The Law/p>
tarting point is Myers
v Elman [1939] 4 A.E.R. 484 in the House of Lords. In t In that case, the
Plaintiff applied that the Respondent Solicitor should pay the costs of the
action. The Respondent Solicitor had apparently left the conduct of the
Plaintiffs case in the hands of his clerk. The
Respondent Solicitor
accordingly had been accused of filing an unsustainable defence and
preparing inadequate affidavits.
The House of Lords held that although the
Solicitor's clerk had knowingly prepared inadequate affidavits, the
Solicitor
as the Solicitor on the record could not escape his duty towards
the Court by delegation of that duty to his clerk who was
not amendable to
the jurisdiction of the Court over Solicitors as its officers.
At page 507 - 9, Lord Wright
said:
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“In order to deal wi the point of law decided by the Court of Appeal, it is t is necessary to explain
briefly the nature
of the Jurisdiction of the court which the appellant
invoked. A solicitor (or, informer days, a solicitor or an attorney) was
long ago held to be an officer of the court on the roll of which he was
entered, and, as such, to be subject to the discipline
of that court. The
court might strike him off the roll or suspend him. For instance, the Court
of Chancery might strike
a solicitor off the roll of the court, and order a
communication of that order to be made to the courts in Westminster Hall.
There are many such instances in the books. By the Solicitors Act, 1888,
there was established the Disciplinary Committee
appointed by the Master of
the Rolls from members or past members of the Council of the Law Society.
This committee were
charged with the duty of investigating complaints
against solicitors and reporting their decision to the court, which could
then, if so minded, strike the solicitor off the roll or suspend him. It was
not until 1919 that, by the Solicitors Act
of that year, the Disciplinary
Committee was itself given power to strike off the roll or to suspend or to
order payment
of costs by the solicitor, subject to an appeal to the court.
The Jurisdiction of the Master of the Rolls and any Judge of
the High
Court over solicitors was expressly preserved, however, as it now is by
the Solicitors Act, 1932, s. 5 (1). Whether the court
would now entertain an
application to strike a solicitor off the roll or to suspend him instead of
leaving the matter
to the Disciplinary Committee may be doubted, but,
alongside the jurisdiction to strike off the roll or to suspend, there
existed in the court the jurisdiction to punish a solicitor or attorney by
ordering him to pay costs, sometimes the costs
of his own client, sometimes
those of the opposite party, sometimes, it may be, of both. The ground of
such an order
was that the solicitor had been guilty of professional
misconduct (as it is generally called), not, however, of so serious
a
character as to Justify striking him off the roll or suspending him. This
was a summary jurisdiction exercised by the
court which had tried the case
in the course of which the misconduct was committed. It was clearly
preserved to the court
by sect. 5 (1). It was a summary jurisdiction, in
which the intervention of the judge was invoked at the conclusion of the
case either by motion in the Chancery Court or by a motion or application
for a rule in the courts of common law. Though
the proceedings were penal,
no stereotyped forms followollowed. Hence now the complaint is not treated
like a charge
in an indictment, or even as requiring the particularity of a
pleading in a civil action. All that is necessaryhat the judge
should
see that the solicitor has full and sufficient notice of the nature of the
complaint made against him, and
full and sufficient opportunity of answering
it. Thus, formal amendments of the complaint are not necessary, so long as
the variations of the charge are sufficiently defined and the solicitor is
given sufficient liberty to make his answer.
The summary jurisdiction thus
involves a discretion both as to procedure and as to substantive relief,
though there was,
and is, an appeal.
The cases of the exercise
of this jiction to be found in the rthe reports are numerous, and show how
the courts were guided
by their opinion as to the character of the conduct
complained of. The underlying principle is that the court has a right and
a
duty to supervise the conduct of its solicitors, and visit with penalties
any conduct of a solicitor which is of such
a nature as to tend to defeat
Justice in the very cause in which he is engaged professionally, ... The
matter complained
of need not be criminal. It need not involve peculation or
dishonesty. A mere mistake or error of judgment is not generally
sufficient,
but a gross neglect or inaccuracy in a matter which it is a solicitor's duty
to ascertain with accuracy may
suffice. Thus, a solicitor may be held bound
in certain events to satisfy himself that he has a retainer to act or as to
the accuracy of an affidavit which his client swears. It is impossible to
enumerate the various contingencies which may
call into operation the
exercise of this jurisdiction. It need not involve personal obliquity. The
term "professional
misconduct" has often been used to describe the ground on
which the court acts. It would perhaps be more accurate to describe
it as
conduct which involves a failure on the part of a solicitor to fulfil his
duty to the court and to realise his
duty to aid in promoting, in his own
sphere, the cause of Justice. This summary procedure may often be invoked to
save
the expense of an action. Thus, it may, in proper cases, take the place
of an action for negligence, or an action for breach
of warranty of
authority brought by the person named as defendant in the writ. The
jurisdiction is not merely punitive,
but compensatory. The order is for
payment of costs thrown away or lost because of the conduct complained of.
It is frequently,
as in this case, exercised in order to compensate the
opposite party in the action. ...”
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The other Law Lords agreed as
to the existence of the summary jurisdiction of the Court to discipline
Solicitors as officers
of the Court by ordering them to pay costs in
appropriate cases. If one summarises the speeches by the Law Lords, one
finds that they all agreed that the Court's jurisdiction as to awarding
costs against Solicitors is a different one from the
jurisdiction to strike
off a Solicitor's name from the roll or to suspend the Solicitor concerned,
it is an ancient one
and summary in nature, and there is no fixed procedure
for invoking the summary jurisdiction so long as the Solicitor concerned
is
given adequate notice to be heard. However, Viscount Maugham said the object
of the Court exercising this jurisdiction
was not to punish the Solicitor
but to protect the client who suffered and to indemnify the party injured.
His Lordship
pointed out that Order 65, rule 11 of the Rules of the Supreme
Court of England (which is the equivalent of our Order 65, rule
8) was
supplementary to the Court's summary jurisdiction. His Lordship further
pointed out that the conduct of the Solicitor
concerned need not be
disgraceful or dishonourable but any negligent conduct of a serious
character which caused the
other party to incur useless costs would suffice.
Lord Atkin described the Court's summary jurisdiction as punitive in nature.
His Lordship said that a Solicitor owed a duty to the Court as well as to
his client so that if the Solicitor deceived
the Court or put litigants to
unnecessary costs, the Court would penalize that Solicitor accordingly. In
other words,
the Court is concerned with breach of duty to itself rather
than towards the other litigant. Lord Wright said that the underlying
principle was that the Court had a right and duty to supervise the conduct
of its Solicitors and would visit them with
penalties if their conduct
tended to defeat justice in the cause in which they were expected to display
their profession.
His Lordship said that the category of circumstances
constituting conduct worthy of the Court exercising its summary jurisdiction
was not closed. His Lordship however pointed out that a mere mistake or
error of judgment could be excused but gross
neglect or inaccuracy in a
matter would suffice. Lord Porter agreed with the other Law Lords on what
they said but emphasised
that the Court's summary jurisdiction had nothing
to do with enforcement of a civil right but rather to do with exercising
its
authority over its officers. Lord Russell of Killowen agreed with Viscount
Maugham on the point that the Court did
have summary jurisdiction over its
Solicitors but dissented on the ground that the evidence was insufficient to
prove
the charges laid against the Solicitor concerned.
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This Case
In this case, it is not
disputed that the Plaintiff'icitor, Mrs Maelyn Samuel, was the
Solicitor in chargcharge of the
Plaintiff’s case. She prepared the Writ of
Summons and Statement of Claim signed by her on 7th October 1997. She filed
those documents in the High Court Registry on 9th October, 1997. She said
she recalled their Office Clerk, Francis Loea,
having served the Writ of
Summons on the 1st Defendant at the Anthony Saru Building in Honiara. She
said she could not
recall the date of service. She also said, she could
recall an affidavit of service being prepared but was not filed in Court.
She subsequently resigned and left the Public Solicitor's Office in 1999. It
is now an established fact that the Writ
of Summons had never been served on
the 1st Defendant. There is no proof of service. What is of
concern to me is that there is no evidence to show that the Plaintiff’s
Solicitor did prepare handing over notes so that another Solicitor in the
Public Solicitor's Office would take over the
Plaintiff’s case and follow up
its progress in the Court. In the absence of handing over notes, there is
also no evidence
to show that the Plaintiff’s Solicitor had at least spoken
to another Solicitor in the Public Solicitor's Office about the
Plaintiff’s
case and what stage it had reached with the view that the other Solicitor
would take over the case from her.
In the last resort, the Plaintiff’s
Solicitor should have informed the Plaintiff, preferably in writing,
advising him
of what stage she had reached in the progress of the
Plaintiff’s case, pointing to him her difficulty in finding another
Solicitor in her office on her departure and finally advising him to
instruct another Solicitor in town. There is no evidence
that she did any of
these things. It seemed that she left her office without further ado. She
had sat on the case for
over a year. I think it was most unfair for the
Plaintiff's Solicitor to have done that to the Plaintiff. She knew by that
time the fact that the service of the Writ of Summons might not have been
done properly by Francis Loea and had taken
no action to check on him to
establish the fact of service. She had enough time to do that. It was her
duty to establish
from Francis Loea that there had been proper service. She
must bear the blame for Francis Loea's omission. (See Myers v Elman
cited above).
The Plaintiff’s Writ of Summons
lready been stale by the time the Plaintiff instructed Crys Crystal Lawyers
towards the
end of 2000. Mrs Maelyn Samuel again took on the Plaintiffs
case. She should have known that by that time the Writ of Summons
filed by
her in 1997 must have already gone stale. Her first step was to renew it.
This, she did not do. If she had believed
that the Writ of Summons had been
properly served in 1997 but had forgotten about the fact that it had long
gone stale,
she should have applied for judgment in default of appearance
when the Plaintiff instructed her again towards the end of 2000.
In fact,
she should have done this long ago. This too, she did not do. By 19th
October, 2000, the Plaintiff had decided
to personally contact the Solicitor
for the 1st Defendant direct about his case. This behaviour by the Plaintiff
subsequently
became threatening and the Solicitor for the 1st Defendant told
the Plaintiff's Solicitor about this by letters dated 19th
October, 2000,
7th November, 2000 and 13th November, 2000. The Solicitor for the 1st
Defendant had to seek a Court injunction against the Plaintiff from
contacting him or entering the office of the 1st Defendant. The
Plaintiff’s Solicitor did nothing to advance the Plaintiff’s case in Court
up until the 1st Defendant
filed its Summons on 15th October, 2000 to
challenge the Plaintiff’s Writ of Summons. The Plaintiff’s Solicitor
completely
overlooked the fact that the first thing to be done to the
Plaintiff’s case was to renew the Writ of Summons she filed on 9th
October
1997. Everything else was irrelevant to the prosecution of the Plaintiff’s
case. The Plaintiff’s Solicitor could
have done this by looking up her
previous file in the Public Solicitor's Office or photocopying the Writ of
Summons and
Statement of Claim in the High Court Registry to enable her to
file her application for renewal of the Writ of Summons for
a further 6
months. The result of these omissions is that the Plaintiffs case has been
left I suppose in suspense at
this moment. The 1st Defendant had also been
forced to come to Court to dislodge the Plaintiffs Writ of Summons and to
point out that the Writ of Summons had long gone stale under Order 8, rule 1
of the High Court (Civil Procedure) Rules 1964
(the High Court Rules). The
1st Defendant had incurred unnecessary costs in so doing.
The nonability Argument
There are two aspects to the
non - liability argument. The first was that the Plaintiff was not liable
because she was
very busy at that time and that if anything at all, the
Public Solicitor's Office should pay the cost. Also, she believed the
Public
Solicitor should not pay as she had not heard of any time the Public
Solicitor was made to pay costs such as being
under consideration. The
second was, as pointed out by Counsel for the 1st Defendant, the omission to
serve the Writ
of Summons on the 1st Defendant was an act committed whilst
the Plaintiffs Solicitor was a Solicitor in the Public Solicitor's
Office in
1997. The first aspect of the argument can be disposed of in this way. Being
too busy in the office at the
relevant time in 1997 is not an excuse that I
can accept. The argument that the Public Solicitor's Office should pay costs
is an interesting one. Clearly, on the authority of Myers v Elman
cited above, the innocent partner in a firm of Solicitors is equally liable
to pay costs incurred by the misconduct of
the other partner. The office of
the Public Solicitor set up under section 92 of the Constitution is a public
office
which provides legal aid to members of the public funded by the
Government of Solomon Islands. The Public Solicitor and other
Solicitors who
work with the Public Solicitor are employees of the Government. Fees they
receive are paid into the consolidated
Fund. By virtue of rule 8(1) of the
Pacific (Barristers and Solicitors) Order in Council 1913, the Public
Solicitor and
Solicitors working in the Public Solicitor's Office are
exempted from the admission rules of the High Court. The effect of
this
exemption is that upon being appointed a legal aid Solicitor under section
92 of the Constitution as an employee
of the Government, that Solicitor
automatically becomes a Barrister and Solicitor of the High Court of Solomon
Islands
without having to fulfil the requirements of the admission rules. In
my view, the office of the Public Solicitor cannot be
likened to a firm of
Solicitors who are partners under the law of partnership. The Government can
only he held vicariously
liable for the misconduct of its employees such as
a Solicitor working in the Public Solicitor's Office. The holder of the
office of Public Solicitor cannot be held liable for the acts of another
Solicitor who is also an employee of the Government.
The second aspect of
the argument can be answered by the case of Brendon v Spiro [1937] 2
A.E.R. 496. In that case, the argument was that the two Solicitors
complained against had ceased to be solicitors on the record before
the
judgment in the case was delivered. They were, as argued, not therefore
liable for costs personally as asked for
by Counsel for the Plaintiffs. The
Court of Appeal held that the two Solicitors were liable. At page 499,
Scott, L.J.
said:
“The question of law
raised by his decisi one of very general importmportance. It was augured
before him, I understand,
and was certainly argued before us, that if, in
the course of an action, a solicitor is guilty of such conduct as would
entitle the court, in the exercise of its summary jurisdiction, to take
disciplinary measures, either striking off the rolls,
fining, or ordering
the solicitor to pay the costs of the party who has suffered by his
misconduct, the judge has no
jurisdiction at all to take that disciplinary
action if, although the solicitors were on the record, and although they
were in his opinion guilty of that misconduct, they have ceased to be
solicitors on the record before the application is
made. In may view, it
would be lamentable if the power of discipline by the court over the
solicitors on the record,
acting as officials of the court, were limited in
any such way, and, in my opinion, it is not so limited.
Again, at pages 504 - 5, Swift,
J. said:
“I do not think that the
court lose inherent jurisdiction to c to control its officers, amongst whom
solicitors are to
be numbered, merely because, after they have done
something which it is alleged they ought not to have done, they have ceased
to be either officers of the court altogether, or officers concerned in the
particular matter with which they were dealing.
...”
Clearly, a itor remains an
officer of the Court no matter he or she has ceased acting for a clie client.
Conclusion
As I sn the beginning of
this ruling, I took up this matter on my own motion under Order 65er 65, rule 8
of the High Court
Rules cited above. The cases that I have come across in my
research so far were cases where one party in the dispute made an
application in oral terms or in writing to the judge seeking an order that
the Solicitor for the other party be made
to pay costs personally for
alleged misconduct during the course of the case concerned. These cases were
all cases decided
in the Courts in the United Kingdom where the legal
profession is highly developed and is in place for many centuries. This
is
not the case in Solomon Islands.
The legal profession here
really began to take shape only in 198n the Legal Practitioners (ers (sic)
Act (Cap. 16) was
passed by Parliament. Most of the local lawyers in private
practice are young and have not had great practical experience before
they
took up private practice. The first and the oldest lawyer in Solomon Islands
is myself having graduated in law in
1973 and entered the Public Service in
1975. I am not surprised and it is expected that local legal practitioners
are
still in the learning process in private practice. Whilst this fact can
be appreciated, it does not help. So long as the Solicitor's
name is on the
Roll, the Solicitor does not stop owing a duty to his or her client and to
the Court in promoting the
cause of justice. In my view, Order 65, rule 8 of
the High Court Rules is wide enough to allow the Court to intervene on its
own motion where it appears to the Court that a Solicitor may be liable to
pay costs personally by reason of some misconduct
in the conduct of his or
her client's case. In this jurisdiction where the legal profession consists
of a very tiny body
of men and women by world standard known to each other
and apart from the possibility of collusion between lawyers, there is
the
risk that clients would suffer greatly, if the judge does not intervene on
his or her own motion under Order 65,
rule 8 of the High Court Rules in
appropriate cases to protect clients and to remind Solicitors of their duty
towards
the Court as officers of the Court. I take courage from the judgment
of Lindley, L. J. in Brown v Burdett [1887] UKLawRpCh 228; (1888) 37 Ch. D. 207. In that
case, Kay, J. raised the point that great delay had taken place in the
prosecution of the case and directed an
inquiry under Order 65, rule 11 of
Rules of the Supreme Court in England (which is the equivalent of our Order
65, rule
8 cited). None of the parties opposed, an order for the payment of
costs. At pages 213 - 14, Lindley L.J. said:
“The power given to the
Court by Order LXV, rule 11, is in some respectspects new. If you look at the
wording nothing
can be more general, and if you look at the object of it
nothing, in my judgment, can be more beneficial. I take the same view
of the
rule that Mr. Justice Kay takes, and if it appears in any Chancery
administration action that there has been an
apparently unjustifiable and
avoidable delay, it is perfectly competent for the Judge, unasked by the
parties and in
the exercise of his discretion, to direct an inquiry in order
to ascertain the facts and find out whose fault it has been that
the
unnecessary delay has been caused. I think that is the true interpretation
of the rule. ...”
Cotton, L.J. did not disagree.
At page 211, Cotton L. J. said:
“Order LX. 11, was
intended to call the attention of the JudgeJudges to the great evil caused by
unnecessary delay in
administration actions, and to give them power to
punish it by disallowing costs even as between a solicitor and his client,
and to call upon costs should not be disallowed. ...”
Clearly, the Court on its own
motion may raise the matte“showing cause” why a Solicitor should
not be t be ordered to pay costs personally etc under Order 65, rule 8 of the
High Court Rules
cited above. This power is available both in equity as well
as in the common law.
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I find in thie that the
Plaintiff’s Solicitor, Mrs Maelyn Samuel, was responsible for the delay ofay of
the Plaintiff’s
case. The result of such delay is very prejudicial to the
Plaintiff in that the Writ of Summons is now over 3 years old, unrenewed
and
unserved. This sort of case attracts potential criticism of the justice
system in this country. The Solicitor concerned
is open to criticism. The
legal profession is criticised. The whole system of justice is open to
criticism. Solicitors
being officers of the Court must be reminded of their
duties through the application of Order 65, rule 8 of the High Court
Rules
cited above. For example, in Batten v Wedgwood Coal and Iron
Company [1886] UKLawRpCh 14; (1886) 31 Ch. D. 346, the Court held that the Solicitor who
forgot to leave the money paid into Court with the Paymaster for the purpose
of
investment was ordered to pay the interest lost by reason of his
omission.
At page 349, Pearson, J. said:
“The conduct of the sale
rested with him because he was the soliciolicitor of the Plaintiff, and as such
he was discharging
the duty which devolved upon him, and no other solicitor
would been entitled to char charge for that which he was doing. But
he was
acting as an officer of the Court, and in that character, I conceive, he was
l to the Court for the due discharge
of his duty. Until I am I am corrected
by a higher tribunal I shall hold that the Court has a summary jurisdiction
to
make a solicitor liable for not properly discharging his duty under such
circumstances. I think, therefore, that he is liable
to make good to the
receiver the loss of interest which has resulted from the non - investment
of the money. ...”
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Another case was In re
Dartnall [1895] UKLawRpCh 24; [1895] 1 Ch. 474 where the Plaint Solicitors who acted
hastily in commencing litigation were ordered to repay the Plaintiffs cost.
Mr. Justice North also ordered that the Plaintiff’s Solicitors cost be
disallowed. The Summons was however adjourned for
a week to allow the
Plaintiff’s Solicitors to show cause why they should not be made to pay the
costs personally. On
appeal, the Plaintiff’s Solicitors succeeded to the
extent that they should not repay the Plaintiff’s costs but their costs
against the Plaintiff were still disallowed. There are numerous examples
where Solicitors were ordered to pay costs personally
for misconduct in
cases in their charge. In this case, my order is that any costs between the
Plaintiff’s Solicitor and
the Plaintiff be disallowed and further the
Plaintiff’s Solicitor pay the 1st Defendant's costs. I order accordingly. My
view is that the Plaintiff should not pay any costs at all.
F. O. Kabui
