Queen’s Counsel to challenge ruling made by Sir Marston
In an unprecedented move in Barbadian legal and judicial history, a senior lawyer is preparing to take legal action against the Chief of Justice of Barbados, accusing the Chief Justice of effectively disbarring him without due process by preventing him from representing a client in a case that came before the court last week.
An upset Vernon Smith, Q.C. told Barbados TODAY he was suing Sir Marston Gibson and seeking damages for refusing to give him a hearing in the case where he is representing Branlee Consulting Inc, a company owned by former CLICO chairman Leroy Parris.
This is the same case in which Parris’ lawyer, Hal Gollop, Q.C. and Smith are asking the High Court to set aside an earlier court order that froze the assets of Parris and Branlee Consulting following a request from the judicial manager of CLICO. The estate of former Prime Minister David Thompson is the other defendant in the case.
Today, Smith revealed to this newspaper that he was sending off a letter tomorrow to Sir Marston, informing him he was about to start legal proceedings against him and requesting that he state his grounds for “disbarring” him.
The senior counsel explained that the Chief Justice refused to allow him to represent his client on the strength of the word of former president of the Barbados Bar Association, Barry Gale, QC, who told the court that Smith had not paid his annual Bar subscription.
Smith is contending that he has never refused to pay his subscription since he started practising law in 1975. He said what he had refused to pay was Value Added Tax (VAT) which he contended the Bar had no authority to impose since it was a trade union and not a business.
Smith said the Bar had consistently returned cheques he had sent on several occasions simply because VAT was not included. The senior counsel is insisting that he will not be paying VAT until or unless a court so orders.
“You, in fact, stated that your decision was neither an order of the court nor a declaration of the court,” Smith said in a letter dated April 16 to the Chief Justice.
The veteran lawyer said his move to institute legal proceedings was a follow through to that letter – two days after the incident – giving Sir Marston 72 hours within which to respond in writing with an undertaking that he would not at any time, without due process, “disbar” him as an attorney-at-law in relation to representation of his clients.
Smith said the deadline had long expired and, up to this afternoon, he had not received a written response from the Chief Justice and therefore would proceed with legal action.
In his letter – a copy of which has been obtained by Barbados TODAY – the senior counsel had also told the head of the judiciary that his written reply must also include an apology and state the sum of money he was prepared to pay for the breach of his rights.
The correspondence listed those rights as the right of freedom of association, the right to work, the right to a fair hearing by way of due process under the law and the right to protection from deprivation of property – rights Smith’s letter noted have been guaranteed to him by Sections 16, 18 and 21 of the Barbados Constitution.
“Your refusal to allow me audience on the ground stated in the representation of my client by whom I was retained as Queen’s Counsel, constitutes a disbarment without due process and is a serious breach of my legal, constitutional, fundamental and human rights,” the letter continued.
Describing this matter as one of extreme urgency, the 40-year law veteran then put the Chief Justice on notice of what action he intended to take, if he failed to honour the 72-hour deadline to respond as demanded.
The one-and-a-quarter page document, which was copied to Attorney General Adriel Brathwaite and Queens’ Counsels Maurice King and Edmund King, lawyers for the estate of late Prime Minister David Thompson, warned Sir Marston:
“Should you fail, refuse or neglect to comply with my demand within 72 hours of the date of this letter, I shall without further notice to you, institute proceedings in the High Court to have my rights vindicated and my claim duly satisfied.”
“Please consider this letter as the pre-action protocol letter as required by the Civil Procedure Rules, 2008 of the Supreme Court of Barbados,” it concluded.
Earlier in that letter, Smith noted that Queen’s Counsel Barry Gale, a member of the Council of the Bar, had no locus standi in the matter before the court when he intervened and told the Chief Justice about the unpaid subscription.
Meanwhile, Smith has drawn attention to another piece of information which he believes strengthens his resolve not to pay VAT on his subscription. He cited the minutes of the 2008 annual general meeting of the Bar Association where a resolution was passed agreeing that the VAT issue would no longer be pursued.
The minutes – a copy of which have been obtained by this newspaper – recorded the then president Wilfred Abrahams as confirming that a meeting had been held with the Registrar of the Supreme Court and the Chief Justice, and after follow up discussions and letter exchanges, it was decided that it was not worth the effort to pursue the VAT matter and that the litigation would be too expensive.
However, in a letter dated 19 June, 2014 and addressed to then Bar president Barry Gale, with the caption 2014 annual subscriptions, Sir Marston appeared to have turned that resolution on its head. He referred to Section 10(20) of the Legal Profession Act, which provides that no person should practice law unless he has a practising certificate.
“In addition, section 45(3) provides that a practising certificate should not be issued to an attorney-at-law until the annual subscription required by Section 44 of the Act has been paid.”
The Chief Justice told Gale in the same correspondence that a copy of Gale’s earlier letter dated June 16, 2014 regarding subscriptions, would be sent to each Justice of Appeal, Judge of the High Court and Magistrate, informing them that lawyers who had not paid their subscriptions, had no right of any audience before the court.
Efforts today to get a comment from Sir Marston were unsuccessful.