Tariq Khan

TALES FROM THE COURTS – Vernon Smith QC Has Sued the Barbados Bar Association XXIX

Vernon Smith QC

Vernon Smith QC

Hot on the heels of his suit against Marston Gibson, Vernon Smith QC has sued the BA. It is reported that the BA has responded by filing and serving […]an acknowledgement under signature of BA president Tariq Khan, with their counsel of choice TBA.

The heat is on Khan, because, first, the BA must file a defense within 15 days as of filing of the acknowledgement; and, second, to involve themselves in this case means that the BA must have it sanctioned and agreed by its membership. Otherwise, Mr Smith may move to have the BA noted in default and ask for summary judgement. Thus the inappropriate advice given by then Chief Justice Simmons to his then-prospective son-in-law and then BA president Wilfred Abrahams back in 2008, not to pursue the matter because it would be expensive, seems to be coming to pass.

If the BA admits fault, then it drops Marston Gibson right into the fire Smith has already got going for the barbecue on which to grill him, appendages and all.

Many of the BU family have weighed in stating that this is merely a case of a lawyer trying to make money (or save money) by avoiding VAT. However, most respectfully, we suggest that no one ought to have to arbitrarily pay VAT in cases where VAT is NOT payable, whether lawyer or not.

BU has also published a great many comments critical of the BA, especially when it comes to taking action on complaints made against attorneys-at-law. BU agrees that the BA is, in this respect, not-fit-for-purpose and is constantly letting the public down. BU wants now to revisit its report of some time ago regarding the fund into which every attorney-at-law must pay annually, the object of which is to, in part, reimburse victims of attorneys-at-law who have cheated them – Compensation Fund: Another Screw-up By the Barbados Bar Association . BU has been able to ascertain that this fund now holds $2.5 million dollars and, despite findings of culpability in regard, but not limited to, Fields, Nicholls, Lynch et al, never has so much as one red cent been paid by the BA out of that fund to victims. Never! Instead the ONLY funds paid out of that account has been to advertise the estates of deceased attorneys-at-law. This is iniquitous and a downright betrayal of public trust and sacrifice of public confidence, which is at an all-time low anyway as far as the justice system of Barbados is concerned.

One of BU’s legal eagles was able to have sight of Smith’s claim and make notes for us. Here is what we are able to report and we stress that as the Claim has been filed, this report is fair comment and reports a document in the public domain:

Smith asserts:

  • He was admitted to the Roll of Attorneys-at-Law as Attorney-at-Law number 158 the 28 April 1975 and has practiced since then. He is also on the Roll of Solicitors and Barristers in Dominica and St. Vincent and has practiced there.

  • As of the date of his admission as an attorneys-at-law in Barbados he has been a member of the BA and at the beginning of every succeeding year he always obtained his annual practicing certificate in accordance with Section 11 of the Legal Profession Act and paid my annual membership subscription to the BA in accordance with Section 44 of the Legal Profession Act. He therefore asserts that the payment of the membership subscription as imposed by the Legal Profession Act is a statutory requirement and cannot be considered as trading or as a taxable activity.

  • When the Value Added Tax Act commenced on the 1st January 1997, after obtaining his practicing certificate he tendered my subscription to the Defendant in form of a cheque, but it was refused by the BA and returned because it did not include VAT.

  • By letter dated 29th January 1997 [BU notes this was when Alair “Botsy” Shepherd was president] he retendered the cheque to the BA giving his legal opinion that the subscription was not VAT chargeable and giving his written undertaking that when a court of competent jurisdiction in Barbados declared that VAT was imposed on BA membership, he would pay the VAT and any interest to have accrued. Nevertheless, his payment was refused. Mr Smith tried again in January 1998, 1999, 2000, 2001, 2002 and 2003, only to have his payments refused by the BA.

  • Mr Smith points out that the BA is a statutory (chartered) corporation of all present and future Attorneys-at-Law on the Roll of Attorneys-at-Law of Barbados who constitute the legal persona known as the Barbados Bar Association and as a statutory corporation all its powers, authorities, duties, functions, aims and objects are contained in the enactment. The BA has no power or authority to carry on a business of any sort. The BA subscriptions are for the purpose of carrying out its aims and objects. Therefore, the association is not a business as defined in the VAT Act, nor is it a profession, vocation, trade, manufacturer or undertaking, adventure or concern, in the nature of a trade. The BA does not carry on a “taxable activity” as defined by the VAT Act.

  • Instead, the BA is a regulating authority to protect the public interest. [BU says: What a joke that is]. The supply of service of the Association, by its constitution, is made solely and only to itself. The BA is not an unincorporated body (e.g. an association, club, society, union and is not an activity that involves the admission for a consideration of persons to any place or premises. It is also not an organization the membership of which is voluntarily.

  • In effect, Smith asserts, the BA is a Trade Union as defined by the Trade Union Act. “Trade Union means any combination whether temporary or permanent the principal purposes of which are under its constitution. The negotiation of the relation between workman and employer or between workman and workman or between employees and employers whether such combination would be or would not, if this Act had not been executed have been deemed to have been an unlawful combination by reason of some one or more of its purposes being in restraint of trade.”

  • Smith then references and quotes Section 10 of the VAT Act, “that the supply of goods or services specified in the Second Schedule is exempt from the tax imposed by the VAT Act on the supply of goods and services.” He then quotes Paragraph 11 of the Second Schedule: “a supply by a Trade Union within the meaning assigned by the Trade Union Act to a member of the Trade Union or to another Trade Union where the supply is made in the ordinary course of fulfilling the objects and purpose of the Trade Union.” Smith posits therefore that the supply of service of the BA is an exempt supply and does not attract Value Added Tax.

  • Smith continues that he has never withdrawn his undertaking to pay the annual membership subscription. That every year the BA has sent its membership a notice that it will not accept the annual subscription without VAT. Smith has been awaiting the declaration of the Court of competent jurisdiction in Barbados that VAT is payable on the annual subscription or the BA’s notification that it will accept his membership subscription without VAT.

  • Smith states on the basis that he has never ceased to hold a practicing certificate and has never withdrawn his written undertaking to pay the annual membership subscription, he is and remains a member of the BA.

  • On 14th September 2015 Smith wrote to the president of the BA asking whether he acknowledged that VAT was not on the annual subscription and to inform him accordingly within 14 days. The BA has never replied.

  • By its refusal to accept payment of Smith annual subscription and contrary to the provision of Section 44 of the Legal Profession Act, the BA has removed Smith’s name and place of business from the list of members and his place of business from its list published on its website and mailing lists in breach of its statutory duty owed to him under Section 5 (1) and 5 (2) and Rule (6) of the Statutory Rules of the BA.

  • The BA has always been aware that Smith has never ceased to practice as an Attorney-at-Law [BU notes: How could they not be, as he was commissioned as a queens counsel in 2005 when, presumably according to the BA, he was no longer entitled to practice]. Therefore, the exclusion of Smith’s name from the BA’s lists of members and its website, means and is intended to mean, on the part of the BA, that he not a registered Attorney on the Roll of Attorneys-at-Law in Barbados, that he has been purporting to be an Attorney-at-Law and has been practicing in Barbados, which is fraudulent and in breach of Section 12 of the Legal Profession Act, which is a criminal offence punishable by imprisonment.

Smith asserts malice on the part of the BA and sets out the particulars:

  • The BA without authority repeatedly refused to accept his annual subscription, knowing full well that it was depriving him of his membership and putting him in breach of the Legal Profession Act. [BU notes that this commenced in 1997 under the presidency of Alair “Botsy” Shepherd when “Botsy” was on the other and losing side in the Kingsland Estates matter, a spectacular loss for “Botsy” and his paymaster Mr Allard].

  • The BA requested that the Judges of the Supreme Court of Barbados disbar Smith without due process even though the BA knew that the Smith held a practicing certificate for 2015.

  • Smith references the Minutes of the annual general meeting of the BA held on the 1st day of November 2008 (published by BU previously) on the consultation between the Registrar, the then President of the Bar Association (Senator Wilfred Abrahams) and Chief Justice David Simmons and a resolution passed by the BA that the Bar would take no further action in the matter of non-payment of subscriptions by members, because of the expense. In spite of that resolution and with no further resolution by the Association to re-raise the issue, the BA chose to pursue the matter on the 14th April 2015 by requesting the Chief Justice (Gibson) to refuse Smith audience in the Courts of Barbados [BU notes: For which Smith is now suing Gibson].

  • On 7th October 2016 the BA issued a memorandum to all its members stating that the annual subscription for 2016 must be paid with VAT.

Smith therefore claims:

  • A declaration that the BA is not a person who carries on a taxable activity as defined in the Value Added Tax Act, 1996-15.

  • A declaration that the BA is a Trade Union as defined in the Trade Union Act and is accordingly a supplier of an exempt supply on which VAT is not imposed under the Value Added Tax Act.

  • A declaration that VAT does not form part of the annual subscription of a member of the BA and accordingly cannot be claimed by the BA as part of the subscription.

  • A declaration that the BA has no competence or power to refuse to accept the annual subscription when tendered by a member of the BA.

  • A declaration that the receipt of the annual subscription of members is not a taxable activity.

  • A declaration that the BA has no authority to impose any measure or sanction against any Attorney-at-Law who has refused to pay VAT.

  • Damages for defamation. [BU notes: This is a real kicker, as if the BA is unsuccessful, it is looking at seriously high damages, which would certainly explain the expense that David Simmons advised the BA it would likely incur].

  • Damages for deprivation of the Claimant’s rights, privileges, benefits and entitlements of membership. [BU notes: Another massive possible hit in the BA’s pocket].

  • Exemplary Damages. [Likely the largest award the BA may have to pay out].

  • An order that the Defendant forthwith include and publish the name of the Claimant and place of his business on its website and on its mailing lists.

  • An order that the Defendant accept the Claimant’s subscription without VAT.

  • Further or other relief as the Honourable Court deems fit.

  • Costs.

BU now awaits sight of the defence from the BA’s TBA counsel and will certainly report on it. HOWEVER, it may be of some consolation to know that the BA cannot pay any damages or costs to Smith out of the fund reserved for payment to members of the general public who have suffered loss as the result of misconduct of attorneys – but not much as nothing had been paid out of that fund EVER! BU expresses the hope that when this action comes on for hearing, there is some way that the lack of any use of this fund can be brought before the courts by Mr Smith QC.

BU is able to report that Mr Smith is not the only counsel to be considering action against the BA and BU will faithfully report it if and when such further actions are filed.

Marston, you are going, whether you like it or not. Why not show a little dignity and class and leave quietly? Oh, but of course, you are waiting for a golden handshake for completely failing to do your job, aren’t you? Feel free to write us by e-mail as you did Sanka Price and enlighten us. We undertake to publish it without expurgations. Come on, engage us and the people of the country of which you are chief justice.

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169 Comments on “TALES FROM THE COURTS – Vernon Smith QC Has Sued the Barbados Bar Association XXIX”

  1. Hants November 11, 2015 at 9:36 AM #

    solve a problem

    Like

  2. Hants November 11, 2015 at 10:18 AM #

    ACTING ASSISTANT COMMISSIONER of police Mark Thompson is dead.

    http://www.nationnews.com/nationnews/news/74366/senior-cop-mark-thompson-passes#sthash.v6sonswx.dpuf

    R.I.P

    Like

  3. Well Well & Consequences November 11, 2015 at 11:20 AM #

    Hants….this advisory from the US Embassy is particularly bad, crimes have become disturbing. I have never seen them usethat tone re Barbados before.

    As long as all the players, in the judiciary, understand they have a part to play in turning things around for the benefit of themselves and future generations, who are and will also be the taxpayers who are and will be affected by the misuse of the judiciary, half the battle would have been won, it’s a collective effort.

    Destroying your own court system for temporary financial gain, will return to bite you, even if it took decades.

    Like

  4. Hants November 11, 2015 at 11:28 AM #

    @ Well Well & Consequences,

    Clearly Barbados needs to deal with this crime problem.

    Time to use the BPF and BDF to put a stop the nonsense.

    Like

  5. Bush Tea November 11, 2015 at 11:41 AM #

    @ Hants
    Clearly Barbados needs to deal with this crime problem.
    +++++++++++++++++++++++++++++++++++++++++++++
    Yuh think?!

    You would have thought that the AG, PM, MoT and whole Cabinet would have come to that realisation LONG ago…. but they are probably too busy looking for excuses for CLICO and CAHILL to get around to CRIME….

    Rest assured that the Americans are sending them a signal about MUCH more than petty crime with their advisory….. whether those JA’s can read that signal is another matter….

    LOL
    …they are probably awaiting guidance from AC….

    Liked by 1 person

  6. Well Well & Consequences November 11, 2015 at 11:50 AM #

    That’s what one of my daughters have been saying….Hants, the BDF needs to be incorporated into the police force with the same powers to help fight crime, expand their powers beyond chasing down every marijuana seed and leaf…there are real crimes out their to fight that are more detrimental to the island, but the powers that be have to want to make it happen.. this advisory should be an eye opener, let’s see.

    Like

  7. Hants November 11, 2015 at 12:00 PM #

    @ Bushie,

    They will do something when Tourists stop booking Sandals Barbados.

    Like

  8. Donna November 11, 2015 at 12:13 PM #

    Well Well,

    I know of a patient who received a wishy washy medical report from her doctor and later found out that the doctor was also one of the doctors for the insurance company. The insurance companies have the system sewn up.

    Like

  9. Well Well & Consequences November 11, 2015 at 1:19 PM #

    It gets even worse Donna, you have to investigate the doctors thoroughly, the insurance companies bring them into the island specifically for that purpose, to deceive the court.

    One claimant just had to file the medical report herself, when after a year she found out her attorney withheld the document from the judge, so of course he is now angry at her because it messes with the arrangement he has with the insurance company to sell her out.

    What’s particularly horrible is that the only recourse is to bring it to the attention of the chief justice because the bar association president has no teeth and the head of the disciplinary committee, does the same thing, withholds evidence from the court. It’s vicious and none of them care or are afraid of being disbarred or disciplined. They disgust me with their small time, unethical pettiness.

    Liked by 1 person

  10. Bush Tea November 11, 2015 at 2:39 PM #

    @ Well Well /Donna
    …so these Doctors don’t have names?
    Do them a favour and post the names yuh…
    …so the bushman can avoid them…
    Wunna going let Bushie have to deal with them ‘vi et armis’?

    Like

  11. Well Well & Consequences November 11, 2015 at 3:19 PM #

    The Bushman…..you will not only get the name of the doctor but also the lawyer as soon as a matter in process concludes. I don’t believe the Bajan public deserves to have to deal with these people knowing what they are quite capable of…………just a little longer.

    Like

  12. John November 11, 2015 at 3:31 PM #

    Why would BU promote Mr. Smith’s return as Messr’s Parris et al’s lawyer under the guise of supporting someone who is taking the judiciary to task when all the time Mr. Smith has done his fair share to create the problems in the judicial system?

    Hasn’t he been caught red handed by the CCJ abusing the process?

    Is this all about CLICO?

    Is BU an organ of CLICO?

    Like

  13. Well Well & Consequences November 11, 2015 at 3:34 PM #

    http://www.nydailynews.com/news/world/canadian-judge-review-berating-teen-rape-victim-article-1.2431358

    Hants….just came across this story about this federal judge in Canada under review for his maliciousness and disrespect toward a rape victim, it brings a balance to the court ststem when officers of the court are shown they are not above it all. All this dudes cases will have to be reviewed.

    Like

  14. Hants November 11, 2015 at 3:50 PM #

    @ Well Well & Consequences,

    That Judge was promoted after he made those comments and is now making over $300,000 per year as a Federal court Judge.

    He must have been on drugs the day he made those comments.

    Like

  15. Gabriel November 11, 2015 at 5:07 PM #

    Trinidad Police have carried out random vehicle checks since the 50’s and they just upped the ante in response to the increase in murders and other violent crime with positive results.Two things Barbados need to do immediately:-
    1…..Re introduce random vehicle checks.If the law need updating(as is the usal delay tactic from the AG office)update the law and get cracking.
    2….Re introduce hard labour(its is still done in Trinidad).
    3….Establish a company at Dodds so that the Superintendent can use the nearly one thousand men up there to do work assignments including maintaining government properties,cemetries,church yards,agriculture,etc.Pay them an agreed wage, net of their living expenses at Dodds which they will get on their release.

    Liked by 1 person

  16. bajans November 11, 2015 at 5:20 PM #

    No Hants, it is all part of the Reform Party ethics or lack thereof. He would have been promoted by Harper. Only he appoints to the Federal Court, if my knowledge is correct.

    Like

  17. Well Well & Consequences November 11, 2015 at 5:49 PM #

    Hants….they did remove him to an area where there are no rape victims, guess the salary was bigger. Harper…eeewww!!!

    Gabriel does have a point, high time that these prisoners practice eating by the sweat of their brow to ease up the taxpayers, you get work release programs in some countries, utilize the BDF to control and watch over them during the 4 or so hours per day or as needed. Some type of structure is needed.

    Like

  18. Really November 12, 2015 at 10:50 PM #

    None of the BA lawyers will want to touch this.

    Like

  19. pieceuhderockyeahright November 13, 2015 at 7:26 AM #

    @ Really

    And that would be logical would it not for to do so intrinsically speaks to a tacit perception of protecting oneself, not the BA, from unforeseen, unanticipated yet possibly inherent, inherited traits of latent infelicity

    Here is the conundrum

    Suppose at Black Friday November 2015 I rise to defend the BA, and win, it means that in a single swoop I have offended the community of lawyers that are the greatest density IN THE WORLD!!! By enforcing a pernicious VAT for a Vat Free entity

    If I loose, not only does does it speak to my seeming incompetence as a lawyer, but it also assign my BA to a lifelong doom and no one wants to be the person with that indubitable dishonour

    Then there are the overarching implications regarding accelerating a decision in court that was botched and sealed by Abrahams and a Former Chief Justice under less than reputable circumstances

    So we will resort to the normal stance, do nothing, let the inept registry do even less than nothing, and with the effluxion of time, Vernon Sith shall be at one with the aether and this too shall pass…

    Like

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