Disciplinary Committee of General Legal Council v Oswald James

• Jurisdiction: Jamaica
• Court: Court of Appeal (Jamaica)
• Judge: Panton P,McIntosh JA,Brooks JA
• Judgment Date: 07 February 2014
• Neutral Citation: JM 2014 CA 16
• Docket Number: APPEAL NOS 83 and 124/2012 APPLICATION NO 9/2014
• Date: 07 February 2014

In the Matter of a complaint by Prosporex Limited Inc

and

Oswald James, an Attorney-at-Law

In the Matter of the Legal Profession Act 1971

Between

Disciplinary Committee of the General Legal Council

Applicant

and

Oswald James

Respondent

[2014] JMCA App 3

Before:

The Hon Mr Justice Panton P

The Hon Mrs Justice McIntosh JA

The Hon Mr Justice Brooks JA

APPEAL NOS 83 and 124/2012

APPLICATION NO 9/2014

JAMAICA

IN THE COURT OF APPEAL SUPREME COURT CIVIL

LEGAL PROFESSION - Disciplinary proceedings - Breach of Canons of Ethics - Attorney struck from Roll of Attorneys - Stay of civil appeal pending outcome of criminal proceedings - Application for security for costs

Panton P

1 I have read, in draft, the judgment of my brother Brooks JA. I agree with his reasoning and conclusion and have nothing to add.

McIntosh JA

2 I too have read, in draft, the judgment of Brooks JA and agree that this application must be dismissed with costs to the respondent.

Brooks JA

3 On 11 September 2012, the Disciplinary Committee of the General Legal Council (the disciplinary committee) delivered a verdict against attorney-at-law, Mr Oswald James, in favour of Prosporex Limited Inc (Prosporex). Prosporex had complained, and the disciplinary committee found, that Mr James had committed breaches of the canons of professional ethics governing attorneys-at-law. The disciplinary committee found that those breaches caused Prosporex to be out of pocket to the amount of US $237,500.00.

4 Resulting from those findings, the disciplinary committee ordered that Mr James be struck from the roll of attorneys-at-law entitled to practise law in this jurisdiction and ordered him to pay Prosporex US $237,500.00 together with costs of J$100,000.00.

5 Mr James has appealed to this court against the decision and orders of the disciplinary committee (the civil appeal). He has also appealed against his conviction for certain criminal offences (the criminal appeal) arising out of the same transaction about which Proporex complained.

6 The civil appeal came on for hearing in June 2013, but was adjourned to allow the criminal appeal to be concluded first. The criminal appeal has been heard but the decision has not yet been delivered. The civil appeal has again been listed for hearing. It came on before the court on 27 January 2014 and Mr James' attorneys-at-law have made a fresh application for it to be taken from the list pending the decision in the criminal appeal. Whereas the court is prepared to grant that request, the attorneys-at-law for the General Legal Council have applied for security for costs for the civil appeal. It is that application which is the subject of this judgment.

7 The application for the adjournment was filed on 22 January 2014 and that for security for costs was filed on 24 January 2014. The grounds on which the General Legal Council has sought the security for costs are set out in its application thus:

• ‘1. There [sic] Appellant's [Mr James'] attorneys-at-law on December 20, 2013 informed the Respondent's [General Legal Council's] attorneys-at-law that the Appellant has left the jurisdiction of this Honourable Court.

• 2. By order of this court made on November 28, 2012 the Appellant's application for a stay of execution of the Respondent's order that he, inter alia , grant restitution to the complainant [Prosporex] in the sum of US$237,500 with interest at 3% thereon from April 15, 2008 until payment and to pay the complainant $100,000 costs, was refused. The Appellant has adduced no evidence of having complied with those orders to date.

• 3. The Respondent's request of the Appellant for security for its costs of these appeals has not been granted by the Appellant.

• 4. The above gives rise to a serious concern on the part of the Respondent of the Appellant's ability to pay the costs of these appeals if ordered to do so.

• 5. It is just in all the circumstances to make this order.’

8 In her affidavit supporting the General Legal Council's application, its secretary, Ms Althea Richards deposed of being informed that Mr James had left the island. She expressed surprise, on behalf of the General Legal Council, that Mr James was no longer within the court's jurisdiction and, in that context, went on to express her concern as to the consequences of that situation. She stated at paragraph 8 of her affidavit:

‘The GLC is now very concerned that in the event this court orders costs in its favour following its determination of these appeals, it will be unable to recover those costs from Mr Oswald James’

Ms Richards' apprehension was apparently heightened by an insistence by Mr James' attorneys-at-law that the General Legal Council pay over certain costs due to Mr James from previous orders of this court.

9 It may be gleaned from its letter of 23 January 2014, that it was Mr James' absence from the island which mainly prompted the General Legal Council to write to his attorneys-at-law demanding security for costs. Ms Richards exhibited the letter to her affidavit. There may, however, have been at least one other motivation for its demand. It will be mentioned below.

10 When the appeal came on for hearing before us on 27 January 2014, Mr James was present in court. The court informed Mrs Minott-Phillips QC, who appears for the General Legal Council, that Mr James had left the jurisdiction with the prior approval of the court and that the court had stipulated the time for his return which stipulation had, apparently, been obeyed. Despite that information, Mrs Minott-Phillips indicated thatshe wished to pursue the application. It was, therefore, adjourned to 30 January 2014 to enable Mr Barnes, who appears for Mr James, to take instructions from Mr James.

11 Mr James filed an affidavit in response on 29 January 2014. In it he confirmed that he had travelled abroad with the permission of the court. He also confirmed that he had complied with the court's condition for granting its permission, that on his return he should surrender his travel documents to the police. He charged the General Legal Council with speculating that he had fled the jurisdiction and dismissed the concept as ‘spurious’.

12 As far as the issue of previous costs orders were concerned, Mr James pointed out that the General Legal Council was being inconsistent in its approach. He said that when it had an order for costs of $65,684.00 in its favour, it demanded immediate payment of that sum, but when costs of $583,669.66 were later awarded to him, the General Legal Council wanted to apply a different standard; suggesting that its payment be deferred until all the appeals had been heard. (In her oral submissions Mrs Minott Phillips pointed out that there were four appeals in all involving these parties.) Mr James postulates that it is his refusal to accomodate the latter approach that has prompted this application by the General Legal Council. He pointed out that, prior to that refusal, there was no mention of security for costs, despite the fact that the civil appeal had been in existence since September 2012.

13 Before embarking on the assessment of the application, it is necessary to confirm that this court did grant Mr James permission to travel to Canada. It did so to enable him to visit his ill mother (who is of advanced years). In granting permission the court had ordered that Mr James should return to the island by 20 January 2014. His traveldocuments had previously been in the custody of the police, as a condition of his bail pending the outcome of his appeal in the criminal appeal. Mr James having returned to the island and having re-surrendered the documents, he cannot properly be said to be an appellant who is based overseas and therefore beyond the reach of the jurisdiction of this court.

The submissions

14 In advancing the application, Mrs Minott-Phillips did not pursue the line that the letter of demand, the notice of application and Ms Richards' affidavit had suggested. She made only passing reference, in her written and oral submissions, to Mr James' departure from the jurisdiction. Instead, learned Queen's Counsel argued that Mr James had not demonstrated that he had a meritorious appeal and that he would be able to satisfy an award for costs were he to be unsuccessful in this appeal. Learned Queen's Counsel pointed to the fact that Mr James had not paid to Prosporex, the sum ordered by the disciplinary committee. This failure, she submitted, raised the issue of impecuniosity, which is an issue that this court is required by its rules to consider.

15 She argued that the Court of Appeal Rules, 2002 (the CAR) gives this court wider powers than those given to the Supreme Court by part 24 of the Civil Procedure Rules, 2002 (the CPR) in relation to the issue of security for costs. Mrs Minott-Phillips pointed out that, unlike part 24 of the CPR, which stipulates the bases on which the Supreme Court may make an order for security for costs, rule 2.12 of the CAR is less restrictive. It is significant, learned Queen's Counsel argued, that rule 2.12 speaks to the ability of a party to pay the costs associated with an appeal. She pointed out that in doing so,the rule requires this court, unlike the trend obtaining in the United Kingdom, to consider the question of the impecuniosity of the parties to an appeal.

16 Mrs Minott-Phillips, in applying the requirements of rule 2.12 to the present case, argued that, having failed to make the payment ordered by the disciplinary committee, the court should consider that he would be unable to satisfy an award for costs of the appeal in the event that his appeal was unsuccessful. In urging the court to find that the justice of the case requires an order for security for costs, Mrs...