1. Joanne Rowan 2. Paul Wheeler Complainants v Bryan Stephen Respondent

• Jurisdiction: St Lucia
• Judge: Wilkinson J.
• Judgment Date: 17 November 2010
• Judgment citation (vLex): [2010] ECSC J1112-1
• Court: Court of Appeal (Saint Lucia)
• Docket Number: COMPLAINT NO. 5 OF 2006
• Date: 17 November 2010

[2010] ECSC J1112-1

COMPLAINT NO. 5 OF 2006

In the Matter of a Complaint Against Bryan Stephen, Attorney-at-Law

and

In the Matter of a Reference by the Disciplinary Committee to the High Court for Determination before a single Judge in Chambers

and

In the Matter of Sections 37 and 39(3) of the Legal Profession Act Cap. 2.04 of the Revised Laws of Saint Lucia 2001

1. Joanne Rowan

2. Paul Wheeler

Complainants

and

Bryan Stephen

Respondent

APPEARANCES:

Mr. Horace Fraser for Mr. Bryan Stephen.

Mr. Dexter Theodore holding a watching brief for the Disciplinary Committee

Ms. Rene St. Rose holding a watching brief for Mr. Paul Wheeler and Ms. Joanne Rowan

DECISION

Wilkinson J.

1 The Disciplinary Committee being of the opinion that based on the facts adduced by it, that a case had been made out against Mr. Bryan Stephen which justified punishment more severe than that which the Disciplinary Committee could impose, referred the matter pursuant to section 39(3) of the Legal Profession Act Cap. 2.04 1 to the High Court for the imposition of punishment.

2 The reference first came on before the Honourable Justice Ephraim Georges (Ag) on 9 ^th October 2008, and he made the following order:

"1. The Registrar of the High Court do remove the name of BRYAN STEPHEN from the Roll of Attorneys-at-Law of Saint Lucia forthwith; and

2. That copies of this Order be published in consecutive issues of two (2) local newspapers circulating in the State as well as in the Official Gazette; and

3. That notice of the said publication be screened in a prominent place in the Registry of the High Court and other Courts in Saint Lucia."

3 At 14 ^th April 2010, Mr. Stephens filed SLUHCV 2010/290 In the Matter of Bryan Stephen and In the Matter of Section 24(1) 2 of the Legal Profession Act seeking an order directing the Registrar of the High Court to issue a Practicing Certificate to him forthwith. Exhibited to Mr. Stephen's affidavit in support his application was a copy of an order of the Court of Appeal made 21 ^st October, 2009. The Court of Appeal's order stated:

• "1. Appeal allowed.

• 2. Matter is remitted to the High Court for consideration of the reference by the Disciplinary Committee before a different judge.

• 3. The Appellant should be served with notice of the date and time of hearing."

In light of the application before the Court to be reinstated on the Roll, I inquired about the connection between the Court of Appeal's order and the application. Not being satisfied with the response, and being unclear as to purpose of the order, I made an order for production of the transcript from the Court of Appeal and adjourned the suit. From the transcript I ascertained my function in the present reference is to give Mr. Stephen a hearing before making a determination as to punishment.

4 An appropriate starting point is the decision of the Disciplinary Committee and it states the following:

• "(1) The Committee having confirmed and is satisfied that the Attorney at Law was properly served with the Complaint and Affidavit in Support.

• (2) That the Applicants complied with the request contained in the Notice issued by the Secretary of the Disciplinary Committee on the 29 ^th August, 2006 to furnish the Attorney at Law and the Secretary of the Committee with a list of all documents on which the Applicants intend to rely at the hearing.

• (3) Notice of Hearing Date, time and place of hearing on 27 ^th August, 2006 was duly served on the Attorney at Law on the 1 ^st September, 2006 by leaving same with his Secretary Ms. Anthea Joseph at his Chambers situate at #18 Micoud Street, Castries.

• (4) That no Response/Defence was submitted to the Secretary of the Disciplinary Committee by the Attorney at Law.

• (5) The Attorney at Law failed to comply with the request contained in the Notice to the Attorney at Law issued by the Secretary of the Disciplinary Committee on the 29 ^th August, 2006 and served on the Attorney at Law as aforesaid."

The facts set out by the Disciplinary Committee were:

"The Attorney at Law failed to do the following:

• 1. To complete the matters undertaken and paid for.

• 2. To pay the Vendor the purchase price.

• 3. To refund the Applicants' monies paid including the purchase price after requested to do so by the Applicants and the Applicants' Solicitors.

• 4. Grossly betraying his clients' confidence to the point whereby the Applicants were forced to retain Solicitors to recover monies paid to the Attorney at Law and obtaining an injunction to freeze the Attorney's clients account albeit to no avail as it turned out that there were no funds in the said account.

• 5. To provide the Applicants or the Committee with any reasonable explanation for said failures.

• 6. Disgraceful and dishonorable behavior on the part of the Attorney of Law amounting to professional misconduct."

5 At the hearing, counsel for Mr. Stephen opened his submissions by stating that even though the Committee was of the view that suspension or striking out was the appropriate remedy, the Court was not "ring-fenced" by the Committee's suggestion but rather the Court could make any other order. He submitted that there were some mitigating factors to which the Court ought to apply its mind before coming to a decision.

6 He referred to Mr. Stephen's affidavit filed 11 ^th June 2010, in suit SLUHCV2010/290 In the Matter of Bryan Stephen. The Court was informed that the affidavit ought to have been filed in the reference being heard and not in that suit. Indeed paragraph 1 of the affidavit stated:

"1. I make this affidavit in relation to a reference made by the Disciplinary Committee of the Saint Lucia Bar Association (hereinafter referred to as the committee) for consideration by a Judge in Chambers concerning a complaint made against me by Joanne Rowan and Paul Wheeler."

7 There being no objection by counsel for the Committee and counsel for Mr. Paul Wheeler and Ms. Joanne Rowan to reference to the affidavit, counsel for Mr. Stephen was allowed to refer to the affidavit.

8 Counsel highlighted from the affidavit that at the date of hearing, Mr. Stephen had up to that time been struck off the Roll for one year, ten months and nine days, the publication in the newspaper and Gazette had been detrimental to his character as an attorney-at-law, and full reimbursement had been made to Ms. Rowan and Mr. Wheeler at 7 ^th October, 2008. There was no exhibit to support the statement that payment was made at the date stated.

9 He further submitted that given all the circumstances he believed that the object of the Committee had been met and he said this for two reasons. The order to strike off the Roll was severe, and had all the facts been known to the Court, a different order might have been made, perhaps an order for suspension. The second reason was that he believed that the time that Mr. Stephen has been struck off the Roll, i.e. 9 ^th October 2008, was an adequate period of suspension as a disciplinary measure. He asked the Court to treat the time since 9 ^th October 2008, to present, in the same manner that persons who are on remand and subsequently convicted have that time credited to them on any sentence imposed. He said that Mr. Stephen's situation was a serious warning to other Members of the Bar who do not take seriously their duties, and he believed that Mr. Stephen had learnt his lesson and would not repeat the same "evils".

10 Counsel then referred to Re: Eastmond (Harold) 3 and Claim No:86A of 2004 Faelleseje, A Private Danish Foundation v. Othneil R. Sylvester 4. He said that Faelleseje dealt with a sum in excess of EC$5 million and of which the Respondent could not give account, and refused to pay.

He asked the Court to compare the sum due in Faeselleje with the amount under discussion. A distinguishing feature between the two cases he said was that Mr. Stephens did not contest the proceedings, he acknowledged his debt, and repaid all monies paid to him.

11 As to Re: Eastmond, he said that counsel there tried to justify why he should be allowed to keep the BD$29,100.00 demanded by his client and in that case he was suspended for 6 months and ordered to pay the sum demanded plus costs.

12 Counsel for the Committee said that upon perusal of the Mr. Stephen's affidavit he was not able to detect any admission of wrongdoing, or remorse. He added that while counsel for Mr. Stephen submitted that there was not likely to be a repeat of the matters which occurred, the first stage that Mr. Stephen had to overcome was to admit his wrongdoing before he could hope to be cured.

13 He further submitted that while counsel for Mr. Stephen argued that this was not a case so out of the ordinary, or so grave as to warrant striking off of Roll, he was of the view that this was not the principle to be gleamed from Faelleseje He submitted that if counsel for Mr. Stephen felt that $240,000.00 was not a significant sum to warrant striking off, then the question is, what is a sufficient sum? He rejected counsel for Mr. Stephen's suggestion that a penalty of one year ten months and nine days and repayment of the money could be a satisfactory penalty where the sum involved was in the region of $200,000.00. Such a suggestion could be interpreted as it being acceptable to access clients' funds once you have the intention of repaying at some future date.

14 Referring to the affidavit of Mr. Stephen he expressed alarm to find that at the time of the incident which had brought the parties to Court, Mr. Stephen had only...