Court clears Gittens of serious misconduct charge

A lawyer found guilty of professional misconduct has partially succeeded in his appeal after the Court of Appeal ruled that the regulatory body made legal and factual errors, and that his constitutional right to a fair hearing was breached.

Donald Gittens had been found guilty in March 2021 by the Disciplinary Committee of the General Legal Council (GLC) over his handling of a personal injury matter from 2007. He was cited for failing to keep his client, Salome Kerr, informed, and for not protecting her legal interests.

However, the Court of Appeal overturned the more serious finding under Canon IV(r) of the Legal Profession (Canons of Professional Ethics) Rules. That rule relates to managing clients' matters with due expedition and providing timely updates. The lesser breach under Canon IV(s), relating to inexcusable or deplorable negligence, was upheld. The $75,000 cost order was quashed, and Gittens was instead reprimanded.

The judges said the committee wrongly concluded that Gittens should have filed a claim against the taxi driver and owner, despite Kerr never instructing him to do so. She had only instructed Gittens to sue the driver of the truck which skidded and collided with the taxi. Kerr, who was in the taxi, sustained a broken arm in the crash.

“In all the circumstances, it was unfair, and in breach of the rules of natural justice, the statutory regime of the Legal Profession Act, and the appellant's constitutional right to a fair hearing for the Committee to find that he, on account of his failure to file a claim against the taxi driver, acted with inexcusable and deplorable negligence in breach of Canon IV(s),” the judgment read.

The court also found there was no factual basis for the claim that Gittens failed to protect Kerr's interests, noting the committee had assumed – wrongly – that suing the taxi parties was necessary. They said this view was “obviously influenced by the owner's denial of liability in his defence”.

Gittens had delayed filing the lawsuit until 2012, just before the limitation period expired, and by 2019 the case remained unresolved. He argued that Kerr had refused to pay for a medical report necessary to move the case forward, and later requested that he pay for it himself.

Right to a fair hearing

In court, his attorney, Seymour Stewart, said the issue of suing the taxi driver and owner had never been raised in the original proceedings, which denied Mr Gittens a fair opportunity to respond – a violation of his constitutional and common law right to a fair hearing.

Stewart also addressed the claim that documents were not served on the truck driver, asserting that they were mailed, but the affidavit of service was lost. He called the committee's findings “a miscarriage of justice”.

GLC representative Sidia Smith defended the original decision, saying, “Given the seriousness of the complaint, Mr Gittens had a duty to justify his decisions.” She argued that he failed to explain why he did not sue the taxi parties and could not conclusively prove service on the truck driver.

Regarding the remaining breach, the judges acknowledged that it was undisputed that Gittens failed to provide Kerr with timely updates. However, they also noted that Kerr's actions contributed to delays in the case's progress.

tanesha.mundle@gleanerjm.com