Re an Advocate

JurisdictionJersey
CourtCourt of Appeal
Judge(Parker, P., Whitworth and Jauncey, JJ.A.):
Judgment Date15 September 1978
Date15 September 1978
COURT OF APPEAL
(Parker, P., Whitworth and Jauncey, JJ.A.):

Advocates—disciplinary proceedings—appeals—proceedings are "civil cause or matter" in which appeal lies to Court of Appeal under Court of Appeal (Jersey) Law 1961, art. 12(2)—desirable to formulate agreed rules of procedure in disciplinary matters for benefit of profession and to ensure public confidence in profession

Advocates—professional etiquette—access to confidential documents—not misconduct for advocate to read confidential papers of opposing advocate acquired fortuitously by own client and shown to him—duty to give early warning of circumstances to opposing advocate save in exceptional cases

Civil Procedure—appeals—point not taken below—court only to allow introduction of new point if satisfied that all possibly relevant material before it

PARKER, P.: By Act of the Royal Court dated the 17th March 1978, the Inferior Number referred to the Superior Number a representation of the Bâtonnier of the Jersey Bar with regard to the conduct of two of its practising members and directed that they should appear before the Superior Number on the 29th March 1978. They duly so appeared on that day. Upon hearing them and also the Attorney General, the Superior Number, by Act of Court dated the same day, found (a) that the conduct of one advocate was unbecoming to a member of the Bar and contrary to accepted professional ethics and (b) that the other member of the bar had made a serious error of judgment and was in breach of duty to his client. The former advocate was accordingly censured and the latter advocate was reprimanded.

The advocate who was censured appealed to this Court by a Notice of Appeal which was undated. There was however no suggestion that it was not given within due time. The advocate who was reprimanded did not appeal. The Superior Number sat in camera but no application so to do was made to us and we sat in open court.

We have thus far not identified either of the two advocates concerned by reason of the fact that the Superior Number sat in camera. This being so and since the advocate who was reprimanded does not appeal, we shall not identify him hereafter. We do however now identify the appellant who was censured as Advocate Vivian Vibert. Justice demands that this should be done. It is widely known that the appellant was censured by the Superior Number. At the conclusion of the hearing before us, which took place on the 14th and 15th September, we had no doubt that the appellant had not been guilty of any misconduct and, accordingly that the Appeal should be allowed and the censure set aside. The appellant was therefore plainly entitled to have his name publicly cleared and that without delay. In order to achieve this we stated our conclusion immediately upon the termination of the hearing of the appeal. As, however, the appeal raises important questions relating not only to this particular case but also to disciplinary procedure generally, we considered it desirable that we should give our reasons fully in a subsequent written judgment. This we now do. We deal first with disciplinary procedure generally because it involves also the jurisdiction of this Court to hear the appeal.

The complaint of professional misconduct against the appellant was made by letter dated the 30th December 1977 by a party in a case in which the appellant had appeared for the opposite side. It was made to the Deputy Bailiff. It led to an enquiry and report by two senior members of the bar. Their report was submitted to the Bailiff who requested the Bâtonnier to take such action as he thought fit in the light of the opinions expressed in the report. As a result of this request the Bâtonnier represented to the Royal Court inter alia that the findings of the Enquiry with regard to the appellant were that his conduct was unbecoming to a member of the Bar and contrary to accepted professional ethics and that the Bâtonnier considered that the facts should be submitted to the Royal Court for its consideration. The Bâtonnier's representations concluded with a prayer that the Royal Court might take such action as it thought fit.

There is no formal disciplinary procedure in respect of advocates laid down by statute, or by any agreed rules of the profession, or arising from case law. Advocates are subject to the Loi (1961) sur l'exercise de la profession de droit à Jersey, but are otherwise unfettered by statute, and that law is of no assistance in the present context. By custom they must renew their oath twice a year failing which they may not practise. In the event of established complaints of a minor nature they are internally and informally reprimanded. If however it is considered that the complaint is or may be serious enough to warrant formal censure or suspension the practice has been for a representation to be made to the Royal Court.

In the past twenty years the Royal Court has twice suspended. On both occasions the Advocate concerned had been guilty of a criminal offence. There has been no occasion previously in which an advocate has appealed to this court nor does there appear to have been any occasion when, prior to the establishment of this Court, there was an appeal to Her Majesty in Council. The nearest approach to an appeal which either the appellant's or the Bâtonnier's Counsel was able to find and draw to our attention was Ex p. Godfray (1832), 5 Ord. du Cons. 477, unreported. This was, however, a peculiar case in which the Royal Court had purported to suspend an advocate pending an original decision on his conduct by Her Majesty and in which the advocate concerned petitioned to have the interim suspension set aside. It was thus not a true appeal. The most that can be said of it is that it demonstrates the then appellate court interfering, albeit not by way of any established appeal procedure, where it was satisfied that a suspension was unjustified.

The jurisdiction of this Court is, however, the creature of statute namely The Court of Appeal (Jersey) Law 1961 and it is only if the present appeal can be brought within that statute that we have any jurisdiction to consider and pronounce upon it. It was common ground that the sole provision of that Law under which we could derive jurisdiction was Article 12(2). This reads as follows:—

"Subject as otherwise provided in this Law and to rules of court, the Court of Appeal shall have jurisdiction to hear and determine appeals from any judgment or order of the Superior Number of the Royal Court when exercising original jurisdiction in any civil cause or matter."

On the 29th March 1978, the Superior Number having by Act of Court censured the appellant in the exercise of original jurisdiction it is clear that we have jurisdiction if such Act of Court was in a "civil cause or matter" within the meaning of the words in Article 12(2).

Certainly it was not a criminal cause or matter and there is much force in the contention that the Law of 1961 was intended to give us power to hear appeals from all other orders of the Superior Number when exercising original jurisdiction. Nevertheless, although the Superior Number was exercising original jurisdiction when hearing the Bâtonnier's representation it was sitting in what may be regarded as a somewhat special capacity and it appeared to us that there might well be doubt that such a hearing was the hearing of a civil cause or matter within the meaning and intendment of the Law. For this reason we indicated to the parties before the commencement of the hearing that we should require to be satisfied as to jurisdiction before entertaining the appeal. We heard argument on the matter and were so satisfied. There is no authority directly in point, but the recent case of Hilborne v. Singapore Law Socy., [1978] 2 All E.R. 757 is of considerable assistance. In that case the Law Society of Singapore ordered an advocate to pay a penalty of $250 dollars in respect of his conduct in stating, after the conclusion of the hearing and not by way of submission, that the Court of Appeal had, by refusing to re-open an appeal, "set the seal...

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    ...Property Corporation v. H.M. & S. Ltd [1982] Q.B. 1145 Ocean Accident & Guarantee Corporation v. Next plc [1996] 2 EGLR 84. In re an Advocate (1978) JJ 193. Browne v Dunn (1893) 6 R 67 (HL). Pittalis v Grant [1989] QB 605; [1989] 2 All ER 622 (CA). Nikko Hotels (UK) Ltd v MEPC plc [199......
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