The way is now clear for the Caribbean Court of Justice (CCJ) to hear the appeal against the local court’s decision not to disbar attorney-at-law Philip Nicholls.
In a majority ruling handed down on Tuesday by a three-member panel of appellate judges, substitute complainant Jacqueline Clarke who is now representing the estates of Nicholls’ deceased clients John and Hazel Connor, was granted leave to take the challenge to Barbados’ final appeal court.
Justice Francis Belle was the dissenting judge in the matter. Disagreeing with Justices Rajendra Narine and Jefferson Cumberbatch, he said he did not believe the appeal would succeed before the Trinidad-headquartered court.
Last July, the Disciplinary Committee of the Barbados Bar Association recommended Nicholls be disbarred, citing professional misconduct on his part in a matter involving complaints from Elma Inniss and Joyce Bowen, the executrices in the estate of the late John Connor. The committee had made the recommendation after Nicholls was unable to account for $860 000, the proceeds of the sale of property owned by the deceased and his wife, Hazel, also now deceased. However, the Court of Appeal dismissed the recommendation for disbarment.
Nicholls’ legal team, led by Sir Elliott Mottley, had argued that the application by lawyers representing Clarke, who took over after the deaths of Inniss and Bowen, was filed without due authority and that there were no personal representatives to act on behalf of the appellant who was not identified in the application.
The High Court amended the application to give Clarke the right to be executrix. “Jacqueline Clarke, as representative of the estate of John Patrick Connor (deceased) and Hazel Sheila Connor (deceased) is granted leave to appeal to the CCJ as of right under Section 6 (a) of the Caribbean Court of Justice Act, CAP 117,” Justice Narine ruled.
Declaring that this case has a long and unfortunate history, the judge noted the facts of the matter that stemmed from the Connors selling two parcels of land in December 2007 for $950 095,64.
Nicholls, received the proceeds of the sale on behalf of the married couple, and after deductions for transfer tax, commission and legal fees, there was a balance of $861 243.64.
Despite numerous requests for payment of the money, Nicholls failed to pay up and the Connors eventually filed a claim for the debt and obtained a default judgement in June 2008, of which only $115 000 had been paid.
They subsequently took a complaint before the Disciplinary Committee. Before the committee, Nicholls had not denied that his firm received the proceeds of the Connors’ property sale but said he used the money to satisfy debts of his firm, which were accumulated by the overdrawing of his former partners.
The Disciplinary Committee eventually delivered a report in July 2019, in which it found Nicholls guilty of breaches of the Code of Ethics and recommended that he be disbarred and ordered to repay the outstanding sum with interest. That report was sent before the Court of Appeal here, in accordance with Section 21 of the Legal Profession Act, to consider the recommendations.
Sir Elliott had submitted to the Court of Appeal that the appellate judges could not consider the report because the Disciplinary Committee did not have a quorum, thus rendering the document null and void.
The complainant, Clarke, was represented by King’s Counsel Barry Gale in association with Laura Harvey-Read and Ivan Alert. Sir Elliott was assisted by Khaska Mottley and Sabeeha Kazi and Rita Evans appeared for the Disciplinary Committee. Rosalind Smith-Millar and Yasmin Brewster were impartial advisers to the court on behalf of the Barbados Bar Association while Kim Ramsay-Moore held a similar status for Attorney General Dale Marshall. [email protected]