Court of Appeal to decide on application for judge’s recusal

The Court of Appeal will on Thursday deliver its decision on whether one of its justices should recuse himself from a case involving attorney-at-law Philip Nicholls.

Lawyers for the intended appellants in the matter, Barry Gale QC, Laura Harvey-Read and Ivan Alert are seeking leave to go to the Caribbean Court of Justice to challenge the Court of Appeal’s decision, earlier this year, to allow Nicholls to continue to practice law under the Legal Professions Act.

But Nicholls’ attorneys, Sir Elliott Mottley QC and Kashka Mottley have made an application for Justice Rajendra Narine who was part of the decision to recuse himself for the proceedings on the grounds of “perceived bias”.

Back in July, a recommendation put forward by the Disciplinary Committee of the Barbados Bar Association to disbar Nicholls, a former partner of Cottle Catford and Co., was thrown out by a three-member Court of Appeal panel that included Justice Narine.

The Disciplinary Committee had cited professional misconduct on Nicholls’ part in the matter involving complaints from Elma Inniss and Joyce Bowen who are the executrices in the estate of the late John Connor. It had been reported that the Disciplinary Committee made the recommendation after Nicholls was unable to account for $860,000, the proceeds of the sale of a property formerly owned by John and Hazel Connor, in 2008.

The Court of Appeal dismissed the Bar Association’s recommendation in a 2-1 decision. Justices of Appeal William Chandler and Kaye Goodridge found that a report submitted by the Disciplinary Committee to have Nicholls dismissed was invalid while Justice Narine dissented.

This led to Gale, QC filing an application before the Court of Appeal on behalf of the complainants for leave to go before the CCJ, Barbados’ final appellate court.

In a separate application, Sir Elliot also requested Justice Narine recuse himself from the case. That application, first heard in chambers by Justice Narine, was denied.

On Monday the case was heard by a three-member panel of Justices Narine, Francis Belle and Jefferson Cumberbatch.

Sir Elliot submitted that it was not very often in his 60 years since being called to the Bar that he has had cause to object to a judge participating in a trial.

“But I do so this morning because I feel that the interest of justice and the interest of my client actually meet together in such a way for me to make the application that Justice Narine absent himself from these proceedings – I don’t have to allege or prove actual bias but I do so on the basis of perceived bias on the part of Justice Narine,” the Queen’s Counsel said .

He charged that Justice Narine departed from the “norm” back in July when he “based his judgment” on the report by the Disciplinary Committee that Nicholls’ lawyers had made a preliminary objection to and was accepted by the majority of the court.

But Justice Narine made clear that the submissions made in the prior Court of Appeal case had nothing to with the application for him to recuse himself. The judge also stated that he did not base his judgment on a report but on an affidavit filed by Alert.

But Sir Elliot said: “What you did was wrong . . . because the [report] was not admitted into evidence . . . what you said not only in your judgment but what you said from the Bench.

“I am afraid that the informed observer will come to the conclusion that what you did was not normal and that there could only have been some motive in your doing it. Whatever that motive was . . . would be akin to the appearance of bias on your part”.

Sir Elliot did not expand on that motive when asked to do so.

In response, Gale, whose team is appealing the July majority decision, said that “what Sir Elliot is trying to do is to censure Justice Narine for having given a judgment which he didn’t agree with . . . and which resulted in conclusions being drawn on the evidence on the conduct of Mr Nicholls which he was perfectly entitled to do.

“That is not something that can give rise to bias, that is something that gives rise to an appeal. . . . Sir Elliot will have to bring cogent evidence to convince this panel for Justice Narine to recuse himself on the basis of bias. I see no evidence at all of bias.

“Recusal you have to have a solid reason to justify; it can’t be an inkling of perceived bias, it has to be a real bias, it has to be based on some factual underpinning; in my submissions, there is none in this case.”