Lisamae Gordon v Disciplinary Committee of the General Legal Council
| Jurisdiction | Jamaica |
| Judge | Edwards JA |
| Judgment Date | 28 March 2022 |
| Neutral Citation | JM 2022 CA 78 |
| Docket Number | APPLICATION NO COA2022APP00015 |
| Court | Court of Appeal (Jamaica) |
| Year | 2022 |
[2022] JMCA App 11
THE HON Ms Justice Edwards JA
THE HON Mr Justice D Fraser JA
THE HON Mrs Justice G Fraser JA (AG)
APPLICATION NO COA2022APP00015
IN THE COURT OF APPEAL
Hugh Wildman instructed by Hugh Wildman & Co for the applicant
Patrick Foster QC and Jacob Phillips instructed by Mayhew Law for the respondent
By way of a notice of application for leave to appeal, filed 25 January 2022, the applicant, Ms Lisamae Gordon, an attorney-at-law, sought permission to appeal the decision of Nembhard J (‘the learned judge’) made in the Supreme Court on 14 January 2022. On that date, in a written reasoned judgment, the learned judge refused the applicant's application for leave to apply for judicial review, as well as her request for permission to appeal. The applicant had also sought a stay of the disciplinary proceedings instituted against her before the Disciplinary Committee of the General Legal Council (‘the Committee’), pending the outcome of the appeal, if leave were to be granted.
On 9 March 2022, this court heard the application for permission to appeal and refused it, with costs to the Committee against the applicant Lisamae Gordon. These are our brief reasons in writing for doing so.
The applicant was brought before the Committee to answer charges in a disciplinary complaint filed by the complainants, Mrs Charmaine Barnett and Mr Baron Barnett, in respect of a property that was being sold by the applicant's former client, in which she had carriage of sale. The sale fell through, and the complainants could not recover monies paid in respect of the property.
The facts of the case, in brief, are that the applicant was engaged by Mr Howard Jobson, who was the representative and son of the vendor, Ms Kathleen Robinson, to sell property situate at Orange Grove Estate in the parish of Trelawny, to the complainants. The complainants retained no attorney of their own to conduct the transaction. A sale agreement that the applicant had prepared was executed by the parties on 20 November 2014. It is common ground that the complainants, during the course of the transaction, paid US$10,000.00 directly to the applicant as a deposit on the sale.
Subsequently, two further agreements were drafted due to discrepancies with the description of the property, purchase price, the deposit to be paid and the true vendors of the property. Though the second agreement was not signed, the third one had the appearance of being signed by the parties to the sale, although the complainants denied that they had signed it. The complainants paid over additional monies pursuant to the sale, and in all, a total amount of US$35,000.00 was paid.
At some point, it was discovered, by another attorney retained by the complainants, that the title to the property, which was the subject of the agreement, was endorsed with a caveat and that a valid title could not be obtained. The title was, therefore, defective, and the vendors could not have passed a good title. When contacted, the agent of the vendor denied that there were issues with the title but, shortly thereafter, absconded with the monies paid by the complainants. The transaction fell through, and, according to the complainants, they could not locate Mr Jobson, the vendor, or the applicant. After several attempts by the complainants to get a response from the applicant regarding the status of the sale and the whereabouts of Mr Jobson and the vendor, the applicant finally indicated she no longer represented the vendors.
The result was that, at the time of the complaint, the complainants had paid over approximately US$35,000.00, in pursuit of the sale, with nothing to show for it.
The complainants filed a complaint with the General Legal Council on 14 August 2018, alleging breaches of canons I(b) and IV (s). These canons provide, respectively, 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” and that, “in the performance of his duties, an attorney shall not act with inexcusable or deplorable negligence or neglect”.
A significant feature of the case was that the complainants had alleged that the applicant had also acted on their behalf in the sale by way of an oral agreement, and had undertaken to do a title search to ensure that there were no prohibitions to the passing of the title. This assertion was made despite their admission that there was no retainer agreement or retainer money paid by them to the applicant. The applicant denied acting on behalf of the complainants in the sale and deposed, in her response to the complaint, that she was never retained by the complainants, and that after the sale agreement had been redrafted by her to account for adjustments discussed by the parties, the transaction continued without reference to her. In her defence, she denied owing any legal responsibility to the complainants to refund the money paid, as, except for the US$10,000.00, the funds were paid directly to the vendor by the complainants. The US$10,000.00, she said, was paid by her to the vendor at the request of the complainants.
The substantive matter was heard in a contested hearing by the Committee between 11 January 2020 and 22 February 2020 and, on 2 October 2021, it ruled that the applicant was in breach of canons I(b) and canon IV(s). The Committee found that the applicant was guilty of professional misconduct, and a date was set for the hearing as to the appropriate sanction to be imposed. On the date set for that hearing, counsel for the applicant Mr Wildman, who had not been the attorney on the record for the applicant in the hearing of the substantive matter, objected to the proceedings and indicated his intention to seek judicial review in the Supreme Court, on the basis that the Committee had lacked jurisdiction to hear the substantive complaint.
Subsequently, an application for leave to apply for judicial review was filed by the applicant on 16 December 2021 primarily on grounds that, since the applicant was not the attorney for the complainants as alleged in the complaint, they had no standing and, therefore, the Committee lacked the jurisdiction to hear the complaint.
On 11 January 2022, the application was heard by Nembhard J, who refused it on the basis that there was no arguable ground, with a realistic prospect of success, the complainants being “aggrieved persons” under section 12 of the Legal Profession Act ( LPA). She also found that, the Committee, having not acted ultra vires the LPA, the applicant had a suitable alternative remedy in an appeal of its decision to the Court of Appeal.
The applicant filed this application before this court, seeking leave to appeal the decision of Nembhard J and a stay of the disciplinary proceedings (‘the sanction hearing’), on grounds that the learned judge erred, in not granting leave for judicial review, by failing to appreciate that:
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i. the respondent's jurisdiction was based on the complaint filed by the complainants, and that said complaint was based on the allegation that the applicant was their attorney-at-law and not as an “aggrieved person as contemplated by section 12(1) of the LPA”;
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ii. the applicant is only required to respond to allegations contained in the affidavit evidence filed by the complainants;
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iii. once the respondent had found that the applicant was not the attorney for the complainants, it had no further jurisdiction to continue the hearing;
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iv. only persons who have standing can make a complaint pursuant to section 12 of the LPA; and
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v. in the absence of sworn evidence supporting the complaint, the complaint would have failed to comply with section 4(1)(a)(b) of the LPA and, therefore, the proceedings against the applicant are null and void and of no effect.
Before indicating the reasons for not agreeing with Mr Wildman that the learned judge fell into error, it may be prudent to set out, just briefly, what the Committee found.
The Committee found that there was a prima facie case made out on the complaint for a hearing to be held. Having heard evidence, it found that, although the applicant was not retained by the complainants to act for them in the sale, as the attorney with carriage of sale, she nonetheless had certain responsibilities to the purchasers which she failed to carry out. Those responsibilities, the Committee found, encompassed the duty to ensure that the title could be passed and that it did not have any encumbrances on it that would interfere with the sale, as well as a duty to protect the money involved in the transaction.
The Committee was of the view that, where money is to be paid over to the vendor, the attorney with carriage of sale must have the consent of the purchasers to do so, and must ensure that that money can be refunded to the purchasers if the transaction falls through. The applicant, it found, was not relieved of these duties by the mere fact that she was not retained to act for the purchasers. The Committee also found that the applicant's evidence that the title she had been shown by the agent for the vendor did not have the caveat endorsed on it, demonstrated that she had failed to do a proper title search before preparing any of the sales agreements.
The Committee noted that neither subdivision approval nor the requirement for one to be done was reflected in the agreements, even though the subject property being sold was a small portion of a larger portion of land. It also noted the fact that the clause that required both parties to pay transfer tax did not accord with the...
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