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[2009]JRC174
royal court
(Samedi Division)
1st September 2009
Before : |
Sir Richard Tucker, Commissioner and Jurats de Veulle, Tibbo, Le Breton, Clapham and Morgan. |
Between |
An Advocate |
Appellant |
And |
Disciplinary Committee of the Law Society |
First Respondent |
And |
Y |
Second Respondent |
IN THE MATTER OF MM
Advocate J. D. Kelleher for the Appellant.
Advocate S. E. Fitz for the First Respondent.
The Second Respondent was not represented.
judgment
the commissioner:
1. Article 24(1)(c) of the Law Society of Jersey Law 2005 provides a statutory right of appeal to the Royal Court. By Article 24(3) of the law, on hearing the appeal the Royal Court may confirm or reverse the decision of the disciplinary committee. There is no power to remit the matter to the Committee for re-determination. Having heard submissions from Advocate Kelleher on behalf of the appellant, the Court is satisfied that it is empowered to conduct a rehearing. Advocate Fitz on behalf of the Law Society does not dispute this. Therefore the Court is not confined to conducting a review of the matter as heard by the Committee.
2. The Court has been referred to the Rules of the Discretionary Panel of the Law Society made pursuant to the 2005 Law. Part 1V refers to the President's duties upon receipt of a complaint.
3. Paragraph 2 provides as follows:-
"The written statement of the complaint shall, so far as is possible having regard to the nature and circumstances of the complaint and the complainant, clearly set out in a manner that may be readily understood by the disciplinary panel all of the allegations of professional misconduct alleged against the practitioner together with all facts in support thereof and, where appropriate, reference to any documents upon which the complainant may rely."
4. Paragraph 8 enables the President to appoint any member of the Law Society to reduce the complaint to writing on his behalf.
5. The Court regrets to say that in its view, this was not done in the present case and this failure led to difficulties both for the Committee and the appellant.
6. There were three members of the Committee. Two of them were independent non lawyers. The third was a solicitor member of the Law Society but unfortunately she does not appear to have had experience of litigation or knowledge of how a quasi-judicial hearing should be conducted. The Chairman was one of the lay members.
7. It is clear from examples in England and from the use in Article 23(1) of the 2005 Law of the phrase "If it is satisfied that the complaint is proved" that there is an obligation on committees exercising a disciplinary function such as this, to adopt that principle. The question which then arises is whether the committee must be satisfied to the criminal standard of proof or the civil standard. The standard to be applied is the civil standard, "on the balance of probabilities" (See Gage v General Chiropractic Council (2004) EWHC 2762 Admin per Jackson J.).
8. It is understood that this may be the first appeal to the Court under the 2005 Law. We sympathise with the Committee if they had to find their way through uncharted waters. We hope it will be helpful if we give some guidance for the future.
9. First and this is a point upon which we had to rule in this case, we have no doubt that in an appeal by a practitioner, the proper Respondents to the appeal should be the Disciplinary Committee of The Law Society as First Respondent and the Complainant as the second. This is because it is the Society who having received the Complaint has the duty by its President of considering it and deciding whether it is appropriate to refer it to a disciplinary panel. The panel or committee is the agent of the Society for these purposes.
10. Second, it should be the responsibility of the Society to ensure that the complaint is promptly and properly formulated so that the issues are clear and can be properly addressed and determined by the committee, and understood by the practitioner.
11. Third, it should be the duty of The Law Society to present the case to the committee rather than leaving it to the Complainant to do so. It is or should be the Society who has the carriage of the proceedings both at first instance and upon any appeal. It is unfair and unwise to leave the burden of doing so on the complainant.
12. Fourth, although the Court notes that Article 21(1)(c) of the Law requires the President to name as the Chairman of the committee one of the lay members, it might in the Court's view be preferable if the Chairman could be the member of the Society. We suggest that consideration should be given to amending the Law in this respect. Further, although this may not always be possible in a small community, the Court feels that it would be desirable if the Chairman was a person with experience of litigation.
13. Fifth, the proceedings are quasi-judicial in character and the rules of natural justice should be applied.
14. Finally, the Court feels that it would be helpful if it could be given power to remit a case to the committee in order to deal with any procedural difficulties that might have arisen. We suggest that consideration should be given to amending Article 24(3)(a) of the Law to permit this course to be taken, if appropriate.
Authorities
Law Society of Jersey Law 2005.
Gage v General Chiropractic Council (2004) EWHC 2762.