Barbados Today has carried a report – Court Twist – of a recent court proceedings in the matter of Vernon Olivier Smith v the Attorney General and Sir Marston Gibson. This report includes the comments of Sir Henry Forde QC. The spectre of secret court hearings on matters of national interest as attempted by Marston Gibson are, frankly, terrifying.
See Press Release issued by Vernon Smith
BU has been able to obtain a copy of the proceedings filed by Mr Smith QC and, in the national interest we are pleased to publish:-
I VERNON OLIVIER SMITH of “Veronda” Brownes Gap in the parish of Christ Church and Island of Barbados, Queens Counsel MAKE OATH AND SAY as follows:
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I was born on the 25th day of June 1930 and I qualified as a Solicitor on the 24th day of December 1974 having obtained the Final Part II Certificate of the Law Society of England.
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I was admitted to the Registrar’s Roll of Attorneys-at-Law in Barbados on the 28th day of April 1975 and have been practicing as such Attorney-at-Law in Barbados since that date.
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I have also been admitted to the Roll of Solicitors and Barristers in Dominica and St. Vincent and the Grenadines where I have also practiced.
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From the date of my admission to the Roll of Attorneys-at-Law in Barbados, I have been a member of the Barbados Bar Association (“The Association”) and have always obtained my practicing certificate in accordance with the provisions of Section 12 of the Legal Professions Act Cap. 370A of the Laws of Barbados.
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Up to 1996 I have paid my annual subscriptions to the Barbados Bar Association.
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When the Value Added Tax Act Cap. 87 of the Laws of Barbados was introduced in Barbados 1997 I tendered my Bar subscription by way of cheque but it was refused and returned to me on the ground that it did not include VAT. Under cover of letter dated the 29th January 1997 I again tendered the cheque to the Bar Association stating my legal opinion that the subscription was not subject to VAT and undertook that if and when a Court of competent jurisdiction declared that VAT was payable in respect of the Association’s subscriptions, I would pay such VAT and any interests that had accrued thereon. The payment was refused. I attach a copy of the said letter as exhibit “VOS 1”.
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I immediately returned the cheque to the Association under cover of letter dated 30th January 1997 (a copy of which is attached hereto as Exhibit “VOS 2”) giving the Bar my written undertaking that when a Court of competent jurisdiction in Barbados declared that the Bar’s annual subscription was subject to VAT, I would pay such VAT together with the interest that would have accrued thereon.
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The payment was refused and the cheque was returned to me.
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I tendered my annual subscription in the years 1998, 1999, 2000, 2001, 2002 and 2003 with the same result. I attach hereto the letters of tender with the cheques attached as a bundle marked exhibit “VOS 3 a-f”.
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Accordingly I have been awaiting from the Association the declaration of the Court of competent jurisdiction in Barbados that VAT is payable on the annual subscription or the notification of the Bar that it would accept my subscription free of VAT. I further state that VAT does not form part of the Bar’s subscription but a tax imposed by the Government of Barbados in respect of such bodies that carry on business in respect of the sales of goods and services which are not offered for sale by the Bar Association which comes within the definition of a trade union which is an exempt person under the Act. In fact VAT is enforceable only by the Revenue Authority of Government if not paid as required by the VAT Act. I am still awaiting the requested declaration of the Court and/or the advice of the Association of its willingness to accept my annual subscription free of VAT.
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In support of my contention that VAT was not chargeable in respect of the subscription of the Bar Association, I submitted to the Association the authoritative case on the matter namely: “The Institute of Chartered Accountants of England and Wales v. Customs and Excise Commissioners 2 ALL ER (1999) 449 HL”.
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In the year 2005 I was admitted to the inner bar.
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The approved Minutes of the annual general meeting of the Bar Association held on the 1st day of November 2008 disclosed that discussions were held between the Registrar, the then President of the Bar Association and the Chief Justice Sir David Simmons with respect to the non-payment of annual subscriptions on the part of some members of the Association and a resolution was passed at the meeting to the effect that the Bar would take no further action in the matter of non-payment of subscriptions by members because of the expense that would be involved in pursuing the matter. I attach hereto a copy of the relevant record of the Minutes of the Meeting as exhibit “VOS 4”.
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As result of the Bar’s refusal to accept my annual subscriptions without VAT, I have not considered myself a member of the Association and the Association has never considered or treated me as a member by refusing to list my name on its website as an Attorney-at-Law on the Roll of Attorneys-at-law in Barbados, by omitting my name from its annual published lists of Attorneys-at-Law to whom a practicing certificate has been issued by the Registrar of the Supreme Court and by refusing to email to me the Supreme Court list of cases emailed to it by the Registrar for circulation to all Attorneys-at-Law to whom a practicing certificate has been issued and all other matters of the Bar communications circulated to its members. I further state in so doing the Bar acknowledged that my consent and its own consent were required for membership of the Association and accordingly I have never considered it necessary to raise the constitutionality of Sections 44 and 45 of the Legal Profession Act Cap. 370A of the Laws of Barbados as a ground of not being a member of the Bar.
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By letter dated 16th June 2014, Mr. Barry Gale, Q.C. the then President of the Bar Association wrote the defendant as Chief Justice identifying the Attorneys-at-Law who had not paid their subscriptions to the Bar and upon receipt of the same the Defendant by letter dated 19th June 2014 (a copy of which is attached hereto as “VOS 5”) replied to Barry Gale that he would instruct the Acting Registrar, Mrs. Laurie Ann Smith-Bovell to inform the Attorneys-at-law listed in Mr. Gale’s letter that their practicing certificate were not valid in the absence of the Bar Association subscriptions and to direct them to return their practicing certificates to her as soon as possible. I have never had notice nor sight of First Defendant’s letter dated 24th June 2014.
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I am informed by Mrs. Laurie Ann Smith–Bovell and verily believe that on receipt of a letter sent to her by the First Defendant in accordance with his letter dated 24th June 2014 she requested the First Defendant to submit to her the law, statutory or otherwise that gave her or him the authority to take such action. I am further informed and advised by Mrs. Laurie Ann Smith-Bovell and verily believe that the Defendant has never submitted to her the information requested.
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Since the 1st day of January 1997 I have appeared before all the Judges of the Supreme Court of Barbados including the First Defendant, the Disciplinary Committee, the Privy Council and Caribbean Court of Justice representing parties in the matters before the Courts and I have never been refused audience because I have always held a practicing certificate issued by the Registrar of the Supreme Court of Barbados.
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On 16th February 2015 when the Supreme Court Action No. 99 of 2015 entitled Clico International Life Insurance Limited v. Leroy Parris, Branlee Consulting Services Inc. and the Estate of David Thompson in which I was retained to represent the Second Defendant was set down for hearing before the Honourable Mr. Justice Chandler. Before entering the Court for the hearing, Mr. Barry Gale, Q.C. spoke to Mr. Hal Gollop, Q.C., Mr. Michael Yearwood and myself informing us that he was going to raise the issue of the non-payment of the annual subscription with the Judge and will ask him that we be not given audience because we did not have practicing certificates. I thanked Mr. Gale for letting me know and for the professional courtesy be extended to me in giving me notice before hand, but stated that I had never refused to pay the Bar subscription.
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Mr. Gale was present in the Court when the hearing began before The Honourable Mr. Justice Chandler but he never raised the issue with the Judge.
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On Tuesday the 14th day of April 2015 Mr. Gale did not inform Mr. Gollop, Mr. Yearwood nor myself that he would raise the issue of non-payment before the Chief Justice who was presiding at the hearing on that date. I appeared before the First Defendant presiding in the High Court on the hearing of the said Supreme Court Action No. 99 of 2015. After appearances were entered by Counsel appearing for the parties in the action, Mr. Barry Gale, Q.C. who had no locus standi in the proceedings in the Court, and is not the President of the Barbados Bar Association, sought the first Defendant’s permission which was granted to draw the Court’s attention to the fact that the Counsel namely: the Claimant Vernon O. Smith, Q.C., Mr. Hal Gollop, Q.C. appearing in association with Mr. Michael Yearwood appearing as Counsel for the First Defendant had not paid their subscription to the Bar in accordance with the Legal Profession Act Cap. 365 of the Laws of Barbados and had no right of audience before any Court in Barbados as they were not in possession of a valid practicing certificate. Such a statement was and is false; accordingly Mr. Gale knowingly and maliciously misled the Court in breach of Section 82 of the Legal Profession Code of Ethics.
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In the premises, it was evident to me that the First Defendant and Mr. Barry Gale, Q.C. had agreed and arranged to have Mr. Gale appear before the Court to raise the issue of non-payment of subscriptions on the part of Counsel. Furthermore, I state that the Bar Association has discriminated against me. I am informed by my colleague Mr. Michael Springer, Q.C. that on the 16th day of April 2015 the Bar Association accepted his annual subscription without VAT and fraudulently issued to him its receipt with the VAT Registration Number endorsed thereon without VAT having been received or claimed. I attach hereto the said receipt of the Association marked Exhibit “VOS 6”.
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I have just received a letter dated 11th July 2014 sent to Mr. Sanka Price, Reporter of the Nation Newspaper from the First Defendant which states as follows: “I would be grateful if you would publish the contents of this email unedited so that my response will be read by the public of Barbados in the same way as it was able to read the article published in yesterday’s Sunday Sun. It has been my policy, in the spirit of Alternate Dispute Resolution (“ADR”), to avoid disputes if there is another way to resolve them by private meetings. But there are times when that policy must yield to a public explication of positions I have taken. As we “speak”, I am presently in Port-of-Spain, Trinidad attending a Caribbean Heads of Judiciary meeting about locating money for justice improvement given the present economic crisis. However, I received calls at my hotel regarding the article and felt that an urgent response was necessary. At the outset, let me express my deep disappointment at the article. The newly elected Bar President, Mr. Tariq Khan, and the Bar Council were voted into office on 30 June 2014. A week later, Mr. Khan requested a meeting with me and I readily agreed to have the meeting on 23 July 2014. In addition, I indicated to him that we would schedule a meeting of the Judicial Council for early September 2014 since I neither wished to meet in the August vacation nor to meet at a time when judges were of on vacation leave in July. I am, therefore, not sure what the publication of the article accomplishes when we have not yet met and the date is but 10 days away. But since we are in the public arena, let me say now what my wish list is for that meeting on 23 July. First, I want to find out what is the Bar’s plan to tackle the growing instances of attorney dishonesty. The twitter in Barbados is that there are several attorneys who are in the same position as the attorney whose case is presently pending before the Court of Appeal. The problem is that the Disciplinary committee of the Bar, under the indefatigable leadership of Mrs. Marguerite Woodstock-Riley QC, has been unable to get its head above the staggering backlog under which it labours. Yes, the Disciplinary Committee has a huge backlog of complaints against lawyers! Doubtless, several of the those complaints will be found meritless, but several require investigation. This is an issue which the Bar has not dealt with, at least not publicly, and the Disciplinary Committee needs help. Too many Barbadians view attorneys as belonging to some sort of secret organisation which protects itself even when its members commit defalcations against clients accounts. Nothing could be further from the truth. The Disciplinary Committee meets in the Supreme Court building every Tuesday and works until late in the evening. The suggestion which I plan to make on an interim basis is for volunteer lawyers to assist the Committee with its work but a long term solution is desperately needed if the Bar is not to lose out in the crisis of trust which presently exists. The Disciplinary Rules require that complainants complete an affidavit but we may need to consider the possibility of permitting “whistleblower” complaints by lawyers against lawyers on a confidential basis. Even I have heard of lawyers who owe hundreds of thousands of dollars and who are being permitted to repay the money piecemeal, without any formal complaint being filed with the Committee. This is intolerable and cannot be permitted to continue.
Secondly, the issue has arisen where certain attorneys have refused to pay their annual Bar fees despite the clear language of the Legal Profession Act. I have recently sent a letter out to the Judges and Magistrates directing that such lawyers have no right of audience in the Courts. To their credit, the two Presidents of the Bar with whom I have worked have raised this as a major issue but until recently with the suggestion of Mr. Barry Gale QC, there has been no discussion of the appropriate remedy. This is another matter which I wish to have discussed at our 23 July meeting.
As to the other issues raised by the Bar, I say only two things. With regard to security, I have toiled over this one. I am aware that the lawyers are reluctant to be searched before entering the Supreme Court building but an incident occurred two years ago where an attorney walked into the Supreme Court building with knives. Now truth be told, the knives were to be used as evidence in a case, but the fact that he never voluntarily put the knives through the magnetometer, or even alerted the custodial staff remains a huge problem for us. Security is a major matter of concern and I can tell you that in some metropolitan countries, all persons entering court buildings, including lawyers, are subject to search. As to the parking, it continues to be a bugbear. I note only that when we occupied the old building at Coleridge Street, there was literally no parking, and we managed.
There are some other minor issues with which I will not trouble you or the public at this point. But let me serve notice that with the Court’s new website, the launch of which is impending, the Courts will be a lot less willing to be a “shrinking violet.” We will have a page where our positions will be made clear to the public. Until then, we will use this medium to set straight any records liable to be misunderstood.
I thank you for your kind consideration.
I remain,
Yours very truly,
Marston C.D. Gibson,
Chief Justice of Barbados”
This letter clearly establishes that the First Defendant conspired with persons known and unknown to disbar me without legal authority and/or without due process in breach of my legal, fundamental, constitutional and human rights guaranteed to me under Section 16, 18 and 21 of the Constitution of Barbados. A copy of this letter is attached hereto and marked as Exhibit “VOS 7”. I shall seek leave of the Honourable Court at the hearing hereof to refer to the letter for its full contents, context, significance and import -
I immediately pointed out to the First Defendant that I was in fact the holder of a valid practicing certificate dated 23rd February 2015 and issued to me by the Registrar of the Supreme Court which remained valid until 31st January 2016; that the hearing of Mr. Gale’s intervention was irregular and improper and that his statement to the Court was false in the light of the fact that I have never refused to pay the annual subscription to the Bar Association. I also indicated that the only authority that could remove my practicing certificate was the Court of Appeal on the report and recommendation of the Disciplinary Committee of the Bar Association for a breach of the code of ethics of the legal profession.
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Nevertheless the First Defendant then summarily and without further enquiry or proper evidence and due process informed me that he will not allow me audience before him in the Court and thereby disbarring me. I accordingly asked him whether his decision was an order or declaration and he answered “No” As a result I took my leave of the Court.
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As a result of my disbarment from representing my client at the hearing of the matter I was deprived of my retainer fee which was agreed between me and my client in the sum of $120,000.00 because the First defendant proceeded to hear the matter without giving my client the opportunity to retain senior counsel in my place or to allow my client to be represented by Queen’s Counsel of his choice.
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Subsequently, by letter dated 16th April 2015 I wrote the first defendant a letter complaining that my disbarment by him without due process constituted a serious breach of my constitutional, fundamental and human rights which have been guaranteed to me by Sections 16, 18 and 21 of the Barbados Constitution. I attach hereto a copy of the said letter as exhibit “VOS 8”.
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I have not received a reply from the first defendant to my letter.
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Subsequently, by letter dated 22nd April 2015 I again wrote the First Defendant requesting that he supply me with the reason for his decision within 7 days. Up to the date hereof I received no response from the first defendant.
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I have never refused to pay the annual Bar subscription and will remain willing and ready to pay the subscription but without VAT.
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I make this affidavit in support of my claim filed herein for the following relief:
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A Declaration that in the events which have happened, a decision and/or administrative act and/or advice and/or recommendation of the First Defendant to refuse the Claimant audience in the matter suit 99/2015: Clico International Life Insurance Ltd. and Leroy Parris, Branlee Consulting Services Inc., The Estate of David Thompson and by extension the right to represent his client Branlee Consulting Services Inc. in the said matter was:
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an administrative act or omission that was unauthorized and contrary to law;
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an excess of jurisdiction;
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a failure to satisfy or observe conditions or procedures required by law;
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a breach of the principles of natural justice;
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an irregular or unreasonable or improper exercise of discretion;
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an abuse of power;
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an exercise of bad faith which was precipitated by irrelevant considerations;
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an example of acting on representations of an unauthorized person;
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a conflict with an Act of Parliament;
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an error of law;
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based on an absence of evidence on which a finding or assumption of fact could reasonably be based,
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a breach of omission of his duty to perform a duty; and
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a denial of my civil and constitutional rights.
B) An order of certiorari to quash the decision and/or administrative act/or advice and/or recommendation of the First Defendant to deny the Claimant audience before the Courts of Barbados thereby disbarring him as an attorney of law qualified to practice in the Courts of Barbados
C) Injunction to restrain the First Defendant by himself or otherwise from any further action which may lead to a denial of the Claimant’s right of audience before the Courts of Barbados and any further act of disbarment.
D) Damages for loss of fees during the Claimants’ period of disbarment
E) Costs
F) Further or other relief
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