Becar v Cooper
| Jurisdiction | St Lucia |
| Judge | Wills, J. |
| Judgment Date | 04 October 1958 |
| Neutral Citation | LC 1958 HC 7 |
| Docket Number | No. 46 of 1957 |
| Court | High Court (Saint Lucia) |
| Date | 04 October 1958 |
Supreme Court of the Windward Islands and Leeward Islands. High Court
Wills, J.
No. 46 of 1957
Vernon Alexander Cooper, for himself.
George Becar, for himself.
Legal profession - Solicitor — Breach of duty — Section 19(1) of Legal Practitioner's Ord. 1916
Facts: The petitioner made a complaint against the respondent under section 19(1) of the Legal Practitioner's Ordinance. The issue was whether the respondent was liable to the petitioner under this Ordinance.
Held: The respondent's evidence was untrustworthy. He was guilty of breach of duty and refused to repay immediately on demand a sum of money due to the petitioner. The respondent was ordered to pay the sum owed to the petitioner.
George Becar, a labourer of Micoud, made a complaint against Vernon Alexander Cooper, a legal practitioner. This complaint was made under Section 19, subsection 1, of the Legal Practitioners Ordinance, No. 52 of 1916.
The matter came on for hearing on Saturday the 26th July 1958, and the respondent, Vernon Alexander Cooper, appeared in person. The respondent submitted numerous objections all based on questions of fact as to the judge hearing the matter.
The court thereupon investigated the objections and evidence was taken thereon.
Although the objections raised by the respondent were of a grave and serious nature, the respondent studiously refrained from giving any evidence on oath himself or calling any witness or witnesses to support the allegations.
The sworn testimony of the following witnesses: the petitioner, the Registrar of the Supreme Court and Mr. Maurice Mason, Barrister-at-law, coupled with undisputed documentary evidence, convincingly and conclusively proved the allegations made by the respondent to be mendacious, mischievous and scandalous. In the result, the respondent miserably failed to prove any of the allegations, which were made wantonly and recklessly.
The court has no difficulty in finding the allegations to be worthless, devoid of any merit and wholly false. The objections therefore failed.
The court ruled that the matter be proceeded with and ordered the respondent to file an answer.
The respondent then prayed the court to grant (4) four weeks extension of time to file the answer on the following grounds
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(1) the respondent was being advised by Mr. Butt, Q.C., of Trinidad,
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(2) the respondent ‘hopes’ to retain the services of Mr. Butt, Q.C., to appear at the hearing of the petition.
The court unhesitantly granted the delay requested by the respondent.
The matter was adjourned to Saturday, 23rd day of August 1958, at 10 a.m.
When the hearing was resumed on Saturday, 23rd August, it must be observed that Mr. Butt, Q.C., of Trinidad, did not appear on behalf of respondent or was any explanation offered by the respondent for the absence Mr. Butt, R.C., of Trinidad.
The respondent was content to appear in person and to conduct his defence.
Briefly, the petition contained the following allegations and all of which we proved at the hearing:
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(a) the respondent was employed by the petitioner as a solicitor institute legal proceedings in the Supreme Court for trespass property and to claim damages against Augustin Mahabir et al.,
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(b) the respondent charged and was paid the sum of $72 for the performance of the work,
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(c) in pursuance of the contract of service, the respondent as a solicitor for the petitioner instituted proceedings in the Supreme Court against Mahabir et al, and which action was set down for hearing on the 6 th May, 1958, in the Supreme Court,
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(d) the respondent withdrew and discontinued the said action without the knowledge and against the express instructions of the petitioner,
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(e) the petitioner being dissatisfied with the respondent requested the return of the money paid to the respondent,
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(f) the respondent did not refund the money or any part of it and was still in default of so doing.
The petitioner prayed that the respondent be ordered–
(a) to return the fee,
(b) to pay damages
Pursuant to the order of court made on the 26th July 1958, the respondent filed a defence in the Registry of the Supreme Court on the 9th August, 1958.
It would appear from the statement contained in the defence that the respondent either did not know or had quite forgotten that the Supreme Court or a judge can exercise a disciplinary jurisdiction over all officers of the court.
The respondent is a solicitor, having been admitted to practice at the Bar under section 2 subsection (d) of Ordinance No. 52 of 1916, which reads a follows: –
(a) “Any person who, being of full age and otherwise qualified, shall have passed a satisfactory examination in the Civil and Criminal Law and Procedure of the Colony”.
The foregoing subsection has now been repealed and replaced by Section 2 of Ordinance No. 10 of 1946, which reads:
(a) “Any person who, being of full age and otherwise qualified shall have passed the intermediate and Final Examinations of the Law Society of England”.
The respondent was employed as a solicitor.
The respondent accepted the retainer fee as a solicitor and acted throughout the matter as a solicitor.
No question of being counsel or a barrister-at-law arises or can arise in these proceedings as far as the respondent is concerned.
The respondent being a solicitor is an officer of this Court and is thereby subjected to the disciplinary jurisdiction vested in this Court.
It is provided by Section 19 of Ordinance No. 52 of 1916, that ——
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(1) “Where any question arises, or complaint is made, with reference to the powers, duties, rights or obligations of a legal practitioner, the court or judge shall decide such question or investigate such complaint in a summary manner, and shall make such order, including directions for the payment of money unlawfully withheld, or for the payment of costs in respect of a complaint unjustifiably made, as justice may require”.
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(2) “Disobedience to any such order on the part of a legal practitioner shall be punishable as contempt”.
There is no difficulty in interpreting or construing the foregoing section, which clearly defines the authority, duty and powers of the court or judge to hear and determine a complaint made against a legal practitioner acting ‘qua solicitor’.
The respondent in paragraph 1 of the defence states: “these proceedings are Civil in nature and therefore not properly instituted under the Legal Practitioners Ordinance”.
There is absolutely no substance in this contention and the answer can be found in the case of In Re M.A. Grey, (1892) 2 Q.B.D. at page 440.
This Court adopts the words of Lord Esher, Master of the Rolls, and the views so ably and eloquently expressed by Bowen, L.J., and Kay, L J., in the said case.
Lord Esher, M.R. at page 443–
“It seems to me that the true way of dealing with this case is to deal with it according to the principle which was laid down by this court in In Re Freston and recognised and approved of in In Re Dudley. The principle so laid down is that the court has a punitive and disciplinary jurisdiction over solicitors as being officers of the court, which is exercised not for the purpose of enforcing legal rights but for the purpose of enforcing honourable conduct on the part of the courts' own officers. That power of the court is quite distinct from any legal rights or remedies of the parties and cannot, therefore, be affected by anything, which affects the strict legal rights of the parties.
Such was the principle laid down in the cases to which I have referred and which were decisions of the Court of Appeal and therefore are binding on us till over-ruled by the House of Lords. So, if a solicitor obtains money by process of law for his client, quite irrespective of any legal liability which may be enforced against him by the client, he is bound in the performance of his duty as a solicitor to hand it over to the client, unless he has a valid claim against it. If he spends it, or if, still having it, he refuses to hand it over, he commits an offence and an officer of the court, which offence has nothing to do with and legal right or remedy of the client”.
The petition under consideration contained 8 paragraphs and the respondent in his defence admitted seven of these paragraphs, to wit, paragraphs 1, 2, 3, 4, 5, 7, and 8. The contested paragraph was paragraph 6, which reads as follows: –
6. Your petitioner at no time instructed the respondent as his solicitor to settle or in any way to compromise the matter with the defendants or any of them, and was dissatisfied with the conduct of the respondent as he had neither the power, nor duty, nor right, nor obligation so to do”.
The respondent in paragraph 3 of the defence states as follows: –
3. Re Paragraph 6, the respondent says that as counsel and solicitor in a suit he has every right to conduct or settle a Suit in the manner he thinks best and no client has any right to interfere except by way of disavowal.
The respondent received no instructions to continue, settle, withdraw or compromise or proceed with Suit No. 46 of 1957. He acted in the exercise of his discretion”.
This submission may be divided into two parts. The first part — a question of law, and the second part — a question of fact.
Re the first part: The court is of the opinion that the respondent expressed himself in a manner without due regard to judicial authority.
The respondent failed to appreciate the clear distinction...
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