The Legal Profession Act Cap 370A of the Laws of Barbados
| Jurisdiction | Barbados |
| Judge | Chandler JA,Goodridge JA,Narine JA |
| Judgment Date | 06 October 2021 |
| Neutral Citation | BB 2021 CA 3 |
| Docket Number | COMPLAINT NO. 108 OF 2008 |
| Court | Court of Appeal (Barbados) |
| Year | 2021 |
The Hon. Kaye C. Goodridge and Rajendra Narine, Justices of Appeal and the Hon. William J. Chandler, Justice of Appeal (Acting).
COMPLAINT NO. 108 OF 2008
IN THE SUPREME COURT OF BARBADOS
COURT OF APPEAL
CIVIL APPEAL
Mr. B. L. V. Gale QC, Mrs. Laura Harvey-Reade and Mr. Ivan Alert with him for the Virtual Complainants.
Mr. Rita Evans on behalf of the Disciplinary Committee.
Sir Elliott Mottley QC of Elliott D. Mottley & Co. Attorneys-at-Law, Mr. Michael Carrington QC, Mr. Stuart Mottley and Ms. Kimberly Moe with him, for the respondent.
Mr. Patterson Cheltenham QC, Mrs. Rosalind Smith-Millar with him, for the Barbados Bar Association.
Ms. Donna Brathwaite QC, Mr. Roger Barker and Ms. Kim Ramsay-Moore with her, amici curiae on behalf of the Attorney-General of Barbados.
Chandler JA (AG.)
This matter involves an application on behalf of the Disciplinary Committee of the Barbados Bar Association (the Disciplinary Committee/the Committee) to this Court for an order that the name of Philip Vernon Nicholls, Attorney-at-Law (the respondent) be removed from the roll of Attorneys-at-Law practicing in this Island under section 21 (2) (a) of the Legal Profession Act Cap 370A ( Cap 370A).
For the purposes of this decision, the salient facts may be kept within a narrow compass. They are as follows:
In 2007, the respondent was retained by Mr. John Patrick Connor, and his wife (the vendors), in the sale of property situate at Lodge Hill, St. Michael at the price of $950,000.00. The sale was completed and the purchase price duly paid. However, it is alleged that the respondent failed to pay over the net balance of purchase price to the vendors. The vendors subsequently died and Elma Kathleen Inniss and Joyce Patricia Bowen, executrices of the estate of John Partick Connor, deceased (the virtual complainants) filed a complaint with the Disciplinary Committee which was chaired by Ms. Cicely Chase QC, now Chase J. The complaint was heard on 23 March 2010, 13 July 2010 and 20 July 2010. In issue, was whether the vendors retained the respondent as their Attorney-at-Law or the firm of Cottle Catford & Company (Cottle Catford) a firm of Attorneys-at-Law of which the respondent was a former partner.
The Report of the Disciplinary Committee (the Report) dated 16 July 2019 was forwarded to the Chief Justice by its Chairman and is at the heart of this matter. It found the allegations of misconduct proved against the respondent and recommended that the respondent be disciplined for breaches of the Legal Profession Code of Ethics, 1988 (the Code of Ethics). Those recommendations are now reproduced in full:
“Recommendation
1. Mr. Philip Vernon Nicholls be disciplined for breaches of Rules 70, 74 and 87 and 88 of the Code of Ethics.
2. Mr. Philip Vernon Nicholls should be ordered to repay the funds due to the Complainants with interest there [sic] at the rate of 6% per annum.
3. That Mr. Philip Vernon pay the costs of the Complainants in this matter.
4. That Mr. Philip Vernon Nicholls be disbarred from the Barbados Bar Association and removed from the Rolls of Attorneys-at-Law for reckless and unsatisfactory and unprofessional misconduct as a result of the several breaches aforementioned and regarding the use of the Complainants' funds without their permission and to their extreme financial detriment and disadvantage and to that of their then principals, now deceased,
5. That in accordance with the law, the Report be submitted to the Court of Appeal for its consideration.”
The Report, on its face, recorded that the persons present were Mrs. Cicely P. Chase Q.C. Chairman, Mr. J. H. Andrew Brewster, Deputy Chairman and Ms. Rita Evans (Ms. Evans) as a member of the Committee. Excused was Mr. Malcolm Deane, member. Ms. Avril Sealy, secretary to the Disciplinary Committee, was recorded as being in attendance. The dates of hearing recorded on the Report are Tuesday 23 March 2010, Tuesday 13 July, 2010 and Tuesday 20 July, 2010.
It is important to note that Ms. Evans informed this court on 20 February 2020, that she was not present when the Report was compiled.
Sir Elliott Mottley QC (Sir Elliott), counsel for the respondent, queried in limine the validity of the Report, namely whether the Committee which made the Report was quorate and consequently whether the matter was properly before this court.
In his written submissions filed 6 March 2020, Sir Elliott raised a second issue as to what documentation should this court consider in coming to a decision with respect to the Report.
These issues, raised in limine, have spawned the submissions on which we are asked to rule.
The following affidavits were filed with the permission of the Court consequent upon these submissions:
On 3 March 2020, Mr. Alert filed his affidavit (the Alert affidavit) to show that “…the Disciplinary Committee which discharged the investigatory duty of hearing the complaint in this matter was at all times quorate.” At paragraph 2 of the said affidavit he deposes that the affidavit is made from matters within his own knowledge and from the records provided from the Disciplinary Committee and from the minutes of the hearings held on 23 March 2010, 13 July 2010 and 20 July 2010. At paragraph 4 he deposed that the Committee that heard the complaint comprised Miss Cicely Chase, QC, Chairman, Mr. Andrew Brewster, Deputy Chairman, Miss Rita Evans, member, Miss Shelley Stuart, member, Mr. Samuel Legay, member and Mr. Malcolm Deane, Member. At paragraph 5 he deposes that Mr. Deane recused himself from the matter. Mrs. Avril Sealy performed the duties of Secretary to that Committee.
At paragraph 6 he deposes that the Committee sat and heard the complaint on the three occasions mentioned in paragraph [4] and that, on each occasion, he together with all five remaining members of the Committee were present.
Paragraph 7 recounts his efforts to obtain the Report and record of proceedings and the receipt of part of the official record less the Report on 20 February 2010 and his receipt of the Report via e-mail on 21 February 2020. In paragraph 9, Mr. Alert deposes that he swears the affidavit to “show that the Disciplinary Committee which discharged the investigatory duty of hearing the complaint in this matter was at all times quorate (emphasis added).”
I now reproduce the salient parts of the affidavit of Ms. Rita Evans, Attorney-at-Law filed 13 March 2020 (the Evans affidavit) for its full purport and effect:
“1. ….
2. In so far as the facts and matters deposed herein are within my own knowledge, they are true. In so far as they are not within my knowledge, they are true to the best of my information being derived from my own records as a member of the Disciplinary Committee as well as the Minutes Book which is maintained by the Secretary of the Disciplinary Committee.
3. I state that despite diligent efforts, the whereabouts of the original file as it relates to this matter are unknown. As such, I am unable to make reference to any of the details contained therein.
4. I recall that during my tenure as a member of the Disciplinary Committee (2009 – 2011), a complaint (Complaint No. 108 of 2008) was received by the Committee filed by the Complainants against the Respondent.
5. As far as I can recall, the other members who formed the Committee were Miss Cicely P. Chase Q.C., Attorney-at-Law (as she then was), who served as Chairperson; Mr. G. H. Andrew Brewster, who served as Deputy Chairperson; Mr. Malcolm Deane; Mr. Jomo Hope; Ms. Shelley Stuart and Mr. Samuel Legay.
6. From my records, the matter came on for hearing on the 23rd March 2010, 13th July 2010 and 20th July 2010, with the 20th July 2010 being the last day that evidence was taken.
7. I have had sight of a report dated the 16th July 2019 which was submitted to this Honourable Court by the then Chairman and wish to advise that as far as I am aware, there was no meeting held on the 16th July 2019 with the persons who are named on the face of the report. As such, I am unable to shed any light with respect to the compilation of the said report.” (emphasis added)
Sir Elliott submitted that the Report stated that three members were present and therefore the Disciplinary Committee's decision contravened the Fourth Schedule of Cap 370A which required a quorum of four Attorneys-at-Law. Sir Elliott further submitted that, since the Report did not establish a quorum, any decision thereon was invalid. He relied upon Shackleton on The Law and Practice of Meetings 9 th Edition, 23 October 1997, Sweet and Maxwell, Frank Shackleton and Ian Sherman, and D'Arcy v The Tamar, Kit Hill, and Callington Rly Co (1867) L. R. 2 Exch. 158.
Sir Elliott also submitted that since the Committee was not quorate there was no valid document before this Court upon which any decisions or pronouncements could be made.
Mr. B. L. V. Gale QC, counsel for the virtual complainants, submitted that, whilst the face page of the Report only listed three members as being present, there was no evidence filed before this court on behalf of Mr. Nicholls upon which the court could rely to come to a conclusion that a quorum was not present relative to the decision of the Disciplinary Committee.
He submitted further that Mr. Nicholls appears to be requesting this court to draw an inference, in the absence of evidence, that the decision of the Disciplinary Committee was...
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