4th February 2023
The Honourable Mr. Justice Ivor Archie O.R.T.T.
Chief Justice of the Republic of Trinidad and Tobago
Hall of Justice
PORT OF SPAIN
Dear Honourable Chief Justice,
Re: Civil Claim No. CV2020-01243 between Shervon Peters and ors v the Attorney General of Trinidad and Tobago
On the 30th January 2023, Master Martha Alexander delivered judgment on an assessment of damages in the captioned claim for malicious prosecution. Damages were assessed to by paid by the Defendant to the Claimants in the following sums:
i. Damages for malicious prosecution with an uplift for aggravated damages in the sum of TT$2,000,000 each with interest at the rate of 2.5% per annum from May 29, 2020 to January 30, 2023;
ii. Exemplary damages in the sum of TT$100,000 each;
iii. Expert’s costs in the sum of TT$68,000; and
iv. Prescribed costs in the sum of TT$200,917.56.
On 1st February 2023, the Honourable Attorney General (“AG”) held a press conference, at which he indicated that the State’s file in this matter mysteriously disappeared soon after the claim was served on the State. The AG further indicated that the State was only able to obtain a copy of the file when Minister Stuart Young (who was acting as AG at the time) requested a copy of the file from the Registrar of the Supreme Court. This press conference can be viewed in its entirety by accessing the following link – https://www.facebook.com/likeAGLA/videos/907330184022037
A careful read of Master Alexander’s judgment, however, reveals that the AG was represented by Counsel, Ms Karen Reid Ballantyne at the trial of the assessment of damages, who actively participated in the matter. The judgment records that Ms Reid Ballantyne filed written submissions and made oral arguments to the Court in this matter.
It could hardly be argued that an Attorney could competently represent his/her client in Court without a file. The following rules of the Code of Ethics in the Legal Profession Act are apt:
“21. (1) An Attorney-at-law shall always act in the best interests of his client, represent him honestly, competently and zealously and endeavour by all fair and honourable means to obtain for him the benefit of any and every remedy and defence which is authorised by law, steadfastly bearing in mind that the duties and responsibilities of the Attorney-at-law are to be carried out within and not without the bounds of the law.
(2) The interests of his client and the exigencies of the administration of justice should always be the first concern of an Attorney-at-law and rank before his right to compensation for his services.
22. (1) Before advising on a client’s cause an Attorney-at-law should obtain full knowledge thereof and give a candid opinion of the merits or demerits and probable results of pending or contemplated litigation.” (Emphasis added)
On the 1st December 2022, Ms Reid Ballantyne was appointed a Puisne Judge of the High Court. She has enjoyed a distinguished career at the Bar (both locally and regionally) and has also served in high public office. Ms Reid Ballantyne is the former Solicitor General of Grenada and a former Assistant Solicitor General of Trinidad and Tobago. Additionally, Ms Reid Ballantyne has worked at the Attorney General’s Chambers (British Virgin Islands), as Senior Legal Advisor to the Government of Montserrat, and as an associate at the law firm of Harbour Chambers BVI in the British Virgin Islands.
It is trite law that an Attorney acts on the instructions of his client, on whose behalf he/she advocates the case. The allegation that Madam Justice Reid Ballantyne conducted an entire trial to assess the damages in this case without having a file is a serious matter. If correct, it amounts to a gross dereliction of duty, professional negligence, and flagrant violation of the Code of Ethics that governs the legal profession. This would render her unfit to hold the office of Judge in the Supreme Court of Justice, which requires that Judges possess a high level of personal and professional integrity and impeccable character. Furthermore, Judges are accountable to the Constitution and to the law, which they must apply honestly, independently, competently, and with integrity.
By press releases dated the 2nd and 3rd February 2023, we have called upon Madam Justice Reid Ballantyne to clear the air on this troubling allegation, as a matter of urgency. To date, however, she has not done so. Her silence will fuel the perception that the allegations made by the AG against her are credible, correct, and justified. This will bring the administration of justice into disrepute and adversely impact on public confidence in the Judiciary.
Indeed, the memes on social media and contributions to radio talk shows are, as expected, rather uncomplimentary with the frequent rhetorical question being asked, “if she can represent the AG without a file, can she not also write a judgment without a file?”
For the record, we find the allegations made by the AG to be incredible, baseless, and malicious. We take the position that it is a sinister attack on the integrity of a sitting Judge that is designed to deflect attention from the AG’s incompetence, mismanagement, and poor leadership at the Ministry of the Attorney General.
We are, however, troubled by the continuing silence of the learned Judge in the face of these serious allegations against her character, competence, and professionalism. It is, therefore, with great reluctance we feel compelled to write to you to seek your intervention in this delicate matter as we are of the view that the longer this wound is allowed to fester, the greater the damage to the Judiciary and the administration of justice.
We therefore call upon you to issue a public statement on this matter about the Judge’s role in this trial to assess damages, which resulted in the highest ever award of damages to the tune of over 20 million dollars , which will come from the public purse. We wish to remind you that the Judiciary, has in the past, issued statements to provide clarification when allegations are made against a sitting Judge.
Further, we note that two retired Judges have been politically appointed by the AG to investigate this matter. For the record, we consider this investigation to be a sham and a waste of time and money because the AG, as a matter of law, cannot investigate himself. The investigation is, therefore, deficient and tainted from the start because it offends the cardinal rule against apparent bias.
Whilst the Honourable Prime Minister has indicated that the investigation will be conducted at arm’s length from the AG, the fact that the AG has personally selected and appointed these retired Judges is in and of itself grounds for apparent bias that vitiates and taints the entire investigation. In this regard, it should be noted that the AG has no statutory power to launch such an investigation, which is at best, an internal administrative enquiry that could have easily been conducted by the Permanent Secretary of the Ministry of the Attorney General (who is appointed by the independent Public Service Commission).
The Judiciary and the learned Judge should, therefore, be careful that they do not in any way participate in validating or legitimising this politically convenient investigation that is designed to do damage control for the Government. As an independent institution of the State, the Judiciary must issue a statement of its own volition to ensure that there is no breach in the Constitutional separation of powers that underpins the relationship between the Executive and Judicial Arm of the State. It is likely that there may be litigation arising out of this ill-conceived, ill-advised, and ill-fated investigation by aggrieved persons whom the Government may wish to throw under the bus in an attempt to deflect attention from the political shortcomings and leadership failures of the AG.
In the circumstances, we do not think it necessary to escalate this matter into a formal complaint to the Judicial and Legal Service Commission, as we are confident of your favourable and prompt response.
With the highest regard for your office.
Kamla Persad-Bissessar S.C., M.P.
Leader of the Opposition