Lord Brown of Eaton-under-Heywood
The appellant, Wilston Campbell, is an Attorney at Law practising in San Fernando, Trinidad and Tobago. As long ago as February 1987 a complaint of professional misconduct was made against him to the Attorneys at Law Disciplinary Committee (the Committee) by Simon Alexander. (Simon Alexander died in 2003 and although he was replaced as respondent to this appeal by the executor of his estate, for convenience the Board will continue to refer to him as the respondent.) The essence of his complaint was that he had paid the appellant $29,400 to purchase from him two parcels of land but the appellant had neither conveyed the land nor returned the purchase price. The appellant had, in short, bilked him.
In November 1987 the appellant raised a preliminary objection before the Committee, contending that the complaint failed to disclose any professional misconduct within the meaning of section 5 of the Legal Profession Act 1986, (the 1986 Act) the statute governing what was then the state’s newly fused legal profession. On 10 December 1987, however, the Committee ruled against that objection and, in February 1988, it embarked on the substantive hearing of the complaint. The hearing lasted in all for eleven days stretching over a ten month period ending on 6 December 1988 when there was a final adjournment for attorneys’ addresses. Quite when these were made is not known but, astonishingly, it was not until 29 October 1996 that the Committee produced its Findings and Orders. The Committee found the allegation of professional misconduct substantiated and ordered the appellant to pay the respondent compensation of $29,400 together with interest from the date of their order until payment, together with costs.
On 9 December 1996 the appellant appealed to the Court of Appeal on two grounds:
that the Committee’s decision was unreasonable and could not be supported, having regard to the evidence, and
that the complaint did not disclose any professional misconduct on the part of the appellant in his capacity as an attorney at law.
The appeal was heard in early 2000 and dismissed with costs by the Court (Hamel-Smith, Jones and Nelson JJA) on 22 May 2000 – the joint judgment of Hamel-Smith and Nelson JJA being concurred in by Jones JA.
Conditional leave to appeal to the Board was granted by the Court of Appeal on 7 July 2000 and, upon the appellant giving security of £500, final leave was given on 4 December 2000. Two principal arguments are advanced before the Board, neither having been advanced before the Court of Appeal:
first, that the Committee should have applied, but failed to apply, the criminal standard of proof in their determination of the respondent’s complaint;
second, that the eight-year delay in the delivery of the Committee’s judgment was both intrinsically unfair and such as to affect adversely the quality of the judgment.
With that comparatively brief introduction it is necessary now to return to the facts although, given the limited grounds of appeal before the Board, not in any great detail.
The events giving rise to the complaint took place in 1985-1986. The respondent was then living with his common law wife, Kathleen Sylvester, in a rented property in Sangre Grande, buying that property off the landlord company and paying the price by instalments to the company’s agent, one Gabby Osbourne. The payments being completed by August 1985, Osbourne arranged for the appellant to prepare the necessary deed of conveyance. Shortly before 30 August 1985 Osbourne told the respondent and his wife that he was also acting as the appellant’s agent in the sale of two lots of land (nos 106 and 107 George Karim Avenue, Sangre Grande). They said they were willing to buy but first wanted to meet the appellant. Osbourne there and then telephoned the appellant, spoke to him for a short time and then handed the telephone to Mrs Sylvester. The appellant told her that he had to be in Sangre Grande on 30 August and would come to their house that day and take them to see the two lots. On 30 August the appellant duly arrived in a red car and drove them to George Karim Avenue where he pointed out the two lots and confirmed that Osbourne was his agent. The respondent and his wife agreed to purchase the lots for $29,400 and were told by the appellant to deal thereafter with Osbourne both as to the payment of the purchase price (by instalments) and completion. Having paid the final instalment and confirmed with the appellant that he had duly received the payments from Osbourne the respondent was asked to attend the appellant’s office to obtain the requisite deed. On 12 February 1986 the respondent attended the appellant’s office with his wife and a friend, Indra Rajbansee, whereupon the appellant informed them that the lots were mortgaged for more than the purchase price and he could not, therefore, now convey them. He promised, however, to repay the purchase monies within a month, explaining that he had a shipment of tyres on the docks and that as soon as these were cleared and sold he would repay the respondent out of the proceeds. Despite repeated subsequent attempts to contact the appellant, however, the money was never repaid.
The appellant’s case was strikingly different. He denied ever having been the owner of plots 106 and 107, ever having agreed to sell those plots or any other land to the respondent, and ever having received any monies from him for the purchase of any land. He denied that Osbourne was his agent and denied ever having referred to him as such. He denied having spoken to Mrs Sylvester on the telephone shortly before 30 August 1985, having visited the respondent’s home on that day, or having shown the respondent and his wife any land at any time. He admitted meeting the respondent and his wife and Indra Rajbansee at his office on 12 February 1986 but said that they were there to seek his help in persuading Osbourne to return their money and that he had told them it was Osbourne who owned the tyres on the docks.
The Committee accepted the respondent’s and Mrs Sylvester’s account of the matter and rejected the appellant’s evidence. Amongst the many considerations leading them to that conclusion were that the appellant undoubtedly had gone to Sangre Grande on 30 August 1985 (he was in court there that day from about 8.45 am till about 10.30 am, having driven there from San Fernando in a red car); the appellant did own two lots on George Karim Avenue (although he said that they were lots 108 and 109 rather than 106 and 107), and these were indeed mortgaged. The Committee “were impressed by the honesty, the forthrightness of the purchasers, the consistency of their answers under cross-examination and their general demeanour”. By contrast “the Committee was rather disturbed by the conduct and behaviour of the attorney in this matter and the evidence given by him, most of which we reject as being ad hoc and tailored for the purpose of meeting the applicant’s case .... We had no difficulty in rejecting the attorney’s version of the events as a complete fabrication”.
Having held “that at all material times the relationship of attorney and client existed between [the appellant] and [the respondent] in respect of this transaction”, the Committee finally concluded:
In light of all the evidence tendered in this matter and upon careful consideration of the facts the Committee is satisfied that the allegation made against the Attorney is one which can properly be construed or interpreted as professional misconduct .... an Attorney-at-Law must at all times be a person of the utmost integrity and probity .... Both client and the general public must have supreme confidence in their ability to deal with an attorney at law with complete frankness and openness and, most important of all, without the least fear or trepidation that they would be taken advantage of or misled in any way.
As to whether the requisite burden and standard of proof has been established in this application is a matter to which the Committee has given the most careful thought and utmost consideration and upon the evidence placed before the Committee, the Committee finds that that burden has been satisfied.
As stated, the first ground of appeal before the Court of Appeal was that the Committee’s decision was unreasonable and unsustainable having regard to the evidence. The appellant’s principal complaint in that regard focused on the telephone conversation which Mrs Sylvester said she had with the appellant shortly before the disputed meeting on 30 August 1985, a conversation to fix a meeting that day specifically because the appellant was already required to be in Sangre Grande that morning. Mrs Sylvester’s evidence was that the phone conversation took place “about a week” before 30 August and was a local call. The appellant denied that any such conversation took place and produced his passport to prove that he had been in Miami for a week up to 27 August, and had only cleared customs on 28 August. The Committee said nothing in its determination about this particular point although it plainly concluded that the parties had met by pre-arrangement on 30 August.
In disposing of this complaint the Court of Appeal noted that Mrs Sylvester “was recalling something she had done some three years before,” and concluded:
What .... makes it more probable that the call did take place (whether it was one week before or two days before) is the fact that the wife said that the Attorney told her that he had to be in Sangre Grande on August 30 and would meet with them. As it turned out, and the respondent and his wife would not have known this otherwise, the Attorney had an appointment in Court in Sangre Grande that day and had to be there. It certainly would have been a great coincidence for her to have plucked that day out of thin air and have it coincide with the scheduled visit to Sangre Grande.
It is more likely that an Attorney who practises in San Fernando and is based there would travel to Sangre Grande on appointment only unless of course his main practice is in Sangre Grande which is not the case here. On a balance of probabilities therefore it was far more likely that the call was made when the attorney had returned to the country and the respondent’s wife was mistaken when she said that it had been made one week before. That is an inference open to this Court.
Their Lordships agree: the inference had equally been open to the Committee and plainly it had drawn it.
As to the second ground of appeal before the Court of Appeal, the appellant’s contention that the complaint failed to disclose any professional misconduct on his part, the Court of Appeal stated as follows:
[E]ven if it were held that the Attorney-at-Law was in a non-client relationship with the respondent, in our view the notion that professional misconduct relates to conduct in a professional capacity only must fail. The Act itself contemplates that any conduct of an Attorney-at-Law which may undermine public confidence in the legal profession may amount to professional misconduct.
In holding that the appellant’s conduct towards the respondent had properly been held to constitute professional misconduct the Court of Appeal referred to the governing statutory provisions, most notably section 35 (1) and (2) of the 1986 Act, rule 1 of Part A of the Third Schedule to the Act (the Code of Ethics), rule 35 (2) of Part B of the Third Schedule, and section 39 of the Act. Since this point is no longer pursued by the appellant it is unnecessary for their Lordships to elaborate it further. Rather it is time to turn to the entirely fresh grounds of appeal which are now for the first time advanced before the Board.
(Standard of Proof)
The appellant’s argument under this head proceeds in two stages. First he contends that the Committee should have applied the criminal standard of proof; second that the Committee in fact applied a lesser standard, namely either the civil standard of a mere balance of probabilities, alternatively a standard somewhere between that and the criminal standard.
That the criminal standard of proof is the correct standard to be applied in all disciplinary proceedings concerning the legal profession, their Lordships entertain no doubt. If and insofar as the Privy Council in Bhandari v Advocates Committee  1 WLR 1442 may be thought to have approved some lesser standard, then that decision ought no longer, nearly fifty years on, to be followed. The relevant passage from Lord Tucker’s opinion on behalf of the Board in Bhandari at p.1452 reads:
With regard to the onus of proof the Court of Appeal [for East Africa] said: ‘We agree that in every allegation of professional misconduct involving an element of deceit or moral turpitude a high standard of proof is called for, and we cannot envisage any body of professional men sitting in judgment on a colleague who would be content to condemn on a mere balance of probabilities.’ This seems to their Lordships an adequate description of the duty of a tribunal such as the Advocates Committee and there is no reason to think that either the Committee or the Supreme Court applied any lower standard of proof.
It has, of course, long been established that there is a flexibility in the civil standard of proof which allows it to be applied with greater or lesser strictness according to the seriousness of what has to be proved and the implications of proving those matters. Lord Bingham of Cornhill CJ pointed this out in the Divisional Court in B v Chief Constable of Avon and Somerset Constabulary  1 WLR 340, 353-4 and continued, at para 31 (p 354):
In a serious case such as the present [concerning the making of a sex offender order] the difference between the two standards is, in truth, largely illusory. I have no doubt that, in deciding whether the condition .... is fulfilled, a Magistrates Court should apply a civil standard of proof which will for all practical purposes be indistinguishable from the criminal standard.
The same approach has been taken in later cases. In the Court of Appeal in Gough v Chief Constable of the Derbyshire Constabulary  QB 1213, Lord Phillips of Worth Matravers MR held with regard to the serious consequences of making a banning order under the Football Spectators Act 1989 (para 90 at p 1243):
This should lead the Justices to apply an exacting standard of proof that will, in practice, be hard to distinguish from the criminal standard.
Most recently, in the House of Lords in R (McCann) v Crown Court at Manchester  1 AC 787, Lord Steyn agreed (para 37 at p812) with what Lord Bingham had said in B about “the heightened civil standard and the criminal standard [being] virtually indistinguishable” and concluded:
In my view pragmatism dictates that the task of magistrates should be made more straightforward by ruling that they must in all cases under section 1 [of the Crime and Disorder Act 1998, providing for anti-social behaviour orders] apply the criminal standard.
Lord Hope of Craighead (para 83 at p 826) similarly recognised that in all these cases “the civil standard of proof will for all practical purposes be indistinguishable from the criminal standard” and held that “the standard of proof that ought to be applied in these cases to allegations about the defendant’s conduct is the criminal standard”.
Perhaps more directly in point, however, is the decision of the Divisional Court in In Re A Solicitor  QB 69, concerning the standard of proof to be applied by the Disciplinary Tribunal of the Law Society. Lord Lane CJ, giving the judgment of the Court, referred to the Privy Council’s opinion in Bhandari and continued at p 81:
It seems to us, if we may respectfully say so, that it is not altogether helpful if the burden of proof is left somewhere undefined between the criminal and the civil standard. We conclude that at least in cases such as the present, where what is alleged is tantamount to a criminal offence, the tribunal should apply the criminal standard of proof, that is to say proof to the point where they feel sure that the charges are proved or, to put it another way, proof beyond reasonable doubt. This would seem to accord with decisions in several of the Provinces of Canada.
A little later in the Court’s judgment Lord Lane referred to the provision in the Bar’s Code of Conduct requiring the tribunal to apply the criminal standard of proof and observed at p.82:
it would be anomalous if the two branches of the profession were to apply different standards in their disciplinary proceedings.
This last observation, of course, clearly warranted the Law Society Disciplinary Committee thenceforth applying the criminal standard in all cases rather than merely in those, earlier referred to, “where what is alleged is tantamount to a criminal offence”.
Their Lordships would add that, even had they concluded that the criminal standard should apply only in disciplinary cases where what is alleged is tantamount to a criminal offence, that, at least arguably, would include the present case. This was certainly no mere contractual dispute. The appellant accordingly makes good this first stage of his argument.
Their Lordships turn therefore to the second stage, the appellant’s contention that the Committee in fact applied a lesser standard of proof. This contention fixes principally, not upon what the Committee itself said, but rather upon what the Court of Appeal said in the final passage from their judgment set out in para 12 above, in particular the words:
On a balance of probabilities therefore it was far more likely that the call was made.
The appellant also invites attention to other passages in the Court of Appeal’s judgment where similar expressions are used: “highly unlikely” (twice), “the more likely inference”, “more likely than not”, “more probable”, “more likely”. These expressions, it is suggested, demonstrate that the Court of Appeal for their part supposed that the correct test to apply was that of the balance of probabilities or, if not that, certainly something less strict than the criminal standard. Nor, it is said, is that surprising: it is not to be assumed that the Court of Appeal was aware of In Re A Solicitor and, in any event, the Privy Council’s decision in Bhandari would have been regarded as binding in Trinidad and Tobago.
Their Lordships are unimpressed by these arguments. In the first place there is nothing in the Committee’s own determination to suggest that it applied a lower (still less a materially lower) standard of proof than that of beyond reasonable doubt. On the contrary, the final paragraph of the Committee’s determination quoted in para 10 above suggests rather that they applied a high standard. Even moreover so far as the Court of Appeal’s judgment is concerned, the reference to “a balance of probabilities” is a slender basis upon which to found a contention that such was the standard of proof applied in deciding the central allegation of professional misconduct. It is noteworthy that immediately after reference to “a balance of probabilities” the Court of Appeal’s conclusion was that something (the making of the disputed phone call) “was far more likely”. The fact is that all the quoted expressions used throughout the Court of Appeal’s judgment related, not to the critical final issue as to whether the allegation of professional misconduct was made out, but rather as to how a number of factual sub-issues fell to be resolved. To find this complaint proved it was not necessary for the Committee or the Court of Appeal to find each and every sub-issue proved beyond reasonable doubt. A sufficient number of strong probabilities (or even mere probabilities) can in aggregate amply support a finding of proof beyond reasonable doubt. That, indeed, is how many a criminal case is proved in reliance principally upon circumstantial evidence.
Nor does the Board accept the argument that the Committee or the Court of Appeal were in any event likely to have been applying Bhandari rather than In Re A Solicitor. In Re A Solicitor was fully reported well before the judgments were given in the present case. As Lord Lane observed, moreover, the criminal standard applied in several Canadian Provinces. Why should Trinidad and Tobago be thought more likely to apply the approach of the East African Court of Appeal (albeit approved by the Privy Council) than the Canadian approach? In any event, as the recent English cases show, the apparent difference between the two standards “is, in truth, largely illusory” (Lord Bingham in B); “the heightened civil standard and the criminal standard are virtually indistinguishable” (Lord Steyn in McCann).
The first ground of appeal accordingly fails. For good measure their Lordships would observe that the evidence against the appellant was in any event overwhelming. It would have defied common sense to dismiss this complaint.
For the Committee to have delayed eight years in giving its judgment was, it need hardly be said, highly reprehensible, indeed unforgivable. But it does not follow that the appellant was in any way prejudiced by this delay nor that it affords him any sustainable ground of appeal. It is moreover, noteworthy, as already remarked, that no point whatever was taken in the Court of Appeal about the delay and still less was it suggested that it had occasioned him any injustice. Now it is said, first, that the delay was of itself manifestly unfair to the appellant and, secondly, that deficiencies in the Committee’s judgment are properly referable to it.
In support of the argument of manifest unfairness the appellant seeks to pray in aid a sentence from Auld LJ’s judgment in the Administrative Court in Aaron v The Law Society  EWHC 2271 (Admin), at para 84:
Disciplinary proceedings before the Solicitors Disciplinary Tribunal are analogous to criminal proceedings. The uncertainty that springs from and festers with unnecessary and unreasonable delay can, in itself, cause great injustice to practising solicitors, whose livelihood and professional reputations are at stake.
Their Lordships accept that statement without demur but conclude that it cannot avail the appellant on the facts of this case. Mr Beharrylal urges on the appellant’s behalf that Trinidad and Tobago’s legal profession is so small and close-knit that everyone within it would have been aware of this outstanding allegation of professional misconduct against him. So be it. What, however, is strikingly absent from the case is any suggestion that the appellant ever wrote a single letter or made any other attempt to encourage the Committee to accelerate its deliberations and judgment. Nor perhaps is that surprising. The plain fact is that the delay here was to the appellant’s own considerable benefit. The evidence against him was, as already noted, overwhelming and the complaint was likely therefore to be found proved. Meantime he was able to retain and make use of the disputed monies. Even when judgment was eventually given, indeed, so far from the appellant being penalised for his professional misconduct, all that was ordered was that he should at last refund the respondent’s monies, with no back interest at all, merely interest from that day forward until payment. No sanction whatever was imposed upon the appellant despite Parliament’s apparent assumption, implicit in section 39(1) of the 1986 Act, that an attorney found guilty of professional misconduct should be fined or reprimanded besides being ordered to pay costs and any relevant compensation.
The only injustice caused by the Committee’s deplorable delay in giving judgment was to the respondent who never lived to see his money repaid and whose estate has yet to receive it.
As for the argument that the Committee’s delay adversely affected their determination, there is nothing in this point either. There are, of course, cases where such an argument should properly succeed. Goose v Wilson, Sandford & Co, The Times [19 February 1998] (Court of Appeal (Civil Division) transcript no. 196 of 1998) was one such. As Lord Carswell explained in giving the Board’s judgment in Boodhoo v Attorney General of Trinidad and Tobago  1 WLR 1689, 1694, Goose provides an example of where (para 11):
Delay may have so adversely affected the quality of the decision that it cannot be allowed to stand. It may be established that the judge’s ability to deal properly with the issues has been compromised by the passage of time, for example if his recollection of important matters is no longer sufficiently clear or notes have been mislaid.
The present case, however, is very different from Goose on the facts. The delay here was, of course, considerably longer. But whereas in Goose the judge’s ability to decide the case was clearly compromised, here it was not. Here the Committee had the full transcripts of all the evidence and it was well able to provide a reasoned decision in reliance upon them. What is striking, indeed, is that only two criticisms are made of the Committee’s reasoning (or lack of it) and that each of these turns entirely upon reading the Committee’s judgment in the light of the transcript. In other words, even if the criticisms were soundly based, they would not be explicable by reference to the delay. In fact, however, both criticisms are unwarranted. The first and main one went to the Committee’s failure to deal expressly with the sub-issue as to the precise date of the phone conversations between Mrs Sylvester and the appellant prior to the meeting on 30 August 1985, a matter which their Lordships have already dealt with in para 12 above. (Mr Beharrylal’s suggestion that that was the appellant’s best point before the Committee provides some indication of the weakness of his defence.)
The appellant’s second criticism was directed at the Committee’s finding that “all monies which the [respondent] paid to Osbourne were paid to him as agent of the Attorney. There was no evidence adduced by the Attorney to refute this evidence and we find as a fact that the sum of $29,400 was paid to the Attorney through his agent, Osbourne”. Mr Beharrylal points to the appellant’s evidence, recorded in the transcript, that he never in fact appointed Osbourne as his agent and never received any money from him. Their Lordships cannot accept, however, that the Committee must have overlooked those denials; rather it was saying that there was no such evidence adduced by the appellant independently of his oral denials.
The second ground of appeal also, therefore, fails. The appeal will accordingly be dismissed. Ordinarily it would be dismissed with costs. Since, however, the respondent took no part in the appeal the Board will assume, unless the executor suggests otherwise, that no order for costs is necessary.
Bhandari v Advocates Committee  1 WLR 1442
B v Chief Constable of Avon and Somerset Constabulary  1 WLR 340
Gough v Chief Constable of the Derbyshire Constabulary  QB 1213
R (McCann) v Crown Court at Manchester  1 AC 787
In Re A Solicitor  QB 69
Aaron v The Law Society  EWHC 2271 (Admin)
Goose v Wilson, Sandford & Co, The Times (19 Feb 1998)
Boodhoo v Attorney General of Trinidad and Tobago  1 WLR 1689
Legal Profession Act 1986
Mr Beharrylal, counsel for the appellant.
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