Earl Ferguson v General Legal Council
| Jurisdiction | Jamaica |
| Judge | F Williams JA,Dunbar Green,Brown JA |
| Judgment Date | 29 June 2023 |
| Neutral Citation | JM 2023 CA 82 |
| Docket Number | MISCELLANEOUS APPEAL NO COA2021MS00013 |
| Court | Court of Appeal (Jamaica) |
[2023] JMCA Misc 4
THE HON Mr Justice F Williams JA
THE HON Mrs Justce Dunbar Green JA
THE HON Mr Justice Brown JA (AG)
MISCELLANEOUS APPEAL NO COA2021MS00013
APPLICATION NO COA2021APP00219
IN THE COURT OF APPEAL
Attorney-at-law — Disciplinary Hearing — Application to discharge order of a single judge for a stay of proceedings — the principles to be applied — application to adduce fresh evidence — application to set aside the decision of the Disciplinary Committee of the General Legal Council — whether the Disciplinary Committee/ Panel had jurisdiction set aside its own decision — whether the Panel was functus officio — whether the principles of natural justice were breached — Rule 9, fourth schedule, The Legal Profession Act applied
Keith Bishop and Ms Roxanne Bailey instructed by Bishop & Partners for the appellant
Mrs Caroline Hay KC, Sundiata Gibbs and Mikhail Williams instructed by Hylton Powell for the respondent
I have read the reasons for the judgment of my learned sister, Dunbar-Green JA and they accord with my reasons for concurring in the order made by the court.
On 31 March 2021, attorney-at-law, Earl Ferguson (‘the appellant’), was found guilty of professional misconduct by the Disciplinary Committee of the General Legal Council (‘the Committee’/‘the Panel’), arising from a complaint against him by Wade Morris (‘the complainant’). A sanction hearing was scheduled for 5 May 2021.
By way of notice of application, dated 3 May 2021, the appellant applied to the General Legal Council (‘the respondent’) to set aside that decision, adduce fresh evidence and set a date for re-hearing of the complaint before a different panel.
On 28 October 2021, the Panel ruled that it had no jurisdiction to grant the orders sought by the appellant, as case law had demonstrated that an application of this nature was to be made in the Court of Appeal where jurisdiction lies. Further, there was no merit to the application.
Dissatisfied with that ruling, on 29 October 2021, the appellant filed notice and grounds of appeal challenging the Panel's decision declining jurisdiction. He sought orders that the decision of the Panel be set aside and that its orders be stayed pending the determination of the appeal.
On 1 November 2021, the appellant also filed a notice of application for court orders, seeking an interim stay of execution of the Panel's orders, made on 28 October 2021, and, alternatively, a stay of the sanction hearing, which had been rescheduled for 3 November 2021.
On 3 November 2021, a single judge of this court considered that application, and made an order staying the sanction hearing, pending the hearing of the appeal.
On 15 November 2021, the respondent applied to discharge the order of the single judge.
On 16 December 2021, this court considered both the application to discharge the single judge's order and the substantive appeal. After considering the written submissions and hearing oral arguments of the respective parties, we made the following orders:
“1. Order for a stay of proceedings is discharged.
2. Costs to be costs in the appeal.
3. Appeal is dismissed.
4. Costs to the respondents to be agreed or taxed.”
We promised to provide written reasons for making those orders. This is in fulfilment of that promise. The delay is regretted.
The complaint against the respondent was made pursuant to section 12 of the Legal Profession Act (‘the LPA’). The complaint was as follows:
“1. [The appellant] has not accounted to me for all monies in his hand for my account or credit, although I have reasonably required him to do so;
2. [The appellant] has not given full disclosure nor has he received approval and he has acted in a manner in which his professional duties and his personal interest conflict or are likely to conflict; and
3. [The appellant] is in breach of canon I(b) [of The Legal Profession Act (Canons of Professional Ethics) Rules], which states that ‘an Attorney shall at all times, maintain the honour and dignity of the profession and shall abstain from behaviour which may tend to discredit the profession of which he is a member.’”
Briefly, the allegations were that the complainant's father, Rudolph Morris, had retained the services of the appellant to sell property located at 4 Norbrook Terrace, Kingston 8 in the parish of Saint Andrew (‘the property’). The property was sold for $30,000,000.00. It was transferred to the purchaser on or about 31 December 2016, during the father's lifetime, but he did not receive the proceeds of sale. When the complainant, as executor of his father's estate, made enquiries, the appellant informed him that the proceeds of the sale had not been received.
The complainant's investigation into the transaction revealed that the property had been sold between April and May 2017, the agent was paid his commission, and the sum of $26,369,347.00 was transferred to the appellant's bank account, by the purchaser. The appellant, in turn, transferred $9,320,000.00 to a Keith “Headley” Barton, and $1,000,000.00 to Roy “Torn” McFarlane, from the proceeds of sale, without being authorised/instructed to do so.
Upon learning of these developments, the complainant threatened to report the matter to the police, and, in November 2017, the appellant transferred the sum of $5,000,000.00 to the complainant's account. In August 2020, the complainant received a second payment of $4,760,009.00, from the appellant.
The appellant contended that he made the payment to Mr McFarlane on the oral instructions of the deceased. According to the appellant, Mr Barton, who was a relative of the deceased's late wife, and had been residing at the property prior to the sale, refused to leave the property until suitable arrangements were made for him. So, part of the proceeds of the sale was ultimately used for that purpose.
The appellant further indicated that the proceeds of sale were received in March 2017, that is, shortly before the death of the deceased, on 6 June 2017, following a period of hospitalisation, between April and June 2017.
The appellant contended that the deceased provided no instructions regarding to whom the remaining sums from the proceeds of sale were to be paid. Notwithstanding, a payment of $5,000,000.00 was made to the complainant on the sole basis that he was the son of the deceased. The appellant's contention was that he had no contractual obligation to the complainant, and ought not to have paid over any sums to him without a grant of probate or administration having first been obtained.
The Panel proceeded on the basis of affidavits of the parties, as well as oral evidence. As indicated at para. [1] above, the Panel ruled that the appellant was guilty of professional misconduct.
The appellant then sought orders from the Panel setting aside its decision, to admit fresh evidence, and for a re-hearing of the complaint before a different panel.
The so-called fresh evidence included (i) a copy letter, dated 2 May 2014, purportedly written by the deceased confirming gifts to Keith Barton of $10,000,00.00, a property called ‘the Sahara’ located at 2 Maiden Street in Kingston and a plot of land located in Spanish Town in the parish of Saint Catherine; (ii) an affidavit of Keith Barton, sworn on 30 April 2021; (iii) a further affidavit of Earl Ferguson, sworn on 19 May 2021; (iv) an opinion by a handwriting expert in support of the appellant's contention that the signature on the Last Will and Testament of the deceased was the same as the signatures on a letter, dated 13 December 2016, in which the deceased supposedly authorised the appellant to conduct business on behalf of his deceased's wife estate at the Tax Administration of Jamaica); and (iv) a copy of the deceased's driver's license. The latter three documents were expected to prove that the copy letter, allegedly confirming the gifts to Mr Barton, was written by the deceased.
As indicated at para. [4] above, that application was refused by the Panel on 28 October 2021; its written reasons being: (a) no re-hearing was possible based on the circumstances of the case, as the relevant rules which govern the Committee only permit a re-hearing under certain circumstances which the appellant's application did not fall within; (b) the natural justice principle was upheld during the hearing of the matter as both parties were present, heard and had the opportunity to question each other; and (c) a fresh evidence application is usually made in the Court of Appeal. In support of reason (c) the Panel cited the case of Dwight Reece v General Legal Council (Ex parte Loleta Henry) [2021] JMCA Misc 1.
The application for a stay of the decision of the Panel/the sanction hearing was made before the single judge on grounds that, among other things, the Panel (a) erred when it declined to invoke the well-established and settled rules of natural justice to adduce the fresh evidence; (b) neglected and/or refused to invoke its exceptional jurisdiction and set aside its decision that was patently wrong; and (c) by its said action, had exposed the appellant to sanction and likely ruin.
In support of that application, the appellant filed two affidavits, including an affidavit of urgency.
The application and affidavits were served on the respondent on 2 November 2021, a day after they were filed.
The application was considered on paper, by the single judge, and the ruling made, as indicated at para. [7] above.
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