Advocate-Fees-Written agreement required-Quantum meruit basis of re-
covery restricted

The appellant, an advocate, was retained to defend the respondent in
criminal proceedings, and, at an early stage received a fee of £E.2. Ap-
pellant intended to make a further charge, but, did nothing until ~ome
months after termination of proceedings. Appellant then sued respondant
on quantum meruit basis ..

• Court : Davidson, L.S.

Held: Although Order 20, rule 11 (1) Civil Justice Ordinance 1929
provides that no agreement as to fees between advocate and client shall be
valid unless in writing, it has been established by the Court of Appeal
that in the absence of any' agreement as to fees the advocate can recover
on a quantum meruit basis. However, the facts of this case show that the
advocate received £E.2, which implies there was an agreement which was
not in writing, and therefore rule 11 (1) applies and the advocate cannot
recover any fees on a quantum meruit basis.

Theocharides v. Ahmed Abdel Magid AC-APP-33-1918.
Civil Justice Ordinance 1929, Order 20, rule 11 (1).

Appeal

1930. Davidson L.S.: This is the judgement of the court. This
appeal raises an interesting point, whether an advocate, in the absence
of any written agreement, can recover fees for work done on a
quantum meruit basis and, if so, subject to what, if any, limitations.

In the \ present instance, the respondent was charged with an

. offence in the criminal courts and retained the appellant to advise
and appear for him. During or after the police investigation the
appellant received a fee of £E.2. He intended to make a further
charge but never did so until· some months after the proceedings were
terminated. He explains this delay by saying: (1) that the respon-
dent was a relative, and (2) that the respondent was without means.
The latter reason fails because the respondent was a Government
official on a salary of £E.16 per month and owning property. The
appellant sued in the District Court for fair remuneration and was
awarded £E.12. The respondent appealed to the High Court which
allowed the appeal solely on the grounds that an advocate cannot
recover fees for services in a criminal case in the absence of a
written agreement. See Civil Justice Ordinance 1929, Order XX.,
rule 11 {l).1

The present appeal is on the ground that the learned Judge was
wrong in holding that "an action cannot lie on a quantum meruit,
and that therefore the appellant cannot claim fees for work done
in a criminal case without a written agreement."

It was correctly argued by learned counsel for the appellant that
this general principle was already covered by a decision of the Court

1 Replaced by Advocates Ordinance 1935, sec. 12, Editor:

of Appeal in the case of Theocharides v. Ahmed Abdel Magid.
AC-APP-33-1918 In that case" the advocate had done a consider-
able amount of work in a criminal case, and it was held that, in the
absence of an agreement, he was entitled to a reasonable fee, in
proportion to the services he had rendered. This authority was
binding on the High Court,' and therefore, so far as the general
principle enunciated by the learned Judge was involved, it cannot
be maintained. After that decision in the Court of Appeal it cannot
be held that no action will lie on a quantum meruit for the recovery
of fees in -a criminal case. But the authority in question was not
cited in the High Court, and therefore it was not open to the learned'
Judge to consider whether the present case can be distinguished from
the Theocharides case in its particular facts and circumstances.

It remains therefore for this court to consider whether the facts
of the present case are in all material respects the same as the facts
in the Theocharides case and, if not, whether the distinguishing facts
are sufficient to justify the court in taking different course from that
which the Court of Appeal took in the Theocharides case.

In my opinion, the principle decided in the Theocharides case is
one which must be applied With the greatest caution. In view of the
'language of Rule 11, sub-clause (1), it cannot be denied that that
decision was somewhat startling. The rule evidently contemplates
that the proper method by which an advocate should obtain his fees
is either by payment of those fees in advance, which is the strict 'Me
in the English Courts, or by a definite written agreement which- would
leave no doubt as to the willingness of the client to pay those fees
and as to the right of the advocate to receive those fees, wHether or
not he succeeded in the case. It is perfectly clear from the rule
that any agreement, other than' a written agreement, cannot be
enforced. But a quantum meruit is a claim on contract; it. is based
on the implied agreement that, when an agent is employed, he will
be given reasonable remuneration. The decision of the Court of
Appeal in the Theocharides case therefore involves this paradox-that
where an advocate agrees with his client as to the amount he is to
receive, but does not put it in writing, he cannot recover, but that
where he comes to no agreement except the implied one, he can
recover. This may be put more simply another way-if there is
an express agreement in writing, the advocate can recover; if there
is an express agreement not in. writing, the advocate cannot recover,
but, if there is no express agreement but merely an implied agreement,