Barrington Earl Frankson v General Legal Council

• Jurisdiction: Jamaica
• Judge: Harris JA
• Judgment Date: 23 November 2012
• Neutral Citation: [2012] JMCA Civ 52
• Court: Court of Appeal (Jamaica)
• Docket Number: SUPREME COURT CIVIL APPEAL NO 5/1997
• Date: 23 November 2012

[2012] JMCA Civ 52

JAMAICA

IN THE COURT OF APPEAL

Before:

The Hon Mrs Justice Harris JA

The Hon Mrs Justice Dukharan JA

The Hon Mr Justice McIntosh JA

SUPREME COURT CIVIL APPEAL NO 5/1997

Between:

Barrington Earl Frankson

Appellant

and

The General Legal Council (ex parte Basil Whitter at the instance of Monica Whitter)

Respondent

LEGAL PROFESSION - Disciplinary proceedings - Appellant struck from roll of attorneys - Leave to appeal decision of the Council - Order for restitution pursuant to Legal Profession Act, s. 12(4) - Whether attorney failed to discharge his professional duties with integrity, probity and trustworthiness - Negligence

Harris JA

1 In this appeal, the appellant, an attorney-at-law, challenges the decision of the Disciplinary Committee of the General Legal Council (‘the Committee’), made on 1 May 1999 wherein he was struck off the roll of attorneys-at-lawentitled to practise in the courts of Jamaica. The Committee also made the following orders:

‘(2) Further pursuant to Section 12(4) of the Legal Profession Act, the Committee also orders that the attorney-at-law Barrington Earl Frankston [sic] makes restitution to Monica Whiter [sic] of the Full sum of monies received representing the purchase price of her half share interest in the property known as “Cromaty” [sic] less vendor's costs of sale and transfer.

(3) After such deduction, the attorney is to pay interest on the balance at the rate of interest paid by the National Commercial Bank Harbour Street on savings accounts from 31 ^st day of October, 1996 until present.’

2 In 1986, the complainant, Monica Whitter, variously referred to as Monica Samuels and Monica Longmore, retained the services of the appellant to represent her in pursuing a claim against her former husband, Slydie Joseph Whitter, to obtain a share in property known as ‘Cromarty’, which had been acquired by the parties during their marriage as joint tenants and also to recover the sum of £10,000.00. It was agreed that the appellant would perform the task on a contingency basis. In a letter dated 2 November 1986 to Mrs Whitter, the contingency fee was fixed, by the appellant, at 25%. Mrs Whitter, in response, by letter dated 6 December 1986, agreed to the rate and sought confirmation from the appellant that no additional funds would be paid out by her during or after the conclusion of the case. In a letter dated 9 April 1987, the appellant assured her that the condition would be honoured.

3 Following this agreement, the appellant commenced proceedings under the Married Women's Property Act in respect of the property. A decision was made in Mrs Whitter's favour. The court ordered that she was entitled to a one half interest in the property and that it should be partitioned and sold and the proceeds of sale divided between her husband and her equally. An appeal by Mr Whitter was dismissed, but this court, although affirming the order of the court below for the sale of the property and for the division of the proceeds of sale equally between the parties, varied it by stipulating that the division of the proceeds of sale should be less the deductions of ‘the assessed increase in the value of the property directly referable to any improvement effected by the Appellant subsequent to 13 ^th June 1984’. The taking of accounts was also ordered by the court.

4 By a letter dated 30 April 1991, under the hand of WB Frankson QC of the firm of Gaynair and Fraser (by then, BE Frankson and Company, the name under which the appellant operated, had been incorporated under the name of Gaynair and Fraser) was sent to Messrs Crafton Miller and Company who were then acting for Mr Whitter. This letter states as follows:

‘It appears that we are not making any progress with our intention to resolve the issues in this suit amongst ourselves.

It also appears that your client's plan to appeal to the Privy Council in England is now aborted.

In the meantime, your client is enjoying the property and nothing is being done by either of us to give effect to the judgment of the Court of Appeal.

In the circumstances, we now request that we take steps to:-

• a) appoint an accountant,

• b) appoint a valuator or a panel [sic] (2) valuators

• c) apply to the Registrar of the Supreme Court to take accounts in terms of the order of the Court of Appeal.

We look forward to receiving your usual co-operative response and hope that with goodwill we can bring this matter to a satisfactory conclusion.’

5 On 30 April 1991, Mr WB Frankson QC also wrote to a company called Jamaica Estates Limited. The letter reads:

‘A suit brought by our Client, Mrs. Monica Whitter against her former husband, Slydie Basil Whitter was determined in the Court of Appeal by inter alia, the following orders:-“

It is ………. ordered that the property be valued and sold and the proceeds thereof be divided equally between the parties after the deduction therefrom of the assessed increase in the value of the property directly referable to any improvement effected by the appellant (Mr. Slydie Whitter) subsequent to the 13 ^th June, 1984.”

We enquire whether you are prepared to act on behalf of Mrs. Whitter as valuator of the property as at the 13 ^th June, 1984, and to furnish in particular the value of the property i.e. the increase in the value of the property which is referable to improvement effected to the property subsequent to the 13 ^th June, 1984.

Would you also please advise us of your estimate of the rental of the property from the 13 ^th June, 1984, up to the present time.

Your early reply is urgently awaited.’

Mr Whitter did not appeal to the Privy Council.

6 On 3 June 1991, Mrs Whitter wrote to the appellant terminating the retainer. Following this, on 9 July 1991, Mr WB Frankson QC wrote to Mrs Whitter stating as follows:

‘There does not appear to be any need to enter into any discussion relating to honour and decency and the like but we are constrained to remind you that you are obligated to us to the extend [sic] of twenty five percent (25%) of the value of the property which the Courts found was your share of the property jointly owned by you and your former husband Slydie Whitter.

We were having the property evaluated in keeping with the Judgment of the Court when your letter arrived and we expect to have such evaluation very soon.

There is vested in us a legal and equitable interest in twenty five percent (25%) of fifty percent (50%) share of the valuation made by the Real Estate Valuator whom we have hired.

Just as soon as that sum is ascertained we shall charge the property with the amount due to us and we shall proceed to give effect to the Order of the Court viz. “………. that the property be valued and sold and the proceeds thereof be divided equally between the parties ……….”

Arising out of that Judgment and Order and by reason of the Agreement between yourself and us twentyfive percent (25%) of your half (1/2) share vested in us from the date of the Judgment and even if you wish to let your former husband have the property you may only do so after we have been paid our interest in full.

We accordingly advise you that we shall be lodging a caveat against the title to the property and we shall thereafter commence proceedings against you with a view to having the property sold in keeping with the order of the Court and thereby recover all sums due to us with costs.’

7 On 15 August 1991, the appellant lodged a caveat against the property. In the affidavit supporting the request for the caveat, he stated that there was an agreement that the firm's fees would be 25% of half share of the property's market value, which had not been paid by Mrs Whitter. He averred also that the Supreme Court had made an order for the partition of the property on 25 June 1988, which had been confirmed on appeal on 9 March 1989. He further stated that it was his belief that Mrs Whitter no longer had an intention to partition that property and that the value of the property was $2,800,000.00 and the firm's interest therein was $350,000.00.

8 On 20 September 1993, by claim CLF 141/1993 the appellant instituted proceedings against Mrs Whitter. The statement of claim reads:

‘The Plaintiff [sic] claim is against the Defendant to recover the sum of One Million Seven Hundred and Eighty Eight Thousand Seven Hundred and Seventy Dollars and Forty Seven Cents ($1,788,770.47) being monies due and owing pursuant to an agreement between the Plaintiff and Defendant and costs which amount remain unpaid despite the demands of the Plaintiff.

PARTICULARS

(1) 25% of all sums received on the property:-

(a) being 25% of her share of the appraised value of the property	$1,750,000.00
(b) being 25% of the appraised value of the rent payable to the Defendant from the 13.6.84 to 25.6.93 and continuing	38,069.47
	$1,788,069.47’

9 On 10 June 1994, a judgment in default of appearance was entered against Mrs Whitter. The appellant then proceeded to make an application for the sale of the property. On 9 May 1996, an order was made for the sale of the property. On 5 September 1996, a further order for sale was made giving Mr Whitter the right to purchase Mrs Whitter's half share for the sum of $7,875,000.00. The sale having been completed on 27 September 1996, the sum of $7,875,000.00 was paid to Messrs Gaynair and Fraser. The default judgment was set aside on 4 January 1999 but by then the funds were already paid over to the appellant.

10 On 11 November 1996, Mrs Whitter wrote to the appellant. The letter reads:

‘Mr BE Frankson

Gaynair & Fraser

9-11 Church Street

Kingston

Jamaica

Dear Mr Frankson

Re: Action against Joe Whitter

I am aware that you are holding my portion of the sale proceeds of “Cromarty” in your firm's clients bank account.

Is it possible to release some of the money now or is the Court's permission required? I assume that the bank account is...