Challenge to appeals panel dismissed

The three-member panel of Justices of Appeal set to hear a civil application for leave to go before the Caribbean Court of Justice (CCJ) to challenge a majority verdict in a case involving attorney Philip Nicholls will remain as constituted.

That’s because the Court of Appeal today dismissed an application by Nicholls’ attorney Sir Elliot Mottley Q.C. for Justice Rajendra Narine to recuse himself from hearing the matter.

The Appeal Judge will hear the application on February 9, 2022 along with Justices Francis Belle and Jefferson Cumberbatch .

Last July, the Disciplinary Committee of the Barbados Bar Association put forward a recommendation for Nicholls, a former partner of Cottle Catford and Co., to be disbarred.

The 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 was reported that the committee made the recommendation after Nicholls was unable to account for $860,000, the proceeds of the 2008 sale of a property formerly owned by John and Hazel Connor.

But the Court of Appeal dismissed the recommendation for disbarment in a 2-1 decision, with Justices of Appeal William Chandler and Kaye Goodridge ruling that a report submitted by the committee to have Nicholls dismissed was invalid while Justice Narine, who sat on that panel, dissented.

This resulted in lawyers, for the intended appellants in the matter, Barry Gale Q.C., Laura Harvey-Read and Ivan Alert filing an application for leave to go to Barbados’ highest appellate court to challenge the majority verdict.

Sir Elliott Q.C. and Kashka Mottley in turn filed an application for Justice Narine to recuse himself from the proceedings on the grounds of “perceived bias”.

Sir Elliot based his application on, among other things, certain utterances and rulings made in Narine’s dissenting judgment. The Court of Appeal disagreed.

In handing down their judgment during a virtual sitting this morning Justice Cumberbatch said: “We consider that apart from an unfortunate and gratuitous comparison of the intended respondent (Nicholls) with other attorneys earlier convicted of theft, we do not think that his (Justice Narine’s) overall judgment betrays a real possibility of bias in the circumstances.

“Our judgment is that the application is dismissed,” Justice Cumberbatch ruled.

Following the decision Justice Narine also commented on the remarks previously made by him which Justice Cumberbatch described as unfortunate and gratuitous.

Justice Narine said: “While this might be so, I do not wish to disagree with my learned brother, but I simply wish to point out that it was merely a comment based on a disturbing trend which I perceived in the profession that is the use of client’s funds for personal purposes of the attorney. I did not wish in any way to suggest that Mr Nicholls [is] convicted for a like offence. I was simply commenting on a disturbing trend which I have seen in the practice of law in this country which I think I am entitled to.”

However, before a date could be set for the hearing of the substantive matter for leave to go to the CCJ, Sir Elliott served notice of his intentions to challenge Gale’s locus standi – his right or that of his client to bring such an application before the court.

“This is a case in which Gale is seeking to invoke the appellate jurisdiction of the Caribbean Court of Justice and I think that it is incumbent on him to show how he is entitled to invoke that jurisdiction.

“I think that it is only right and just that he should indicate because he is not a plaintiff, he may have been the complainant before but this is statutory jurisdiction which is now being exercised after what was done in the Supreme Court,” Sir Elliott submitted.

Gale in reply said such an application did not come as a surprise.