Armand v. Carr

C.J.C.-The appellant Armand appeals from a ruling of the Registrar holding him not entitled to recover from the respondents the costs of the appeal to this court awarded him by the judgment reported in [1926] S.C.R., at p. 575.

The ground taken by the Registrar for declining to tax these costs to the appellant is that the solicitors, who nominally acted for him in carrying on the appeal, were not in fact retained by him or on his behalf, but were employed by the British Traders' Insurance Company (with whom the appellant was insured) to defend the action brought against him and to prosecute the appeal to this court, and that the appellant was under no personal liability to such solicitors for the costs of the appeal and was, therefore, not in a position to claim indemnification by the respondents for such costs; and Ryan v. McGregor (3), is cited in support of these conclusions.

Upon careful consideration of all the material before us, we are satisfied that the insurance company instructed its own solicitors to defend the action not on its behalf but S.C.R.

on behalf of the appellant, thus implementing its obligation " to defend in the name and on behalf of the insured VA any civil actions, etc." The solicitors so instructed entered an appearance in which they style themselves " solicitors c.J.C.

For so doing his authority was necessary and was undoubtedly obtained. Their character as defendant's solicitors they maintained throughout the litigation in which, from time to time, the appellant personally took part by making affidavits, giving evidence, executing a bond, etc. From this course of conduct his employment of the solicitors who appeared on his behalf, or his sanctioning their carrying on his defence, is the only proper inference; and whether it should be taken that the insurance company, in instructing its solicitors to defend the action, etc., acted as agent for the defendant, or that he personally so employed the solicitors, their retainer as his solicitors in a manner binding upon him admits of no doubt.

Such retainer or employment carries with it personal liability of the defendant (appellant) for the costs reasonably incurred by the solicitors pursuant to it, unless there was a contract or agreement binding on the solicitors excluding such liability. In that connection the Registrar says:

This is obviously not a definite finding that there was an agreement relieving the defendant-appellant of all liability to his solicitors such as must be established by the respondent-plaintiffs, if they would on that ground avoid payment of party and party costs to the succesful appellant. Adams v. London Improved Motor Coach Builders, Ltd. (2). The evidence is not very definite or very precise. In our opinion it clearly falls short of establishing any agreement binding on the solicitors that they should not in any event look for payment of their costs to the appellant. No doubt there was an dbligation on the part of the insurance comc.J.c. pany to pay the defendant's solicitors their reasonable costs. Adapting to the circumstances of the present case the language of Atkin L.J. in the Adams case (1), at page 504: Nevertheless there is nothing inconsistent in that obligation co-existing with an obligation on the part of the defendant to remunerate the solicitors. Naturally, as a matter of business, the solicitors would, we have no doubt, apply in the first instance to the insurance company, as being the persons ultimately liable to pay the costs as between all parties-that is to say, the persons who would have to indemnify the defendant against the costs. But that does not exclude the liability of the insured, and it seems to us not in the least to affect the position that the client may be liable although there may be a third person to indemnify the client. It appears to us that that state of things would account for the whole of the evidence that was given.

But we feel satisfied of this: that upon the direct evidence in the case it would be wrong to draw the conclusion that there was an express bargain that the defendant was not to be liable to 'the solicitors for the costs incurred; and, quite apart from the express evidence that no such arrangement was made, it appears to us that there was no evidence given on behalf of the respondents that an express arrangement to that effect had in fact been made.

Upon the facts in evidence the appellant's right to recover from the respondents the costs of his appeal awarded to him by the judgment of this court cannot, we think, be denied. The decision in Adams v. London Improved Motor Coach Builders, Ltd. (1), is directly in point and conclusive in his favour. See, too, the judgment of Romer L.J., at p. 295, in Rex v. Archbishop of Canterbury (2). In so far as the decision in Ryan v. McGregor (3) may not be consistent with this conclusion we are unable to