Court bungling?
Published:Sunday | September 5, 2010 | 12:00 AM
Barbara Gayle, Staff Reporter
There is a growing furore in local legal circles over the Judicial Review Court's decision last week to remove attorney-at-law R.N.A. Henriques, QC, as counsel to the commission of enquiry into the 1990s collapse of the financial sector.
Legal minds are questioning the basis for the court's decision as Henriques was not named as a party to the suit.
In a ruling handed down last Thursday, the panel of judges ruled that Henriques and the chairman of the commission, retired Court of Appeal Judge, Boyd Carey, should be removed because of an appearance of bias.
The judges emphasised that the decision did not represent a question of the integrity of the two men, but said they should not be a part of the commission because of past links to institutions affected by FINSAC.
Since the ruling, Supreme Court judges Lennox Campbell, Paulette Williams, and Leighton Pusey have attracted sharp criticism, particularly in relation to their decision on Henriques.
One lawyer described the court's decision in relation to Henriques as "unprecedented and fundamentally wrong".
A retired Court of Appeal Judge told The Sunday Gleaner that the ruling was a "terrible error" which should be appealed.
Attorney-at-law Bert Samuels was among those questioning the decision.
"It is my considered view that where a person has not been joined as a party to a proceedings, an adverse decision in relation to that person could be viewed as a breach of the principles of natural justice because the person is to be afforded a fair hearing," Samuels said.
According to Samuels, an application should have been made for Henriques to be joined as a party to the proceedings.
Judgment 'flawed'
Attorney-at-law Hugh Wildman also described the judgment as flawed.
He argued that the judges made a finding adverse to Henriques without affording him the opportunity to be heard.
"The declaration in question which seeks to have him removed as counsel to the commission is misconceived; it cannot withstand legal scrutiny.
"It is a fundamental principle of law that no person can be adversely affected by the ruling or judgment of a court without being given a chance to be heard," Wildman argued.
He pointed out that the parties who brought the suit went to court arguing there had been breach of natural justice, and the court adjudicated on it and came to the conclusion that there had been a breach.
"But in so adjudicating, the court itself was guilty of flouting a fundamental principle of natural justice: that no man should be condemned without being afforded the opportunity to be heard," charged Wildman.
Patrick Foster, QC, who represented one of the four claimants who took the matter to court, told The Sunday Gleaner that Henriques had given an affidavit in which he did not dispute the fact that he had been a director of Island Victoria Bank (IVB) and Century National Bank, which were failed institutions taken over by FINSAC.
Foster further said Henriques admitted in the affidavit that he had been a director and chairman of Premier Foods Ltd, which was indebted to IVB, and the company became a FINSAC debtor after the bank collapsed.
According to Foster, the claimants contended that Henriques had signed as a guarantor for a loan which was granted by IVB to Premier Foods, but Henriques denied signing the guarantee.
Foster said those were factors which the lawyers for the claimants used to argue that there was an appearance of bias in Henriques remaining as counsel to the commission, and the court agreed.
Foster said the court was entitled to make orders in relation to the members of the commission of enquiry and its counsel as to whether there was an appearance of bias.