Augustine Pascall v Public Service Commission

JurisdictionGrenada
JudgeEllis JA
Judgment Date22 May 2024
Judgment citation (vLex)[2024] ECSC J0522-1
Docket NumberGDAHCVAP2021/0024
CourtCourt of Appeal (Grenada)
Between:
Augustine Pascall
Appellant
and
Public Service Commission
Respondent
Before:

The Hon. Mde. Vicki-Ann Ellis Justice of Appeal

The Hon. Mr. Paul Webster Justice of Appeal [Ag.]

The Hon. Mr. Gerard St. C. Farara Justice of Appeal [Ag.]

GDAHCVAP2021/0024

THE EASTERN CARIBBEAN SUPREME COURT

IN THE COURT OF APPEAL

Civil appeal — Ethics and advocacy — Legal practitioners — Application to restrain an attorney from acting for a client — Court's supervisory role — Power of the court to restrain a legal practitioner from acting for a party to litigation — The court's inherent jurisdiction to supervise its officers and to protect the administration of justice — Exceptional jurisdiction — Test — Perception of the fair-minded and reasonably informed member of the public — Perception of a real risk that the administration of justice would be adversely affected — Whether the judge erred in the exercise of her discretion by restraining counsel from acting for the appellant in the lower court proceedings — Whether a conflict of interest arises outside of the legal practitioner-client relationship — Confidentiality — Whether the duty of confidentiality extended beyond the legal practitioner-client relationship — Whether there was a real risk of misuse of the confidential information obtained by a legal practitioner who served as chairman of the PSC — Whether the judge failed to determine whether any other lawyer in the firm could have represented Mr. Pascall

Mr. Augustine Pascall (“the appellant” or “Mr. Pascall”) filed a fixed date claim for judicial review against the Public Service Commission (the “PSC” or “the respondent”) seeking an order of certiorari to quash the decision made on 28 th September 2020 terminating his acting appointment as Technical Officer in the Ministry of Tourism and Civil Aviation (“the Ministry”), a position he acted in for over 9 years. Mr. Pascall also sought an order of mandamus directing the PSC to confirm his appointment as Technical Officer. The PSC contended that the substantive post of Technical Officer was held by Mr. Francis Robertson (“Mr. Robertson”) and thus the post was not vacant to enable Mr. Pascall to be confirmed in that post.

By notice of application filed on 18 th June 2021, the PSC sought an order that the Law Firm of Derick F. Sylvester & Associates be recused as legal practitioners for Mr. Pascall (“the Application”). The Application was premised on the ground that Mr. Derick F. Sylvester (“Mr. Sylvester”), attorney-at-law and principal of the Law Firm of Derick F. Sylvester & Associates, held the position of chairman of the PSC during the years 2013 to 2018.

The PSC contended that between 2013 and 2018, Mr. Sylvester would have had unrestricted access to PSC's files and would have participated in decisions affecting the matter in dispute. They further argued that the proceedings of the PSC were confidential and that Mr. Sylvester's first-hand knowledge of matters pertaining to the claim would have an impact on the manner in which the claim would have been prosecuted on Mr. Pascall's behalf, thereby giving him an unfair advantage. The PSC also submitted that there was a risk that the administration of justice would be adversely affected as justice may not appear to be done if Mr. Sylvester and his firm were allowed to continue to represent Mr. Pascall.

In a written judgment dated 24 th August 2021, the learned judge granted the Application and ordered that the Law Firm of Derick F. Sylvester & Associates, be recused as legal practitioners for Mr. Pascall. The judge found that a reasonable and fair-minded person, informed of all the relevant facts, would form the view that the proper administration of justice requires that the law firm of Derick F. Sylvester & Associates be restrained from acting. The judge determined that Mr. Derick Sylvester, having served as chairman of the PSC, and having been integrally involved in the decisions and deliberations which affected the substantive post-holder and went to the core of the PSC defence that the post was not vacant, was required to preserve the confidentiality of such deliberations and information of the PSC acquired during his tenure as chairman.

Being dissatisfied with the judge's ruling, the appellant appealed. The appellant filed 10 grounds of appeal. Under grounds 1 and 2 the appellant contended that the judge erred in failing to give any or any sufficient consideration to the fact that the respondent was obliged, in law, to voluntarily disclose to the appellant the information requested by the appellant because of the duty of candour which arises in judicial review proceedings. Grounds 3–6 centred on the obligation of confidentiality. The appellant contended that the judge failed to hold that no confidential information arose or may arise in the judicial review proceedings. He further submitted that the judge failed to appreciate that the rationale for the respondent reverting the appellant to his substantive post is not confidential. In grounds 7–8, the appellant contended that the judge failed to consider that Mr. Sylvester had no involvement in the deliberation or decision to appoint the appellant to act in the higher office or to revert him to his substantive office and the judge failed to acknowledge that no question of considering the deliberations of the respondent arise or may arise in the judicial review proceedings. Ground 9 alleged that the judge erred in applying the principles of bias when it was clear that Mr. Sylvester was not a decision maker in the judicial review proceedings. Finally, ground 10 contended that the judge erred by failing to give sufficient consideration to whether any lawyer in the law firm of Derick F. Sylvester & Associates other than Mr. Sylvester might properly have carriage of the judicial review proceedings.

Held: dismissing the appeal, affirming the judgment of the judge in the court below, discharging the stay of execution granted on 6 th April 2022 and continued on 20 th February 2023 by this Court, and ordering that the appellant pay the respondent's costs of the appeal to be assessed, if not agreed by the parties within 21 days of this judgment, that:

  • 1. The court has an inherent jurisdiction to restrain an attorney from representing a litigant in order to protect the integrity of its processes and the administration of justice. In the exercise of this jurisdiction, it is the duty of the court to ensure that justice is not only done but that it is seen to be done. The power to exercise this inherent jurisdiction enables the court to preserve public confidence in the judicial system and derives from the court's supervisory jurisdiction over its officers. The power is an exceptional one and consequently, judicial restraint is imperative as litigants should not be deprived of their choice of representation without good cause.

    Honourable Guy Joseph v The Constituency Boundaries Commission et al SLUHCVAP2015/0013 (delivered 6th April 2016, unreported) followed; Holborow and Others v MacDonald Rudder [2002] WASC 265 applied; Kallinicos and Another v Hunt and Others [2005] NSWSC 1181 applied; Premier Capital (China) Ltd v Sandhurst Trustees Ltd [2012] VSC 611 applied.

  • 2. Where it is necessary for a court to intervene to restrain an attorney, the power of the court will be exercised where a fair-minded and reasonably informed member of the public would conclude that the proper administration of justice requires that the attorney be prevented from acting for a client. The test is an objective one based on what the general public could expect of the administration of justice. As the determination of whether or not an attorney should be restrained involves an exercise of judicial discretion, an appellate court would not intervene unless the trial judge's decision exceeded the general ambit within which reasonable disagreement is possible and may therefore be said to be clearly or blatantly wrong. On the facts, the learned judge correctly identified the test and there was no error on her part in this regard.

    Honourable Guy Joseph v The Constituency Boundaries Commission et al SLUHCVAP2015/0013 (delivered 6th April 2016, unreported) followed; Dufour and Others v Helenair Corporation Ltd and Others (1996) 52 WIR 188 followed.

  • 3. In the appeal, the appellant contended that the judge failed to give sufficient consideration to the fact that the PSC was obliged to voluntarily disclose the information requested by the appellant owing to the duty of candour falling on public authorities in judicial review proceedings. However, contrary to the appellant's assertions, the judge's reasons demonstrate an acceptance that the PSC had a duty of candour in the proceedings. The judge nevertheless had to consider whether the PSC's duty negated the attorney's obligations such that a court should not restrain the attorney from acting. Ultimately, the judge concluded that it did not, and the Court found that she did not err in this regard. The fact that the PSC has a duty of candour would not mean that the information gleaned by Mr. Sylvester in his role as chairman was not confidential. It was therefore no answer to a restraint application to suggest that the applicant was required to disclose information to the court in any event. The judge therefore did not err in her reasoning and grounds 1 and 2 of the appeal were dismissed.

    Spector v Ageda [1973] Ch 30 considered; R v Lancashire County Council ex p Huddleston [1986] 2 All E.R. 941 considered.

  • 4. It is well-established that an attorney owes a duty of confidentiality to his clients and ought to avoid situations which conflict with this duty. The principle of avoiding this conflict of duty is broader than the attorney-client relationship and protects quasi-clients or indeed any person who gave information to an attorney which was capable of being used to the giver's detriment. Once a...

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