Jersey Unreported Judgments

[2011]JRC002

royal court

(Samedi Division)

6^th January 2011

Before     :

Sir Christopher Pitchers, Commissioner, sitting alone.

 

IN THE MATTER OF MM

Advocate J. D. Kelleher for the Appellant.

Advocate S. E. Fitz for the First Respondent.

The Second Respondent did not appear was not represented.

judgment

the commissioner:

Introduction

1.        This is an application for costs by the Appellant against the First Respondent following the allowing of his appeal by the Superior Number of the Royal Court against the decision of a Disciplinary Committee of the Law Society who had found him guilty of professional misconduct.  Although their title might suggest that the Committee is a separate legal entity from the Law Society, they are not.  The application is in reality against the Law Society.  The application is not against the individual members of the panel nor of the Committee.  The Second Respondent ("the Complainant") has taken no part in the appeal nor in this application.  It should also be noted that The Law Society of Jersey Law 2005 refers to the full group of those eligible to sit on disciplinary hearings as the "pane" and the group of three members who sit at the hearing as the "Committee" rather than the other way round. 

2.        The appeal was heard by Sir Richard Tucker, Commissioner and Jurats.  However, the learned Commissioner recused himself from hearing the application for costs which was accordingly relisted before me. 

3.        The disciplinary proceedings were brought following an unsuccessful attempt by a wife to set aside a consent order made in ancillary proceedings.  The Appellant had represented the wife.  The Complainant was the husband against whom the proceedings had been brought.  The application failed comprehensively and the learned Commissioner hearing the application with jurats was very critical of the amount of the costs incurred in pursuing it.  He did not, however, report the Appellant to the Law Society. 

Can an order for costs be made against the Law Society?

4.        Advocate Fitz argues, as a preliminary point, that, whatever the merits, I am barred by statute from making an order for costs. 

5.        Article 24(3)(b) of The Law Society of Jersey Law 2005 provides that:-

"24(3)  On hearing the appeal, the Royal Court -

(a)       may confirm or reverse the decision of the Disciplinary Committee; and

(b)       make any order as to the costs of the proceedings before the Royal Court that it thinks fit."

6.        This appears to give an unfettered discretion to the Court in the award of costs.  Advocate Fitz, however, argues that this Article must be read subject to Article 31 of the 2005 Law:-

"31 Protection of persons acting in good faith.

No person shall incur criminal or civil liability in respect of any act or omission by the person in the exercise or intended exercise of any disciplinary function conferred on him or her by or under this Part unless it is proved that the act or omission was in bad faith."

7.        In my judgment, this argument is unsound.  Firstly, although an order for costs may be properly regarded as civil liability, had the drafters of the Law wished to fetter the discretion of the Royal Court in awarding costs in this way, they could readily have done so by including qualifying words in Article 24(3)(b) such as "subject to Article 31".  They must be taken to have chosen not to do so.  Second, the purpose of Article 31 is clear.  It is to protect persons in the sense of individuals from civil action, for example in defamation, if they have acted in good faith in their conduct of disciplinary proceedings.  

What is the test?

8.        The general principles that the Court should apply in considering costs against a regulatory body are not in dispute.  

9.        The normal approach of costs following the event does not apply to regulatory bodies.  The English Court of Appeal said in Baxendale-Walker-v-Law Society [2007] EWCA Civ 233:-

"Disciplinary proceedings supervise the proper discharge by solicitors of their professional obligations, and guard the public interest..... by ensuring that high professional standards are maintained, and, when necessary, vindicated.  Although.... it is true that the Law Society is not obliged to bring disciplinary proceedings, if it is to perform these functions and safeguard standards, the Tribunal is dependent on the Law Society to bring properly justified complaints of professional misconduct to its attention.  Accordingly, the Law Society has an independent obligation of its own to ensure that the Tribunal is enabled to fulfil its statutory responsibilities.  The exercise of this regulatory function places the Law Society in a wholly different position to that of a party to ordinary civil litigation.  The normal approach to costs decisions in such litigation - dealing with it very broadly, that properly incurred costs should follow the "event" and be paid by the unsuccessful party - would appear to have no direct application to disciplinary proceedings against a solicitor........... The "event" is simply one factor for consideration.  It is not a starting point.  There is no assumption that an order for costs in favour of a solicitor who has successfully defeated an allegation of professional misconduct will automatically follow.  One crucial feature which should inform the Tribunal's costs decision is that the proceedings were brought by the Law Society in exercise of its regulatory responsibility, in the public interest and the maintenance of proper professional standards.  For the Law Society to be exposed to the risk of an adverse costs order simply because properly brought proceedings were unsuccessful might have a chilling effect on the exercise of its regulatory obligations, to the public disadvantage."

10.      However, an order for costs can be made against a regulator but the test is more stringent.  In City of Bradford Metropolitan District Council-v-Booth [2000] COD 338, Lord Bingham of Cornhill CJ, giving the principal judgment, distilled the relevant principles as follows:-

"I would accordingly hold that the proper approach to questions of this kind can for convenience be summarised in three propositions:-

1. Section 64(1) confers a discretion upon a magistrates' court to make such order as to costs as it thinks just and reasonable.  That provision applies both to the quantum of the costs (if any) to be paid, but also as to the party (if any) which should pay them.  

2. What the court will think just and reasonable will depend on all the relevant facts and circumstances of the case before the court.  The court may think it just and reasonable that costs should follow that event, but need not think so in all cases covered by the subsection. 

3. Where a Complainant has successfully challenged before justices an administrative decision made by a police or regulatory authority acting honestly, reasonably, properly and on grounds that reasonably appeared to be sound, in exercise of its public duty, the court should consider, in addition to any other relevant fact or circumstances, both (i) the financial prejudice to the particular Complainant in the particular circumstances if an order for costs is not made in his favour, and (ii) the need to encourage public authorities to make and stand by honest, reasonable and apparently sound administrative decisions made in the public interest without fear of exposure to undue financial prejudice if the decision is successfully challenged."

11.      In Baxendale, the court approved the decision of Jackson J in Gorlov-v-the Institute of Chartered Accountants in England and Wales [2001] EWHC Admin 220 and in particular his application of Lord Bingham's propositions to the application for costs against a regulator.  Of the case itself, Jackson J said, in awarding costs:-

"The disciplinary proceedings brought by the Institute were a shambles from start to finish........ Mistake was piled upon mistake. In my view, the Institute's conduct was unreasonable."

Advocate Kelleher argues that that is an apt description of the present case. 

12.      A similar approach has been taken in Jersey.  In J.F.S.C-v-A P Black (Jersey) Limited [2007] JLR 1, (this judgment was given after Baxendale had been decided in the Divisional Court but before the decision in the Court of Appeal from which I have quoted above) Mr Howard Page QC, Commissioner, said:-

"35 In these sparsely-charted waters, it is therefore with some hesitation that I express the following conclusions, particularly in circumstances where only one of the parties before me was legally represented at the hearing itself and the issue is of some general importance. 

(i) On any view, the idea that bodies engaged in performing public-interest functions must in all cases "take [their] chance on costs, just like any other litigant in these courts," as espoused by the members of the English Court of Appeal in Southbourne ([1993] 1 W.L.R. at 250), is at odds with the trend of thinking in the later cases discussed above and would appear to be difficult to reconcile with the decision of the Deputy Bailiff in this court in Ani.  Its rigidity would, in any event, sit uneasily with the general approach of the Royal Court to the exercise of discretion in matters of costs and is not one that I would want to follow unless constrained to do so (which I am not). 

(ii) The fact that the unsuccessful or discontinuing party has been engaged in the proceedings in furtherance of its public-interest functions must, to my mind, be a relevant factor on the issue of costs.  But the matter is best dealt with simply on that basis-as one element relevant to the court's exercise of discretion in any particular case-rather than treating that body's status as automatically giving rise to a hard-and-fast special rule, or, for that matter, even a prima facie rule.  I say this because, in terms of principle, the justice of the matter can be argued with equal force both ways, as the conflicting English decisions show, and it is quite wrong to be prescriptive on the issue. 

(iii) The approach adopted by Lord Bingham in Bradford, understood in the way that I have suggested, is in my view the proper and fair one and is moreover in keeping with the governing principles in relation to the award of costs in the Royal Court, as summarized in Watkins-v-Egglishaw( [2002] JLR 1, at paragraph 7)."

13.      Therefore, in summary.  The mere fact that the appeal was successful is not a starting point.  Among the factors for the Court to consider in making an order that is just and reasonable are the financial prejudice to the Appellant if no order for costs is made and the need to support the Law Society in bringing regulatory proceedings in the public interest where they have taken sound and reasonable decisions even though ultimately the proceedings have been unsuccessful.  An order for costs may be appropriate where the proceedings, though brought in good faith, were "a shambles from start to finish" and the Society's conduct, though not in bad faith, was unreasonable. 

What is the Law Society's duty?

14.      I pose the question in this way because the decision that I have to take as to costs has a different focus from the decision that the Royal Court had to take in relation to the appeal itself.  They were concerned with examining the process before the Committee and deciding whether their decision was sustainable.  I have to apply the test that I have formulated at paragraph 12 above which involves looking at the decision-making of the Society in processing the complaint and setting up the tribunal.  Inherent in the proposition that costs do not automatically follow the event in regulatory proceedings must be the common-sense principle that the Law Society cannot guarantee that the tribunal will get it right.  The complaint may have been dealt with impeccably and the tribunal set up wholly in accordance with the rules of natural justice but the tribunal may still come to a decision that is appealably wrong. 

15.      At the heart of this question is the statement of the Royal Court in its judgment at paragraph 26 that the proceedings are quasi-judicial and the rules of natural justice should be applied.  This principle should hardly come as a surprise to lawyers.  It is, in my judgment, no answer for the Society to argue that the Law was new - it was - and poorly drafted - it is.  Of course, the Society had to obey the statute whether its provisions are well thought out or not but, as the new Law Society of Jersey (Disciplinary Proceedings) Rules 2010, demonstrate, it was perfectly possible to draft sensible procedural rules within the confines of the Law of 2005.  Even without those Rules in place, the Law did not prevent the Society acting in accordance with the rules of natural justice. 

16.      In my judgment, there are two broad areas where the Society has a duty to act in accordance with the rules of natural justice.  Firstly, the Society must ensure that the advocate against whom the proceedings are brought knows clearly what the allegations are that he or she must meet and the evidence on which it is based.  Secondly, the Society must establish a tribunal in a way which ensures, so far as it lies within the Society's power, that due process is observed.  Their duty is not discharged simply by appointing a Committee and letting them get on with it as best they may.  If the Society institutes disciplinary proceedings, it must provide the tribunal with a procedural framework which complies with the rules of natural justice and, so far as possible, ensures that there will be procedural fairness. 

17.      As to the first duty, the provisions of the Law of 2005 clearly allow the Society to discharge it properly.  The Law provides by Article 21:-

"21 Action on receipt of complaints

(1) If the Law Society receives a complaint alleging that a practitioner is guilty of professional misconduct, the President shall promptly take the following action -

(a) if the complaint is not made in writing, the President shall cause it to be stated in writing;

..........

(2) For the purposes of paragraph (1)(a) -

(a) the President may require the Complainant to state the complaint in writing; or

(b) the President may cause it to be stated in writing on the Complainant's behalf,

as the President thinks fit, having regard to the Complainant's circumstances. 

      

(3) Notwithstanding paragraph (1), if the President is satisfied that a complaint does not relate to professional misconduct or is vexatious, frivolous or trivial, he or she may refuse to appoint a Disciplinary Committee and to refer the complaint to it."

18.      Sub-paragraph (3) is drafted as if all complaints will be wholly admissible or wholly inadmissible.  This will frequently not be the case as the present complaint demonstrates.  Thus under sub-paragraph (3), the President must examine the complaint to see if any of the allegations made should not be put before a Disciplinary Committee for one of the stated reasons.  By necessary implication in order to ensure due process, the power under (2)(b) to cause the complaint to be put in writing on behalf of the Complainant must mean that it must be put in a form that will enable the Advocate to know what allegations he faces and what case he is required to answer.  The then existing Rules made provision for this although it related to the need for the Committee to understand the complaint rather than the Advocate.  Rule IV 2:-

"The written statement of complaint shall....clearly set out in a manner which may readily be understood by the Disciplinary Committee all of the allegations of professional misconduct alleged against the practitioner together with all the facts in support thereof and, where appropriate, reference to any documents upon which the Complainant may rely."

19.      The second duty flows from the fact that the proceedings are quasi-judicial and from the Society's general obligation to ensure due process and the application of the rules of natural justice.  The Law, in Articles 22 and 23, gives limited help.  In particular, it says nothing about the continuing role of the Law Society in the hearing and, having required the President to appoint one of the lay members as chair of the Committee, it makes no provision for the Committee to receive legal advice.  It does make provision, under Article 34, for the Royal Court "to make Rules regulating and prescribing procedures to be followed ....(a) by disciplinary committees."  The new Rules were made under this Article.  The old Rules were drafted by the Law Society themselves and not promulgated by the Royal Court. 

20.      However it is done, a disciplinary tribunal set up in accordance with the rules of natural justice and in a way which ensures due process must have access in some form or another to legal advice, whether in writing or oral.  A group of lay men and women cannot be expected to conduct a quasi-judicial process without effective legal help.  It is not enough, as this case amply demonstrates, to have a legally qualified member of the Committee if there are no rules requiring the chair to defer to him or her on matters of law.  Nor is it enough that the parties are represented by Advocates.  These are adversarial proceedings and an Advocate for one of the parties cannot be expected to give impartial advice to the Committee.  That said, I feel bound to comment that one would have hoped that the legally qualified Committee member and the advocate for the Complainant who had an overriding duty to the Court might have been pro-active in restraining some of the more extraordinary things that took place at the hearing particularly in the face of well-founded objections by the advocate for the Appellant. 

21.      There are a number of steps which could be taken in different combinations to provide the legal advice which due process requires.  One, a legally qualified chair, was ruled out by the Law of 2005.  Another, referring the case to the Attorney-General who can then refer it for a hearing by the Royal Court, was not followed.  It may be that this is considered very much a matter of last resort.  A very common form of process in professional disciplinary proceedings (and arguably best practice) is to have a legal adviser appointed by the professional body to advise the tribunal on the law and procedure as it arises during the hearing, that person not being a member of the decision making committee.  The new Rules do not make provision for this.  It was not relevant for me to be told why. 

22.      The new Rules demonstrate that substantial procedural fairness can be ensured under the Law of 2005.  They provide a much more detailed procedural framework.  They allow the President to appoint a lawyer to assist him in the preliminary process.  They provide for the Law Society to present the case to the Committee.  They make express the duty that I have implied in this section of my judgment.  They allow directions to be given in more complex cases.  There is much greater clarity as to what will happen at the hearing. 

23.      I have one caveat.  There is no provision for independent legal advice.  Although the Advocate for the Law Society will assist the Committee and will no doubt act with the fairness and objectivity that one would expect from a prosecutor in a criminal case, situations will arise where there is legitimate difference of opinion between the Advocates as to, for example, admissibility of evidence.  In such situations, the Committee chair will need to turn to the legally qualified member for guidance on the law. 

24.      In particular, I can see problems arising if Rule 9, providing that "the strict rules of evidence shall not apply before a Disciplinary Committee unless the Committee directs otherwise", is not carefully applied.  This is a sensible provision when used, for example, to mitigate the strictness of the rule against hearsay or the "best evidence" rule but cannot be applied in an absolutely unrestrained fashion. 

25.      Having dealt with the duties of the Law Society in disciplinary proceedings, I turn to consider the extent to which those duties were fulfilled. 

Preliminary consideration of the complaint

26.      I should, as an important preliminary point, make clear that I refer hereafter to the President carrying out or not carrying out various actions.  I do so because the Law of 2005 places the responsibility on him.  It may well be that he, in fact, delegated some or all of the tasks to others.  I have no way of knowing. 

27.      The President's first task under Article 21(3) was to see whether the complaint was unrelated to professional misconduct or was vexatious, frivolous or trivial.  Had he done so, it would have been apparent that some at least of the allegations were none of these so he was clearly right not to dismiss the whole complaint summarily.  There were allegations which justified a reference to the Disciplinary Committee.  However, that was only the beginning of the discharge of his duty at this stage. 

28.      The President's statutory duty of sifting the complaint and providing the Appellant with sufficient detail of the case against him to comply with the rules of natural justice must be considered against the background of The Law Society of Jersey Code of Conduct.  The relevant provisions in this case are as follows:-

"2. Standards

"It is the duty of every member at all times to uphold the dignity and high ethical and technical standards of the legal profession, and to adhere to the terms of the oath sworn before the Royal Court.  A member has an overriding duty to the Court to ensure in the public interest that proper and efficient administration of justice is achieved.  A member must assist the Court in the administration of justice and must not deceive or knowingly or recklessly mislead the Court."

For example:-

[there then follow 12 examples of the duty under this article, none of which is relevant to the present case]

"18. Malicious Proceedings, etc.

A member shall guard against instituting proceedings on behalf of a client which on good and reasonable grounds such member considers to be instituted only for the purpose of gratifying the client's anger, ill-will or malice towards another person or persons.  In particular, a member shall at all times guard against asking questions in litigation, which are only intended to insult or annoy either a witness or any other person and should exercise discretion and judgement both as to the substance and the form of questions put in cross-examination which go only to the credit of the witness.  A member shall not include in any pleading an allegation of fraud unless such member has possession of reasonably credible material from which a prima facie case of fraud can be established. 

19. Duty to assist Court

(1) A member shall bear in mind that whilst an advocate's primary function is to present the case for a client to its best advantage, there is no requirement to win the case at all costs.  The fundamental principle to guide the member is that an advocate's function is to assist the Court to reach a just decision on the facts properly adduced before it in accordance with a correct interpretation of the law. 

[........]

20. Duty as to Evidence

[.........]

A member shall, if reasonably possible, avoid the naming in open Court of third parties whose characters would thereby be impugned. 

A member shall not by assertion in a speech impugn a witness where there has been an opportunity to cross-examine unless in such cross-examination the witness has had opportunity to answer the allegation."

29.      The complaint was instituted by a letter from the Complainant dated 12 August, 2008, accompanied by a copy of the judgment of the Royal Court.  As one would expect from a professional man, the letter is understandable and articulately sets out his grievances.  However, the Complainant is not a lawyer so it is not to be wondered at that the letter does not identify which of the allegations are capable of amounting to professional misconduct nor, in relation to those that are, which paragraphs of the Code of Conduct are said to have been breached and in what specific respects.  It was therefore absolutely essential, as part of the preliminary sifting process, that the President analyse the complaint and see which allegations could be the subject of a disciplinary enquiry and which could not.  That process would also involve identifying which aspects of the Code of Conduct had potentially been breached and which allegations needed to be the subject of further enquiry so that they could be properly particularised.  Only when that had been done would the President have discharged this part of his statutory duty.  

30.      The three broad complaints in the letter are as follows:-

(i)        That the Appellant was acting on a no win, no fee basis;

(ii)       That he produced vast amounts of paperwork for the sole purpose of generating huge fees for himself;

(iii)      His "bad conduct'. 

31.      Of these, the first could never have been the subject of misconduct proceedings.  As for the second, in fairness to the Appellant, some attempt had to be made to provide particulars.  Which part of the case was said to have been pursued with this objective?

32.      After these three numbered allegations, the body of the letter sets out what are described as the Complainant's "grounds of complaint".  As well as giving slightly more detail as to a. and b. above, the letter contains a number of other complaints presumably intended as illustrations of the bad conduct alleged.  Only one can readily be identified as undoubtedly misconduct if established and clearly attributed to a particular provision of the Code, namely that the allegation that the Appellant, contrary to paragraph 18, alleged fraud against the Complainant when he did not possess credible material to do so.  Even this needed more particulars.  Was it alleged that he never had sufficient material or that, having made a reasonable allegation, he persisted in it after it became clear that it could not be sustained?

33.      Several of the other complaints relate to the Appellant's treatment of witnesses both in and out of court.  Some might have been capable of being breaches of paragraph 18 or 20, some might have been merely the product of robust but proper adversarial advocacy.  It was essential to identify which were alleged to be which and to indicate to the Appellant which matters were relied on as misconduct.  The same could be said of allegations of harassment of the Complainant though this seems to be part of the allegation of running up unnecessary costs. 

34.      Two specific allegations illustrate the difficulty that the Appellant faced if the complaint was not properly particularised. 

(i)        One complaint was that the Appellant had employed a forensic accountant which had led to the Complainant incurring substantial costs in answering the accountant's questions.  Leave to instruct the accountant had been given by the Court at a preliminary hearing.  It is true that the Commissioner was critical in the Royal Court's judgment of the costs that were incurred in what he described as "a speculative venture without any real evidence to support what is on any analysis a most serious allegation" [of dishonestly concealing income].  On what basis in these circumstances was the allegation of professional misconduct put?  Is it said that the mere fact of employing such an expert witness in this kind of case was misconduct or is this part of the complaint of an improperly pursued allegation of fraud? 

(ii)       There was a specific allegation in relation to the late production of a file, "miraculously produced" according to the Complainant.  Was this an allegation of deliberately misleading the court by intentionally not disclosing relevant documents until late in the proceedings which certainly could be misconduct or incompetently conducted disclosure which could not? 

35.      After a delay of five months, disciplinary proceedings were commenced by the sending of a letter from the administrator of the Disciplinary Committee.  It was accompanied simply by the letter from the Complainant with no particulars of how the case was put against the Appellant and no supporting documentation save for the transcript of the earlier hearing.  A hearing date was set for eight weeks time and the Appellant was given four weeks to prepare a counter-statement.  There was, thus, no attempt to carry out the sifting process provided for by the Law of 2005 and no attempt to put the allegations into a form which would meet the requirements of natural justice.  This was not only a serious failure in itself but played a significant part in the disastrous conduct of the hearing itself. 

The Committee proceedings

36.      I have already set out my views as to the duty of the Law Society in setting up disciplinary proceedings.  I have drawn attention to the fact that there was, in my judgment, an obligation to provide the Committee with legal advice so as to ensure procedural fairness.  The chairman was a lay member of the Committee.  There was a legal member of the Committee but she, as the judgment of the Royal Court in this appeal makes clear, had no experience of litigation or how quasi-judicial proceedings should be conducted.  Her limited interventions demonstrate that that is so.  The Chairman and his colleagues were presented with the letter of complaint and received a transcript of the learned Commissioner's judgment in the application to set aside the consent order.  They were given no other assistance whatsoever.  Even the Summary of Procedure was of little help in enabling a lay person to navigate the potentially difficult waters of a quasi-judicial hearing.  There was thus an equally clear failure of duty by the Law Society in the setting up of the Disciplinary Committee.  

37.      I shall turn next to examine how these failures of duty affected the course that the proceedings took since it is this question that needs to be asked in considering the issue of costs.  I re-iterate that the Law Society should not be penalised in costs where matters went wrong because of errors which the Committee would have made even had the Law Society done all that it should.  In examining what happened, it is inevitable that I shall be, as the Royal Court was, highly critical of the proceedings.  In fairness to the Chairman of the Committee, it should not be forgotten that he was given none of the support that a layman could reasonably expect in carrying out the anxious task of deciding whether a professional man should be disciplined and possibly suspended from practice.  He was expected to navigate through rocky waters in the dark with no experience as a helmsman and with no chart. 

38.      In his written submissions, Advocate Kelleher listed ten matters extrapolated from the judgment of the Royal Court hearing the appeal, where the Court commented critically on what had happened during the proceedings.  It is not disputed that they represent a fair summary of the Court's findings.  I will deal with them in order. 

39.      The first five points can be taken together:-

"a.       The President of the Law Society failed to appoint a member of the Law Society to reduce the complaint to writing. 

b.        There were no properly formulated charges. 

c.        The Appellant did not have specific notice of the exact charges that he had to face. 

d.        The Disciplinary Committee had no guidance on the precise issues before it. 

e.        The Disciplinary Committee did not include anyone with experience of litigation or knowledge of how a quasi-judicial hearing should be conducted." 

40.      I have already dealt with these failures.  Together and separately they constituted a failure by the Law Society to fulfil their obligations under Article 21 of the Law of 2005 and their general obligation to comply with the rules of natural justice.  I need to add that the deficiencies identified at b, c and d were immediately drawn to the attention of the Committee by Advocate Kelleher in his first letter to the Committee dated 16 March, 2009, in which he indicated that it was difficult to respond on behalf of the Appellant because the allegations were "vague, imprecise and without reference to any evidence in support of the assertions".  He ended by saying that it was "difficult to envisage how any meaningful hearing could take place without any precise particulars or evidence."  The case was now with the Committee so it was the Chairman who replied refusing an adjournment. 

41.      "f.      The Disciplinary Committee was confused about the distinction between Counsel and witnesses and between submissions and oral testimony."  This finding relates to the most extraordinary event of all during the proceedings.  At the beginning of the hearing, everybody present was invited to take the witness oath, including the advocates.  Advocate Kelleher understandably demurred on the grounds that he could not give evidence.  However, the Advocate for the Complainant did take the oath and took up the offer of the Chairman effectively to give the Complainant's evidence for him.  She then, for 15 pages of the transcript, did so, mingling argument with evidence.  Then the Complainant gave some evidence and then his Advocate started again.  The following passage then ensued [emphases added]:-

"Chairman:- Advocate Kelleher would you like to cross-examine Advocate [ ] on the statement she has issued so far and obviously you can ask [the Complainant] any questions on his evidence. 

Advocate. Kelleher:- Well sir, I don't think I can cross-examine Advocate [ ] because she is not a witness. 

Chairman:- No, well I mean on her evidence."

42.      The only thing that makes me hesitate from saying that such a total misunderstanding of counsel's role in any proceedings could not possibly have survived the presence of legal advice for the Committee is the fact that two of the three lawyers present seem to have seen nothing wrong with what happened.  However, I have no doubt had any of the steps to which I have referred in paragraphs 18-20 above been taken this would not have happened.  This is an important finding because, in my judgment, even if the rest of the hearing had been impeccably conducted, this error would have been sufficient on its own to lead to the appeal being allowed. 

43.      "g. The day before the hearing the Disciplinary Committee had indicated that it would hear oral submissions only at the hearing whereas in fact it also heard oral testimony."  The beginning of this problem arose from the service by the solicitors for the Complainant of a bundle of documents less than 24 hours before the hearing.  Some were well-known to the Appellant's advisors but some were not.  Advocate Kelleher, understandably, emailed the Law Society complaining of the service of documents not only late but contrary to Committee's procedural rules.  He asked, again understandably, for an adjournment of the hearing.  In refusing the request for an adjournment, the Committee Chairman, through the Committee Administrator, said that the Committee "will hear oral submissions only". 

44.      To a lawyer, those words in their context are absolutely clear.  They mean that at the hearing the following day, the Committee will not hear oral evidence but will hear oral submissions on the papers already before them.  That was not what the words were intended to mean.  Towards the end of the hearing, the Chairman said this:-

[Transcript p95]:-

"I will admit the error in the interpretation of oral submission.  We meant that we did not require huge bundles of documentation that we had already read because we weren't going to go over it again; that was the original thing."

45.      Advocate Kelleher was entitled to approach the hearing on the basis that, rightly or wrongly (and it was plainly the latter), it was the Committee's intention not to permit witnesses to give oral testimony.  In fact, in the circumstances that I have set out above, the Committee immediately swore witnesses to give evidence on oath.  Had the Committee had adequate legal advice, or indeed detailed rules of procedure, this inaccurate use of language by the lay chairman would not have taken place. 

46.      "h. The reasons for the Disciplinary Committee's finding against the Appellant were "not easily discernible".  The reasons given were inadequate.  The conclusions were stated without any indication of the route by which those conclusions had been reached.  Normally, the giving of inadequate reasons would fall squarely into the category of an appealable error for which the Law Society cannot be held responsible.  Whatever form the legal advice it receives may take, the reasons must be written by the Committee.  It would be very relevant to the decision as to whether the findings of the Committee could be upheld on appeal but not relevant to the question of whether the Law Society should bear the costs of the appeal. 

47.      However, in this case, the inadequacy of the reasons is a symptom of the fundamental failures in the process.  Because the allegations were never properly particularised, the Committee had no "road map" which might have enabled them to focus the hearing and their decision-making properly.  The hearing contained evidence that was both admissible and inadmissible, relevant and irrelevant.  The Committee came to conclusions but did not indicate what evidence had led to particular conclusions nor what their findings were where the evidence was disputed. 

48.      "i. The Disciplinary Committee did not direct itself on the burden or standard of proof."  After receiving the decision of the Committee, Advocate Kelleher wrote to them inviting them to give more detailed reasons and indicate what burden and standard of proof they had applied.  In refusing to do either, the chairman replied that:-

"the private hearing required by the 2005 Law is not a court proceeding in which either the burden or standard of proof is laid down, or required to be determined by the Law, Bye Laws or the Rules adopted by the Disciplinary Committee, in conjunction with the Law Society Committee."

49.      This is simply an illustration of the essential requirement for proper legal help for the lay chairman.  In quasi-judicial proceedings, it is impossible to apply no burden or standard of proof.  Ironically, the chairman could have referred to the first line of paragraph 4.3 of the Committee decision ("The Committee heard sufficient credible evidence to make the following findings of fact of bad conduct") and argued that that by implication showed they had applied the correct burden and standard of proof.  Either clear rules or legal advice would have enabled this obvious mistake to be avoided.  As it was, the comment contributed to the impression that the Committee did not know what their true task was nor how to carry it out. 

50.      "j. The Appellant was not given an opportunity of addressing the Disciplinary Committee on the imposition of a sanction or the nature of the sanction."  He should have been but this is another illustration of the consequences of the absence of procedural advice.  It would not have been of fundamental importance if there were no other grounds of complaint because the Royal Court, on appeal, could have heard submissions and decided on the correct sanction. 

51.      The Disciplinary Committee sought to impose a sanction which it was not empowered to make.  Art 23(1)(b) makes provision for the Committee, if they find the complaint proved, to issue a public reprimand or a private rebuke.  The Committee purported to impose the sanction of a public rebuke.  This is really no more than a demonstration that everything that could go wrong with the hearing did so.  The important difference between the two sanctions is between the public and the private nature of them.  I am not sure that there is a difference between a rebuke and a reprimand.  The Shorter OED gives "reprimand" as one of the definitions of a rebuke and "a sharp rebuke" as one of the definitions of a reprimand.  This could have been put right on appeal. 

52.      In addition to the above matters, Advocate Kelleher argues that the Law Society needlessly added to the costs of the appeal in that they first sought to appear in the appeal as a Respondent, than sought to appoint an amicus and then sought to intervene but not appear as a Respondent.  As to this point, the Royal Court ruled after argument that the Law Society was properly a Respondent to an appeal.  That was not clear from the Act although it followed clearly as a matter of general principle as the Royal Court found.  In my judgment, it was not unreasonable for the Law Society to have argued this point as a preliminary matter in the appeal. 

53.      Advocate Kelleher also argues that the Law Society should have conceded the appeal and not sought to uphold the misconduct findings.  It is certainly true that any objective assessment of what had happened before and during the hearing could only have led to the conclusion that the appeal was bound to be allowed.  On the other hand, it is asking a great deal of any Respondent simply to give in.  In any event, I do not think that the Law Society could have played no further part in the appeal.  They could not leave the Court without assistance.  Further, there was a real possibility that the Royal Court might have embarked on a re-hearing of the disciplinary proceedings which would have required their attendance.  In my judgment, their conduct at the appeal was not unreasonable.  

Conclusion

54.      I have set out in detail my judgment that these disciplinary proceedings were fundamentally flawed as a result of very significant failures of duty by the Law Society both in processing the complaint and setting up the Committee.  Advocate Kelleher submits that the proceedings are properly described as a shambles from start to finish.  I agree.  If ever there is to be a case where the costs of the appeal against the decision of a Disciplinary Committee should be awarded against the Law Society, it is this case.  I am unimpressed with the argument that this may have a chilling effect on the Law Society in the exercise of its regulatory function.  The case has already had the beneficial outcome that much better procedural rules have been adopted.  If it has the further effect that those responsible in the Society for bringing disciplinary proceedings take care to discharge their duty properly in the future, so much the better. 

55.      I have considered the further submission that costs should be awarded on an indemnity basis.  In my judgment, that would be going too far.  There is no question of the Law Society acting in bad faith.  The threshold for the awarding of costs at all in this situation is a high one and requires a finding, which I have made, that the Law Society's conduct was unreasonable. 

56.      Accordingly I order that the Appellant's cost of the appeal be paid by the First Respondent to be taxed if not agreed. 

Authorities

Law Society of Jersey Law 2005.

Baxendale-Walker-v-Law Society [2007] EWCA Civ 233.

City of Bradford Metropolitan District Council-v-Booth [2000] COD 338.

Gorlov-v-the Institute of Chartered Accountants in England and Wales [2001] EWHC Admin 220.

J.F.S.C-v-A P Black (Jersey) Limited [2007] JLR 1.

Law Society of Jersey (Disciplinary Proceedings) Rules 2010.

The Law Society of Jersey Code of Conduct.