An order made against a husband for payment of the wife’s costs to her solicitor. The solicitor sought a garnishee order in respect of unpaid costs. Lord Hanworth MR described the solicitor’s lien as a mere right to claim the equitable interference of the court.
Lord Merrivale said: ‘As to the first objection to the garnishee order nisi, what has to be determined is whether the wife’s solicitors were persons who had obtained a judgment or order against the husband for recovery or payment of money – that is, were they his creditors? The order relied on is that of March 10 1933 that the husband ‘do within seven days pay to Messrs White and Co, the solicitors of the wife, the sum of pounds 366.1s.4d, being with the sum of pounds 170 still in Court and pounds 170 already paid out the amount of the wife’s costs as taxed and certified’. An affirmative answer to the question I have formulated would seem to involve a conclusion that the solicitors and the wife had each obtained a judgment or order against the alleged debtor. If so, each would be a competent applicant for the garnishee order and entitled under the terms of [the Rules] upon affidavit by himself or his solicitor ‘to attach the moneys due to the debtor’. In the everyday practice of this Division the application by the solicitor for payment by the husband of the wife’s costs is taken to be the application of the wife. If this were not so, it would seem that the wife’s solicitor, with no misconduct on his part as a solicitor, might be personally condemned in the costs of an unsuccessful application. In my view the person who is entitled to take garnishee proceedings is the actual creditor. A somewhat similar question arose in the Court of Appeal in 1929: In re a Debtor. . . There, upon an order in divorce for payment by the co-respondent to the solicitors of the petitioner of the petitioner’s costs of the suit, the solicitors proceeded in bankruptcy against the co-respondent, and it was objected that they were not creditors. The judgment of the Court did not proceed upon this ground, but in the course of the judgment of Lord Hanworth MR these words occur: ‘the person at whose suit proceedings are taken must be the principal, the person in whose interest those proceedings are necessary. In my opinion the petitioning husband in this case was the person who was really the principal, for whose indemnity legal proceedings were necessary. The solicitors were merely acting as a necessary part of the machinery, under which the sum enured for the benefit of the petitioner; but they were not the principals as against the debtor.’ This was not a decision on the present state of facts, but it appears to me to support the contention raised on the part of the husband in the present case, and my conclusion upon this matter is that the solicitors were not entitled to become applicants as of their own right . . ‘
Lord Hanworth MR, Lord Merrivale
[1933] P 199
England and Wales
Updated: 18 July 2021; Ref: scu.666006
