Douglas Thompson v Peter Jennings
| Jurisdiction | Jamaica |
| Judge | Brooks JA,Foster-Pusey JA,V Harris JA |
| Judgment Date | 22 January 2021 |
| Neutral Citation | JM 2021 CA 9 |
| Docket Number | SUPREME COURT CIVIL APPEAL NO COA2019CV00117 |
| Court | Court of Appeal (Jamaica) |
[2021] JMCA Civ 6
IN THE COURT OF APPEAL
THE HON Mr Justice Brooks JA
THE HON Mrs Justice Foster-Pusey JA
THE HON Mrs Justice V Harris JA (AG)
SUPREME COURT CIVIL APPEAL NO COA2019CV00117
Written submissions filed by Douglas AB Thompson for the appellant
Written submissions filed by Henlin Gibson Henlin for the respondent
(Considered on paper pursuant to rule 2.4(3) of the Court of Appeal Rules 2002)
I have read, in draft, the judgment of my learned sister, V Harris JA (Ag). I agree with her reasoning and conclusions. I also support her recommendation that the Rules Committee should address the lacuna that exists in respect of the procedure for invoking the relief provided by section 22(2) of the Legal Profession Act.
I, too, have read, in draft, the judgment of my learned sister, V Harris JA (Ag). I agree with her reasoning and conclusions and have nothing to add.
V Harris JA (AG)
On 22 November 2019, Henry-McKenzie J (Ag) (as she then was) (“the learned judge”), upon hearing a preliminary objection made by the appellant, Mr Douglas Thompson (“Mr Thompson”), in relation to a notice of application for court orders filed by the respondent, Mr Peter Jennings (“Mr Jennings”), made the following orders dismissing the objection:
“(a) The preliminary objection taken by the 1 st receiving party fails.
(b) The applicant's attorney is to amend the Notice of Application for Court Orders [to reflect the true status of the matter and the parties herein] within 7 days of the date hereof.
(c) Leave to appeal is granted.
(d) The hearing of the Notice of Application filed January 16, 2019 is adjourned to July 2, 2020 at 2:00 pm for 2 hours.
(e) Costs to the applicant to be taxed if not agreed.
(f) The 1 st receiving party's attorney-at-law is to prepare, file and serve orders herein.”
Mr Thompson now appeals those orders.
It is to be noted that there is a variance with the order at paragraph (b) when this is compared with the minute of orders that has been provided to this court. 1 However, in my view, nothing material turns on this difference.
Mr Jennings, was for many years embroiled in a legal battle against his former employer, the National Commercial Bank Jamaica Limited (“NCB”), for the unfair termination of his employment in 2012. He first challenged his termination before the Industrial Disputes Tribunal (“IDT”), and was successful. NCB sought to challenge the award of the IDT by way of an application for leave to apply for judicial review in the Supreme Court. Mr Jennings again succeeded when that application was dismissed. NCB challenged that decision in this court but was once more unsuccessful. This court also dismissed NCB's application for permission to appeal to Her Majesty in Council. Mr Jennings was awarded costs in both the appeal and the latter application. These costs were subsequently agreed and paid by NCB in the amount of $11,300,000.00 by way of direct transfer into the account of Mr Thompson, who had acted as one of the attorneys on behalf of Mr Jennings in the judicial review matter in the Supreme Court, as well as, in the matters before this court.
Notwithstanding this, Mr Jennings, thereafter, was forwarded a copy of an invoice dated 10 March 2017 from Mr Thompson, prepared by attorney-at-law Mr
Douglas Leys QC, who was also a part of Mr Jennings' legal team. The total stated on that invoice, inclusive of general consumption tax (“GCT”), was $19,427,831.35. The names of both attorneys are recorded, along with others, in the heading of the decisions of the aforementioned matters, as counsel appearing for Mr Jennings, instructed by Douglas ThompsonMr Jennings having settled previous invoices rendered by the attorneys-at-law was surprised and aggrieved by the invoice he received, and so, on 28 April 2017, he filed in the Supreme Court, a document entitled “Notice of Filing of Attorney/Client Bill of Costs”. That notice bore claim number 2015HCV02511, the same claim number as NCB's application for leave to commence judicial review proceedings. Mr Jennings attached to that notice, a copy of the said invoice dated 10 March 2017. He then filed another document, with the heading “Points of Dispute”, on 11 May 2017.
In response, Mr Thompson, on 30 July 2018, filed a notice of objection raising, inter-alia, the preliminary issue that he had never been retained by Mr Jennings, and as such they had no attorney/client relationship. When the matter came up for hearing at taxation proceedings before the learned deputy registrar on 10 December 2018, the deputy registrar stayed the proceedings and directed that the preliminary issue as to whether an attorney/client relationship existed between Mr Thompson and Mr Jennings, be determined by a judge in chambers.
Based on that direction, Mr Jennings filed a notice of application for court orders on 16 January 2019, seeking, inter alia, a declaration that an attorney/client relationship existed between the attorneys-at-law (Mr Thompson and Mr Leys) and himself, between the period May 2015 and 6 April 2017. This application also bore the claim number of the judicial review matter, and identified NCB as the claimant, and the IDT as the 1 st respondent. The application also identified Mr Jennings as the 2 nd respondent/paying party, Mr Thompson as the 1 st receiving party, and Mr Leys as the 2 nd receiving party.
When Mr Jennings' application came before the learned judge, on 10 October 2019, Mr Thompson raised two preliminary objections. The first was in regard to the procedure that Mr Jennings employed to initiate taxation proceedings under section 22(2) of the Legal Profession Act (“ LPA”), and the second was that the determination of whether an attorney/client relationship existed between the parties, could not be determined by way of a notice of application for court orders (under Part 11 of the Civil Procedure Rules 2002 (“CPR”), using the same claim number as that of NCB's application for judicial review which had already been concluded.
The learned judge heard arguments from counsel and reserved her decision until 22 November 2019, when she made the orders set out at paragraph [3] above.
In coming to her decision, the learned judge considered that, although section 22(2) of the LPA gave a client the right to refer his attorney's bill of fees for taxation, neither the LPA nor the CPR stipulate the procedure a client should follow when invoking that right. She also considered that none of the authorities that were relied on took the case any further, in that, there was no authority before the court that required the client as the “party charged” to file a new claim to refer a matter to taxation as had been argued by Mr Thompson. The learned judge considered the case of Adolphy DeCordova Samuels and others v Clough Long & Co [2016] JMCA Civ 28, which she noted seemed to highlight that, under section 22 of the LPA, taxation was an alternative procedure to the filing of a new claim in respect of the attorney. She surmised that, since the only option available to a client under the LPA was a referral to taxation, and there was no mention of the initiation of a new claim, that option was not available to a client. In the circumstances, she came to the view that, in keeping with the overriding objective to deal with cases expeditiously and to save unnecessary expenses, a new claim need not be filed, and that the matter could be brought to taxation proceedings under the same claim in which the disputed fees arose.
She did, however, agree with Mr Thompson that the drafting method used was “inappropriate and misleading”, in that, a new heading that was not present in the original claim was used and adapted to include the receiving parties who were not parties to that particular claim. This was a procedural error, she found, that could be cured by way of the court's discretion under rule 26.9(3) of the CPR, as it went to form rather than substance.
On 6 December 2019, Mr Thompson filed a notice of appeal relying on the following grounds:
“(1) The Learned Judge erred as a matter of law when she concluded that the determination of whether an Attorney/Client relationship existed between the Appellant and Respondent could be determined in the already concluded Claim No. 2015HCV02511.
(2) The Learned judge was plainly wrong when she ruled that CPR 26.9 could cure the Respondent's failure to commence a claim under Part 8 of the CPR to determine if an Attorney/Client relationship existed between the Appellant and Respondent.
(3) The Learned Judge wrongly exercised her discretion in ordering costs of the preliminary objection to the Respondent.”
Mr Thompson is seeking orders that (a) the appeal be allowed and the preliminary objection taken in the court below be upheld, and (b) costs of the appeal and the preliminary objection in the court below. Grounds 1 and 2 will be treated with together.
And
Mr Thompson, under these grounds, has challenged the procedure adopted by the learned judge, on the basis that:
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1. Mr Jennings was not the applicant, and Mr Thompson was not a party to claim no...
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