3 W.D.C.P. (2d) 399, 1991 CarswellOnt 3779
Jaffe v. Dearing
Sidney L. Jaffe and Ruth Jaffe, Plaintiffs and Daniel S. Dearing, Defendant
Daniel S. Dearing, Plaintiff by Counterclaim and Sidney L. Jaffe and Ruth
Jaffe, Defendants by Counterclaim
Sidney L. Jaffe, Ruth Jaffe and Gabriel Alter, Plaintiffs and Daniel S. Dearing
and Sun Bank of Tallahassee, Defendants
Ontario General Division
Judge: Austin J.
Heard: October 7, 1991
Heard: October 11, 1991
Judgment: November 14, 1991
Docket: Toronto 5236/85, 10453/86
Related references: Additional reasons, 7 C.P.C. (3d) 225, 3 W.D.C.P. (2d) 161, 1992 CarswellOnt 444 (Ont. Gen. Div.); Additional reasons (Further), 1992 CarswellOnt 3137 (Ont. Gen. Div.); Affirmed, 1995 CarswellOnt 2555 (Ont. C.A.)
Counsel: None given
Subject: Civil Practice and Procedure
Barristers and solicitors.
Civil practice and procedure.
1 In these two actions a client or clients claim damages from their lawyer for negligence and breach of contract. They also claim the return of fees paid. The lawyer counterclaims for fees unpaid.
2 Sidney Jaffe was in prison in Florida. His wife Ruth asked Dearing to get him out. In getting him out, Dearing arranged a scheme whereby money was paid to certain people by way of "restitution." Jaffe claims repayment of that money. Jaffe was then charged with fraud. He was released on bail of $150,000. That money was seized by the State. Jaffe claims that amount as well. He also demands the return of part of the $174,013.98 paid Dearing in fees and disbursements. Dearing claims another $62,028.31 from both Mr. and Mrs. Jaffe by way of fees and disbursements.
3 Most of the events occurred in Florida and concern legal processes there. Testimony was given by Canadian and American attorneys. It was apparent from that testimony that there are material differences in language and that the same words have different meanings in the two jurisdictions. These reasons are written from an Ontario perspective. The amounts of money are expressed in U.S. dollars.
4 Jaffe is now 67. Although born in New York City, by 1971 he had a home in Toronto and at some stage he became a Canadian citizen. In the late 1970's he was engaged in land development in Florida. A corporation in which he was involved acquired a residential development. A number of people had bought interests and were entitled in due course to what are called "warranty deeds." For some reason "quit claim deeds" were provided instead.
5 As a result, Jaffe was arrested in August 1980 and charged with 28 offences under the Florida Land Sales Act. To secure his release, bail was put up in the form of a bond for $137,500. It was purchased from a bonding company.
6 Jaffe was released and returned to Canada. When the case was reached for trial in May 1981, Jaffe did not return to Florida. Whether his non-return was justifiable is not in issue in this proceeding. As is customary in the United States, a term of his bond authorized the bonding company to pursue Jaffe, to apprehend him, and to return him to the court. Overlooking the international boundary and the extradition treaty between Canada and the United States, two "bounty hunters" came to Toronto in September 1981, kidnapped Jaffe and delivered him into custody in Florida.
7 In November 1981 Jaffe was convicted of 28 violations of the Land Sales Act and of "failing to appear." In February 1982 he was sentenced to five years in prison on each of these 29 charges. Although the sentences total 145 years, by virtue of concurrence they worked out to 35 years in prison.
8 There was some protest of the kidnapping and the apparent involvement of the State of Florida in it. It was suggested by some that the sentences were excessive in that the Act was regulatory, not criminal, the offences were technical, these were the first charges ever laid under the Act, and five years per offence was the maximum penalty.
9 The Jaffe family contacted their own lawyer here and either independently or through their lawyer, the police, the Federal Departments of Justice, and of External Affairs. The matter was raised through diplomatic channels with the U.S. Departments of State and Justice. Protests were being made or urged. Action was being suggested, demanded or followed on a number of fronts. In the meantime, Jaffe remained in prison at the Avon Park Correctional Institution at Avon Park, Florida.
10 Dearing is a lawyer in Tallahassee, Florida. He had worked with Fletcher Baldwin, a professor of constitutional law at the University of Florida. The Jaffes had been in contact with Baldwin and he referred Jaffe's daughter, Robyn, to Dearing in July 1983. She told Dearing the story and asked him to go to the Governor of the State and get a parole for her father. Dearing said he assumed that she meant a pardon rather than parole. He also said that he did not believe her story until he checked it out with Baldwin.
11 Mrs. Jaffe then called and asked him to undertake the representation of her husband and Dearing agreed to do so. She suggested she pay him up front. He refused. He proposed that he charge her $100 per hour regardless of the nature of the work, that he bill her monthly for his time and expenses and that unless there was some question about an account, she would pay it promptly on receipt or shortly thereafter. Mrs. Jaffe discussed this proposal with her husband and then agreed to it.
12 There were time constraints because Jaffe was ill. Dearing said that a pardon was out of the question until the matter had been considered by the Florida Parole Commission. He therefore set to work to get as early a date as possible for a hearing with the Commission. He had an advantage in this regard as he had acted for the chairman and for her department when she had been superintendent of a Florida women's prison some ten or eleven years earlier. In the result, a series of hearings of the Commission was held over the period July 1982 to October 1983. Jaffe was released on October 11, 1983.
13 Early in those proceedings a question was raised as to whether there were any "victims" of Jaffe's "crimes." Dearing was not successful in persuading the Commission that no one had lost anything by reason of Jaffe's conduct. This led to the question whether "restitution" might be appropriate. Dearing concluded that an offer of restitution had to be made. This was discussed and approved.
14 Approval in this context involved Mr. and Mrs. Jaffe, their family, and a good many others. Jaffe himself had a law degree, acquired about 1980 in California, although he had never practised. Mrs. Jaffe was consulted on every step. Their son Harold, an attorney in Oakland, California, was involved. Another son, Brandon, was a law student in Toronto. Jaffe's brother, Robert, was an attorney in New Jersey. Mr. and Mrs. Jaffe had legal representation through Sydney Fram, then of Goodman and Goodman in Toronto. The money for the restitution plan was to be contributed by friends and channelled through John Zeldin, Q.C., another lawyer in Toronto. Zeldin had to be consulted. In addition, James M. Russ, an attorney in Orlando, was representing Jaffe on the appeal from his convictions, and Lansing J. Roy, of Keystone, Florida, was advising Jaffe on bankruptcy and civil property matters.
15 A variety of other legal proceedings had been or were being started. These incuded habeas corpus applications by Jaffe and by the Canadian government. Amicus curiae proceedings were brought by various groups to support these efforts. Pressure was brought on the U.S. State and Justice Departments to get them to take proceedings. Depending upon the nature of a decision, wider and wider circles of consensus had to be reached.
16 Over the period August 1982 to March 1983 a number of aspects of the restitution plan changed. For example, originally the money was in Toronto. In the end it was in Tallahassee. A fundamental of the original plan was that restitution would only be paid after Jaffe had been released. Whether or not this condition was changed was in issue.
17 On March 2, 1983, Mrs. Jaffe and Dearing attended a hearing of the Parole Commission. At the outset of the meeting, Jaffe's Presumptive Parole Release Date (PPRD) was November 24, 1988. This date had been arrived at by the application of both "objective" and "subjective" factors. The former included such matters as the nature of the crimes. The objective part was largely mechanical and subject to correction in the case of error. The subjective aspects, however, were largely, if not entirely, beyond reconsideration.
18 At the hearing on March 2, 1983, two orders ("Commission Actions") were made. One was based on a calculation error found by Jaffe. He had discovered that the failure to appear had been "scored" as a second degree felony when in fact it should have been scored as a third degree felony. This resulted in an automatic change in his PPRD from November 24, 1988, to May 24, 1988.
19 The second order accepted the restitution plan and, as a consequence, changed the PPRD from May 24, 1988, to May 24, 1983. The formal order was not signed until March 10 and it was not in Dearing's hands until March 11, 1983. With it came a letter setting May 4 as a date for further review and consideration of the matter.
20 In the meantime, Dearing had, on March 3, 1982, mailed out the offer of restitution to all of the 27 "victims." (One had bought two lots.) The offer was unconditional; it was not made subject to Jaffe being released.
21 On March 16, 1983, Stephen L. Boyles, the State Attorney, who had prosecuted Jaffe, wrote to the Parole Commission protesting its order. His position was that the Commission could not change a release date on the basis of restitution. Dearing received a copy of that letter on March 18. Boyles followed up his protest with a petition for certiorari. Dearing received it about April 11, 1983. The petition was based upon two grounds. The first was that the Jaffe hearing had not been listed on the published agenda of the Parole Commission for March 2, 1983. The second was that the Parole Commission was limited to acting on "new information" and the restitution plan was not "new information."
22 Notwithstanding Boyles' letter and certiorari, the restitution plan proceeded. The money was in the hands of the bank. Dearing was required to approve the documentation sent back by the "victims" and he did it as it arrived. Upon his approval the money was sent out automatically by the bank. The first cashier's cheques were dated March 18, 1983, and the last April 27, 1983. Most accepted the offer. A few did not. All of these latter had been contacted by Boyles and urged not to accept.
23 Dearing kept the Parole Commission fully advised as to what was happening on an almost daily basis.
24 The Parole Commission met again on May 4. First it found that the "conditions required for mitigation," that is, the restitution, had been met, that the PPRD should be made permanent, and the conditional PPRD of May 24, 1983, be affirmed. It then declined to grant an Effective Parole Release Date (EPRD) because of the outstanding certiorari. It concluded by establishing a new PPRD of November 24, 1983.
25 Dearing testified that he had been confident that the May 24 release date would be kept by the Parole Commission, notwithstanding Boyles' protest and certiorari. His view was that Boyles had no standing. When the date was not kept, Dearing petitioned for a review of the position taken by the Parole Commission. On June 9, 1983, however, the Court held that the Attorney General of Florida, who was represented on the hearing of the certiorari, did have standing. The court also held that the failure to put the Jaffe hearing on the agenda was "analogous to violations of the Government in the Sunshine Law...a violation of which constitutes an irreparable public injury." The Court also held that the restitution plan was not "new information" and that the order of March 2 was therefore improper. That order was quashed.
26 It is not clear what became of Dearing's petition or review. In the circumstances, it may well have been abandoned.
27 Although Russ had been retained to do the appeal from the convictions and had prepared the appeal, Dearing was asked to argue it. This argument took place on July 18, 1983. Judgment was reserved. The hearing gave those present reason to believe the appeal would succeed. The same day Jaffe was served with new charges prepared by Boyles and based on "organized fraud." Although Jaffe remained in custody, his bail on the new charges was set at $300,000.
28 The defence of these charges was committed to Dearing and to Ed Leinster, an attorney in Orlando, Florida, with expertise in criminal matters. They launched a variety of motions, including two by Dearing. These two motions sought dismissal of the new charges on the basis of "prosecutorial vindictiveness" and lack of jurisdiction (no connection on the face of the information between Jaffe and Florida). These motions were argued at some length on September 1, 1983. The matter was adjourned on the understanding that Dearing would file a memorandum on certain points.
29 The following day, September 2, 1983, the Court of Appeal handed down its decision. It held in effect that the 28 charges against Jaffe did not set out any offence known to law, and if they did they had not been made out in the evidence. Those charges were dismissed and the conviction set aside. The conviction for failure to appear remained.
30 Jaffe was still in jail. He had been in custody of one kind or another since September 1981. According to his calculations of "gain time," that is, the time to be credited to his remaining five-year sentence on one basis or another, he would "max out," that is, he would be entitled to demand his release with respect to the failure to appear conviction on October 3, 1983. According to some State authorities he would not be entitled to release on that charge until several months later.
31 A bail review (bond reduction hearing) on the new charges was requested for September 30, 1983. Leinster was to do this, but at the last minute Mrs. Jaffe asked Dearing to attend. He did, as a spectator, and at Jaffe's request made a closing submission. The amount of the bond required to bring about Jaffe's release on the new charges was lowered from $300,000 to $150,000.
32 Different ways of assuring the payment of $150,000 were discussed at the hearing. One of the ways was through interests Jaffe said he had as a partner in apartment buildings in Toronto. Following September 30, Jaffe remained in prison while various means were explored to secure the money.
33 On October 5, 1983, a further hearing of the Parole Commission was held. The Commission decided to release him on October 11. Dearing was very concerned that further efforts would be made to detain Jaffe. To minimize that risk, he urged the expediting of the arrangements for the bond. The real estate route proved unavailable. Eventually, the money was provided by a friend, Gabriel Alter, and Jaffe was released on October 11, 1983. He arrived home in Toronto the same day.
34 Dearing continued his efforts on behalf of Jaffe for some months. Dearing had rendered accounts monthly as agreed, and Mrs. Jaffe paid them. None was questioned. Sometimes payment was delayed and sometimes payments were split over two months, but they were paid. From July 9, 1982, to July 26, 1983, the accounts totalled $174,013.98. In July 1983, before he argued the appeal from the convictions, Dearing was told by a distraught Mrs. Jaffe that she was no longer able to pay him as before. She assured him, however, that her husband had access to more funds and when he was back in Canada, Dearing's accounts would be paid.
35 That did not happen. Once back in Canada, Jaffe became increasingly critical of Dearing's performance, both past and present. By early November, Jaffe was insisting that the restitution funds be recovered and that the decision to reduce the bond requirement from $300,000 to $150,000 should have been appealed. He also complained that Dearing had not conducted an evidentiary hearing to back up his motions to dismiss the new fraud charges. He suggested that an action be commenced against Boyles for his interference in the parole process, that a civil rights complaint on Jaffe's behalf be strengthened, and that Dearing join forces with Roy in prosecuting a civil action against one of the other parties in the land transaction.
36 Late in November, Dearing moved to get off the record, but was refused. He was still the trustee of the bond money interest. He renewed the motion later on and succeeded. He remained trustee despite efforts to extricate himself, until replaced by Alter with another attorney in April 1984.
37 In July 1983, Mrs. Jaffe had told Dearing he would get paid when her husband returned to Canada. Shortly after Jaffe returned to Toronto, he said he would pay when Dearing came up to visit him in November. Then the visit was switched to February, and then to March. By April 1984, Jaffe's position seemed to be that Dearing would get paid when he recovered the restitution money or the bond money, or both. In May, Jaffe complained about Dearing's handling of the $150,000 bond and about his failure to require an evidentiary hearing to provide a basis for an attack on the new fraud charges. Jaffe suggested that such evidence would also have helped to eliminate or reduce the bond requirement. Jaffe also indicated that Dearing would be paid from the proceeds of a civil rights action recently commenced in New York State. In July 1984, Mrs. Jaffe wrote to Dearing asking him to help them to obtain justice by recovering "the funds disbursed on the false parole, which moneys were put forth on your recommendation and counsel, and recover the $150,000 cash sent by Gabriel Alter to your bank, at your request." The situation was aggravated by Dearing's receipt of a postcard from the Jaffes on holiday in Mexico.
38 Dearing replied to Mrs. Jaffe by indicating that he would commence action for his fees immediately. The claim was commenced on August 2, 1984. It was against both Mr. and Mrs. Jaffe. Dearing's request to have one of Jaffe's lawyers in Florida accept service was ignored. The claim was sent to Toronto for service. A sheriff's officer attempted service at the Jaffes' residence on many occasions in September 1984, and spoke to Jaffe by intercom, but was unable to effect service. The officer said Jaffe said his solicitor would contact the sheriff's department for service. The solicitor did contact the sheriff's department, but did not arrange for service. It was the opinion of the officer that the defendants were blatantly evading service.
39 Personal service was eventually effected on Jaffe alone by a process server on November 15, 1984. By letter dated November 31, 1984, Jaffe wrote to the clerk of the court in Florida enclosing "a response to complaint" in the matter and asking that it be filed. The "response" was what in Ontario would be called a notice of motion. It was entitled "Motion to Dismiss for Lack of Jurisdiction." The body of the document reads as follows:
COMES NOW the defendant, Sidney L. Jaffe, and prays this court to dismiss this action on the grounds that there is no subject matter, jurisdiction and/or personal jurisdiction of the defendant, and in supprt [sic] thereof, does aver as follows:
COUNT I AS GROUNDS FOR DISMISSAL
1) Plaintiff has no privity of contract with the defendant and was not engaged by defendant. Plaintiff rendered his service, if any, to third parties. As recited in White v. Exchange Corp. 167 So.2d 324 (3rd DCA, 1964).
It is elementary that a person not party to nor in privy with a contract does not have the right to sue for its breach. See Woodbury v. Tampa Water Works Co. 57 Fla 249, 40 So. 556; Seabord Airline R. Co. v. Tampa Southern R. Co., 97 Fla. 340, 1121 So. 477.
Therefore as there is no contract and no privity between Plaintiff and Defendant, the court lacks subject matter jurisdiction.
COUNT II AS GROUNDS FOR DISMISSAL
2) Plaintiff has not obtained personal jurisdiction over defendant. Defendant became aware of the instant action by delivery of a copy of the summons to his place of residence. There has been no identification of the party effectuating the service or proof of service and if said is being claimed by plaintiff, defendant puts the plaintiff to his proof.
WHEREFORE, your defendant prays that this court grant its prayer and dismiss the complaint instituted apparently by Daniel S. Dearing and L. Ralph Smith, Jr. in the Second Judicial Circuit Court in and for Leon County, Florida.
"S. L. Jaffe"
Sidney L. Jaffe
Appearing Pro se
40 On December 17, 1984, before the Court had had time to deal with his motion, Jaffe petitioned the Federal Court to remove the matter from the State Court to the Federal Court. A filing fee of $60 and a bond fee of $500 are payable on the filing of a removal petition. The cheques presented for such fees were not honoured. The Federal Court accordingly remanded the matter back to the State Court on January 9, 1985. By letter dated February 7, 1985, Jaffe sent in to the Federal Court a notice of appeal from that order. Dearing moved successfully to have the appeal dismissed. Jaffe then moved for reconsideration. Dearing then moved in the State Court to dismiss Jaffe's original motion of November 31, 1984. That hearing was held on April 23, 1985. No one appeared on behalf of Jaffe. The Court dismissed Jaffe's motion. The text of the order reads as follows:
This cause is before the court on Defendant Sidney L. Jaffe's motion to dismiss. Jaffe appears pro se. Count I of Jaffe's motion contests jurisdiction for lack of privity of contract between the Plaintiff law firm and Jaffe. Count II alleges failure to service of process. Defendants failed to appear for the hearing (which had been noticed and renoticed) on their motion. The court having reviewed the motion and heard Plaintiffs' counsel, and being otherwise
fully advised in the premises, it is
1. That the motion to dismiss for lack of privity is DENIED. The complaint alleges as operative fact that representation was effected by agreement with both Defendants. For purposes of the motion, these facts are taken as true.
2. The motion to dismiss for failure of service of process is DENIED. There is in this record an affidavit showing personal service of process on Jaffe at his home in Toronto.
DONE and ORDERED in Chambers at Tallahassee, Leon County, Florida, this 23rd day of April, 1985.
41 Dearing proceeded to trial on August 27, 1985. Although there was no equivalent of our statement of defence, and although no one appeared on behalf of Jaffe, Dearing filed an affidavit and called viva voce evidence, expert and otherwise, to prove his claim. Judgment was given on September 25, 1985, for fees and disbursements in the amount of $62,028.31 plus interest of $12,785.58, and costs of $352.65.
42 The pre-judgment interest was said to have been calculated at the Florida statutory rate of 12% on the increasing balance owing from the date of the first unpaid account to the date of judgment. Dearing's claim for legal costs of $7,680 incurred in getting judgment, plus $230.15 paid to effect service, was refused.
43 Jaffe makes three claims: return of the restitution money, return of the $150,000 bond money, and reduction of Dearing's fees in an unspecified amount.
(A) The Restitution Money
44 The claim for return of the restitution money is put on the basis that Dearing's very clear instructions were that that money was only to be paid out after Jaffe was released or after receiving an absolute guarantee that Jaffe would be released.
45 Dearing agreed that that was the original position, but said that it had been changed. He said that it had to be changed to accommodate the requirements of the Parole Commission.
46 The plaintiffs' position is that:
(1) They never agreed to any change.
(2) The Parole Commission did not require any change.
(3) There is a discrepancy between what the Parole Commission decided and what appeared in its formal order.
(4) The Parole Commission decided it would be satisfied if the restitution funds could be made available.
(5) Its order went further and required actual payment.
(6) Dearing should have caught this discrepancy.
(7) Having caught it, he should have done one of two things before allowing any money to be paid out:
(a) gone back to the Parole Commission for clarification; or
(b) gone back to his clients for instructions as to whether to pay out or get clarification.
(8) When Boyles indicated opposition in mid-March and brought certiorari proceedings shortly after, Dearing should have been warned that Jaffe's release was in doubt and should have done something about the restitution money.
47 As to point (1) above, the plaintiffs' main witness was Sydney Fram, then with Goodman and Goodman of Toronto. Fram testified that in March 1983 they were quite euphoric because Dearing had done something Fram did not think he could do. Fram said he could not remember any specific conversation with Dearing, but he thought Dearing must have called him. Fram said he did not see the orders of the Parole Commission until this action was under way and he did not know Dearing was paying out money in March until later.
48 Dearing testified that he sent out the offer letters to the "victims" on March 3, 1988, the day after the Parole Commission meetings. The first attempt at a letter to the "victims" was drafted as early as August 1982. Harold Jaffe did a draft in January 1983. That letter contemplates a payout commencing March 15, 1983. It did not have any conditions related to Jaffe's release. The final form of letter was a clear offer of payment; it too had no conditions related to Jaffe's release. Dearing said that it was approved by Harold Jaffe and by everyone else involved before it was sent out. That evidence was not contradicted and I accept it.
49 As to points (2) to (7) above, the answer is in the proceedings of the Parole Commission of March 2, 1983. Under the Government in the Sunshine Law mentioned above, the Parole Commission is required to conduct all of its proceedings in public. That is, all discussions, decisions and votes are taken in the sight and hearing of the parties. A tape is made of every meeting and a transcript is available. While this may produce a faithful record, it may leave room for debate as to precisely what was decided.
50 In the transcript of the meeting of March 2, 1983, at p.49, in the course of summing up the Chairman said at lines 3 to 15:
CHAIRMAN: Well, that's what I say, it's hard to enunciate and, I guess we need to get it on record. We need verification that the money is there, verification that the offers have been made, verification that the offers have been received
and sufficient time has been allotted for the persons to respond and be reimbursed.
SIMMONS: Now, if that does not happen, the mitigation --
CHAIRMAN: It is conditioned strictly on all these verifications. And if there is no verification that all this has taken place, prior to the date, then the mitigation is withdrawn. We have conditioned paroles in this manner previously.
And at p.52, lines 2 to 16:
CHAIRMAN: We have four votes then, to condition a parole upon what's been enunciated here. Now we need to make that very clear. If someone can help me I'll be glad to receive help. It will be conditioned, the mitigation will be applied and the parole will be conditioned upon Mr. Jaffe's providing verification that the money is again in an escrow or trust account in the amount necessary to reimburse all 27 people who suffered a loss in the land sales deal. It will be further conditioned our receiving verification in the form of a return receipt that these persons have been made an offer in writing;
That upon their executing a quit claim deed they will be reimbursed in the amount of their loss; and further, that these actions of these verifications will be presented to the Commission by May 1st, 1983.
51 Dearing testified that he understood from this discussion that it would not be sufficient to simply offer the money before Jaffe was released. He pointed in particular to the words "and be reimbursed." He understood that if the offer was made and accepted, the money had to be paid. Accordingly, he sent the letters the next day and when the formal order became available on March 11 he saw no discrepancy in it. The relevant parts of the order read as follows:
A. The Commission changes your presumptive parole release date as follows:
1. Reduce Presumptive Parole Release Date by 60 month(s). Reason (source)
Mitigation of Established Presumptive Parole Release Date of sixty (60) months is applied and a new Presumptive Parole Release Date of May 24, 1983, is established conditioned upon receipt from Mr. Jaffe of verification that the money is again in an escrow or trust account in a Florida bank in the amount necessary to reimburse all twenty-seven (27) people who suffered a loss as a result of the offenses for which Mr. Jaffe was convicted. The new presumptive
parole release date is further conditioned upon the Commission receiving:
1. Verification in the form of return receipts from the U. S. Postal Service and a true copy of each letter of offer establishing that each of the twenty-seven (27) people aforesaid has received an offer in writing that upon execution of a Quit Claim Deed to the property involved in each offense said person will be reimbursed in the amount of his or her loss.
2. Acceptable proof in writing that each of the aforesaid persons has (a) received the required reimbursement for his or her loss or (b) has declined in writing to accept the offer of reimbursement, or (c) has received the required offer of reimbursement and has failed to respond thereto as certified in writing by the attorney representing Mr. Jaffe.
The new presumptive parole release date is further conditioned upon acceptable verification that the foregoing conditions have been met being presented to the Commission on or before May 1, 1983.
Should the foregoing conditions not be fulfilled in their entirety, then the new Presumptive Parole Release Date shall be vacated and held for naught (mitigation of sixty (60) months removed), and the Presumptive Parole Release
Date shall be re-established to be May 24, 1988.
52 It should be noted here that it was argued that by virtue of the Government in the Sunshine Law, in the event of a difference between a decision at a meeting and the formal order, the former prevails. In the circumstances, I make no finding in this regard.
53 Mrs. Jaffe was at the meeting. She said that she understood that the money had to be in the bank before her husband would be released. She said Dearing told her he was going to send out the offers. She said at some point she heard that Boyles was challenging the parole but she did not understand that that would cause any problem until she attended the parole committee meeting on May 4. Mrs. Jaffe said that she became aware some time in April 1983 that the restitution money was being paid out and that she was surprised. She said she spoke to her husband and told him that that was not what was supposed to happen, that that was not what had been decided at the meeting on March 2. She said her husband told her that there was no problem, that he had read the order, that that was what it provided, and that he would be released.
54 Mrs. Jaffe said that she did not remember whether she had spoken to Dearing about the money going out. She remembered that at the May 4 Parole Commission meeting Dearing told the Commission that most of the "victims" had accepted and the money had been sent out.
55 Jeffrey Smith, of the Canadian Consulate in Atlanta, was also present at the March 2, 1983, meeting of the Parole Commission. He did not testify at the trial.
56 Fram said he was aware within a couple of days of April 13 that the money was going out. He raised no complaint. He said he only became concerned when he heard Boyles had filed some motion. Fram's concern was not that the money was being paid out improperly, but that Jaffe's release was not as certain as once thought. There is no suggestion that Dearing was ever told to stop the money.
57 Dearing testified that by March 2, 1983, everybody knew that the money would have to go out. He also testified that the draft letter to "victims" was an unconditional offer and everybody had seen and approved the draft letter. He was not cross-examined on those statements. They are consistent with the fact that until this action was brought, no one ever complained to him that the money had gone out, or asked him to stop it. The closest thing to a complaint was Jaffe saying, in the late fall of 1983, that Dearing would get paid when he got the restitution money back.
58 I find that Mr. and Mrs. Jaffe knew by March 2, or within a day or two thereafter, that the offers were unconditional and that when they were accepted the money would have to be paid.
59 When Boyles protested, Dearing thought he would be disregarded as he had no status. Dearing's opinion of the certiorari was the same. What he did not foresee was that the Attorney General of Florida would intervene and that the court would conclude that the Attorney General had status. Dearing said that he did not foresee that Boyles would succeed. If this was in error, it was an error in foresight. No one, expert or otherwise, suggested that it amounted to negligence.
60 Richard A. Belz, executive director of Florida Institutional Legal Services, Inc. from 1979 to the present, testified that Dearing breached a duty to get instructions when Boyles protested. This opinion was based upon Belz's view that there was a discrepancy between the Parole Commission's decision and its formal order. In my view, there is no such discrepancy. Belz's opinion was also given without knowing the text of the offer or that it had been approved by all.
61 Antonio Fontana was called as a witness. At the hearings of the Parole Commission in 1982 and 1983, he was the member of the Commission most sympathetic to Jaffe. Fontana is now the Chairman of the Commission. He testified that his intention was that the "victims" be paid before Jaffe was released. Even after the 28 convictions were set aside, he did not intend to release Jaffe until the payments had been made. The motion to release Jaffe was carried by a vote of four to three.
62 I therefore conclude that Dearing was not negligent or in breach of his duty in sending out the letters on March 3, 1983, or in failing to seek either clarification or instructions. Nor was he negligent or in breach of his duty in failing to stop the payments or failing to get instructions when Boyles protested and applied for certiorari. Once the letters were sent, the die was cast. Even if sending out the letters was negligent, and I find it was not, no damage was suffered. If Jaffe was ever to get out of prison, restitution had to be paid. Dearing's actions consistently hastened the day of that release.
63 Although the point was never pleaded or argued, the question of ownership of the restitution funds should be discussed. From the outset, Dearing was told by the Jaffes, by Fram, and possibly by others, that the Jaffes could not afford to pay the restitution funds themselves. Dearing and Fram were led to believe that the money had been collected from a group of friends. Jaffe wrote in the same vein to the Chairman of the Parole Commission. Dearing relied on this information and used it in dealing with the courts and with the Parole Commission.
64 Yet this action is brought in names of Mr. and Mrs. Jaffe. At trial Mrs. Jaffe said that her son had said to her that Mr. Jaffe had invested the funds for the children and that she should use them. She described them as "the funds of my children." Mr. Jaffe said that "15 or 20 years ago I had set up investment funds. Those were to be for the kids. Harold said, 'Take it'."
65 None of the Jaffe children was called to testify. Not a scrap of paper was tendered to establish the source of the funds.
66 Fram said that Mrs. Jaffe told him at the time that the money came from friends. In order to send it to Florida and to get extensions of the time, he had to get instructions from Zeldin and Zeldin had to approve the arrangements in Florida. At trial Fram said that then he believed that the money came from Zeldin and friends, but that now he was not so sure.
67 The statement of claim in this action does not assert any interest of the plaintiffs in the restitution funds. Dearing was not made aware of any interest being claimed by them personally until the discoveries in this action.
68 On all of the evidence, I am not prepared to find that the plaintiffs ever had or now have any proprietary interest in the funds put up for the purpose of making restitution.
69 I am unable to determine the precise amount in issue in this regard. The amount raised was $156,865. It was sent to Florida about October 15, 1982. There was evidence that $68,446 was paid to "victims." An additional $28,882 in cheques was written, but whether they were cashed is not clear. An additional $57,445 was at one time available for payment to the "victims." The money earned interest while in Florida and presumably while on deposit in a bank in Toronto. The amount sent back from Florida to Toronto on July 29, 1983, was $47,551.50.
(B) The Bond Money
70 The plaintiffs also claim against Dearing with respect to the bond proceedings. The statement of claim asked for $250,000 damages and $500,000 punitive damages.
71 The statement of claim asserts first that Dearing was negligent in failing to require the State to hold a "Probable Cause Hearing" within 72 hours of the laying of the new fraud charges. As Jaffe was already in custody at the time, this would appear to have no relationship whatever to the eventual fixing of bail at $150,000. In any event, this claim was not pressed as I understood the evidence and the argument.
72 The statement of claim goes on to complain that Dearing failed to advise Jaffe of his right to an evidentiary hearing and to demand such a hearing so as to require the prosecution to establish good faith in laying the new charges.
73 It was apparent from the flow of written and oral instructions from Jaffe to Dearing that the former was well aware of his rights in this regard. Dearing's job and his objective were to get Jaffe out of prison. Dearing was very concerned with Jaffe's mental condition, and in particular the stress he was under. Dearing was therefore prepared to take steps which would hasten Jaffe's release. He was not prepared to take measures such as evidentiary hearings which would take weeks or months. Dearing made his thinking as clear as possible to Jaffe. If he did not like it, Jaffe had Leinster and others available to do his bidding.
74 Dearing's motions to dismiss, based upon lack of jurisdiction and prosecutorial vindictiveness, could be argued from the language of the charges and from the material already before the court. When, eventually, the material was filed by Leinster for evidentiary hearings, it included pages of witnesses. The witnesses were located all over the United States. Dearing's opinion was that it was not in Jaffe's best interests to pursue that course while Jaffe remained in prison. Dearing also testified that it could not have been done, "even if we had had a bank at our disposal."
75 Belz provided a written opinion that "a prudent criminal attorney, acting reasonably, would have proceeded with the evidentiary hearing in question," and that "Subject to court availability, the evidentiary hearing could have been conducted quickly."
76 I am unable to accept that opinion for a number of reasons. In the first place, Dearing made it very clear to Jaffe and to this court that he was not a criminal attorney. He had some experience in that field, but he did not hold himself out as a criminal lawyer or as having any expertise in that field. The only evidence as to his expertise was that it lay in the anti-trust field.
77 In the second place, as was apparent from the list of witnesses produced by Leinster, the hearing could not have been conducted quickly. It would have taken weeks or months.
78 In the third place, Belz was not asked to consider the mental state of Jaffe nor to weigh the merits of a long evidentiary exercise in that context. It must be remembered that Dearing was hired to get Jaffe out, not to conduct evidentiary hearings.
79 Nor was Belz asked to consider the cost of evidentiary hearings. Dearing did and he was not being paid.
80 In all of the circumstances, I cannot find that Dearing was negligent or in breach of his contract in not conducting evidentiary hearings. He exercised his judgment and, in my view, did so correctly. The fact that Jaffe demanded otherwise is not surprising. Clients are frequently wrong, particulary in circumstances such as these.
81 The Jaffes go on in their statement of claim to state that Dearing breached his contract by failing to advise them in a number of respects related to the bail review hearing of September 30, 1983. As I understood the plaintiffs' evidence and argument at trial, none of these matters is being pursued.
82 Leinster represented them at the hearing. They asked Dearing to attend and he did. At the hearing, Jaffe asked Dearing to make a statement and he complied. I did not interpret any of the evidence at trial as complaining of Dearing's attendance or compliance. If the Jaffes suffered in some fashion, there is no reason to believe that that could not have been remedied, then, or later, by action on the part of Leinster or some other attorney.
83 Jaffe says he instructed Dearing to appeal from the order fixing bail at $150,000 and that Dearing declined. Dearing did in fact advise against it. Jaffe appears to have accepted Dearing's advice at the time. If Jaffe had wished to appeal, he could have done so through Leinster or someone else.
84 Jaffe complains that Dearing refused to raise $150,000 by mortgaging Jaffe's apartment holdings. Those holdings were said to be partnership interests in apartments in Toronto. On the evidence, Dearing had no instructions whatever in this regard. The responsibility was Jaffe's and he was either unable to arrange it at all or unable to arrange it in time to secure his release by October 11. In the result, Jaffe's friend, Gabriel Alter, put up $150,000. This was sent to the bank in Tallahassee and the bank issued a letter of credit in favour of the Governor of Florida to secure the appearance of Jaffe at his trial on the new fraud charges. In the event of his non-appearance, the court would order forfeiture. If that occurred, the bank agreed to fund the letter of credit. In the meantime, the $150,000 was to be used to purchase a 30-day deposit certificate. This would earn interest and, as a trustee, Dearing would be responsible for sending the interest to Alter.
85 Alter's money arrived in Florida during the night of October 10-11, 1983, and Dearing was able to effect Jaffe's release immediately.
86 I am unable to find that Dearing breached his duty in any manner in securing that release.
87 Early in 1984, new tax provisions gave rise to the question whether Dearing would be responsible for deducting tax from the interest being earned by the $150,000. Dearing wrote to Jaffe for instructions and directions. None were forthcoming. Dearing then wrote to Zeldin. Zeldin responded and a new trustee was appointed in Dearing's place.
88 Jaffe did not appear at the trial of the new fraud charges. As a result the $150,000 was forfeit on June 12, 1985. In their statement of claim, the Jaffes say that Dearing breached his duty in arranging bail in the manner he did. How he should have arranged it was not specified in the statement of claim, nor was any further light thrown on the subject at trial.
89 In this action as originally brought, Alter was a plaintiff and the bank was a defendant. The action was dismissed as against the bank on December 22, 1988, and Alter discontinued his action as a plaintiff on July 27, 1989.
90 Assuming, without so finding, that Jaffe suffered the loss of $150,000, clearly the cause of the loss was his failure to appear at trial. Jaffe pleaded at length in his statement of claim that his non-appearance was as a result of the suggestions of the Canadian Government, or of the Crown Attorney in Toronto. That Government had launched habeas corpus proceedings in Florida. It is pleaded by Jaffe that if he were to willingly return to Florida, the issues raised in the habeas corpus proceedings would have been rendered moot.
91 I can find no causal connection whatever between the loss of the $150,000 and anything done or not done by Dearing. In the event this matter goes further, however, I should deal with what Jaffe put forward as the reasons. The plaintiffs, in putting in their case, never mentioned the subject at all. Dearing called Axel Kleiboemer, Washington counsel for the Canadian Government. Kleiboemer testified that he had attended a meeting with Jaffe in Ottawa in the fall of 1983. Also in attendance were various officials of the Canadian Government, as well as Baldwin from the University of Florida. Kleiboemer said that it had been anticipated that the question of returning would arise and that he would be the one to respond. He said the question did arise and he told Jaffe that from the perspective of the Canadian Government's habeas corpus proceeding the best thing would be for Jaffe to sit in jail in Florida. Kleiboemer said he had told Jaffe he would have to make his own decision, but the Canadian Government was not in a position to tell him to disobey a lawful order of a Florida court. As I understood Kleiboemer's testimony, his view was that a habeas corpus application was less likely to succeed if there was no corpus.
92 Although Baldwin was at the Ottawa meeting in the fall of 1983, he was not questioned on the advice given to Jaffe about returning to Florida.
93 The plaintiffs called Ms. Jennie Hatfield-Lyon in reply. Now a practising lawyer in Toronto and a lecturer in international law, in the fall of 1983 she was an articling student and an executive of the International Law Association. Ms. Hatfield-Lyon was at the meeting in Ottawa in the fall of 1983. She confirmed what Kleiboemer had testified he and Douglas Rutherford, of the Department of Justice, had said to Jaffe. Her understanding, however, based upon what she said she heard and saw in the way of gestures and facial expressions, was that Jaffe should not return. The reasoning, she said, was that if he returned he could be arrested, he would then be lawfully in custody, and the kidnapping could be ignored.
94 What is most extraordinary about this question is that Jaffe himself never said a word on the subject, either in chief or in reply. In those circumstances, I am not prepared to find that his failure to return was at the instance, request or suggestion of the Canadian Government. Nor is there any evidence to support the pleading that he remained in Ontario to be available for the prosecution here of his kidnappers.
95 In the final analysis, it does not matter whether or not he received any such advice. The decision was his to make and he decided not to return. It was that decision alone which brought about the forfeiture of the $150,000.
96 I find, therefore, that no part of the plaintiffs' claims with respect to the restitution money or the bond money has been substantiated.
97 A comment should be made about Dearing's evidence. The plaintiffs appeared through senior and junior counsel and called five witnesses, including themselves. The defendant appeared in person and called six witnesses, including himself. All of the defence witnesses were from out of the country and in the interests of efficiency were called out of order and in such a manner as to interrupt Dearing's own testimony.
98 Dearing gave his own evidence-in-chief in narrative form. When he finished and I invited counsel for the plaintiffs to cross-examine, counsel immediately, and quite properly, noted that Dearing had said nothing whatever about his own claim. It was agreed that in the interests of time, counsel for the plaintiffs would cross-examine as far as possible, and then Dearing would recommence his own examination-in-chief. The cross-examination continued until the end of the day. At the outset of the following day, two other witnesses were called. When they finished, Dearing began again in chief, very briefly, to introduce a large book of documents, exhibit 15. He was interrupted by two more witnesses and then began in chief again.
99 The book of documents and his evidence made it apparent that he was in effect starting from the beginning again, but this time was putting in a large number of documents, some of which had already been put in by the plaintiffs. Dearing was under the impression that virtually every piece of paper had to go into evidence. I explained to him that this was not required.
100 Counsel for the plaintiffs objected to Dearing starting all over again. Leaving aside the question of the documents, I decided to permit Dearing to "start over again" because it seemed to me that there was no other way I would be able to understand the evidence. Nor did I see how the plaintiffs had been or could be prejudiced in any way. On the contrary, if there were contradictions between Dearing's renditions, they would provide fertile ground for cross-examination.
101 In the result, all of exhibit 15 was admitted for convenience, but Dearing only referred to some of the documents in it. Most of those referred to were not included elsewhere. He proceeded in a chronological manner and by his testimony wove his documents into those received in evidence earlier. In the result, I saw no prejudice to the plaintiffs.
102 Dearing counterclaims in the first of the above-styled actions against Jaffe on the Florida judgment and, in the alternative, against both Mr. and Mrs. Jaffe for his fees and disbursements. Dearing's Florida judgment for fees is against Jaffe only; Mrs. Jaffe was not served.
103 Dearing proved the accuracy of his accounts through his own evidence. The accounts were taken from his own docket entries, those of his partner Smith, and of various law clerks. The dockets had time entries on them. Dearing's and Smith's time was charged at $100 per hour and the clerks at about $25 an hour. These were normal or low for Dearing and Smith at the time, but $100 per hour was the rate for which he had contracted. No issue was taken with the hours or hourly rates or with the accuracy of the accounts. The only issue was with respect to value to the client.
104 Dearing testified that during most of the time he worked for the Jaffes he did no other work. Having regard to the number of aspects of what became known as l'affaire Jaffe, in which Dearing was involved or to which he had to give his attention, that is not surprising. Although I find the accounts accurate as far as they go, they understate the work done. An example is the entry for October 11, 1983. That entry reads as follows:
Various matters including appearance at Circuit Court in Deland; to Avon Park; etc.; various telephone conferences; drafting papers.
105 In fact, on that day, Dearing attended at the bank in Tallahassee at 7:00 a.m. to deal with the bond money which had arrived overnight. He then chartered a plane and flew to Deland. There he attended on the judge to establish the satisfaction of the terms stipulated by the bond and got the judge to sign the papers necessary to secure Jaffe's release. Then he flew to Avon Park to get Jaffe released from prison. Then he flew Jaffe to Tampa airport, gave him $100 spending money and put him on a plane to Toronto.
106 I had a unique opportunity to judge Dearing's abilities as a lawyer. Presented in evidence was a wealth of material prepared by him, pleadings, motions, affidavits, letters and accounts. In evidence as well were letters to him from a variety of persons. In addition, there were transcripts of five proceedings in which he had participated to one degree or another. Finally, I was able for five days to observe his conduct as counsel and as a witness. I have had the opportunity to see some of the best counsel in Canada in action. I would have no hesitation in ranking Dearing amongst them.
107 Dearing called John R. Baronek as an expert witness. No issue was taken with his qualifications. Baronek began the practice of law in Florida in 1965. He did trial and appellate work for ten years. He then spent five years as a trial judge and another five years as an appellate judge. On retiring from the bench, he resumed practice. Most of his time is spent doing counsel work, primarily in complex commercial litigation. He has had extensive experience with the Rules of Practice and with fees. He represented the Florida bar with respect to fees before the Supreme Court of the United States. In his opinion, for the work done, Dearing's fees were unreasonably low. Making the necessary adjustments for time, exchange rates and localities, I arrived at the same conclusion.
108 Dearing's original agreement was with Mrs. Jaffe. The agreement was that she would pay his accounts. Mrs. Jaffe testified, but never suggested that that agreement was changed in any material way. Nor did Mr. Jaffe testify as to any material change. Dearing testified that the only change made was in July 1983. He agreed to wait for his money until Jaffe's release. No change was made as to the liability of Mrs. Jaffe.
109 There were nineteen monthly statements. All but the last four were addressed to Mrs. Jaffe. The change to Mr. Jaffe's name was not explained. The first twelve were paid by her. No reason was put forward why she should not be responsible for all of the accounts.
110 As to Mr. Jaffe, there is no doubt whatever that all of the services rendered were on his behalf and for his benefit. Mrs. Jaffe dealt with Dearing because Jaffe himself was not in a position to do so. To that extent, she may be regarded as his agent. I see no reason why Jaffe should not also be held liable to Dearing for payment of the fees and disbursements. Certainly, during October, November and possibly December 1983, Jaffe represented to Dearing that he would pay his accounts.
111 I have no difficulty in finding that Dearing proved his claim for fees and disbursements as against both Mr. and Mrs. Dearing. He is therefore entitled to judgment in the amount of $62,028.31 against both Mr. and Mrs. Jaffe.
112 In Ontario, as in Florida, Dearing is entitled to interest from the date the cause of action arose: Courts of Justice Act, s.138 (1). While the pre-judgment rates in Ontario have varied from as low as 9% to as high as 15% in recent years, a fair average would be 12%. Dearing is entitled to interest on the accounts from the dates of the accounts in question to date. This would yield a figure of $12,785.58 as at September 25, 1985. The aggregate sum of $74,813.89 has been owing since that date, to the knowledge of the plaintiffs. In the circumstances I see no reason why interest should not run at 12% on that aggregate sum from September 25, 1985, to the present date.
113 Post judgment interest rates also vary in Ontario. In the circumstances I see no reason why I should not exercise the jurisdiction the court has under the Courts of Justice Act, s.140 (1) (b), to provide that post-judgment interest will also run at 12%. I so order.
114 While it may be academic, I should also determine whether Dearing is entitled to succeed on the Florida judgment.
115 Although Ontario, like Florida, is prepared to assume jurisdiction over cases in which personal service has been effected ex juris, in accordance with Ontario Rules, it is not prepared to recognize judgments of foreign courts granted on the same basis. Accordingly, the personal service on Jaffe in Toronto of the Florida claim provides no basis for the recognition by this court of the Florida judgment.
116 There appears to be some doubt as to whether the courts of Ontario will recognize a foreign judgment if the defendant has, as in the present case, made some use of the process of that foreign court to attempt to have the action dismissed as against him: Re McCain Foods Ltd. and Agricultural Publishing Co. Ltd. et al. (1979), 26 O.R. (2d) 758 at 769 (C.A.).
117 As I understand Dearing's position, it was that the Florida judgment should be recognized here because Jaffe had attorned to that jurisdiction. That argument was based upon the language of Jaffe's motion to dismiss Dearing's claim. Specifically, although the notice of motion was entitled "A Motion to Dismiss for Lack of Jurisdiction," the first count that "plaintiff has no privity of contract with the defendant and was not engaged by the defendant" is an attack on the merits of the claim, not on the jurisdiction of the court. In the same manner, Jaffe could have taken the position that the terms were not as pleaded or that all money due had been paid or that he had a counterclaim which exceeded the amount of the claim. All of those defences, like lack of privity, would have gone to the merits of the claim, not to the jurisdiction of the court.
118 I do not accept Dearing's argument on this point. The difficulty, I believe, is caused because privity of contract is, or could have been, in issue at two different levels in the Florida proceedings. Although there was no evidence as to the bases upon which Florida would assume competence to try the case, I expect that as in Ontario (rule 17.02 (f)) the making of a contract within the jurisdiction would be one of those bases. Putting it another way, a Florida court would be prepared to try a case against a foreigner where the claim was based upon a contract said to have been made with that foreigner in Florida. If the making of the contract was the only link with Florida, and if on a preliminary motion it was determined that the contract had not been made in Florida, then the Florida court would decline to proceed with the case upon the ground that it had no jursdiction. Subject to appeals on that point, that would be the end of the matter.
119 Assuming for the purposes of argument that the preliminary motion failed, and that the Florida court held that the contract had been made within Florida, the court would then proceed. When the case got to trial, unless it had been admitted in the meantime, the plaintiff would have to prove that he had made a contract in Florida with Jaffe. If the plaintiff failed to do so, his claim would be dismissed as against Jaffe on its merits.
120 In the first of these cases, the Florida court declined jurisdiction or found it had no jurisdiction because the contract was not made in Florida. In the second, the Florida court dismissed the claim because it found there was no contract.
121 Dearing's argument is that what happened here was of the nature of the second of these, a disposition on the merits. In my view, it was not; it was simply a ruling by the Florida court that it had jurisdiction to hear the case. That decision was not founded on the merits of the claim, but upon Dearing's allegation in his claim that the contract was made in Florida and was breached by Jaffe in Florida.
122 The order of the Florida court said, "For purposes of the motion, these facts are taken as true." That was not a finding on the merits. It was simply a finding, based upon an uncontradicted allegation, that for purposes of jurisdiction to hear the case the Florida Court was qualified.
123 Jaffe could still have defended. Evidence could have been led at the hearing of the claim to establish that Dearing had a contract with Mrs. Jaffe, but not with Mr. Jaffe. Then and only then would the court have been required to deal with the merits.
124 In my view, therefore, Jaffe's attack was on jurisdiction. This is what Jaffe was referring to in his notice of motion, when he said, "There is no subject matter, jurisdiction." (The comma is a typographical error and should not be there.) No finding was made as to the merits of the claim.
125 Although the question is not entirely clear, the predominant view appears to be that an attack on jurisdiction only does not constitute attornment to the foreign court. Accordingly, there is no basis upon which this court can recognize or give effect to the Florida judgment.
126 Dearing's claim on the judgment is dismissed. His claim for fees and disbursements was fully proved. No reason for reducing his claim has been established. It is therefore allowed in full.
127 In summary, the claims of the Jaffes are dismissed. Subject to what is said below, Dearing's claim is allowed in the sum of $74,813.89, together with interest at 12% from September 25, 1985, to the present day, plus interest at 12% from today on the total of $74,813.89 plus interest to today.
128 Interest and costs were not addressed in argument. I may be spoken to on either or both by letter. Dearing appeared through counsel until January 1991, and thereafter in person. His entitlement to costs in those circumstances should also be addressed.