045-SLLR-SLLR-1997-2-PIYADASA-v.-KURUKULASURIYA-ATTORNEY-AT-LAW.pdf
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PIYADASA
v.
KURUKULASURIYA, ATTORNEY-AT-LAW
SUPREME COURT.
FERNANDO, J.,
DHEERARATNE, J. ANDWADUGODAPITIYA, J.
RULE 7/95 (D).
JUNE 17, 18 AND 21,1996.
Attomey-at-Law – Malpractice – Judicature Act, Section 41 – Supreme Court(Conduct of and Etiquette for Attorneys-at-Law) Rules, 1988.
Piyadasa who was the defendant in a rent and ejectment case retained therespondent Attorney-at-Law in an appeal before the Court of Appeal. TheRespondent failed to enter his appearance, give free dates and keep track of thecase. Consequently, the appeal was decided against Piyadasa, who wasunrepresented. Thereafter, the respondent failed to return the client's file ofdocuments despite many letters and reminders by the client calling for the file.
Held.
The respondent is guilty of malpractice.
Case referred to:
Daniel v. Chandradeva [1994] 2 Sri L.R. 1.
PROCEEDINGS on Rule Nisi to remove Attorney-at-Law from roll of Attorneys-at-Law.
Aloy Ratnayake, P.C., with Siva Narendran for respondent.
C. Motilal Nehru, RC. with M. D. Silva and Ms. Joseph for the Bar Association ofSri Lanka.
Kolitha Dharmawardena, D.S.G. in support of the Rule.
Cur. adv. vult.
July 22,1996.
FERNANDO, J.
A Rule was issued on the respondent, who had been admitted andenrolled as an Attorney-at-Law in 1962, asking him to show causewhy he should not be removed from the office of an Attorney-at-Lawof the Supreme Court, or suspended from practice, on account of
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malpractice falling within the ambit of section 42(1) of the JudicatureAct, No. 2 of 1978, in that –
in November 1985 he had been retained by one Piyadasa inCourt of Appeal Case No. CA/LA 101/85, which was an applicationfor leave to appeal against an order made in favour of Piyadasa,who was the defendant in District Court Tangalle Case No. 860/RE;
he had been paid Rs. 4,200 by Piyadasa as fees for hisappearances, for the preparation of objections, and for Counsel forargument;
he had filed the objections, together with his proxy, and alsomade arrangements for Counsel to appear for Piyadasa on certaindates;
however, he failed to arrange for any appearance forPiyadasa, or to attend Court himself, on 26.7.90, 13.11.90, 9.1.91,
27.11.91, 18.9.92, 30.10.92 and 24.11.92, whilst theappellant was represented on all those dates;
because of that default, the appeal was decided againstPiyadasa, who was unrepresented; and
thereafter he failed to reply to any of the letters sent to him byPiyadasa or to return Piyadasa’s papers relating to the case;
and thereby acted in a manner detrimental and/or prejudicial to hisclient Piyadasa.
The respondent said that he had cause to show, and the matterwas taken up for inquiry on 17th, 18th and 21st June 1996. In supportof the Rule, the complainant, Piyadasa, and the Registrars of theSupreme Court and the Court of Appeal, gave evidence. Therespondent gave evidence on his own behalf.
The evidence led established – and, indeed, the respondentadmitted – the truth of the matters set out in (a), (b), (c) and (f) above,and that the appeal had been decided on 24.11.92 with Piyadasabeing absent and unrepresented.
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DEFAULT IN APPEARANCEThe disputed question of fact was whether the respondent failed toappear, or to arrange for an appearance, for Piyadasa on all or any ofthe dates set out in (d), and if so whether it was that default whichresulted in the adverse decision of the Court of Appeal. It is notdisputed that the plaintiff-appellant in CA/LA 101/85 did not obtain avariation of the order appealed against.
The evidence shows that Piyadasa retained the respondent inNovember 1985; that Piyadasa promptly paid him the full fee ofRs. 4,200/- called for by his letter dated 15.11.85; that letter statedthat Rs. 1,050/- was for appearances by him on the notice returnabledate (14.11.85), and the date for filing objections (4.12.85), and thatthe balance was for the preparation of objections and Counsel’s feefor the argument; that the respondent filed his proxy, but did not takeany steps to retain Counsel for the argument; that he neither enteredhis appearance by filling and tendering an appearance slip intendedfor that purpose, nor gave his free dates, to the registry inaccordance with the practice of the Court of Appeal; and that he didnot check the relevant appeal register maintained by the Court ofAppeal or the monthly lists of pending appeals exhibited andavailable for inspection in the Court of Appeal registry. The journalentries in CA/LA 101/85, show that after Piyadasa’s affidavit was filedon 13.1.86, the Court of Appeal registry took no steps to list thematter for over four years, until 26.7.90. It is not clear how it came tobe listed on that day, and for what purpose: whether for hearing, or tofix a date for hearing; however, the respondent did not appear, andthe Court fixed it for hearing on 11.10.90; inexplicably, it was nextlisted for 20.9.90, on which date the Court again fixed it for 11.10.90.On that day, Attorney-at-Law L. Hirimutugoda, appeared forPiyadasa, and the Court ordered that the case be listed "in duecourse on a date convenient to Counsel”. The case was next listedon 13.11.90, and the respondent neither appeared nor arranged forany one else to appear; and the Court granted leave to appeal. Thatwas an ex parte order, adverse to Piyadasa. The Court called for theoriginal record from the District Court of Tangalle. Twice thereafter thecase was listed even though the record had not been received – on3.12.90, when Attorney-at-Law Hirimutugoda appeared, and
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on 9.1.91, when no one appeared. On 9.1.91 too the Court orderedthe matter “to be listed for argument on a date convenient toCounsel". Thereafter the record was received, and the matter cameup on 4.9.91; again the respondent did not appear, and the Courtdirected listing “on a date suitable to Counsel”. Despite three suchorders, there is not even a suggestion by the respondent, or on hisbehalf, that either Attorney-at-Law Hirimutugoda or he informed theregistry of any convenient dates at any time.
After 4.9.91, the case next came up on 27.11.91, in therespondent’s absence; the Court directed that notice be issued onPiyadasa and his registered Attorney, naming the respondent, andagain ordered listing “on a date convenient to Counsel". Two monthslater, although Piyadasa’s address as given in the caption was “9,Sanghamitta Mawatha, Kandy, and presently of 9/1, MedaketiyaRoad, Tangalle", notice was sent by registered post to the Kandyaddress and not to Tangalle; and no notice was sent to therespondent. Thereafter the case came up on 18.9.92 and 30.10.92,the respondent being absent. On 30.10.92, the Court fixed the matterfor 24.11.92, and directed that notice be sent to Piyadasa; again,notice was sent by registered post to the Kandy address. (Bothnotices were not returned). On 24.11.92 , the respondent did notappear, and the Court allowed the appeal, and sent the case back tothe District Court of Tangalle. The respondent took no steps to file anapplication for relisting or for leave to appeal to the Supreme Court.
There has been a series of lapses by officials of the Court ofAppeal registry, of a kind which inevitably adds to the delays,inconvenience and cost of litigation. In those circumstances, thefailure of the respondent to appear on 26.7.90, 20.9.90, 3.12.90 and
cannot be regarded as culpable.
However, had the respondent entered his appearance and givenhis free dates, in all probability the case would have been listed on adate suitable to him; and if it was not, that would have been asufficient ground for re-listing. There would have been no defaults on13.11.90, 4.9.91, 27.11.91, 18.9.92, 30.10.92. and 24.11. 92. Despiteavoidable lapses by the registry officials, it was thus the respondentwho was principally responsible for those defaults, which resulted in
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adverse orders being made on 13.11.90 and 24.11.92. His evidenceindicated that he was awaiting some intimation from the Court ofAppeal, but the practice of the Court clearly did not entitle a party orhis Attorney-at-Law to any such notice. Nor can this Court treat hisresponsibility as any less simply because he retained Attorney-at-Law Hirimutugoda, for it is the respondent's position that Attorney-at-Law Hirimutugoda was only asked to appear on 11.10.90 and3.12.90 and, thereafter, “to have an eye on the appeal list” – not thathe was retained to argue the case. As the registered Attorney, itremained the respondent’s responsibility to deal with the case (seeDaniel v. Chandradeva).
Learned President’s Counsel, on behalf of the Bar Association,submitted that these defaults did not amount to malpractice, becausethe case had been in “cold storage” in the Court of Appeal for overfour years, and had thereafter been listed contrary to Court orders. Inthose circumstances, he argued, the respondent’s lapse, if any, didnot warrant any disciplinary action.
This contention ignores the facts. The defaults on six dates -namely 13.11.90, 4.9.91, 27.11.91, 18.9.92, 30.10.92, and 24.11.92-are not attributable to lapses by the registry officials. What is evenmore serious is that this contention wholly fails to take account of theduty of diligence imposed on anyone who decides to practice in theCourt of Appeal (and, indeed, in any Court) to familiarize himself, andcomply, with the established practice and procedure of that Court.The respondent had been in practice for about 25 years when thesedefaults occurred. The fact that he appeared mainly in theMagistrate’s Court is no excuse: he should not have agreed to acceptthe brief unless he could have attended to it with due diligence. Hehad a clear option – either to shoulder all the responsibilities whichflowed from the proxy in his favour (see Chandradeva, at 11) or toretain Counsel and relieve himself of some part of that burden. He didnot choose the second alternative even though his client hadentrusted to him the full amount nominated by him (in his very firstletter of 15.11.85) as Counsel’s fee for argument. Unless and untilsome Counsel was retained, therefore, he was obliged to enter hisappearance, give free dates, and keep track of the case; he was notjustified in waiting for notices from the Court and reminders from hisclient.
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The respondent was therefore in default of his basic obligation toexercise due diligence, now expressly recognised in Rules 10 and 15of the Supreme Court (Conduct of and Etiquette for Attorneys-at-Law)Rules, 1988.
Learned President’s Counsel, on behalf of the respondent, referredto certain other matters, as having an exculpatory or mitigatory effect.First, he urged that the respondent had expressed reluctance toaccept the brief, because he did not usually appear in the Court ofAppeal and also because he preferred not to appear for clients fromhis own area. However, it was never suggested to Piyadasa in cross-examination that any such reluctance had been indicated. This doesnot mitigate his responsibility.
Second, he contended that Piyadasa was himself guilty of defaultsand delays. Three matters were urged: not meeting the respondentprior to 4.12.85 to sign his affidavit, not responding to a letter sent bythe respondent when the respondent felt that senior counsel shouldbe retained, and not contacting the respondent despite two noticesfrom Court. Although the respondent wrote to Piyadasa on 15.11.85,referring to the preparation of the objections, he made no mention ofpreparing or signing an affidavit and Piyadasa says that therespondent did not ask him to come to Colombo to sign an affidavit.In any event, this had no bearing on the ultimate judgment of theCourt of Appeal. Although the respondent did testify that he haddecided to retain senior counsel after the District Court record hadbeen called for, all he said was that he had written to Piyadasa tocome and meet him – but not that he told him why. Further, it was notsuggested to Piyadasa that any such letter had been sent; and therespondent claimed that he neither kept a copy, nor made a note inhis file about it. Not only is the respondent’s version unacceptable,but any such letter was quite unnecessary because he had alreadyreceived the nominated fee for counsel, and should have retainedone. As for the notices, there is no reason to doubt Piyadasa’sexplanation that he did not receive the notices sent by Court to hisformer Kandy address, because by 1991 those premises had beenforcibly seized by the Bank.
Thirdly, learned President’s Counsel relied on the respondent’sevidence that he had thought the appeal would be over in three or
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four months; that after about 18 months Piyadasa met him,whereupon he told Piyadasa not to worry about the case; and that heoffered to get an order expediting the case, but that Piyadasa wantedit dragged out as long as possible. Piyadasa's evidence was that onthree occasions before 24.11.92 he had met the respondent inColombo, and inquired about the case; the respondent hadreassured him, saying that he need not come for the case, that therespondent had done everything necessary for the case, and that hehad nothing to fear. He denied the suggestion that he wanted thecase dragged on, and, as pointed out later in this judgment, therespondent failed to reply to Piyadasa's letter of 12.12.93. But even ifthe respondent is believed, that would have made no difference tohis obligation to appear at the hearing, particularly as he admittedtelling Piyadasa not to worry about the case.
It was next submitted that the respondent’s absence made nodifference; that the Court of Appeal had looked at the question ofnotices very carefully, and had followed an unreported judgment ofthe Supreme Court in reaching its decision. The respondent says thathe had left Colombo on 20.11.92; that he returned on 24.11.92 at12.00 noon, and saw the appeal list in the "Daily News”; that herushed to the Court of Appeal office to verify what had happened,and if necessary to get the case relisted; that he realised that thiswas not possible as Piyadasa had been twice noticed; that the nextalternative was to file an application for leave to appeal to theSupreme Court, but that, having read the signed judgment of theCourt of Appeal, he found that it was based on a judgment of theSupreme Court, and therefore decided not to pursue that course ofaction – all this within three or four days, and without any attempt tocommunicate with his client. He adds that he made this decision afterconsulting a senior lawyer.
From what has already been noted, it is clear that if the Court ofAppeal had scrutinized the notices, it would have found that they hadnot been sent to Piyadasa’s current address. Further the Court madean observation that none of the respondents were present, and thatthey were absent and unrepresented on several previous datesnotwithstanding notices issued by the Court. But the record showsthat this was mistaken; at the outset notice was sought and issued
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only on the 1st respondent (Piyadasa); and on 27.11.91 notice wasordered on the 1st respondent, and not the others. It seems that theCourt did not probe the issue ot notices. If the Court of Appealjudgment depended on notices having been properly issued, a casemight have been made for relisting on the basis that the judgmentwas procedurally flawed. As for the argument that the judgment wascorrect on the merits, and that the respondent’s lapses made nodifference, that would allow counsel to play the part of the Judge. On
the Court of Appeal referred to the (unreported) judgmentof this Court, and expressed the view "that the respondent to thisappeal should be heard.” When the Court itself consideredassistance necessary, can an Attorney-at-Law seek to excuse hisdefault in appearance by saying that his appearance was notneeded? The respondent’s professional obligation was to appear,and default cannot be excused or mitigated by such speculationabout the result of litigation. If he had really believed that theunreported Supreme Court judgment was conclusive, then between27.11.91 and 24.11.92 he should have informed his client that thatwas his view and advised him not to contest the appeal.
Further, it is not likely that a signed copy of the Court of Appealjudgment was available so soon; the judgment of the Supreme Courtwhich the Court of Appeal followed was then not reported. But evenassuming that he was able to peruse the two judgments, and to makethem available to senior counsel, yet he took the decision not topursue the matter without any communication to and discussion withhis client. Even thereafter, he did not inform his client: in answer to aleading question in evidence-in-chief, whether he had informedPiyadasa about what had happened, all he said was that he hadsent a letter asking Piyadasa to come and meet him. He said that hehad no copy of this letter, and in cross-examination President’sCounsel did not even suggest to Piyadasa that any such letter hadbeen sent.
The respondent said that in March 1993, quite by chance, he hadmet Piyadasa, and told him what had happened; he asked why,despite two notices from the Court, Piyadasa had not contacted him,but that Piyadasa seemed unconcerned. This, too, had not been'
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put to Piyadasa in cross-examination, and I cannot accept thatevidence.
Counsel’s fifth argument was that Piyadasa had suffered nodamage, because he continued to remain in occupation of thepremises from 1985 to 1992, and even thereafter, as the proceedingscontinued in the District Court. However, there was never any risk thatthe Court of Appeal proceedings could result in an order forPiyadasa’s ejectment, and so his continuing occupation cannotmitigate the respondent’s default. In fact, the respondent’s defaultsresulted in the alteration of a finding in his favour, and thus he didsuffer some disadvantage in the subsequent District Courtproceedings.
Lastly Counsel submitted that Piyadasa complained to this Courtthrough improper motives in the mistaken belief that the respondenthad acted in collusion with the other party, and also in an endeavourto extort some payment from the respondent.
This allegation of collusion arose from Piyadasa’s evidence that inSeptember 1993 he met the respondent, and again inquired aboutthe case, whereupon the respondent said “Oh, you are coming fromAmpara, isn’t it?”, and undertook to send him particulars about thecase within a fortnight, but failed to do so. Thereafter in November1993, Piyadasa learned from his Attorney-at-Law at Tangalle that therecord had been sent back to Tangalle, and found that the appealhad been allowed. He then wrote to the respondent on 12.12.93referring to this (as well as the three meetings before 24.11.92) andstated that the respondent’s question about Ampara gave rise to aserious suspicion. In his letter he did not state what that suspicionwas, but his evidence shows that he suspected that the respondenthad acted in collusion with his opponent because the plaintiff-appellant was from Ampara, while Piyadasa was from Tangalle. Inthat letter, Piyadasa also threatened to take legal action against therespondent for the loss he had suffered. The respondent says he didnot reply to this letter because of this serious allegation of collusion.In the result, Piyadasa’s version of this meeting (and of the previousmeetings) was not denied by the respondent at the earliest
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opportunity, but only after these proceedings commenced. While Iaccept Piyadasa’s evidence, I must observe that even if Piyadasawas wholly unjustified in inferring collusion, that did not vitiate hiscomplaint in other respects.
As for the allegations of extortion, learned President’s Counselsuggested in cross-examination to Piyadasa that he had discussedhis grievance with Mr. Ronnie de Mel and had wanted a sum ofmoney to settle the dispute. This Piyadasa stoutly denied. Therespondent neither testified that Mr. de Mel had given him any suchinformation nor called Mr. de Mel to give evidence. I hold that none ofthe matters relied on by the learned President's Counsel for theRespondent excuses or mitigates his default. His failure to inform hisclient, and to file an application for relisting or for leave to appealaggravates his default.
FAILURE TO RETURN PAPERSPiyadasa further testified that he needed the file or papers (whichadmittedly had been handed over to the respondent in November1985) for the purpose of the District Court proceedings. He says hefirst made a telephone call and left a message with a member of therespondent's household (whom he did not identify); he followed thisup with a polite, reply-paid, telegram on 1.3.94, asking for anappointment to collect the file; and when there was no response, hesent a strongly worded letter dated 23.3.94 – specifically allegingcollusion with his opponent, demanding the return of his file, andthreatening legal action. This was copied to various officials.
On the directions of this Court, by letter dated 25.8.94 theRegistrar called for the ‘Respondent’s observations' on that letter; on
the respondent asked for time "as the file relating to thesubject has been misplaced” by him. He sent a reply, dated24.10.94, which made no reference to the file, and on beingreminded, he replied on 18.11.94 that the papers were with Attorney-at-Law Hirimutugoda and that when he received Piyadasa’s telegram,he asked Attorney-at-Law Hirimutugoda to trace it, so that he couldreturn it, but that so far the latter had failed to do so.
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In his evidence in this Court, he said that Attorney-at-LawHirimutugoda had returned the file to him after appearing on 3.12.90,but that he gave the file again to Attorney-at-Law Hirimutugoda afterthe order of 24.11.92. However, quite inconsistently, he stated that hewanted to get Piyadasa down and to ask why Piyadasa had insultedhim; and that if Piyadasa had spoken cordially to him, he would havereturned the file. But even when giving evidence he said he did nothave the file.
I hold that the respondent wilfully refused to return the file ofdocuments which was his client’s property and which he had no rightto retain, and that this constituted malpractice.
CONCLUSIONI hold that the charge of malpractice has been established beyondreasonable doubt. The Rule is therefore made absolute.
The respondent’s evidence discloses other unsatisfactory featuresin regard to his professional work. He failed to keep a record of thedisbursements made out of the fee paid to him for various purposes,and of the communications with his client. Further by his letter dated6.12.85 he asked Piyadasa to place his signature on an affidavit, andto return it for signature thereafter by a Justice of the Peace inColombo. Taking all the circumstances into consideration, in theinterests of the administration of justice, the public, and theprofession, I order that the respondent be suspended from practiceuntil 31.12.97. The Registrar is directed to inform the Registrar-General of this order.
DHEERARATNE, J. – I agree.
WADUGODAPITIYA, J. – I agree.
Rule made absolute,
Respondent suspended from practice.