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In the Matter of Proceedings against an Attomey-at-Law for
Contempt of Court
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IN THE MATTER OF PROCEEDINGS AGAINST ANATTORNEY-AT-LAW FOR CONTEMPT OF COURT
SUPREME COURT.
FERNANDO. J..
KULATUNGA, J„ ANDWADUGODAPITIYA, J.
* SC APPLICATION NO. 89/92.
APRIL 28, 1992.
Attomey-at-Law – Making false statement to Court – Contempt – Duty not tomislead Court.
On the day fixed for supporting an application for leave to proceed for allegedviolation of fundamental rights the Attomey-at-Law for the petitioner informed theCourt that the application had been included in that day's list by an error andthat he had been informed by the Officer-in-Charge of the Courts Branch in theRegistry that it was in fact listed for the next day. However, it was found thatthe application had in fact been listed for that day on the motion of the Attomey-at-Law himself and that there was no error in listing it.
Held :
The Attomey-at-Law intentionally made a false statement to Court presumablyfor the purpose of obtaining a postponement of the case. In making that statementhe either suppressed facts or gave a ground which he knew or had reason toknow to toe untrue; and thereby intended to deceive the Court Such conductis calculated to obstruct or interfere with the due course of justice and constitutescontempt of Court.
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A pleader has a duty to assist in the proper administration of justice andnot to mislead or deceive the Court. Whether the breach of such duty may bedealt with for professional misconduct or for contempt of Court will depend onthe facts and circumstances of each case.
Cases referred to :
Re AG's application, A G v. Butterworth (1963) 1 QB 696, 723, 726.
Pereira v Nadarajah, SC (SLA) Application No. 203/88 S.C. Mins, of21.02.89.
Re Garumunige Tilakaratne (1991) 1 Sri LR 134, 145.
Wahab v. Perera 39 NLR 475, 476.
A G v. Laxapathy 6 CLW 148.
Jayasinghe v. Wijesinghe, 40 NLR 68, 71.
Re Ratnayake, 40 NLR 99.
Veerasamy v. Stewart, 42 NLR 481, 482.
A G v. Valkunthavasan, 53 NLR 558, 564, 655.
R. v. Peiris, 68 NLR 372, 373, 374.
In re a First Grade Pleader, AIR 1931 Mad. 520 (FB).
In re Johnson (1887) 2 QBD 68.
Packer v. Peacock 13 Commonwealth Law Reports 577.
Mcleod v. St. Aubyan, (1899) AC 549.
Moosajee Ltd. v. Fernando, 68 NLR 414.
Wijeyesinghe et at v. Uluwka et at 34 NLR 362.
Ganeshanathan v. Goonewardene, [1984] 1 Sri LR 319.
APPLICATION by Bar Association for review of order punishing Attorney-at-Lawfor contempt of Court.
Ranjith Abeysuriya, P.C. with Desmond Fernando, P.C. and Upul Jayasuriya for^«. .Bar Association.
Cur. adv. vult.
July 10, 1992.
Order Of the Court (Read by Kulatunga, J.)
This order is in respect of an application made by the Bar Associationseeking to review the decision of this Court dated 16.03.92 findingan Attorney-at-Law (hereinafter referred to as0 the respondenta), guiltyof contempt of Court and imposing a fine of Rs. 500 on him for suchconduct. The facts are as follows
When the above application (No. 89/92) in which the petitioneralleged certain violations of his fundamental rights was called on
the respondent, the registered Attomey-at-Law for thepetitioner, submitted that it had been included in that day's list by
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In the Matter of Proceedings against an Attomey-at-Law for
Contempt of Court (Kulatunga, J.)
245
an error, and that he had been informed by Mr. Wijedasa (theofficer-in-charge of the Courts Branch in the Registry) that it wasin fact listed for 17th March. However, the record showed that thesaid application had been filed on 09.03.92 by the respondentwith a typed written motion dated 9.3.92 wherein he moved, interalia, that the case be called in open Court on 16.03.92 to enablecounsel to support the application ; that there was a handwrittenendorsement on the face of the petition " may be supported on 16thof March 92 " together with a signature resembling that of therespondent contained in the petition ; that the first journal entrywas “ support application on 16.3.92 "; and that the notice sentby the registrar to the Attorney-General stated that this matter hadbeen listed for leave to proceed on 16th March.
The said handwritten endorsement was shown to the respondentand he was asked whether it had been made by him ; withoutanswering the respondent immediately altered the date “16th“ sothat it then read “17th“. Upon being questioned why he made suchalteration, the respondent stated :" I could not understand what YourLordships stated and mistakenly I altered the date and I beg yourpardon ". At that stage the respondent stated that Mr. Anil Silva wasdue to appear in this matter having been retained the previousSaturday (14th March).
We sent for Mr. Wijedasa who confirmed that the date 16th March* was given by the respondent; he further stated that at no stage didhe inform the respondent that this case was fixed for 17th March,whereupon the respondent was asked whether he had any causeto show why he should not be dealt with for contempt of this Court.The respondent stated that he had no cause to show and beggedpardon of the Court. On being cautioned by Court to considercarefully what he stated in answer to the charge, the respondentsaid that he had nothing further to state. Accordingly, we found therespondent guilty of contempt of this Court and imposed a fine ofRs. 500 on him and directed that this sum be paid to the Registraron or before 31.03.92 and that a copy of our order be forwardedto His Lordship the Chief Justice.
In our order dated 16.03.92 against the respondent we haverecorded the facts and events on the basis of which the said orderwas made. In finding the respondent guilty of contempt of Court we
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took into consideration the totality of his conduct including the actof promptly altering the date 16th contained in the endorsementreferred to above without answering the simple question he wasasked, whether he made the said endorsement. By itself the saidalteration might not have constituted conduct amounting to contemptof Court. However, on the basis of the journal entry of 09.03.92,and the respondent's own motion and endorsement, it was clearthat the application could not have been, and was not, listed for the17th ; Mr. Wijedasa could not have altered the list; and we sawno reason to disbelieve Mr. Wijedasa when he said that he did notinform the respondent that the matter was listed for the 17th. Wefound that for the purpose of obtaining an adjournment, therespondent falsely stated to court that Mr. Wijedasa had informedhim that the case had in fact been listed for 17th March. Suchconduct is " calculated to interfere with the proper administration ofjustice “. It is " inherently likely so to interfere " and as suchconstitutes contempt of Court. Re AG's Application, AG v. Butterworth(1) (Per Donovan LJ) : Borrie and Lowe's Law of Contempt 2nd ed.53, 274, 276-278. We found him guilty of contempt of Court on hisown plea that he had " no cause to show " and that he had “ nothingfurther to state ".
On 19.03.92 Mr. Ranjith Abeysuriya, PC made submissions tous on behalf of the Bar Association with a view to have our orderdated 16.03.92 set aside. He informed us that he was acting’in consequence of representations made by the respondent. However,as no petition, affidavit or other papers had been filed we grantedtime to enable the Bar Association and or the respondent to file anypapers they wished to and further suspended the operation of theorder made by us, pending consideration of a proper application whichmay be made by the Bar Association. Accordingly, we directed thatthe fine imposed on the respondent need not be paid until furtherorder is made by this Court.
Subsequently, affidavits of the respondent, Mr. Anil Silva,Attorney-at-Law and one Ranjith Upananda (the brother of the petitionerin the above application) wore filed in support of the application ofthe Bar Association. Mr. Anil Silva speaks to having prepared thepapers to be filed on behalf of the petitioner on the instructions givenby the respondent and Upananda on 29.02.92. Both Mr. Ani! Silvaand Upananda state that on 9.03.92 the respentien: informed them
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that the application had been fixed for support on 17th March.Mr. Anil Silva agreed to appear for the petitioner on that day.Thereafter the respondent and Upananda met Mr. Anil Silva on
and were told to meet Mr. Silva again on the evening of
with his fees. However, on the evening of the 16th therespondent informed Mr. Silva that the application had been listedfor that day and further informed what transpired in Court that day.
The respondent states that although originally it was intendedto support the application on 16.03.92, when he handed overthe motion to Mr. Wijedasa, a request was made to list it for
; that he believed that it would be called on the 17th andtook steps to retain Mr. Anil Silva to appear on that day ; that on
when he went to the Registry to obtain confirmation ofthe date, Mr. Wijedasa informed him that it was listed for thatday ; that thereafter he met the Deputy Registrar and told himthat Mr. Anil Silva had been retained to support the application on
; that the Deputy Registrar advised that as it had alreadybeen listed for that day he should make an application in openCourt ; that thereafter, he appeared before the Court and submittedthat the application had been listed for that day by an error andthat Mr. Wijedasa had previously informed him that it would be fixedfor support on 17.03.92.
The above statement of the respondent considered in the lightof the material available in the record and Mr. Wijedasa's statementto us clearly show that the respondent, in making submissions toCourt on 16.03.92 stated what was false or suppressed facts. Irhis affidavit he states that when he handed over his motion tcMr. Wijedasa on 09.03.92, he made a request to have the case listedfor 17.03.92 and believed that this would be done; and scrupulouslyavoids saying that Mr. Wijedasa informed him at any time that thecase was listed for 17.03.92. The journal entry of 09.03.92 andthe respondent's handwritten endorsement on the petition arequite inconsistent with any request that the case be listed on
; and no attempt has been made to explain thisinconsistency either in the affidavit or in the submissions. In anyevent, before the respondent came to Court on the 16th, Mr. Wijedasahad informed him that it had been listed for that day ; and as suchthe respondent could not have truthfully made the submissionswhich he did. Even accepting Mr. Anil Silva's statement that the
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respondent informed him on 09.03.92 that the matter was fixed for
nevertheless on 16.03.92 before he came to Court therespondent was fully aware that this was not so. The respondent'saffidavit thus serves to confirm our conclusion that the respondent'ssubmissions were false or involved suppression of facts. Such conductamounts to contempt. Borrie and Lowe's Law of Contempt. 2nd ed.p.310.
The defence of the respondent is that he is a very juniorlawyer having been admitted and enrolled as an Attorney-at-Law in1987 ; that this was his first appearance before the Supreme Courtand that he was very excited when he addressed the Court. He furtherstates that he altered the date in his endorsement on the petitionunder the mistaken belief that the record was given to him to amendthe date by the substitution of 17th as the date for supporting theapplication ; and that he did not intend to deceive the Court or intendany disrespect to the Court.
Even if we were to assume that the alteration of the record wasdue to some confusion in the mind of the respondent, we are unableto accept the position that the false statement made by him was dueto excitement and hence not intended to deceive the Court. Theapplication had been listed for the 16th, in consequence of his motion.The respondent had confirmed that date by an endorsement onthe face of the petition. As such there was no error in listing itfor that day. Wijedasa did not tell him that it had been listed forthe 17th. In these circumstances if the respondent believed that theapplication had been listed for the 17th, such belief can only be dueto a mistake on his part. If so, it was his duty to have informed theCourt that he had made a mistake. Instead, he made a false statementthe natural consequence of which was to deceive the Court; andhe must be presumed to have intended the natural consequencesof his act. He has failed to rebut this presumption. Hence ourconclusion that he intended to deceive the Court.
The respondent's mistake, if any, was the result of his attemptto obtain a variation of a date by means of an oral request to theRegistrar. In Pereira v. Nadarajah (2) (on which the petitioner relied,inter alia, on an oral request to the Registrar to obtain a variationof a date) this Court made it clear that the Registrar cannot dealwith such applications and that they should be made either to the
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tn lb i Msfor of i-’rocoe:f:''gs against an Attorney■ at-Law tor
Contsmct c; Court (Kutatunpa. J.) 249
Chief Justice or to the Senior Judge of the Bench before which amatter is listed or to the listing Judge nominated from time to timeby H is Lordship the Chief Justice. At the same time, the Courtexpressed the hope that counsel will (by following the correctprocedure) extend their co-operation to the Court which the Courtrequires for the expeditious disposal of matters pending before it. Therespondent has besides failing to extend such co-operation tothe court, showed disrespect to the Court by making a false statementor by the suppression of facts.
This loads one to the second defence pleaded by the respondentname'y, that he did .not intend any disrespect to Court.
The charge against the respondent is one of criminal contempt.Oswald " Contempt of Court “ 1910 3rd ed. p.10 states :
“ To speak generally, contempt of Court may be said tobe constituted by any kind of conduct that tends to bring theauthority and administration of law into disrespect or disregard,or to interfere with or prejudice parties, litigants or their
witnesses during litigation ".
On the question of mens rea, Donovan L J in Re A G'sapplication, A G v. Butterworth <1) expressed the following view
" R. v. Odhams Press Ltd. ex P.A. G., makes it clear that anintention to interfere with the proper administration of justice isnot an essential ingredient of the offence of contempt of Court.
It is enough if the action complained of is inherently likely so tointerfere ".
Aiyar " Law of Contempt of Court, Legislatures and PublicServants " 3th ed. p. 29 states :
" It is thus the evil tendency of the act, rather than the mentalelement by which it is accompanied that makes it an offence ".
In Pe Gnrumunige Tiiakarstne <* (in which the accused wascharged with contempt of the Supreme Court based on a newspaperreport) it was held (p. 145) that an intention to cause disreputeor dis'espect to the Supreme Court or any Court " is irrelevant
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because all that is required is that the publication, viewedobjectively is calculated to obstruct or interfere with the due courseof justice' and this has been laid down in a stream of previousdecisions (Wahab v Perera (4) ; A G v Laxapathy (5) ; Jayasinghev. Wijesinghe (6) ; Re Ratnayake m ;Veerasamy v. Stewart i;“: ; A Gv. Vaikunthavasart (9) ; R. v. Peiris (,0)
In the instant case the respondent intentionally made a falsestatement to Court presumably for the purpose of obtaining apostponement of the case. In making that statement he either sup-pressed facts or gave a ground which he knew or had reason toknow to be untrue ; and thereby intended to deceive the Court. Inthese circumstances, it seems to us that the requirement thatthe respondent's conduct is " calculated to obstruct or interfere withthe due course of justice “ is easily established.
Barristers and Solicitors themselves may become guilty ofcontempt of Court by reason of their conduct which derogatesfrom their professional duty as officers of Court. Aiyar " Contemptof Courts, Legislatures and Public Servants '' 8th ed. p. 459states :
" Contempt of Court is (a) self-contained branch of law whichstands by itself and a misdemeanour which affects the dignity orauthority of a superior or subordinate Court may emanate fromany quarter, and direction. As such a counsel, advocate, or pleader,appearing for a party to litigation, can claim no immunity fromthe operation of the law of contempt, if his act or conduct in relationto Court or Court proceedings interferes with or is calculated toobstruct due course of justice, or wounds the dignity of the Court.The law of contempt, in such an event, is not to be confusedwith professional misconduct in other domains for which other provisionsexist ".
A pleader has a duty to the Court to see that the case is fairlyand honestly conducted. He must not mislead the court. He mustnot ask for adjournments for his client when he knows that the reasonsput forward are untrue or he has reason to believe them to be untrue.!rt re a First Grade Pleader(,,). In that case the Madras High Courtpunished the pleader for misconduct under s. 13 of the Legal PractitionersAct, No. 18 of 1879 on account of his conduct before a Magistrate
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In the Matter of Proceedings against an Attorney-at-Law forContempt of Court (Kulatunga, J.j___
251
and suspended him from practice for a period of three months. Thisduty of a pleader to Court has been incorporated in our system bythe Supreme Court (Conduct of and Etiquette for Attorneys-at-Law) Rules 1988 in the following terms
Rule 50. – An Attorney-at-Law owes a duty to Court, Tribunalor other institution created for the Administration of Justice beforewhich he appears to assist in the proper administration of justicewithout interfering with the independence of the Bar.
Rule 51. – An Attorney-at-Law shall not mislead or deceive orpermit his client to mislead or deceive in anyway the Court or Tribunalbefore which he appears.
Whether an Attorney-at-Law who is in breach of his duty to Courtto assist in the proper administration of justice and not to misleador deceive the Court may be dealt with for professional misconductor for contempt of Court will depend on the facts and circumstancesof each case. We have punished the respondent for contempt of Courtfor his conduct in the face of this Court bearing in mind the followingprinciples
that the object of discipline enforced by Courts in case ofcontempt is not to vindicate the dignity of the members ofthe Court, but to prevent undue interference with theadministration of justice, in the interest of the public ingeneral. In re Johnson ,,2) ; Packer v. Peacock <13).
that the power to punish for contempt should be sparinglyused only from a sense of duty and under the pressure ofpublic interest, not so much to punish the particular offenderas to deter like conduct in the future. Aiyar" Law of Contemptof Courts, Legislatures and Public Servants 11 p. 535; McLeodv. St. Aubyan (14).
that the power to punish summarily for contempt shouldbe used with circumspection where it is absolutely necessaryto do so, in the interest of discipline and respect for theadministration of justice, and to ensure that publicconfidence in the Courts will not be undermined.
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Learned President's Counsel for the Bar Association submittedthat the respondent's conduct did not constitute contempt ofCourt ; that the statement made by the respondent in Court wasdue to the inelegant use of or inadequate knowledge of the Englishlanguage and submitted that the Court may set aside its order dated16.03.92 on the ground that it was made per incuriam or in theexercise of inherent powers, in view of the facts now before the Court.As regards the alleged difficulty of expression, there is not evena suggestion of this in the respondent's affidavit ; even if we wereto assume that the respondent had some difficulty in expressinghimself, it is our view (in the light of our above findings) that therespondent's conduct is not attributable to such difficulty. It wasnot suggested that our order was made in ignorance or forgetfulnessof any case or statute. Our order was therefore not one made perincuriam and open to recall (before it is perfected) as wasthe case in Moosajee Ltd. v Fernando (15). In Wijeyesinghe et at v.Uluwita et al (,6> Macdonell, CJ held that the inherent power ofthe District Court under s. 839 of the Civil Procedure Code includesthe power of vacating an order which has been obtained from it oninsufficient or inaccurate information. The " Court “ referred to in s.839 did, in view of the definition of “ Court ” in s. 5 of the CPC,include the former Supreme Court ; and in Ganeshanathem v.Goonewardena (17) it was held that as a Superior Court of recordthe Supreme Court has inherent powers to correct its errors whichare demonstrably and manifestly wrong and where it is necessaryin the interest of justice. We are of the view that the facts of thecase before us do not justify the exercise of the inherent powersof this Court to recall or set aside its order dated 16.03.92.
For the foregoing reasons we reject the application made by theBar Association, and affirm the order dated 16.03.92 against therespondent, and direct the respondent to pay the fine of Rs. 500imposed on him to the Registrar on or before 31st July. 1992.
Application rejected.
