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Court slams lawyer for ‘malicious and vexatious’ reporting of colleague to regulator

In a scathing judgment, the magistrate said it had been proven that the plaintiff had acted his client’s interests when he had filed acts in court in order for them to take back what was rightfully theirs

matthew_agius
Matthew Agius
20 November 2017, 5:48pm
(File Photo)
(File Photo)
A magistrate has awarded damages and imposed a fine against a lawyer who maliciously accused another lawyer of unethical practices before the Commission for the Administration of Justice, over a deposit from a failed promise of sale.

Lawyer John Bonello had been providing legal services to the Debrincat family, who had entered into a promise of sale agreement over a San Gwann apartment with relatives of lawyer Colin Calleja. The Debrincats had left a cheque for €10,200 as a deposit, with the notary, which they later tried to take back after the sale was not concluded.

Magistrate Francesco Depasquale noted that for reasons known only to the Calleja family, they had failed to register the promise of sale agreement with the Commissioner of Internal Revenue, as required by law. Despite having filed a judicial letter against the Debrincat siblings after the lapse of the agreement, they had failed to proceed against them to force the sale through, leading to the Debrincats being eligible for a refund of the deposit.

But despite an exchange of correspondence between the plaintiff and the defendant, this did not happen, as the Callejas had expected payment for costs that they had made in improving the flat to specifications made by the Debrincats.

The court was told that Calleja had repeatedly attempted to make contact with the Debrincats directly, bypassing their laywer, Bonello This was rebuffed, as the plaintiff was only obliged to speak with his own legal counsel.
Subsequently, Bonello had filed a judicial letter and garnishee order for the €10,200 against Calleja, on behalf of the Debrincat family.

After the letter was filed, the plaintiff and the defendant’s family lawyer had passed on a cheque to a notary but Calleja had insisted that the money be deposited in court, which is what the notary eventually did, through a schedule of deposit in July 2014, instead of passing it on the Debrincat brothers. The money was withdrawn and the garnishee revoked and the matter between the parties ended there.

Lawyer reported to Chamber of Advocates for “abusive and excessive” garnishee

However in November that year, Calleja had complained to the Chamber of Advocates about Bonello, claiming that he had acted “abusively” and “excessively” by filing a garnishee against his family members during a 30 day contemplation period established by law. Also abusive was the fact that the garnishee had seized some €50,000 by individually targeting four of his family members, he argued.
Bonello had filed a court case under the Commission for the Administration of Justice Act, arguing that Calleja’s allegations were unfounded in fact or at law and had been filed “with great negligence or in a malicious or vexatious manner.” The complaint had caused Bonello to endure a lot of worry and stress and led to the non-renewal of his professional indemnity insurance, he said.

Calleja asked to be non-suited, claiming that he had not taken any action against the plaintiff, but that it had been the Chamber of Advocates who had made a complaint about Bonello.

In a strongly worded judgment Magistrate Depasquale, his outrage palpable, described as “totally incredible and inconceivable” that Calleja and his lawyer could even contemplate raising a defence “as if it had actually been the Chamber of Advocates and not the defendant who filed a complaint against the plaintiff.”

Depasquale observed that it had been the defendant who personally filed a complaint against the plaintiff, who had not been his lawyer, but the opposing counsel. The court ruled that the complaint had been “based on assertions and allegations borne from the fact that the defendant had no knowledge of the law and the Code of Ethics which regulates lawyers.”

In fact the Chamber had acted with “utmost rectitude and loyalty” when it sent the defendant’s complaint to the plaintiff. “Certainly it was not loyal of the defendant or his legal counsel at the time to try and shift the blame for everything onto the Chamber of Advocates, an allegation that is certainly untrue and malicious in of itself.”

It had been proven that the plaintiff had been acting in his client’s interests when he had filed acts in court in order for them to take back what was rightfully theirs. It also emerged from the defendant’s testimony that it was only after the judicial letter and garnishee had been filed that he had informed his client that they could collect the cheque from the Notary and this was too late because proceedings had already started. Neither the plaintiff’s clients nor the plaintiff himself were to blame for this, held the court, “but this had been a result of shortcomings by the defendant and his own family.”

Bonello had been “totally correct” when he objected to direct communications from the defendant, as this is precluded under the Code of Ethics for lawyers.

It was clear that Calleja had engaged a lawyer to assist him and the applicant was obliged to only communicate with the other party’s lawyer and not to accept phone calls or communications directly from the defendant.

The court was scathing in its criticism of Calleja’s complaint. “It emerges clearly that the defendant doesn’t know about these rules and had based his empty allegations against the plaintiff on these mistaken assumptions,” ruled Depasquale.

The court also observed that Calleja had attempted to give the impression that he had done nothing to Bonello and had no intention of proceeding against him, but that the opposite emerged from the evidence. “The defendant, notified that his case was to be heard by the Committee of Lawyers and Legal Procurators, had not only instituted proceedings against the plaintiff, but had also attended the sitting...and had even given it his version of events.

Therefore, the court said it felt Calleja’s reporting of Bonello for abusively acting against him was “nothing more than a malicious and vexatious action on the part of the defendant intended to cause damage to the plaintiff, who was only doing his duties as legal counsel to his clients...as he was obliged to do.”

The defendant’s malice would be reflected in his punishment, said the magistrate, who was clearly taken aback by the case.

The court declared that Calleja’s complaint against Bonello was “baseless, malicious and vexatious” and ordering him to pay Bonello €236 in damages, together with a fine of €1000

matthew_agius
Court reporter Matthew Agius is a Legal Procurator and Commissioner for Oaths. Prior to re...