Present: Jayewardene A.J.

MOONESINGHE v. PEREIRA et al,

66-C. B. Colombo, 19,715.

    Advocate-Action for refund of fees rot maintainable-English law.

An advocate cannot sue or be sued by a client in respect of fees due to him or paid to him.

An advocate in Ceylon stands towards his clients in the same legal position as a barrister-at-law in England.

The principle laid down in Kennedy v. Broun 1[1 (1863) 7 L. T. 626 (630).] applied.

The rules of the Roman-Dutch law on- the subject have no application to local advocates.

THE plaintiff through his proctor retained the defendants' testator, who was a barrister-at-law, an advocate of the Supreme Court, and a King's Counsel, to appear for him in a case in appeal. Before the appeal could be heard, the advocate died, and it is admitted that no work was done for the fee paid to him. After the death of the advocate, the plaintiff requested the defendants, the advocate's executors, to return the fee which the defendants refused. The plaintiff instituted the present action for the recovery of the fee, and the learned Commissioner of Requests gave judgment for the plaintiff.

E. J. Samarawickreme, K.C. (with him R. L. Bartholomeusz), for defendants appellants.

L. H. de Alwis, for plaintiff, respondent.

June 17, 1925. JAYEWARDENE A.J.-

This action raises an interesting question affecting the legal profession, namely, whether an advocate in Ceylon can sue or be sued in respect of fees due or paid to him. The plaintiff in the present action retained the defendants' testator who was a barrister-at-law, an advocate of this Court, and a King's Counsel, to appear for him in appeal in case No. 101 (S.C.), D.C. Colombo, No. 8,211. Before the appeal could be heard, the advocate died, and it is conceded that no work was done for the fee paid to him. The advocate was retained by the plaintiff's proctor who sent a letter to the advocate. The fee was handed to the advocate by the

client (plaintiff) personally. After the death of his advocate, the plaintiff requested the defendants, the advocate's executors, to return the fee to enable him to retain other counsel. The executors had arranged with another advocate to argue this and some other cases in which their testator had been retained, but this arrangement was not approved by the plaintiff who desired to retain and did retain an advocate of his own choice. The defendants refused to return the fee. The plaintiff instituted the present action for the recovery of the fee paid. The defendants in their answer raised various pleas. They denied that the fee was paid by the plaintiff, and said it was paid by his proctor, and that they had made satisfactory arrangements for the argument of the plaintiff's case in appeal. They also denied that any cause of action had accrued to the plaintiff to recover the money as it was a fee paid to an advocate. The facts not being in dispute, the main issue raised for decision was whether an action can be maintained for the refund of fees paid to an advocate ?

The learned Commissioner of Requests, after hearing- some evidence and argument, decided in favour of the maintainability of such an action. He held that as under the Roman-Dutch law, which he thought applied to a case of this kind, an advocate can sue for his fees, an advocate in Ceylon can do so, and can also be sued for its return, if there has been-as in this case-a total failure of consideration. He also held that although the defendants' testator was a barrister-at-law and a King's Counsel, he had to take his oath as an advocate of the Supreme Court of this Colony, and that it was in the latter capacity that he practised his profession. In his opinion the legal relations between an advocate and his client in Ceylon were not the same as those between a barrister-at-law and his client in England, where the barrister-at-law has no dealings with his client, but is retained b