by Shawn Cumberbatch
An unusual attempt to get the Caribbean Court of Justice involved in a court matter before it went to full trial in Barbados has been abandoned. Barbados TODAY has confirmed that lawyers representing the developers of the Four Seasons Resorts in a case against two of their former attorneys withdrew an application for special leave to appeal to the CCJ.
Attorneys-at-law John Damian Edghill and Naeem Ahmed Ebrahim Patel of Old College Chambers are suing Paradise Beach Limited and Paradise 88 Limited, joint developers of the hotel and residential villas for more than $621,000 in fees they say are owed to them.
Investigations revealed that on December 14, two days after a Barbados Court of Appeal panel ruled that the various issues involved would have to be resolved at trial, Paradise lead counsel Elliott Mottley, Q.C. requested but soon withdrew his application for CCJ intervention.
Mottley had argued before the local appellate court that Edghill and Patel “having not had their costs taxed and served on the appellants pursuant to Section 34(1) of the Legal Profession Act are barred from bringing a claim under Section 34(2) thereof”.
He also stated that there was “no agreement between the parties as to the amount and manner of payment as required by Section 36 of the LPA because the respondents’ letter written by Mr. Belgrave, Q.C., and dated 5 July 2010 whilst agreeing the amount, rejected the manner of payment”.
But Randall Belgrave, Q.C., who is representing Edghill and Patel argued that a letter by Paradise Executive Chairman Avinash Persaud “constitutes an agreement as regards the amount and is capable of and does amount to a promissory note and the respondents’ claim is “outside the whole regime of 34 to 36”.
A record of the regional court’s proceedings on the recent matter before the Justices Rolston Nelson, Jacob Wit and David Hayton showed that the unusual situation came about, Mottley told the court, because he was awaiting the Court of Appeal decision on the matter, which only came two days before the CCJ hearing.
“My concern … would have been … if the court had dealt with the issue of whether or not there was an agreement under section 36(2) then I would have been bound at the trial … by that and therefore to preempt that I had to file the application for special leave in the event if the court found that you didn’t need to go because of section 36,” he explained.
“I concede that once I got the judgment and once I heard the judgment this is one that could go back to trial… In view of the changed circumstances I would not push the application,” he added.
From the outset the CCJ panel told the Paradise legal team it was “up against it in trying to get special leave with regard to an interlocutory matter”, noting “it has to be rather special indeed for us to intervene where there is a miscarriage of justice likely or some egregious error of law”.
“Why shouldn’t we just let this go to the high court as the Master and the Court of Appeal were prepared to and let the High Court look at this question and then you could come up to us from the High Court if need be,” they asked?”
After Mottley’s withdrawal, Mr. Justice Nelson told the prominent attorney it was “a good move on (his) part”, and because the matter was an “exceptional” one, “I am inclined to say no costs in this matter”.
“We can’t deal with it at this point. We have our views on the matter, but we have reserved our opinions on that,” he said, noting the matter would be better dealt with before a High Court judge in Barbados.