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417002794

LAW AND LEGAL SYSTEMS LAW 1010 ASSIGNMENT Case Brief

Facts

Legal Profession Act, Cap. 370A of Barbados Civil Procedure Rules 3.12(4). 2008 Constitution of Barbados (preamble) Legal Profession Act, Cap. 370A

Wooding CJ in Collymore and Another v. Attorney. General (1967) 12 W.I.R. 5

417002794

Norman Mcdonald Nurse is the widow and administrator of the estate of deceased Marie Delcina Nurse. On the 27th of February, 2014, Norman, brought an action against Florence Nurse for possession of property at Wellington Street, Bridgetown, St. Michael and profits rated at $2,500.00 a month from claim form date of service until possession is delivered together with interest pursuant to section 35A of the Supreme Court of Judicature Act, Cap. 117A, the application came with a affidavit of equal date. Florence Nurse, the sister of the decease resides at Wellington Street, Bridgetown, St. Michael. On the March, 2014, Florence filed an acknowledgment of service indicating intention to defend the matter. Procedural History At a preliminary hearing, the claimant lawyer on April 24th, 2015 filed application applying to the Honourable Court that the Defendant's attorney-at-law be denied a right of audience before the High Court. The same order referred to in paragraph 1 is not on file and a search made in the Supreme Court Registry revealed that the order was not filed. The application though procedural flawed in respect of the Certificate of Truth is not fatal to these proceedings and can be rectified by Rule 26.1 of the CPR Issues Issue 1: Whether section 44 of the LPA is unconstitutional and of no effect because it violates the Defendant's attorney rights under section 21 of the Constitution which protects her freedom of association. Issue 2: Whether the application made by Mr. Khan, attorney-at-law for the Claimant is fatal to the proceedings since he failed to provide the reasons for him giving the certificate of truth pursuant to Rule 3.12(4). Issue 3: Whether the Claimant's attorney Mr. Khan is a proper person to make the instant applicant before the court.

Legal Profession Act, Cap. 370A of Barbados Civil Procedure Rules 3.12(4). 2008 Constitution of Barbados (preamble) Legal Profession Act, Cap. 370A

Wooding CJ in Collymore and Another v. Attorney. General (1967) 12 W.I.R. 5

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Rules Section 21 of the Constitution which protects her freedom of association provides the rule as to why Section 44 of the Legal Profession Act is unconstitutional. Case law was also used to to further elaborate its extent. Judges used the Legal Profession Act, Cap. 370A (“the LPA”) as a reference in aid to coming to their decision on this case. Section 44 form the rule This Act was expressively described in the preamble which can found in the Constitution of Barbados. One of the focal provisions and pertinent clauses expressed in the case that was pivotal in finalizing a decision with respect to compulsory membership can be found at sections 44-46 of the Legal Profession Act. The act retrospectively spoke to giving attorneys at law practising certificate, so long as annual subscriptions were paid. With respect to the certificate the judges used Rule 26.1 of the CPR to conclude and establish if the application by Mr. Khan in respect of the Certificate of Truth is fatal to these proceedings and if it can be rectified. The judges applied sections from the constitution which spoke to procedural fairness giving fundamental human right for fair trial with-out fair, favour, or prejudice. Analysis Section 44 of the LPA violates Ms. Pile's right under section 21 of the Constitution which protects her freedom of association. Therefore, in so far as section 44 of the LPA is inconsistent with the Constitution, the inconsistency is void. This is so, because The Constitution is the Supreme Law of the land and where any law is inconsistent with its provisions, then the extent of its inconsistency is void. And her constitutional right to freedom will be infringed so long as the LPA takes precedence. In the case of Minister of Home Affairs v Fisher [19801 AC 319 which dealt with the interpretation and application of the constitution, it clearly illustrates to why and give clarity as to why the LPA is unconstitutional and of no effect because it violates the Defendant's attorney rights under section 21 of the Constitution which protects her freedom of association. The court stated that, "A constitution is a legal instrument giving rise, amongst other things to individual rights capable of enforcement in a court of law. Wooding CJ in Collymore and Another v.

Legal Profession Act, Cap. 370A of Barbados Civil Procedure Rules 3.12(4). 2008 Constitution of Barbados (preamble) Legal Profession Act, Cap. 370A

Wooding CJ in Collymore and Another v. Attorney. General (1967) 12 W.I.R. 5

417002794

Attorney. General (1967) 12 W.I.R. 5 also, it was held that "the Industrial Stabilization Act infringed on the freedom to bargain collectively and the freedom to strike Though the court infer ‘procedural flowed’ on the application, when applying the law to the facts of the case, the Certificate of Truth is seen as not fatal to the proceeding since it can be rectified. With reference to Hannigan v. Hannigan [2000/ All E.R. (D) 693 CA the courts also viewed technical procedural shortcoming is not fatal enough to a proceeding and that it can be to an can rectified so too with Ms. Pile. It was stated in effect by Brooke LJ that even though the Civil Procedure Rules were drawn to ensure that civil litigation was brought up to a higher degree of efficiency, one had to bear in mind the overriding objectives and not get carried away about technicalities and unnecessary arguments which eat away into the party’s resources. However, was not a case where a certificate of truth was not filed but rather that the certificate of truth was not filed in compliance with the procedure set out in Rule 3.12(4) thus application therefore is procedurally flaw. Likewise In the Trinidadian case of Baroda (Trinidad and Tobago) Limited TT 2014 HC 350 the defendants sought to have the claimant's claim struck out on the ground that there was no certificate of value as required by CPR Part 8.7 and there was no certificate of truth by the second claimant as required by CPR Part 8.8. thus, giving the courts reason to strike application. Same also, in Mohammed J. reference the case of Fitzroy Phillips v. the Attorney General Civ App. No. 148 of 2010 When critically evaluating the how the court apply the law to the facts of the case particularly Part 5 of the LPA Code of Ethics and Rule 44, we see that Mr. Khan is a proper and professional person to make the instant applicant before the court. In order or procedure and chronology Mr Khan carry out his duties to the court with-out fear or favour. He also made sure and follow procedural steps in notifying Ms. Plie as necessary. Conclusion Mr. Khan, to be proper person to make the instant application before the court and saw that although the application was deemed as procedural flawed in respect to the Certificate of Truth, it was not fatal to these proceedings and can be rectified by Rule of 26.1 of the CPR. Whether the application made by Mr. Khan, attorney-at-law for the Claimant is fatal to the proceedings since he failed to provide the reasons for him giving the certificate of truth pursuant to Rule 3.12(4). Legal Profession Act, Cap. 370A of Barbados Civil Procedure Rules 3.12(4). 2008 Constitution of Barbados (preamble) Legal Profession Act, Cap. 370A

Wooding CJ in Collymore and Another v. Attorney. General (1967) 12 W.I.R. 5...