Address of the Honorable Attorney General, Baba Aziz
Delivered by Jo-Ann Williams-Roberts, Solicitor General
Tuesday, 20th September, 2016
I adopt the protocol already established.
The task is now mine, as Solicitor General, Jo-Ann Williams-Roberts, to address you on behalf of the Honorable Attorney General who, as many of you may know, left the Territory yesterday (Monday 19th September, 2016) to attend the Conference of the Attorneys General of the Overseas Territories which is held this year in the Turks and Caicos Islands. The Honourable Attorney General has asked that I extend to you an apology for his absence which is occasioned by the aforesaid travel duty.
In his absence, the Honourable Attorney General wishes me to express on his behalf his great pleasure and humility to serve in the capacity of Attorney General and titular head of the Bar of the Virgin Islands. In those capacities, he wishes me on his behalf to first congratulate and formally welcome you Madame Director of Public Prosecution, Ms. Kim Hollis Q.C to the Virgin Islands and to congratulate you on your recent appointment. For the record, he wishes me to note that the Attorney General’s Chambers will offer you all the support that you need in an effort that you succeed in your new role.
To the President of the BVI BAR Association, Ms. Jacqueline Daley-Aspinall, the Honorable Attorney General also extends his congratulations to you on your recent re-election as the President of the BVI Bar Association. Additionally, the Honorable Attorney General wishes to extend congratulations to all the other recently elected officers of the BVI Bar Association. Moreover, the Honorable Attorney General congratulates and welcomes all those who were called to the Bar during the last law year.
My Lords and My Lady, in his address to this Honourable Court on the last occasion, the Honourable Attorney General spoke on many issues including the issue of the Legal Profession Act, 2015. He notes that at the time he spoke last law year, the said Act had been passed by the House of Assembly and assented to by His Excellency, the Governor, but had not then been proclaimed.
Accordingly, the Honourable Attorney General wishes to use the occasion of the special sitting to mark the opening of the 2016-2017 law year to highlight some of the issues which have arisen concerning the Legal Profession Act 2015. He notes that as the Government’s principal legal advisor on this matter, he take responsibility for the incongruities and ambiguities that emanate from the Act.
In so doing, the Honorable Attorney General notes that it has often been said that it is difficult to legislate for lawyers as it is extremely difficult to find unanimity on any issue. So, it was, he says, in relation to the passage of the Legal Profession Act, 2015. However, he notes that he finds solace in the words uttered by Lord Denning in the case of Seaford Court Estates Ltd v Asher (1949) 2 KB 481 where Lord Denning said (and he quotes)
“Whenever a statute comes up for consideration it must be remembered that it is not possible within human powers to foresee the manifold set of facts which may arise, and even if were, it is not possible to provide for them in terms free from ambiguity. The English language is not an instrument of mathematical precision.
Our literature would be much the poorer if it were. This is where the draftsmen of Acts of Parliament have often been unfairly criticized” (end of quote)
As many of you may know, the Legal Profession Act 2015 was brought into force on 11th November 2015 by proclamation made by the Governor on 9th November, 2015 and published in the Gazette on 19th November, 2015. The following provisions were, however, not brought into force:
(i) subsection 2 of Section 2 relating to the extra-territoriality of the expression “practicing law”; and
(ii) subsections(1)(a);(5) and (6) of Section 11
Then, in January of 2016, the House of Assembly passed two amendments, the Legal Profession (Amendment) Act 2016 (No. 1 of 2016) and the Legal Profession Act 2016 (No. 3 of 2016).
The Honorable Attorney General notes that an examination of the Act as amended clearly reveals beyond doubt that it is at this point, in transition.
Section 3 of the Legal Professions Act, 2015
Thus, he wishes to note the following pertaining to Section 3 of the Legal Professions Act, 2015:
He notes that the General Legal Council (or the “Council”) provided for in section 3 has now been established, that it started off with the problems of any nascent institution, and that it has no budget allocated to it for its functioning.
The Attorney General further says that it is significant to point out at this stage that the Council’s power to certify that a particular applicant has complied in all other respects with the requirements of the Act as to admission as well as its statutory legal right to be represented at the hearing of an application for admission in the High Court is not in force.
That power, he notes, may only be triggered by an Order, published in the Gazette, made by the Cabinet after consultation with the General Legal Council specifying the lists of institutions, courses of study and professional training in law in accordance with section 11(4) of the Act; no such Order has as yet been made.
Qualifications for admission
In relation to qualifications for admission, the Honourable Attorney General notes the following: He notes that the Eastern Caribbean Supreme Court Act (Cap. 80) by section 68 restricted the categories of persons who may be called to the Bar in the Virgin Islands to Barristers and Solicitors from the United Kingdom and to legal persons who obtained a certificate of Legal Education from the Council of Legal Education of the West Indies. The vision, he says, of the Legal Profession Act 2015, is to expand the above categories to include Barristers and practitioners other than those provided for under Cap. 80 and who are the subject of a section 11(4) Order. Having regard to the absence of an Order to that effect, a legal practitioner who falls outside the categories mentioned in Cap 80 is not now qualified for admission. In other words the status quo for admission under Cap 80 remains intact.
Section 17 of the Legal Professions Act, 2015
In relation to Section 17 of the Legal Professions Act, 2015, the Attorney General notes the following:
He notes that subsection (1) of section 17 of the Act imposes a positive obligation on a legal practitioner, who draws or prepares a legal document, to print his name, the name of his firm and the appropriate address. A practitioner who fails to comply with this positive obligation commits professional misconduct under subsection (2). The principal Act did not, however, provide any definition for legal document. Act No. 1 of 2016 added a new subsection (3) which defined a “legal document” more comprehensively and expansively as well.
The Attorney General states that it is important to note that Act No. 3 of 2016 introduced subsection (4) which required the Council, with the approval of Cabinet, to issue guidelines as to which documents and instruments shall, or shall not, constitute a legal document for the purposes of subsection(1) of section 17.
He notes, though, that section 67 introduced by Act No. 3 of 2016, in effect, suspended the application of the whole of section 17 until the guidelines referred to in subsection (4) have been issued by the Council.
Thus, the Honourable Attorney General says that the legal conundrum created here is the coexistence of subsections which appear to require simultaneous obedience. One, therefore, he says, must discern from these subsections whether the Legislature has completely, exhaustively or exclusively expressed by its enactment, what the law governing the particular conduct or matter to which attention is directed should be.
In this regard, the Honorable Attorney General draws attention to the case Exparte Mclean (1930) 43 CLR 472 per Dixon J and notes that the question is whether if and when guidelines are issued by the Council, pursuant to subsection 4 as to what constitutes a legal document, those guidelines would override or negate subsection (3) which clearly identifies what a legal document is. That, it would seem to him, raise an issue of legal interpretation for the Courts.
Section 15 of the Legal Professions Act, 2015
He relation to Section 15 which addresses Practicing certificates and Quotas, the Honourable Attorney General notes the following:
He notes that subsection (1) provides for the issuance of practicing certificates and that provision is made in subsection 6 for deeming any person who was entitled to practice as barrister, solicitor or an attorney at law before the High Court in the Virgin Islands and any person thereafter admitted to practice as holders of a valid practicing certificate for a period which commences from the date of the coming into force of the Act to a date determined by the issue of regulations fixing ratios to be applied to determine the grant of practicing certificates and the employment of non-resident legal practitioners under and by virtue of section 16(2) and 16(2A) of the Act. The Honorable Attorney General notes that in the absence of subsections 2(2) and (2A) regulations, the transition period for deeming practicing certificates is indeterminate.
Section 15 of the Legal Profession Act, 2015
In relation to sections 6A of Section 15 of the Legal Profession Act 2015 which deals with Information to be provided for purposes of deeming practicing certificate, the Honorable Attorney General notes as follows:
He notes that Subsection 6A of section 15 provides for information or particulars for the purpose of the application of the deeming provision in subsection 6 as shown by Act No 1 of 2016. However, Act No. 3 of 2016 contains a similar provision with respect to the same information and or particulars but refers to them as been outlined in section 2 which has no such particulars. This, it seem to the Honorable Attorney General, is a clear case of wrong cross-referencing and that the appropriate reference should or ought to be subsection 6A of section 15.
The Disciplinary Tribunal
In relation to the Disciplinary Tribunal, the Honorable Attorney General notes the following:
He notes that the LPA makes provision in section 27 for the establishment of a seven member Disciplinary Tribunal and that the Tribunal is yet to be established despite the fact that nominations have been solicited. The Honorable Attorney General hopes that by the end of the year those upon whom the obligation to nominate persons for appointment to the Tribunal falls would do so. Without a Disciplinary tribunal, he says, a breach of the code of ethics in schedule 4 of the Act would go unpunished.
Subsection 2(2) of the Legal Profession Act, 2015
In relation to subsection 2(2) of the Legal Profession Act, 2015 the Honorable Attorney General notes the following:
That he had initially intended me to evade mentioning the non- existent subsection 2(2) of the Legal Profession Act 2015 for he notes that the section was not brought into force and had in fact been repealed by Act No. 1 of 2016. However, he states that there is the judgment of the Court of Appeal delivered on 6th day of June 2016 in the case of Dimitri Garkushan v Ashot Yegiiazaryan and others. He finds that the Court held that the London Firm Berwin Leighton Paisner had committed a criminal offence by contravening section 18 of the Legal Profession Act 2015 read with section 2(2).
The analysis and commentaries which the Honourable Attorney General has been privileged to read and representations made to him in respect of this judgment, he states, are numerous. It appears that there is unanimity that the reference to subsection 2 was an error which could have been corrected by an appeal to the Judicial Committee of the Privy Council by the parties. It appears, however, that neither party has chosen to pursue to an appeal on the issue to the Judicial Committee of the Privy Council. In any event, it appears to the Honourable Attorney General that time for appealing the decision has expired.
Accordingly, the Honourable Attorney General examined the issue as to whether or not the Court of Appeal could reopen proceedings which it had already heard and determined on the ground of patent error on the face of the judgment. He says that his first point of call was of the five member English Court of Appeal decision in Young v Bristol Aeroplane Company Ltd(1944) 1 KB 718 which held that “where a court is satisfied that an earlier decision was given in ignorance of the terms of a statute or a rule having the force of a statute, the court is not entitled to disregard the statutory provision and follow its own decision” . This case, he says, was one in which the court relied on a provision which has no force of law.
Then the Honourable Attorney General considered Taylor v Lawrence and another (2002) EWCA civ. 90 which is authority, he says, for the proposition that the Court of Appeal had jurisdiction to reopen cases already determined in exceptional circumstances. Fraud is given as an example of exceptional circumstance. He also considered Re: U (a Child) (2005) EWCA Civil 52, where it was stated at paragraph 22 that (and I quote)
“where it is demonstrated that the integrity of the earlier litigation process, whether at trial or at the first appeal has been critically undermined. This test may be met where it is shown that, a wrong result was earlier arrived at”.
The Honourable Attorney General holds that the said quotation demonstrates that the Court of Appeal may have a very narrow jurisdiction in some circumstances to reopen proceedings it had already determined.
The fundamental issue for the Honourable Attorney General was whether or not the Attorney General, as a non- party to the appeal in this case had locus to apply for leave for the reopening of the case for the purpose of correcting an error on the face of the judgment.
The Honourable Attorney General cites the Privy Council decision in the Attorney General of the Cayman Islands v Cleaver (2006) UKPC 26 saying that that decision suggests that the Attorney General has standing to apply to intervene in a case where he has sufficient interest in his capacity as guardian of the public interest. There is, he says, a caveat to the effect that the said decision does not give the Attorney General standing to intervene whenever he thinks a court has reached a wrong decision.
The caveat has restrained the Honourable Attorney General, for now, from making any application in relation to the matter, but he says that he has not foreclosed my options.
In the meantime, the Honourable Attorney General says that he is hopeful that the Court of Appeal would correct this error when an analogous situation comes before that Honourable Court. He says, though, that he is aware that in the case of Attorney General v Daphnie Alves, the Court of Appeal did not follow its previous decisions referred to in that case.
These are the comments which the Honourable Attorney General wishes me to note on his behalf in relation to the present issues surrounding the implementation of the Legal Profession Act, 2015 during the last law term.
The only other thing which the Honourable Attorney General asked me to do is to, on his behalf, is to express heartfelt thanks to the staff of the Attorney General’s Chambers for their support during the past law year and the commend them on the role they have played in the execution of the functions of the Chambers.
May it please you My Lords, My Lady.