David Dorsett v Attorney General

• Jurisdiction: Montserrat
• Judge: Carrington JA
• Judgment Date: 01 June 2022
• Judgment citation (vLex): [2022] ECSC J0601-2
• Docket Number: MNIHCVAP2020/0026
• Court: Court of Appeal (Montserrat)

Between:

David Dorsett

Appellant

and

Attorney General

Respondent

Before:

The Hon. Mde. Gertel Thom Justice of Appeal

The Hon. Mr. Paul Webster Justice of Appeal [Ag.]

The Hon. Mr. John Carrington, QC Justice of Appeal [Ag.]

MNIHCVAP2020/0026

THE EASTERN CARIBBEAN SUPREME COURT

IN THE COURT OF APPEAL

Civil appeal — Inherent jurisdiction — Appointment of counsel amicus curiae — — Whether the court can appoint an attorney amicus curiae against his will — Whether the appointment of amicus curiae constitutes employment under the Code of Ethics to the Legal Profession Act — Difference between standby counsel and amicus curiae

The appellant is an attorney at law who was admitted to practise in Montserrat in 2014. He was retained by an accused person in criminal proceedings to represent him on a number of issues up to arraignment and appeared for him in several matters between 2016 and 2020. The accused eventually indicated to the court that he wished to represent himself at the criminal trial. However, the court refused to grant the appellant leave to withdraw from the proceedings and further appointed him amicus curiae to assist the court in cross-examining six vulnerable witnesses for the Crown. The appellant refused this appointment.

The appellant commenced administrative proceedings seeking relief under Part 56 and section 20 of the Constitution of Montserrat seeking several heads of declaratory relief, his main issue being: ‘can the court appoint an attorney amicus curiae against his will?’ The learned judge considered the rights of the appellant under the Constitution and under the Code of Ethics and found that the court acted reasonably and in accordance with settled legal principles, and the order appointing the appellant as amicus curiae was made ex abundante cautela in the circumstances and in the express exercise of its inherent jurisdiction.

On appeal, the appellant's position was that the learned judge had failed to answer the question of whether the court can appoint an attorney amicus curiae against his will. He also posited that he was entitled to decline or withdraw from employment pursuant to the Code of Ethics. The respondent contended on the other hand that the true question to be determined was whether the appellant should be allowed to leave the matter after holding himself out as counsel for the accused and that the question of entitlement to refuse employment simply did not arise as the appellant remained engaged by the accused until he was granted leave by the court to withdraw.

Held: dismissing the appeal and making no order as to costs, that:

• 1. The appointment of counsel amicus curiae is not employment. The court cannot enter into an employment relationship with a person appearing before it as that would fly in the face of the need for impartiality in the judicial proceedings. The power to appoint an attorney amicus curiae is derived from the court's inherent jurisdiction, i.e. its reserve of powers as a superior court that is essential to the administration of justice and the maintenance of the rule of law and the Constitution. Any limitation on the inherent jurisdiction of a superior court must arise from express legislation or necessary implication.

• 2. The Code of Ethics, where it speaks to the right to decline employment, does not meet either of these criteria and so did not limit the inherent jurisdiction of the court in making such appointments. Therefore, the appellant was not entitled to decline his appointment as amicus curiae pursuant to clause 9 section A of the Code of Ethics. In any event, as Persad J in the criminal proceedings had refused to grant leave to the appellant to withdraw from representation, he was constrained to act for the accused in the criminal proceedings.

  Section 37(3) of the Legal Profession Act, 2014 No. 8 of 2014 of the Laws of Montserrat applied; Fahey v The Queen [2017] NZCA 596 considered; Her Majesty The Queen v Criminal Lawyers' Association of Ontario and Lawrence Greenspon 2013 SCC 43 considered.

• 3. Every person who is subject to an order of the court risks facing sanctions for contempt for failure to obey. The product of our adversarial system of justice is that court orders are almost invariably made against the will of persons save for consent orders. Therefore, an order of the court appointing the appellant amicus curiae could not have been made in vain merely because the appellant was so appointed against his will.

• 4. The court below did answer the question posed by the appellant in the administrative proceedings by considering whether the appellant had any statutory or constitutional rights to decline the appointment as amicus curiae.

Appearances:

Dr. David Dorsett in person for the Appellant

Ms. Renee Morgan for the Respondent

1 Carrington JA [AG.]: This appeal concerns the question of whether the court can appoint an attorney at law as amicus curiae against his will. As this is a question of public importance under our system of law, this Court heard the appeal notwithstanding that to a large extent the question had become academic at the date of the hearing due to a change of circumstances. The appellant's position was that the learned judge below had failed to answer that question in his judgment, and it was therefore necessary for this Court to so do. He invites this Court to make declarations that he is entitled to refuse employment, including employment to act as amicus curiae, and that his appointment as amicus curiae in contravention of his right to decline employment as provided by clause 9 of Part A of the Code of Ethics contained in Schedule 3 of the Legal Profession Act, 2014 1 (“ LPA”) was unlawful and is accordingly null and void and of no legal effect.

2 As there is little or no dispute on the facts, I summarise the background facts extracted from the judgment in the court below. The appellant is an attorney at law who was admitted to practise in Montserrat in 2014. He gave evidence that he was engaged by Mr. David Brandt (“Mr. Brandt”) to represent him with respect to constitutional issues, issues of statutory interpretation and preliminary issues up to arraignment in a criminal matter in Montserrat.

3 The appellant in fact appeared on behalf of Mr. Brandt on several applications between 2016 and 2020, including at the preliminary inquiry in December 2016 and on appeal therefrom; in the High Court seeking constitutional relief and on appeal therefrom; at a case management hearing of the criminal trial in May 2019; at the trial itself on an application to quash the indictment; on an application for the trial judge to recuse himself for apparent bias in July 2019 and on appeal therefrom in January 2020; and on an application to have Mr. Brandt's bail restored in November 2019. The appellant additionally had sent a ‘Notice of Counsel’ to the Director of Public Prosecutions in January 2018 indicating that he acts as counsel for Mr. Brandt and in May 2019 wrote to the Registrar of the High Court on behalf of Mr. Brandt.

4 In June 2019, Mr. Brandt indicated to the court that he would represent himself at the criminal trial. In March 2020, Persad J appointed the appellant amicus curiae to assist the court in cross-examining six vulnerable witnesses for the Crown at the criminal trial. Persad J also referred to the fact that he had given the appellant adequate opportunity to put forward reasons why he should not be appointed. His finding was that the reasons given were not sufficient to prevent the court from appointing the appellant to assist the court in relation to the cross-examination of the vulnerable witnesses. The directions/orders made by Persad J were: (a) refusal to give leave to the appellant to withdraw from his representation of Mr. Brandt; and (b) the appointment of the appellant as amicus curiae. This appointment was later revoked by Persad J.

5 The appellant commenced administrative proceedings seeking relief under Part 56 and section 20 of the Constitution of Montserrat 2 (the “ Constitution”) in the High Court seeking several heads of declaratory relief. The court recorded at paragraph 20 of its written judgment, however, that he framed the thrust of his submission as:

‘can the court appoint an attorney amicus curiae against his will?’ i.e. the same question that we are asked to determine on this appeal

6 Ms. Morgan who appeared...