Enough to make Curls Stand on End: Fee Recovery and the Junior Bar, 1862-present

Barristers and Solicitors – sharing the weight of litigation, but not the entitlement to sue for fees incurred in so doing.

From the Roscommon & Leitrim Gazette, 5 February 1876:

“The normal calm of the ‘Coffee-Room,’ that veritable place of ‘refreshers,’ was somewhat disturbed by an occurrence of an unprecedented character, so far as the Four Courts of our days are concerned.  In a very short space of time as many versions of the strange episode went through the hall as there are curls on a barrister’s wig.  So, from about a dozen different accounts, we take the following, although we do not commit to the literal accuracy of the matters stated: A Junior Barrister, who practises frequently in the police courts, who has been writing on sanitary law and whose name has recently appeared under the head of Marriage in the morning papers, requested a well-known solicitor to pay him some fees.  The solicitor denied that he owed the barrister any fees, and, after an altercation, it is said, told wig and gown that he always paid his debts and, no doubt, with the view of making his observation sit the more forcibly, accompanied it with a box straight from the shoulder.  It is said the ‘little affair’ must be heard of again in a department of the Four Courts other than the ‘coffee room’.”

A consideration of the thorny question of barristers’ fees had already featured in the Newry Examiner and Louth Advertiser of 8 July 1863:

“The wrongs done to counsel form a considerable set-off to the injuries done by them.  The theory of forensic remuneration is that the bar is strictly an honorary profession, and that its members are as little entitled to compensation for their services as are the honorary secretaries of a debating society or a sporting club. In short, a barrister as such has no locus standi as a plaintiff in a suit for remuneration for his professional services, his fee being an honorarium which may be given or withheld at the discretion of the client.  This is the theory which was, perhaps, sufficiently well suited to the times when it first prevailed in England, when the Chancellor was always a person in holy orders, and when the coif was used to conceal the tonsure.  Spiritual persons may very well be presumed to be less interested in their worldly advancement than laymen.”

The author of the article, however, made no suggestion that this state of affairs be changed:

“Barristers are not spiritual but lay persons and though they cannot recover their fees at law or equity, they take exceedingly good care not to concern themselves with cause from which they do not expect to obtain any emolument.  The law failing them, they have recourse to a negative strategy, so that a barrister may be said, like Fabius, rem cunctando sustinere.  If a barrister were empowered by law to recover his fees, he should, on the other hand, be liable for negligence, like any other paid agent.”

Junior barristers unable to sue for fees often suffered from nightmares of impending creditors.

If, however, this pitiful letter by ‘An Ill Paid Junior Barrister,’ published in the Cork Examiner of 14 September 1866, is anything to go by, exclusion from liability for negligence was cold comfort for those barristers less likely to be able to terrify solicitors into paying fees by threatening to withdraw their services!

“Myself a junior barrister, like many of my tribe, a sufferer by reason of the non-payment of my fees, and having, moreover, but my profession to depend on for subsistence, I may be allowed to utter a word or two as to how I feel, when, having sold my brains for gold – having coined (as I hoped) into drachmas the fruits of god’s gifts to me of thought and speech, made better, as best I could, by laborious industry – when, in a word, having done the work entrusted to me, I am left to wait for payment until it suits my employer’s perfect convenience.  How practically is the fee discharged?  Rigidly, with men in large practice and of great reputation, with men whose service it is considered of advantage to gain or (what is of little less consequent) to prevent the other side from having.  But not so with poor Mr Phunkey (kept down by want of means, or interest, or connection or impudence, as the case may be) briefs are sent to him in the full certainty that he will do the work and do it and wait for the money, rather than offend an attorney, aye more briefs are sent to him with the most entire indifference as to his having to make the hardest struggle put upon a man, the effort of a man of honourable feeling to preserve his honour and his self respect in a battle with narrow means.”

Lord Justice Gifford – defender of the honorarium

Poor Mr Phunkey indeed! Yet no change ensued; a bill to allow Counsel to sue for fees failed, and the judges remained unrelenting in their defence of the honorariam.  In March 1870, Mr Barry, English Chancery barrister, applied to Lord Justice Gifford in support of a claim against the executors of the late Lord Mostyn, to be paid £700 for fees for professional work done.  The Lord Justice said it would be contrary to all principle to allow a Barrister to recover his fees and the application must be dismissed with costs.

Irish judges were no different. In December 1899 the Dublin Daily Nation described Nisi Prius Court No 2, Four Courts, as ‘crowded’ for the hearing of a claim by John Lowry, barrister, of 7 St Anthony’s Road, Dublin, for the sum of £279.13s due and owing to him by Kilmainham District Council in respect of work done and services rendered in opposition to the Corporation Boundaries Bill. Mr Justice Madden held that there was no such contract between the parties as Mr Lowry maintained; everyone knew the remuneration fees of a barrister were not recoverable by action at law.

From the above accounts, boundary and sanitary law seemed to be a particularly risky area in terms of fee recovery.  Of course, as the ‘Ill-Paid Junior Barrister’ above would no doubt point out, the unrelieved tedium of the law of drains and fences inevitably meant that barristers specialising in it tended to be younger, less well-connected, less confident and consequently more vulnerable.  Who cared?  Not many, it seemed.

Patience Swynfen, who left her barrister lover substantially out of pocket.

Some light relief from the inroads effected by the honorarium on the solvency of junior barristers may be found in the most notorious English case on barristers’ fees, brought by English barrister Charles Rann Kennedy against the famous probate litigant Patience Swinfen, for whom he had obtained a verdict giving her over £60,902.   According to the Waterford Mail of 26 March 1862:

“Mrs Swinfen was grateful, and gratitude carried her so far that she actually executed a deed by which she conveyed the reversion of her newly-acquired property to Mr Kennedy and his children, reserving to herself only the life interest.  But last November the lady got married, and the sequel may be easily imagined.  Mr Broun, the husband, was not at all satisfied with the profuse generosity of his wife, and the two have joined in a suit to set aside the deed on the ground of due influence.  On the other hand, Mr Kennedy claims £20,000 for services rendered and so forth.  But as a barrister cannot recover his fees, it is not likely that he will get much for this large claim.”

The Mail was right! Although Mr Kennedy initially obtained a verdict in his favour, this was set aside by the Court of Common Pleas in January 1863, allowing the new Mrs Broun to profit from his services without losing a penny.  The reaction of the Belfast Morning News of 21 January 1863 vacillated between disapproval and awe:

“There are some, no doubt, who will applaud this feat as a master-stroke of perseverance and energy; others may think it a shabby and ungrateful return for an almost romantic devotion to her cause. Not being under the spell of Mrs Broun’s personal attractions, which proved too much for Mr Kennedy, we can afford to regard her as a shrewd woman of business, fully alive to her own interests, with strength of character enough to inspire a clever woman with faith in her cause and in herself and with coolness enough to throw him overboard when the time for payment arrived and a change had taken place in her prospects…”

Mr Kennedy’s devotion was more than ‘almost’ romantic – subsequent evidence indicates that, in the course of the proceedings, a certain intimacy had sprung up between him and his alluring client.  A broken heart and £20,000 in outstanding fees – an awful warning for young counsel not only against exploitation by unscrupulous solicitors but also against the wiles of beguiling litigants!

But who would have thought that a concept as outdated as the honorarium would survive not only into the 20th century, but the one after that!  Of course, there was a reason – as we shall see, the rule that barristers could not sue for their fees did have substantial advantages for well-established Counsel – and not merely in protecting them from negligence claims!

A possible candidate for the barrister involved in the coffee-room dispute at the start of this post is John Norwood BL, author of an 1873 paper dealing with the working of the Sanitary Laws in Dublin and the subject of another post on this blog. Interestingly, the unsuccessful Barristers and Advocates Fees Bill of 1876 was also put forward by a Mr Norwood – I wonder if he could have been a relation?

For those interested in reading further on the rule against barristers suing for their fees, and its continuing application today, a great discussion by Mark Tottenham BL can be found here.

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