Othneil Sylvester Appellant v [1] Frederick Bruce-Lyle [2] Kenneth Benjamin (The Disciplinary Tribunal) Respondents [ECSC]

• Jurisdiction: St Vincent and the Grenadines
• Judge: BARROW, J.A.,Justice of Appeal,Justice of Appeal [Ag.],Denys Barrow, SC,Ola Mae Edwards,Indra Hariprashad-Charles
• Judgment Date: 10 November 2008
• Judgment citation (vLex): [2008] ECSC J1110-2
• Court: Court of Appeal (Saint Vincent)
• Docket Number: HCVAP 2007/017
• Date: 10 November 2008

[2008] ECSC J1110-2

IN THE COURT OF APPEAL

Before:

The Hon. Mr. Denys Barrow, SC Justice of Appeal

The Hon. Mde. Ola Mae Edwards Justice of Appeal [Ag.]

The Hon. Mde. Indra Hariprashad-Charles Justice of Appeal [Ag.]

HCVAP 2007/017

Between:

Othneil Sylvester

Appellant

and

[1] Frederick Bruce-Lyle

[2] Kenneth Benjamin

(The Disciplinary Tribunal)

Respondents

Appearances:

Mr. James Guthrie Q.C., Mr. Emery Robertson and Ms. Nicole Sylvester for the Appellant

Mr. Stanley Marcus S.C., Mr. Bertram Commissiong Q.C., and Ms. Mira Commissiong for the Interested Party

Civil Appeal — Barrister — Solicitor — professional misconduct — disciplinary proceedings — natural justice — whether breached by tribunal's failure to admit affidavit evidence — jurisdiction of disciplinary tribunal to order payment of compensation — sections 76 and 78 of the Eastern Caribbean Supreme Court (Saint Vincent and the Grenadines) Act, Cap. 18.

The appellant is a Queen's Counsel. The respondents are judges of the High Court who sat as a disciplinary tribunal. The Danish Foundation ("the interested party") was the "person aggrieved" by the actions of the appellant, who had acted as the legal practitioner for the interested party some years earlier. The actions of the appellant were the subject matter of a disciplinary complaint made by the interested party and the latter was permitted by an order of the court to participate in the appeal as an interested party.

The appellant, as the interested party's legal practitioner, had recommended the formation of five companies for the purpose of enabling the interested party to acquire Orange Hill Estates in Saint Vincent and the Grenadines and thereby, lawfully, avoid the requirements of the Aliens (Landholding Regulations) Act, Cap. 235. The companies were incorporated as recommended; the appellant, his law clerks and three Danish nationals working in Saint Vincent becoming subscribers to the memoranda of association. The interested party paid the full purchase price for the Estates, all government fees and stamp duties and the appellant's fees. Without the interested party's knowledge or consent, the appellant issued shares in the principal company to his wife, his son, his daughter and three law clerks and thereafter took full control of the companies to the exclusion of the Danish nominees.

In 1985, the Government compulsorily acquired the Estates and the appellant represented the interested party at boards of assessment and in litigation challenging the quantum of the award. In 1993, the appellant received, into his clients' account, the sum of EC$6,697,500.00 from the Government as compensation for the Estates. The interested party was not informed of the receipt of these monies and learnt of it by reading a newspaper circulating in Saint Vincent in 1996. After numerous demands, the appellant paid EC$1,485,000.00 to the interested party and refused to pay the balance. In February 2004, the interested party commenced a civil action against the appellant to recover the money paid by the State as compensation and instituted the complaint proceedings.

The complaint was scheduled to be heard by the tribunal on 12^th July, 2004 by agreement of the parties. In March 2004, the appellant requested an extension of time to file affidavit evidence, which was granted with the consent of the interested party. No affidavit was in fact filed. The appellant instead filed an application for stay or dismissal of proceedings, which was refused. He appealed this decision, which appeal was also dismissed. These proceedings were characterised by adjournments and delay. The complaint was scheduled to be heard on its merits in the week commencing 23^rd October, 2006 but was adjourned to 5^th February, 2007 on the ground of the appellant's medical condition. The tribunal made it clear that the matter would proceed on that date whether or not the appellant was present, his attendance not being compulsory. The appellant sought to rely at the hearing on affidavits he served on the 2^nd and 5^th February, 2007. The tribunal refused to allow counsel for the appellant to use the affidavit and proceeded with the hearing.

The tribunal delivered its decision on 29^th May, 2007 disbarring the appellant, ordering him to pay compensation to the interested party in the sum of EC$5,212,500.00 with interest and costs. The appellant appealed on the ground that the tribunal's refusal to allow the appellant to rely on the affidavits amounted to a breach of natural justice and that the tribunal had no jurisdiction to order the payment of compensation.

Held: dismissing the appeal, affirming the order of the tribunal and awarding the costs of the appeal to the interested party:

(1) There was no breach of natural justice for the tribunal had properly taken account of and given due weight to the fact that the standing and reputation of the appellant were at stake and to the consequences of refusing to admit the affidavits, including the implications for the appellant's defence and the effect that allowing the affidavits would have on the timely hearing of the complaint. The tribunal was also entitled to reject the asserted illness of the appellant as a justification for the delay as no medical certificate had been provided to establish any illness subsequent to 22^nd September, 2006.

(2) The courts in England have jurisdiction at common law to order a solicitor to pay compensation where professional misconduct is established. This common law jurisdiction has been distinctly preserved by the law and practice in force in England relating to solicitors. Section 78 of the Eastern Caribbean Supreme Court (Saint Vincent and the Grenadines) Act, Cap. 18 extends to Saint Vincent and the Grenadines the law and practice in force in England relating to solicitors, which includes the common law jurisdiction. The tribunal accordingly had jurisdiction to order the payment of compensation.

(3) This jurisdiction to award compensation exists notwithstanding the fact that the person aggrieved has obtained judgment in a separate proceeding against the solicitor to recover the money payable to it. In the present circumstances, the interested party has not obtained judgment in its claim seeking recovery of the money owed so that it was all the more necessary and just for the tribunal to exercise the power to order the appellant to pay the money he has dishonestly withheld from the interested party.

In the matter of the Solicitors Act 1974, B Brandon v The Law Society [2008] EWCA Civ 967 considered.

In Re Grey (1892) 2 QB 440 applied.

BARROW, J.A.

1 This appeal is by a Queen's Counsel against the decision of two judges of the High Court of Saint Vincent and the Grenadines, sitting as a disciplinary tribunal, ordering that the appellant be struck off the Court Roll forthwith, pay compensation and pay costs to the interested party. The appellant argues that the tribunal had no jurisdiction to order the payment of compensation and that the tribunal's refusal to allow the appellant to rely in his defence on two affidavits amounted to a breach of natural justice for which the decision should be set aside.

The nature of the proceeding

2 The interested party is a private Danish foundation. The interested party commenced proceedings by a notice of application filed in February 2004, applying for a rule to issue tothe appellant to show cause why his name should not be struck off the Roll of Barristers and Solicitors or why he should not be suspended from practicing as a Barrister and Solicitor in Saint Vincent and the Grenadines. By order of the master dated March 17, 2006, it was ordered that the rule should issue and that the respondent should show cause why he should not be suspended or struck off the Court Rolls. The rule was stated to be on the basis of ten charges of professional misconduct.

3 The tribunal stated in its written decision1 that the High Court of Saint Vincent and the Grenadines is empowered to supervise and control the conduct of barristers and solicitors. Such jurisdiction is conferred by Section 76 of the Eastern Caribbean Supreme Court Act (Saint Vincent and the Grenadines) Act2, (the Supreme Court Act), which provides:

"Any two judges of the High Court may, for reasonable cause, suspend any barrister or solicitor from practicing in Saint Vincent and the Grenadines during any specified period, or may order his name to be struck off the Court Roll."

4 The procedure to be followed is provided in regulations made under the Act in Rule 4 of theBarrister and Solicitors Rules, Booklet 4. That rule reads:

"(1) Proceedings to suspend or strike a barrister or solicitor off the roll shall be commenced by an application to a judge in chambers for a rule to issue to the barrister or solicitor named to show cause why he should not be suspended or struck out the roll.

(2) Such application may be made by the Attorney-General or by the person aggrieved by the action of the barrister and solicitor complained against.

(3) In the event of a rule being granted, further proceedings thereunder shall be in open court."

5 At an earlier point in the course of the underlying proceedings it was clarified by this court, on an interlocutory appeal,3 that disciplinary proceedings against a barrister and solicitor4 are neither criminal nor civil proceedings. This was established in this jurisdiction by this court's decision in Hansraj Matadial v John Bayliss Frederick.5 It followed, because there is no claimant and defendant in such proceedings, because there are no parties

since there is no litigation, that the Foundation was properly to be regarded as the applicant or "the person aggrieved", in the language of the Rule. Consistent with the nature of the proceedings, the proper respondents to an appeal by an affected practitioner are the judges who made the decision and not the aggrieved person, whom...