Janice Causwell v General Legal Council (ex parte Elizabeth Hartley)

• Jurisdiction: Jamaica
• Judge: Phillips JA,Sinclair-Haynes JA,P Williams JA
• Judgment Date: 15 July 2016
• Neutral Citation: JM 2016 CA 74
• Docket Number: CIVIL APPEAL NO 41/2011
• Court: Court of Appeal (Jamaica)
• Date: 15 July 2016

[2016] JMCA Civ 42

JAMAICA

IN THE COURT OF APPEAL

Before:

The Hon Miss Justice Phillips JA

The Hon Mrs Justice Sinclair-Haynes JA

The Hon Miss Justice P Williams JA (AG)

CIVIL APPEAL NO 41/2011

Between

Janice Causwell

Appellant

and

The General Legal Council (ex parte Elizabeth Hartley)

Respondent

W John Vassell QC and Courtney Bailey instructed by DunnCox for the appellant

B St Michael Hylton QC and Miss Anna Gracie instructed by Rattray Patterson Rattray for the respondent

Phillips JA

1 This is an appeal from the decision of the Disciplinary Committee (the Committee) of the General Legal Council (GLC), delivered on 3 February 2011, refusing a preliminary point taken on behalf of the appellant, at the hearing of complaint no 90 of 2002. The preliminary point was that Mrs Elizabeth Hartley (the complainant), by whom the complaint was laid, was not authorised to lay the complaint against the appellant. The details of the decision appealed are that: (i) Mr Lester deCordova, client of the appellant and DunnCox, could subsequently ratify the conduct of Mrs Hartley in filing and pursuing this complaint without first getting his authority and (ii) the hearing should continue.

Background facts

2 The appellant is and was at all material times a partner in DunnCox, a firm of attorneys-at-law. The complaint in this matter was instituted on 21 March 2002, under the Legal Profession Act ( LPA), by Mrs Hartley against the appellant, requesting her to answer the allegations contained in the affidavit which accompanied the application. The application had been made on the ground that the facts stated in the said affidavit constituted conduct unbecoming the profession on the part of the appellant and the firm DunnCox in their capacity as attorneys-at-law. The application was signed by Mrs Hartley, Chartered Accountant, of Elmwood Terrace, Kingston 19.

3 In the accompanying affidavit, Mrs Hartley stated that she was acting as agent for Mr Lester deCordova, and she deponed to the facts stated therein which grounded the complaint. She indicated that on 27 June 1973, Mr Altamont deCordova died leaving a will. In the will, he had named two executors, Lyndon Bethune and Oswald Lawrence. The attesting witnesses were D Grey and James A Gibbs. Mr Lancelot Cowan, a partner of Grant, Cowan & Chin See, were the attorneys who had been instructed to obtain the grant of probate in the estate. In 1978, the partnership of Grant, Cowan & Chin See merged with DunnCox. Mr Cowan continued to handle the matter until 1985 when it was passed to the litigation department of DunnCox.

4 The will named two beneficiaries, Mr Lester deCordova, the son of Mr Altamont deCordova, and Beverley de Cordova, the daughter of Mr Altamont deCordova and Mr Lester deCordova's half sister. Mrs Hartley complained that to date the will had not been probated and there had been no explanation as to why the will had not been probated by 1986. She stated that in 1986, the appellant had claimed that she had been informed that both executors had died and that she had not been made aware until 1992, that Mr Oswald Lawrence was still alive and prepared to participate in order to expedite the process.

5 Mrs Hartley stated further that in 1993, Mr deCordova visited Jamaica. He appointed certain persons with power of attorney, one of whom was Mrs Karleen Hinds. Mrs Hartley stated that in 1999, Mr deCordova asked her to assist with the matter, particularly as both he and Mr Lawrence were elderly gentlemen.

6 Mrs Hartley complained that when she contacted the appellant, she was informed that she had been unable to locate and communicate with certain persons; that files had been missing at the Supreme Court; and that letters of administration had been drawn up but not filed. She was informed, however, about the actions that were necessary for the grant of probate to be obtained. She indicated that she had discovered that one of the attesting witnesses had died in 1996, and throughout the intervening period had been residing at the address stated in the will.

7 She stated that she had obtained as much information as she could; facilitated the signing of necessary documentation; sent the same to the offices of DunnCox; and the application with the necessary documentation had been filed in the Supreme Court in February 2000, and yet in May 2000, she had reviewed a request from the registrar of the Supreme Court for further information which had not yet been provided. As a consequence, she wrote to DunnCox in May 2000, and they replied to Mr deCordova, appearing to express chagrin at her claim relating to their tardiness, implying, she stated, that she was being unreasonable in making such an allegation. It was her contention that the letter was merely providing excuses for the failure to obtain grant of probate, the fees having already been paid in advance for the same. She stated that she responded to that letter in June 2000, and had received no further communication from the attorneys since then.

8 She therefore filed the complaint claiming that: (i) the attorneys-at-law had not provided her with information as to the progress of her business with due expedition, although she had reasonably required them to do so; (ii) they had not dealt with her business with all due expedition; and (iii) they had acted with inexcusable or deplorable negligence in the performance of their duties.

9 The position of the appellant can be gleaned from a letter dated 23 April 2001, written to the Committee in response to the initial letter of complaint sent to the Committee before the official complaint was filed. She confirmed that the matter had been passed to the litigation department of DunnCox in 1985, by Mr Cowan (his firm having merged with DunnCox in 1978) for an application to be made to the Supreme Court, for leave of the court to have a copy of Mr Altamont deCordova's will admitted to probate, as the court's file containing the original will could not be located. The file was subsequently found, the application withdrawn, and the matter was passed to the appellant in 1986.

10 The appellant indicated that she had encountered several difficulties in the conduct of the matter, including but not limited to: (i) having been inaccurately informed that both executors had died; (ii) endeavouring without success to obtain consent from the other named beneficiary for the application for a grant to be made in the new names as instructed; not being able to locate one of the donees of the power of attorney; preparing new documentation for another donee of the power of the attorney, which had to be sent to Mr deCordova in England, and then recorded at the Island Records Office; (iii) preparing further documentation for the grant of letters of administration in the names of the new donees; (iv) being unable to prove when requested the deaths of the executors, particularly when one was later found to be alive; (vi) further preparation of documentation for the application for a grant of probate in the name of the surviving executor, in lieu of the application for letters of administration; locating persons to verify the signatures of the attesting witnesses who had died, and preparing documentation to that effect; and (vii) finally filing the application for the grant of probate in January 2000, but being unable to provide answers to the requisitions from the registrar of the Supreme Court relating to the death of the other executor, Mr Bethune, due to lack of instructions.

11 Subsequent to the filing of the complaint on 21 March 2002, as indicated, the appellant wrote to Mr deCordova on 5 May 2003, acknowledging receipt of information relating to the death of the sole surviving executor and advising him as to what was required in order to proceed in the matter in the light of that new development. She also referred to earlier correspondence to him, dated 19 May 2000, in which she had stated that the firm no longer wished to act for him in circumstances in which they no longer enjoyed his (the client's) confidence. She indicated that:

‘Since our said letter Miss Elizabeth Hartley, presumably acting on your instructions, has filed a complaint against the signer with the General Legal Council and therefore, given the present circumstances, we feel that we are unable to continue to represent you in this matter.

Please let us know to whom we should make delivery of all documents relating to this matter which are in our possession.’

12 On 5 March 2004, Mr deCordova wrote a very strident letter to the appellant firstly indicating that he had informed her some time previously that the complainant Mrs Hartley was acting on his behalf and had his full confidence. He queried why she had written to him instead of to her. He directed that she should pass on the advice that she had given to him in her letter (almost a year ago) to Mrs Hartley and their attorney, who was acting for him on the complaint to the GLC and that they would inform her ‘what is to done [sic]’. He indicated that he was not prepared to undertake any further expense in relation to work that should have been done by the appellant years ago. He ended the letter by urging the appellant to write to Mrs Hartley and attorney-at-law, Miss Aisha Mulendwe, as soon as possible and not to write to him again.

13 Mr deCordova wrote to the appellant again on 29 November 2004, reprimanded her for communicating directly with him and for not having completed the work requested of her, namely to obtain the grant of probate, and indicated that it was due to the industry of his agent Mrs Hartley that most of the issues which the appellant claimed had been causing delay had been resolved. He remonstrated with her about her persistence in communicating directly with him and ignoring his appointed agent which he described as her ‘annoying...