The General Legal Council (ex parte Elizabeth Hartleyxs) v Janice Causwell

• Jurisdiction: Jamaica
• Judge: Phillips JA,McDonald-Bishop JA,P Williams JA
• Judgment Date: 29 June 2017
• Court: Court of Appeal (Jamaica)
• Docket Number: SUPREME COURT CIVIL APPEAL NO 41/2011
• Date: 29 June 2017

Between

The General Legal Council (ex parte Elizabeth Hartleyxs)

Applicant

and

Janice Causwell

Respondent

[2017] JMCA App 16

Before:

The Hon Miss Justice Phillips JA

The Hon Mrs Justice McDonald-Bishop JA

The Hon Miss Justice P Williams JA

SUPREME COURT CIVIL APPEAL NO 41/2011

MOTION NO 12/2016

JAMAICA

IN THE COURT OF APPEAL

Michael Hylton QC and Miss Carlene Larmond instructed by Rattray Patterson Rattray for the applicant

John Vassell QC and Courtney Bailey instructed by DunnCox for the respondent

Phillips JA

1 I have read, in draft, the reasons for judgment of my learned sister McDonald-Bishop JA. I agree with her reasoning and conclusion and I have nothing useful to add.

McDonald-Bishop JA

2 This is a notice of motion brought by the applicant, the General Legal Council, for conditional leave to appeal to Her Majesty in Council from the decision and order of the court made on 15 July 2016 in favour of the respondent, Janice Causwell. The respondent had brought an appeal from a decision of the applicant's Disciplinary Committee (“the Committee”) made on 3 February 2011, during the course of the hearing of disciplinary proceedings instituted against her at the instance of Mrs Elizabeth Hartley who filed a complaint to the applicant on 21 March 2002. The appeal was allowed and the decision of the Committee was set aside with costs to the respondent.

3 On 27 February 2017, we heard the arguments of counsel on the motion and on 7 April, we gave our decision as follows:

“The motion for conditional leave to appeal to Her Majesty in Council, filed by the applicant on 2 August 2016, is refused with costs to the respondent to be agreed or taxed.” We promised then to produce written reasons for the decision at a later date. This is in fulfilment of that promise.

The motion

4 The leave to appeal to Her Majesty in Council was sought pursuant to section 3 of the Jamaica (Procedure in Appeals to Privy Council) Order in Council 1962, and section 110(2)(a) of the Constitution of Jamaica (“the Constitution”). By way of reminder, section 110(2)(a) of the Constitution reads:

“(2) An appeal shall lie from decisions of the Court of Appeal to Her Majesty in Council with the leave of the Court of Appeal in the following cases—

(a) where in the opinion of the Court of Appeal the question involved in the appeal is one that, by reason of its great general or public importance or otherwise, ought to be submitted to Her Majesty in Council, decisions in any civil proceedings; …”

5 The motion was supported by the affidavit of Allan S Wood QC, chairman of the applicant, sworn to on 29 July 2016. Mr Wood deponed that the questions that are involved in the appeal concern the nature of disciplinary proceedings and the interpretation of the provisions of the Legal Profession Act (“the LPA”) as it relates to the categories of persons by whom complaints can be filed and pursued. He identified four questions, which he said he “verily” believes that by reason of their great general or public importance or otherwise, ought to be submitted to Her Majesty in Council. The questions are:

• “a. Whether disciplinary proceedings are of such a nature that as a matter of public law the doctrine of ratification that would have applied to proceedings in private law is inapplicable.

• b. Whether disciplinary proceedings before the Disciplinary Committee of the General Legal Council are quasi criminal in nature so that public law does not permit ratification of the proceedings.

• c. Is the requirement to meet the criminal standard of proof in the substantive disposal of disciplinary proceedings:

  • i. a factor to consider in determining whether a flaw in the commencement of those proceedings is capable of being cured?

  • ii. a sufficient basis on which to conclude that those proceedings are criminal in nature or are not civil?

• d. Whether the finding of the Court of Appeal that disciplinary proceedings ‘are clearly distinguishable from ordinary civil proceedings’ is consistent with or is a departure from the conclusion of the Judicial Committee in General Legal Council ex parte Basil Whitter (at the instance of Monica Whitter) v Barrington Earl Frankson [2006] UKPC 42.”

6 The fundamental issue which arose for consideration on this motion, therefore, was whether the questions identified by Mr Wood, as arising from the decision of this court, have satisfied the criterion of being of “great general or public importance or otherwise” for conditional leave to be granted for an appeal to be made to Her Majesty in Council.

The background

7 It is considered useful to provide an insight into the circumstances that have led to the filing of the motion. For a much greater appreciation of the circumstances leading to these proceedings, attention is directed to the factual background comprehensively set out by Phillips JA at paragraphs [2]–[25] in the judgment of the court in Janice Causwell v The General Legal Council (ex parte ELIZABETH HARTLEY) [2016] JMCA Civ 42. For present purposes, however, a synopsis of the salient facts will suffice.

8 The facts are as follows: The respondent is an attorney-at-law and was at all material times a partner in the firm of attorneys-at-law, DunnCox. Disciplinary proceedings were instituted against her by the applicant on the basis of a complaint of professional misconduct made by Mrs Elizabeth Hartley on 20 March 2002. The affidavit of Mrs Hartley in support of the complaint stated that she was acting as agent for Mr Lester deCordova, who was the client of the respondent but who lived overseas. Mrs Hartley had been dealing with the respondent on behalf of Mr deCordova in relation to an application for grant of probate in the estate of his late father, Mr Altamont deCordova. In her affidavit, Mrs Hartley set out the facts constituting the basis of the complaint against the appellant. Subsequent to the filing of the complaint, the respondent, on 5 May 2003, communicated with Mr deCordova concerning developments in his matter and made certain requests of him in order for the matter to proceed in the light of those new developments. She also referred to earlier correspondence to Mr deCordova dated 19 May 2000, in which she had indicated that the firm no longer wished to act for him in circumstances in which they no longer enjoyed his confidence.

9 On 5 March 2004, Mr deCordova, by letter, sought to remind the respondent that he had previously informed her that Mrs Hartley was acting on his behalf and had his full confidence. He queried why the respondent had written to him and not Mrs Hartley and he instructed the respondent to communicate with Mrs Hartley and their attorney-at-law, Miss Aisha Mulendwe, who was acting for him in respect of the complaint to the applicant and that they would inform her what was to be done. He ended the letter by instructing the respondent to write to Mrs Hartley and Miss Mulendwe and not to write to him again.

10 On 29 November 2004, Mr deCordova wrote to the respondent again, reprimanding her for communicating with him directly and ignoring Mrs Hartley, who he said was his appointed agent. He then indicated to the respondent that he was copying the applicant on the letter “so that they can be further informed of [the respondent's] persistent unprofessional conduct”.

11 On 12 September 2006, Mrs Hartley collected the file relating to Mr deCordova's matter from the respondent and DunnCox.

12 On 29 March 2008, the disciplinary hearing before the Committee commenced and Mrs Hartley was cross-examined. The matter was adjourned and at the resumption of the hearing on 10 April 2010, Mr Vassell QC, representing the respondent at the hearing, made a query as to whether the panel had been provided with the authority by Mrs Hartley to make the complaint. He took a preliminary objection on the basis that there was no evidence that the agency of Mrs Hartley to lay the complaint existed at the material time. It was established as an incontrovertible fact, following the evidence of Mrs Hartley and the production of a power of attorney given by Mr deCordova to Mrs Hartley, that at the time Mrs Hartley had filed the complaint against the respondent, she did not have the authority of Mr deCordova to do so.

13 The hearing continued until 6 November 2010 and on 3 February 2011, the Committee ruled on the preliminary point. It held that the preliminary point failed. The Committee, after reviewing the law on agency and ratification, the provisions of section 12 of the LPA, and the relevant dicta from several authorities, opined that although there was no evidence to support the position that Mrs Hartley had been authorised by Mr deCordova to bring the complaint at the time it was laid, Mr deCordova by the two letters he had written in March and November 2004, had ratified the conduct of Mrs Hartley in filing and pursuing the complaint and so, the proceedings before it were not a nullity. The Committee ruled that the hearing should continue.

14 The gravamen of the Committee's opinion was recorded as follows at paragraph 15 of the decision (reproduced at paragraph [23] of the judgment of this court in Janice Causwell v The General Legal Council):

“If an aggrieved person can authorize someone else to bring a complaint against an Attorney on his behalf and the actual aggrieved person could have lawfully brought the claim, we cannot see why an authority given after the complaint is laid cannot ratify the agency. Ratification relates back to the very unauthorised act of the agent. The filing of a complaint against an Attorney under the Legal Profession Act is similar to filing suit as in the case of Danish Mercantile where the Solicitor had no authority to file suit. It is not in the nature of a criminal offence which can never be made right and therefore must be a true nullity, but more akin to a civil action which can...