Court to determine whether lawyer be disciplined

If attorney-at-law Phillip Nicholls was not to be disciplined by the court for allegedly misappropriating over $800,000 of an elderly couple’s funds, it would be a “gross injustice” by the court, says Queen’s Counsel Barry Gale.

Gale, who is appearing on behalf of Nicholls’ former clients John and Hazel Connor, made the submission to the Court of Appeal panel of Acting Chief Justice Najendra Narine and Justices Kaye Goodridge and William Chandler this morning when the matter continued in the Supreme Court.

The action stems from a recommendation from the disciplinary committee of the Barbados Bar Association for Nicholls to be disbarred.

It is alleged that the veteran attorney-at-law has been unable to account for $860,000, the proceeds of the sale of a property formerly owned by John and Hazel Connor, in 2008.

However, his legal representatives, Queen’s Counsel Sir Elliott Mottley and Michael Carrington, are challenging the validity of the disciplinary committee’s report which was given to then Chief Justice Sir Marston Gibson due to procedural irregularity.

At the start of the hearing, Justice Goodridge informed Gale, who is being assisted by attorneys Ivan Alert and Laura Hartley-Read, that the application he made on the last occasion had been denied by the court.

At that time Gale had made an application for leave to file an affidavit showing that documents were received by him and other counsel and for those documents to be admitted as part of the record.

In his preliminary submissions, Gale said even though Mottley wanted the court to ignore the report, the Court of Appeal still had jurisdiction to look at the evidence presented and come to its own conclusion.

He pointed to the fact that in giving testimony before the disciplinary committee, Nicholls himself had admitted to taking the money and being unable to repay it.

Gale said that evidence was unchallenged.

“You can’t come into the Court of Appeal and say there is some procedural irregularity, throw it out. The court has to examine the nature of the irregularities, if there are such, and determine whether or not they are so fundamental and irregular that it vitiates the report to the extent that there is no true report before this court,” he said.

Gale insisted that it would not be fair to his clients if the matter was not heard.

“If this court were to throw out and not rely on this report for the reasons put forward and advanced by Sir Elliott, it would be a gross injustice to the complainants because what it would be in essence would be for this court to decline its undoubted jurisdiction, both under Section 21… to deal with what is a case of very serious professional misconduct before this court,” the Queen’s Counsel said.

In his submission, Sir Elliott argued that the report prepared by the disciplinary committee should be deemed “null and void”.

The noted attorney-at-law said a member of that committee, Rita Evans, had given evidence that she was not aware that a report had been prepared.

Sir Elliott suggested that the chairman of the disciplinary committee had prepared the report without the input of the other members of the committee and he suggested that the chairman did not have those powers.

“It is important to remember one aspect throughout all of my submissions and that is that the powers are given not to the chairman of the disciplinary committee, whoever that may be, the powers are given to the committee,” Sir Elliott said.

He said the fact that Evans, as a member of the disciplinary committee, was not aware of the report, raised questions about its integrity.

He said for that alone the matter ought to be dismissed.

“The very integrity of this report is being called into question and if you call the integrity of the report into question you are going to call the integrity of the chairman into question,” Sir Elliot said.

“If nothing else requires the dismissal of this matter, it is that one of the persons who is alleged to have been on the committee knows nothing about the compilation of the report.”

After listening to both sides, Justice Goodridge reserved a decision.

While she did not set down a date she said it would be delivered as soon as possible.
randybennett@barbadostoday.bb