Hot on the heels of his suit against Marston Gibson, Vernon Smith QC has sued the BA. It is reported that the BA has responded by filing and serving [โฆ]an acknowledgement under signature of BA president Tariq Khan, with their counsel of choice TBA.
The heat is on Khan, because, first, the BA must file a defense within 15 days as of filing of the acknowledgement; and, second, to involve themselves in this case means that the BA must have it sanctioned and agreed by its membership. Otherwise, Mr Smith may move to have the BA noted in default and ask for summary judgement. Thus the inappropriate advice given by then Chief Justice Simmons to his then-prospective son-in-law and then BA president Wilfred Abrahams back in 2008, not to pursue the matter because it would be expensive, seems to be coming to pass.
If the BA admits fault, then it drops Marston Gibson right into the fire Smith has already got going for the barbecue on which to grill him, appendages and all.
Many of the BU family have weighed in stating that this is merely a case of a lawyer trying to make money (or save money) by avoiding VAT. However, most respectfully, we suggest that no one ought to have to arbitrarily pay VAT in cases where VAT is NOT payable, whether lawyer or not.
BU has also published a great many comments critical of the BA, especially when it comes to taking action on complaints made against attorneys-at-law. BU agrees that the BA is, in this respect, not-fit-for-purpose and is constantly letting the public down. BU wants now to revisit its report of some time ago regarding the fund into which every attorney-at-law must pay annually, the object of which is to, in part, reimburse victims of attorneys-at-law who have cheated them – Compensation Fund: Another Screw-up By the Barbados Bar Association . BU has been able to ascertain that this fund now holds $2.5 million dollars and, despite findings of culpability in regard, but not limited to, Fields, Nicholls, Lynch et al, never has so much as one red cent been paid by the BA out of that fund to victims. Never! Instead the ONLY funds paid out of that account has been to advertise the estates of deceased attorneys-at-law. This is iniquitous and a downright betrayal of public trust and sacrifice of public confidence, which is at an all-time low anyway as far as the justice system of Barbados is concerned.
One of BUโs legal eagles was able to have sight of Smithโs claim and make notes for us. Here is what we are able to report and we stress that as the Claim has been filed, this report is fair comment and reports a document in the public domain:
Smith asserts:
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He was admitted to the Roll of Attorneys-at-Law as Attorney-at-Law number 158 the 28 April 1975 and has practiced since then. He is also on the Roll of Solicitors and Barristers in Dominica and St. Vincent and has practiced there.
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As of the date of his admission as an attorneys-at-law in Barbados he has been a member of the BA and at the beginning of every succeeding year he always obtained his annual practicing certificate in accordance with Section 11 of the Legal Profession Act and paid my annual membership subscription to the BA in accordance with Section 44 of the Legal Profession Act. He therefore asserts that the payment of the membership subscription as imposed by the Legal Profession Act is a statutory requirement and cannot be considered as trading or as a taxable activity.
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When the Value Added Tax Act commenced on the 1st January 1997, after obtaining his practicing certificate he tendered my subscription to the Defendant in form of a cheque, but it was refused by the BA and returned because it did not include VAT.
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By letter dated 29th January 1997 [BU notes this was when Alair โBotsyโ Shepherd was president] he retendered the cheque to the BA giving his legal opinion that the subscription was not VAT chargeable and giving his written undertaking that when a court of competent jurisdiction in Barbados declared that VAT was imposed on BA membership, he would pay the VAT and any interest to have accrued. Nevertheless, his payment was refused. Mr Smith tried again in January 1998, 1999, 2000, 2001, 2002 and 2003, only to have his payments refused by the BA.
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Mr Smith points out that the BA is a statutory (chartered) corporation of all present and future Attorneys-at-Law on the Roll of Attorneys-at-Law of Barbados who constitute the legal persona known as the Barbados Bar Association and as a statutory corporation all its powers, authorities, duties, functions, aims and objects are contained in the enactment. The BA has no power or authority to carry on a business of any sort. The BA subscriptions are for the purpose of carrying out its aims and objects. Therefore, the association is not a business as defined in the VAT Act, nor is it a profession, vocation, trade, manufacturer or undertaking, adventure or concern, in the nature of a trade. The BA does not carry on a โtaxable activityโ as defined by the VAT Act.
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Instead, the BA is a regulating authority to protect the public interest. [BU says: What a joke that is]. The supply of service of the Association, by its constitution, is made solely and only to itself. The BA is not an unincorporated body (e.g. an association, club, society, union and is not an activity that involves the admission for a consideration of persons to any place or premises. It is also not an organization the membership of which is voluntarily.
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In effect, Smith asserts, the BA is a Trade Union as defined by the Trade Union Act. โTrade Union means any combination whether temporary or permanent the principal purposes of which are under its constitution. The negotiation of the relation between workman and employer or between workman and workman or between employees and employers whether such combination would be or would not, if this Act had not been executed have been deemed to have been an unlawful combination by reason of some one or more of its purposes being in restraint of trade.โ
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Smith then references and quotes Section 10 of the VAT Act, โthat the supply of goods or services specified in the Second Schedule is exempt from the tax imposed by the VAT Act on the supply of goods and services.โ He then quotes Paragraph 11 of the Second Schedule: โa supply by a Trade Union within the meaning assigned by the Trade Union Act to a member of the Trade Union or to another Trade Union where the supply is made in the ordinary course of fulfilling the objects and purpose of the Trade Union.โ Smith posits therefore that the supply of service of the BA is an exempt supply and does not attract Value Added Tax.
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Smith continues that he has never withdrawn his undertaking to pay the annual membership subscription. That every year the BA has sent its membership a notice that it will not accept the annual subscription without VAT. Smith has been awaiting the declaration of the Court of competent jurisdiction in Barbados that VAT is payable on the annual subscription or the BAโs notification that it will accept his membership subscription without VAT.
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Smith states on the basis that he has never ceased to hold a practicing certificate and has never withdrawn his written undertaking to pay the annual membership subscription, he is and remains a member of the BA.
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On 14th September 2015 Smith wrote to the president of the BA asking whether he acknowledged that VAT was not on the annual subscription and to inform him accordingly within 14 days. The BA has never replied.
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By its refusal to accept payment of Smith annual subscription and contrary to the provision of Section 44 of the Legal Profession Act, the BA has removed Smithโs name and place of business from the list of members and his place of business from its list published on its website and mailing lists in breach of its statutory duty owed to him under Section 5 (1) and 5 (2) and Rule (6) of the Statutory Rules of the BA.
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The BA has always been aware that Smith has never ceased to practice as an Attorney-at-Law [BU notes: How could they not be, as he was commissioned as a queens counsel in 2005 when, presumably according to the BA, he was no longer entitled to practice]. Therefore, the exclusion of Smithโs name from the BAโs lists of members and its website, means and is intended to mean, on the part of the BA, that he not a registered Attorney on the Roll of Attorneys-at-Law in Barbados, that he has been purporting to be an Attorney-at-Law and has been practicing in Barbados, which is fraudulent and in breach of Section 12 of the Legal Profession Act, which is a criminal offence punishable by imprisonment.
Smith asserts malice on the part of the BA and sets out the particulars:
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The BA without authority repeatedly refused to accept his annual subscription, knowing full well that it was depriving him of his membership and putting him in breach of the Legal Profession Act. [BU notes that this commenced in 1997 under the presidency of Alair โBotsyโ Shepherd when โBotsyโ was on the other and losing side in the Kingsland Estates matter, a spectacular loss for โBotsyโ and his paymaster Mr Allard].
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The BA requested that the Judges of the Supreme Court of Barbados disbar Smith without due process even though the BA knew that the Smith held a practicing certificate for 2015.
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Smith references the Minutes of the annual general meeting of the BA held on the 1st day of November 2008 (published by BU previously) on the consultation between the Registrar, the then President of the Bar Association (Senator Wilfred Abrahams) and Chief Justice David Simmons and a resolution passed by the BA that the Bar would take no further action in the matter of non-payment of subscriptions by members, because of the expense. In spite of that resolution and with no further resolution by the Association to re-raise the issue, the BA chose to pursue the matter on the 14th April 2015 by requesting the Chief Justice (Gibson) to refuse Smith audience in the Courts of Barbados [BU notes: For which Smith is now suing Gibson].
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On 7th October 2016 the BA issued a memorandum to all its members stating that the annual subscription for 2016 must be paid with VAT.
Smith therefore claims:
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A declaration that the BA is not a person who carries on a taxable activity as defined in the Value Added Tax Act, 1996-15.
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A declaration that the BA is a Trade Union as defined in the Trade Union Act and is accordingly a supplier of an exempt supply on which VAT is not imposed under the Value Added Tax Act.
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A declaration that VAT does not form part of the annual subscription of a member of the BA and accordingly cannot be claimed by the BA as part of the subscription.
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A declaration that the BA has no competence or power to refuse to accept the annual subscription when tendered by a member of the BA.
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A declaration that the receipt of the annual subscription of members is not a taxable activity.
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A declaration that the BA has no authority to impose any measure or sanction against any Attorney-at-Law who has refused to pay VAT.
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Damages for defamation. [BU notes: This is a real kicker, as if the BA is unsuccessful, it is looking at seriously high damages, which would certainly explain the expense that David Simmons advised the BA it would likely incur].
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Damages for deprivation of the Claimantโs rights, privileges, benefits and entitlements of membership. [BU notes: Another massive possible hit in the BAโs pocket].
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Exemplary Damages. [Likely the largest award the BA may have to pay out].
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An order that the Defendant forthwith include and publish the name of the Claimant and place of his business on its website and on its mailing lists.
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An order that the Defendant accept the Claimantโs subscription without VAT.
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Further or other relief as the Honourable Court deems fit.
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Costs.
BU now awaits sight of the defence from the BAโs TBA counsel and will certainly report on it. HOWEVER, it may be of some consolation to know that the BA cannot pay any damages or costs to Smith out of the fund reserved for payment to members of the general public who have suffered loss as the result of misconduct of attorneys โ but not much as nothing had been paid out of that fund EVER! BU expresses the hope that when this action comes on for hearing, there is some way that the lack of any use of this fund can be brought before the courts by Mr Smith QC.
BU is able to report that Mr Smith is not the only counsel to be considering action against the BA and BU will faithfully report it if and when such further actions are filed.
Marston, you are going, whether you like it or not. Why not show a little dignity and class and leave quietly? Oh, but of course, you are waiting for a golden handshake for completely failing to do your job, arenโt you? Feel free to write us by e-mail as you did Sanka Price and enlighten us. We undertake to publish it without expurgations. Come on, engage us and the people of the country of which you are chief justice.
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