Jones-Morgan and the Attorney General Gibson-Marks
| Jurisdiction | St Vincent and the Grenadines |
| Judge | Henry, J. |
| Judgment Date | 18 February 2016 |
| Neutral Citation | VC 2016 HC 13 |
| Docket Number | 105 of 2014 |
| Court | High Court (Saint Vincent) |
| Date | 18 February 2016 |
High Court
Henry, J.; Lanns, J. (Ag.)
105 of 2014
Ms. Cerepha Harper counsel for the claimant.
Mr. Duane Daniel counsel for the Barrister and Solicitor.
Legal Profession - Attorney—at—law — Suspension and Struck off roll — Whether the attorney had acted improperly and unprofessionally in the discharge of her professional duty by misappropriating monies held in trust where the attorney admitted — Whether the solicitor was prejudiced where the full contents of the Compliance Audit Report had only been revealed during a lunch time of the trial — Whether the attorney acted improperly and unprofessionally in the discharge of her professional duty by unlawfully converting monies to her own use from the Court Mediation Programme where the evidence was overwhelming — Credibility of witnesses — Whether sanctions should be imposed where the attorney's behaviour besmirched the entire legal profession and the office of the Registrar into disrepute — Absolute discretion in making determination — Consideration of Bolton v. Law Society [1994] 2 All E.R. 486 — Finding that the attorney had acted improperly and unprofessionally — Finding that appropriate remedy is to strike the attorney from the roll — Sections 76, 78 of the Eastern Caribbean Supreme Court (Saint Vincent and the Grenadines) Act, Cap 24 — Section 8 of the Registrar's Act, Cap 279 — Sections 2 and 8(1) of the Finance Administration Act, Cap 252
Henry, J. AND LANNS J. (AG.): Mrs. Vanessa Tamara Gibson-Marks (Referred to inter-changeably as the barrister, solicitor and legal practitioner.) was enrolled as a barrister and solicitor of the Eastern Caribbean Supreme Court, Saint Vincent and the Grenadines circuit on October 5, 2001. She served as Registrar of the High Court in the State for 8 years, ending on May 21, 2014 when she resigned. As Registrar she was vested with power and authority to perform such duties as necessary for the discharge and conduct of the business of the Supreme Court and had custody of all related records, documents and papers to accommodate this. The Honourable Attorney General Mrs. Judith Jones-Morgan has applied for an order that the solicitor be either suspended from or struck off the roll of barristers and solicitors for professional misconduct.
The Honourable Attorney General alleges that the barrister, while serving as Registrar, misappropriated funds held by her in a trust account (#87590) and in respect of the Court Mediation Programme. Mrs. Gibson-Marks admits that she was complicit in wrong-doing in relation to both allegations. She acknowledges that she is liable to be disciplined and submits that the appropriate sanction should be suspension.
The issues are:
- Whether Mrs. Vanessa Tamara Gibson-Marks has conducted herself improperly and unprofessionally in the discharge of her professional duty by misappropriating monies held in trust account No. 87590? 2. Whether Mrs. Vanessa Tamara Gibson-Marks has conducted herself improperly and unprofessionally in the discharge of her professional duty by unlawfully converting monies to her own use from the Mediation Programme? 3. If so, what sanction should be imposed? PRELIMINARY CONSIDERATIONS
The Honourable Attorney General testified and her testimony was corroborated by Mrs. Lekeisha Caesar-Toney, former acting Registrar and Ms. Karen Duncan, Senior Crown Counsel in the Attorney General's chambers. As the case unfolded, it became apparent to the panel that the allegations were based partly on the contents of a Compliance Audit Report which was commissioned by the Honourable Attorney General. At the close of the Applicant's case, counsel for the solicitor explained that they were not provided with the report in its entirety, only an excerpt or summary consisting of pages 14–18 and 28–31. He submitted that consequently the solicitor may have been prejudiced “in terms of the repayment, but perhaps not so in respect of making her defence.” He submitted further that the solicitor's position was always to make restitution including interest and the report would have assisted them in arriving at a figure that was fair.
The court directed counsel for the Honourable Attorney General to disclose the full report to the barrister and took an adjournment to facilitate disclosure. This took place on the first day during an adjournment which spanned the lunch break. The solicitor gave her testimony a few hours later. Ideally, she and her counsel should have had the report as soon as possible after it was submitted to the Honourable Attorney General. After reviewing the report, they both indicated that Mrs. Gibson-Marks was not prejudiced by the late receipt.
We are satisfied that together they were able to gain a full and comprehensive appreciation of its contents and its impact on her case before she testified and completed her representations to the court. We have therefore concluded that the solicitor has not thereby been prejudiced. With the concurrence of counsel for the solicitor, the Compliance Audit Report was accepted as part of the materials constituting the applicant's case and considered pursuant to the provisions of the Evidence Act, Cap. 220. In doing so, we took into account that the report was conducted under authority of the Director of Audit and signed by her.
The court frowns on the failure to disclose the full report to the barrister prior to the hearing. Such denial unless remedied constitutes a breach of one of the fundamental rules of natural justice which guarantees a fair hearing. This principle mandates that a person charged be given notice of the other party's case, as soon as reasonably practicable, to ensure that he or she is operating on a level playing field. This principle is also incorporated by implication in the Barristers and Solicitors Rules, Cap. 24 (“the Rules”).
Subject to rules of court, the applicable law and practice relating to solicitors in Saint Vincent and the Grenadines, is that which obtains in England. Disciplinary proceedings against a barrister or solicitor for professional misconduct are governed by the Eastern Caribbean Supreme Court (Saint Vincent and the Grenadines) Act (“the Act”). The Act empowers any two judges of the High Court to impose sanctions against a legal practitioner for a range of infractions including unprofessional conduct. The relevant sections provide:
“76. Any two judges of the High Court may, for reasonable cause, suspend any barrister or solicitor from practising in Saint Vincent and the Grenadines during any specified period, or may order his name to be struck off the Court Roll. 3(1) A barrister or solicitor may be suspended from practising or his name may be struck off the roll by order of the High Court for any of the following causes—
(f) if he is otherwise guilty of professional misconduct: Provided that no such order shall be made until the barrister or solicitor has had the opportunity of showing cause against such order.”
Disciplinary proceedings are neither criminal nor civil in nature.” They involve a two stage process particularized in the Rules. The first stage is initiated by an application to a single judge for a rule to be issued to the barrister or solicitor to show cause why he should not be suspended or struck from the roll. The second and final step is conditional on the judge issuing a rule, and it takes place in open court before a two-judge panel
In June 2014, the Honourable Attorney General applied15 for a rule to be issued to the solicitor to show cause why she should not be suspended from practising or be struck from the roll for improper and unprofessional misconduct in the discharge of her professional duty. The alleged professional misconduct concerned:
- misappropriating monies held in trust account #87590; 2. unlawfully converting monies for her own use from the court's Mediation programme; and 3. requesting the Manager of the St. Vincent Co-operative Bank Limited (“the Bank”) to close account #800300 (established pursuant to Court Order made by the Honourable Justice Renwick on May 23, 1980) and issue a cheque in the name of the Registrar of the High Court.
By Oral decision,16 the court ordered inter alia that a rule be issued to the barrister to show such cause why she should not be suspended or struck from the roll for:
- misappropriating monies from trust account #87590; and 2. using mediation programme funds for her own purposes. That order concluded phase 1 of the disciplinary proceedings.
Phase 2 was commenced one week later by fixed date claim form (“FDCF”) by which the Honourable Attorney General seeks declarations that by misappropriating monies held in trust account No. 87590 and by unlawfully converting monies to her own use from the Mediation Programme, the solicitor conducted herself improperly and unprofessionally in the discharge of her professional duty. She also seeks an order that Mrs. Gibson-Marks be suspended or struck from the roll of Barristers and Solicitors. The standard of proof in disciplinary proceedings of legal practitioners is proof beyond reasonable doubt. The court must determine if the evidence establishes either “charge” against the solicitor to that degree.
Three persons testified against the barrister. Their sworn affidavits were admitted as their evidence-in-chief and with the exception of Ms. Duncan they were cross-examined. Mrs. Gibson-Marks also testified but she called no witnesses. The Honourable Attorney General was the main witness. Much of her testimony is repeated by Mrs. Caesar-Toney and is largely unchallenged. She exhibited...
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