness to do so. Late in the afternoon on the 24 November, however, Messrs. Morgan and Co., solicitors for the defendant company, received a letter from the defendant refusing to agree to a settlement, and expressing a desire that the suit should be fought out. On the 25 November Mr. Gupta informed Mr. Sen in Court that the defendant was not willing to accept the proposed terms of settlement. On the 3 December the plaintiff launched this motion that the settlement be <JGN>Page</JGN> 2 of 9 recorded, and a decree passed in accordance there-wish. I am satisfied on the affidavits- indeed it is not disputed-that Mr. Gupta agreed to the above terms of settlement wish Mr. Roy. Mr. Satish Chandra Boise, an assistant in Messrs. Morgan & Co.'s office, however, stated in an affidavit (paragraph 5) that "Mr. Gupta suggested Rs. 1,500, Mr. Roy suggested Rs. 2,000, them Mr. Sushi Sen suggested Rs. 1,750; upon which Mr. Gupta kept quiet. Mr. Gupta did not exclude the possibility of the matter being re-opened should clients think otherwise, but he did not make it clear, but as is usual in such matters there was always a mental reservation of reference to clients." On the 27 November, 1924, Messrs. Morgan & Go., writing to Messrs. Dutt & Sen, solicitors for the plaintiff, stated that "it was no doubt tacitly agreed between counsel that the suit should be settled on the terms mentioned but there was always a reservation of reference to clients." Admittedly Mr. Gupta did not communicate either to Mr. Roy or to Mr. Sen "the mental reservation" which Mr. S.C. Bose stated was in Mr. Gupta's mind. On the contrary Mr. Gupta appeared to be giving his consent unreservedly to the proposed settlement, and, in my opinion, the sanctity of contacts would be greatly imperilled if the Court were to permit a person, acting under no mistake of fact and no misapprehension as to his capacity to contract, and who to all intent and appearance had entered into a contract, subsequently to resile therefrom by unfolding a mental reservation of the existence of which no mention had been made at the time when, the contract was entered into. To hold such a person to the agreement which he had made is merely to apply the common law principle that a person's intention is to be ascertained from his acts, and the Court is not concerned to enquire what the uncommunicated mental processes may have been which at the material time were exercising his mind. I hold, therefore, that on the 21 November counsel, purporting to act on behalf of the parties, agreed to settle the suit. And upon the evidence I am further of opinion that the parties did not thereafter agree to treat the compromise so entered into as. cancelled or at an end. The question which I have to determine is whether the above agreement to settle the suit is binding upon the parties. Now I am satisfied -indeed the plaintiff does not contend to the contrary-that the defendant company neither expressly authorised nor subsequently ratified the said agreement- If it had done so the question of the extend of counsel's authority would not have arisen, for the authority of Mr. Gupta-and Mr. Roy to enter into the agreement would in that event have been derived from the mandate which they bad received from the parties, and the fact that they happened to be counsel would have been immaterial. I have, therefore, to consider whether in the above circumstances Mr. Roy and Mr. Gupta as counsel were clothed with authority to bind their clients by the compromise which they effected. In this judgment when using the term "counsel" I intend to refer in India to advocates entitled to practise on the Original Side of the High Court, and must not be taken to refer to vakils or attorneys, for with respect to their authority and status different considerations arise. Now the position of counsel who are retained to act in a cause on behalf of a client is not always understood. It is of the utmost importance, however, to the community at large, as well as to the legal profession, that the relation of counsel to their clients should be fully appreciated: the more, so inasmuch as "the old order changeth giving place to new", and the roll of advocates entitled to practise on the <JGN>Page</JGN> 3 of 9 Original Side of the High Court, which hitherto has been confined to persons entitled to practise as barristers in England or Ireland or as members of the Faculty of Advocates in Scotland, has been enlarged so as to include under certain conditions vakils and attorneys who have not necessarily received any legal training in Great Britain or Ireland. It is essential, therefore, that the vakils and attorneys so admitted, who are bound in all respects to conform to the practice obtaining, and are subject to the same obligations and rules of professional etiquette as advocates practising, on the Original Side of the Court, should be under no misapprehension as to the rights and obligations which attach to them as advocates of the High Court. Moreover, since the hearing of this motion my learned brother Bepin Behari Ghose, J., sitting with Walmsley, J., on the Appellate Bids of the Court, in First Appeal No. 94 of 1924 and Miscellaneous Appeal No. 136 of 1924 passed the following observations: "Before dealing with the matters in controversy before us I should refer to the observations of the Subordinate Judge as to the application of the rule in England regarding the authority of counsel to compromise a case without reference to his client. He appears to have held that the common law rule in England is applicable to this case, and he refers to the eases of Strauss v. Francis (1866) 1 Q.B. 379 and Mathews V/s. Munster (1887) 20 Q.B.D. 141. This is contested by the appellant. Even if this case exactly came under the rule in those oases I should be extremely reluctant to hold, unless compelled to do so by any binding authority that a rule of practice in England which has its roots in different traditions and environments should be applied in this country, particularly in the moffusil where people never heard of any such practice." After citing a passage from the judgment of Lord Halsbury, L. C. in Neale V/s. Gordon Lennox (1902) A.C. 465 to which I shall hereafter have occasion to refer. His Lordship added: " I need hardly say anything further on the point as learned Counsel for the respondent in his careful argument did not rely upon the general authority of counsel to compromise the case." Now, the above observations are obiter dicta, for in that case their Lordships held that in fact no concluded or valid agreement had been effected, but so opposite is the view which B.B. Ghose, J. expressed to the question which I have to determine on this motion that I feel cons- trained to express nay opinion as to whether it is correct. With great respect I jam unable to subscribe to the doctrine that the status of an advocate of the Calcutta High Court differs from that of a barrister in England. I apprehend that the rights, privileges and obligations of an advocate of the Calcutta High Court are, and since its foundation have been the same as those of counsel entitled to practise in what is now the High Court of Justice in England. The traditions and environments in which counsel in England carry on their practice to the honour of their profession long ago were implanted-in India, and have ever been the pride and mainstay of the advocates of the Calcutta High Court. I should decline to entertain any suggestion that in the future-advocates will not foster and maintain the traditions which hitherto have obtained in the Calcutta High Court, and I should dissociate myself from any attempt which might be made to detract from the privileges of counsel, or to limit the authority which attaches to advocates of the High. Court. In my opinion, the authority of advocates remains the same whether they appear as counsel in the High Court or in Courts subordinate thereto. The rights and obligations of counsel, in my judgment, do not vary <JGN>Page</JGN> 4 of 9 according to the Court in which they happen to be appearing, for the authority of counsel is derived not from the fact that they are appearing in any particular Court, but from the status which they acquire on being admitted to the roll of advocates. I am of opinion that where counsel appears in Courts other than the High Court they carry with them the traditions and privileges of their profession, and the sanctions of their high calling. Now it is not unfrequently asserted that the relation of a client to his counsel is that of a principal to an agent. In truth the relationship is of a very different nature, The authority of counsel is not in any sense incidental to a contract into which he has entered with his client. "Barristers," wrote Sir William Black-stone, "may take upon them the protection and defence of any suitors whether] plaintiff or defendant, who are therefore called their clients like dependants upon the ancient Roman orators. Those indeed practised gratis for honour merely or at-most for the sake of gaining influence: and so likewise it is established with us that a counsel can maintain no action for his fees; which are given not as locatio vel conductio but as quiddam honorarium: not as a salary or hire but as a mere gratuity which a counsellor cannot demand without doing wrong to his reputation." In Colledge V/s. Horn (1825) 8 Bing. 119 Chief Justice Best said: "I cannot allow that the counsel is the agent of the party." In Swinfen V/s. Lord Chelmsford (1860) 5 H. and N. 890 Chief Baron Pollock observed: "We are of opinion that an advocate of the English Bar accepting a brief in the usual way undertakes a duty, but he does not enter into any contract or promise express or implied. Cases indeed occur where on an express promise (if he made one) he would be liable in assumpsit, but we think that a barrister is to be considered not as making a contract with his client, but as taking upon himself an office or duty in the pro-par discharge of which not merely the client;, but the Court in which the duty is to be performed and the public at large have an interest,"

(2.) And later: The conduct and control of the cause are necessarily left to counsel. If a party desires to retain the power of directing counsel how the suit should be conducted ha must agree with some counsel willing so to bind himself. A counsel is not subject to an action for calling or not calling a particular witness or putting or omitting to put a particular question or for honestly taking a view of the case which may turn out to be quite erroneous. If he ware so liable counsel would perform their duty under the peril of an action by every disappointed and angry client.

(3.) Again: I think it right to express my own opinion that provided that an advocate acts honestly with a view to the interest of his client he is not responsible at all in an action. It seems admitted on all hands that he is not responsible for ignorance of law or any mistake in fact or for being loss eloquent or less astute than he was expected to be. According to my view of the law a barrister acting with perfect <JGN>Page</JGN> 5 of 9 good faith and with a single view to the interest of his client is not responsible for any mistake or indiscretion or error of judgment of any sort. In Strause V/s. Francis (1866) 1 Q.B. 379 Mr. Justice Blaokburn, as he then was, stated his view of the rule in memorable words: " Mr. Kenealy has ventured to suggest that the retainer of counsel in a cause simply implies the exercise of his power of argument and eloquence. But counsel have far higher, attributes, namely, the exercise of judgment and discretion on emergencies arising; in the conduct of a cause, and a client is guided in his selection of counsel by his reputation for honour, skill, and discretion. Few counsel, I hope, would accept a brief, on the unworthy terms that he is simply to be the mouthpiece of his client. Counsel, therefore, being ordinarily retained to conduct a cause without any limitation, the apparent authority with which he is clothed when he appears to conduct the cause is to do everything which, in the exercise of his discretion, he may think best for the interests of his client in the conduct of the cause; and if within the limits of this apparent authority he enters into agreement with the opposite counsel as to the cause, on every principle this agreement should be held binding." "No counsel," added Mellor, J., "certainly no counsel who values his character, would condescend to accept a brief in a cause on the terms which the plaintiff's counsel seems to suggest, viz., without being allowed any discretion as to the mode of conducting the cause. And if a client were to attempt thus to fetter counsel the only course is to return the brief.