Glinton v Prime Minister, Attorney General and President of Bar Council and Officers of the Bar Association
| Jurisdiction | Bahamas |
| Judge | Isaacs, S.J.,Isaacs, Sr. J. |
| Judgment Date | 15 October 2010 |
| Court | Supreme Court (Bahamas) |
| Docket Number | CRI/CON |
| Date | 15 October 2010 |
Supreme Court
Isaacs, Sr. J.
CRI/CON
Mr. Maurice Clinton pro se.
Mr. Loren Klein for the first and second respondents.
Mr. Thomas Evans, Q.C. and Miss V. Evans for the third respondent.
Administrative law - Judicial review — Challenge to the omission of applicant's name from a list of persons recommended to be made QCs by the second respondent — Legitimate expectation — Discrimination — Legal profession — Order that the applicant's application must be transmitted to the Governor—General by the Prime Minister — No exemplary damages awarded.
Maurice Glinton, Esq., the applicant, has brought a judicial review application to challenge the omission of his name from a list of persons (hereinafter referred to as “the List”) recommended by the Attorney-General, the second respondent, to the Prime Minister, the First respondent, to be made one of Her Majesty's Counsel (hereinafter referred to as “a QC”) when the Prime Minister tendered his advice to the Governor-General. On 30 April 2010, I promised to render a decision in writing; and I do so now.
The application arises out of an exercise embarked upon by the then Attorney-General, Michael Barnett (hereinafter referred to as “the AG”) to recommend the appointment of the applicant as a QC. The applicant's name was included in the List which contained twelve other names. The names of the other persons are of no moment to the present application on the view that I take of the issues in this case. A striking feature of this case is that the applicant was approached by the AG to apply for appointment as a QC; and only did so after receiving certain assurances from the AG pertaining to, inter alia, matters of precedence and seniority.
On 20th November 2009, the applicant applied for and was granted leave to bring the present application. His Statement sets out the basis for the application and the reliefs he seeks, The reliefs are set out below:
“(1) a declaration that the applicant was entitled to his name remaining on the list among those recommended by the Attorney-General to the Prime Minister for appointment as one of Her Majesty's Counsel in accordance with the provisions of sect. 15 of the Act; further or alternatively,
(2) a declaration that the applicant was entitled to retain his seniority status at the Bar vis-à-vis the lawyers (including two lawyers less senior than he at the Bar) who were actually appointed from the purged Attorney-General's list of recommended appointees; further or alternatively,
(3) a declaration that the applicant is entitled to his name remaining on the Attorney-General's list and to it being restored thereto as if it had not been removed therefrom; further or alternatively,
(4) an Order of mandamus directed to the Attorney-General that he restore or cause to be restored to the said list of appointees as one of Her Majesty's Counsel the name of the applicant as recommended by then Attorney-General Michael L. Barnett with rights and privileges of seniority vis-à-vis lawyers (including two lawyers of lesser seniority at the Bar) actually appointed from among those named in the Attorney-General's list from which the applicant's name was removed; further or alternatively,
(5) a declaration that revocation of the Attorney-General's recommendation of the applicant for appointment as one of Her Majesty's Counsel and/or the removal of his name from the Attorney-General's list diminishing or reducing or revoking the applicant's seniority at the Bar vis-à-vis lawyers (including two lawyers of lesser seniority at the Bar)actually appointed from among those named in the Attorney-General's list and from which the applicant's name was purged in the circumstances and the manner by which it occurred, is ultra vires the Act and an abuse of power that denies the applicant protection of the law and discriminates against him in contravention of Arts. 15 and 26 of the Constitution; further or alternatively,
(6) an order requiring the first and second respondents (or either of them) to disclose the Attorney-General's list as initially recommended to the second respondent on or about 19th August 2009, upon the requisite consultation with the designated persons that then Attorney-General Michael L. Barnett would have had in accordance with sect. 15 of the Act; further or alternatively,
(7) an Order requiring the third defendant to disclose the list of names of counsel and attorneys of the Supreme Court they would have exchanged with the Attorney-General in the consultation process, with the recommendations of the Bar Council; further or alternatively,
(8) an order of exemplary damages; further or alternatively,
(9) an order requiring the recommendation of the applicant by the Attorney-General be dealt with in accordance with law.
(10) such orders, writs, or directions pursuant to Art. 28 of the Constitution as may to the Court seem appropriate for the purpose of enforcing or securing the enforcement of any right or freedom to the protection of which the applicant is entitled.
(11) the applicant seeks expedited hearing of the substantive judicial review application (if leave to apply is granted) together with an Order abridging time for service of the respondents' evidence to fourteen (14) days or such other period as the Court deems appropriate.
(12) The applicant seeks an oral hearing of the application for leave.”
The applicant also seeks costs and any other Order as may arise from the nature of the case. He sets out the grounds and legal matrix for the application; and his submissions on the law but due to their length I do not iterate them here. Reliefs 11 and 12 have fructified by the hearing of the applicant's case.
The applicant is a practicing counsel and attorney. He was called to The Bahamas Bar on 19 December 1980. He has been since that time a member in good standing of The Bahamas Bar Association and has acted in various administrative capacities within that body. He has practiced as a general litigation counsel at all levels of the courts of The Bahamas and at the Privy Council for some twenty-eight years. From 1 August 1987 he practiced under the name “Maurice O. Glinton & Co.” in Freeport, Grand Bahama. He is also a member of the Bar of England and Wales to which he was called on 18 November 1980.
The AG is the principal legal advisor to the Government of the Commonwealth of The Bahamas. He is a member of the Cabinet of The Bahamas established under Article 72 of the Constitution of the Commonwealth of The Bahamas (hereinafter referred to as “the Constitution”). By virtue of section 15 of Legal Profession Act (Ch. 64) (hereinafter referred to as “the Act”) he is responsible for receiving applications from those seeking to become QCs; making background checks on each applicant; and for forwarding his recommendations on to the Prime Minister.
The Prime Minister is appointed pursuant to Article 73 of the Constitution; and it is upon his advice that the Ministers comprising the Cabinet are appointed; and pursuant to Article 77, given their respective portfolios. The Prime Minister is required under section 15 of the Act to act once he has received a recommendation from the AG.
The Third respondents are constituted by section 4 of the Act and their responsibilities are set out in section 5. They include:
“5.(1) The Bar Council may make bye-laws for the direction, control and government of the Bar Association.
(2) In addition to any other powers or duties conferred or imposed by this or any other Act, the Bar Council shall be responsible for–
(a) the maintenance of the honour and independence of the Bar and the defence of the Bar in its relations with the executive and the judiciary;”
Under section 15 of the Act the AG is obliged to consult with the President of the Bar Association in relation to an applicant before he makes a recommendation to the Prime Minister.
Before the Court could hear the substantive issues raised in the applicant's application it had first to dispose of certain preliminary objections raised by the applicant in two Notices filed on 11 January 2010. They related to the Office of the Attorney-General appearing for the second respondent through Mr. Klein and other law officers' representation of the Prime Minister and the propriety and competency of Mrs. Deborah Fraser, the Director of Legal Affairs, to swear to the facts contained in her affidavit filed on 5 January 2010 (hereinafter referred to as “the Fraser affidavit”). There was also an application by the respondents to set aside the leave granted by me but Mr. Klein was content to subsume this application in his main submissions so the Court could consider all of the issues at one time. In so doing he was guided by the Court in HMB Holdings Ltd. v. Cabinet of Antigua and Barbuda [U.K.P.C. 37] (5 June 2007). I accept the guidance of Their Lordships.
Having heard counsel I concluded that there was no impediment to any law officer of the Crown appearing for the Second respondent nor was there anything improper about Mrs. Fraser's affidavit save that those portions of said affidavit purporting to set out opinions of law and hearsay should be expunged therefrom. In doing so I used the approach of the English Court of Appeal in Re J [1960] 1 W.L.R. 253, at p. 257 and followed by Hall, J. in Perry G. Christie v. Hubert A. Ingraham, et al, 2007/PUB//CON/00034. I held the view that there were portions of the affidavit which were useful to the fair resolution of the issues arising between the parties. We then proceeded to address the substantive issues raised by the applicant.
As evidence of such usefulness, the Third respondent was relieved of the need to participate in...
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