Owen Clunie v General Legal Council

• Jurisdiction: Jamaica
• Judge: Panton P,Dukharan JA,Phillips JA
• Judgment Date: 22 September 2014
• Neutral Citation: JM 2014 CA 91
• Docket Number: MISCELLANEOUS APPEAL NO 3/2013
• Court: Court of Appeal (Jamaica)
• Date: 22 September 2014

[2014] JMCA Civ 31

JAMAICA

IN THE COURT OF APPEAL

Before:

The Hon Mr Justice Panton P

The Hon Mr Justice Dukharan JA

The Hon Miss Justice Phillips JA

MISCELLANEOUS APPEAL NO 3/2013

Between

Owen K Clunie

Appellant

and

The General Legal Council

Respondent

André Earle , Ms Kristin Lewis and Mrs Nickeisha Young Shand instructed by Earle and Wilson for the appellant

Mrs Sandra Minott-Phillips QC and Miss René Gayle instructed by Myers Fletcher and Gordon for the respondent

LEGAL PROFESSION - Disciplinary proceedings - Appellant struck from roll of attorneys - Appeal to Court of Appeal - Whether sanction imposed by the General Legal Council too harsh - Whether the Disciplinary Committee erred in not hearing from the appellant in mitigation - Matter to be remitted to the Disciplinary Committee

Panton P

1 On 31 July 2014, we ordered as follows:

• ‘1. Appeal allowed in part.

• 2. The decision of the respondent made on 28 September 2013 is quashed in respect of the orders in paragraph 9 thereof.

• 3. The matter is remitted to the panel to hear submissions in mitigation and to determine the sanction thereafter.

• 4. The appellant is to have half his costs to be agreed or taxed.’

The court promised that written reasons would be provided shortly.

2 The appellant is an attorney-at-law who, in the opinion of the Disciplinary Committee of the General Legal Council, breached canons 1(b) and V11 (b) of the Legal Profession (Canons of Professional Ethics) Rules. As a result, the committee struck him off the roll of attorneys-at-law and ordered him to pay by way of restitution the sum of $700,000.00 with interest @ 6% per annum from 31 July 2012, and costs of $20,000.00 to the complainant.

3 My learned sister, Phillips JA, has set out in her judgment all the facts of the case, the grounds of appeal and the submissions that were made by Mr André Earle for the appellant and Mrs Sandra Minott-Phillips, QC, for the respondent. In the circumstances, I do not see the need to repeat them, except so far as necessary for an understanding of my reasons for agreeing that the appeal should be allowed in the terms stated in paragraph [1].

4 A complaint was filed on 31 October 2012, by one Fabian Allen alleging that he had paid the sum of $600,000.00 to the appellant in respect of a real estate transaction, and that the appellant had failed to pay over the sum to the vendor or to refund same to the complainant. The appellant promised on two occasions to repay the money but had failed to do so. The appellant was summoned to attend before the disciplinary committee on 21 September 2013 to answer to the allegations. It seems clear that the appellant did not receive the complaint that was filed against him although it had been sent by registered post. Consequently, he was not aware of the hearing date. The evidence indicates that the complaint and notification of hearing were returned unclaimed to the post office from which they had been dispatched.

5 On 21 September 2013, the disciplinary committee, being satisfied that the documents had been dispatched to the appellant in the manner required by the rules, proceeded to hear the complaint in his absence. The record of the proceedings indicates that at the end of the hearing the matter was ‘part heard and adjourned to 28 ^th September 2013 at 11:00 a.m.’ The appellant was subsequently e-mailed the adjourned hearing date along with the notes of evidence and exhibits. He and his attorney-at-law, Mr Lynden Wellesley, duly attended on 28 September 2013. On that occasion, Mr Wellesley informed the disciplinary committee that there was ‘no dispute as to the facts’, and sought an adjournment for four weeks ‘to make good’. The record of the proceedings indicates that Mr Wellesley and the panel were of the same understanding as regards the sum of money that was involved.

6 The committee refused the application for an adjournment and proceeded to impose the sanction mentioned in paragraph [2], without having heard from the appellant.

7 In my view, given the posture adopted by Mr Wellesley in the presence of the appellant on 28 September 2013, the question of the service of the complaint and notification of the first hearing date becomes irrelevant. Their attendance on 28 September 2013 and the request for time to pay are clear indications of a waiver of service, and an admission of having failed to account to the complainant for money held on his behalf by the appellant. To say that ‘there is no dispute as to the facts’ is as complete an admission as there can possibly be. In the circumstances, it is my view that the grounds of appeal in respect of service, and proof of the complaint are without merit.

8 As regards the imposition of the sanction, it seems clear that the committee erred in not hearing from the appellant in mitigation. The sanction for the breaches committed is not mandatory. Consequently, the appellant ought to have been afforded the opportunity to address the committee as regards penalty. The reasoning in Dominique Moss v The Queen [2013] UKPC 32 is apt. In delivering the judgment of the Board, Lord Hughes said:

‘It is elementary that, at least where the sentence is not fixed by law, a criminal court has a duty to give a defendant the opportunity to be heard, through counsel or otherwise, before sentence upon him is passed.’

I do not think that it would be appropriate for this court to perform the committee's duty in this regard; hence, the matter has to be remitted to the committee for the appellant to be heard on the sanction to be imposed, and for the committee to act thereafter. I agreed therefore that to this extent, the appeal ought to be allowed.

Dukharan JA

9 I have read in draft the reasons for judgment of the learned President and my learned sister Phillips JA. I agree with their reasoning and have nothing further to add.

Phillips JA

10 This is an appeal from the decision of the disciplinary committee of the General Legal Council (“the Committee”) given on 2 October 2013, whereby it ordered that:

• ‘1. Pursuant to s 12(4) (a) of the Legal Profession Act, the name of Owen Kirkwood Clunie is struck off the Roll of Attorneys-at-Law entitled to practice in the Island of Jamaica.

• 2. Pursuant to s 12(4) (f) of the Legal Profession Act by way of restitution, Owen Kirkwood Clunie is to pay to the Complainant the sum of $700,000.00 with interest thereon at the rate of 6% per annum from the 31 ^st July 2012.

• 3. Costs in the sum of $20,000.00 are to be paid to the Complainant by Owen Kirkwood Clunie.’

11 The matter was heard 5, 6 June 2013, and our decision was given on 31 July 2014, wherein we ordered as follows:

• ‘1. Appeal allowed in part.

• 2. The decision of the respondent made on 28 September 2013 is quashed in respect of the orders in paragraph 9 thereof.

• 3. The matter is remitted to the panel to hear submissions in mitigation and to determine the sanction thereafter.

• 4. The appellant is to have half his costs to be agreed or taxed.

The court promised that written reasons would follow shortly.

These are my reasons for our decision.

12 The amended notice of appeal filed on 29 October 2013 contained 11 grounds of appeal, three of which, namely grounds nine, 10 and 11, were abandoned at the hearing of the appeal. The appellant is therefore relying on grounds 1–8 as set out below:

• ‘1. The respondent failed to serve notice of the hearing on the Appellant pursuant to Rule 5 Schedule 4, of the Legal Profession Act;

• 2. The Respondent failed to serve on the Appellant, pursuant to rule 5, Schedule 4 of the Legal Profession Act, a copy of the Application of the Complainant within twenty-one days;

• 3. The Respondent failed to allow the Appellant pursuant to Rule 6 Schedule 4 of the Legal Profession Act, the opportunity to furnish to the secretary a list of all documents on which he proposed to rely at least fourteen days before the hearing;

• 4. The Respondent breached the rules of natural justice by not allowing the Appellant to be heard;

• 5. The Respondent breached the rules of natural justice by not providing the Appellant the opportunity to cross-examine his accuser;

• 6. The respondent failed to give the Appellant an opportunity or any sufficient or proper opportunity to be heard in relation to the appropriate sanction pursuant to Section 12(4) of the Legal Profession Act to be imposed in the event that the complaint was established;

• 7. The Respondent's striking the Appellant's name from the Roll of Attorneys-at-Law was manifestly excessive and harsh;

• 8. The respondent displayed actual or apparent bias, or otherwise breached the rules of natural justice in having arrived at its decision prior to the hearing held on the 28 ^th September 2013 as evidenced by its pre-pared typewritten Decision dated 28 ^th September, 2013.’

13 In my view the following issues can be distilled from these grounds of appeal:

• (i) Were the proceedings properly served in compliance with the disciplinary rules? And if not, what is the effect of non compliance? (grounds 1, 2 and 3)

• (ii) Was there, on the evidence, any waiver of any alleged irregularities?

• (iii) Was there any breach of the principles of natural justice with regard to the finding of professional misconduct and or the sentence to be imposed? Was the sentence imposed manifestly excessive and harsh? (grounds 4, 5, 6 and 7)

• (iv) Was there any evidence of bias? (ground 8 )

• (v) What ought this court to do in the light of its conclusions in respect of any or all of the above?

The proceedings before the Committee

14 The first hearing took place on 21 September 2013. Neither the appellant nor his attorney was present. As a consequence, the affidavit of service of Angella Moses sworn to on 17 September 2013 was taken as read into the record....