willock coi commission
During a press conference with his lawyer Richard Rowe, Speaker of the House Julian Willock refuted Commissioner of Inquiry Sir Gary Hickinbottom’s allegation that he had breached the Register of Interests Act for all three years he’s been in office. But the supporting documents he gave the media show that for the first two years of his term he filed his declaration of interests late and incorrectly. (File photo: JOEY WALDINGER)

Speaker of the House Julian Willock has denied personal responsibility for paying legal costs related to his withdrawn request for an injunction against three Commission of Inquiry attorneys. Instead, his lawyers argued, government should foot the bill.

The withdrawn request left the COI team and Attorney General Dawn Smith claiming legal costs of $71,388.59 and $6,084, respectively, according to a “judgment of costs” handed down on Sept. 13 by Adrian Jack, acting High Court judge for the Commercial Division.

Though the judgment did not include an ultimate decision on who should pay costs, it raised questions about the agreement Mr. Willock said he made with government and questioned his claim that he should not have to pay.

As part of the proceedings leading up to the Sept. 13 judgment, Mr. Jack ordered Mr. Willock to file an affidavit by Sept. 7 explaining the funding arrangements for his actions against the COI attorneys.

The speaker’s five-paragraph affidavit, which was included in the judgment, stated, “I hereby confirm that I instructed the lawyers at Silk Legal (BVI), Inc. to pursue this administrative law action on the understanding that the government of the Virgin Islands is covering the costs/fees of the matter. I have not paid for the lawyers of Silk Legal (BVI) Inc.; it is not my responsibility.”

However, the judge questioned this account, casting doubt on Mr. Willock’s insistence that he made an agreement with government to foot the legal bill. According to the judgment, Fiona Forbes-Vanterpool, representing the Attorney General’s Chambers, denied the existence of an agreement between Mr. Willock and the VI government. Depending on the amount, she added, any agreement would have required the authorisation either of the accounting officer for the House of Assembly or of the financial secretary, the judgment stated.

She added that the AG’s investigations showed that no such authorisations had been granted.

Mr. Jack stated that Mr. Willock should know if such an authorisation was made.

“If no such approval was given, how could the understanding be legally enforceable?” he wrote.

The judge added that Mr. Willock’s affidavit was also unclear about whether the understanding he said he reached  with government was legally binding or not, and whether it had been made with government or merely with Silk Legal.

Additionally, the affidavit doesn’t state which specific person in government agreed to pay the fees, and whether they had also agreed to pay the defendants’ costs as well as the speaker’s own, he added.

Mr. Jack gave the speaker  until the following day — Sept. 14 — to clarify the points he  made in his affidavit so that the judge could make his ultimate  decision about who should pay.

As of press time yesterday afternoon, the Beacon had found no new documents related to the case posted on the Eastern Caribbean Supreme Court website, where previous judgments have been posted.

However, in a statement released yesterday, Mr. Willock called the judgment an overreach and “judicial activism,” claiming it is “highly unusual” for the court to require a party to “prove how their lawyers are being financed.”

Original court case

The controversy began in August after Mr. Willock and Deputy Speaker Neville Smith requested an injunction to prevent the three lawyers — COI Counsel Bilal Rawat and solicitors Rhea Harrikissoon and Andrew King — from working in the territory until the conclusion of a court case scheduled to start in October.

The October case had been scheduled after Mr. Willock instructed Silk  Legal to file an objection on behalf of himself and  Mr. Smith, claiming that because the lawyers weren’t admitted to the VI bar, they had been practising law in the territory in breach of the Legal Profession Act 2015.

Earlier this month, Mr. Willock’s team announced that they had dropped the injunction request.

“The attorney general failed to give our client the authority to proceed; thus we had no alternative but to withdraw,” attorney Richard Rowe of Silk Legal wrote in a message to the Beacon at the time. Mr. Willock’s website, Virgin Islands News Online, reported at the time that the speaker now planned to take legal action against the AG after she failed to respond to his request to support the injunction attempt.

Mr. Jack’s Sept. 13 judgment also summarised the arguments made by Mr. Willock’s legal team regarding costs related to the withdrawn injunction request. On Sept. 2, Daniel Fligelstone-Davies of Silk Legal made various arguments in hopes of absolving Mr. Willock of responsibility to pay, the judgment noted.

For instance, he claimed that the speaker requested an injunction as an  “administrative action”  under section 56 of the Civil Procedure Rules, rather than a private action. According to section 56, an “administrative action” can be brought by “any body or group that can show that the matter is of public interest and that the body or group possesses expertise in the subject matter of the application.” Mr. Fligelstone-Davies argued that this section meant the court shouldn’t order the speaker to pay: According to the CPR, he stated, no order for costs may be made against an applicant for an administrative order unless the court decides that the applicant has acted “unreasonably” in applying.

Furthermore, for section 56 to apply, one party must be “the state, a court, a tribunal or any other public body,” according to the CPR. For those purposes, Mr. Fligelstone-Davies argued,  the COI is a “tribunal.”

However, Mr. Jack argued that CPR section 56 would not in fact apply, because the application for an injunction “appeared to be being brought on ordinary private law grounds.”

Furthermore, he said, the COI is not a “tribunal.” “The commission is purely investigatory,” he wrote. “There are no parties. Without applicants or respondents, it determines no rights.”

AG’s permission

The question of whether Mr. Willock needed the attorney general’s permission for the injunction request also arose again in the argument over whether the injunction request was an “administrative action.”

Mr. Fligelstone-Davies argued that under section 56 of the CPR, the speaker did not need to get permission from the AG before requesting the injunction.

But Mr. Jack said the speaker’s legal team should have pointed out that he was making an “administrative action” when it initially made the injunction  request.

“It cannot be assumed that the attorney general would have refused her fiat, had it been requested,” he wrote.

The court also discussed whether Mr. Willock had standing to make an “administration action” under Section 56 to begin with.

Mr. Fligelstone-Davies argued that as speaker, he did, according to the judgment.

But in the Sept. 13 judgment, Mr. Jack argued that Mr. Willock should have made his claim for standing under section 56 at the time the injunction was requested, but he did not. Instead, the judge noted, he
made it as “a side-wind in a costs determination without citation of any authority.”

Public interest

Mr. Jack also rejected Mr. Willock’s claim that he was working in the public interest under section 56. He added that by discontinuing the injunction, the speaker had abandoned “his pursuit of the public interest.”

If he had fought and lost, Mr. Jack argued, then he could make a case that he was acting in the public interest. Mr. Jack stated that Mr. Willock acted “unreasonably” in abandoning the action at the first indication that there might be procedural difficulties, noting that the abandonment caused “very substantial costs to be incurred by the defendants to no public benefit whatsoever.”

He concluded by ordering Mr. Willock and his legal team to file another affidavit by Sept. 14 to provide clarification on the questions the judge raised, after which he would determine costs.

Letter to AG?

Last week, VINO and other news sites reported that a leaked document apparently written by the speaker chastised Ms. Smith for allegedly “misleading” the court in the matter of the injunction. In a message to the Beacon, Mr. Willock stated, “My letter was confidential” and “I was not aware of the leak letter.”

He declined to provide a copy of the letter. Ms. Smith has not responded to multiple messages requesting comment.