Hall v Bermuda Bar Council

• Jurisdiction: Bermuda
• Judgment Date: 30 March 1983
• Date: 30 March 1983
• Docket Number: Civil Appeal 1982 No. 13
• Court: Court of Appeal (Bermuda)

In The Court of Appeal for Bermuda

Before:

Blair-Kerr,

P; Smith, JA;

da Costa, JA

Civil Appeal 1982 No. 13

In the Matter of a Barrister and Attorney

And

in the Matter of the Bermuda Bar Act 1974

BETWEEN

Julian Ernest Sinclair Phillips Hall

Appellants

and

The Bermuda Bar Council

Respondent

Mr R Johnston, QC and Mr N Hargun and Mr M Scott for the Appellant

Mr G Collett for the Respondent

The following cases were referred to in the judgment:

R (King) v Handsley, Justices of the Borough of Burnley (1882) 8 QD 383

Allinson v General Council of Medical Education and RegistrationELR [1894] 1 QB 750

R v Pwllheli Justices, ex parte SoaneUNK [1948] 2 All ER 815

Metropolitan Properties Co (FGC) Ltd v LannonUNK [1968] 3 All ER 304

Hannam v Bradford City CouncilUNK [1970] 2 all ER 690

R v Sussex Justices, ex part McCarthyELR [1924] 1 KB 256

Leeson v General Council of Medical Education and RegistrationELR (1889) 43 Ch D 366

In re S (A Barrister)ELR [1981] 1 QB 683

Abstract:

Barrister - Improper conduct - Disciplinary committee heard complaint of improper conduct against appellant for failing to produce books and records - Complaint was proved and appellant ordered struck off - Appeal by appellant on grounds of procedural irregularities - Committee's decision was vitiated by fact that Michael Mello was member of both Disciplinary Committee (adjudicating body) and Bar Council (prosecuting body) - No actual bias by Mr. Mello - Nemo judex in causa sua - Natural justice

JUDGMENT of Blair-Kerr, P

1. The Barristers (Accounts and Records) Rules were made by the Bar Council and confirmed by the Chief Justice under s. 9 of the Bermuda Bar Act. They came into operation on 1st April 1976. The Rules provide that every barrister who receives trust money shall pay it into a trust account with a licensed ban, and shall keep books, records and accounts to record all money and other negotiable property received and disbursed by him. Rule 8 provides that every barrister, shall, not later than six months after the commencement of any financial year, "unless he satisfies the Council that owing to the circumstances of his case it is unnecessary for him to do so", deliver to the Secretary of the Council an accountant's report in respect of the previous year in the form prescribed in the schedule of the Rules.

2. Mr Julian Hall is a barrister in practice in Bermuda. From a letter dated 10th December 1980, it appears that he had not submitted the report prescribed by rule 8 in respect of the year 1979. He was requested by the then President of the Council to do so. There is nothing in the papers before us to indicate whether the reports for 1979, 1980 and 1981 have now been received by the Secretary of the Bar Council. However, we are not concerned with that aspect in this appeal. The pointes with which we are concerned arose in this way: Mr Hall appointed to his staff a Chartered Accountant named Christopher Walton. For some reason, the relationship between the two men was not a happy one and Walton and Mr Hall parted company in April 1980.

3. After he left Mr Hall's employment, Walton instructed his attorney, Mr Peter Smith, to make a complaint to the Bar Council alleging that the accounts of Mr Hall's firm were not properly kept. Walton also wrote to the Commissioner of Police and the Attorney General.

4. On January 8, 1981, the Secretary to the Bar Council wrote to Mr Hall as follows:-

"Dear Julian,

On 2nd December 1980 the Council considered a letter of Mr Kieron Unwin dated 10th October 1980, the Solicitor General's letter of 20th October 1980 and a statement made by Mr Christopher Walton to the Police. The Council resolved that the matter of the dishonoured cheque referred to in Mr Unwin's letter was not prima facie of concern to the Council and accordingly that letter did not constitute a proper complaint. However, the Council did conclude that there was sufficient indication of possible breaches by your firm of the Barristers (Accounts and Records) Rules 1976 and resolved to appoint a committee of Ronald Barnard, Walter Maddocks and I to investigate such possible breaches.

I am directed to request your written authority to your past and present accountants to provide the committee with such documents and information as it may require with regard to your firm's trust accounts and records required by the Rules…"

5. Although the letter did not refer to rule 7 of the Barristers (Accounts and Records) Rules, clearly the Council purported to act under that rule which reads:

7 (1) The Bar Council may at any time direct an investigation to be made by a person designated by the Council of the books, records, files, accounts and other documents relating to the trust accounts of any barrister for the purpose of ascertaining and reporting whether the relevant provisions of these Rules have been complied with by such barrister.

(2) Before instituting any investigation otherwise than of its own motion, the Council shall be entitled to require to be satisfied by evidence that a prima facie ground of complaint exists.

(3) Any barrister in relation to whom the Council has directed an investigation to be made under paragraph (1) shall produce or cause to be produced to the person designated by the Council under that paragraph the said books, records, files, accounts and other documents and any evidence, vouchers or other papers relevant to the investigation that are lawfully required of him by that person, and shall furnish or otherwise cause to be furnished to that person any such explanations as that person may reasonably require for the purposes of the investigation…"

6. On 12th January 1981, the Secretary again wrote to Mr Hall drawing his attention specifically to rule 7.

7. Mr Hall did not reply to the Council's letters of 8th and 12th January; and on 3rd February 1981, the Secretary wrote another letter to Mr Hall. It reads in part:-

"…I am directed to inform you that the Council has designated R Barnard as the person to conduct the investigation of the alleged breaches by your office pursuant to Rule 7(1) and to require you to produce to him all your books, records, files, accounts and other documents relating to your trust account on or before 5 o'clock on Friday 6th February 1981, pursuant to Rule 7(3).

Mr Barnard will attempt to photocopy such parts of the books etc as he may feel relevant to the investigation over the following weekend, so that the originals may be returned to you on the following Monday …"

8. On 6th February 1981, Mr Hall replied to the Council's letter of 3rd February. He requested an "extension f time to comply with your request until seven days after the conclusion of the trial of Hector v The Royal Gazette et al."

9. On 12th February the Secretary wrote to Mr Hall informing him that the Council had resolved to extend the time for production of his books, records etc "only to 5 pm on Friday 13th February 1981".

10. The books and records were not produced on 13th February. Mr Hall telephoned Mr Barnard that day; and Mr Barnard informed him that the "deadline" for production of the books, records etc was extended to 16th February. The books etc were not produced by 16th February. Mr Hall instructed Miss Lois Browne as his attorney; and on 24th February 1981, Mr Barnard wrote to Miss Browne requesting delivery of Mr Hall's books etc not later than 2:30 pm on Wednesday 25th February.

11. On 25th February Miss Browne wrote to Mr Barnard requesting an extension of "at least 2 weeks" as she had just been instructed by Mr Hall.

12. On 4th March Miss Browne wrote to the Bar Council; but that letter is not before us. In reply, the Secretary wrote to Miss Browne informing her that her letter of 4th March had been considered by the Council, and that it been resolved that the Council recommend to the Chief Justice that a disciplinary committee be appointed pursuant to s 15 and 13(b) of the Bermuda Bar Act unless the books, records etc relating to Mr Hall's trust account were produced by 9 am on Monday 9th March 1981.

13. On 8th April 1981, Mr Barnard, who was then President of the Bermuda Bar Association, wrote to the Secretary informing him that he was the person designated by the Council to obtain from Mr Hall the relevant books, records etc that Mr Hall had not complied with the request to do so and that he was therefore obliged "to lodge with the Council a formal complaint against Mr Hall to this effect."

14. Mr Barnard's complaint was sent to Mr Hall on 13th April 1981 and he was informed that this complaint and another complaint by Mr Walton would be considered by the Council on 21st April 1981.

15. The history of this matter during the next few months need not concern us. It was found necessary to change the constitution of the Disciplinary Committee. Originally Mr Justice Melville was appointed chairman, but for some reason unknown to us his appointment was revoked. Moreover, a Mr Dill of Conyers, Dill and Pearman was appointed a member; but subsequently that was not considered desirable as Mr Gerald Collett, who agreed to present the case for the Bar Council, was also associated with Conyers, Dill and Pearman.

16. An amended notice of hearing dated 10th September 1981 informed all concerned that 16th November 1981 had been fixed by the Disciplinary Committee for the hearing of the complaints. In the meantime, Mr Hall had departed from Bermuda; and, in acknowledging receipt of the notice, a member of Mr Hall's staff informed the Bar Council that Mr Hall would not be returning to Bermuda till the end of December 1981.

17. On 27th January 1982, Mr Collett, on behalf of the Bar Council, wrote to the Clerk of the Disciplinary Committee as follows:-

"… As directed by the re-constituted Disciplinary Committee, appointed by the Chief Justice under the Bermuda Bar Act 1974 to consider two complaints made against Mr Julian Hall, Barrister and Attorney, I have reduced to writing the formal...