Court name
Supreme Court of Turks and Caicos Islands
Case number
CL 11 of 2022

James Gale v The Bar Council of the Turks and Caicos Islands and the Attorney General (CL 11 of 2022) [2022] TCASC 17 (29 April 2022);

Media neutral citation
[2022] TCASC 17
Case summary:

This is a ruling in respect of an application for Limited Admission which was issued by Mr Tim Prudhoe Attorney at Law on behalf of Mr James Gale on 25 February 2022 (the Application). Mr Prudhoe (the sponsoring attorney) applied for Mr James Gale (Mr Gale or the applicant) to be granted limited admission to practise as an attorney of this court. The relevant statutory provisions for interpretation and application are: Sections 8(1), 8(2) and 5(1) and 4(3) of the Legal Profession Ordinance Cap 2.10 (LPO).

Headnote and holding:

Application refused on the basis that the Chief Justice was not satisfied that Mr Gale has demonstrated either the experience in legal practice or expertise in the subject matter of proceedings CL 88/2021 for the purposes of Section 8(1) of the Legal Profession Ordinance.

The Court found from reading of the relevant portions of the legislation, that the grant of limited admission is within the discretion of the Chief Justice, who must be satisfied that the requirements set out in sections 8 (1) and 8(2) have been met. Therefore, the starting point was to consider what the sponsoring attorney must satisfy the Chief Justice of regarding the applicant, and the reason for the application. [8]   

This duty is discharged when the sponsoring attorney provides evidence to satisfy the Chief Justice that:

  1. the applicant has the necessary qualifications under section 5(1) of the LPO; and
  2. they have instructed such person for the purpose of “appearing, acting and advising” in the suit or matter which limited admission is required for. [9]

To satisfy the Chief Justice, is also to provide the Chief Justice with material to be used in the exercise of judicial discretion, which must lead to a just and equitable result. The Chief Justice will have regard to all of the particular circumstances surrounding the suit or matter concerned. Considerations include the difficulty or complexity of the matter, the resources and support available to the particular attorney-at-law who has instructed the person proposed to be admitted, the availability of local lawyers, the importance of adequate safeguards to protect the growth and development of the local Bar and to prevent the outsourcing of legal work save in exceptional cases, the applying party’s need for adequate legal representation taking account of the nature and complexity of the case, the expertise and experience of the counsel seeking admission, whether their work is being conducted in or from within the TCI and their involvement in the conduct of the litigation. [10] ( In the Matter of Certain Applications for Limited Admissions, as an Attorney at Law [2009 CILR 41];  In the Matter of Various Applications for the Grant of Limited Admission as an Attorney-at-Law of the Cayman Islands [2015] (2) CILR 338, considered).

In refusing the application, the Court considered the applicant had almost 6 years standing at the Bar of England and Wales, without any demonstrated expertise in the area of the case at hand, and nothing else to speak for him, save that he possesses legal qualifications from prestigious institutions. This did not in the Court’s opinion qualify him to be admitted for a limited purpose within the intendment of Section 8. [14]

Coram
Agyemang, CJ

 

IN THE SUPREME COURT

TURKS AND CAICOS ISLANDS

CL 11/2022

 

IN THE MATTER OF Sections 5(1) and 8 of the Legal Profession Ordinance 

 

AND IN THE MATTER of an application for JAMES GALE to be granted limited admission to practise as an Attorney of this Honourable Court for the purposes of civil Supreme Court matter CL88/2021.

 

BETWEEN:

James Gale

Applicant

v.

The Bar Council of the Turks and Caicos Islands

The Attorney General

Interested Parties

 

 

CORAM:                                        M.M. Agyemang CJ

Appearances:                            Mr Tim Prudhoe for the Applicant.

Mr Selvyn Hawkins amicus curiae with Ms Sarah Knight  for the Bar Council and Ms. Clemar Hippolyte for the Attorney General amicus curiae.

Venue:                                          Supreme Court Annex, Leeward Highway, Providenciales.

Handed down on:                   29 April 2022.

__________________________________

JUDGMENT

__________________________________

 

Brief Factual Background

  1. This is a ruling in respect of an application for Limited Admission which was issued by Mr Tim Prudhoe Attorney at Law on behalf of Mr James Gale on 25 February 2022 (the Application). Mr Prudhoe (the sponsoring attorney) applied for Mr James Gale (Mr Gale or the applicant) to be granted limited admission to practise as an attorney of this court, to assist him in proceedings in CL 88/2021 which relate to the interpretation of the term “spouse” in the Immigration Ordinance and a determination of whether it includes persons in same sex marriages[1]. This suit is the first of its kind in this jurisdiction.

 

  1. Notice of the Application was subsequently provided to the Bar Council of the Turks and Caicos Islands (the Bar Council) and to the Attorney General’s Chambers, the attorneys for the defendants in CL88/2021.

The Procedural History and Evidence

  1. The Application was supported by the first Affidavit of Mr Gale sworn 31 January 2022, in which he swore that he had the qualifications required by Section 5 (1) of the LPO. Mr Gale swore that he received his Bachelor of Laws in 2015, completed the Bar Professional Training Course and was called to Bar of England and Wales in July 2016, he was in good standing, and further that he received a postgraduate degree in Civil Law from Oxford in 2018. Also filed in support of the Application was the first affidavit of Mr Tim Prudhoe sworn 31 January 2022 in which he deposed that he was called to the TCI Bar in 2000, recited Mr Gale’s credentials, and asked that Mr Gale be admitted to assist him as junior counsel in CL 88/2021. He also brought to the Court’s attention that Mr Ivan Hare QC, a foreign attorney, had been admitted and appeared on behalf of the Attorney General in CL 88/2021.

 

  1. Mr Prudhoe swore a second affidavit on 24 February 2022 and brought to the Court’s attention that the Bar Council intended to object to the Application. The Bar Council and the Attorney General were joined to these proceedings as interested parties. The Bar Council submitted a statement on 2 March 2022 particularizing its objection to Mr Gale’s application for limited admission.  The Bar Council’s main objections were that CL 88/2021 was not sufficiently complex as to warrant foreign counsel, members of the local Bar should be empowered to tackle cases such as CL 88/2021, and that Mr Gale had no seniority or particular expertise in “appearing, acting, or advising” in cases such as CL 88/2021. The parties filed written submissions on 15 March 2022.

 

  1. The applicant subsequently provided evidence in answer to the Bar Council’s objections and in further support of the Application, in the form of an affidavit of Edward Claude, a paralegal in Mr Prudhoe’s Chambers sworn 16 March 2022. Mr Claude brought to the Court’s attention, the status of CL 88/2021 at that time, and that he could not find a record of Mr Hare’s limited admission in the Registry. By his affidavit, Mr Claude also placed before the court, evidence about the legal regime surrounding limited admissions in Anguilla, Antigua & Barbuda, Belize, Bermuda, the British Virgin Islands, Grenada, Montserrat, St Kitts & Nevis, St Vincent & the Grenadines, Trinidad & Tobago, Barbados, the Cayman Islands, Jamaica and the Bahamas.

 

  1. This matter came up before the Court on 18 March 2022 and the Court ordered the Registrar to provide copies of the application documents and order of the limited admission of Ivan Hare QC. The Court also ordered the Bar Council to provide its records on limited admissions.  After the hearing on 8 March 2022, two further affidavits were sworn in support of the Application. The 2nd affidavit of Edward Claude sworn 30 March, 2022 by which he exhibited the application documents in Ivan Hare QC’s Limited Admission, and detailed the Bar Council’s position in relation to previous applications for limited admission. As well as the affidavit of Andwena Lockhart, an Attorney at Law in Mr Prudhoe’s Chambers, sworn 12 April 2022 by which she outlined inter alia the number of limited admissions of attorneys since 2012, as many as 142. This Court has carefully considered the evidence and the parties’ submissions.

                                     

Consideration of the Issues

The Legislation

  1. The relevant statutory provisions for interpretation and application are: Sections 8(1), 8(2) and 5(1) and 4(3) of the Legal Profession Ordinance Cap 2.10 (LPO).  I reproduce them as follows:

 

8. (1) Subject to this section, any person who possesses the qualifications specified in section 5(1) or is exempted under section 4(3), and who has come or intends to come to the Islands for the purpose of appearing, acting, or advising in a suit or matter, may be admitted as an Attorney by the Chief Justice.

(2) An application for admission of such person under this section may be made by an Attorney enrolled in the Islands who shall satisfy the Chief Justice that he has instructed such person and that such person has come or intends to come to the Islands for the purpose of appearing, acting, and advising in that suit or matter.

5. (1) The qualifications referred to in section 4(1) are that such person—

(a) (i) has been called to the bar or admitted as a solicitor or an attorney in some part of the Commonwealth or the Republic of Ireland; or

(ii) has obtained a Certificate of Legal Education from the Council of Legal Education of the West Indies; or

(iii) has obtained a Diploma of Legal Practice from an institution approved by the Law Society of England and Wales; or

(iv) is qualified to practise as an attorney under regulations made under section 30; and

(b) has not been disbarred or struck off the roll of attorneys of any court in any part of the Commonwealth or the Republic of Ireland or has not done any act or thing which would render him liable to be disbarred or struck off the roll of attorneys of any such court.

 

  1. It seems to me from a reading of the relevant portions of the legislation, that the grant of limited admission is within the discretion of the Chief Justice, who must be satisfied that the requirements set out in sections 8 (1) and 8(2) have been met. Therefore, the starting point is to consider what the sponsoring attorney must satisfy the Chief Justice of regarding the applicant, and the reason for the application.   

 

  1. This duty is discharged when the sponsoring attorney provides evidence to satisfy the Chief Justice that:
      1. the applicant has the necessary qualifications under section 5(1) of the LPO; and
      2. they have instructed such person for the purpose of “appearing, acting and advising” in the suit or matter which limited admission is required for.

 

  1. To satisfy the Chief Justice, is also to provide the Chief Justice with material to be used in the exercise of judicial discretion, which must lead to a just and equitable result. The Chief Justice will have regard to all of the particular circumstances surrounding the suit or matter concerned[2]. Considerations include the difficulty or complexity of the matter[3], the resources and support available to the particular attorney-at-law who has instructed the person proposed to be admitted, the availability of local lawyers, the importance of adequate safeguards to protect the growth and development of the local Bar and to prevent the outsourcing of legal work save in exceptional cases, the applying party’s need for adequate legal representation taking account of the nature and complexity of the case, the expertise and experience of the counsel seeking admission, whether their work is being conducted in or from within the TCI and their involvement in the conduct of the litigation[4].

 

Applying the law to the Application

  1. CL 88/2021 is a novel case which may or may not be complex, but has been accorded sufficient attention by the Attorney General who has instructed Queen’s Counsel with over 30 years’ experience at the Bar to undertake the conduct of the case. Therefore, Mr Prudoe’s application for the admission of a foreign counsel to instruct him, is fair and ought not to be discouraged. On the contrary, in order that a definitive pronouncement on the subject of same sex marriage may be made by the court, experience generally, gained in many years of legal practice, especially one recognised by the honorific of ‘Queen’s Counsel’ may be to accord proper importance to the subject.

 

  1. That then brings me to Mr Gale who has brilliant academic qualifications, but not much experience in legal practice. He was called to the Bar of England and Wales in July 2016, in terms of years of general practice, he has very little experience. Nor has there been a demonstration that in the particular case in which his involvement is requested, he possesses any degree of expertise or expertise at all.

 

  1. To the court’s question regarding such expertise, learned counsel for the applicant’s response has been to exhibit limited admission applications over a period of time, in which no question of such expertise arose, was asked, or demanded. In my judgment, that misses the point. If I were inclined to fully examine each of the examples of limited admission in this jurisdiction exhibited in this application (and I am not so inclined), I daresay, that what stands out as the running thread is legal experience of a number of years, enough to persuade the Chief Justice in the exercise of judicial discretion, to grant the application, for such a person for the purpose of “appearing, acting, and advising”.

 

  1. In this case, the applicant has almost 6 years standing at the Bar of England and Wales, without any demonstrated expertise in the area of the case at hand, and nothing else to speak for him, save that he possesses legal qualifications from prestigious institutions. This does not in my opinion qualify him to be admitted for a limited purpose within the intendment of Section 8. The relevant portion of section 8 reads:

8. (1) Subject to this section, any person who possesses the qualifications specified in section 5(1) or is exempted under section 4(3), and who has come or intends to come to the Islands for the purpose of appearing, acting, or advising in a suit or matter, may be admitted as an Attorney by the Chief Justice.

(2) An application for admission of such person under this section may be made by an Attorney enrolled in the Islands who shall satisfy the Chief Justice that he has instructed such person and that such person has come or intends to come to the Islands for the purpose of appearing, acting, and advising in that suit or matter.

 

  1. This is quite different from the general admission under section 4 which reads:

4 (1) Subject to the provisions of this Part, the Chief Justice after Consulting the Bar Council-

(b) may admit as an Attorney any other applicant,

who has obtained the qualifications specified in section 5(1) and who has gained the experience specified in section 5(2), and who in the opinion of the Chief Justice is otherwise a fit and proper person to be so admitted.

 

  1. The only qualifications for general admission under section 4 of the LPO, which is brought by an application under section 6, is to be found in section 5 of the LPO. Section 4(3) provides that the Chief Justice may in the exercise of his or her discretion to exempt a person from the qualifications and experience requirements contained in section 5(1) and 5(2). It is clear then that for general admission all that is required is the fulfilment of the requirements set out in section 5(1) and 5(2) which is made up of qualification and experience. Section 5(2) provides that an applicant must have not less than 3 months’ training in the practice of law under the supervision of an Attorney admitted to practice in the Islands for not less than 2 years, and not less than 5 years’ experience in practice outside the islands.

 

  1. With regard to section 8 however, beyond the qualifications set out in section 5(1), or the possible exemption granted under section 4(3), is this additional requirement: that an attorney enrolled in the islands, must satisfy the Chief Justice that he has instructed such person and that such person has come or intends to come to the islands for the purpose of “appearing, acting and advising” in that suit or matter.

 

  1. While section 8(1) in describing the duties of a person to be granted limited admission uses the disjunctive “or”, which would suggest that the person may be doing any one of these: “appearing, or acting, or advising”, the consideration with which the Chief Justice must be exercised in order to admit under section 8(1) is contained in section 8(2), which unlike section 8(1) uses the conjunctive “and”, and therefore would suggest that the sponsoring attorney must satisfy the Chief Justice that the person is in a position to do all three, which is “appear, act and advise”. It seems to me therefore that upon a purposive interpretation, a limited admission permits a local attorney to bring in a foreign attorney who is in a position “to appear, to act and to advise”. Furthermore, the person must have received instructions to do so, from the local attorney. In my view the section 8(2) considerations which qualify section 8(1), would upon a purposive interpretation, permit a local attorney to bring in the enhanced skill of a professional with the experience gained in many years of legal practice, or expertise in a particular area with which the case is concerned, to assist the court in a case of sufficient complexity or novelty to come to a proper judgment.

 

  1. Thus the sponsoring attorney must satisfy the Chief Justice that he has instructed such person, and that the person will perform the following duties: “appearing, acting and advising”. It seems to me that such, would negate the bringing in of a person with little experience in the practice of law (in terms of years of legal practice). I would however make an exception for a person who although possessing limited experience in the practice of the law, has demonstrated expertise in the area of law with which the suit in which he seeks limited admission is concerned.  

 

  1. Thus, in these two circumstances: experience or expertise, limited admission may be granted, but not otherwise. It seems to me therefore, that a limited admission should not be granted in the circumstance in which a local counsel with considerable experience in the practice of law, brings in a foreign attorney with little experience in the practice of the law to merely assist the local counsel in his case as junior counsel, rather than to “appear, act and advise” in the matter, as appears to be the circumstance in the present application.

 

  1. Mr Prudhoe who is the sponsoring attorney in this application, is an attorney with considerable years of experience in the practice of the law in these islands and elsewhere. I am not satisfied that the present applicant who has seven years of legal practice, and no demonstrated expertise in the particular area of CL88/2021, qualifies for limited admission, as one whom he has instructed to “appear, act and advise” in the case CL 88/2021, within the intendment of section 8.

 

  1. Having said this, I will now have regard to what is central to the objection of the Bar Council, that members of the local Bar be empowered to tackle such cases, and that when limited admission is granted it be reserved for attorneys who bring in enhanced expertise, for example a Queen’s Counsel, and not just another Junior Counsel. It is not an argument that finds disfavour with me, although I am not inclined to rest my decision on it.

 

  1. In his skeleton argument. Mr Prudhoe sets this question; “how can it be fair to the litigants bringing the claim in the Proceedings for the other side to have the freedom to instruct foreign counsel on the basis of temporary admission, but not they themselves”. That completely misses the point of the Bar Council’s objection, and of this ruling. The plaintiff in CL 88/2021 may instruct counsel of sufficient experience or expertise for the purpose of “appearing, acting and advising” in that suit or matter, and still has the opportunity to do so, if so inclined. He may just not instruct the present applicant for that purpose.

 

 

Disposal

  1. I would therefore refuse the Application on the basis that the Chief Justice is not satisfied that Mr Gale has demonstrated either the experience in legal practice or expertise in the subject matter of proceedings CL 88/2021 for the purposes of Section 8(1) of the Legal Profession Ordinance. 

 

 

 

Sgd.

M.M. AGYEMANG, CJ

 

 

[1] As sworn to in the first Affidavit of James Gale.

[2] In the Matter of Certain Applications for Limited Admissions, as an Attorney at Law [2009 CILR 41] at [4] per Foster Ag. J.

[3] Ibid at [7] per Foster Ag. J.

[4]. In the Matter of Various Applications for the Grant of Limited Admission as an Attorney-at-Law of the Cayman Islands [2015] (2) CILR 338 at [22] per Smellie C.J.