Keiva Maronie-Durham v Bermuda Bar Council
| Jurisdiction | Bermuda |
| Judge | Shade Subair Williams J |
| Judgment Date | 30 June 2021 |
| Court | Supreme Court (Bermuda) |
| Docket Number | APPELLATE JURISDICTION No. 3 of 2020 |
[2021] SC (Bda) 49 App
In The Supreme Court of Bermuda
Shade Subair Williams J
APPELLATE JURISDICTION No. 3 of 2020
Appellant: Mr. Jaymo Durham (Amicus Law Chambers)
Respondent: Ms. Sara Tucker (Trott & Duncan Limited)
Appeal against Decision of Bermuda Bar Council / Refusal of Application for a Fit and Proper Certificate and a renewal of Practising Certificate / Section 10E of the Bermuda Bar Act 1974 / Appeal by Rehearing under RSC O.55/(2)–(7)
JUDGMENT of Shade Subair Williams J
This appeal is made under section 13 of the Bermuda Bar Act 1974 (“the 1974 Act”).
The Appellant, Mrs. Keiva Maronie-Durham (“the Appellant” / “KMD”), was first called to the Bermuda Bar on 17 October 2008. Since which, she has been a practicing member of the Bermuda Bar Association. However, on 9 December 2019 the Bermuda Bar Council (“the Bar Council”) denied KMD's application for renewal of her practising certificate (“the Decision”) on the grounds that she did not satisfy the requirements for certification as a fit and proper person under section 10E of the 1974 Act.
Aggrieved by the Respondent's refusal to reissue her a practising certificate, the Appellant appealed to this Court, under section 10G of the 1974 Act and in accordance with the procedural provisions under Order 55 of the Rules of the Supreme Court 1981 (“RSC”). By way of relief the Appellant seeks for this Court to set aside the Decision and to remit her application to the Bar Council for their reconsideration.
Pursuant to RSC O.55, this appeal was heard by way of a rehearing on the documents originally considered by the Bar Council. Additionally, affidavit evidence from both the Appellant and the President of the Bar Council, Ms. Elizabeth Christopher, was filed. The Court was also ably assisted by Counsel's oral and written submissions.
At the close of the hearing I reserved judgment which I now provide with the reasons outlined herein.
The Decision was given in the form of a letter dated 9 December 2019 which is signed under the name of the Vice President of the Bar Council, Ms. Cindy Clarke. The refusal to issue a Fit and Proper Person Certificate (“FPP Certificate”) is expressly based on the Bar Council's conclusion that the “ Appellant's previous conduct and activities in business and or financial matters” disqualified her from approval.
The factual basis relied on by the Bar Council in reaching the Decision consists of:
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(i) evidence underlying complaints of professional misconduct pending adjudication; and
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(ii) evidence underlying an admonishment made against the Appellant on 23 November 2015.
The Decision provides:
“…We would like to remind you that Bar Council are [sic] responsible for protecting the integrity and reputation of the Bar as a whole, as well as, if not more importantly so, to protect the interests of clients, potential clients and the public.
As you are aware, Bar Council have [sic] a statutory obligation to determine whether an applicant is a fit and proper person. As such, your application was considered fairly and in good faith. Taking into account all relevant factors.
Fit and Proper Person Determination S.10E of the 1974 Act
In making its determination, Bar Council considered your previous conduct and activities in business and or financial matters. In particular, Bar Council had regard to the following:
Section 10E(4)(c)(iv)
• You have demonstrated that you cannot be relied upon to discharge your financial duties as a Barrister, as you have 3 pending PCC tribunal matters that are all in relation to financial complaints.
[Complainant E]
[Complainant L]
[Complainant J]
Section 10E(4)(d)(vi)
• You have within the preceding 5 years been admonished in relation to your conduct.
[Complainant M]
The decision
We have considered the severity of all of the relevant circumstances. However, in reviewing your previous conduct and activities in business and/or financial matters, Bar Council must deny your application for a Fit and Proper Person certificate and therefore will declined [sic] to issue you a Practising Certificate at this time.
Kindly refer to Section 10G of the Act in relation to any appellate rights.”
Further to the grounds stated in the Decision, the Respondent also asserts that the Appellant's failure to properly disclose her regulatory history on the FPP Certificate application form gives added cause for the refusal. This is explained in Ms. Christopher's first affidavit [5–7] and [9–11]:
“5. Firstly, it is the Appellant's position (with which we disagree) that the Respondent ought to have been delivered her Fit & Proper Person Certificate (“FPPC”) following consideration of her application submitted on 4 December 2020 for the 2019/2020 practicing year. Upon receipt of her application the Respondent convened to deliberate this application along with others which were submitted. It became instantly apparent to the Respondent that there was a lack of disclosure as it relates to matters which detail the regulatory history of the Appellant in that she failed to disclose five active Professional Conduct Committee (hereinafter referred to as “the PCC”) matters contrary to Section 10E 4(d) of the Bermuda Bar Act 1974, which will be discussed below.
6. Further and upon review of the matters which were not disclosed it was duly noted that the Respondent failed to respond to [a] reasonable request to provide comments to the complaints raised on at least two of those matters from the point of allegation to the point of charge and at the time of consideration of her FPP application she had still not responded. This is again contrary to Section 10E 4(d) of the Bermuda Bar Act 1974 Act, as the PCC, a part of a regulatory body put forward such requests to assist with their investigations into complaints.
7. Additionally and most egregiously as a result of the partial disclosure submitted by the Appellant which lacked particulars including names of the parties the Respondent has since become aware of two additional findings against the Appellant, one was before the Supreme Court of Bermuda and resulted in the Appellant being ordered to pay $225,000.00 in damages to the Plaintiff plus costs. She failed to disclose this action by the court in her original application…
…
9. On 4 December 2019 the Appellant submitted her Fit and Proper Person Application Form (“the Application”) at “AR-pages 1–2” On page 2 under the Bermuda Bar 1974 section 4 (d) the Appellant was required to provide disclosure of her regulatory history, in particular inter alia whether she had been made the subject of a serious disciplinary finding, sanction or action by a regulatory, court or other body hearing appeals in relation to disciplinary or regulatory findings. Under this section the Appellant comments that “In 2016 I was fined by the Bermuda Bar Council for the failure to pay stamp duty on a conveyance”.
10. With respect to this disclosure the Appellant failed to provide a full and proper description of parties or the findings of the Bar Disciplinary Tribunal which in that instance both admonished and fined the Appellant for inappropriate conduct regarding a financial transaction. Due to the lack of full and proper disclosure the Council believed the matter described in the application was that of [MB] v Keiva Maronie-Durham PCC 359 addressed this point. It has since been discovered that this disclosure was not in reference to Myron Binns in which she received an admonishment at PCC level “AR-Pages 99–100”. In fact there were two complaints found against the Appellant within the period.
11. The Complainants in the actual matter partially disclosed were the Bar Council and [HK]. The Chairman's Report on this matter can be found at “AR-pages 3–6” with the sanctions imposed listed at paragraph 9. Due to the Respondent's failure to fulfill her disclosure obligation the Respondent for all intents and purposes only considered one admonishment…and not the second lot of sanctions in the matter of [HK] which it was also bound to consider. Had there been full disclosure then the Respondent would have also cited the matter of [HK] in its denial letter to the Respondent. The Respondent has accordingly felt misled by this lack of disclosure and the confusion it has caused.”
In Ms. Christopher's second affidavit she deposed [8]:
“Furthermore the findings actually made against the Appellant would have stood alone as reasons for the Respondent to reject her application and had it not considered the evidence on the complaints or the volume of the complaints in queue the Appellant [sic] [Respondent] would have continued to remain firm on its view. If we had discovered the Appellant failed to provide full disclosure before advising the Appellant of our decision, which we note that she fails to address in her Affidavit, I am certain we would have also considered and cited the non-disclosure and circumstances of those case [s] and cited them in her refusal letter.”
A copy of the Appellant's application form dated 7 November 2019 was placed before this Court. Where the KMD was questioned about her regulatory history covering the preceding five years, she replied:
“In 2016 I was fined by the Bar Council for the failure to pay stamp duty on a conveyance document.”
On the Respondent's case, KMD's above response was misleading. Counsel for the Bar Council, Ms. Sara Tucker, characterised the Appellant's response as a ‘partial non-disclosure’. Outlining the fuller picture of KMD's regulatory history, Ms. Tucker pointed to a reprimand ordered by the tribunal on 11 March 2016 in proceedings where the Appellant was charged, inter...
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