The question for the Court was whether, under these circumstances, Mrs. Swinfen was bound by Sir Frederic's acceptance of the compromise. We need not enter into the various personal questions with which the main point at issue was mixed up. Language was used respecting Sir F. Thesiger which was severely rebuked by the judges to whom it was addressed; and it must be gratifying, though it cannot be surprising, to learn from the highest authority that there was no ground whatever for imputing dishonourable conduct to a man whose character has always been not only distinguished but unblemished. The question of public interest is of a very different order. It is, in a few words, as follows:—“What are the limits of the authority which a client delegates to his counsel, by the fact of employing him in that capacity?” An article which appeared in the Times on Wednesday last leads us to doubt whether the degree in which this question was affected by Swinfen v. Swinfen is generally understood. It was, in fact, touched, rather than decided; for the form in which the case came before the Court was such that unanimity amongst the judges would have been necessary to make the compromise binding upon Mrs. Swinfen. Two of the judges, Justices Cresswell and Williams, thought that it was binding, and one, Mr. Justice Crowder, that it was not. Consequently, though the defendants have failed in making Mrs. Swinfen responsible for the agreement entered into by her counsel, the weight of authority would seem to be in their favour, and not in hers; and as the Common Law Procedure Act allows of appeals in such cases, there can be little doubt that the case cannot rest where it is, but will be carried before a higher tribunal.
The general principle involved in the case is not, we think, quite so broad, nor quite so easily applied, as it may seem to be at first sight; nor can we agree in the opinion that Mr. Justice Crowder's judgment exhausts the subject. As we understand his Lordship, his view of the question is that the relation between client and counsel consists in the abandonment by the former to the latter of the entire management of the case when it comes into Court—the compromise of the disputed claim being a matter for the sole consideration of the client, who must, if he wishes such a compromise to be effected, give special instructions to his counsel to effect it. When stated thus broadly, the principle no doubt seems reasonable enough; but when we look at it more minutely, it seems to sail to provide for the very state of things in which some rule is most wanted, and which actually arose in the case of Swinfen v. Swinfen. We do not pretend to say how the difficulties of the subject are to be dealt with; but we think it very desirable that their existence should be known more widely than it seems to be at present.
Every one practically acquainted with the ordinary course of the administration of justice must know that the confidence reposed by a client in his advocate is of a very peculiar and extensive kind. It is not a trust of such a nature that it can be given or withdrawn in a moment. Where there are a great mass of facts bearing on each other in very different ways, and susceptible of a great variety of interpretations, acquaintance with them makes the barrister not only convenient, but absolutely indispensable to his client at the moment of trial; and to attempt to transfer his brief to another person when the case is actually proceeding, is something like attempting to transfer a surgeon's instruments to some one else in the midst of an operation. The fact that he, and he only, is acquainted with the facts of the case, invests the barrister for the time with an authority over his client, analogous to that which is exercised by a physician over his patient; and the greater the difficulty of the case, the greater is the extent of this authority. This result follows from the very nature of things; and it is quite impossible that any legal or professional rules should alter it. Its bearing upon the power of the counsel to effect compromises is very direct and simple. Every one agrees that it is entirely the province of counsel to determine what witnesses shall be called, what questions shall be asked, what arguments shall be addressed to the judge or jury; but these functions frequently involve the power of compromising the case. Suppose, for example, all sides are agreed that an arrangement ought to be made between the parties. Pending the negotiation, a witness is produced on the part of the defendant, who undertakes to swear that the plaintiff's case is tainted with perjury or forgery. The defendant’s counsel disbelieves and declines to call him. The defendant is anxious to have him called. The question of compromise or no compromise clearly depends on the question whether he is called or not; and that question, as all are agreed, is one for the counsel for the defendant. No doubt the defendant may, if he likes, take away his brief; but, as we have already observed, the power is one which in any case it would be most difficult, and in a complicated case totally impossible, to exercise. This may appear an unlikely occurrence, but it is one which, in one form or another, is constantly happening. Nothing is more usual than for counsel to refuse to take this or that particular line in conducting a cause; and it is obvious that, by doing so, they constantly influence most materially the results to which their clients are ultimately conducted.
Besides this occasional and unavoidable power of influencing the issue of litigation in a direction opposed to the wishes of his client, there are instances in which the absence on the part of counsel of the power to accept terms offered to them would inflict great hardship. Suppose that the client is absent, and has given no special instructions, and suppose that during his absence circumstances come to the knowledge of counsel which convince them that, unless a compromise is effected, their client will lose his cause. It is difficult to imagine that the power of exercising a discretion in such a case is not included in the general confidence reposed by a client in his advocate. It is not a more extensive confidence than that which he actually does repose; and the very fact of his absence seems to confer additional authority on his representatives. This was the precise point which arose in Swinfen v. Swinfen. Sir F. Thesiger never claimed to control his client's wishes. He only acted in her absence as he presumed she would have acted if she had been present and aware of the real state of affairs. It does not follow that because a man is unwilling to accept £500 out of a claim of £5000, when he considers his case clear, he would be unwilling to accept it if he learnt that the documents by which his title was proved had been lost or destroyed; and it is surely not a very extravagant thing to say that an advocate, who has an undoubted right to determine on the means by which a claim to the whole matter in dispute shall be made good, has some right to think that circumstances may occur which would authorize him to determine, in the absence of his client, whether the claim to a part should not be abandoned. It must be remembered that the changes and chances of a lawsuit are like those of a battle, and that a compromise may be gladly offered at one moment which may be indignantly refused an hour later. Unless, therefore, some one has authority on the part of the litigants to enter into such compromises, the parties to actions would have to be continually present in court in their own persons; for they could hardly foresee what might happen fully enough to be always able to give such special instructions as would meet every emergency. We must guard ourselves against the imputation of being blind to the abuses which at present exist with regard to this matter. We are well aware that cases are often referred and compromised in a most unprincipled manner, and far more with reference to the convenience of the bench and bar than to the interests of the suitors. This is another branch of the question, and one which we hope may, at some time or other, be properly settled; but the extent of the legitimate authority of counsel is a subject of much delicacy and difficulty, and, as the law now allows an appeal in such cases as the present, we hope that its limits may be settled in a final and satisfactory manner.
Saturday Review, January 17, 1857.