Shaheed Hosein v Uthra Ramnarine-Hill

• Jurisdiction: Trinidad & Tobago
• Judge: J. Jones, JA.
• Judgment Date: 03 July 2018
• Neutral Citation: TT 2018 CA 24
• Docket Number: Civil Appeal 069-2013
• Court: Court of Appeal (Trinidad and Tobago)
• Date: 03 July 2018

IN THE COURT OF APPEAL

Panel:

Bereaux, J.A.

Jones, J.A.

Rajkumar, J.A.

Civil Appeal 069-2013

Complaint # 50-2011

Shaheed Hosein

Appellant

and

Uthra Ramnarine-Hill

Respondent

APPERANCES:

Appellant in person Mr. S de la Bastide for the Respondent

Legal Profession - Appeal against finding of professional misconduct — Whether Committee's decision was based on a misunderstanding of evidence.

JUDGEMENT

Delivered by J. Jones, JA.

1 This is an appeal from a decision of the Disciplinary Committee of the Law Association of Trinidad and Tobago (the Committee) by which it found that the appellant, an attorney at law, had derogated from the standards of conduct expected of an attorney at law and had breached rules 1, 12 and 21 of Part A of the Third Schedule to the Legal Profession Act Chap. 90:03 (the Act). The Committee also found that the Attorney had committed acts of professional misconduct in breach of rule 29 of part B of the Third Schedule to the Act.

2 These rules state:

PART A

“1. An Attorney-at-law shall observe the rules of this Code, maintain his integrity and the honour and dignity of the legal profession and encourage other Attorneys-at-law to act similarly both in the practice of his profession and in his private life, shall refrain from conduct which is detrimental to the profession or which may tend to discredit it.”

“12. An Attorney-at-law should also bear in mind that he can only maintain the high traditions of his profession by being a person of high integrity and dignity.”

• “21. (1) An Attorney-at-law shall always act in the best interests of his client, represent him honestly, competently and zealously and endeavor by all fair and honorable means to obtain for him the benefit of any and every remedy and defence which is authorised by law, steadfastly bearing in mind that the duties and responsibilities of the Attorney-at-law are to be carried out within and not without the bounds of the law.

• (2) The interests of his client and the exigencies of the administration of justice should always be the first concern of an Attorney-at-law and rank before his right to compensation for his services.”

1. PART B

“29. An Attorney-at-law shall not knowingly make a false statement of law of law or fact.”

3 The Committee was of the view that the case made out by the Respondent, the person making the complaint, justified a punishment more severe than the payment of a fine and/ or compensation and or/ costs and that the punishment of suspension from practice or removal from the roll was warranted. Accordingly, and in accordance with section 39(3) of the Act, it forwarded a copy of the proceedings to the Chief Justice and the Attorney General for action.

4 The Respondent was not a client of the Appellant but rather an employee of an Insurance Company (the Insurance Company) with whom the Appellant had entered into negotiations on behalf of his client at the time, Nazreen Ali, (Ali) to settle a motor vehicle claim. An agreement had been reached between the Respondent, acting on behalf of the Insurance Company, and the Appellant, acting on behalf of Ali, by which the Insurance Company was to pay to Ali damages in the sum of $535, 000.00 and the sum of $15,000.00 in costs.

5 The Committee found that the Appellant presented to Ali two letters (the disputed letters) prepared or caused to be prepared by the Appellant and purporting to bear the signature of the Respondent in which lower settlement figures were offered. The Committee determined that these disputed letters were not true copies of the actual letters sent to the Appellant by the Respondent. The Committee concluded that the Appellant deliberately and with intent to deceive misrepresented to Ali that by the disputed letters a settlement offer had been made in the sum of $406, 598.32 instead of the sum of $460,000.00 with respect to the first disputed letter and in the sum of $439,275.00 instead of the sum of $529,900.00 with respect to the second disputed letter. This, it determined, was done in order to persuade Ali to settle the claim in the sum of $439,275.00. This sum was $90,625.00 less than the sum that the Insurance Company was prepared to pay at the time.

6 Before the Committee and before us the Appellant represented himself. Although the Notice of Appeal contained some 13 grounds the submissions of the Appellant before us were limited to the following:

• (i) the Respondent had no locus standi to make the application as she never sought leave of the Committee to make the application and was not a person aggrieved;

• (ii) the affidavit filed by the Respondent in support of the application was hearsay and inadmissible and ought to have been struck out;

• (iii) the application ought to have been made by Ali who, in accordance with the Act, ought to have provided a sworn statutory declaration;

• (iv) the Committee failed to indicate the standard of proof applied by it in coming to its conclusions; and

• (v) the evidence of the witnesses had been so discredited in cross-examination that it would be unreliable for any court or tribunal to rely on the evidence.

Locus Standi

7 Section 37 of the Act permits an application to be made to the Committee by a client or, with the leave of the Committee, a person who alleges that she or he is aggrieved by an act of professional misconduct committed by an attorney at law who is subject to the Act. The section requires that the allegations be contained in a statutory declaration made by the person alleging that they are aggrieved.

8 The evidence discloses that on the first date of hearing, prior to the commencement of the hearing of the evidence, leave was granted by the Committee for the Respondent to make the complaint. The evidence also discloses that the Appellant was present on that occasion. While accepting that the notes of evidence disclosed that leave was granted, before us, the Appellant submitted that what was required was a formal application for leave to be made by the Respondent. There is no such requirement by the Act or by the Rules. As we have seen the Act merely requires that where the complainant is not a client of the attorney at law for the complaint to proceed the Committee must grant leave. Leave having been granted by the Committee there is no merit in the Appellant's submissions in this regard.

9 By her affidavit in support of the application, formatted in accordance with Form 2 of the Appendix to the Fifth Schedule to the Act, the Respondent alleges that while acting on behalf of the Insurance Company she engaged in negotiations with the Appellant who was at that time acting on behalf of Ali as the legal personal representative of the estate of Ali's deceased husband. She deposes that:

She therefore complains that the Appellant:

• (i) on or around 3 ^rd February 2011 Ali showed her a copy of a letter that purported to be addressed by the Insurance Company to the Appellant containing settlement figures that differed from and were significantly lower than those agreed by her and bore her signature;

• (ii) Ali told her that the letter had been delivered to her by the Appellant and she had been told by him that this was the final settlement offer and was advised to accept the settlement by signing a letter of acceptance prepared by the Appellant;

• (iii) The Respondent denied preparing or signing the letter or making the lower settlement offer;

• (i) prepared or procured the preparation of a replicated letter purporting to be sent by the Insurance Company detailing a lower agreed settlement figure than had been agreed;

• (ii) the Appellant forged or procured a forgery of her signature in her capacity as claims officer of the Insurance Company;

• (iii) the Appellant misrepresented the facts of the true settlement offer to him and specifically attempted to convince Ali that the settlement figure was lower than the actual agreed figure;

• (iv) the Appellant did not represent the true position to Ali with regard to what was legally due to Ali and attempted to convince Ali to accept a lower figure than that agreed by the Insurance Company and

• (v) the Appellant personally delivered to Ali forged correspondence knowing that the said correspondence was not prepared and/or sent by the Insurance Company and attempted to convince Ali that it was from the Insurance Company.

10 The submission that the Respondent was not a person aggrieved by the actions of the Appellant was made by way of a preliminary objection prior to the oral evidence being taken. This submission was overruled by the Committee on 11 ^th July 2011. The Committee did not furnish reasons for the rejection of the submission. However, although the Respondent did not use the word aggrieved in the application to the Committee, the facts deposed by the Respondent comprised sufficient material upon which the Committee...