Submitted by BWWR
As promised, I now am able to advise the BU family that yesterday in the costs motion brought against Nelson Barbados Group Limited in the Ontario Superior Court of Justice, it was ordered that Nelson pay its costs by 27 August 2008, failing which the action against the defendants bringing the motion (over 50 of them) will stand discharged.
Those defendants bringing the motion include: The Country of Barbados, Prime Minister Thompson, former Prime Minister Arthur, the Attorney-General, the Chief Justice, Peter Simmons, Kingsland Estates, Classic, Richard Cox – 58 of the 67 defendants.
I have certain sincere hopes here:
1. That if Nelson Barbados Group Limited does not pay the cost by 27 August, that in discharging the action against the 59 Barbados resident and other affiants who chose to be cross-examined in Barbados, the judge will order that the costs be paid by Mr. K. William “Goat” McKenzie PERSONALLY.
2. That the Law Society of Upper Canada will launch an investigation into the conduct of this case by the Goat and disbar him from the practice of law.
3. That the the Law Society of Upper Canada will, once its investigation is complete, file a complaint with the Barbados Bar Association against Alair Shepherd Q.C. and that this will lead to Her Majesty being advised to cancel his commission as Queens Council and the Barbados Bar to disbar or at least suspend him from the practice of law. This, for not having advised the Ontario Superior Court of Justice that Nelson Barbados Group Limited did not have the standing to bring its action, particularly as he was one of the counsel of record in the matter.
That conduct is simply INEXCUSABLE.
I think that Mr. Shepherd ought to go back to his country of origin – Guyana – where his notion of the practice of law will doubtless be highly praised. I understand that certain countries admire lawyers who are constantly in pursuit of ambulances. They interpret this as being “keen”. Most lawyers by their very nature are always going to be looking for the big fees and will, if the client will pay, bring actions of little merit. However, somewhere, someone HAS to draw the line SOMEWHERE.
When this whole action started, while Madge Knox was not being anonymous and hiding behind the name of Nelson Barbados Group Limited – in October 1998 – Madge was represented by Sir Henry Forde and Alair Shepherd, both Q.Cs. On the other side were the late Sir Harold St. John Q.C., Leslie Haynes Q.C., Clyde Turney Q.C. and Mr Vernon Smith (later Q.C.). This array of the best of Barbados’ legal talent was supported by the best of the younger crop. Adrain King (who is becoming a worthy successor to his father – or will as soon as he finds a different lead counsel) supported Sir Henry and Alair, Doria Moore supported Brie and Leslie, Zerina Khan supported Clyde and Lisa Greaves supported Vernon.
By the time the matter came to appeal, there was only ONE casting change. Sir Henry Forde had dropped out. When Henry was asked by a friend of mine WHY he had dropped out, he hemmed and hawed for a moment to give himself time to think and then said that his involvement was not needed by Madge Knox and that she didn’t need the expense of two Queens Council. However, within the legal world in Barbados, Henry’s colleagues – all of them – were intrpreting this otherwise. One of them summed up for me, “De Boulay knows he ain’t got no case. He don’t want Brie and Leslie and Vernon and specially not Clyde, to beat him up again. Of course, I don’t think he got any time for Peter Allard either.” It didn’t stop Alair from collecting $4.2 million which, by Madge Knox’s own admission, were her legal costs in the matter. See the decision of Goodridge J. posted on BU.
However that may be, as the BU family has discussed conflict of interest by lawyers exhaustively (and well) in the Hal Gollup case, Henry may well have reflected that he was leaving himself and his firm (Juris Chambers) open to an action from the estate of Colin Deane and its executor Ian Deane for conflict of interest. Because you see I have just seen some documents that I am told are filed in the public domain as court exhibits that clearly show that from 1983 until 1986 Henry and his chambers represented the estate of Colin Deane and its executor. Henry did right to withdraw from the matter. In fact, he ought never to have been involved at all – he ought to have declared a conflict of interest right from the start or got a waiver in writing from Colin’s estate and Ian.
And since during the time that Henry represented the estate of Colin Deane, Alair Shepherd was a member of Juris Chambers, neither should Alair have been involved then – OR NOW.
Conflict of Interest rules in Barbados are sketchy. However, it is almost certain that if called upon to decide upon conflict of interest matters, the Barbados courts will do as courts in other countries in the same boat have done and adopt the three world-recognized authorities: 1. The Canadian case of R. v Neil, the UK case of Marks and Spencers v Freshfields and the 2003 American Bar Association Model Rules on Conflict of Interest. To do otherwise would negatively impact on Barbados as a front-line country in the foreign investment field. I have just checked and I see that the cases and rules are available on the internet, with the cases being found either through google (or BFP’s favourite, cuil) or you ought to be able to find them on www.worldlii.org . Wordlii.org is free, but for those who subscribe to Westlaw, you will certainly find them there.
This whole thing started 10 years ago and has now, by my estimation, has cost in the region of $20 million. It is true that quite a bit of the expense has been due to the inordinate and inexcusable length of time that the Barbados judiciary has taken to un-reserve and deliver its decisions. Greenidge J. took a year and a half at first instance (at a cost in interest to Kingsland of an estimated $2 million), while Chase A.J. took 9 months to deliver the decision of the Court of Appeal on Madge Knox’s appeal from Greenidge J.’s decision – the period of human gestation and Chase A.J. have a lot in common as anyone who examines the time he took for his decisions generally will see. This delay by the Barbados judiciary in giving decisions and the justice denied thereby as well as the inordinate expense caused, contrast most unfavourably with the Privy Council, that took less than three months and now the Canadian courts, which have, to date, taken less than 6 weeks. If yesterday’s motion had been heard in Barbados, I can assure you that no judgment would yet be forthcoming. Yet the Canadian judge delivered it from the bench and, while I have not seen the written reasons, I (who don’t bet) will take a bet that there are no viable grounds for appeal in it.
The Barbados judges have a lot of arguments to support their sloath. But the truth is that there ARE no excuses. Every lawyer in Barbados is an officer of the Courts. Judges have the right to consult with any of those lawyers not involved in a case. For instance, both Greenidge J. and Chase A.J. had the right to consult (when he was alive) the late Freddie Clarke, the acknowledged leading expert in Barbados on company law. It is not a question of some poor little judge sitting there struggling through mounds of documents and law books. The problem in my view has been laziness and arrogance. Denys did his best to reverse this trend and, for all his faults and nepotism, our present CJ has done an exemplary job in addressing the problem – BUT THERE IS A LONG WAY TO GO STILL.
For instance, you could take the alleged $2 million that Greenidge J’ delay cost Kingsland and hire four top lawyers as judges, instead of the also-rans who are chauffered around in MP-reg cars by police drivers. You could also sweeten the pot (and pay them less money) by making it a condition of employment as a judge that each be knighted or made a dame immediately upon being appointed. And if you all don’t think that Mrs. Lawyer or Mr. Lawyer isn’t going to move Heaven and Earth to become Lady Judge or the husband of Dame Judge, you are WRONG. AND you could go to the magistrates courts every so often (and sit quietly at the back, like I do) and you might find, if you are VERY lucky, a magistrate who shows all the signs of becoming a first class judge. Being a woman, of course, I am prejudice, but I most sincerely hope I live to see the day when Dame Pamela Beckles is inducted Chief Justice of Barbados.
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