Causwell v The General Legal Council (ex parte Elizabeth Hartley)
| Jurisdiction | UK Non-devolved |
| Judge | Lord Briggs |
| Judgment Date | 11 March 2019 |
| Neutral Citation | [2019] UKPC 9 |
| Court | Privy Council |
| Docket Number | Privy Council Appeal No 0037 of 2017 |
| Date | 11 March 2019 |
[2019] UKPC 9
Lord Kerr
Lord Carnwath
Lady Black
Lord Lloyd-Jones
Lord Briggs
Privy Council Appeal No 0037 of 2017
From The Court Of Appeal of Jamaica
Legal profession - Disciplinary proceedings — Whether disciplinary proceedings initiated under the Legal Profession Act without the complainant's authority could later be ratified by the complainant.
Appellant
B St Michael Hylton QC Carlene Larmond (Instructed by Axiom Stone)
Respondent
Emile GR Leiba Julianne Mais Cox Courtney A Bailey (Instructed by Blake Morgan)
This appeal from the Court of Appeal of Jamaica raises the following short question of Jamaican law: namely whether disciplinary proceedings commenced under the Legal Profession Act (“the LPA”) by a person purporting to do so as agent for the complainant, but without the complainant's authority, are capable of being made good by ratification by the complainant, or whether they are a complete nullity incapable of ratification. The question turns upon the principles of the law of agency relating to ratification (which are the same in Jamaica as in England) and the true construction of the relevant provisions of the LPA.
The facts may be shortly stated. In 1973 the complainant Lester DeCordova instructed the law firm which later became Dunn Cox to apply on his behalf for probate of his recently deceased father's will, and to act in the administration of his estate. The Respondent Janice Causwell is an Attorney-at-Law and a partner in Dunn Cox. She undertook the discharge of that retainer by the firm. In 1999 a Mrs Elizabeth Hartley began communicating with the Respondent in relation to the matter on Mr DeCordova's behalf.
On 21 st March 2002 Mrs Hartley filed a formal complaint against the Respondent with the disciplinary committee constituted under the LPA (“the Committee”). She stated that she was acting as the agent of Mr DeCordova and the substance of the complaint was that the Respondent had failed to deal with the matter expeditiously, failed to provide information as to the progress of the matter and had acted with inexcusable or deplorable negligence.
In two letters to the Respondent dated respectively 3 rd March and 29 th November 2004, Mr DeCordova confirmed that Mrs Hartley was acting as his agent in connection with his complaint.
The complaint led to a disciplinary hearing before the Committee which began in March 2008. Mrs Hartley gave evidence and was cross-examined but the hearing was then adjourned. On its resumption in January 2010 new counsel instructed by the Respondent raised as a preliminary objection the allegation that there was no evidence that, at the time of the initiation of the complaint, Mrs Hartley had authority to do so as agent for Mr DeCordova. In February 2011 the Committee ruled that, although there was indeed no such evidence of initial authorisation, Mr DeCordova had subsequently ratified Mrs Hartley's initiation of the complaint by his letters in March and November 2004 to the Respondent.
The Respondent appealed that decision to the Court of Appeal in March 2011. The General Legal Council (“GLC”) which was cited as respondent, ex parte Mrs Hartley, did not challenge the finding that there had been no evidence of initial authorisation, preferring to confine its case to ratification. In July 2016 the Court of Appeal allowed the appeal and set aside the ruling of the Committee. It decided that, on the true construction of the LPA, the initiation of a complaint by a purported agent acting without authority was a nullity which was incapable of ratification. The GLC appealed that decision to the Board.
In accordance with the Board's encouragement to parties to minimise the cost and inconvenience of appeals occasioned by oral hearings usually in London, arrangements were made for the hearing of the appeal to be conducted by way of video conference with both parties addressing the Board remotely, from Jamaica. Unfortunately, (and for the first time), technical difficulties made it necessary to discontinue the oral hearing, but the parties sensibly invited the Board to decide the matter on the papers, with the benefit of short further written submissions, which the Board has since received and considered. The Board wishes to commend the parties for the thoroughness and excellent focus of the written materials, in which the point at issue has been fully and fairly debated. Without in any way undermining the importance which the Board ordinarily attributes to an oral hearing, it has concluded, exceptionally, that this is an occasion when a decision on the papers can justly and fairly be delivered.
The relevant provisions of the LPA are to be found in Section 12 as follows:
“12.-(1) Any person alleging himself aggrieved by an act of professional misconduct (including any default) committed by an attorney may apply to the Committee to require the attorney to answer allegations contained in an affidavit made by such person, and the Registrar or any member of the Council may make a like application to the Committee in respect of allegations concerning any of the following acts committed by an attorney, that is to say-
(a) any misconduct in any professional respect (including conduct which, in pursuance of rules made by the Council under this Part, is to be treated as misconduct in a professional respect);
(b) any such criminal offence as may for the purposes of this provision be prescribed in rules made by the Council under this Part.
(2) In any matter or hearing before a court a Judge, where he considers that any act referred to in sub-paragraph (a) or (b) of subsection (1) has been committed by an attorney, may make or cause the Registrar to make an application to the Committee in respect of the attorney under that subsection.
In this subsection ‘court’ means the Supreme Court, the Court of Appeal, a Resident Magistrate's Court, the Traffic Court or any other court which may be prescribed.
(3) Any application under subsection ( 1) or (2) shall be made to and heard by the Committee in accordance with the rules mentioned in section 14.
(4) On the hearing of any such application the Committee may, as it thinks just, make one or more of the following orders as to—
(a) striking off the Roll the name of the attorney to whom the application relates;
(b) suspending the attorney from practice on such conditions as it may determine;
(c) the imposition on the attorney of such fine as the Committee thinks proper;
(d) subjecting the attorney to a reprimand;
(e) the attendance by the attorney at prescribed courses of training in order to meet the requirements for continuing legal professional development;
(f) the payment by any party of costs of such sum as the Committee considers a reasonable contribution towards costs; and
(g) the payment by the attorney of such sum by way of restitution as it may consider reasonable, so, however, that orders under paragraphs (a) and (b) shall not be made together.”
As is common ground, this section gives statutory locus standi to bring a disciplinary complaint to the Committee to three categories of person namely: (1) any person alleging himself aggrieved by an act of professional misconduct committed by an attorney (2) the Registrar of the Supreme Court and (3) any member of the GLC. It is also common ground (although implicit rather than expressly stated in the LPA) that a person in category (1) may initiate and pursue such a complaint either in person or through an agent.
Two things need to be noted about Section 12. The first is that it is silent about agency and ratification. The second is that it imposes no time limit for the initiation of a complaint to the Committee. It is not suggested that any time limit is to be found elsewhere, for example in a statute of limitation.
There was not before the Court of Appeal, and is not before the Board, any challenge to the finding of the Committee that, when she initiated the complaint, Mrs Hartley lacked any authority from Mr DeCordova, as the named complainant, to do so. Nor did Mrs Hartley have any complaint to make of her own, as a person aggrieved, under Section 12 (1) of the LPA. That said, the Board wishes to reserve for a future occasion the question whether the Committee and the Court of Appeal were correct in assuming that a preliminary challenge to the authority of an agent for a complainant places the evidential burden on the complainant. The Board therefore proceeds upon the basis that the only way in which the initiation of the complaint could be made good (if at all) was by ratification. It is not in dispute that the letters from Mr DeCordova to the respondent in 2004 were, in principle, sufficient to ratify Mrs Hartley's conduct as his purported agent if, but only if, ratification is available as a means of putting right, retrospectively, a defect in the initiation of the proceedings.
The conclusion of the Committee that Mrs Hartley's lack of authority when initiating the complaint could be, and therefore had been, cured by ratification was based on three considerations. The first was that the initiation of a disciplinary complaint to the Committee without authority was not an illegal or criminal act which could not therefore be made right. Secondly, that the best analogy was the commencement of a civil action, where a lack of authority could, on settled authority, be made good by ratification. Thirdly the Committee relied upon the following dictum of Baron Martin in Brook v Hook (1871) LR 6 Exch 89, at 96:
“If a contract be void upon the ground that the party who made it in the name of another had no authority to make it, this is the very thing which the ratification cures..
The Court of Appeal reached the...
To continue reading
Request your trial
-
Apple Inc. v Swatch AG (Swatch SA) and Swatch Ltd
...for question in a relatively-recent decision of the Privy Council, as will be seen in paragraphs 24 and 26 of Causwell v The General Legal Council (Ex parte Elizabeth Hartley) [2019] UKPC 9. In that case, the following comments were made in respect of the case of In re Pritchard [1963] Ch......
-
Lisamae Gordon v Disciplinary Committee of the General Legal Council
...compass” of the specific accusation that the applicant was the complainants' attorney. 28 The authority of Causwell v The General Legal Council (ex parte Elizabeth Hartley) [2019] UKPC 9 was relied on for the interpretation of that section in respect of who may bring a 29 The gist of Mr Wi......
-
Dail Crawford v Medical Board of Saint Christopher and Nevis
...Permanent Secretary dated 12 September 2014 and will be examined in more detail later in this judgment. 27 In Causwell v The General Legal Council, ex parte Elizabeth Hartley [2019] UKPC 9 (dated 11 March 2019), the Privy Council accepted the general principle of agency as stated by the ed......
-
Dail Crawford v Medical Board of Saint Christopher and Nevis, The Medical Chief of Staff of The Joseph Nathaniel France General Hospital and The Attorney General of Christopher and Nevis
...Permanent Secretary dated 12 September 2014 and will be examined in more detail later in this judgment. 27 In Causwell v. The General Legal Council, ex parte Elizabeth Hartley [2019] UKPC 9 (dated 11 March 2019), the Privy Council accepted the general principle of agency as stated by the e......