Vaughn O'Neil Bignall v The General Legal Council
| Jurisdiction | Jamaica |
| Judge | L. Pusey, J,L. Palmer Hamilton, J,C. Barnaby, J |
| Judgment Date | 28 January 2022 |
| Court | Supreme Court (Jamaica) |
| Docket Number | CLAIM NO. SU 2020 CV 01333 |
[2022] JMFC FULL 1
IN THE SUPREME COURT OF JUDICATURE OF JAMAICA
IN THE FULL COURT
THE HONOURABLE Mr. Justice Leighton Pusey
THE HONOURABLE Mrs. Justice Lisa Palmer Hamilton
THE HONOURABLE Ms. Justice Carole Barnaby
CLAIM NO. SU 2020 CV 01333
and
Georgia Gibson Henlin Q.C. and Lemar Neale instructed by NEA| LEX, Attorneys-at-Law for the Claimant.
Michael Hylton Q.C., Carlene Larmond Q.C. and Sundiata Gibbs instructed by Hylton Powell, Attorneys-at-Law for the Defendant.
Faith Hall and Kristina Whyte instructed by the Director of State Proceedings, Attorney-at-Law for the Interested Party.
Constitutional Law — Constitution of Jamaica — Charter of Fundamental Rights and Freedoms — Sections 13 (3) (a), (c), (d), (e) and 16 (2).
The Legal Profession Act — Sections 3, 11 and 12 (7) — Legal Profession (Canons of Professional Ethics) Rules — Advertising regulations comprised in canons II (d) (ii), II(e), II (h), II (i), II (j), II(k) and II(l).
Whether the advertising regulations made by the General Legal Council for the legal profession in exercise of statutorily delegated rule making powers are demonstrably justified limitations in a free and democratic society on the rights guaranteed by sections 13 (3) (a), (c), (d), (e) and 16 (2) of the Charter of Fundamental Rights and Freedoms — Whether the proceedings before the General Legal Council in exercise of powers granted by advertising regulations breached the rights guaranteed by section 16 (2) of the Charter of Fundamental Rights and Freedoms — Whether advertising regulations and proceedings before the General Legal Council pursuant thereto were ultra vires the Legal Profession Act.
Crown Proceedings Act — Sections 2 and 3 — Whether constitutional claims are civil proceedings within the meaning of the Act to enable the Attorney General to be joined as a party to a constitutional claim pursuant to it.
| HEADING | PARAGRAPH(S) |
| CONCURRING COMMENTS OF L PUSEY, J | 1 |
| CONCURRING COMMENTS OF L PALMER HAMILTON, J | 2 |
| C. BARNABY, J | |
| BACKGROUND TO THE CLAIM | 3–6 |
| SUMMARY OF CLAIMANT'S PLEADED CHALLENGE | 7 |
 UNCONSTITUTIONALITY | 8–9 |
 ULTRA VIRES | 10 |
| SUMMARY OF RELIEF SOUGHT AND SUMMARY DETERMINATION | 11–12 |
| CHRONOLOGY | 13 |
| REASONS | |
 ADDITION OF THE ATTORNEY GENERAL AS A PARTY | 14–24 |
 SCOPE OF THE ULTRAVIRES CHALLENGE AND THE POWER OF THE COUNCIL TO MAKE THE REGULATIONS | 25–68 |
 THE CONSTITUIONAL CHALLENGE | |
| ○ THE TEST FOR CONSTITUTIONALITY AND GUIDING PRINCIPLES | 69–90 |
| ○ AREAS OF AGREEMENT AND OF DISPUTE | 91–96 |
| ○ SECTION 13 (3) (c) CHALLENGE | 97–157 |
| ○ SECTION 13 (3) (d) CHALLENGE | 158-165 |
| ○ SECTION 13 (3) (e) CHALLENGE | 166-176 |
| ○ SECTION 13 (3) (a) CHALLENGE | 177-213 |
| ○ SECTION 16 (2) CHALLENGE | 214–227 |
| ▪ THE PLEADED ULTRA VIRES CHALLENGE | 228 |
| ▪ ARROGATION OF DISCIPLINARY POWERS UNDER THE LPA | 229–238 |
| ▪ RIGHT TO A FAIR HEARING BY AUTHORITY ESTABLISHED BY LAW | 239–264 |
| ▪ SUBSTANTIVE ULTRA VIRES | 265–268 |
| ▪ VIOLA TION OF THE PRINCIPLES OF SEPERATION OF POWERS | 269–276 |
| ▪ BIAS | 277–283 |
 REQUEST FOR INJUNCTION AND STAY OF DISCIPLINARY PROCEEDINGS | 284–307 |
 COSTS | 308 |
 DISPOSITION | 309 |
| L. PUSEY, J | |
| CONCLUSION | 310–313 |
| ORDER | 314 |
I have read in draft the judgment of Barnaby J and I agree with its reasoning and conclusions.
I have also read in draft the judgment of Barnaby J and I agree with its reasoning and conclusions.
On the passing of the Legal Profession Act, 1972 (hereinafter called “the LPA”), there existed an absolute bar against advertisement and touting by members of the legal profession, consistent with and reflective of the ethical rules which were then applicable. The prohibition was codified in the Legal Profession (Canons of Professional Ethics) Rules, 1978 (hereinafter called “the Canons”), and operated until amendments were made to it in 1998. The Canons were again amended in 2016. It suffices to say here that canon II(d) now permits an attorney to advertise in connection with his practice, within certain limits.
The Claimant is an attorney-at-law of the firm Bignall Law. He alleges that a number of the provisions of the advertising regulations of the General Legal Council (hereinafter called “the Council”) and processes taken pursuant to them breached a number of the rights guaranteed to him by the Constitution of Jamaica, specifically the Charter of Fundamental Rights and Freedoms, (hereinafter called “the Charter”), and are accordingly unconstitutional and or ultra vires the LPA. The Council is the statutory regulator of the legal profession in Jamaica.
The Attorney General is joined as a party to the proceedings as a representative of the Crown pursuant to the Crown Proceedings Act, on the basis that the legislative delegation of responsibilities to the Council facilitated the making of the impugned advertising regulations. The appropriateness of the addition of the Attorney General as a party was raised in limine during the hearing of the claim and will be addressed subsequently.
The claim follows enquiries by the Council into complaints that Bignall Law had engaged in advertising thought to be in breach of advertising regulations and a decision of the 26 th September 2018 where the Council made a number of orders in respect of advertising by the legal practice. Among the orders are that the Claimant and his firm were to discontinue certain advertisements, and that the prior approval of the Council was to be sought and obtained before the publication of any further advertising. On or about the 4 th December 2018, subsequent to the making of those orders by the Council, the legal practice was again advertised on Instagram and continued to be so published in July 2019 when the Council, through its Chairman, made a complaint to the Disciplinary Committee against the Claimant. It is charged that the subsequent advertising breached the order of the Council requiring the Claimant and his firm to seek and obtain prior approval before publishing any further advertising and that the publication breached a number of the advertising regulations.
The Claimant challenges most of the advertising regulations and the enquiry by the Council into complaints received by it in respect of advertising by Bignall Law on the basis of unconstitutionality and also invokes the ultra vires doctrine. The substance of each challenge is set out below.
The Claimant contends that the challenged advertising regulations are unconstitutional in that they limit the rights guaranteed to him by the Charter, in particular, those guaranteed by sections 13 (3) (a), (c), (d) and (e) which protect the rights to life, liberty and security of the person; to freedom of expression; to seek, receive, distribute or disseminate information opinions and ideas; and the freedom of peaceful assembly and association, respectively.
It is also claimed that the Council breached his right to a fair hearing within a reasonable time by an independent and impartial court or authority established by law which is guaranteed to him by section 16(2) of the Charter on the following grounds.
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(i) The requests and proceedings of the Council commencing with letter dated 27 th December 2017 and ending with the decision dated 26 th September 2018 infringed his right of access to a court or independent and impartial court or authority established by law and or his right to a fair trial.
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(ii) The proceedings of the Council commenced by letter dated 6 th March 2018 and ending with the decision dated 26 th September 2018 infringed his right to a fair trial or hearing.
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(iii) The proceedings of the Council commenced by letter dated 6 th March 2018 and ending with the decision dated 26 th September 2018 infringed his right to a fair hearing within a reasonable time before a court or an independent and impartial court or authority established by law.
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(iv) The continuation of the hearing concerning Complaint No. 127 of 2019 to the Disciplinary Committee is likely to infringe his right to a fair hearing before a court or an independent and impartial court or authority established by law.
The Claimant also contends that the requests and proceedings of the Council commencing with letter dated 27 th December 2017 and ending with its decision dated 26 th September 2018 is ultra vires; and that proceedings before the Council in respect of the Claimant are ultra vires the Council, “ having regard to the provisions of the Legal Profession Act which constitute the General Legal Council and the Tribunal (The Disciplinary Committee of the General Legal Council)”.
On the basis of the foregoing challenges, declarations as to unconstitutionality and ultra vires are sought; as well as orders to strike down the impugned canons as being null and void and of no legal effect, or in the alternative, a stay of their execution; an injunction restraining the Council, whether by itself, servants and or agents or otherwise from commencing or continuing any disciplinary proceedings of any kind against the Claimant; and costs.
For the reasons which appear below, I find that the claim should be allowed in part.
Ahead of setting out my reasons for so concluding, I believe it may be helpful to give a chronology of the interactions between the Claimant and the Council, so far as available and relevant to these proceedings. I do so in the table below.
| December 27, 2017 Chairman of the Council's... |
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