Civil Appeal No. 13 of 2005
IN THE COURT OF APPEAL OF THE TURKS AND CAICOS ISLANDS
IN THE MATTER OF THE LEGAL PROFESSION ORDINANCE (CAP. 18) (“THE ORDINANCE”)
IN THE MATTER OF A REFERENCE BY THE BAR COUNCIL UNDER PART V OF THE ORDINANCE IN RESPECT OF THE CONDUCT OF BERYN DUNCANSON
BERYN DUNCANSON Appellant
- and -
THE BAR COUNCIL of the Turks & Caicos Islands
The Rt. Hon Edward Zacca - President
The Hon Elliott Mottley - Justice of Appeal
The Hon Rance Langrin - Justice of Appeal
Lloyd Barnett, Lloyd Rodney and Stephen Wilson for the Appellant.
Carlos Simons, QC for the Respondent.
1. Tropical Development Ltd. (''Tropical'’), a company incorporated in the Turks and Caicos Islands (“ TCI”) alleged that pursuant to a letter dated December 9, 2002 from the Chief Minister, it had been promised by the Executive Council of TCI a conditional lease of 172 acres of certain crown lands in the South Suburbs section of Grand Turk.
2. After a change of government following general elections in 2003, the new government decided to enter negotiations with another company. As a result of this change of attitude by the government, Tropical retained Duncanson & Co. who, on 27 October 2003 applied, by way of an ex parte application, for leave to apply for Judicial Review of the Decision by the Executive Council and the Minister of Natural Resources, the Chief Minister to offer a lease of crown lands under a proposed development agreement to a third part for the benefit of Carnival Cruise Lines and Holland America. Tropical alleged that the offer was without notice to enquiry’ with and without providing an opportunity for consideration of the claims of Tropical. Tropical sought relief by way of Certiorari, Mandamus, Prohibition and damages by way of restriction in the sum of $3,259,243.52.
3. On 27 October, the Chief Justice granted Tropical leave to apply for Judicial Review of the Decision of government to grant 25 acres of land, which it was alleged was promised to Tropical, to a third person. At the hearing of that application, the Chief Justice declined to make an order prohibiting the government from proceeding with the grant pending the hearing of the application.
4. The appellant, Beryn Duncanson, appeared on behalf of Tropical. He drew up a Draft Order subsequent to the hearing of the application in the following term:-
i. The Applicant is hereby given leave to apply for Judicial Review;
ii. Pursuant to Order 53 Rule 3(10) the Court directs stay of proceedings to which the filed application relates;
iii. Costs of today in the cause.
5. This Draft Order was forwarded to the Registrar by the appellant along with a letter dated 28 October 2003. This letter stated inter alia:
“In Chambers yesterday, after the Chief justice’s grant of Leave to the Applicant, I requested of him “the usual direction” on Leave. He indicated the rules of Leave provide automatically various directions. For the purposes of the Draft Order I wish merely to indicate that Rule 3(10) provides for a stay of proceedings where the Relief proved for requests Certiorari or Prohibition, subject to direction by the Court. Hence paragraph 2 of the Draft Order.”
6. By letter dated 28 October 2003 to David Jeremiah, the Attorney-General, the appellant forwarded a copy of the Draft Order which was submitted to the Registrar for signature. The letter contained the following statement in italics:
“Please take note that the effect of the Order is to stay dealing with the disposal of any Crown Lands having to do with parcels in Block 10507/23, 27-30 & 33 or parcels in Block 10508/01 & 15 until determination of the application or further order.”
7. Two things should be noted about this correspondence on the 28 October 2003. Firstly the appellant’s letter to the Registrar was not copied to the Attorney-General, nor was any reference made, in the letter to the Attorney-General, to the letter to the Registrar or its contents. Secondly, the Chief Justice wrote on the letter to the Registrar, a note to the affect that he had refused an Order in staying proceedings.
8. On the 29 October, about 8:14p.m., the appellant sent the Attorney-General a facsimile in which in his penultimate paragraph he pointed out to the Attorney-General that the sealed Order was amended by the Chief Justice when he indicated that he had not granted an injunction in the terms as set out in paragraph 2 of the Draft Order.
9. On 30 December 2003, the Attorney-General wrote to the Secretary of the Bar Council in accordance with the provision of Rule 59 of the Code of Professional Conduct (“the Code”) complaining of breaches of the Code by the appellant. This Rule provides that:
“59. An Attorney shall report to the Bar Council breaches of this Code which come to his knowledge and, which he considers to be serious.”
10. After receipt of the letter from the Attorney-General, an independent attorney-at-law was appointed by the Bar Council to ascertain whether a prima facie case for breach of the Code existed against the appellant.
11. Following this inquiry, the independent attorney-at-law concluded that, in his opinion, the complaint disclosed a prima facie case of professional misconduct contrary to Section of the Legal Professional Ordinance Cap. 18 (“The Ordinance”). Following this finding, the Bar Council referred the complaint to the Chief Justice under Section 24(5) of the Ordinance for disciplinary action under Section 25 thereof.
12. Section 24 (5) of the Ordinance states:
“24 (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.”
Section 25 of the Ordinance empowers the Chief Justice to hear complaints made against attorneys-at-law. This section states:
“25. (1) The Chief Justice shall hear any complaint of professional misconduct against an Attorney brought by the Bar Council under section 24.
(2) Where the Chief Justice after hearing the complaint finds the Attorney guilty of professional misconduct he may—
(a) reprimand the Attorney;
(b) impose a fine not exceeding $20,000 on the Attorney;
(c) suspend the Attorney from practice for such period not exceeding three years; or
(d) disbar the Attorney; and he may in any event order the Attorney to pay the costs of the hearing.”
15. The appellant was charged with four breaches of the Code of Professional Conduct. Firstly the appellant was charged with failing to discharge his duties to the fellow members of the profession with integrity and in accordance with the Code, contrary to Rule 4; secondly, the appellant was accused of failing in his duty to comply with the provision of the Code; thirdly, that he engaged in conduct that was dishonest or which might otherwise bring the profession of an attorney into disrepute contrary to Rule 5(1); and fourthly, that he failed to act with good faith and courtesy in relationship with another attorney, contrary to Rule 62 of the Code.
14. The complaint was based on the following particulars:
(a) On the 28 October 2003, in a letter to the Attorney-General, the appellant knowingly misrepresented the terms of an order made by the Chief Justice on the 27 October on an ex parte application by the appellant; the appellant in the letter stated that the effect of the Order was to stay dealing with or disposing of certain crown lands.
(b) In support of the assertion in the letter of the 28 October 2003 the appellant sent the Attorney-General a Draft Order stating that a stay of proceedings pursuant to Order 53 Rule 3(10) had been granted when the appellant knew that no such stay had been granted.
(c) Alternatively that he failed to notify the Attorney-General of the true position immediately, once it became clear to the appellant that the Court was not prepared to grant an Order in terms of the draft he had submitted.
15. The Rules of the Code that were alleged to have been breached arc set out:
“4. An Attorney must discharge his duties to the court, his client, members of the public and his fellow members of the profession with integrity and in accordance with this Code. In the performance of his duties an Attorney shall not act with inexcusable or undue delay, negligence or neglect.”
“5. It is the duty of every Attorney—
(i) to comply with the provisions of this Code;”
"62. An Attorney shall act with good faith and courtesy in relationship with other Attorneys.”
16. In his Ruling of the 31 May 2005, the Chief Justice deleted from the Draft Order any reference to a stay of proceeding, the appellant accepted that he was obligated “to immediately set the Attorney-General straight”. In deed, the Chief Justice held that he believed that it was incumbent on the appellant to ensure that he made contact with the Attorney-General’s Chambers in order “to correct the contents of his letter of the 28 October at the first reasonable opportunity”. He considered that the appellant had ample opportunity to do so before the morning of the 29 October 2003.
17. The Chief Justice found the following facts:
1. Mr. Duncanson needed to take some action to prevent the disposal of 35 acres of land to a cruise line which he believed was due to take place on the 29 October.
2. He sought to do this by seeking leave for Judicial Review, together with an application for an ex parte interim injunction, which was essential if the disposal on 29th was to be prevented.
3. He failed to obtain that injunction.
4. He then asserted to the Attorney-General in stringent terms that a stay had been granted under Rule 3(10).
5. He did not mention to the Attorney-General any doubts as to whether that was the effect of the Judge’s Order.
6. He did not copy to the Attorney-General the letter sent to the Registrar which voiced such doubts.
7. On the Judge striking a stay from the Draft Order Mr. Duncanson did not inform the Attorney-General of this until the next morning.
18. The Chief Justice rejected the assertion of the appellant that “he genuinely believe that the mention of automatic directions by the Judge meant that he was directing a stay when he had just refused an injunction to that effect”. He concluded that the appellant was not entitled to write to the Attorney-General in the terms as set out in italics of his letter of 28 October. The fact that the appellant wrote the letter in this manner led the Chief Justice to conclude that the appellant “was seeking to deliberately and dishonestly mislead” the Attorney-General as to the contents of the Order. He was of the view that this conclusion was correct because of the failure of the appellant to make immediate contact with the Attorney-General to inform him of the correction which had been made to the Order.
19. The Chief Justice concluded that:
“It follows that I find that he breached Rule 5(11) and therefore 5(1) of the Code. As the essence of my findings is that he acted dishonestly, and did not have as to the true position, rather than negligently believing that a stay had been granted and thereafter negligently failing to immediately correct his error the breaches under Rules 4 and 62 arc inapposite.”………………………………………………………………………………………………………………………………
Having found breaches under Rule 5, I have no hesitation in finding Mr. Duncanson guilty of serious professional misconduct even when using criteria of disgraceful or dishonorable ”
20. In imposing sentence on the appellant whereby he was suspended from practice for a period of 6 months, the Chief Justice reminded the appellant that there was no escaping the fact that he deliberately misled the Attorney-General.
21. The appellant had filed four grounds of appeal including a ground based on the miscarriage of justice and sentence. I do not propose to deal with the issue of miscarriage of justice in as much as I accepted the submission made on behalf of the appellant in respect of finding of professional misconduct and failure to inform the Attorney-General in time.
22. In respect of the finding by the Chief Justice that the appellant was guilty of professional misconduct counsel for the appellant submitted that, on a proper application of the burden of proof and the standard of proof, which is that in criminal cases, no reasonable Tribunal properly directing itself on the evidence could have concluded as the Chief Justice did.
23. Counsel referred to the findings of fact by the Chief Justice which are set out above at paragraph 17.
24. He however stated that several important undisputed facts were not in fact taken into account by the Chief Justice. He cited a number of these:-
1. The basis on which the appellant was acting is that the apprehended signing of an Agreement or consummation of a deal would not take effect until October 29, 2003;
2. The Chief Justice by granting leave had indicated that he was of the opinion that the Appellant’s client had an arguable case;
3. The Chief Justice indicated a willingness to hear an inter partes application at short notice for the purpose of determining whether injunctive relief should be granted;
4. That the Chief Justice had refused an ex parte interlocutory injunction until the hearing of the substantive matter but what was open for consideration was whether there was implied stay until the hearing of an inter partes application;
5. If such stay is granted until the hearing of the inter paries application there would be no purpose in pursuing such as application.
6. The Chief Justice had stated that the Rules provided automatically for various directions;
7. The Chief Justice gave no indication that he would accede to the applicant’s request to be heard in the event of his not accepting the applicant’s interpretation of the Rules with respect to a stay;
8. What the Appellant stated, in those circumstances, was that the effect of the Order was such as to stay dealings as a result of the grant of leave (and the operation of Order 53, Rule 3 (10)).
25. Counsel further submitted that the Chief Justice found that the appellant believed that an agreement with the cruise operator was due to be signed on the 29 October, or at least something was to happen on that date. The Chief Justice then reached the conclusion that the purpose of the appellant’s letter to the Attorney-General in the stork works in italic was to convince him that an Order had been made by the Court which prevented any disposal of the relevant parcels. If such was not the intention, then there would have been no point in writing in that way. The Chief Justice expressed the opinion that if the Attorney-General accepted what the appellant said, it would have placed Tropical in a stronger negotiating position.
26. However, criticism was made of this finding by the Chief Justice to the effect that he did not pay any or any sufficient regard to the fact that the appellant had made it clear at the first opportunity on the 29 October 2003. At the outset of the proceeding before the Chief Justice it was indicated that the respondent accepted that the appellant had “informed Mr. Jeremiah of the true position in regard to the Court Order in the telephone conversation on the morning of October 29, 2003, contrary to Mr. Jeremiah version of events”.
27. Counsel submitted that this conduct on the part of the appellant is inconsistent with the notion that he was trying to prevent the signing of the agreement taking place and is consisting only with the appellant’s realization that his interpretation of the Court’s decision and the effect of the Rules had not been accepted. Counsel argued that it was the appellant himself who brought it to the attention of the Attorney-General that the draft Order was incorrect, and therefore the inference that the appellant was intentionally seeking to deceive the Attorney-General cannot be a reasonable and certainly was not the only reasonable one.
28. It was accepted that the Chief Justice had correctly stated that the burden and standard of proof is similar in criminal cases (see Campbell v Hamlet  3A11 E.R. 1116). However, it was suggested that he failed to apply the principles correctly in that he failed to pay sufficient or any attention to the undisputed facts in favour of the appellant (referred to at paragraph 24) and by drawing the incorrect inferences.
29. Reference was made to rule that when the burden and standard of proof is that of a criminal case and more than one inference is capable of being drawn on the evidence, the inference most favorable to the defendant should be drawn. In support of this proposition we were referred to Hamilton v R (1963) 8 JLR 138 and R v. Alphonse Kenyon (1978) 15 JLR 272.
30. On behalf of the respondent it was submitted that letters were written by the appellant the morning after the ex parte application. He was in fact writing when the events that had transpired were fresh in his mind. It was suggested that if any of the details had become cloudy one would have expected that “an honest person, acting honestly and writing both letters at the same time would give a single version of what had taken place”.
31. It was further submitted on behalf of the respondent that in considering the actions of the appellant against the background of his efforts to restrain the disposal of the land, including the belief that the disposal was likely to take place on the 29 October 2003, the only inference that can be drawn is that the appellant intended to mislead the Attorney-General into believing that he had been granted a stay by the Court.
32. It was contended that on behalf of the respondent that there was nothing inconsistent with the finding by the Chief Justice, on the one hand that the appellant believed that the government, on 29 October, was about to dispose of 35 acres and that he informed the Attorney-General on the 29 October 2003 that the Court Order did not contain a stay provision and the finding, on the other hand, that the purpose of writing to the Attorney-General in the terms which he wrote, was to convince him than an order had been made by the Court preventing any disposal of the relevant parcels.
33. It was said that, not only was there no inconsistency with the finding, but they were capable of supporting a finding beyond reasonable doubt that the appellant intended to mislead the Attorney-General. The appellant’s state of mind, counsel suggested, should be judged at the time of his writing the letter on the 28 October and not when he corrected the Attorney-General on 29 October. Counsel asserted that the letter to the Attorney-General was “couched in absolutes, confirming the grant of a stay” while that to the Registrar was “qualified, doubtful and hopeful of further argument”. It was pointed out that the appellant did not inform the Attorney-General of any doubts.
Based on these circumstances, counsel for the respondent submitted that the only inference to be drawn is one of dishonesty.
34. In dealing with the issue of dishonesty the Court was referred to Boggeln v. Williams  W.L.R 873. In this case the respondent’s electricity supply had been disconnected for non-payment of an outstanding bill. He informed his supplier of electricity that he intended to reconnect the supply and did so. He was convicted in the Magistrate’s Court of “dishonesty using electricity”. On appeal to the Crown Court his appeal was allowed on the finding by the Court that his state of mind at the relevant time was not dishonest. The prosecution appealed this decision.
35. In discussing the appeal Lloyd ] who delivered the first judgment at the invitation of Lord Widgery, Chief Justice stated that the issue of whether a person is acting dishonestly is a question of fact. He indicated that the question “relates to the defendant’s state of mind, and must in my judgment, be answered subjectively: did the defendant have a dishonest state of mind or not?”
36. In deciding with the allegation that the appellant acted dishonestly, it was therefore important for the Chief Justice to have examined the state of mind of the appellant when he wrote the letter to the Attorney-General. The Chief Justice ought to have asked himself whether the appellant had a dishonest mind or not. This question had to be answered subjectively.
37. In dealing with the appellants state of mind at the time of writing the letter to the Attorney- General, the Chief Justice referred to the appellant being asked “how he could have interpreted a reference to automotive direction by the judge as brim agreeing to a stay, when he had just refused an injunction ex parte and had given no specific directions under Order 52.
38. The Chief Justice considered that appellant appeared “far from comfortable in the witness box” and concluded that his answers were unsatisfactory. His Lordship said that at one stage the appellant stated that he read the words “and the court so directs”, appearing in Order 53 Rule 3 (10) as referring to the words preceding them. The appellant conceded that this interpretation could not be correct. Later the appellant said he formed the opinion that the then Chief Justice intended to give a direction effect a stay. Further, he said that if the judge had directed his mind to the provision of Order 53 he would have granted a stay.
39. In rejecting the explanation preferred by the appellant, the Chief Justice held that the alacrity with which the appellant had accepted the deletion of the words in the Order reflects whether he ever believed that the Order had been or would have been granted.
40. Great weight was placed by the Chief Justice on the fact that the appellant was acting on the belief that the Agreement would have been signed on the 29 October and that his intention was to prevent this signing. However, in so doing, the Chief Justice paid very little weight to the stipulated fact that the appellant had informed the Attorney-General on rhe morning of the 29 October that there was in fact no stay. If his intention was to act in a dishonest manner and to deliberately mislead the Attorney-General, he would not have informed him on the 29 October that the Chief Justice, in approving the draft Order that had been submitted, had deleted the reference to a stay being granted.
41 The appellant had asserted that he genuinely believed that by mentioning automatic directions the judge was thereby directing that a stay was granted. This assertion had been rejected by the Chief Justice.
42 In dealing with the events of the morning of the 29 October, it was significant that the Attorney-General in his statement never averted to the conversation between the appellant and himself. He did not deny that the conversation with the appellant had taken place. His statement is silent as to the point at which he first learnt of the statement.
43. With regard to the stipulation, it is reasonable to assume that the Bar Council before agreeing to make the stipulation, would have satisfied itself that the contents of the stipulation were true. It surely cannot be that the Bar Council agreed to the stipulation without being satisfied as to its truth.
44. It is against this background that the appellant’s conduct must be judged. Further, if the appellant genuinely made a mistake in his understanding of the law, this would almost certainly have impacted on the conclusion of the Chief Justice that the appellant had dishonestly and deliberately misled the Attorney-general.
45. I accept that this criticism of the judgment of the Chief Justice is valid. The Bar Council accepted that the appellant’s version of the events of the morning of the 29 October 2003 should be preferred to that of the Attorney-General. It was in this conversation with the Attorney-General that the appellant informed him of the true position. I do not consider that the Chief Justice gave sufficient weight to this assertion. Further I do not accept that this conduct is only consistent with an intention to deliberately and dishonestly mislead the Attorney-General. If adequate weight had been given to the fact that early on the morning of the 29 October the appellant had brought to the attention of the Attorney-General what was the correct position in relation to the Order, it would have been realized that there was in fact nothing to prevent the government from signing any agreement with the cruise operators.
46. The Chief Justice formed the opinion that the appellant’s purpose in writing to the Attorney- General in the terms which he did was to prevent any disposal of the relevant parcels of land. It was this conduct and the failure to inform the Attorney-General on the afternoon of the 28 October 2003 which led him to conclude that the appellant had deliberately and dishonestly mislead the Attorney-General. The evidence shows that he was under the impression that the Agreement would have been signed later that day. In the circumstances I do not accept that the appellant deliberately and dishonestly intended to mislead the Attorney-General.
47. Another significant finding by the Chief Justice was that:
“it was incumbent upon Mr. Duncanson to ensure that he made contact with the Attorney-General’s office to correct the contents of his letter on the 28 October at the first reasonable opportunity, and I do not accept that there was none after 15:30 on 28th until the following morning.”
He pointed out that “and advocate would appreciate the need to priorities the correction of the stringent incorrect assertion that there was a Court Order preventing disposal of the land when in fact such was not the case.
48. In his evidence the appellant stated that he had run into the Chief Minister about 16:30 on the 28 October and that as a result he believed that the Attorney-General was aware of what was going on in the proceedings. There was no evidence to contradict the appellant’s encounter with the Chief Minister.
49. The Chief Justice appeared to have rejected the evidence of the appellant that he had stopped at the Attorney-General’s Chambers after 17:00 but there was no one there. If indeed he did go to the Chambers of the Attorney-General, the Chief justice queried why the appellant did not put a copy through the office door or send a fax or e-mail from his hotel. The Chief Justice expressed the opinion that it would have been reasonable to expect the appellant to have communicated with the Attorney-General on the 28 October if he genuinely intended to do so.
50. Counsel for the appellant submitted that the Chief Justice failed to give any or any sufficient regard to the appellant’s unchallenged evidence that he knew that the Attorney-General had not been misled. In addition, he also failed to take any or any sufficient regard to the fact that the Attorney-General in his evidence made no allegation that he was misled when considering the appropriate period within which the appellant should have acted.
51. It was submitted on behalf of the respondent that, the failure of the appellant to inform the Attorney-General that he had received the approved Draft with the significant correction, was indicative of an intention to mislead. It was said that the only inference to be drawn from his failure to do so was a dishonest intention.
52. I accept the appellants submission that the failure to contact the Attorney-General during one business hour on the 28th, in the circumstances of this case, does not amount to professional misconduct. I accept the criticism that, in concluding as he did, the Chief Justice placed too much reliance on the failure of the appellant to leave a letter at the Attorney-General’s Chambers which were closed, or to send a fax or e-mail when there was no evidence before the Court that had he done so, the Attorney-General would have known that the paragraph relating to stay had been deleted prior to the conversation with the appellant which occurred earlier on the morning of the 29 October. Nothing was before the Court to support such a conclusion. I do not in the circumstances agree with the conclusion that he had ample opportunity before the morning of the 29th to bring to the attention of the Attorney-General that no stay had been granted and that the government was free to deal with the land in question.
53. As stated earlier, I do not consider it necessary to deal in any detail with the ground alleging a miscarriage of justice. It is sufficient to state that I did not consider that it contained any merit.
54. It was for these reasons that I agreed that the appeal should be allowed.
55. Although the appellant was successful in his appeal this Court ordered him to pay the costs of the investigation and the hearing before the Chief Justice. In my view, the proceedings were properly instituted by the Bar Council. It must be remembered that the Bar Council is funded by the subscription of members of the Bar Association. It would be wrong in my view, to require the Bar Council to bear the costs of proceedings which, as I have already stated, were properly brought. It is for this same reason, that even though the appellant is successful in his appeal, the Court considered that, in the circumstances, there should be no order as to costs.