Re Layne, Belfour
| Jurisdiction | Barbados |
| Judge | Simmons, C.J. |
| Judgment Date | 18 September 2009 |
| Neutral Citation | BB 2009 CA 17 |
| Docket Number | 39 of 2004 |
| Court | Court of Appeal (Barbados) |
| Date | 18 September 2009 |
Court of Appeal
Simmons, C.J. Waterman, J.A.; Williams, J.A.
39 of 2004
Mr. John Waithe for Mr. Balfour Layne.
Ms. Cicely Chase Q.C. and Mr. Andrew Brewster on behalf of the Disciplinary Committee of the Bar Association.
Ms. Donna Brathwaite and Ms. Stephne Greenidge as amici curiae on behalf of the Attorney-General.
Mr. Peter Symmonds Q.C. on behalf of the Bar Association.
Legal profession - Disciplinary proceedings — Attorney failing to issue a writ of summons within the limitation period — Recommendation by Disciplinary Committee that attorney be reprimanded and made to pay compensation to client — Whether court should endorse Committee's recommendations.
On 18 August 2008 and in accordance with s. 21 of the Legal Profession Act, Cap.370A, (the Act), the Disciplinary Committee of the Bar Association (the Committee) forwarded its report on a complaint by Mrs. Glendene Henry against Mr. Balfour Layne, attorney-at-law, to the Chief Justice. Mrs. Henry had complained to the Committee on 26 June 2004 that Mr. Layne had been acting for her since 1997 in connection with a collision in which she suffered personal injuries and that she was unable to contact him on numerous occasions. The Committee found, inter cilia, that Mr. Layne was in breach of Rules 24 and 74 of the Legal Profession Code of Ethics (the Code), 1998 in so far as he had not issued a writ of summons within the limitation period. They recommended that Mr. Layne be reprimanded and pay compensation to Mrs. Henry for pain, suffering and loss of amenities suffered by her as a result of the vehicular collision. The issue for our determination is whether we should endorse or otherwise act upon the Committee's recommendations.
On 21 January 1997 Mrs. Henry was a passenger in a Transport Board bus BM 366 which was involved in a collision. Owing to the driver's negligence, she sustained personal injuries, loss and damage. She instructed Mr. Layne who agreed to act on her behalf. She paid him no money but he told her that he would pursue a claim for damages against the Transport Board. On 3 February 1997, Mr. Layne wrote to the Transport Board holding it liable in negligence and claiming damages. By letter of 12 February 1997, the Board replied advising that the matter had been referred to its insurance brokers who would, in turn, send it to the Board's insurance company, United Insurance Co. Ltd. (United). United wrote to Mr. Layne on 14 May 1999 asking that he advise them of the nature of Mrs. Henry's injuries. In addition, they sought permission for Mrs. Henry to be examined by Mr. Arthur Edghill, FRCS. She was examined by Mr. Edghill on 21 March 2000. His report was tendered on 26 April 2000.
Mr. Layne also arranged for Mrs. Henry to be examined by consultant orthopaedic surgeons, Mr. Kwasi Ametewee FRCS and Mr. Winston Seale FRCS. They saw her between 18 September 1997 and 24 October 1999 and sent reports dated 1 December 1997 and 5 December 1997 respectively to Mr. Layne. On 30 September 1999 Mr. Layne issued a writ of summons against the Transport Board and the driver of the bus claiming damages for negligence.
In her evidence to the Committee, Mrs. Henry said that Mr. Layne told her that he was awaiting a medical report from Dr. DaCosta Thompson. Mr. Layne did write to Dr. Thompson on 2 May 2000 inquiring about the cost of a report and followed this correspondence with 3 letters between 22 April 2002 and 22 May 2002 requesting the report. It finally came on 2 July 2002.
On 27 March 2000, United wrote to Mr. Layne requesting a copy of Dr. Thompson's report, copies of the Notice of Proceedings and the writ. The insurance company reminded him that the limitation period had expired.
In her evidence Mrs. Henry said that she continued to telephone Mr. Layne at his home and in his Chambers and was usually told that he was awaiting medical reports. On March 2005 she went to his Chambers. They were closed. She therefore telephoned him at home and spoke to his wife who is alleged to have said: “You going lose your money.”
Upon hearing this, Mrs. Henry contacted United. She was told that the limitation period for the claim had passed in that the limitation period against the Transport Board was one year. Mrs. Henry complained that there was a general lack of communication between Mr. Layne and herself. Mr. Layne denied this in his evidence to the Committee and maintained that the medical reports became available only 4 or 5 years after the collision. He did, however, admit to the Committee that he was paying too much attention to receiving the medical reports and too little to the limitation period. He accepted that he should have “kept a closer eye on the date of the accident”. Mr. Layne appeared to accept that the limitation period had indeed expired after one year and, since he had not filed his writ within a year of the collision, he was at fault. He told the Committee “I slipped up in that I forgot it was a one year and not a three year limitation”.
As we indicated in the introductory paragraph, the Committee found that Mr. Layne had acted in breach of Rules 24(1) and 74 of the Code. Rule 24(1) of the Legal Profession Code of Ethics, 1988 provides-
“An attorney-at-law shall always act in the best interests of his client, represent him honestly, competently and zealously and endeavour by all fair and honourable means to obtain for him the benefit of any and every remedy and defence which is authorised by law, steadfastly bearing in mind that the duties and responsibilities of the attorney-at-law are to be carried out within and not without the bounds of the law.”
Rule 74 is to this effect:–
“In the performance of his duties an attorney-at-law shall not act with inexcusable or undue delay, negligence or neglect”
A breach of Rule 24(1) may constitute professional misconduct, whereas a breach of Rule 74 leads to a mandatory finding of professional misconduct – see Rule 4 of the Code.
The Committee made two other findings. First, that Mr. Layne had failed to safeguard Mrs. Henry's interests by neglecting to file “a protective writ” before the limitation period of one year had expired. Secondly, that her claim against the insurers was statute-barred. Accordingly, the Committee recommended that Mr. Layne be reprimanded and pay compensation as we mentioned earlier.
Parliament enacted the Limitation of Actions Act, Cap.231 in 1997. It came into force, by proclamation, on 1 October 1997. The Act was comprehensive, reformist legislation which replaced the Limitation Act, 1623 of the United Kingdom which ceased to have effect in Barbados. In the Schedule to the Act, certain other enactments were repealed or amended. Among those Acts which were amended was the Limitation (Public Authorities) Act, Cap.106. In the penultimate line of s. 3(1) of this Act, the word “1 year” was deleted and the words “three years” were substituted.
The Transport Board is a statutory corporation. Prior to the amendment of the Limitation (Public Authorities) Act supra, actions against such authorities as the Transport Board had to be commenced within one year of the date of the cause of action. But since 1 October 1997, the limitation period in respect of such authorities has been extended to three years.
Thus, when Mr. Layne issued the writ on 30 September 1999, it was within the limitation period. Unfortunately, both he and the Committee laboured under a mistake of law that Mrs. Henry's action was statute-barred as...
To continue reading
Request your trial