Plenty v Mellor Olsson No. Scciv-00-320

[2003] SASC 64

PLENTY and ANOR v MELLOR OLSSON
[2003] SASC 64

Civil

1. PERRY J.  (ex tempore)     This is an application for determination of the question as to which of the parties to the proceedings should be dux litis at the trial, which is likely to take place a little later this year.

2. In the proceedings the plaintiffs, whom I will call Mr and Mrs Plenty, sue their former solicitors, Mellor Olsson. In their further amended statement of claim they allege that the action of Mellor Olsson in ceasing to act for them in early 1996 with respect to certain litigation in which Mr and Mrs Plenty had instructed them to act, was in breach of the contract of retainer which existed between the parties. They seek a declaration accordingly.

3. Mr and Mrs Plenty also claim a declaration that a sum of money approximating $30,000 inclusive of interest in Mellor Olsson’s trust account, is money to which they are entitled, as against the claim by Mellor Olsson to have the right to apply those monies towards outstanding costs.

4. Mr and Mrs Plenty also claim an injunction restraining Mellor Olsson from proceeding to taxation of certain bills of costs lodged by Mellor Olsson in this Court for taxation as between solicitor and client pursuant to the relevant provisions of the Legal Practitioners Act. The proceedings now in question were instituted by Mr and Mrs Plenty shortly after Mellor Olsson brought into court the bills of costs for taxation. It appears that the Master responsible for the taxation has adjourned the taxation pending the outcome of the present proceedings.

5. The application which is before me being FDN 36, which was filed on 10 January 2003 by Mr and Mrs Plenty, seeks specific directions relevantly in the following terms:

   “2.That pursuant to rule 75.00.80 of the Supreme Court rules that there be a determination as to which of the parties shall be dux litis.”

6. In an affidavit of Mr Jeffrey Carr, a partner in the firm of solicitors acting for Mr and Mrs Plenty, filed in support of the application, he asserts that it is “... just and convenient that the defendant be made dux litis for the trial of this action”.

7. The relevant history of the matter is set out in a chronology which is attached to the written submissions put forward by Mr Lane of counsel for Mellor Olsson.

8. It appears from this chronology, which is not disputed by Mr Carr, who appeared for Mr and Mrs Plenty, that between 1989 and 1995 the firm of Mellor Olsson was retained by Mr and Mrs Plenty in relation to a number of proceedings. However, in early 1996, or perhaps more accurately late 1995, Mr and Mrs Plenty became dissatisfied with the manner in which Mellor Olsson were representing them. By letter dated 3 January 1996 Mr and Mrs Plenty wrote to Mellor Olsson making a number of allegations reflecting adversely on the conduct of the firm and of counsel who had been retained by them.

9. On 21 February 1996 Mr and Mrs Plenty commenced an action in this Court in which they were plaintiffs and Mellor Olsson were defendants. In those proceedings a number of declarations were sought with respect to the alleged conduct of Mellor Olsson with respect to four separate proceedings with respect to which they had been acting on behalf of Mr and Mrs Plenty.

10. Although not served, it appears that those proceedings must have come to the attention of Mellor Olsson, who advised Mr and Mrs Plenty that they would not conduct any further work for them in respect of the proceedings as to which the declarations were sought by Mr and Mrs Plenty. Subsequently, in June 1996 a Master of this Court ordered pursuant to SCR r 11.06 that Mellor Olsson had ceased to be the solicitors acting for Mr and Mrs Plenty with respect to those four matters.

11. An appeal against the decision of the Master was dismissed by order of Lander J made on 1 August 1996.

12. Put shortly, the argument advanced on behalf of Mr and Mrs Plenty in support of the application which is now before me is that the present proceedings were only instituted by them as plaintiffs because they were unable to litigate the propriety of Mellor Olsson ceasing to act for them in the proceedings in which Mellor Olsson seek to have the solicitor and client bill of costs taxed.

13. It is put on behalf of Mr and Mrs Plenty that insofar as Mellor Olsson assert that they ceased to act for good cause and on reasonable notice, they should not only bear the onus of proof of those matters but that they should put their case on that issue first.

14. From my perusal of the pleadings, it appears that Mellor Olsson assert that they were entitled to cease acting for Mr and Mrs Plenty because Mr and Mrs Plenty had not paid certain costs which were due, including counsel fees, with respect to the litigation which was being conducted. Further, they assert that the issue of the proceedings against Mellor Olsson signalled a complete breakdown in the relationship between them and Mr and Mrs Plenty which was incompatible with them acting any further.

15. It is true, as I put to Mr Lane during the course of argument, that the proceedings now in question are defensive in the sense that they are designed to defeat the claim for taxation of costs by Mellor Olsson.

16. But the fact that they can in that sense be characterised as defensive does not determine the question who should be dux litis. Rather, to resolve that question one needs more closely to address the issues in the action.

17. There does not appear to be any dispute that a retainer of some kind or other was established between Mr and Mrs Plenty and Mellor Olsson. The two central issues in the case appear to be as to the terms and extent of the retainer, and as to whether or not circumstances arose which justified the action of the defendants Mellor Olsson in ceasing to act for Mr and Mrs Plenty.

18. It is true that the onus is on Mellor Olsson to prove that circumstances arose which justified them in ceasing to act, but that is not conclusive of the question as to who should be dux litis.

19. I should say also that apart from the two issues to which I have referred, the consequential issue which will turn on the determination of those first two issues is whether or not the sum of money held by Mellor Olsson on account of Mr and Mrs Plenty may be applied by them and retained by Mellor Olsson against the costs which are alleged to be due.

20. The contention of Mr Lane on behalf of Mellor Olsson is that insofar as it is the plaintiffs’ case that Mellor Olsson breached the contract of retainer that existed between them, it is for the plaintiffs Mr and Mrs Plenty to prove that there was a contract and to prove that it was breached by the defendant.

21. The plaintiffs cannot succeed in their claim unless they prove their allegation that the defendant has breached the contract or contracts of retainer. In that sense it is no different from any other action alleging a breach of contract and consequential relief flowing from it.

22. Both counsel have referred to a number of authorities. Some of them were cases in which solicitors were suing the client for costs. There is no doubt that in that class of case if there is nothing more to the action than that, the solicitor clearly owes a duty first to lead evidence to establish the nature and extent and the contract of retainer and to prove a breach by non-payment of the costs which are being pursued.

23. However, this is a different kind of action altogether. It is an action in which the clients seek declarations that the solicitor or firm of solicitors breached the retainer by ceasing to act and that consequentially they are entitled to the moneys held in trust by the solicitors.

24. In my opinion, the contentions put forward by the defendant should prevail. In particular, I can see no reason why Mr and Mrs Plenty should not present their case first and adduce what evidence they may wish to put forward in support of the existence and nature of the contract of retainer and as to its alleged breach. I cannot see that there would be any inconvenience or embarrassment to the plaintiffs in proceeding first and assuming the ordinary onus which attaches in a contract case in which the plaintiffs assert that the defendants have wrongfully breached the contract.

25. On the application of the plaintiffs, I rule that they should present their case in support of their claim first.