General Legal Council v Michael Lorne (Jamaica)

An appeal from a professional disciplinary committee by way of rehearing gives the appellate court full appellate jurisdiction, including power to substitute its own sanction. The court must approach an expert committee’s assessment with diffidence, considering its professional experience, hearing of witnesses, specialist regulatory knowledge and the limits of written reasons. This is a question of role recognition, not deference. Absent an error of law or principle, the governing question is whether the sanction is appropriate and necessary in the public interest or excessive and disproportionate. Striking off does not require dishonesty: egregious misconduct or chaotic mismanagement short of dishonesty may justify it. Where either striking off or substantial suspension is available, the tribunal must explain why the ultimate sanction is necessary.

A disciplinary committee found that Michael Lorne had failed to account to his client, Olive Blake, for her share of the proceeds of sale of jointly owned property. It found professional misconduct but no dishonesty and struck him off the Roll on 24 June 2017. The Court of Appeal of Jamaica affirmed the misconduct finding but, in [2021] JMCA Civ 17, substituted a five-year suspension and compulsory continuing legal professional development. The General Legal Council appealed. The central issues were whether the Court of Appeal was entitled to rehear the sanction question and whether striking off for very serious misconduct short of dishonesty was clearly inappropriate, disproportionate or excessive.

1. Nature of the appeal. Under sections 16 and 17 of the Legal Profession Act, an appeal from the Committee is by way of rehearing. It is a full appellate jurisdiction, not supervisory review. The Court of Appeal may therefore substitute its own decision and vary or set aside the sanction, while exercising caution before overturning the Committee without an error of law or principle. This was consistent with Ghosh v General Medical Council [2001] UKPC 29.
2. Appellate approach. The appellate court should identify the proper roles of the two bodies rather than apply a notion of deference. It should approach the Committee’s sanction with diffidence because of its professional experience, its opportunity to hear witnesses, the incomplete nature of written findings and, where relevant, its specialist regulatory knowledge. Mere disagreement with the sanction is insufficient. Inadequate reasoning, including failure to explain why a lesser sanction would not protect the public interest, may justify intervention.
3. Sanction test. On a rehearing, absent an error of law or principle, the court must assess whether the sanction was appropriate and necessary in the public interest or excessive and disproportionate. The word clearly in the expression clearly inappropriate is permissible as a reminder to take account of the Committee’s expertise and the limits of appellate evaluation. The Board treated this approach as consistent with The Law Society v Brendan John Salsbury [2008] EWCA Civ 1285 and Khan v General Pharmaceutical Council [2016] UKSC 64.
4. Dishonesty and striking off. Dishonesty is not a prerequisite to striking an attorney off the Roll. Egregious misconduct short of dishonesty, including chaotic mismanagement of a client’s affairs, may justify striking off in the public interest. The authorities considered in Hopeton Karl Clarke v The General Legal Council [2021] JMCA Civ 13 and Mohammad Iqbal v Solicitors Regulations Authority [2012] EWHC 3251 (Admin) illustrated that principle.
5. Application and outcome. The Committee’s immediate reference to authorities concerning dishonest handling of client money before imposing striking off entitled the Court of Appeal to infer an error of law or principle. It was therefore entitled to make a fresh sanction assessment. The Board disagreed with treating the attorney’s alleged naïvety or lack of experience as established mitigation. His failure to honour an undertaking to repay for three years compounded the seriousness of the misconduct. The Council did not challenge the substituted sanction as incorrect. The appeal was dismissed.

• Privy Council: The Council’s appeal was dismissed. The Court of Appeal was entitled to substitute the sanction. [2024] UKPC 12
• Court of Appeal of Jamaica: The finding of professional misconduct was affirmed, but the striking-off order was set aside and replaced with a five-year suspension and compulsory additional continuing legal professional development. [2021] JMCA Civ 17
• Disciplinary Committee of the General Legal Council: Professional misconduct was found and the attorney was struck from the Roll on 24 June 2017.