Sawane v Ashley [2010] SBHC 70; HCSI-CC 132 of 2009 (15 July 2010)

IN THE HIGH COURT OF SOLOMON ISLANDS
(Goldsbrough J)

Civil Case No. 132 of 2009

BETWEEN:

FRANCIS SAWANE & MOLAISUFA SAWANE
(Claimants)

AND:

CHARLES ASHLEY (Carrying on business as A & A Legal Services)
(Defendant)

Date of Hearing: 18 June 2010
Date of Decision 15 July 2010

Radclyffe A for the Claimants
Titiulu B for the Defendant

Decision

Goldsbrough J:

1. This is an application for summary judgment brought on the sole ground that the defendant has no defence to this claim. In support of the application is the sworn statement of Molaisupa Sawane filed 27 April 2010.
   
2. A defence to the claim was filed on 18 May 2009. In that defence it is admitted that the defendant is a legal practitioner and that the money received in the course of HCSI CC 69 of 2003 and 95 of 2006 totalled SB$1,454,000 was paid into his trust account. It is admitted that this money was held in trust. It is said that the money was for the benefit of the claimants but subject to deduction of legal costs incurred by the claimant's in those civil cases, although by using the terms 'defendant legal costs' in the defence it is not actually clear that this is what was intended. The defendant in this matter did not incur any legal costs in those previous civil cases, whereas his clients did incur costs which are in fact the defendant's fees and charges not the defendant's 'legal costs'.
   
3. It is not said in the defence that the money has been paid over to the claimant's less legal costs only that the money has not been paid over because a deed of release has not been signed. That is not a defence to this claim for return of the cash held by the defendant. The claim is not for the whole amount of SB$1,454,000 but a lesser amount which reflects the amount the claimant's agree are to be set off as legal fees due.
   
4. In those circumstances the defendant has not pleaded any defence to this claim. His assertion that he will not release the remaining balance until a deed of release is signed is taken care of as payment will now be by order of the court and the claimants cannot thereafter claim that there was no deed of release signed before the legal practitioner released the funds.
   
5. The application for summary judgment is therefore upheld and judgment is entered against the defendant in the sum of SB$ 1,110,000 together with interest at the appropriate commercial rate from 26 February 2009 until payment and costs on an indemnity basis. The indemnity basis is ordered as the defendant has deliberately and without good reason prolonged these proceedings with a defence that was nothing of the sort. The costs will be agreed or taxed and in any event paid within 28 days of delivery of this judgment or of determination of the amount.
   
6. This case represents another part of a series of cases involving this defendant in his capacity as a legal practitioner. In SICOA CRC 2 of 2008 on appeal from SIHC CC 327 of 2007 the Court of Appeal referred the conduct of this legal practitioner to the Chief Justice under the Legal Practitioners Act [Cap 16]. In that application the legal practitioner had issued a cheque in favour of the Registrar of the High Court drawn on his client trust account, as security for costs in an appeal. That cheque was subsequently dishonoured and the Registrar was obliged to sue this defendant on that cheque. In settlement of that civil case against him, this defendant presented the court with a Bank Cheque for SB$612,750.
   
7. It is clear from the documents exhibited to the sworn statement of Molaisupa Sawane that this amount was taken out of the defendant's trust account shortly after the deposit of this claimant's funds and, given that the trust account had no other money held in it at that time, that the Bank Cheque in favour of the Registrar of the High Court was funded by this claimant's funds, for there was nothing else in the account to fund it.
   
8. This amounts to a further incident of misconduct that this Court now refers to the Chief Justice under Part III of the Legal Practitioners Act. This reference, just as the previous reference made on 3 April 2009, is based not on any alleged criminal activity, which must be a quite separate and distinct matter, but on the grounds that a legal practitioner has admitted to dealing with client money held in trust in a way which breaches all notions of trust. A cheque drawn on a trust account cannot, in theory, be dishonoured through lack of funds as such a cheque cannot, in theory, be drawn other than on the particular funds of the particular client. If there are no funds from that particular client it is not permissible to use another client's funds. It is not the criminal liability, if any, attaching here that is the subject of the reference but the failure of the legal practitioner to adhere to the terms of holding money in trust for others. Whilst it may be the case that there are no specific rules in this jurisdiction relating to a legal practitioner trust account, that does not indicate that the normal rules of trust do not apply in this country. Quite why there are still no specific rules here given the increasing abuse of client funds is a matter for the legislature to consider.
   
9. It is not at all clear why the previous reference has not resulted in any disciplinary decision. This particular misconduct took place prior to the earlier reference and so could not have been prevented by swift disciplinary action, but fifteen months have passed since the first reference and this on the face of it seems an awfully long time for the matter not to have been resolved. One might think that the public deserve better service than this.
   
10. This is particularly significant given the public statements made on disciplinary matters. One statement stressed the importance of complaints being investigated and the other acknowledged that such complaints had been neglected with an undertaking to rectify the position as far back as February 2009.
    
11. But there is a wide difference between what has been said and what has been done. In fact nothing appears to have been done. Continued failure to act will only lead to inappropriate speculation as to why this situation is allowed to exist.
    
12. That some action must be taken is an imperative. It is an imperative for several reasons. The public are entitled to know if the legal profession is to be held to any standards of conduct or not. That will lead to those members of the public who might consider employing the services of a legal practitioner knowing in advance whether there are standards of conduct expected of a lawyer and what they are.
    
13. Other lawyers who do try to maintain standards are being disadvantaged. Each Thursday lawyer after lawyer turns up (at their client's expense) explaining why orders made by the court on previous occasions have not been complied with. Other lawyers have made every effort to comply with those orders, but no progress is made in their case. This situation hampers those lawyers who are maintaining standards. It results in a less than level playing field.
    
14. This now occurs because lawyers know that it is highly unlikely that any of them will be the subject of disciplinary proceedings before they have made their fortune. That situation should not be allowed to continue simply through inertia.
    
15. It is of little consequence to a visitor as to what sort of legal profession Solomon Islands chooses to have but it is incumbent upon the same visitor to ask for clarity as to what sort of profession the country desires. Without that clarity it may be that assumptions are made which are not valid. One such assumption is that a court may accept without question the word of a legal practitioner.
    
16. This application is determined in favour of the claimants. Judgment is entered against the defendant in the sum of SB$ 1,110,000 together with interest at the applicable commercial rate from 26 February 2009 until payment and costs are ordered to be paid on an indemnity basis. Those costs are to be agreed or taxed and in any event are payable within 28 days.
    
17. Finally the court orders that this judgment be brought to the attention of the Chief Justice for his consideration of a reference of the defendant to a Disciplinary Committee under Cap 16.
    

Dated this 15th day of July 2010.

GOLDSBROUGH J