Court name
Supreme Court of Turks and Caicos Islands

In the Matter of a Reference by the Bar Council under Section 24(5) of the Legal Profession Ordinance () [2002] TCASC 4 (20 December 2002);

Law report citations
Media neutral citation
[2002] TCASC 4
Coram
Ground, CJ

IN THE SUPREME COURT TURKS & CAICOS ISLANDS

IN THE MATTER OF THE LEGAL PROFESSION ORDINANCE

AND IN THE MATTER OF A REFERENCE BY THE BAR COUNCIL UNDER SECTION 24(5) OF THE SAID ORDINANCE

JUDGMENT

This matter came before me on a reference by the Bar Council under s. 24(5) of the Legal Profession Ordinance ('the Ordinance'). A preliminary point was taken by the respondent, who argued that a failure by the Bar Council to comply with the timetable for action prescribed by section 24, meant that the reference was void or a nullity. I rejected the preliminary point, and promised short written reasons as it involved a point of principle. However, as the reference itself was eventually dismissed on the merits, I have removed all reference to the attorney involved or the facts.

Section 24 of the Ordinance provides that it is the duty of the Bar Council to receive complaints of professional misconduct. It then sets out the following timetable for dealing with such complaints:

"(2) The Bar Council shall within 14 days of receiving, a complaint determine whether there are reasonable grounds for the making of the complaint.

(3) Where the Bar Council determines that there are reasonable grounds for the making of a complaint, it shall within 14 days of the determination appoint an independent Attorney to inquire into the complaint, otherwise it shall summarily dismiss the complaint.

(4) An Attorney appointed under subsection (3) shall inquire into the complaint and shall within 14 days of his appointment report to the Bar Council with his opinion on the matter.

(5) If, in such Attorney's opinion, the complaint discloses a prima facie case of professional misconduct then the Bar Council shall within 7 days of receiving the report, refer the matter to the Chief Justice for disciplinary action, and the Council shall appoint an Attorney to represent it at the hearing."

It is common ground that the Bar Council did not clear the first hurdle, in that it failed to make the initial determination under subsection 24 (2) within the prescribed l4 days. It was said that this was because it was unable to convene a quorum, many members being away. 1 do not think that, in view of the outcome. I need make a finding of fact on that, but it indicates the sort of problem which may arise in practice. This is particularly so because decisions of the Bar Council have to be made at quorate meetings at which the persons voting are personally present: see s. l 7(9). There is no possibility, therefore, of solving such practical difficulties by proxy votes or by a 'round robin' circulation of members for their views.

The Bar Council sought to get around their inability to comply with subsection 24(2) within the time limit, by inviting the complainant to resubmit the complaint, and then they decided on that within 14 days of the resubmission, l do not think that that was apt or effective to solve the problem — there is only one complaint, and had it been the case that it had lapsed by reason of the failure to observe the time limits, that would have been an end of it. Were the time limits to be construed strictly, as the respondent argues, then it would plainly be abusive to attempt to get around them by such a ruse.

However, 1 think that the function oldie time limits is to ensure that the Bar Council does its duty in respect of a complaint promptly, and does not sit on it. I think that the limits should be interpreted against the legislative history. Prior to the Ordinance, the power of disciplining the legal profession lay solely with the Chief Justice, and the procedure envisaged by section 21 of the Supreme Court Ordinance did not envisage the I3ar Council having a rule in it. The change introduced by the Ordinance was to put the burden of receiving and reviewing complaints, and then taking them forward, upon the Bar Council. This was a first step towards full self regulation, and, for the Turks & Caicos Islands at least, it was a novel one. I have no doubt that those who framed the scheme of the legislation, and the legislators who enacted it, wished to ensure that the Bar Council did in fact shoulder the burden laid upon.

I think, therefore, that the effect of the timetable is simply that, if the Bar Council does not meet it, it is liable to compulsion by mandamus or some other similar remedy. The alternative construction contended for by the respondent would produce the absurdity that, if the Bar Council did not want a defaulting member of the Bar to be proceeded against for flagrant professional misconduct, it could simply defeat a complaint by sitting on it for two weeks. That should not be misunderstood as meaning that I think that either the present or any past or future Bar Council would in fact do such an improper thing. In particular I have every confidence not only in the probity of the present council, but also in its desire to perform its functions properly and in a way which is conducive to the good of both the public and profession. The point simply is that a statutory scheme which allowed its manifest purpose to be so easily defeated is not likely to have been the intention of those who enacted it. and I should only construe it to produce such an absurd result if I had no other choice, I do have a choice — it can simply be interpreted as setting a timetable after which the courts can intervene to move the process along.

That interpretation fits with the fact that the Ordinance does not itself provide a sanction for breach of the timetable, and most obviously it does not expressly provide that a complaint is to be defeated by a failure to observe the timetable. It also fits with the otherwise generous limitation period allowed to potential complainants. A complaint may be brought at any time up to 6 years after the occurrence of the facts giving rise to it: s. 26. Given that a complainant can sit on his hands for almost 6 years, and then still bring a complaint, it would be odd if the Bar Council's failure to take the first step within a mere 14 days should entirely debar an otherwise valid complaint.

I held, therefore, that a failure by the Bay Council to determine whether there are reasonable grounds for the making of a complaint within 14 days of receiving it, as required by section 24(2) of the Legal Profession Ordinance, did not prevent them subsequently proceeding upon the complaint nor invalidate those subsequent proceedings.

Dated this 20th day of December 2002

 

Richard Ground Chief Justice