(2)When so filed, it shall be in force until revoked with the leave of the court and after notice to the registered attorney by a writing signed by the client and filed in court,or until the client dies, or until the registered attorney dies, is removed, or suspended, or otherwise becomes incapable to act, or until all proceedings in the action are ended and judgment satisfied so far as regards the client.
(3)No counsel shall be required to present any document empowering him to act. The Attorney-General may appoint a registered attorney to act specially in any particular case or to act generally on behalf of the State.
There cannot be more than one valid proxy given to a proctor to appear on behalf of a party.
Letchemanan Vs. Christian (4 N.L.R. 323)
The plaintiff having by an oversight omitted to insert the name of the proctor in his proxy. The proper cause to adopt in such a case was not to order the plaint to be taken off the file, and cast the plaintiff in costs, but to supply the omission then and there and proceed with the case in due course.
Treaby Vs. Bawa (7 N.L.R. 22)
Proxy in favour of several proctors trading in partnership is good. Appointment of two or more proctors in one proxy not constituting a firm and not standing in any professional relationship to each other is open to objections. A proxy given to a proctor and one or more qualified assistants is valid. Court permitted the amendment of proxy.
Times of Ceylon Vs. Low (16 N.L.R. 434)
The plaintiff brought an action for damages for wrongful sequestration. But the defendant was not liable as his proxy given to the proctor was limited to obtain an injunction.
Waidyasekera Vs. Dias (16 N.L.R. 460)
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. Rules of Roman Dutch Law has no application.
Moonasinghe Vs. Pereira (27 N.L.R. 76)
Where a proxy granted to a firm of two proctors to act jointly and severally and one of the proctors died pending the case. Survivor had sufficient authority to continue to represent his client.
In re S.L.Fernando (27 N.L.R. 245)
The power of the Supreme Court to investigate charges against members of the legal profession is unfettered by rigid rules of procedure relating to the institution of such proceedings or by any strict Definition of or limitation as to the nature of the material upon which such proceedings may be founded.
Attorney General Vs. Ellawala (29 N.L.R. 13)
An application for the execution of a decree was signed by a proctor in whose favour no proxy had been granted by the plaintiff. It was, however, established that he was an assistant to the proctor on record and that he had signed the application on behalf of the latter, and not as a proctor purporting to act independently on his own responsibility. Further, there was evidence of acquiescence on the part of the defendant and of ratification by the plaintiff.
Held, that in the circumstances the irregularity occasioned by the absence of a proxy in favour of the proctor was cured.
Nelson de Silva Vs. Casinathan (55 N.L.R. 121)
Once a proxy is given to a proctor by a party, the party himself cannot without revoking the proxy perform in person any act in court.
Kandiah Vs. Vairamuttu (60 N.L.R. 01)
Even assuming that an unsigned proxy in favour of a proctor may be subsequently rectified, a complete omission to file the act of appointment of a proctor within the prescribed time cannot be subsequently supplied.
Attorney General Vs. M.W.Silva (61 N.L.R. 500)
When a party gives proxy to an attorney-at-law it remains in force until revoked with leave of court after written notice to such registered attorney. The proxy so filed is binding on the party until the party dies or until all proceedings in the action are ended and judgment satisfied so far as regards the party. Once a registered attorney is on record the party could necessarily act only through the registered attorney.
Manamperi Somawathie Vs. Buwaneshwari(1990 (1) S.L.R. 223)
Once the registered attorney had informed his clients that counsel had died, his duties were not at an end and it is not then for the clients to retain another counsel. The clients themselves may have chosen counsel. If he disagrees with his client’s selection, the registered attorney must move to have his proxy revoked. But the right of retaining counsel remains that of the registered attorney.
It would be a violation of Rule 4 of the Supreme Court (Conduct of and Etiquette for Attorneys-at-Law) Rules 1988 (Gazette Extraordinary 537/7 of 07.12.1988) for any attorney who was not instructed by the registered attorney to appear in court.
In terms of the Civil Procedure Code and the Rules of the Supreme Court made under the powers vested in the Supreme Court by Article 136 (1) (g) of the Constitution, it is a registered attorney alone who can appear unless he has instructed counsel.
When a registered attorney whose proxy is on record is present in court, but has no instructions, he nevertheless appears and there is no default of appearance. However, there may be circumstances in which the presence of a registered attorney may not be an appearance.
If counsel retained and instructed by the registered attorney fails to appear on the appointed date, it is for counsel, and not the registered attorney to explain his absence in seeking reinstatement. Once the registered attorney has done his duty of appointing counsel i.e. retaining and instructing him, counsel assumes full control of the case, and becomes the “conductor and regulator” of the whole thing. If, as in the case before court, the registered attorney had not retained and instructed another attorney as counsel, then it was the duty of the registered attorney to keep a track of the dates fixed, for then it was he, and he alone who was entitled in terms of the law, and obliged in terms of the proxy, to appear and conduct the case.
Jinadasa Vs. Sam Silva (1994 (1) S.L.R. 232)
In disciplinary proceedings against an attorney-at-law, proof beyond reasonable doubt is not necessary but something more than a balancing of scales is necessary to enable the court to have the desired feeling of comfortable satisfaction. A very high standard of proof is required where there are allegations involving a suggestion of criminality, deceit or moral turpitude.
Daniel Vs. Chandradeva (1994 (2) S.L.R. 01)
An attorney –at- law has no authority under Sections. 24, and 27 of the Civil Procedure Code to move court for time to file proxy and answer.
Shafeer Vs. Dharmapala (1995 (2) S.L.R. 181)
The plaintiff filed an action on 24.12.1992 to recover Rs. 400,000/- plus interest and costs from the defendant company (the defendant). On 15.12.1994 the date of trial, objection was taken for the first time by the plaintiff’s Counsel that the proxy of the defendant was defective. The Counsel moved that the proxy and the answer filed by the defendant be rejected and the action be fixed for trial ex-parte. Both parties filed written submissions on this application, and the same Attorney-at-Law for the defendant filed a fresh proxy in his favour, along with his written submissions. The fresh proxy ratified and confirmed that the same Attorney-at-Law had earlier acted on behalf of the defendant with his authority, consent, concurrence and approval.
While the first proxy was signed by one director with his rubber stamp affixed but not bearing the common seal of the company, the fresh proxy bore the common seal of the company with signatures of two directors as required by section 34 (1) (a) of the Companies Act No. 17 of 1982 and Article 110 (1) of the Articles of Association of the Company.
The Court of Appeal held that,
(i)if according to the intention of parties the Attorney-at-Law has in fact the authority of his client to do what was done on his behalf although in pursuance of a defective appointment, in the absence of a legal bar, the defect could be cured. The provisions of section 34 (1) (a) of the Companies Act, though specific, are similar to the general provisions of section 27 of the Code. So are the provisions of Article 110 (1) of the defendant’s Articles of Association. Such provisions are directory and not mandatory.
(ii)the fresh appointment (proxy) filed in this case cured any defect arising out of alleged non compliance with section 34 (1) (a) of the Companies Act and Article 110 (1) of the Articles of Association of the defendant Company.
Per Wigneswaran J.
“The only difference between natural persons and a company might be the fact that a company is a legal entity not blessed with bones, marrow and flesh. But, a company has to work through human beings. The intention of such human beings could no doubt be ascertained. In fact, the subsequent proxy filed ratifying the earlier acts of the Attorney-at-Law on record was evidence of intention of the Company.”
Paul Coir (Pvt) Ltd. Vs. Waas (2002 (1) S.L.R. 13)
On 17.06.1999, the registered Attorney of the Petitioner had filed a motion seeking to have certain corrections effected, and to have the case called on 15.06.1999. The District Court had made order to call the case on 15.06.1999. On 15.06.1999 without corrections being effected order has been made to call the case on 22.06.1999. A notice of Appeal, signed by the respondent himself on 24.05.1999, has been tendered. A new proxy dated 24.05.1999 journalised on 27.06.1999 (JE8) had been tendered. On 17.06.1999 the new registered Attorney of the respondent had tendered the petition of appeal. No motion had been tendered on 20.05.1999 corresponding to the entry dated 20.05.1999 made on the margin under JE7, that the proxy had been revoked.
Weerasuriya J. held that;
1.A party dissatisfied with his registered Attorney is at liberty to revoke the proxy, and appoint another Attorney. But, in revoking the proxy, a party has to follow the procedure prescribed in s. 27(2).
2.Revocation must be effected with the leave of Court and after notice to the registered Attorney.
3.The code does not prescribe the grounds on which leave for revoke a proxy could be given or withheld.
4.The position of an Attorney-at-Law and a client is merely that of an agent and principal, and therefore an Attorney-at-Law cannot insist on acting for the client against his wishes.
“It is not open or anyone to state that the District Judge has not seen the marginal entry, under JE7 that an officer working at the Registry had made entry that the proxy has been revoked. JE8 dated 27.05.1999 signed by the District Judge would reveal that a new proxy was tendered. Thereafter, the DJ has accepted the new proxy dated 24.05.1999 along with the notice of appeal signed on 21.05.1999 by the appellant and the receipt in respect of security.”
Wanigaratna Vs. Dissanayake (2002 (2) S.L.R. 331)
Somawansa, J., held that;
When the trial was refixed an Attorney-at-Law had appeared instructed by the registered Attorney and had informed Court that he had no instructions from the plaintiff.
There was no legal requirement that notice be issued on the plaintiff-appellants when the trial was refixed, as the appellant’s registered Attorney was present in Court.
Once the registered Attorney appoints a counsel, the counsel assumes full control of the case.
Gnanawathie Vs. Wijesinghe (2004 (1) S.L.R. 132)
1.In applications commenced in the Court of Appeal such as relisting applications, applications for leave to appeal notwithstanding lapse of time, leave to appeal applications, revision applications, a party is entitled to appoint a registered attorney other than the registered attorney in the original court on record.
2.A final appeal commences with the filing of a notice of appeal and a petition of appeal in the original court by the registered attorney on record. Appeal proceedings in Court of Appeal are continuation of the proceeding commenced in the original court.
Jeevani Investments (PVT) Ltd Vs. Wijesena Perera (2008 (1) S.L.R. 207)
1.Even when an Attorney is incapable of appearing or making applications due to the total failure to file a proxy, such default should not in any way affect the validity of the proceedings.
2.The substituted plaintiff by virtue of filing a proxy belatedly has succeeded in ratifying the appearances and applications of the registered Attorney and thereby supplying all such acts with legal validity.
Gunatilake Vs. Sunil Ekanayake (2010 (2) S.L.R 191)
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