Hilary Term
[2019] UKPC 9
Privy Council Appeal
No 0037 of 2017
JUDGMENT
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Causwell
(Respondent) v The General Legal Council (ex parte Elizabeth
Hartley) (Appellant) (Jamaica)
From the Court of Appeal of Jamaica
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before
Lord Kerr
Lord Carnwath
Lady Black
Lord Lloyd-Jones
Lord Briggs
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JUDGMENT GIVEN ON
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11 March 2019
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Heard on 9 October 2018
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Appellant
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Respondent
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B St Michael Hylton
QC
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Emile GR Leiba
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Carlene Larmond
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Julianne Mais Cox
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Courtney A Bailey
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(Instructed by
Axiom Stone)
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(Instructed by
Blake Morgan)
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Lord briggs:
1.
This appeal from the Court of Appeal of Jamaica raises the following
short question of Jamaican law: namely whether disciplinary proceedings
commenced under the Legal Profession Act (“the LPA”) by a person purporting to
do so as agent for the complainant, but without the complainant’s authority,
are capable of being made good by ratification by the complainant, or whether
they are a complete nullity incapable of ratification. The question turns upon
the principles of the law of agency relating to ratification (which are the
same in Jamaica as in England) and the true construction of the relevant
provisions of the LPA.
2.
The facts may be shortly stated. In 1973 the complainant Lester
DeCordova instructed the law firm which later became Dunn Cox to apply on his
behalf for probate of his recently deceased father’s will, and to act in the
administration of his estate. The Respondent Janice Causwell is an
Attorney-at–Law and a partner in Dunn Cox. She undertook the discharge of that
retainer by the firm. In 1999 a Mrs Elizabeth Hartley began communicating with
the Respondent in relation to the matter on Mr DeCordova’s behalf.
3.
On 21st March 2002 Mrs Hartley filed a formal complaint
against the Respondent with the disciplinary committee constituted under the
LPA (“the Committee”). She stated that she was acting as the agent of Mr DeCordova
and the substance of the complaint was that the Respondent had failed to deal
with the matter expeditiously, failed to provide information as to the progress
of the matter and had acted with inexcusable or deplorable negligence.
4.
In two letters to the Respondent dated respectively 3rd March
and 29th November 2004, Mr DeCordova confirmed that Mrs Hartley was
acting as his agent in connection with his complaint.
5.
The complaint led to a disciplinary hearing before the Committee which
began in March 2008. Mrs Hartley gave evidence and was cross-examined but the
hearing was then adjourned. On its resumption in January 2010 new counsel
instructed by the Respondent raised as a preliminary objection the allegation
that there was no evidence that, at the time of the initiation of the
complaint, Mrs Hartley had authority to do so as agent for Mr DeCordova. In
February 2011 the Committee ruled that, although there was indeed no such
evidence of initial authorisation, Mr DeCordova had subsequently ratified Mrs
Hartley’s initiation of the complaint by his letters in March and November 2004
to the Respondent.
6.
The Respondent appealed that decision to the Court of Appeal in March
2011. The General Legal Council (“GLC”) which was cited as respondent, ex
parte Mrs Hartley, did not challenge the finding that there had been no evidence
of initial authorisation, preferring to confine its case to ratification. In
July 2016 the Court of Appeal allowed the appeal and set aside the ruling of
the Committee. It decided that, on the true construction of the LPA, the
initiation of a complaint by a purported agent acting without authority was a
nullity which was incapable of ratification. The GLC appealed that decision to
the Board.
7.
In accordance with the Board’s encouragement to parties to minimise the
cost and inconvenience of appeals occasioned by oral hearings usually in
London, arrangements were made for the hearing of the appeal to be conducted by
way of video conference with both parties addressing the Board remotely, from
Jamaica. Unfortunately, (and for the first time), technical difficulties made
it necessary to discontinue the oral hearing, but the parties sensibly invited
the Board to decide the matter on the papers, with the benefit of short further
written submissions, which the Board has since received and considered. The Board
wishes to commend the parties for the thoroughness and excellent focus of the
written materials, in which the point at issue has been fully and fairly
debated. Without in any way undermining the importance which the Board
ordinarily attributes to an oral hearing, it has concluded, exceptionally, that
this is an occasion when a decision on the papers can justly and fairly be
delivered.
8.
The relevant provisions of the LPA are to be found in Section 12 as
follows:
“12.-(1) Any person
alleging himself aggrieved by an act of professional misconduct (including any
default) committed by an attorney may apply to the Committee to require the
attorney to answer allegations contained in an affidavit made by such person,
and the Registrar or any member of the Council may make a like application to
the Committee in respect of allegations concerning any of the following acts
committed by an attorney, that is to say-
(a) any misconduct in any
professional respect (including conduct which, in pursuance of rules made by the
Council under this Part, is to be treated as misconduct in a professional
respect);
(b) any such criminal
offence as may for the purposes of this provision be prescribed in rules made
by the Council under this Part.
(2) In any matter or hearing
before a court a Judge, where he considers that any act referred to in
sub-paragraph (a) or (b) of subsection (1) has been committed by
an attorney, may make or cause the Registrar to make an application to the
Committee in respect of the attorney under that subsection.
In this subsection ’court’ means
the Supreme Court, the Court of Appeal, a Resident Magistrate's Court, the
Traffic Court or any other court which may be prescribed.
(3) Any application under
subsection (1) or (2) shall be made to and heard by the Committee in accordance
with the rules mentioned in section 14.
(4) On the hearing of any such
application the Committee may, as it thinks just, make one or more of the
following orders as to—
(a) striking off the Roll
the name of the attorney to whom the application relates;
(b) suspending the
attorney from practice on such conditions as it may determine;
(c) the imposition on the
attorney of such fine as the Committee thinks proper;
(d) subjecting the
attorney to a reprimand;
(e) the attendance by the
attorney at prescribed courses of training in order to meet the requirements
for continuing legal professional development;
(f) the payment by any
party of costs of such sum as the Committee considers a reasonable contribution
towards costs; and
(g) the payment by the
attorney of such sum by way of restitution as it may consider reasonable,
so, however, that orders under
paragraphs (a) and (b) shall not be made together.”
9.
As is common ground, this section gives statutory locus standi to
bring a disciplinary complaint to the Committee to three categories of person
namely: (1) any person alleging himself aggrieved by an act of professional
misconduct committed by an attorney (2) the Registrar of the Supreme Court and
(3) any member of the GLC. It is also common ground (although implicit rather
than expressly stated in the LPA) that a person in category (1) may initiate
and pursue such a complaint either in person or through an agent.
10.
Two things need to be noted about Section 12. The first is that it is
silent about agency and ratification. The second is that it imposes no time
limit for the initiation of a complaint to the Committee. It is not suggested
that any time limit is to be found elsewhere, for example in a statute of
limitation.
11.
There was not before the Court of Appeal, and is not before the Board,
any challenge to the finding of the Committee that, when she initiated the
complaint, Mrs Hartley lacked any authority from Mr DeCordova, as the named
complainant, to do so. Nor did Mrs Hartley have any complaint to make of her
own, as a person aggrieved, under Section 12 (1) of the LPA. That said, the
Board wishes to reserve for a future occasion the question whether the
Committee and the Court of Appeal were correct in assuming that a preliminary
challenge to the authority of an agent for a complainant places the evidential
burden on the complainant. The Board therefore proceeds upon the basis that the
only way in which the initiation of the complaint could be made good (if at
all) was by ratification. It is not in dispute that the letters from Mr
DeCordova to the respondent in 2004 were, in principle, sufficient to ratify
Mrs Hartley’s conduct as his purported agent if, but only if, ratification is
available as a means of putting right, retrospectively, a defect in the
initiation of the proceedings.
12.
The conclusion of the Committee that Mrs Hartley’s lack of authority
when initiating the complaint could be, and therefore had been, cured by
ratification was based on three considerations. The first was that the initiation
of a disciplinary complaint to the Committee without authority was not an
illegal or criminal act which could not therefore be made right. Secondly, that
the best analogy was the commencement of a civil action, where a lack of
authority could, on settled authority, be made good by ratification. Thirdly
the Committee relied upon the following dictum of Baron Martin in Brook v
Hook (1871) LR 6 Exch 89, at 96:
“If a contract be void upon the
ground that the party who made it in the name of another had no authority to
make it, this is the very thing which the ratification cures…”
13.
The Court of Appeal reached the opposite conclusion upon the following
grounds. First, upon its true construction Section 12 of the LPA was designed,
as a matter of public law, to control by way of restriction the initiation of
disciplinary proceedings, so that they should not be “lightly undertaken”, by
limiting the classes of person permitted to do so. Secondly, the LPA limited
the initiation of a complaint by a person aggrieved (otherwise than acting in
person), to agents duly authorised by the complainant at the time of the
initiation of the proceedings. Thirdly, proceedings initiated under Section 12
by anyone else, including a person purporting to act as agent for a person aggrieved,
but without authority, were a complete nullity, which could never be ratified.
Fourthly, disciplinary proceedings under Section 12 were to be distinguished
from ordinary civil claims, where ratification could cure the defect
constituted by issue by a person purporting to act as agent, but without
authority at that time.
14.
The Court of Appeal supported its analysis by reference to a number of
authorities, to the most important of which the Board will refer in due course.
15.
For the reasons which follow, the Board’s opinion is that the decision
of the Committee is to be preferred to that of the Court of Appeal. The
starting point, in the Board’s view, lies in the general principles applicable
to ratification as a part of the law of agency.
16.
The editors of Bowstead & Reynolds on Agency, 21st
Ed, (2018) describe the general principle as follows, at para 2–047:
“Where an act is done purportedly
in the name or on behalf of another by a person who has no actual authority to
do that act, the person in whose name or on whose behalf the act is done may,
if the third party had believed the act to be authorised, by ratifying the act,
make it as valid and effectual…as if it had been originally done by his
authority, whether the person doing the act was an agent exceeding his
authority, or was a person having no authority to act for him at all.”
At para 2-058, under the heading ”Void acts: Companies”
it is stated:
“The proposition that a nullity
cannot be ratified is in principle uncontroversial. However, much turns on what
is meant by ‘nullity’ or ‘void act’. An unauthorised act could in some contexts
be regarded as void, but the starting point of ratification is that such an act
can be ratified.”
At para 2-060, under the heading”Illegality”, the editors
continue:
“It has been said that ‘life
cannot be given by ratification to prohibited transactions’; … The extent to
which it is correct to regard a transaction affected by illegality as actually
void will, however, turn on the nature of the illegality, the wording of any
relevant statute, and the extent of the illegality. The law is far from clear.”
17.
At para 2-089 the editors identify established limits on ratification,
including:
“(1) Where it is essential to the
validity of an act that it should be done within a certain time, the act cannot
be ratified after the expiration of that time, to the prejudice of any third
party;
(2) Ratification may not be
recognised if it will affect proprietary rights in ether real or personal
property, including intellectual property rights, which have arisen in favour
of the third party or others claiming through him since the act of the
unauthorised agent;”
18.
The first of those exceptions prevents, for example, the ratification of
the exercise by the unauthorised purported agent of a time-limited contractual
right, such as an option to terminate or to renew a lease, outside the
specified time limit. But is to be noted that, in the context of the issue of
legal proceedings by a purported agent without authority, ratification after
the expiry of a relevant statutory limitation period is permitted: see Presentaciones
Musicales SA v Secunda [1994] Ch 271. This is because, first, ratification
relates back to the date of the originally unauthorised act and, secondly, the
statutes of limitation do not render proceedings issued out of time a nullity
for all purposes. In the present case, there is not in fact any relevant time
limit at all.
19.
The Board agrees with the Court of Appeal that the question whether the
initiation of a complaint under the LPA by a purported agent acting without the
complainant’s authority is a complete nullity, incapable of ratification,
depends upon the construction of the Act. But that question needs to be
approached from the starting point that, in the absence of the expression of a
contrary intention, the ordinary principles described above would permit,
rather than prevent, ratification. Looked at in that way, there is nothing in
Section 12 of the LPA which, in the Board’s view, prevents or prohibits that
general principle from applying. It is, as already noted, silent about the
initiation of a complaint by an agent, although it must plainly, (as the Court
of Appeal recognised) contemplate that a person aggrieved may initiate a
complaint through an agent, rather than only in person.
20.
Nor is Bowyer, Philpott & Payne Ltd v Mather [1919] 1KB 419 a
pointer to a restrictive construction of the LPA, sufficient to exclude agency
by ratification. The Public Health Act 1875 made provision for the recovery of
statutory penalties by a party aggrieved, or by the local authority of the
district in which the offence had been committed. Section 259 provided that:
“Any local authority may appear
before any court, or in any legal proceeding by their clerk, or by any officer
or member authorised generally or in respect of any special proceeding by
resolution of such authority, and their clerk, or any officer or member so
authorised shall be at liberty to institute and carry on any proceeding which
the local authority is authorised to institute and carry on under this Act.”
21.
Proceedings were initiated by a person not so authorised under Section
259, and purportedly ratified by the local authority thereafter. The Divisional
Court held that the attempted subsequent ratification was ineffective. As
Salter J explained (at pg 425):
“Section 253 of the Public Health
Act 1875 shows a clear intention on the part of the legislature that
proceedings for the recovery of penalties should not be lightly instituted.
Reading that section with Section 259 it is clear that the words in the latter
section ‘officer or member so authorised shall be at liberty to institute and
carry on any proceeding,’ must be confined to a case where the officer has
received authority before the proceedings are instituted.”
22.
This was therefore a case in which the relevant statute condescended to
a precise delimitation of the type of agency sufficient for the bringing of
proceedings, which excluded agency by ratification. By contrast, the LPA is
entirely silent on the point.
23.
Nor, as the Court of Appeal assumed, does the Bowyer case stand
as authority for the existence of some general divide between public law and
private law proceedings, such that ratification is available in relation to the
latter, but not the former. The Board is not persuaded that the Court of Appeal
was correct to regard Section 12 of the LPA as imposing a narrow basis for locus
standi so as to ensure that disciplinary complaints to the Committee are
not lightly undertaken. While it may be said that Section 12 excludes mere busybodies,
it is otherwise couched in broad terms permitting anyone aggrieved by relevant
misconduct to bring a complaint. The Board does not doubt that the Committee
has the requisite powers to control frivolous or vexatious complaints, but that
is a very different matter.
24.
Both the Court of Appeal and the Respondent placed reliance, in support
of the view that the unauthorised initiation of a complaint was a complete
nullity, upon the decision of the Court of Appeal in In re Pritchard [1963]
Ch 502. That was (to modern eyes) a hard case in which proceedings commenced by
Originating Summons under the Inheritance (Family Provision) Act 1938 were
issued out of a District Registry rather than, as required by the then Rules of
the Supreme Court, The Central Office. The Court of Appeal held that this was a
fundamental defect which could not be put right by a transfer of the
proceedings or a waiver by the defendants. The case had nothing to do with
agency or ratification, but reliance is placed upon the third of a list of
classes of proceedings which are nullities, identified by Upjohn LJ, namely
proceedings which appear to be duly issued but fail to comply with a statutory
requirement. The express statutory requirement in that case was that the
proceedings be issued by Originating Summons out of the Central Office.
25.
In the Board’s view, there is no corresponding statutory requirement,
express or implied, either in the LPA or elsewhere, which prohibits the
validation of the initiation of proceedings under Section 12 by way of
ratification by the person alleged to be aggrieved. Of course, a complaint
could not be pursued by a person purporting to act as an agent without
authority once the lack of authority had been raised in the proceedings. Such
proceedings would be defective and the Committee would, in the absence of
ratification, no doubt prevent their continuance. But, as Baron Martin said in Brook
v Hook, a defect of that kind is the very thing which the ratification
cures. He was dissenting in that case, because the majority regarded the
promissory note (upon which the defendant’s signature had been forged) and the
terms upon which the defendant proposed to honour it as tainted by illegality.
In a case like the present, where the act in question is free from any such
debilitating features, his pithy dictum provides, in the Board’s view, the
answer to the question raised by this appeal.
26.
None of the other authorities relied upon by the Court of Appeal appear
to the Board to afford material assistance. Leymon Stachan v The Gleaner
Company Ltd [2005] UKPC 33; [2005] 1 WLR 3204 was a decision of the Board
which, in passing, referred with approval to Upjohn LJ’s categorisation of
nullity in In re Pritchard. But the case was, as Lord Millett
pointed out at para 27, nothing to do with the validity or otherwise of the
commencement of proceedings, but rather whether an order of a judge of the
Supreme Court made without jurisdiction is a nullity. Right v Cuthell
(1804) 5 East 490 was a case where subsequent ratification of a notice to quit
by one of a number of joint tenants who had failed to sign the notice
originally was ineffective, because it occurred after the time limit specified
in the lease for the giving of the notice. It was a classic example of the
time-limit exception to ratification identified in Bowstead and Reynolds
and referred to above.
27.
For those reasons the Board considers that the decision of the Committee
should be reinstated. The Board will therefore humbly advise Her Majesty that
this appeal should be allowed.
