by Roy R. Morris

vernonsmithandcecilmccarthyProminent attorney at law, Vernon Smith QC, has accused some of his colleagues of deliberately misrepresenting the facts on the non-payment of Barbados Bar Association fees by some members of the profession.

After pointing out that the association had repeatedly refused his cheque for a number of years, Smith said he was satisfied that persons within the profession were motivated by an agenda to embarrass colleague Hall Gollop, who had been recommended by him and fellow veteran attorney Henry Forde QC, for elevation to the status of Queen’s Council.

Smith’s name has been included on a list of attorneys who reportedly had refused to pay Bar fees for a number of years, with the suggestion that they should not be allowed to practise law while their subscriptions remained unpaid.

However, Smith pointed to a long-standing dispute he has had with the Bar Association over his “conclusion” that the law did not require attorneys to pay VAT on subscription fees. He pointed to a January 29, 1997 letter to the secretary of the Bar Association, under the heading “Barbados Bar Association subscription for the year 1997 for Vernon O. Smith and Laurie-Ann Smith of Smith & Smith”, which read:

“We forward herewith our crossed cheque in the total sum of $500 being the annual subscription for 1997 to the Barbados Bar Association for the following attorneys-at-law in the respective sums of (1) Vernon O. Smith $400, (2) Laurie-Ann Smith $100…

“Kindly forward to us our official receipt for same in due course.”

The letter and cheque were handed back to the messenger who delivered it, he reported.

The following day this was followed by a letter to then president of the association, Alair Shepherd, which read in part:

“We write to inform you that yesterday … we delivered to the … Association’s office our … annual subscription…

“The office secretary … opened our letter, read it and gave it back to our messenger stating that she was instructed … not to accept our subscriptions on the grounds that they did not include VAT.

“We have consulted and discussed with R. Anthony Audain, the secretary of the association the VAT Act and we are satisfied that on a proper construction and interpretation of the act, VAT is not chargeable on our annual subscription to the association. For this reason VAT is not included in our subscription.

“We are nevertheless at a loss to understand on what authority or rule of law the association can refuse to accept our subscription properly and validly tenders, particularly since such refusal not only denies our fundamental right entrenched under the court of Barbados to work and practise our profession, but also puts us in breach of the law.

“Accordingly, we are again tendering payment of our annual subscription for the year 1997 and ask that you acknowledge receipt of same. If and when it is established by the general body of the association, or a court of law in Barbados that our subscriptions are chargeable to VAT, we shall without hesitation make payment of VAT to the association.”

In 2009 when Smith submitted his $400 subscription fee to the association, he received the following response from then treasurer Carl Crichlow:

“I refer to your letter dated January 25, 1999 and advise that until the courts of Barbados find as a matter of law that no VAT is payable on Bar fees, that we are unable to accept your tendered cheque in the sum of $400.

“Your said cheque is returned herewith.”

Barbados TODAY was shown documents that revealed the same sequence was repeated in 2000, 2001, 2002 and 2003.

According to the minutes of the annual general meeting of the Bar Association on November 1, 2008, chaired by then president Wilfred Abrahams, attorney at law Paula Lett asked whether a meeting had been held with the registrar of the Supreme Court to discuss the issue of colleagues practising privately in Barbados, having not paid fees.

“The chairman, in response confirmed that a meeting was held with the registrar and the Chief Justice and after a number of meetings and a number of letters, it was decided that it was not worth the effort to pursue this matter and the litigation to do so would be too expensive. This matter will no longer be pursued,” the document said.

Stressing that he was considering taking legal action against the persons who published his name of a list of attorneys who had supposedly “refused to pay fees when the records showed clearly that every time I attempted to pay the Bar Association refused to accept my cheque”, Smith said he remained convinced that the law did not require such a payment.

He noted that the Barbados VAT act was modelled after the English one, and its commissioner had ruled in a case relating to chartered accountants there that the imposition did not apply to professional subscription fees.

The Institute of Chartered Accountants there appealed, he said, and the High Court, upheld the judgement of the VAT commissioner, setting out reason.

“They again appealed and it went to the Court of Appeals, which upheld the high court ruling and gave additional reasons,” Smith explained. “They appealed again and it went to the House of Lords, which also upheld the decision and added more reasons.

“I sent all these cases to our Bar Association, contending that they are precedents for us and up to now they have done nothing about it.”

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