Stuart A. Lockhart v Valentina Nonini and Maurizio Pandini

• Jurisdiction: Antigua and Barbuda
• Judge: Pereira CJ
• Judgment Date: 14 October 2020
• Neutral Citation: AG 2020 CA 9
• Date: 14 October 2020
• Docket Number: ANUHCVAP2019/0004
• Court: Court of Appeal (Antigua and Barbuda)

THE EASTERN CARIBBEAN SUPREME COURT

IN THE COURT OF APPEAL

Before:

The Hon. Dame Janice M. Pereira, DBE Chief Justice

The Hon. Mde. Louise Esther Blenman Justice of Appeal

The Hon. Mr. Mario Michel Justice of Appeal

ANUHCVAP2019/0004

Between:

Stuart A. Lockhart

Appellant

and

[1] Valentina Nonini and Maurizio Pandini

[2] The Disciplinary Committee

Respondents

Appearances:

Mr. Leslie Thomas, QC, with him, Dr. David Dorsett for the Appellant

No appearance for the First Respondents

Civil appeal — — Disciplinary hearing — — Principles of natural justice — — Whether the appellant was denied the right to be heard — — Whether the appellant was denied the right to a fair hearing — — Bias — — Whether there was apparent bias on the part of the disciplinary committee — — Whether the disciplinary committee failed to give sufficient reasons for its decision

In or about May 2012, the first respondents entered into an oral agreement to purchase a restaurant in Antigua for the sum of US$350,000.00. The appellant, Mr. Stuart Lockhart (“Mr. Lockhart”), who is an attorney at law, was approached by the first respondents with a view to engaging him in his professional capacity to complete the purchase.

Mr. Lockhart requested that the first respondents pay a deposit of US$50,000.00 towards the purchase price and a deposit of US$5,000.00 in respect of legal fees. Both sums were paid by the first respondents. There was however no retainer agreement, no consultation fee, nor any discussion as to Mr. Lockhart's hourly rate or billing method.

Subsequently, in early 2013, the first respondents wired to Mr. Lockhart a portion of the balance of the purchase price in the sum of US$196,400.00. They also met Mr. Andrew Young (“Mr. Young”), a barrister-at-law qualified to practise in the United Kingdom, who Mr. Lockhart indicated would assist in the completion of the sale. The first respondents contended before the Disciplinary Committee that there was no discussion as to either Mr. Young being retained by them or as to fees to be paid to Mr. Young.

The sale, however, was not completed. The first respondents contended that, after negotiations broke down and the purchase was aborted, they instructed Mr. Lockhart to return the deposit as well as the further funds paid by them towards the purchase price of the business which together would have totalled US$246,400.00. However, by June 2013, only US$228,757.66 was refunded by Mr. Lockhart.

When questioned about the shortfall, Mr. Lockhart then provided an invoice claiming an outstanding balance due to him of US$28,294.22. The first respondents disputed the billing, contending that they were being overcharged as the purchase of the restaurant's assets had not been completed and also because certain amounts were charged for legal work for which they had not given instructions. Further, they also disputed the amounts claimed for the legal services of Mr. Young on the basis that he had not been retained by them.

The matter remaining unresolved, on 3 ^rd March 2015, the first respondents filed a complaint with the Disciplinary Committee (or ‘the Committee’) established under the Legal Profession Act against Mr. Lockhart. The complaint alleged conduct unbecoming of an attorney-at-law and in particular that Mr. Lockhart had: (i) charged fees which were excessive and unreasonable; (ii) grossly overcharged in excess of the value of the services rendered and; (iii) engaged the services of a foreign colleague, Mr. Young, but billed separately for those services despite no express agreement to that effect and no need to do so.

The complaint against Mr. Lockhart was heard by the Disciplinary Committee on 3 ^rd May 2017. One of the members of the Disciplinary Committee, was Ms. C. Debra Burnette, an attorney-at-law who had objected to the admission of Mr. Young to the Antiguan Bar in an unrelated matter. Ms. Burnette's firm had also acted for Mr. Nicholas Fuller, the transactional attorney who held the first respondents' escrow account in the transaction which formed part of the background facts relevant to the subject-matter of the disciplinary proceedings.

During the taking of Mr. Lockhart's evidence, his counsel requested that Mr. Young be interposed to give evidence. This was due to Mr. Young's imminent return to the United Kingdom and the desire for his evidence to be taken before then. Mr. Lockhart was directed by the Disciplinary Committee to remain outside the room while Mr. Young gave his evidence, during which an allegation that Mr. Young's actions had breached the Legal Profession Act 2008 of Antigua and Barbuda (“the Act”) arose as he was not qualified to practise law in Antigua and Barbuda. That allegation of Mr. Young's unlawful practice of law, however, had not formed part of the complaint before the Disciplinary Committee.

The Disciplinary Committee found that Mr. Lockhart had charged fees which were excessive and had unlawfully engaged and billed for the services of Mr. Young, a person who was not qualified to practise law in Antigua and Barbuda. The Disciplinary Committee also found that Mr. Lockhart had facilitated Mr. Young's breach of the laws of Antigua and Barbuda. The Committee therefore ordered Mr. Lockhart to: (i) repay the first respondents the sum of US$17,289.35, along with interest; (ii) pay the legal fees of the first respondents in the sum of EC$5,000.00 and (iii) pay a fine of EC$7,500.00 to the Bar Association of Antigua and Barbuda for breaching Part B, section 3 of the Mandatory Provisions and Specific Prohibitions of the Code of Ethics as contained in Schedule 4 of the Act. Specifically, the Disciplinary Committee, found as it relates to Mr. Lockhart's facilitation in the breach of the law by Mr. Young that its decision be forwarded to the Director of Public Prosecutions for his further investigation of the matter.

Mr. Lockhart appealed. However just prior to the hearing of the appeal, the first respondents filed a notice of non-participation in the appeal and the appellant discontinued the appeal against the 2 ^nd respondent. At the hearing of the appeal, counsel for Mr. Lockhart explained that all sums ordered to be paid to the first respondents had been settled and undertook not to take any recovery action against them if this Court found in favour of the appellant.

The appeal therefore proceeded on narrow grounds. It sought to challenge the finding of the Committee which suggests that Mr. Lockhart facilitated criminal conduct and the manner in which the Committee arrived at this finding. To wit: (i) whether there has been a breach of natural justice in the conduct of the disciplinary hearing against Mr. Lockhart by the Disciplinary Committee; (ii) whether the Disciplinary Committee was infected with bias; (iii) whether it failed to give adequate reasons for its decision; and (iv) whether the length of time taken by the Disciplinary Committee to give its decision amounts to inordinate delay.

Held: allowing the appeal in part; setting aside the decision of the Disciplinary Committee; remitting the disciplinary complaint filed on 3 ^rd March 2015 against Stuart A. Lockhart for rehearing by a differently constituted panel of the Disciplinary Committee; and making no order as to costs, that:

• 1. The general rule is that a party is entitled to be present throughout the hearing of a civil trial as he has a right to know the case against him and the evidence on which it is based. The party must also have an opportunity to respond to any evidence and to any submissions made by the other side. Although there are cases where a departure from the general rule may be justified for special reasons in the interest of justice, the instant case is not one where such a departure can be justified as the prejudice to Mr. Lockhart, albeit the interposing of Mr. Young's evidence was done at his request, outweighed the necessity to exclude him from the hearing room during the taking of Mr. Young's evidence.

  Al Rawi and others v Security Service and others (JUSTICE and others intervening) [2012] 1 AC 531 applied; B Surinder Singh Kanda v Government of the Federation of Malaya [1962] AC 322 applied; Da Costa and Another v Sargaco and Another [2016] EWCA Civ 764 applied; Attorney General of Zambia v Meer Care and Desai (a firm) and others [2006] EWCA Civ 390 applied.

• 2. The principles of natural justice require that allegations made against a party should be put to that party by way of formal charge or complaint so that the party would be forewarned and have an opportunity to respond to the charge by contradicting it or giving an explanation. As such, the Disciplinary Committee, by arriving at a conclusion that Mr. Lockhart was engaging in criminal conduct when such a complaint had not been formally put to him, and without affording him a proper opportunity to address such a complaint, breached Mr. Lockhart's right to be heard and the principles of natural justice.

  B Surinder Singh Kanda v Government of the Federation of Malaya [1962] AC 322 applied; Browne v Dunn (1893) 6 R 67 applied; Chen v Ng [2017] UKPC 27 applied.

• 3. Whereas the test for apparent bias is whether a fair minded and informed observer, having considered the facts, would conclude that there was a real possibility that the tribunal was biased, an appellate court is required to look at the whole spectrum of decision-making, as long as it is borne fully in mind that such a test has to be applied in very different circumstances and that those circumstances must have an important and possibly decisive bearing on the outcome. In the instant case, there does not appear to be any sufficient nexus between Ms. Burnette's objecting to Mr. Young's admission to the Antiguan Bar in respect of a matter unrelated to this case and the subject matter of the disciplinary complaint against Mr. Lockhart in which Mr. Young gave evidence. Further, the mere fact that another attorney-at-law...