SAINT LUCIAA EASTERN CARIBBEAN SUPREME COURT AT THE HIGH COURT OF JUSTICEClaim No. 360 of 2005IN KENNETH FOSTER, Q CAND IN CASES §§ 41 and 42 of the Legal Profession Act No. 31 of 2000DECISION[1] SHANKS J: This was an application by Lucius Joseph against Kenneth Foster, QC, which is subject to the High Court`s inherent disciplinary jurisdiction over lawyers, expressly provided for in section 42 of the Legal Professions Act 2000. This motion was the first to be submitted to the court under the procedure drafted and approved by Justice Edwards pursuant to sections 11 and 20 of the Supreme Court of the Associated States of the Antilles (Saint Lucia) Act 1969. I am satisfied that service of the application was duly served on Mr Foster in accordance with that procedure. It is therefore regrettable that he did not file an affidavit in response to the applicant`s complaints, as required by paragraph 2 of the notice annexed to the application, nor attended the hearing on 10 June 2005 or communicated in any way with the Court. I regret to say that this failure to act or assist at the hearing is consistent with some of the allegations made against him by the applicant. The consequence of his absence in the present case is that the court can hear and decide in his absence (as is clear from paragraph 4 of the communication), and that is the course of action I am taking. [2] The nature of the Court`s jurisdiction is explained in paragraph 351 of the Solicitors section in the current edition of Halsbury`s Laws of England and in the decision of the English Court of Appeal in R&T Thew Ltd v Reeves (No. 2) [1982] 3 AllER 1086.
The jurisdiction2 may be exercised summarily on request. It has both punitive and compensatory elements. The court exercising it has broad powers: it can order the lawyer to fulfil an obligation, pay costs, make losses or pay money to a client, and it can suspend the lawyer from practising his profession, remove his name from the list or impose a fine. However, even if the jurisdiction must be exercised on a purely compensatory basis, it can only be exercised if the lawyer`s conduct is deemed inexcusable and “reprehensible”. Errors, errors in judgment and simple negligence are usually not enough to implement them. With regard to a punitive measure, it is generally not appropriate for the court to exercise its jurisdiction ex officio, as such matters would normally have to be referred to a disciplinary commission established under the Law on the Legal Profession. [3] The Applicant`s complaints are in the context of the fact that in 1997 he appointed Mr. Foster to act on his behalf in order to bring a claim on behalf of a number of members of his family in respect of considerable land in the neighbourhood of Gros-Islet. There is no doubt that he paid Mr. Foster $15,000 in advance and an additional $15,000 shortly after the proceedings commenced.
It appears that Mr Foster brought two actions with similar parties (1997/702 and 1997/718), but it is apparent from the documents before the Court that only the action was brought in 1997/718. It is obvious that the case was complicated and complex, involving many parties and a long history. I have not been able to fully understand the issues at stake in litigation (and I am certainly not in a position to form an opinion on right and wrong), but given the complaints made and the limitations of my jurisdiction that I have mentioned, I do not think it matters. What is clear is that Mr. Joseph`s party lost in one way or another at trial and Mr. Foster appealed. Individual complaints[4] Mr. Joseph`s complaints are listed in his affidavit of May 12, 2005, which he made without legal advice. It is clear to me that the evidence relied on in paragraphs 1 to 6 of the affidavit, in the crude form in which it was presented, could not have done so, even if it constituted more than errors, errors of judgment or negligence, and I am therefore not entitled to deal with them in this application. I therefore turn to the grievances set out in paragraphs 7 to 12 of the affidavit, bearing in mind that a high standard of proof is required before the tribunal is satisfied that there has been a fault of blame.
[5] Paragraph 7 of the affidavit alleges that Mr. Foster failed to file documents for the appeal, even though Mr. Joseph paid $60 to Mr. Foster`s office on September 11, 2002 for the purchase of paper for the preparation of documents. There is a receipt for this amount in the documents and a certificate of the outcome of the June 10, 2003 complaint confirming non-compliance with section 62.12 of the CPP, so I am satisfied that this complaint is proven as fact. The failure to file documents pursuant to section 62.12 of the CPP is manifestly serious and prima facie violates the duty to act in the best interests of the client and to represent the client competently, as set out in paragraph 20 of Part A of the Code of Professional Conduct in Schedule III to the Law on the Legal Profession. In the absence of any evidence or explanation from Mr. Foster, I am satisfied that he breached this requirement and that this breach constitutes professional misconduct worthy of reprimand.
Comments are closed.