Gorstew Ltd v The General Legal Council
| Jurisdiction | Jamaica |
| Judge | F Williams JA,P Williams JA,V Harris JA (AG) |
| Judgment Date | 09 June 2023 |
| Neutral Citation | JM 2023 CA 71 |
| Docket Number | MISCELLANEOUS APPEAL NOS COA2019MS00001-3 |
| Court | Court of Appeal (Jamaica) |
[2023] JMCA Misc 3
THE HON Mr Justice F Williams JA
THE HON Miss Justice P Williams JA
THE HON Mrs Justice V Harris JA (AG)
MISCELLANEOUS APPEAL NOS COA2019MS00001-3
IN THE COURT OF APPEAL
Attorney-at-Law — Disciplinary Proceedings — Professional Misconduct — Duty of confidentiality — Legal Professional Privilege — Breach of Canon IV(t) — Application of proviso (ii) in Canon IV(t) — What constitutes an accusation of wrongful conduct — Whether the proviso can be invoked where an accusation of wrongful conduct is made by a third party — Legal Profession Act, sections 11, 12, and 14 — Legal Profession (Canons of Professional Ethics) Rules (Amendment) Rules, 2014 — proviso (ii) (b) of Canon IV (t)
Attorney-at-Law — Disciplinary Proceedings — Professional Misconduct — Conflict of interest — Whether a notice of a preliminary objection on a point of law is required — Whether a complaint can be dismissed on the first appearance before the Disciplinary Committee — Issue Estoppel — Right to a fair hearing by an independent and impartial tribunal — Bias — The Disciplinary Proceedings Rules, rules 4, 5, and 7.
Attorney-at-Law — Disciplinary Proceedings — Whether the death of an attorney-at-law invalidates the complaint against him before the Disciplinary Committee — Jurisdiction of disciplinary proceedings.
Mrs Caroline Hay QC, Richard Small, Andre Moulton, Miss Kimberly McDowell and Ms Tereece Campbell instructed by Patterson Mair Hamilton for the appellant
Michael Hylton QC, Mrs Sandra Minott Phillips QC, Miss Melissa McLeod instructed by Hylton Powell Hylton for the respondent
André Earle and Miss Coleasia Edmondson instructed by Earle & Wilson for the interested party Mr Garth McBean QC (COA2019MS00001)
Abraham Dabdoub instructed by Dabdoub & Dabdoub for the interested party Mr Raymond Clough (COA2019MS00002)
Dr Lloyd Barnett and Miss Gillian Burgess instructed by Miss Gillian Burgess for the interested party Mr Roald Henriques QC (COA2019MS00003)
I have had the opportunity of reading the draft judgment of my learned sister V Harris JA (Ag). I agree with her reasoning and conclusion and have nothing to add. We take this opportunity to sincerely apologise to the parties for the delay in the delivery of this judgment.
I, too, have read in draft the judgment of my sister V Harris JA (Ag). I agree with her reasoning and conclusion and have nothing useful to add.
The appellant, Gorstew Limited (‘Gorstew’), has placed before this court three appeals from the decisions of two different panels of the Disciplinary Committee of the General Legal Council (‘the GLC’ or ‘the Committee’ where appropriate), which have been consolidated. The GLC is a statutory body established pursuant to section 3 of the Legal Profession Act (‘the LPA’). The GLC's primary responsibilities are the organisation of legal education and upholding standards of professional conduct for attorneys-at-law (‘attorneys’) in Jamaica. The GLC is empowered by section 11 of the LPA to appoint a Disciplinary Committee comprised of persons specified in that section to hear and determine allegations of misconduct committed by attorneys. Gorstew is a limited liability company incorporated locally.
Gorstew instituted disciplinary proceedings against the interested parties, Mr Garth McBean QC (now King's Counsel), Mr Raymond Clough and Mr Roald Henriques QC (together ‘the Attorneys’) for, among other things, a breach of the Legal Profession (Canons of Professional Ethics) (Amendment) Rules, 2014 (‘the Canons’) by which all attorneys practising in Jamaica are bound. In the course of hearing those complaints on divers dates, the Committee first dismissed the complaint against Mr McBean then later dismissed the complaints against Messrs Henriques and Clough.
Aggrieved by the Committee's decisions, Gorstew filed its notices and grounds of appeal with this court, which we heard over several days. Learned counsel, Dr Barnett, raised a preliminary objection concerning the validity of these appeals. He contended, and counsel for the GLC and Mr Clough agreed, that the appeals are defective since they sought orders against the interested parties but failed to include them as respondents. Having considered their respective positions, we ruled that since the appeals concern the procedures and decisions of the GLC, we would nonetheless proceed with hearing the submissions in the substantive appeals from counsel for the parties and the interested parties.
Upon concluding their submissions, we reserved our decision, which is now set out below. At this point, we take the opportunity to express our profound gratitude to counsel for the parties for their industry and helpful submissions.
The history of the litigation in this matter has its genesis in the criminal case of R v Patrick Lynch, Jeffrey Pyne and Catherine Barber (‘the defendants’), which was heard in the Corporate Area Resident Magistrate's Court (now the Kingston and Saint Andrew Parish Court, Criminal Division). Gorstew, as one of the complainants, obtained a fiat from the Director of Public Prosecutions (‘DPP’) for Mr McBean, Mr Henriques and later, Mr Hugh Wildman, who were supported by counsel, Mr Clough and Mr Miguel Williams (‘the prosecution team’), to prosecute the defendants on an indictment containing 16 counts for conspiracy to defraud as well as breaches of the Forgery Act and Larceny Act.
The defendants were arraigned and tried on divers dates between April 2013 to June 2014 by Her Honour Mrs Lorna Shelly-Williams (as she then was) (‘the learned judge of the Parish Court’). On 3 June 2014, the learned judge of the Parish Court upheld submissions of no case to answer made on the defendants’ behalf at the end of the prosecution's case. As a result, the defendants were acquitted of all charges and discharged.
Following the conclusion of the criminal case, Mr Dmitri Singh, the general counsel for Gorstew, endeavoured to challenge the ruling of the learned judge of the Parish Court. On 22 August 2014, a meeting was held at Gorstew's headquarters with Mr Singh, Mr Henriques and Mr Wildman in attendance. Six days later, on 28 August 2014, an application for leave to seek judicial review along with an affidavit in support deposed by Mr Singh were filed in the Supreme Court (‘the judicial review application’). On a date in September 2014, another meeting was held at Gorstew's headquarters. In attendance were Mr Gordon “Butch” Stewart, Mr Singh, Mr Henriques, Mr McBean, Mr Wildman, and Mr Douglas Leys QC. It is undisputed that at that meeting, Messrs Henriques and McBean expressed reservations about the judicial review application. It was agreed that the legal team pursuing the judicial review application would consist of Mr Leys and Mr Wildman.
On 10 December 2014, Lawrence-Beswick J (‘the learned judge’) refused the judicial review application, and on 21 April 2015, she delivered her written judgment. She found that, among other things, the proposed judicial review would be an exercise in futility since it would allow the prosecution to appeal an acquittal, which was not permissible under our law then. At this juncture, it is useful to note that the refusal of the judicial review application subsequently spawned a collection of decisions from the Full Court, Court of Appeal, and the Privy Council.
On 29 April 2015, an article was published in the Jamaica Gleaner newspaper (‘the Gleaner’) with the headline “Court reaffirms constitutional bar against not-guilty appeals - Says Gorstew made back-door attempt” (‘the Gleaner article’). The learned judge's decision was summarised in the Gleaner article, emphasising her criticisms of the improper joinder of the defendants in the judicial review application, the non-participation of the DPP, and the constitutional bar on the prosecution's ability to appeal criminal acquittals.
In response to the Gleaner article, the Attorneys wrote a letter to the Gleaner, which was published on 2 June 2015 (‘the letter’), which is set out in full below:
“ We didn't back Gorstew appeal
Published: Tuesday | June 2, 2015
THE EDITOR, Sir:
We refer to an article in The Gleaner of Wednesday, April 29, 2015 captioned ‘Court reaffirms constitutional bar against not-guilty appeals’ and subcaptioned ‘Says Gorstew made a back-door attempt’.
The first paragraph of the article conveys to the readers that the prosecutors in the case of R vs Patrick Lynch, Jeffrey Pyne, and Catherine Barber had brought this judicial review action, the subject matter of the article.
As members of the prosecution team, we wish to clarify the matter by stating that we did not approve of or participate in the judicial [review] action.
R.N.A. HENRIQUES
GARTH McBEAN
RAYMOND CLOUGH” (Emphasis as in the original)
The letter was the catalyst for the complaints before the GLC. The Attorneys were promptly notified of Gorstew's displeasure at the publication of the letter, and they communicated briefly through a series of letters. On 30 June 2015, Gorstew submitted a letter of complaint to the GLC regarding the Attorneys. In that letter, Mr Singh declared that the Attorneys published the letter in the Gleaner (including the online edition) without their consent and breached their duty of confidence to Gorstew in the following terms:
“We are of the opinion that the attorneys breached their duty of confidence to [Gorstew] by the publication of the letter to the Editor and, in particular, by stating to the public that they “did not approve of” the “judicial action” a position which they could only have taken in the course of advising [Gorstew]. We have not at any time prior to this,...
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