Handyhard Marketing (Fiji) Ltd v Chand [2015] FJCA 76; ABU71.2014 (28 May 2015)

IN THE COURT OF APPEAL
APPELATE JURISDICTION

CIVIL APPEAL NO. ABU 71 of 2014
High Court HBC 175 of 2013

BETWEEN:

1. HANDYHARD MARKETING (FIJI) LTD
2. AVINESH NAIDU
Appellants

AND:

SUSHIL CHAND
Respondent

Coram : Suresh Chandra JA
Almeida Guneratne JA
Anjala Wati JA

Counsel : Mr. C. B. Young and Mr. A. K. Narayan for the Appellants
Ms. J. Naidu for the Respondent

Date of Hearing : 7 May 2015
Date of Judgment : 28 May 2015

JUDGMENT

Justice Suresh Chandra

[1] I have perused the draft judgment and I agree with the reasoning and conclusion of Almeida Guneratne JA.

Justice Almeida Guneratne

Introduction

[2] This appeal raises an important question relating to the legal profession and practice in Fiji and specifically the right of a litigant to retain Solicitors and Counsel of his or her choice as well as a lawyer's right to represent his or her client.

[3] The matter comes up consequent to leave being granted under Section 12(2)(f) of the Court of Appeal Act (Cap.12) against the Judgment dated 3 December, 2013 of the High Court of Lautoka.

[4] By that judgment, the High Court ruled that, Mr. Ashneel Kumar Narayan and Messrs A K Lawyers be discontinued from acting as Counsel and Solicitors respectively for the Defendants.

[5] At the outset I record that, Ms. Naidu who appeared as Counsel for the Respondent informed Court that she was not opposing the Appellant and supported the submissions made by Mr. C. B. Young on behalf of the Appellant. In fact, neither at the leave stage nor in the High Court proceedings had there been any opposition to the Appellant's cause.

[6] However and although the matter lies within a narrow compass felt it was necessary to deal with the matter at some length given the importance of the matter.

Background Facts

[7] The plaintiff's solicitors Messrs Qoro Legal filed an inter-partes motion dated 19 September 2013 seeking an order that the plaintiff be granted leave to institute proceedings out of time against the defendants, which was filed together with a supporting affidavit from the plaintiff sworn on the same date.

[8] The matter was mentioned before the High Court on 30 September 2013 on which occasion Mr. Ashneel Kumar Narayan marked his appearance for the plaintiff and sought two weeks time to serve the plaintiff's application on the defendants. The court granted orders on the 30 September 2013, directing the plaintiff's solicitors to take necessary steps to serve the application forthwith on the first and second defendants and that the matter be mentioned on 14 October 2013 at 9.30am.

[9] On 14 October 2013, Mr Narayan submitted that he is now appearing "formally" for the defendants.

[10] The Court alluded Mr. Narayan to the fact that his appearance was recorded on the previous occasion for the plaintiff on the case record.

[11] The Court also observed that the plaintiff was present in court. However, there was no appearance marked for him except for the fact that the clerk of Qoro Legal was present in the court room.

[12] On those facts, upon the Court directing Mr. Narayan to make submissions as to whether a conflict of interest arose Mr. Narayan made submissions to the effect that on the previous occasion he appeared for the plaintiff, only for the purpose of mentioning the case from the "gallery" for a limited purpose.

[13] Mr. Narayan had submitted further that, he would require clarification from the plaintiff's solicitors that they would consent to the fact that there is no conflict of interest in him now appearing for the defendants.

[14] The Court having adjourned the matter for a short time and on resumption Mr. L. Savou who appeared as counsel for the plaintiff instructed by Qoro Legal informed Court that, he had no objection to Mr. Narayan appearing for the defendants.

[15] At that point when Court had observed that the defendants had not filed their Solicitors appointment Mr. Narayan had submitted that, the plaintiff had served the requisite notice on the defendants (the insured) only on the previous Wednesday, the 9 October 2013, and the insurer (Sun Insurance Company Ltd) had retained Mr. Narayan's firm, AK Lawyers, only at 4.25pm on last Friday the 11 October 2013. The plaintiff was suing as personal representative of the deceased whose death had been caused by a vehicle owned by the 1st defendant and driven by the 2nd defendant.

[16] The Court had also called upon Mr. Narayan to address on the issue, as to whether solicitors can randomly appear for both parties in an action on the premise that there is no conflict of interest to which Mr Narayan had submitted that having practised as a legal practitioner in Fiji for the last 3 years, it was his experience that it is a common practice amongst legal practitioners in Fiji, to do so.

[17] Court had inquired from Mr. Narayan as to whether he could refer to any supporting authorities on the point to which he had submitted in the negative.

[18] However, Mr Narayan had submitted that he wished to continue acting for the defendants.

[19] There were two principal factors that weighed with the learned Judge in reaching his conclusion. First, it was the factor of Mr. Narayan appearing for the plaintiff on 30 September, 2013 and then appearing for the defendants on 14 October, 2013 and persisting in his stance that he was entitled to continue to appear for the defendants. Secondly, that, on 14 October 2013 Mr. Narayan had alleged late service of the Notice on the defendants (i.e. on 9 October 2013) by the Plaintiff, the reason adduced by Mr. Narayan as to why by the 14th October 2013 the appointment of A K lawyers as solicitors for the defendants had not been filed.

Gist of the Learned Judge's Reasoning

[20] The learned Judge reasoned thus:

"[63] I am of the view that the court of law is by no means a "theatre" or a stage for other dramatic impromptu performances where counsel robed in their wigs and gowns can appear from the "gallery", with next to no knowledge about a litigant and on the matter, marking their appearance on the case record, and then swap their appearances around conveniently to appear for the opponent on the basis of there being (sic) no access by the practitioner to (sic) any confidential information up to that point in time.

[64] I am of the view that such conduct of a legal practitioner will be in breach of the contractual and the ethical obligations of a legal practitioner, at any level, which has to be viewed form a broader perspective of general law rather than being (sic) confined to the narrower rules which govern the area.

[65] Mr. Narayan submits that he subsequently obtained consent of the plaintiff's counsel to act for the defendants. I am of the view that this is not an issue which can be dealt by way of striking agreements with opposing counsel, as an afterthought."

[21] That is the edifice on which the learned judge's reasoning stands.

Grounds of Appeal

[22] The defendants (hereinafter referred to as the appellants have urged the following grounds of appeal in their notice of appeal dated 22 October, 2014:

"1. The learned judge erred in law and in fact in finding a conflict of interest against Mr. Ashnil Kumar Narayan and AK Lawyers when none existed and none was taken up by the Respondent (Plaintiff before the High Court).

2. The learned judge erred in law and in fact in finding the retrospective consent claimed by A K Lawyers from all relevant parties in the substantive action was not an issue to be considered.

3. The learned judge erred in law by misapplying the provisions of the Legal Practitioners Decree 2009.

4. The decision is wrong in law and in fact in all the circumstances pertaining to this matter giving rise to the appeal herein."

Submissions of Counsel for the Appellants

[23] I have given my mind to the oral submissions made by counsel as well as to the written submissions dated 16 April, 2015 and the several judicial authorities referred to therein in relation to the grounds of appeal urged.

[24] I proceed to examine these grounds seriatim as follows:
Had a conflict of interest situation arisen?

[25] This is the core issue that has to be considered in order to determine this appeal.

[26] The learned High Court Judge in his judgment has done a fairly exhaustive study of judicial decisions and other authorities which he considered to be applicable.

[27] It would be appropriate at this juncture to examine those authorities in order to ascertain whether the criteria and principles contained therein have been correctly applied by the learned judge to the facts and circumstances of this case.

The Legal Practitioners Decree, 2009 and Authorities Relied Upon by the Learned High Court Judge

[28] Regarding the Legal Practitioners Decree 2009 as being the applicable law, the learned High Court Judge made reference to several authorities.

The Legal Practitioners Decree 2009 (LPD)

[29] Section 1.1 to 1.3 of the Legal Practitioners Decree which the learned Judge referred to provide thus:

"1.1 A practitioner shall not abuse the relationship of confidence and trust with a client;

1.2 A party shall not act for more than one party in the same matter without the prior consent of all parties.

1.3 On becoming aware of a conflict of interest between clients a practitioner shall forthwith;

(a) advise all clients involved in the matter of the situation;
(b) continue acting for all clients only with the consent of all clients and only if no actual conflict has occurred;
(c) decline to act further for any party where so acting would disadvantage any one or more of the clients."

[30] The learned Judge then proceeded to consider several authorities.

[31] In Archer v. Howell (No. 2) [1992] 10 WAR 33 it had been said:

"Whenever a practitioner acts for two persons whose interests may not be identical there is a prospect that there will be a conflict."

(at p.49 per Rowland, J.)

[32] In the instant case, it is true that, Mr. Narayan acted on behalf of the plaintiff-respondent on 30 September, 2013 when he had moved for a date to enable the plaintiff-respondent to serve the requisite notice on the defendants-appellants.

[33] But, Mr. Narayan, at that point of time had not been retained by the defendants-appellants to appear on their behalf and consequently he was not acting for two persons whose interests could have been regarded as not being identical for a conflict to have arisen.

[34] In the current edition of Riley's Solicitors Manual it is quoted that:

"A lawyer who accepts a retainer from a client that is inconsistent with his or her duty to a current client may be found guilty of misconduct, although this is unlikely to merit striking off unless the conflict in question unearths other unethical conduct."

(referred to at paragraph 38 of the High Court Judgment)

[35] For the same reason I have articulated above at paragraph [33], I am convinced that, the said quote has no application to the instant case.

[36] The same reasoning on my part visits the case of Davey v. Wooley referred to by the learned High Could Judge at paragraph [39] of his Judgment as well as the cases of Alexander (t/a Minter Ellison v. Perpetual Trustees WA Ltd. [2001] NSW CA 240; Lowry v. Alexander [2000] NSW SC 66 and the English decisions in Hilton v. Barker Booth & Eastwood (a firm) [2005] UKHL 8; [2005] 1 All ER 651 Mody v. Cox [1917] 2 Ch at p.91 as well as Blackwell v. Barroile Pty Ltd [1994] 51 FCR 347 and the decisions the learned Judge relied on at paragraphs [45] to [53] of his judgment in the context of the principle relating to confidential information.

[37] Such information could not have come into Mr. Narayan's possession when he had moved for a date on 30 September, 2013 for even the cause of action was not known to him.

Re: The Proceedings of 14 October 2013

[38] The learned High Court Judge had felt strongly on the fact that, on the 14 October 2013 when Mr. Narayan had marked his appearance for the defendants-appellants, he had 'alleged' that the plaintiff was in default for not serving the requisite notice in question on the defendants-appellants which prompted me to look at the proceedings in sequence which I found at pp. 198 to 201 of the High Court Record (HCR) which I reproduce below.

[39] CIVIL ACTION: HBC NO: 175 of 2013

BEFORE THE HON. MR. JUSTICE S. WEERATNE

ON 30TH DAY OF SEPTEMBER, 2013 AT 9.30 AM

Narayan (AK) on instruction from Qoro Legal for Plaintiff

History of Cases

Plaintiff has filed an Inter-Parte Motion seeking orders to institute proceedings out of time.

Counsel's Submission

Require time to serve the application on 1st and 2nd Defendants.

Orders

Plaintiff Counsel seeks two weeks time to serve the application on 1st and 2nd Defendants. Matter to be mentioned on 14/10/2013 at 9.30am. Plaintiff's Solicitor to take 5 days to serve the application on 1st and 2nd Defendants.

(sgd.) S. Weeratne

JUDGE

BEFORE THE HON. MR JUSTICE WEERATNE

ON 14TH DAY OF OCTOBER, 2013 AT 9.30AM

L. Sovau for Plaintiff

A K Narayan for 1st Defendant

Counsel's Submissions

- AK Narayan submits that instruction were received by AK Narayan at 4.30 on Friday.
- AK Narayan submits that he is appearing formally for the Defendants.
- AK Narayan submits on the last mention date he appeared for the Plaintiff purely for the mention date from the gallery.
- Clerk from Qoro Legal is present with Plaintiff.
- A K Narayan submits that he would require clarification from the Plaintiff's Solicitor that there is in fact no conflict of interest in this matter.

Orders

Matter adjourned until 10.45am.

(sgd.) S. Weeratne

JUDGE"

[40] It becomes clear from those proceedings that, Mr. Narayan had not made any allegation against the plaintiff that he was lax in serving the Notice in question, which he himself had moved for on 30 September 2013 but only as an explanation as to why his firm, A K Lawyers – Solicitors of which he was a partner, had not been able to file their appointment as the defendants'-appellants' Solicitors as at 14 October, 2013.

[41] There is another aspect that weighed with me and that is, on 14 October 2013, the plaintiff himself had been present in Court and in the course of the proceedings of that date, plaintiff's counsel, Mr. L. Sovau had not objected to Mr. Narayan appearing for the defendants-appellants. The plaintiff-respondent also had not objected.

[42] The defendants-appellants themselves evidently are willing to proceed with the case with Mr. Narayan as Counsel and AK Lawyers as their Solicitors.

Tests Commonly Employed to Ascertain a Conflict of Interest

[43] Upon an examination of the authorities referred to by the learned Judge and the authorities relied upon by learned Counsel for the Appellants (including the celebrated case in Prince Jefrin Bolkiah v. KPMG and Others [1998] UKHL 52; [1999] 1 All ER 517. I venture to formulate the following tests in ascertaining a situation in which a conflict or potential conflict of interest could be said to have arisen.

[44] First, the conflict must arise out of the cause of action pleaded by a new client and in any information pertaining to the former client a lawyer reasonably could be said to be in possession.

[45] Secondly, such information must impact on the cause of action so pleaded.

[46] These are two tests formulated by this Court in R C Manubhai & Co .and 2 Others v. Herbert Construction Company (Fiji) Limited.; ABU 0002 of 2010, 29 May 2014.

[47] Applying those two tests, even if the plaintiff–respondent is to be regarded as a former client of Mr. Narayan (even for a day), the factors feeding those tests are totally absent in the instant case.

[48] Another test that could be extracted from past precedents is the possibility of a lawyer for a party being called as a material witness in ongoing proceedings. (See: Clay v. Karlson [1996] 17 WAR 493.

[49] What is the degree of possibility in Mr. Narayan being called as a witness, let alone as a 'material witness' in the action filed by the plaintiff– respondent, other than to depose that, on 30 September, 2013 he had moved for a date on behalf of the plaintiff, a fact on which in any event there is no dispute and is common ground?

[50] In regard to the scope and content of instructions that could give rise to a conflict situation I found some useful dicta in R v Birks [1990] 19 NSWLR 677 which this Court cited with approval in the Manubhai case (supra), which has no application even by any stretch of imagination to the instant case.

[51] Viewed from that perspective, I do not think a situation smacking of a conflict of interest has arisen in this case.

[52] Yet another test is where, because of allegations made in the pleadings or even outside them, a lawyer (whether solicitor or counsel) would be required to defend his professional conduct.

[53] What is the conduct of Mr. Narayan that is in question? Could his moving for a date on an instruction sheet issued by the plaintiff's solicitors when he had not the remotest idea that, he would be retained on behalf of the defendants constitute conduct that he would be required to defend?

[54] All that had taken place ante litem motam (before the case began).

Applicability of the Legal Practitioners Decree (2009) (LPD)
[55] For the aforesaid reasons, I have no hesitation in reaching the conclusion, agreeing with the Appellants' contention that, the learned High Court Judge misapplied the LPD to the facts and circumstances of the instant case.

[56] It is true that, Mr Narayan had appeared for the Respondent on 30th September, 2013 and obtained a date to serve a Notice of Motion on the Appellants.

[57] What other material is there to even remotely suggest that a conflict of interest had arisen or that there was potential for a conflict to arise?

[58] The instruction sheet given to Mr Narayan does not show any instructions other than to move for a date to serve the said Notice of Motion (P.116 of the HCR).

[59] I noted that the said instruction sheet is not even addressed to Mr Narayan. For that matter, it is not addressed to anyone.

[60] That was a clear indication that, Qoro Legal's clerk was looking for some counsel, perhaps known to him, to hand over the said note and accomplish the task entrusted to him by his firm should such counsel comply with that request which is what Mr. Narayan had obliged with.

[61] There is nothing to suggest that Mr. Narayan had even accepted a fee for the day's work. This is deposed in the supporting affidavit of Mahendra Bhai Patel in the leave to appeal application (HCR 13). There is no material to the contrary.

[62] Moreover as Mr. Young submitted in his oral submissions no relationship had been established between the plaintiff and Mr. Narayan at any stage for a conflict of interest situation to have arisen.

[63] In the result, Mr. Narayan had done nothing more than performing an act in a forensic context when he appeared on 30 September for the plaintiff the circumstances of which have been graphically explained in paragraphs 8 and 9 of Mahendra Bhai Patel's affidavit referred to earlier viz:

"8) In my years of practice in Fiji it has been a practice that paralegals attend court sitting at chambers or otherwise and issue instructions from the gallery to counsel at the Bar table to appear. Such instructions most often than not only include brief instructions sheets. For such appearances no retainer is paid. In fact when Mr. Narayan appeared no retainer was paid. This is happening to date and can be seen in most courts throughout Fiji. I have practised for many years in Suva as well in the West. Quite often counsel do not act substantively for any party and there have been occasions when over a period of call overs the same counsel may have appeared for both parties at some stage although not at the same appearance. In such cases as this it is not counsel's own client matters and no records are maintained by counsel for appearances entered over the weeks, months or sometimes years.

9) Whilst Fiji is not a large jurisdiction there are law firms which have branch offices in different towns. I am aware the Legal Aid Commission has offices in most major centres throughout Fiji. A K Lawyers have offices in Denarau, Nadi and Ba. Mr. Narayan and I are based at Denarau. There are three admitted practitioners at our Bar office. There is no difficulty in maintaining confidentiality between the two offices if the occasion should arise. I am aware that in one matter the Legal Aid Office has appeared in the same matter with two in house counsel."

[64] The plaintiff's lawyers have no objection to Mr. Narayan continuing to appear for the defendants- appellants. Presumably, the plaintiff also has no objection, given the fact that, on 14th October, he was present in Court as the proceedings of that date in court reveal. The defendants themselves have not registered any protest. In fact they are the parties who have appealed against the impugned Judgment of the learned High Court Judge.

[65] The matter might have assumed a different complexion had the plaintiff objected to Mr. Narayan appearing for the defendants-appellants. That is, if the plaintiff had sought the Court's intervention to discontinue Mr. Narayan form appearing for the defendants-appellants.

[66] The instant case stands on an entirely different footing.

[67] The function of the law is to resolve what is perceived as conflicting interests. The means by which such resolution is achieved is through the intervention of Courts.

[68] Consequently, once retained by the defendants against the plaintiff, the only limitation visiting a solicitor or counsel is the duty to preserve the confidentiality of information imparted during the subsistence of that former relationship. This is the overriding consideration which has no relevance to the instant case.

[69] At this point I cannot resist in saying that, respectfully, the learned High court Judge's judicial mind appears to have found that Mr Narayan appearing for the Plaintiff earlier on 30 September, 2013 in respect of whatever application he was making on the plaintiff's behalf whether for a limited purpose or not and then later persisting in appearing for the defendants per se unacceptable particularly when Mr. Narayan had not been able to cite any authority in support of his submission that, it was a common practice in the Fijian courts for lawyers to engage in the conduct he did. This is what is brought out in the affidavit of Mahendra Bhai Patel (supra).

[70] Could this Court take Judicial notice of such a practice?

The Principle Relating to Judicial Notice

[71] Archbold in Criminal Pleading, Evidence and Practice, 2011. (Sweet & Maxwell) cites with approval the principle relating to judicial notice as stated in Mullen v. Hackney L.B.C. [1997] 1 WLR 1103, CA (Civ. Div.) thus:

"Courts may take judicial notice of matters which are so notorious, or clearly established, or susceptible of demonstration by reference to a readily obtainable and authoritative source that evidence of their existence in unnecessary; and local courts are not merely permitted to use their local knowledge, but are to be regarded as fulfilling a constitutional function if they do so."

(Archbold, at p.1365 (supra)

[72] In view of the approach I have adapted, I do not consider it necessary to go into the question whether this Court can take judicial notice of the said alleged practice for I have dealt with the matter in the light of legal principles.

[73] The learned Judge, respectfully, has adapted a harsh attitude whereas it is my own view that, the issue that has arisen in the instant case is one that could be identified as a problem in practice which warrants a liberal approach having regard to the interests involved.

[74] In that regard I cannot help but recall Alexander Pope's words when he wrote in the days when watches were not reliable that:

"Tis' with our Judgments as our watches none go just alike, yet each believes his own."

The Interests Involved in determining a conflict of interests situation

[75] What are the interests involved? First, that of a client having full confidence in his or her lawyer to appear on his or her behalf which the defendants-appellants have clearly shown.

[76] Secondly, that full confidence as including the protection of confidential information (which has no relevance to the instant case).

[77] Thirdly, the interest in the freedom of a lawyer to take instructions from his client (in the instant case from the defendants-appellants, although Mr Narayan had appeared for the plaintiff on an earlier date for a limited purpose, the defendants-appellants having no problem with that).

[78] And, lastly, the interest of the client (the defendants – appellants in the instant case) to be represented by the lawyer of their choice (Mr. Narayan), notwithstanding the fact that, he had appeared for the opposing party on an earlier date (no doubt, in the same case).

[79] These are the interests that need to be addressed and what follows is a balancing of those interests. (Vide: Re: A firm of solicitors [1996] 3 WLR 16; Alpha Wealth Financial Services Pty Ltd v. Frank Lady Rivers Olive Company [2005] WASC 189; (see further Lawyers' Responsibilities and Accountability - Cases, Problems and Commentary, Ysaiah Ross and Peter MaCfarlane, 3rd edition, Butterworths, 2007).

[80] Applying those criteria I cannot see how a single of those interests could be said to have been compromised.

Value Judgment vs. Rights of Persons

[81] The learned High Court Judge felt that it was wrong for a lawyer to appear for a party on a particular date and then appear for the opposing party later. But as I have endeavoured to demonstrate above such a value judgment must give way to the right of a litigant to retain a lawyer of his or her choice and the right of a lawyer to appear for his client. To deny such rights to litigants and lawyers would be wrong in my view.

[82] I am reminded of the refrain of Trollope that, "It is true that one must put up with wrong, with a great deal of wrong. But no one need put up with wrong that he can remedy." (A. Trollope, Framely Parsonage; 1861).

[83] In my view, a wrong has visited Mr. Narayan and that wrong has to be corrected.

[84] For the aforesaid reasons I hold that, the learned High Court Judge was wrong in directing Mr. Narayan to discontinue appearing for the defendants-appellants.

A K Lawyers – (Solicitors) Rights

[85] It is not in dispute that Mr. Narayan is an associate partner of A K Lawyers. If the learned Judge's judgment was on an unerroneous premise then it would have followed ipsofacto that, A K Lawyers would stand disqualified to act as solicitors for the defendants-appellants.

[86] But, on the view I have taken on the matter, A K Lawyers ipsofacto would have the right to represent the defendants-appellants as their solicitors.

The Cab Rank Principle

[87] Before parting with this judgment I wish to briefly refer to what has come to be described as the cab rank principle by which, in essence, any barrister in practice must accept instructions to appear before a Court on the subject that he professes to practise and at a proper fee. He has a duty to the Court that is paramount and is not in any sense a mouthpiece. (See: Arthur J.S. Hall & Co. v Simons [2000] UKHL 38; [2000] 3 WLR 543 (HL) at pp. 558 and 568 per Lord Hoffmann.

[88] Even on the basis of that principle I cannot see how Mr. Narayan's conduct could be have been faulted.

A Matter of First Instance?

[89] None of the authorities cited by Appellants' Counsel touch directly or even indirectly on the issue under consideration.

[90] But in so far as the facts and circumstances of this case are concerned I am sanguine that, this decision would be a precedent for the Courts of Fiji to follow.

Conclusion

[91] On the basis of the foregoing reasons, I set aside the judgment of the learned High Court Judge dated 17 November, 2013 and allow the appeal.

Madam Justice Anjala Wati

[92] I also agree with the judgment of Almeida Guneratne JA.

Orders of the Court are:

1. Appeal is allowed and the Judgment of the High Court dated 17 November, 2013 is set aside.
   

________________________________
Hon. Justice Suresh Chandra
JUSTICE OF APPEAL

________________________________
Hon. Justice Almeida Guneratne
JUSTICE OF APPEAL

________________________________
Hon. Madam Justice Anjala Wati
JUSTICE OF APPEAL