Harold Brady v General Legal Council

• Jurisdiction: Jamaica
• Judge: McDonald-Bishop JA,P Williams JA,Fraser JA
• Judgment Date: 05 November 2021
• Neutral Citation: JM 2021 CA 119
• Docket Number: MISCELLANEOUS APPEAL NO 1/2017
• Court: Court of Appeal (Jamaica)

[2021] JMCA App 27

IN THE COURT OF APPEAL

BEFORE:

The Hon Mrs Justice McDonald-Bishop JA

The Hon Miss Justice P Williams JA

The Hon Mr Justice Fraser JA

MISCELLANEOUS APPEAL NO 1/2017

APPLICATION NOS 27, 219/2018 & COA2019APP00063

Between

Harold Brady

Applicant

and

General Legal Council

Respondent

Paul Beswick, Miss Terri-Ann Guyah and Miss Toni-Ann Smith instructed by Ballantyne, Beswick & Company for the applicant

Mrs Denise Kitson QC and Miss Anna-Kay Brown instructed by Grant, Stewart, Phillips & Co for the respondent

Miss Maliaca Wong and Miss Amanda Montague instructed by Myers, Fletcher & Gordon for the Factories Corporation of Jamaica Ltd

McDonald-Bishop JA

Introduction

1 These proceedings may best be described as an amalgam of several interrelated applications connected to an appeal filed in this court by Mr Harold Brady (‘Mr Brady’), from decisions of a panel of the Disciplinary Committee of the General Legal Council (‘the Committee’), made on 25 February 2017 (‘the liability decision’) and 4 March 2017 (‘the sanctions decision). There are, in the main, four distinct applications that have been brought for the consideration of the court, namely: (i) a renewed application for stay of execution of the decisions of the Committee; (ii) an application to strike out specified paragraphs of an affidavit filed by the chairman of the Committee, Mrs Daniella Gentles — Silvera; (iii) an application to adduce fresh evidence; and (iv) an application to add a ground of appeal. All these applications were heavily disputed and have been determined in this judgment. I am mindful that no excuse or measure of apology can remedy the inconvenience and anxiety that would have been caused by the delay in the delivery of the judgment. Still, I must, on behalf of the court, extend our sincerest apologies for the delay.

The background

2 The background to the applications under consideration may briefly be stated as follows: In 2015, a complaint was made to the General Legal Council (‘GLC’) against Mr Brady in respect of various alleged breaches of the Legal Profession (Canons of Professional Ethics) Rules (‘the Canons’). The complainant was Mr Brady's former client, the Factories Corporation of Jamaica Limited (‘FCJ’), the interested party in these proceedings. The FCJ alleged that those breaches stemmed from Mr Brady's failure to account to it for monies he had received on its behalf, concerning the sale of property located on Marcus Garvey Drive in the parish of Saint Andrew, to one, Mr Neville Gallimore (‘the Gallimore transaction’). The total purchase price for that property, which was paid in full to Mr Brady, was $140,000,000.00. However, despite numerous requests by the FCJ, Mr Brady had only accounted for $70,000,000.00.

3 The FCJ's complaint to the GLC was subsequently amended in 2016 to include allegations that Mr Brady had engaged in efforts to mislead the FCJ regarding the outstanding amount; failed to deliver up the file relating to the Gallimore transaction with due expedition; and failed to register the agreement for sale pertaining to the same transaction within 30 days, which caused the FCJ to incur interest and penalties. As a result, at the date of the hearing before the GLC, the total sum allegedly owed to the FCJ was $111,380,364.62.

4 A panel of the Committee, comprising Mrs Gentles-Silvera (chairman) and Messrs Trevor Ho-Lyn and John Graham, heard the complaint on 30 September 2016 and 17 January 2017. On 25 February 2017, the Committee ruled that Mr Brady was guilty of professional misconduct. Accordingly, on 4 March 2017, it ordered that he be struck from the Roll of Attorneys-at-Law entitled to practise in Jamaica. It also ordered that he make restitution of $111,380,364.62 to the FCJ with interest on the sum of $102,302,061.56, at a rate of 4 ¹/₂% per annum from 1 October 2016 until payment. The Committee further awarded costs to the FCJ of $50,000.00 and the GLC of $30,000.00.

The applications

5 To strengthen the prospects of success of his appeal and secure a stay of execution of the Committee's decisions pending appeal, Mr Brady filed several notices of applications for the court's consideration. Accordingly, for a clearer understanding of the many and varied issues that the court has examined in these proceedings, it is necessary to offer an insight into the substance of Mr Brady's applications and identify the areas of dispute between the parties from the very outset.

6 The first application filed by Mr Brady was a notice of application for stay of execution of the order of the Committee, filed on 27 April 2017 (Application No 78/2017). That application was eventually considered and refused by Straw JA (Ag) (as she then was) in judgment cited as [2017] JMCA App 25. However, in support of that application, Mr Brady had filed affidavits sworn to by himself, Mr James Chong (‘Mr Chong’) and Mr Joseph Giaimo (‘Mr Giaimo’), in which he sought to advance evidence that was not before the Committee, alleging bias against Mrs Gentles-Silvera. The grounds on which the application for stay of execution was based involved assertions that were allegedly made by Mrs Gentles-Silvera, in her capacity as counsel for Mr Chong in an unrelated matter, and allegations concerning her treatment of Mr Brady's application for adjournment during the hearing. The affidavits were also presented to support Mr Brady's grounds of appeal in which he alleges bias against Mrs Gentles-Silvera.

7 On 11 October 2017, the appeal was listed before the court for hearing. By way of a preliminary objection with supporting written submissions, the GLC strongly objected to the intended use of new evidence in the appeal without an application for leave from the court for the evidence to be adduced. The court (McDonald-Bishop and P Williams JJA and Straw JA (Ag)) upheld the preliminary objection of the GLC, above the vociferous objection of counsel for Mr Brady, Mr Paul Beswick. However, on 11 October 2017, the court ordered, among other things, that in light of the affidavits in response filed by the GLC, which gave rise to a serious dispute as to fact, Mr Brady was to file and serve a notice of application for court orders to permit fresh evidence to be adduced if he wished for the evidence to be considered in the appeal.

8 Consequently, an application to adduce fresh evidence was filed on 2 February 2018 (Application No 27/2018). In that notice of application, Mr Brady sought to adduce the evidence in several affidavits from himself and Messrs Chong and Giaimo. That notice of application was eventually replaced by an amended notice of application filed on 4 March 2019. By that amended notice of application, Mr Brady extended his application to adduce fresh evidence as contained in an audit report named “Forensic Review of Transactions between Brady & Co. and Factories Corporation of Jamaica Limited” prepared by the firm of Accountants and Auditors, Crowe Horwath, and dated 25 August 2017 (‘the Crowe Horwath Report’ or ‘the audit report’).

9 Mr Brady sought these orders on the amended application, among others:

• “1. The time for service of this application be abridged to the time of actual service thereof;

• 2. That leave be granted to the Applicant to adduce as fresh evidence on appeal, contained in the: -

  • a. Affidavit of Joseph Giaimo filed on the 12 ^th day of April, 2017;

  • b. Affidavits of James Chong filed on the 12 ^th April, 2017 and 5 ^th October, 2017;

  • c. Affidavits of Harold Brady filed on the 27 ^th April. 2017, [9 ^th] May 2017, 4 ^th March. 2019 and 24 May, 2019; and in the

  • d. Affidavit of Everton Hanson filed on the 18 ^th February. 2019 and 4 ^th April. 2019.

• 3. That the Amended Notice of Application for Court Orders filed on the 4 ^th March. 2019 be allowed to stand as properly filed;

• 4. That the Appellant's Further Submissions with Authorities filed by the Appellant on the 4 ^th March. 2019 be allowed to stand as properly filed;

• 5. That the Appellant be granted leave to argue another ground of appeal ‘That the findings of the Disciplinary Committee of the General Legal Council were palpably wrong and the subsequent orders were not in keeping with the evidence as contained in the ‘Forensic Review of Transactions between Brady & Co. and Factories Corporation of Jamaica Limited prepared by the firm of Accountants and Auditors. Crowe Horwath and dated August 25, 2017 which the Appellant was prevented and/or stymied from presenting to the Committee which indicates beyond a shadow of a doubt that the Appellant owed no monies to the Factories Corporation of Jamaica Limited and to the contrary the said Complainant is indebted to the Appellant’;…” (Underlined and italicised as in original)

10 Without objection from the GLC. the court granted the orders to abridge the time for service of the application to the date of actual service and allow the amended notice of application for court orders and the further written submissions and authorities to stand as being properly filed. The application for orders granting permission to adduce fresh evidence in the affidavits and the Crowe Horwath Report and to add a new ground of appeal were vehemently opposed by the GLC and the FCJ.

11 In response, the GLC adduced evidence from the Committee members, Mrs Gentles-Silvera and Messrs Ho-Lyn and Graham, and the FCJ's chief strategic officer, Mr Desmond Sicard. The FCJ also relied on the evidence of Mr Sicard in response to Messrs Brady and Everton Hanson's affidavits regarding the contents of the Crowe Horwath Report.

12 However, before the hearing of the application to adduce fresh evidence commenced, Mr Brady urged this court to consider two additional applications. The first application was filed on 3 October 2018, for the court to strike out various paragraphs of Mrs Gentles-Silvera's affidavit filed on 2 May 2017 (Application No 219/2018). The second was...