Maharaj v Ramcharan
| Jurisdiction | Trinidad & Tobago |
| Judge | John, J.A |
| Judgment Date | 15 December 2006 |
| Neutral Citation | TT 2006 CA 41 |
| Docket Number | Civil Appeal No. 69 of 2005 |
| Court | Court of Appeal (Trinidad and Tobago) |
| Date | 15 December 2006 |
Court of Appeal
John, J.A.; Archie, J.A.; Weekes, J.A.
Civil Appeal No. 69 of 2005
Mr. Ramesh Lawrence Maharaj S.C. and Mr. Dinesh Rambally instructed by Ms. Norma Maynard Marshall for the appellant.
Ms. Johanna Koorn instructed by C. A. Serrano & Co. for the respondent.
Legal profession - Professional misconduct — Appellant failed or refused to refund sums to the respondent — Whether the criminal standard of proof was applicable in disciplinary proceedings — Whether the evidence reflected professional misconduct — Negligence or mistake by an attorney at law could not amount to professional misconduct — Complaint fell short of professional misconduct — Appeal allowed — Decision of committee set aside.
The appellant is an Attorney at Law. On the 7th February 2003, a complaint of professional misconduct was made against her by the respondent to the Disciplinary Committee of the Law Association (“the Committee”). The essence of his complaint was that the appellant had refused to see him by appointment over the last year, had not taken instructions from him and “was doing her own thing”, had made false claims for monies from the State, and had refused to pay over to him monies awarded in damages and costs by the State.
The Committee found no evidence of professional misconduct in relation to the first two grounds of the respondent's complaint. However, it did find the appellant guilty of professional misconduct in that:
-
i. having received payment of taxed costs in the full sum awarded by the court, she failed and/or refused to refund the respondent the sum of $6, 300.00 paid by him as legal fees;
-
ii. having through her juniors and associate assured the respondent that he would receive interest on the damages agreed upon, and having obtained an order for payment of damages plus interest, in breach of her professional duty towards the respondent, she failed and/or refused to pursue the recovery of interest on the damages.
The appellant, in addition to being fined $2500.00, was ordered to pay to the respondent:
-
i. the sum of $3,747. 23 being the difference between the sum of $6,300.00 paid by him and the sum of $2,552.77 paid to him on the 2nd July 2003 by way of refund of fees;
-
ii. the sum of $13,670.13 as compensation representing interest at the rate of 6% per annum on the sum of $17,000.00 from the 22nd November 1991 (date on which the action for false imprisonment was filed) to 18th April 2005 (date of the Committee's decision);
-
iii. the sum of $500.00 as costs representing travelling and subsistence.
The relationship between the parties stemmed from the retention of the firm of Ramesh Lawrence Maharaj & Co. (“RLM & Co.”) by the respondent in 1991 to represent him in an action against the State for false imprisonment.
The appellant was a partner in RLM & Co., but did not have conduct of the respondent's matter; Mr. Ramesh Lawrence Maharaj conducted it. RLM & Co. was dissolved in 1996 and the firm Viziers was formed with the appellant as the sole partner. A notice of change of attorneys was filed by Viziers to assume conduct of the matter. The firm Daltons succeeded Viziers and the appellant became the senior partner. The respondent instructed Daltons to take conduct of the matter and a notice of change of attorneys was filed.
The respondent paid the sum of $2300.00 on account of legal fees to the firm RLM & Co. When the matter was transferred to Daltons, Mr. Sunil Sookraj, a former associate, informed the respondent that the estimated cost would be $4000.00-$5000.00 for the High Court action if the matter were to go on for a long period of time.
Subsequently, Mr. Shastri Parsad, an attorney at law and former partner at Daltons informed the respondent that he would have to pay $7500.00 plus Value Added Tax (“VAT”). It is disputed whether this sum was on account or was the sum total to be paid. The respondent paid a total of $6300.00 in instalments.
The action did not go to trial. Interlocutory judgment was entered by consent on the 19th October 2000 with damages to be assessed. The consent order of the 19th March 2002 was in the following terms:
-
i. That the defendants (the State) do pay the plaintiff the sum of $17,000.00 as damages plus interest in full and final settlement of his claim herein;
-
ii. That the defendants do pay the plaintiff's costs of this assessment certified fit for counsel to be taxed in default of agreement.
The firm entered a trial bill of costs in respect of the consent order of 19th October 2000 claiming $32,058.50. The plaintiff's costs were taxed in the sum of $24,981.50 and $22,797.99 for the action and assessment respectively.
The appellant's firm received cheques in the sum of $26,031.10 for the trial bill of costs, $25,952.35 for the assessment bill of costs, and $18,419.61 for the respondent's damages with statutory interest.
The respondent received two cheques from the appellant's firm, one for $18,419.61 and one for $2,552.77. By letter dated the 24th January 2003 the appellant wrote to the respondent, setting out how the monies were disbursed and enclosed a cheque for $18,419.61, which represented his damages and interest. The full text of that letter appears herein.
Mr. Mohanlal Ramcharan
No. 4 Mile Mark,
Buenos Ayres,
Erin.
Dear Sir,
Re: H.C.A. No. S-1417/19 and No. 3895/91(P.O.S)
Mohanlal Ramcharan v. The Attorney General of Trinidad &Tobago
Pursuant to a consent Order entered into before Justice Nolan Bereaux on the 19th October 2000, we have received from the defendants a cheque in the sum of Eighteen thousand Four Hundred and Nineteen Dollars and Sixty One Cents ($18,419.61) in full settlement of your claim for Damages.
A review of your account shows that you made payments totalling $6,300.00 in fees i.e. (RLM &CO/ Viziers $2,300.00 and Daltons $4,000.00). Other payments received were Trial Costs $26,031.30 inclusive of interest and Damages $18,419.61 also inclusive of interest.
Our bill for the Trial was $32,058.50. However, using our discretion we waived the sum of $7,076.50 so as not to burden you with the payment of additional fees. We shall accept the reduced sum of $24,981.50 as our fees for the Trial. We are enjoined by law to charge fifteen percent on all fees due to us, therefore, the amount due and payable for the Trial is $28,728.73 Vat inclusive.
The amount of $24,981.50 recovered on taxation and the fees of $6,300.00 paid totalling $31,281.50 have been set off against our bill for the Trial of $28,728.73 resulting in a balance of $2,552.77 due to you. This sum of $2,552.77 will be refunded upon receipt of the Cost of Assessment.
Our Bill of Costs for the Assessment has been taxed and the amount allowed on Taxation is $22,797.00, which we will accept as out fee Vat inclusive for the Assessment of Damages. As indicated above the sum of $2,552.77 will be refunded to you when we receive the Costs of Assessment.
Accordingly, our cheque for $18,419.61 representing payment of your damages is enclosed for your attention.
Yours faithfully,
DALTONS.
Signed
Lynette Maharaj S.C.
The respondent wrote to the appellant indicating that he would not be accepting the sum of $18,419.61 in full settlement for his claim, as he was of the view that his damages ought to be in the vicinity of $35,000.00. Subsequently, he filed a complaint against the appellant.
On 11 May 2005, the appellant filed numerous grounds of appeal, which can be summarised into five main areas:
-
i. The decision and orders of the Committee are erroneous in law.
-
ii. The decision and orders of the Committee are unreasonable and unsustainable having regard to the evidence. In particular the Committee failed to consider whether the firm had the authority to enter into the settlement recorded in the consent order. The firm having been authorised to negotiate the settlement and on the evidence the respondent accepted $17,000.00.
-
iii. The Committee misdirected itself when it held, that the respondent was told by Ms. Gooljar and an attorney-at-law representing the State, that he would be reimbursed the $6300.00 he had paid, when in law the State had no locus in the fee arrangement between the respondent and his attorneys. Furthermore, it is wholly improbable that he was informed as he alleged, as Ms. Gooljar was an attorney employed with Daltons and there was no evidence that the quantum of fees was a matter within her authority.
-
iv. The Committee misdirected itself when it found that the appellant contended that no interest was payable on damages for false imprisonment.
-
v. The Committee exceeded its jurisdiction and acted as the High Court rather than as a Committee when they determined questions of civil law rather than issues of professional misconduct.
The relief sought from this court is for an order that:
-
i. the operation of the order dated 18th April 2005 be suspended until after the determination of this appeal;
-
ii. the said decision and orders are erroneous in law;
-
iii. the decision and orders be set aside and that it be ordered that the complaint of the respondent be dismissed; or
-
iv. alternatively that the matter be remitted to the Disciplinary Committee for rehearing;
-
v. such other order as this court may think just; and
-
vi. the respondent pay to the appellant the costs of the disciplinary proceedings and the costs of the appeal.
The respondent testified before the Committee that:
-
a. He received a telephone call from Ms. Vidyia Gooljar, an attorney at law and a former associate in Daltons, informing him that the firm had been offered $30,000 plus 6% interest from 22nd November 1991 and 12% from the date of the consent order to the date of payment. He inquired of the total amount for damages and she told him that she estimated the figure at around...
To continue reading
Request your trial