Carleen McFarlane v General Legal Council (Jamaica)

On a second appeal, the Privy Council ordinarily does not revisit concurrent factual findings by two lower courts. Departure requires a miscarriage of justice or a material violation of law or procedure that could undermine the findings; challenges to evidential weight do not suffice.

A disciplinary tribunal may admit relevant material, including hearsay, provided natural justice is observed and the affected party can comment on and question it. Instructions allowing one co-purchaser to receive documents during another’s absence do not ordinarily authorise repayment of a deposit to that co-purchaser. Paying the deposit to the wrong person may constitute inexcusable or deplorable negligence or neglect, and full restitution may be an appropriate and necessary disciplinary sanction.

A disciplinary committee of the General Legal Council found that a lawyer had negligently repaid a property-purchase deposit, funded by one co-purchaser, to the other without authority. It ordered restitution of JMD$350,000 and costs. The Court of Appeal of Jamaica dismissed the lawyer’s appeal on 9 December 2022.

On further appeal, the issues were whether the criminal standard of proof had been misapplied, whether procedural rules and natural justice had been breached by admitting documentary and hearsay evidence, whether the conduct amounted to inexcusable or deplorable negligence or neglect, and whether the restitution order was excessive.

Lord Lloyd-Jones gave the judgment of the Board, which advised that the appeal be dismissed.

1. Concurrent findings. The Board applied the settled practice in Devi v Roy [1946] AC 508. A second appellate tribunal does not ordinarily review concurrent factual findings by two lower courts. Departure requires a miscarriage of justice or a material violation of law or procedure sufficient to undermine the findings. The practice is flexible, but an evidential challenge to the weight or value of evidence is insufficient. The findings that the deposit came from Mr Benjamin and that this had been made known to the appellant were concurrent findings, and no qualifying exception arose.
2. Procedural fairness. The relevant disciplinary rules did not require disclosure under Rule 4 before the prima facie decision. Rule 4 concerned preliminary screening, while Rules 6 and 7 imposed document-listing and inspection obligations on the parties and did not restrict the Committee’s power to admit further documents during the hearing. The Board relied on the principles explained in Mark Leachman v Portmore Municipal Council [2012] JMCA Civ 57: a tribunal may admit material, including hearsay, subject to natural justice. The appellant knew that the source of the deposit was disputed, had ample time to investigate the late-produced letter, did not challenge its authenticity or provenance, and suffered no prejudice. The complainant’s wife’s evidence had no probative value and was not relied upon.
3. Professional negligence. Instructions that Ms Thompson should receive documents and information during Mr Benjamin’s absence did not authorise her to collect the deposit refund. Nor did the intended equal ownership of the property determine the recipient of the refund. Repaying the deposit to one co-purchaser without instructions from both was capable of amounting to inexcusable or deplorable negligence or neglect. That standard exceeded ordinary tortious negligence, but the finding did not impugn the appellant’s honesty.
4. Restitution. Under section 12(4)(f) of the Legal Profession Act 1972, restitution may be ordered as the Committee considers reasonable. On a rehearing appeal, the question is whether the sanction was appropriate and necessary in the public interest or excessive and disproportionate, as reaffirmed in Lorne v General Legal Council [2024] UKPC 12. Full restitution was appropriate because the deposit belonged to Mr Benjamin and had been paid in full to Ms Thompson. The order both compensated him and sustained public confidence in the profession.

1. Privy Council — In [2026] UKPC 16, the appeal was dismissed.
2. Court of Appeal of Jamaica — The appeal from the Disciplinary Committee was dismissed on 9 December 2022.
3. General Legal Council Disciplinary Committee — The complaint was upheld. Restitution of JMD$350,000 and costs of JMD$300,000 were ordered.