Scott v Holmes [2019] CKHC 51; LP 3 of 2016 (23 July 2019)

LP /2019

IN THE MATTER
of Part III of the Law Practitioners’ Act 1993-94

AND

IN THE MATTER
of a complaint alleging professional
misconduct

BETWEEN
JOHN AND TARA SCOTT of
Rarotonga, Cook Islands
Complainant

AND
ROSS WAKEFIELD HOLMES, of
Rarotonga, Barrister and Solicitor
Respondent

Date of complaint: 15 September 2016
Date of Decision: 23 July 2019

DECISION OF HUGH WILLIAMS, CJ

[WILL0627.dss]

Result: For the reasons set out in this decision, the complaint of professional misconduct by the Complainants against the Respondent is dismissed.

[1] On 15 September 2016 Mr John Scott, acting on behalf of his wife, Mrs Tara Scott, and the other appellants in the Privy Council appeal, Descendants of Utanga & Arerangi Tumu v. Descendants of Iopu Tumu¹, lodged a complaint with the Chief Justice alleging professional misconduct against Mr Ross Wakefield Holmes, the solicitor, and one of the counsel, for the appellants in that matter.

[2] The appeal to the Privy Council was one of a pair of appeals, the first to their Lordships from the Cook Islands in over a century, the other being Baudinet v. Tavioni & Macquarie².

¹ [2012] UKPC 34. Judgment delivered on 22 October 2012.

² [2012] UKPC 35. Judgment also delivered on 22 October 2012.

[3] In Baudinet v. Macquarie the appellants were unsuccessful. In Utanga & Tumu v. Tumu the appellants were successful. In each case the successful parties were held by their Lordships to be entitled to costs. The costs in Baudinet v. Macquarie were rapidly quantified and paid but in Utanga & Tumu v. Tumu, despite their Lordships allowing the appeal and requiring written submissions on costs within six weeks of the delivery of the judgment, the costs have never been quantified, the respondents have never been advised of the amount they owe and, as a result, the costs have never been paid.

[4] The fact that the costs order has never been quantified or paid is the nub of the complaint of professional misconduct by Mr and Mrs Scott against Mr Holmes.

[5] The grounds on which complaints of professional misconduct are to be judged appears in s 15(2) of the Law Practitioners’ Act 1993-94 which reads:

15. Complaints of professional misconduct – (1) ...

(2) Where the Chief Justice receives ... a complaint or has reasonable cause to suspect that a practitioner who is or was a member of the [Law] Society has in his professional capacity been –

• (a) guilty of misconduct; or
  
• (b) guilty of conduct unbecoming a barrister and solicitor or a barrister; or
  
• (c) negligent or incompetent, and that the negligence or incompetence has been of such a degree or so frequent as to reflect on his fitness to practice as a barrister and solicitor or barrister only, as will tend to bring the profession into disrepute; or
  
• (d) ...
  

the Chief Justice shall, unless he is of the opinion on reasonable grounds that the complaint is frivolous or vexatious, require from the practitioner such written explanation, within such time as the Chief Justice thinks fit.

[6] Though the two are significantly different in form and intention, complainants often confuse complaints of professional misconduct with actions for professional negligence.

[7] Complaints of professional misconduct have, as their end point, an adjudication as to whether or not the facts underlying the complaint are of such gravity that the lawyers concerned had misconducted themselves in a way which breaches s 15(2) and to a degree which impinges on the practitioners’ ability to be permitted to continue to practice law. It is therefore a procedure designed to protect members of the public from lawyers’ behaviour that would “reasonably be regarded as disgraceful or dishonourable by [their] professional brethren of good repute and competency”³. It is well-settled that it is a public protection measure aimed at maintaining proper standards in the legal profession and setting an example to other lawyers. Being based on protection of the public it is not, primarily, concerned with the minutiae of solicitor-client relationships.

[8] It is also well-settled that conduct which amounts to mere negligence – even serious negligence – or errors of judgment only amounts to professional misconduct in extreme instances.

[9] That law is encapsulated in the Cook Islands in s 15(2)(c)(d) in, requiring, before a complaint of professional misconduct under those subsections can be upheld, that the conduct reflects on the practitioner’s fitness to practice and necessitates a finding that the practitioner’s actions will bring the profession into disrepute.

[10] The bar is deliberately set high so as to ensure that only practitioners’ actions which are shown to reflect on their fitness to practice will expose them to findings of professional misconduct but, equally, that if a finding of professional misconduct is made against the practitioner, the sanctions are such as to set an example of that practitioner or even to remove him or her from the legal profession in order that the public will be protected from conduct which meets the Allinson test.

[11] It is equally well-settled that the professional misconduct regime, being a public protection and interest measure, is not a substitute for actions for professional negligence, the latter being a means whereby disgruntled clients can obtain redress against their lawyer for actions or omissions which are a departure from the lawyer’s

³ Allinson v. General Counsel of Medical Education and Registration [1984] 1KB750.

responsibility to their clients which the plaintiff believes have caused them loss. It is thus very much focussed on the minutiae of the solicitor-client relationship and whether the detail of that relationship shows the lawyer has, or has not, met their responsibilities.

[12] Although s 20 of the Act gives the Chief Justice power to award compensation, the power is limited to $5,000 and only arises if the Chief Justice reaches the view either that the practitioner has misconducted themselves or in the “circumstances of the case that the making of the complaint was justified”.

[13] To sum that up, the professional misconduct regime is directed at protecting the general public from misconduct of a degree which breaches s 15(2) while the professional negligence right of action is designed to regulate conduct between practitioners and their clients which is found to have breached the practitioner’s responsibilities and duties and to obtain redress for what clients have suffered in that regard for breach.

[14] Returning from those general remarks to this professional misconduct complaint, the Chief Justice summarised the issues between the parties in a letter sent to them jointly on 19 June 2019. Rather than repeat the content of that letter a copy is attached to this decision (without attachments).

[15] It will be seen that, at the conclusion the addressees were invited to advise the Chief Justice if they considered the contents of the letter seriously incorrect. They were advised that, absent such comment, the complaint would be determined on the material then available.

[16] To understand what then happened, reference needs to be made to the way in which the complaint proceeded from its being lodged on 15 September 2015, regrettably nearly four years ago.

[17] As mentioned in the letter, the complaint of was referred to Mr Holmes in late 2016 (with its fifteen annexures) and Mr Holmes replied by letter dated 27 January 2016 (sic: 2017) (again with a number of attachments).

[18] That was referred to Mr Scott who responded by a 12 page letter dated 5 February – 3 March 2017 (together with over 26 attachments).

[19] Thereafter, in common with a number of other Law Practitioners’ Act complaints, the matter ran into administrative difficulties as a result of which it could not be definitively established whether letters to and from the Chief Justice on disciplinary matters were dispatched to their addressees by the Registry. Unhappily, that situation persisted for a number of months, despite the Chief Justice’s efforts to rectify the situation, and the situation was additionally complicated by the fact that, when it was definitely established what had gone to, and been received from, the parties to this matter, their responses included some new material but also enclosed additional copies of much of what had gone before.

[20] To the extent that the Registry is responsible for those difficulties, an apology is due to the parties in this matter.

[21] Because the material was largely repetitious, it is unnecessary to recount its contents save to note that in the letter to Mr Holmes of 16 April 2018⁴ the observations were made:

...

In paragraph 53 of your reply dated 27 January 2016, you set several pre- conditions to your approaching the Privy Council to have the costs in the appeal where Mrs Scott was successful set and paid.

Although, despite my best efforts, I have not been able to definitively establish that the conditions in 53(b) and (c) have been satisfied, my understanding is that is the case and therefore, presumably, you have initiated the application to have the Privy Council costs fixed, even though out of time. Indeed, I note that document 23 annexed to Mr Scott’s 5 February 2017 reply is a letter dated 13 February 2017 from Kate Davenport QC [Senior Counsel for the appellants] to the Clerk of the Privy Council asking for the costs order to be fixed.

In view of the lapse of time since I was last asked to deal with this matter, I would be grateful if you would let me know the current position from your perspective. If you have not received Mr Scott’s 5 February 2017 response, please let me know, and I will arrange for the Registrar to courier the reply and the accompanying documents to you.

⁴ Re-dated from 19 February 2018

[22] Mr Holmes advised the following day that he had received no communications from Mr Scott and he had not accepted the proposals to which the letter referred. His reply is also attached to this decision.

[23] The then position was summarised in a letter to both parties of 11 June 2018 and a copy of that is likewise attached.

[24] The joint letter of 19 June 2019 from the Chief Justice was the response.

[25] Mr Holmes’ reply of 23 July 2019 did not dispute the correctness of the 19 June letter, but Mr Scott replied on 4 July 2019 with a lengthy email (copy attached) which summarised the complainants’ position in the following terms:

Therefore to recap:

1. Mr Holmes first raised the question of an apology, and other action and demands in his 27 January 2016 (sic 2017) letter to His Honour.
2. These we answered in a letter to His Honour on 05 February/03 March 2017 (an extension having been granted).

100. His Honour advised ourselves and Mr Holmes it was not his intention at that time to forward that letter to Mr Holmes.

4. Mr Holmes confirmed his acquiescence in that decision in his letter to His Honour dated 20 February 2018 meanwhile noting he was still awaiting responses to some of his demands when in fact those response were contained in our 03 March letter which he had agreed be not forwarded to him, and
5. Mr Holmes was further apprised of the fact that the several matters he wished answered had been answered in our 05 July 2018 email as was our alleged failure to act on contacting my brother in the UK.
6. On the evidence then it would appear that while Mr Holmes had been informed that his various complaints of inaction on our part were not in fact outstanding that it would appear as if he almost preferred to remain uninformed. Perhaps that suited a developing, longer term strategy of justifying withdrawal from any further effort as has now emerged because all he had to do was to ask His Honour for those responses.
   

[26] There, as the 19 June 2019 letter said, the complaint essentially lies.

[27] There are, as noted, two aspects to the complaint: the failure to have the costs award to the successful appellants in [2012] UKPC 34 quantified by the Privy Council and, necessarily consequential on that, failure to obtain payment.

[28] As to the first of those issues, it is clear that Mr Holmes did not professionally misconduct himself in that matter in a way which attracts a finding that he was in breach of s 15(2).

[29] Following delivery of the judgment, he made reasonable efforts to persuade counsel for the respondents to engage in a discussion about costs. That was unsuccessful because of a lack of reply. He then, with counsel, made reasonable efforts to have the Privy Council fix the costs, but for some unexplained reason neither their Lordships or the Privy Council Office have moved to resolve the matter on the application to fix costs out of time despite visits and correspondence in the meantime.

[30] Those actions on Mr Holmes’ part are not shown to amount to negligence or incompetence of such a degree or frequency as to reflect on his fitness to practice nor such is or bring the legal profession into disrepute. They are not actions which would reasonably be regarded as “disgraceful or dishonourable” by other lawyers but merely actions which number amongst the difficulties of practising law only to have those efforts frustrated by others.

[31] Because it must be consequential on a finding against Mr Holmes on the first limb of the complaint, it follows that the second limb is also not made out as a case of professional misconduct.

[32] Even though Letters of Administration of the estate have now been granted, the estate of the respondent was insolvent and may still be. It is clear from the exchange of correspondence between the lawyers that the estate was unlikely ever to be cooperative in quantifying the costs award so, even if the respondents had the means to pay, the only way of enforcing payment was to use the Court’s processes to enforce the Privy Council judgment on costs but, as mentioned, no judgment has ever been issued. Enforcement was therefore impossible and, whether or not there

may be a means of enforcing any judgment by way of charging orders, that is not open until the costs judgment is quantified and is, in any event, outside the ambit of the present complaint of professional misconduct.

[33] Both limbs of the complaint having been dismissed, the complaint itself is dismissed.

[34] Whether or not Mr Holmes actions might found a claim by the appellants for professional negligence is similarly not within the ambit of this decision and the dismissal of the professional misconduct complaint is not intended to offer any comment on that possibility, or the likelihood of its success.

[35] In closing, it is acknowledged that what has occurred since the successful outcome of the appeal has been an unhappy experience for all concerned. Not only are both counsel who appeared owed several thousand dollars by way of unpaid fees, but the successful appellants/complainants are also out of pocket by several thousand dollars for unpaid disbursements. That is a most unfortunate outcome, but not one capable of being rectified within a complaint of professional misconduct.

[36] For completeness, it should be recorded that the complainants at one stage put forward a proposal for payment of a sum of money by Mr Holmes in settlement. For the reasons set out in the Chief Justice’s letter of 11 June 2018, any such compromise would be beyond the powers given the Chief Justice by s 20 and in any event would depend on the Chief Justice being satisfied either of Mr Holmes’ being guilty of professional misconduct – obviously not open in the circumstances of the complaint’s dismissal – or finding that the complaint was justified in the circumstances. In view of the possibility that the disputed between these parties may endure, the Chief Justice is not prepared to make a finding that, as a complaint of professional misconduct, the making of this complaint was justified.

Hugh Williams, CJ