In Re: Rules of Court No. 2 of 1916 (C.C. 8/34.) [1934] EACA 24 (1 January 1934)

## ORIGINAL CIVIL.

## Before HORNE, J.

## IN THE MATTER OF RULES OF COURT No. 2 OF 1916. C. C. $8/34$ .

Advocate and Client taxation—Retainer—Conflict between Advocate and Client.

*Held* (28-2-34).—That "instructions to defend" cannot be implied from the fact that the client has given an advocate instructions to enter an appearance. (Rule laid down in In re Paine 28 T. L. R. 201 followed).

Mangat for the Taxing Advocate.

Schwartze for the Client.

This was a reference to a Judge in Chambers brought under Rule 8 of Rules of Court No. 2 of 1916 from the decision of the Taxing Officer.

The taxing advocate filed a Bill for taxation against the client incorporating therein a fee of Sh. 60 for instructions to defend, arising out of the following circumstances. On 28-12-1933 the client, having been served with a summons and plaint in a civil suit, called at his advocate's office. Finding it closed he went to the office of the taxing advocate, where he left the summons and plaint, and asked the taxing advocate to enter an appearance. Appearance was entered on 28-12-1933 although it could have been entered in due time on the following day.

On 29-12-1933 the client gave his advocate instructions to defend.

The taxing advocate submitted that the client had given himdefinite instructions to enter an appearance and also to undertake the defence of the suit. It appeared that the client had been in the taxing advocate's office for about two hours.

The taxing officer recorded the evidence of the client who stated inter alia that he merely instructed the taxing advocate to enter appearance. He did not say that he instructed the taxing advocate not to undertake the defence.

The Registrar held on the taxing advocate's statement and on the evidence of the client taken by him that he was justified in: holding that there were implied instructions to defend and indirecting that the taxation should proceed.

RULING.—The question as considered by the Registrar was whether there was a retainer by conduct. Sherkhan Punukhan, the client, found the office of Shapley, Schwartze and Barrett closed on 28th December.

## He went to the office of Mr. Mangat.

On the 29th he went to the office of Shapley, Schwartze and Barret and gave instructions there for preparation of defence. That seems a strange thing to do if he had already given such instructions to Mr. Mangat.

As to what took place at Mr. Mangat's office there is only the sworn statement of Sherphan Punukhan. That statement goes as far as admitting some conversation about the case, but it would be difficult to imply from it a retainer. It would appear to me that the advocate must satisfy the Court that he was retained or instructed to defend as he alleges by his bill. It is laid down in Re Paine (28 T. L. R. p. 201) that "on all questions as to the retainer of a solicitor where there is a conflict as to the authority between the solicitor and the client, without further evidence, weight must be given to the affidavit against, rather than to the affidavit of the solicitor." WARRINGTON J. there following TURNER, V. C. in Crossley v. Crowther. In the present matter there is no affidavit of the advocate at all, and the denial of the client that he gave the advocate instructions to defend the action must therefore in the light of the above authority be accepted and the objections to the taxation allowed.

Costs of application against ruling of Registrar to be paid by Mr. Mangat.