Donald Gittens v The General Legal Council

• Jurisdiction: Jamaica
• Judge: McDonald-Bishop, J.A.,P Williams, J.A.,G Fraser, J.A. (Ag)
• Judgment Date: 11 April 2025
• Neutral Citation: JM 2025 CA 29
• Court: Court of Appeal (Jamaica)
• Year: 2025
• Docket Number: Suit No.: COA2021MS00011

Donald Gittens

and

The General Legal Council

McDonald-Bishop, J.A.; Williams, J.A.; G Fraser, J.A. (Ag)

Suit No.: COA2021MS00011

Court of Appeal

Appearances:

Seymour Stewart for the appellant.

Ms. Sidia Smith instructed by Bennett Cooper Smith for the respondent.

McDonald-Bishop, J.A.

1 On 31 March 2021, the Disciplinary Committee of the General Legal Council (‘the Committee’) found the appellant, Donald Gittens, guilty of professional misconduct. The Committee found that the appellant breached Canons IV(r) and IV(s) of the Legal Profession (Canons of Professional Ethics) Rules, 1978 (‘the Canons’). Canons IV(r) and IV(s) read as follows:

• “(r) An Attorney shall deal with his client's business with all due expedition and shall whenever reasonably so required by his client provide him with all information as to the progress of the client's business with due expedition.

• (s) In the performance of his duties, an Attorney shall not act with inexcusable or deplorable negligence or neglect.”

2 As a sanction for the breaches, the Committee, on 28 June 2021, ordered the appellant to pay costs in the sum of $75,000.00 to the respondent, the General Legal Council (‘GLC’).

3 The appellant now appeals against the Committee's findings of professional misconduct and the sanction it imposed contending, in summary, that the Committee's findings of professional misconduct were unreasonable and breached his right to natural justice and constitutional right to a fair hearing; and that the costs sanction imposed is unreasonable and excessive and breaches the constitutional and natural justice principles of impartiality and fairness.

BACKGROUND

4 The proceedings before the Committee were commenced by a complaint made by the appellant's client, Salome Kerr (‘the complainant’). The circumstances giving rise to the complaint are that in 2007, the complainant sustained a broken arm when a motorcar taxi in which she was travelling (‘the taxi’) collided with a motor truck (‘the motor truck’ or ‘the truck’).

5 The complainant approached the appellant for legal representation in June 2007 and paid $3,000.00 for a consultation, evidenced by a receipt dated 10 July 2007. The complainant provided the appellant with an initial medical report from the Mandeville Public Hospital outlining her injuries. The appellant, however, advised the complainant that due to the nature of her injuries and her reported lingering effects, an expert report was required from a consultant bone specialist. The appellant informed the complainant that she would be required to pay for the consultant's report. However, the complainant refused to pay for the report, stating that she did not want to spend that money because she was unemployed and unsure that her case would have been successful. On that basis, the complainant requested that the appellant cover the cost of the report. He refused, advising her to find another lawyer who would cover the cost of the report.

6 On 9 September 2008, the appellant wrote to an orthopaedic consultant, requesting the report. There is no evidence, however, that up to the date of the hearings before the Committee, the complainant had paid for and obtained the report.

7 The appellant had taken no steps to progress the matter until November 2012, when the appellant and complainant resumed contact and the appellant filed a claim on the complainant's behalf against the owner and driver of the motor truck. The claim was filed before it became statute-barred in May 2013.

8 The defendants named in the claim were the owner and driver of the motor truck. It was uncontroversial that the claim was served on both of them. The owner of the motor truck filed a defence to the claim in August 2013. The driver of the motor truck filed no acknowledgement of service or defence, and the appellant was unable to secure proof of service due to issues with receiving the requisite information from the bailiff who reportedly effected service on him.

9 Up to November 2019, no further progress had been made in bringing the claim to a conclusion.

THE COMPLAINT TO THE COMMITTEE

10 Unhappy with the lack of progress in her matter, the complainant, in November 2019, filed an application to the Committee, accompanied by an affidavit in support, pursuant to section 12(4) of the Legal Profession Act (‘the LPA’), alleging professional misconduct against the appellant. The application and affidavit are together referred to as ‘the complaint’. No specific Canons were mentioned in the complaint. The complainant, however, broadly alleged that:

• “(1) [The appellant] has not provided me with information on my file;

• (2) [The appellant] has not dealt with my business properly; and

• (3) [The appellant] has acted [with] inexcusable and deplorable negligence.”

11 The particulars of the complaint were set out in the affidavit and are, in summary, that:

• (1) The complainant employed the appellant as her attorney in June 2007. At that time, the appellant requested that the complainant obtain a medical report from a “bone specialist” at a cost of $20,000.00.

• (2) The complainant indicated that she could not afford to pay for the medical report and asked the appellant to foot the bill. He refused.

• (3) The complainant refused to take out a loan to cover the costs because she was not sure what the outcome of the case would be.

• (4) The complainant attempted to meet and contact the appellant on several occasions over several years in an attempt to get updates on her case. The appellant would, however, either not communicate with her or not contact the complainant unless she contacted him first.

• (5) At some point, the appellant told the complainant to collect her file from him and advised her to seek alternative counsel.

• (6) The complainant attempted to but could not find another lawyer to take her case.

• (7) In 2018, the complainant indicated that she wanted the appellant to remain her counsel in the claim. However, she did not hear from the appellant again up to the date of filing the complaint.

THE APPELLANT'S RESPONSE TO THE COMPLAINT

12 The appellant filed an affidavit in response. His main assertions were that following the consultation in 2007 and having received an initial medical report from the complainant, the complainant agreed to provide a medical report from a specialist setting out her permanent partial disability. The report was required to assist the appellant with determining what should be included in the claim and whether the claim should be filed in the Supreme Court or the Parish Court.

13 The complainant failed to provide the medical report for several years because she could not afford it, and the appellant refused to assist her with the money to procure it upon her request. The appellant encouraged the complainant to find another lawyer to represent her who might be willing to assist with the payment for the report. He regularly called the complainant to find out if she had found another lawyer, but she had not done so. The situation remained the same until 2018, when the complainant made contact with the appellant. The appellant again refused to continue to represent the complainant in the matter. In 2019, the appellant reconsidered the possibility of representing the complainant and attempted to re-engage with her, but this was unsuccessful.

THE COMMITTEE'S DECISION

14 The Committee heard evidence and submissions from the complainant and the appellant and issued its decision on the appellant's liability for professional misconduct on 31 March 2021 (‘the decision’). The Committee made 16 findings of fact, which are detailed in para. 27 of its decision. Given the grounds of appeal and the arguments advanced relative to them, it is necessary to reproduce those findings of fact in full:

• “(a) the [appellant] was retained by the Complainant in 2007 on a contingency basis to represent her in a personal injury claim;

• (b) the only sums paid to the [appellant] were the Consultation Fee of $3000.00;

• (c) That between 2007 and 2008 the [appellant] wrote to try to secure Medical Reports from the Mandeville Public Hospital and Dr. Steve Mullings, Consultant Orthopaedic Surgeon;

• (d) The issue of the consultant report arose following receipt of the Medical report dated 21 November 2007 and the instructions of the Complainant who was having malingering effects following the course of treatment prescribed;

• (e) That a claim was commenced on Ms. Kerr's behalf against only the driver and the owner of the motor truck and not the vehicle in which the Complainant was a passenger on 10 November 2012;

• (f) Whilst there is evidence that the [appellant] requested that the Complainant sign a Contingency Fee [Agreement], there is no evidence of the Complainant being asked to sign an Indemnity or Waiver;

• (g) The [appellant] applied the sum of $3,000.00 to the costs of effecting the stamping and filing of the claim;

• (h) That Ms. Kerr was called in to collect the claim documents for service on or around 1 February 2013;

• (i) The accident having taken place on 1 June 2007, the claim became statute-barred on 30 May 2013;

• (j) The Affidavit of Service was not dispatched until 5 June 2013, after the matter had become statute-barred but while the claim form was still valid;

• (k) The Defence of the owner was served on the [appellant] on 14 August 2013;

• (l) The claim form became invalid on 9 November 2013;

• (m) The claim has not proceeded to mediation and no further work has been done since 2013;

• (n) There is no evidence that the [appellant] collected any money in respect of the Complainant's case;

• (o) The relationship between the Complainant and the Appellant broke down in 2018 when she accused him of taking her money; and

• (p) The [appellant] has remained on the Record as the Attorney for the Complainant.”

15 Having made its findings of fact, the Committee stated that the...