Jersey Unreported Judgments

Misconduct - complaint of professional misconduct

[2015]JRC049B

Royal Court

(Samedi)

27 February 2015

Before     :		M. J. Beloff, Q.C., Commissioner, and Jurats Clapham, Kerley, Marett-Crosby, Milner, Liston, Ramsden and Morgan.
Between	Her Majesty's Attorney General		Representor
And	Philip Cowan Sinel		First Respondent
And	Steven Michael James Chiddicks		Second Respondent

IN THE MATTER OF A COMPLAINT PURSUANT TO THE LAW SOCIETY OF JERSEY LAW 2002

Advocate J. D. Kelleher for the Respondents.

judgment

the commissioner:

Introduction

1.        On 27^th August, 2013, and 11^th September, 2013, the Disciplinary Committee of the Law Society of Jersey considered a complaint (''the complaint'') made by Lord Jones in his capacity as a member of the Jersey Court of Appeal, and on behalf of himself and other members of the Court of Appeal, namely Dame Heather Steel JA, and Mr James McNeill QC, JA ("the complainants") against Advocate Philip Cowan Sinel and Advocate Steven Michael James Chiddicks, ("respectively the first and second respondents").  The complainants allege that each respondent was guilty of professional misconduct.  As set out below, the complaint has been duly referred to the Royal Court. 

2.        The issue raised by the complaint is one of the ambit of the advocate's duty to the Court.  It is an issue of the greatest importance to the Jersey legal profession, to the administration of justice in the Bailiwick and to the rule of law itself. 

Background

3.        The first respondent was at the material time and remains the senior partner and principal of Sinels Associates ("Sinels"). 

4.        The second respondent was at the material time and continues to be employed by Sinels as an associate. 

5.        At all material times before the Royal and Court of Appeal the first and second respondents have acted on behalf of and represented their client, Leeds United FC ("Leeds"). 

6.        In May 2005 Leeds United Association Football Club and later Leeds United Football Club (together "Leeds") started proceedings in Jersey against Admatch for recovery of a sum owed to Leeds of £190,400 ("the Admatch proceedings"). 

7.        On 19^th May, 2011, judgment was entered for the said sum in the Admatch proceedings in favour of Leeds. 

8.        On 15^th December, 2010, Leeds started concurrent proceedings in Jersey against Admatch, Mr Weston, its owner, and Mr Levi ("collectively the defendants") for sums paid away by Admatch to them in breach of trust which they dishonestly and in breach of their fiduciary duty assisted ("the Weston proceedings"). 

9.        After judgment in the Admatch proceedings, Weston and Levi sought a stay of the Weston proceedings on the ground that England, not Jersey was the appropriate forum.  They were represented by Baker and Partners ("Baker").  

10.       On 28^th September, 2011, the Royal Court granted a stay on that ground. 

11.      A Notice of Appeal dated 20^th October, 2011, and contentions dated 17^th November, 2011, were signed and filed by the second respondent.  A matter raised in the Notice of Appeal and the Contentions (although not before the Royal Court) was that some of the Claims might be time barred in England ("the limitation point''), which, if made good, would tell in favour of Jersey being the more appropriate forum for their adjudication.  

12.      On 22^nd November, 2011, the second respondent appeared before, and made oral submissions in support of an application for permission to appeal to a Single Judge of the Court of Appeal, Mr James McNeill QC, JA, who referred the matter to the full court. 

13.      Meanwhile on 28^th October, 2011, on the advice of English Counsel a claim form, the so-called protective writ, was issued by Leeds' English solicitors in the High Court in England. 

14.      It is common ground that:-

(i)         the effect of the issue of such a writ was to stop the clock running for the purposes of limitation in England in respect of any of the Claims which were not already time barred (although not, of course, to revive claims that had already suffered that fate; see Civil Procedure Rules 1998 7.2(1));

(ii)        such effect would subsist until 28^th February, 2012, and would continue thereafter as long as on or before that date Leeds served the writ upon the defendants;

(iii)       the respondents were aware of that effect;

(iv)        the defendants would not become aware, except adventitiously, of issue of the writ unless and until it was served upon them;

(v)         as and when the defendants did become aware of the issue of the writ, they could compel its service and service of full particulars of claim (see Civil Procedure Rules 1998 7.7). 

15.      It appears that English Counsel was sanguine about disclosure of the issue of the writ to the defendants.  However a decision was taken by Leeds' English solicitors Carter-Ruck & Co ("CR") after discussion with their client not to make such disclosure.  Their concerns seem to have been twofold; first that the defendants might argue that the issue of the writ in England was inconsistent with Leeds' position before the Court of Appeal that Jersey was the more appropriate forum for adjudication of the claims; second that the defendants would compel Leeds to serve the writ with concomitant incurring of further expense.  This Court does not need to consider the merits of such concerns, but only their existence and the fact that the respondents, whatever their private views as to those merits, were themselves privy to those concerns. 

16.      In order further to protect themselves against any subsisting Claims, not already time barred, becoming so CR negotiated a standstill agreement with Baker ("the standstill agreement") by which the latter, subject to the qualification in the next sentence, agreed that any period from the date of such agreement up till delivery of the Court of Appeal's judgment would not count for limitation purposes.  It appears from e-mail exchanges that CR were not wholly certain that the standstill agreement was efficacious, whereas Baker were certain that it was.  The Court does not need to consider which view was correct, but only to note the uncertainty on the Leeds side and the fact that the respondents, whatever their private views, were privy to that uncertainty. 

17.      On 22^nd December, 2011, the second respondent signed and filed further written contentions.  It was prepared by English Counsel and settled by the first respondent. 

18.      On 23^rd and 24^th January, 2012, the hearing of Leeds' appeal took place before the Court of Appeal (Dame Heather Steel, President, McNeill and Jones JAA).  The issue of possible time bar of any claims made in England was not adumbrated upon, but equally was not abandoned.  

19.      At the conclusion of submissions the first respondent who had carriage of the oral argument on behalf of Leeds raised a question about when the Court of Appeal might deliver its judgment.  The relevant passage from the transcript requires setting out in full.:-

"ADVOCATE SINEL:  There are at the back of mind some complex limitation questions, so I would only say I hope it will not be too long, l...

PRESIDENT:  You want to address us on that?

ADVOCATE SINEL:  Well, it, we've, we've sort of done it to death in correspondence as the Court has seen in relation to, to limitation but we did, there are some complex equations in relation to whether Jersey law would apply to a process in England and so on and so forth and I'm aware that if I could put <indistinct> it's got a red flag on it from my point of view.  So if there was going to be a great delay then I wouldn't ....

PRESIDENT:  Well we sincerely hope there won't be a great delay but Mr Redgrave, well what are, what is the time constraint? 

ADVOCATE REDGRAVE:  There's no time restraint we, I believe that we have reached this measure of agreement that the Plaintiff will not seek to gain any advantage in relation to the time taken for this appeal.  So once this appeal is concluded then time may start running again but that's the agreement we've reached and I, it's not really a matter for this Court with respect, I think what we've agreed but I can assure this Court and it's on the record if there's a delay in the issuing of judgment that will not be something that we will seek to take advantage of. 

PRESIDENT:  Yes. 

JONES JA:  What, what's the nature of the problem? 

ADVOCATE REDGRAVE:  We don't really understand the problem it's been raised by the Plaintiff's they have suggest that there may be some disadvantage to them in relation to limitation. 

JONES JA:  What in England? 

ADVOCATE REDGRAVE:  Yes, but they haven't told us what it is and we've said that we won't seek to take advantage of any such ....

ADVOCATE SINEL:  In, in broad terms, the difference is this.  In Jersey fraud is imprescriptible(sic), possible 30 year limit, contract is 10.  In England there are 6 year periods for fraud and contract and it's, it's a different scenario so it's something I simply have my eye on and I'm grateful to my learned friend for his assurances.  (Discussion between Judges). 

PRESIDENT:  We're, we're considering together as you may, may have heard whether in fact we invite you both to make some submissions on the time constraint.  Quite clearly if this matter is to go to England it is important that there is no limitation period which is going to affect the course of these proceedings if that were to be our decision.  Can you provide us with some written contentions?  How soon? 

ADVOCATE SINEL:  Early next week I would have thought.  Because, I mean my hesitation is because it involves English Law and I have to get help on that. 

PRESIDENT:  Yes.

ADVOCATE REDGRAVE:  Well certainly we can assist, we have said in correspondence that we won't seek to derive any advantage from, I don't want to get the words wrong, but it's been dealt with in correspondence ....

PRESIDENT:  Yes.

ADVOCATE REDGRAVE:  ..... and I'm sure it can be, if Mr Sinel will elucidate what the history specifically is we'll be able to deal with it more clearly.  

JONES JA:  Well, just so that you understand, the, the, the possible concern that we have it is that it maybe the case in English law that a party can't waive a limitation period.  In other words it doesn't matter, it might not matter that one party says well more than 6 years have expired but we're not going to take any point.  The Court may itself take the point that if the right is extinguished there's nothing it can do.  So that, that's something you might want to, to apply your minds to. 

ADVOCATE SINEL:  I, I would indeed and I did, it's a minefield in relation to a case of this complexity as to what's going to apply where.  It's very complicated.  Thank you for the <indistinct>, thank you very much. 

PRESIDENT:  Well if, if we can have those contentions Advocate Sinel by early next week I anticipate Mr Redgrave that you may not do, put anything in writing for the Court. 

ADVOCATE REDGRAVE:  Well I suppose I should wait to see what comes and then deal with it as quickly as possible. 

PRESIDENT:  Would 7 days be appropriate for an answer? 

ADVOCATE REDGRAVE:  Yes.

PRESIDENT:  Yes."

20.      It is common ground that, consistent with his instructions, the first respondent did not inform the Court of Appeal about the issue of the protective writ. 

21.      This Court considers that it is clear from those interchanges and, in particular, the concluding words of Jones JA, as he then was, that the Court of Appeal were concerned about whether there was any need for them to seek to accelerate handing down of their judgment, as they had been invited to do, and, in that context only, whether the standstill agreement would be acknowledged as effective by the English Courts.  If it would be acknowledged as effective, then there would be no such need; if it would not, then, on their state of knowledge of material matters, there would (or might) be.  It was for that (and no other) reason that they requested ("the request") written submissions on that point ("the standstill agreement point").  The respondents accept that the first respondent in raising the issue of limitation at the conclusion of the hearing was concerned only to ascertain when judgment would be delivered so as to know when, if at all, it might become necessary to serve the protective writ (and ancillary pleadings) on the defendants.  This Court will return to the significance (or otherwise) of the Court of Appeal's ignorance of the protective writ at a later stage of this judgment. 

22.      The parties duly provided the written submissions requested.  The defendant's response drafted by Baker is erroneously dated 13^th January, 2012, (the correct date is unknown but presumably post-dated the hearing on 24^th January and is in any event not relevant to the substance of this matter).  It addressed only the standstill agreement point, showing that they shared this Court's interpretation of the request. 

23.      Leeds' response to the request dated 6^th February, 2012, to which both respondents contributed does not directly address the question about the effect of English limitation rules on the date of delivery of the Court of Appeals judgment; indeed it describes the limitation issue raised by the Court of Appeal as being "the position or effect of the Learned Bailiff's decision on matters of limitation" which is clearly not correct.  Rather it raises such issues in the context of a substantive argument as to appropriate forum, which this Court interprets to be an ingenious, if belated attempt, to give substance to the limitation argument and, to, encourage the Court of Appeal to allow the appeal, and restore the case to Jersey.  It stated, inter alia:-

(i)         "Thirdly, the position if fresh process were to be initiated in England is highly complex and would likely lead to the need for adduction through experts of evidence as to Jersey law both substantially and as to prescription".

(ii)        "it is not know(n) what, if any, defence by way of limitation the Respondents may seek to raise if proceedings are commenced in England."

(iii)       "If the appellant were to initiate first process in England, they may be faced with complex prescriptive issues which do not apply to the present proceedings" (emphasis added)."

24.      The response by Baker (which is incorrectly dated as 13^th January, 2012,) suggested that the Leeds response evinced "an opportunistic hope that it can at this late stage benefit from raising a point it chose not to raise before", which chimes with this Court's own conclusion as set out above.  

25.      In a chaser letter dated 15^th February, 2012, written by the second respondent but on the authority of the first respondent, the respondents again sought to encourage the early delivery of the judgment.  That letter again spoke of proceedings being "commenced" (sic) in England.  It also referred to "the prejudice which may be suffered with respect to the expiry of limitation periods in the event that its appeal is unsuccessful if it does not take certain steps imminently in England to secure its position".  This cryptic and unspecific reference to the need to serve the protective writ was correct in itself, but incorrect in so far as read (as sensibly it had to be) in conjunction with the earlier reference to "commenced". 

26.      Finally, on 27^th February, 2012, such judgment of the Court of Appeal not having yet been delivered, the protective writ was served on the defendants in order to ensure that its suspensive effect would continue.  The particulars of claim, when served with it comprised 36 pages compared with the 3 pages for the protective writ itself- a vivid illustration as to why Leeds would not wish, if it could be avoided, disclosure of the latter which might prompt the defendants  to require Leeds expensively to prepare and serve the former. 

27.      In a letter of the same date informing the Court of Appeal of this development Baker said that they were "surprised and disappointed" that the issue of the protective writ had not been mentioned to the Court of Appeal. 

28.      On 29^th February, 2012, the Court of Appeal thus, for the first time apprised of the issue of the protective writ, asked the respondents to confirm if they knew of the existence of the protective writ and, if so, why the Court of Appeal was not informed. 

29.      Various drafts of a possible response to the Court of Appeal's letter of 29^th February, 2012, passed between english counsel and the respondents.  This Court accepts in point of fact that the reply when sent was the product of several authors. 

30.      On 7^th March, 2012, the respondents replied in a letter of seven pages in length.  It explained why the protective writ was issued; why Leeds did not wish it disclosed to the defendants; the continued concerns over limitation issued in any proceedings in England; and made for good measure copious criticisms of the defendants' conduct of the proceedings overall.  It said that at the hearing on 24^th January, 2012, in respect of the impact of English limitation on the proceedings "it was clear on advice of English Counsel that the matter was complex and inconclusive and Sinels advised the Court of the same".  The key paragraph read "Limitation was not pursued in oral argument save as to the possibility of delays in the Court in delivering its judgment.  This was an ancillary issue to the appeal.  The Plaintiff (i.e. Leeds) apologises unreservedly if in the light of the position now reached it is felt that in its post hearing submissions in writing it did not make its position clear and/or explain the existence of the claim form.  The Plaintiff was focussed on responding to the Court queries, found it difficult to articulate its concerns and as explained above, did not consider that the concerns and submissions were affected by the existence of the Claim form.  There was also an underlying perception from a Jersey perspective of the significance to be attached to service of a Claim form as opposed to its issue."

31.      Again this somewhat opaque exegesis does not, in this Court's view, confront the key issue; how the existence of the protective writ could not be relevant to the Court of Appeal's decision as to when to deliver its judgment. 

32.      On 23^rd April, 2012, the Court of Appeal dismissed the Appeal 2012 with indemnity costs Leeds United Football Club Limited v Weston and Levi [2012] JCA 083. 

33.      On 7^th May, 2012, the Court of Appeal being apparently dissatisfied with the reply of 7^th March, 2012, and the apology contained therein, Jones JA wrote to the President of the Law Society concerning the conduct of the respondents setting out the history of the way in which limitation issues had been ventilated before them both in writing and orally and ending:-

"It seems to us, therefore, that it was incumbent on Mr Sinel (i.e. the First Respondent) on 24 January to advise the court that the workings of the English law of limitation might be of no concern to us, because time may not have been running against the plaintiff since October of last year, and that, if so, we were under no pressure of time to issue a decision, on that account.  In the whole circumstances, we find it difficult, if not impossible, to regard Sinels' letter of 7 March as a candid response to the question that was asked, following our email of 28 February.  

I am communicating this narrative to you as the relevant authority with a request that these events be investigated, with a  view to determining whether disciplinary action should be taken against Sinels, or any individual in that firm.  I attach relevant documentation.  You may also wish to refer to our costs judgment in this matter [2012] JCA 088."

34.      On 28^th January, 2013, the complaint (signed by Lord Jones, as he had by then become) was sent to the respondents.  This Court is clear that the gravamen of the complaint is first that the Court of Appeal had been misled on 24^th January, 2012  into a concerned belief  that there might be a need for them to accelerate their judgment if the standstill agreement were not effective; secondly that they had made the request for supplemental submissions on the standstill agreement point only (confirming further this Court's interpretation of the interchanges on that date); thirdly that had they been apprised of the issue of the protective writ given its effect as described in para 14 above they would not have had (or continued to have until apprised of the true position) that concerned belief  nor would they have made the request ("the narrower element").  It also asserted that the protective writ was relevant to the issue of any prejudice to Leeds in any English proceedings by reason of limitation issues, as appears from the particulars of the complaint where it was stated:-"The Complaint therefore relates to actions following the date of the issue of the protective writ" and "As a general point it is considered that on each occasion that anyone from Sinels communicated with the Court of Appeal, they should have made the Court aware that the protective writ had been filed" ("the broader element"). 

35.      On 4^th July, 2013, the respondents sent a reply to the Law Society ("the reply") authored by Advocate Kelleher (but necessarily and properly reflecting the respondents' instructions).  It dealt fully with the broader element of the complaint.  It dealt also with the narrower element where first emphasis is placed on the clients' instructions not to reveal the writ, and the inhibition on so doing by reason of legal professional privilege and second it is stated that the positive statements about complex limitation issues were true, indeed vouched for by English Counsel in his lengthy advice of 21^st October, 2011. 

36.      After hearings which took place before it on 27^th August, 2013, and 11^th September, 2013, the Disciplinary Committee of the Law Society pursuant to Article 23(1)(c) of The Law Society of Jersey Law 2005 ("the 2005 Law") referred the complaint to the Attorney General without making a finding.  

37.      Although procedure was duly followed, the Court is asked to note the time taken and its impact on the respondents in the context of mitigation. 

38.      On 25^th and 26^th November, 2014, and 19^th January, 2015, the hearing before this Court took place.  The respondents each provided a witness statement which they added to orally and on which each was cross-examined.  Submissions were made by the Attorney-General and Advocate Kelleher to both of whom the Court is indebted. 

The Law

39.      The Law Society of Jersey's Code of Conduct provides:-

"2.      Standards

The Law Society of Jersey Code of Conduct, provides:

(2)       "It is the duty of every member at all times to uphold the dignity and high ethical and technical standards of the legal profession, and to adhere to the terms of the oath sworn before the Royal Court. A member has an overriding duty to the Court to ensure in the public interest that proper and efficient administration of justice is achieved. A member must assist the Court in the administration of justice and must not deceive or knowingly or recklessly mislead the Court."

(5)       A member's firm shall properly manage and administer its practice and shall ensure that appropriate arrangements are in place for supervision of qualified and unqualified staff, and for making them aware of those parts of this Code of Conduct which are relevant to their respective roles in the firm.

...      

19.      Duty to assist Court

A member shall bear in mind that whilst an advocate's primary function is to present the case for a client to its best advantage, there is no requirement to win the case at all costs. The fundamental principle to guide the member is that an advocate's function is to assist the Court to reach a just decision on the facts properly adduced before it in accordance with a correct interpretation of the law.

(2)       A member shall not consciously deceive the Court or state facts to the Court which the member knows to be untrue. The member shall bring to the notice of the Court every relevant legal authority which such member's researches have revealed, even although they may be adverse to the case of a client."

Issues

40.      It falls to the Court to determine on the evidence whether the first or second respondent both misled the Court of Appeal either by their actions and/or by omission and, if either did, whether he did so knowingly or recklessly ("liability"). 

41.      If the Court is satisfied that the charge is made out, it must then consider the appropriate sanction ("sanction"). 

Liability; general

42.      It is common ground that:-

(i)         Misleading the Court is a necessary but not sufficient basis for finding a charge to be made out; such misleading must also be either deliberate or reckless;

(ii)        The civil standard, the balance of probabilities applies to the determination of both whether there was misleading at all, and, if so, to whether it was deliberate or reckless; and

(iii)       The case of each respondent requires separate consideration. 

43.      It is also clear that whatever may have been the initial thrust of the Attorney General's representations, the misleading now relied on relates only to the issue of whether there was any need for an accelerated judgment (i.e. "the narrower element"), and not to the substance of such judgment (i.e. "the broader element").  

44.      This forensic choice, which was a matter for the Attorney General substantially abbreviated the area of factual dispute.  However a further consequence was that much of the written material before the Court, including the transcript of the hearing before the Disciplinary Committee became redundant other than as providing context.  While no criticism can be or is made of the conduct of the respondents or their legal representatives for dealing with the broader element while it appeared to be live, a by-product was that ,by focussing on it, they did not always deal adequately, if at all, with the narrower element. 

Liability; misleading

45.      As to misleading, the Court of Appeal judges clearly perceived themselves to be misled.  That is compelling evidence that they were misled, given not only the stature of their members as eminent and experienced lawyers, but also their knowledge of the relevant factual circumstances.  It is not, however, dispositive.  This Court has to assess whether the perception of the Court of Appeal was correct. 

46.      This Court has no doubt at all that the Court of Appeal was misled in that way and for the reasons set out in the complaint itself.  They were given only half of, and not the full picture as to matters which bore on the need or otherwise for them to give an accelerated judgment.  They knew about the standstill agreement, as to whose efficacy from the perspective of the English Courts, they were uncertain; hence they made the request.  They did not know about the issue of the protective writ, whose efficacy up to 28^th February, 2012, was indisputable, and the protraction of which beyond that date by service lay entirely in Leeds' hands.  The lack of knowledge was attributable solely to the fact that the respondents did not tell them about it.  

47.      In this context it is well established that an advocate may mislead by omission as well as by commission.  In R v Rumpf [1987] Supreme Court Victoria, McGarvie J stated:-[P472]

"Counsel and solicitors for the defence must not knowingly mislead the court either by the words used or by omitting to say what is necessary to be said in order to prevent literally true words which have been used from misleading.  In another context Lord Chelmsford observed: It is said that the prospectus is true as far as it goes, but half a truth will sometimes amount to a real falsehood": Peek v. Gurney (1873) L.R. 6 H.L. 377, at p. 392.  See also Arkwright v. Newbold (1881) 17 Ch. D. 301, at p. 318 and The Professional Conduct of Solicitors, supra, para. 12.14".

This Court agrees with and applies that approach. 

48.      Advocate Kelleher's strenuous argument on behalf of the respondents, in this Courts view, did not engage with the key issue.  He repeatedly suggested that the representation made by the respondents to the Court of Appeal was, to quote from his skeleton argument, "that issues of limitation in the English forum were a concern for their client'' and that there was no misleading because, to quote from the same document, "the fact is, however, that issues of limitation in the English forum were a concern for Leeds".  This Court accepts that issues of limitation in England may well have been a concern for Leeds' English Counsel who had so advised at some length.  Leeds' claims related to events long gone by, and hence some (indeed the first respondent asserts possibly all of them) might be time barred in England.  But in so far as any remained alive, the protective writ prevented the same from happening to them up to 28^th February, 2012. 

49.      The flaw in Advocate Kelleher's approach is that it concentrates on what the first respondent did say and not on what he did not say.  The matter which required to be addressed in the context of the first respondent's submissions to the Court of Appeal on 24^th January, 2012, was not whether Leeds' had concerns about limitation provisions in the English proceedings bearing on Leeds' ability successfully to pursue claims in that forum, but whether those provisions were relevant to the timing of the Court of Appeal's delivery of its judgment.  Because of the issue of the protective writ, they were not.  It was the first respondent's silence about the issue of that writ which misled the Court of Appeal.  It was at that juncture a sin of omission, not of commission. 

 

50.      At the very least the Court of Appeal had up to 28^th February, 2012, to deliver its judgment without the passage of time between the 24^th January and that later date having any effect at all on the claims; and even if service on or before that later date, was necessary to perpetuate that standstill, the Court of Appeal might well, if apprised of the issue of the protective writ, and knowledgeable of the effect of its service have been disinclined to accelerate its judgment when it was entirely within Leeds' control to make such acceleration unnecessary.  The Court of Appeal obviously thought that it was the standstill agreement which was uniquely crucial to whether or not judgment should be delivered sooner rather than later; but it was not.  It was the protective writ and its incidents which was crucial. 

51.      There was of course nothing objectionable in itself in Leeds not revealing the issue of the protective writ to the defendants given Leeds' concern that the defendants might use it to their advantage.  Tactics are part of a lawyer's litigation weaponry. 

52.      It was, however, the first respondent who himself ventilated the issue of the timing of the delivery of the judgment.  Had he not done so and allowed Leeds to take the risk that it was not delivered before 28^th February, 2012, he would not have found himself in his present predicament.  He was not obliged gratuitously to inform the Court of Appeal of the issue of the protective writ at a time when it was of no consequence to that Court.  But once he ventilated the timing issue he could not, either by commission or omission, mislead the Court as to the facts material to their decision as to when their judgment should be delivered because of the duty that he owed them.  He was hoist with his own petard. 

53.      This Court appreciates that, faithful with his duty to his client Leeds the first respondent had no option but to raise that issue.  Had Leeds not served the writ before 28^th February, 2012, and had the Court of Appeal not delivered judgment before that date, then, subject only to the possible efficacy of the standstill agreement which, if for different reasons, was moot both in the eyes of CR and of the Court of Appeal, the limitation problems in England might have increased.  Yet the first respondent, if faithful only to his duty to his client, could not tell the Court of Appeal about that writ. 

54.      It is in those circumstances there is a tension between these two duties where the advocate is truly tested.  In an extra curial lecture, published in 'The Ethics of Advocacy and other things', Lord MacMillan, a Law Lord, said "In the discharge of his office the advocate has a duty to his client, a duty to his opponent, a duty to the Court, a duty to the State and a duty to himself.  To maintain a perfect poise amidst these various and sometimes conflicting claims is no easy feat".  (The potential for such conflict is recognized in a wide ranging article by D Ipp "Lawyers Duties to the Court" 1998 LQR 63).  Difficult it may be but there is no question as to which is the higher duty.  It is common ground, that in a collision of these two duties, the duty to the Court is paramount and predominates. 

55.      As Lord Denning MR said in Rondel v Worsley 1967 1 QB 443 at p.502 "He has a duty to the Court which is paramount.  It is a mistake to suppose that he is the mouthpiece of the client to say what he wants; or his tool to do what he directs.  He is none of these things. He owes allegiance to a higher cause.  It is the cause of truth and justice".  In Brett v SRA [2014] EWHC 2974 ("Brett"), Lord Justice Thomas (as he then was) observed that "Every lawyer must be alive to the fact that circumstances can arise during the course of any lawyer's professional practice when matters come to his knowledge (or are obvious to him) which may have the effect of making his duty to the Court his paramount duty and to act in the interests of justice." [Para 110]. 

56.      In so far as the respondents in the reply and elsewhere sought to justify their behaviour on the basis that they were acting on order to promote and protect the best interests of their client (see Article 19 of the Code) such contention is unavailing.  The duty to the client cannot justify misleading the Court. 

57.      If the first respondent wished to suggest to the Court of Appeal that there was a need for an accelerated judgment he should have asked Leeds for permission to disclose the issue of the protected writ, or if Leeds refused permission, to have declined to seek an accelerated judgment, (or, in the extreme circumstances that Leeds insisted that he make such suggestion but without such disclosure, have declined to act further for them). 

58.      The Court notes further that the misleading of the Court of Appeal did not consist of a single occurrence on 24^th January, 2012, but of a course of conduct embracing subsequent submissions and correspondence from the respondents.  Not only did the respondents not correct the false impression necessarily created by the first respondent's omission to refer to the protective writ on that date, but they aggravated it by referring repeatedly to the inception of proceedings in England as it were something which would take place, if at all, in the future, whereas it had in fact already taken place by issue of that writ.  This was a professional sin of commission as well as of omission. 

Liability; deliberateness

59.      The Court is satisfied that the respondents deliberately misled the Court of Appeal.  First despite occasional remarks in their written and oral testimony to the effect that they were Jersey not English lawyers, and in the case of the second respondent in particular inexperienced in the niceties of English procedural law, they cannot, and do not, ultimately contend that they were unaware of the effect of such issue.  The clear explanation of the desirability of issue of such a writ voiced by English Counsel, which they had heard or seen would give the lie to any such contention.  Secondly they knew full well that Leeds did not wish them to disclose the issue of the writ to the defendants, which disclosure to the Court would necessarily entail.  Thirdly since to act in accordance with their clients' instructions would inevitably inhibit such disclosure they chose to act in accordance with those instructions while ignoring that this involved a breach of their duty to the Court. 

60.      The respondents' defence to the complaint was articulated in the response of 7^th March, 2012; in the reply; in their witness statements; and in their oral evidence.  The respondents' explanations of their omission to refer to the issue of the protective writ at any time at the various junctures referred to seemed to the Court to be diffuse and not always consistent.  The Court has already noted that reliance on the undoubted duty under Article 19 to "protect and promote the interests of the client" cannot stand against the superior duty owed to the Court, which equally trumps reliance on client confidentiality and legal professional privilege; and that whether or not limitation periods might have expired in respect of various English causes of action prior to issue of the protective writ had no bearing on the question of the date when the Court of Appeal had to deliver its  judgment.  

61.      In so far as there was any dominant theme of the first respondent's evidence it lay in his asserted view that the protective writ "did nothing", because the claims, if brought in England, were already time expired, and because the standstill agreement was effective to stop the clock running if, contrary to his own view, any such claims were not time barred.  The problem with that explanation is that he was, and had to, act in accordance with his instructions (subject always to his overriding duty to the Court) and it is clear that Leeds CR and English Counsel still thought that at any rate some of the claims might not be time barred in England - otherwise the issue of the protective writ would have been an exercise in futility, and were not convinced of the efficacy of the standstill agreement.  The first respondent cannot properly blow hot and cold; claiming to act in accordance with his clients instructions on the one hand, and then simultaneously, disavowing the wisdom of such instructions on the other and in consequence acting in accordance with his own divergent personal view. 

62.      The Court was regrettably unconvinced by the first respondent's oral evidence that he did not even have the protective writ in mind at all when he raised concerns with the Court of Appeal about any delay in their judgment.  Given his awareness of the flow of e-mails between Leeds' English lawyers and his firm which emphasised the function of such writ this seemed unlikely, if not actually incredible. 

63.      In an answer to the Commissioner, the first respondent now accepted (though he claimed with hindsight only) that saying to the Court of Appeal that there was a protective writ would have brought any debate on limitation to an end, and the request for supplemental submissions would not have been necessary.  The Court considers that not only ought he to have appreciated that on 24^th January, 2012, but that he must have done. 

 

64.      The second respondent's witness statement adopted in oral evidence did not engage at all with the issue of the materiality of the protective writ to the timing of the judgment.  He stresses the fact that limitation was not advanced as a ground of appeal during the hearing before the Court of Appeal although he was in error in saying it was not dealt with in the contentions.  

65.      The Court does not accept that the references by both respondents in communications with the Court in February 2012 to future institution of English proceedings, when they had already been instituted, was the consequence of the absence of any such adjectival animal as a protective writ in Jersey or of the fact that in Jersey the start of any legal process is marked by service of the relevant court document.  It would be perverse to construe something, i.e. the protective writ, which is admitted to have been known by them at all material times to have legal effect nonetheless not to have commenced proceedings.  (Rule 7.2 of the Civil Procedure Rules 1998 states "that proceedings are started when the court issues a claim form at the request of the claimant".)  Rather in the Court's view, deployment of this vocabulary was necessary to distract the Court of Appeal from appreciating that such writ had been issued.  To have written in terms of proceedings in England being continued rather than commenced would have given the game away and revealed, or run the risk of revealing, the misleading omission of reference to the issue of such writ which occurred on the 24^th January, 2012.  The die was cast on that date. 

66.      The Court was not impressed by suggestions that the vocabulary used in those communications was vouched for by English Counsel.  First, as the respondents fairly conceded, they had in point of law to take responsibility for what went out under their name.  Secondly, the allegedly exculpatory material in the form of e-mails between English lawyers and the respondents, curiously not relied on at any previous stage of this protracted disciplinary process, was not established, still less accepted by the Attorney General, to be complete (nor on its face did it indisputably appear to be so), and therefore, the Court considers that the inferences which could be drawn from it were fragile.  Thirdly, the English lawyers, not within the jurisdiction of this Court, were not in consequence the subject of any charges, and it would be unfair in their absence to criticise them.  Fourthly, when the Court noted that no evidence was forthcoming from those lawyers to support the respondents, it was candidly stated by Advocate Kelleher that they were not "prepared" to assist.  There are a number of possible explanations for this reticence on which it would be imprudent for this Court to speculate.  It is sufficient to note that the respondents cannot derive any advantage for this lack of support. 

67.      The Court had the opportunity of sight and sound of the respondents.  In its view the respondents were, taking the most charitable interpretation of their evidence, imposing with the benefit of hindsight a construction of the material events which was at odds with their acts and words at the time.  In the Court's view too, the respondents knew what they were doing and saying and to the extent that they considered those acts and words to be justified, they were wrong. 

Sanction

68.      The sanctions available to the Court are set out in Article 26(8) of the Law Society of Jersey Law 2005.  They are:-

"(a)     a private rebuke;

(b)       a public reprimand;

(c)       a fine;

(d)       suspension from practising as an advocate, not exceeding 6 months; or

(e)       a strike off."

It appears first that these are sanctions to be applied alternatively not in conjunction any one with another and are calibrated and graded to apply through from the least to the most serious offence; secondly there can be no power in this Court to suspend a suspension or striking off unless and until express provision is made for such. 

69.      The majority of the mercifully few Jersey cases are of very different kinds of misconduct, and none shown to this Court are of an equivalent nature to the present.  The then Bailiff said in AG v Begg [2014] JRC 254, "it is a perilous and unsatisfactory course to try and compare the detailed facts of one case with another in order to see whether the penalty should be higher or lower".  This Court agrees.  It is the principles laid down in the jurisprudence, not their application to particular facts, which will guide it. 

70.      The misconduct here in play is misleading the Court.  Its importance cannot be gainsaid. 

71.      In Brett, the Lord Chief Justice said:-

 

"The reason why that is so important is that misleading the court is regarded by the court and must be regarded by any disciplinary tribunal as one of the most serious offences that an advocate or litigator can commit. It is not simply a breach of a rule of a game, but a fundamental affront to a rule designed to safeguard the fairness and justice of proceedings. Such conduct will normally attract an exemplary and deterrent sentence. That is in part because our system for the administration of justice relies so heavily upon the integrity of the profession and the full discharge of the profession's duties and in part because the privilege of conducting litigation or appearing in court is granted on terms that the rules are observed not merely in their letter but in their spirit. Indeed, the reputation of the system of the administration of justice in England and Wales and the standing of the profession depends particularly upon the discharge of the duties owed to the court."

No less does it do so in Jersey.  As Sir Philip Bailhache Commissioner (as he then was) said pithily in AG v Michel [2011] JRC 093 "At the very core of the relationship between an advocate and this Court is the virtue of truthfulness and her first cousin trust. If an advocate cannot be truthful with the Court there cannot be trust, and without trust between Counsel and the Bench, the process of justice is undermined."  Although their roles differ, bench and bar are engaged in a joint enterprise to uphold the rule of law.  

72.      Advocate Kelleher urged upon us the following considerations as to sanction. 

73.      In respect of both respondents he emphasised that the misconduct found involved no personal gain, and that they had shown loyalty to each other rather than sought to blame each other.  He stressed the length of the shadow cast by the complaint which had taken already some years to resolve, and the expense incurred in contesting it as well as the earnings lost as a result of that diversion from their ordinary practice.  He noted that they had apologised promptly.  He reminded the Court that the misleading did not affect the outcome of the appeal.  He drew attention to the fact that a sanction, whether suspension or a large fine, could put in jeopardy the future of the firm already affected by the recession and these proceedings, and the livelihoods of its three other legally trained staff (although the evidence in support of this proposition was less detailed than is both conventional and desirable).  Advocate Kelleher also delicately alluded to the first respondent's personal problems (both medical and matrimonial).  

74.      Advocate Kelleher produced character reference in support of both respondents and submitted:-

(i)         In relation to the first respondent, that he was an advocate of 28 years' standing with a high profile and a reputation for fighting highly contentious cases, sometimes those perceived as "lost causes" and occasionally on a pro bono basis.  Whilst the first respondent did not have an unblemished reputation in terms of professional conduct the two previous instances, where he was found to have committed professional misconduct were of a different kind and of lesser gravity; and

(ii)        In relation to the second respondent, that he was only recently qualified as a Jersey lawyer at the time of the offence.  He had hitherto an unblemished record.  The second respondent naturally deferred to his senior partner, the first respondent.  He had done good works in the community in spheres such as youth football. 

75.      The Court has taken account of all these matters.  As Sir Thomas Bingham, Master of the Rolls, said in Bolton v Law Society [1994] 1 WLE 512, such matters "are relevant and should be considered" instancing of particular significance to the pleas in mitigation made in the present case, tributes from others and serious adverse effects on the firm.  However he continued "none of these touches the essential issue which is the need to maintain among members of the public a well-found confidence that any solicitor whom they instructed will be a person of unquestionable integrity, probity and trustworthiness" (for solicitor read Jersey Advocate).  The particular form of misconduct found in the present case touches upon a key aspect of the lawyer's professional duty, to be honest with the Court.  A Court misled is a Court which may, through no fault of its own, not do justice to the matter of which it is seized. 

76.      The Court notes that a suspension cannot exceed six months.  (It is not suggested that striking off would be appropriate).  The most significant feature of the misconduct alleged and found is that it was not capable of influencing the substance of the Court of Appeal's judgment, but only the timing of its delivery.  Had the case been pursued (and succeeded) on the basis that the respondents misled the Court into allowing the appeal and designating Jersey as the proper forum because it had been misled as to the adverse effect of English laws on limitation on Leeds' prospects of success in England, the consequences would have been far more serious and the sanction by the same token more severe than is in the Court's view warranted by the circumstances of the case as actually and finally advanced and (by a majority) found proven. 

77.      While it is never acceptable for an advocate deliberately to mislead a Court, it would be wrong not to take account of the degree of harm which could be occasioned by that misleading; in this case at the lower end of any scale.  As Sir Thomas Bingham said in Bolton "lapses from the required high standard may, of course, take different forms and be of various degrees".  Furthermore the respondents themselves gained no personal benefit from their misconduct; Bolton by contrast involved raiding a client's account.  And the Court need not be entirely oblivious to the fact that a more draconian sanction than that which it has concluded is appropriate could put the livelihood of innocent people within the firm at risk. 

 

78.      For all those reasons the Court has determined that whereas a suspension is required to emphasise to the respondents (and others) the importance of fidelity to their paramount duty to the Court, it can be less than the maximum.  In short, the Court ordered sanctions of a 4 month suspension for the first respondent and a 2 month suspension for the second respondent (to reflect the differences in seniority and the fact that it was the first respondent who initiated the misconduct) to be served sequentially so as to minimise the damage to others in their firm and the firm's clients.  

Costs

79.      The Attorney General moves for costs to be granted in his favour of £5,000 by each respondent.  The Court accepts that these are modest sums given the time and effort necessarily and properly spent in pursuit of this complaint.  Advocate Kelleher's revelation of his own charges supported that conclusion.  The costs will be so ordered. 

Authorities

Civil Procedure Rules 1998.

Leeds United Football Club Limited v Weston and Levi [2012] JCA 083.

The Law Society of Jersey Law 2005.

R v Rumpf [1987] Supreme Court Victoria.

The Ethics of Advocacy and other things'.

Lawyers Duties to the Court" 1998.

Rondel v Worsley 1967 1 QB 443.

Brett v SRA [2014] EWHC 2974.

AG v Begg [2014] JRC 254.

AG v Michel [2011] JRC 093.

Bolton v Law Society [1994] 1 WLE 512.