The New Today
Local News

PSC wins against Derick Sylvester – Part II

Dr. Francis Alexis QC – represented his colleague barrister-at-law

The Public Service Commission (PSC) has taken to court one of its former heads, Attorney-at-law Derick Sylvester and won a case against him in front of female high court judge, Justice Agnes Actie.

Female lawyer Karen Samuel moved against Sylvester who was representing an individual who had brought a case against the PSC.

Samuel had asked the former commission head to remove himself from the case on the grounds of conflict of interest.

Justice Actie in handing down her ruling issued the following orders against Sylvester who was represented in the matter by Queen’s Counsel, Dr. Francis Alexis.

It is hereby Ordered and Directed as follows:

(1) The application for the Law Firm, Derick F. Sylvester and Associates, be recused as legal practitioners for the claimant is granted.

(2) The Law Firm, Derick F. Sylvester & Associates, is hereby restrained from further acting and is hereby removed from the record as the Legal Practitioners for the claimant, Augustine Pascall, in these proceedings.

(3) The Law Firm, Derick F. Sylvester & Associates, shall pay costs to the Applicant, Public Service Commission, in the sum of $750.00 within twenty-one (21) days of today’s date.

(4) The matter shall be listed for further hearing and to enable the claimant to retain new counsel on a date to be arranged and notified by the court office.

As a public service, THE NEW TODAY reproduces the court ruling by Justice Actie against attorney Sylvester:

Law and Analysis
[16] The test to be applied whether a legal practitioner should be refrained from acting was restated by Thom JA in the Court of Appeal decision in Honourable Guy Joseph v The Constituency Boundaries Commission Etal above. The test is whether a fair-minded, reasonably informed member of the public would conclude that the proper administration of justice requires that a legal practitioner should be prevented from acting, in the interests of the protection of the integrity of the judicial process and the due administration of justice, including the appearance of justice.

[17] The question is whether, having regard to the relationship existing between Mr Derick Sylvester as legal practitioner for the claimant and as former chairman of the PSC, there is a real and appreciable risk that the fair-minded and reasonably informed member of the public would conclude that Mr. Derick Sylvester and/or his firm should be restrained from continuing to act in the interest of the protection of the integrity of the judicial process and the due administration of justice, including the appearance of justice.

[18] Dr. Alexis QC is of the view that applying the principles espoused by the Court of Appeal in Honourable Guy Joseph v The Constituency Boundaries Commission, the PSC cannot succeed in its application. Dr. Alexis QC contends that the application should be refused as there is no evidence that Derick Sylvester had any direct dealings with decisions affecting the claimant, Augustine Pascall. As the evidence refers to Mr. Sylvester’s dealings with an unrelated matter, namely Francis Robertson.

[19] In Honourable Guy Joseph v The Constituency Boundaries Commission, the appellant filed an application for an order restraining the Commission from retaining the services of Mr. Astaphan SC, to represent it in the proceedings on the ground that inter alia that Mr. Astaphan, SC’s close and notorious relationship with the Prime Minister, the Chairman of the Commission, as well as his political alignment with the Saint Lucia Labour party will lead a fair minded and informed observer to conclude that there was a real possibility that Mr. Astaphan, SC would not bring to the discharge of his duties an unbiased mind and so would likely infect the Commission with his prejudices and predilections. The Court of Appeal affirmed the High Court decision where the judge found that the evidence presented did not prove conclusively that Mr. Astaphan SC was retained to represent any of the parties in the underlying claim prior to the commission retaining him or that the Attorney General or any other person directed or influenced the Commission to retain Mr. Astaphan SC. The learned judge concluded that there could not be any perception that there is a real and appreciable risk that the administration of justice would be adversely affected if Mr. Astaphan, SC represented the Commission in the underlying claim.

[20] The court in making the determination whether to restrain an attorney from acting must have regard to the attorney’s conduct in its entirety. The evidence before the court reflects the minutes of meetings dealing with issues in relation to Mr. Francis Robertson who is holder of the substantive post in which the claimant, Mr Pascall acted for nice (9) years.

[21] The claimant in this case is seeking judicial review to reverse the decision of the PSC in reverting him to his substantive post after having acted in a higher post for approximately nine years. It is the PSC’s defence that the substantive post was not vacant as it was held by Mr. Robertson. It is the evidence that Mr. Derick Sylvester made a request for information seeking, inter alia, information as to who was the substantive post holder and what are the full particulars of his alleged assignment, including where he was assigned, for how long, on what terms, when was he due to return and when did he in fact return; when is the substantive holder due to retire; details of the claimant’s pension and NIS benefits in the position that he was reverted to (Grade F) and the benefits that he would have obtained had he been confirmed in the substantive post (Grade I);

[22] The minutes of meetings of the PSC detailed below reveals the following meetings:

i (i) 20th January 2014- Transfer of Mr. Francis Roberson, Technical Officer, Ministry of Tourism to act in the office of Policy Development Officer, Cabinet Secretary, Office of Prime Minister with effect from 3rd February 2014.

ii (ii) 5th January 2015 – payment of salary at a higher point in Grade K to Mr. Francis Robertson, Policy Development Officer (Ag)- PSC rescinded decision of 20th January 2014 (above) and as a special case appointed Mr. Francis Robertson to act at a specified approved rate from 3rd February 2014 until further notice.

iii   (iii) 4th September 2017- Request for release of Mr. Francis Robertson to the OECS Tourism Competitiveness Project – PSC terminated the acting appointment of Mr. Robertson Ministry in the office of Policy Development, Cabinet Secretariat and reverted him to his substantive office of Technical Officer, Ministry of Tourism, Civil Aviation, Culture and Cooperatives from 31st August 2017. Mr. Robertson was released as Technical Officer to take up an assignment with the World Bank funded OECS Tourism Competitiveness Project with effect from 1st September, for a period of two years in the first instance.

In all these meetings Mr. Derick Sylvester is recoded as the chairman of PSC.

[23] This court is of the view that the facts in this case are very different from the case of Honourable Guy Joseph v The Constituency Boundaries Commission Joseph. The court found that there was no evidence that Mr. Astaphan SC had acted for the appellant in previous proceedings or had acquired any personal knowledge of the appellant due to a previous attorney-client relationship.

[24] It is evident from the minutes of the meetings of the PSC that Mr. Derick Sylvester as Chairman deliberated and made decisions in relation to the transfer of Mr. Robertson, terms and conditions of his transfer, and emolument of the substantive post in dispute. Mr. Sylvester in request for information from the PSC requested elation to the transfer of Mr. Robertson, terms and conditions of his transfer, and emolument of the substantive post in dispute. Mr. Sylvester in request for information from the PSC requested precise information in relation to all the issues discussed during his tenure. This would all have been information which he would have deliberated and decided upon which is now relevant to his client’s case.

[25] Dr. Francis Alexis QC states that the PSC was under a duty of candour to disclose all the relevant information. The court accepts Queen’s Counsel’s assertion that the PSC in judicial review proceedings is under a duty to provide all reasonable evidence to the court in support of its pleadings in relation to the substantive post which is alleged not to be vacant.

[26] The Privy Council in Dennis Graham v Police Service Commission and the Attorney General of Trinidad & Tobago5 states “It is well established that a public authority, impleaded as respondent in judicial review proceedings, owes a duty of candour to disclose materials which are reasonably required for the court to arrive at an accurate decision6”.

[27] The duty of candour to the court imposes the burden on the PSC to adduce all the relevant evidence to support the lawfulness of its decision in reverting Mr. Pascall to his substantive post. The information requested by Mr. Sylvester in the court’s view are all relevant information that the PSC should have laid before the court.

[28] However, counsel for the PSC asked that the court take into consideration the sequence of events leading to the application as outlined in the Affidavit of Naomi Jeremiah. It is the evidence that Ms. Samuel made overtures to Mr. Sylvester’s chambers to consider their acting in this matter after the filing for request for information when it was discovered that Mr Sylvester was then chairman of PSC. It is the evidence that Mr. Sylvester did not respond but rather proceeded to file a witness statement by Mr. Francis Robertson, the alleged substantive post holder, in anticipation of the trial.

Related:  GRENLEC exonerated from house fire

[29] Whether or not to disqualify the legal practitioner from further acting depends on the nature of the issue to be decided and the significance of the decision concerned. The court looks at the character of the office of the decision-maker as chairman and the express entrenched constitutional nature of the Public Service Commission.

[30] The Court of Appeal in the Honourable Guy Joseph v The Constituency Boundaries Commission et al7 said:

“The court always has an inherent jurisdiction (i.e. the authority) to restrain solicitors from acting in a particular case and to control its processes to ensure the proper administration of justice. If there are circumstances which are likely to compromise the discharge of these duties to a court by a legal practitioner acting in a case, whether because of some prior association with one or more of the parties against whom the legal practitioner is then to act, or because of some conduct by the practitioner (whether arising from associations with the client or a close interest which gives rise to the fair and reasonable perception that the legal practitioner may not exercise the necessary independent judgment), a court may conclude that the legal practitioner should be restrained from acting, even for a client who desires that the legal practitioner continue to represent him. (My Emphasis)

[31] Rule 1(3) of the Legal Profession Act provides “where in any particular matter, explicit ethical guidance does not exist, an attorney-at-law shall determine his conduct, by acting in a manner that promotes public confidence in the integrity and efficiency of the legal system, and the legal profession”.

[32] The court will restrain an attorney from acting for a party where it is demonstrated that there are circumstances which show a real risk that the independence or objectivity of the legal practitioner has or may be compromised. It is accepted that there is no evidence of Mr. Sylvester making decisions in relation to the claimant, Mr. Pascall. However, the deliberations taken with respect to Mr. Francis Robertson go to the core of the PSC defence that the substantive post held by Mr. Robertson post was not vacant to afford the claimant’s (Mr. Pascall) confirmation in the post.

[33] The court when deciding whether to restrain Mr. Sylvester from acting is also required to look at the perception of those persons whose rights or interests will be affected by the outcome of the substantive claim which included that of the highly confidential constitutional post of Chairman of the Public Service Commission. The House of Lords in Jefri Bolkiah v KPMG (a Firm) referring duty of confidentiality held “Like a solicitor, an accountant providing litigation support services owed a continuing professional duty to a former client following the termination of the client relationship to preserve the confidentiality of information imparted during the subsistence of the relation8”.

[34] By analogy, Mr. Sylvester as Chairman of the PSC is required to preserve the confidentiality of all information and deliberations obtained during his tenure as from 2015 to 2018.

[35] Thom JA at paragraph 77 of the judgment in Joseph v The Constituency Boundaries Commission said
……
What was left remaining was evidence of a relationship. In the small societies of the Caribbean, it is not unusual for counsel appearing to have a relationship with one or more than one party involved in the litigation. What must be shown in those circumstances for the court to exercise this very exceptional jurisdiction is that as a result of that relationship, having regard to the issues before the court, there is a risk that counsel would not perform his/her obligations to the court with the objectivity and independence required of him/her.”

[36] The court accepts that the decisions of the PSC are public as the outcome of the decisions are published in the ministry or department to which the officer is assigned. What is not public are the deliberations and rationale leading to the final decision. Those are integral matters within the knowledge of the Chairman and other members of the PSC involved in the decision-making process.

[37] Thom JA at paragraph 80 of the judgment in Joseph v The Constituency Boundaries Commission cited with approval the decision in Black v Taylor9 where a solicitor was restrained on the ground of conflict of interest where it was shown that the solicitor who had acted for the family over the years and who was in receipt of confidential information relevant to the issue in the proceedings was retained to act for one member of the family in a family dispute.”

[38] Applying the principles outlined in Joseph v The Constituency Boundaries Commission and Jefri Bolkiah v KPMG (a Firm), this court is of the view there is compelling evidence before this court to restrain Mr. Derick Sylvester from continuing to represent the claimant in the substantive claim. As chairman of the Public Service Commission, he was privy to confidential information in the decision-making process and had acquired personal knowledge of the status of the substantive post of the Technical Officer now in dispute.

[39] The court has a duty to maintain and instill public confidence in administration of justice. The harm that may be brought to the reputation of a highly constitutional body in that of the Public Service Commission cannot be disregarded, in that its chairman having been integral in the decision-making process would use his knowledge to advance his client’s case against the same Public Service Commission. This, in my view, would erode public confidence in the Public Service Commission and in the administration of justice.

[40] It has been said that the disqualification is not only granted where there is a pecuniary interest, but where it connects the individual in a substantial and meaningful way with the issues in dispute. The chairman of the PSC entrusted to decide the fate of public servants must under the rule of reticence avoid the appearance of bias. It would ruin the integrity of the Public Service Commission to allow the perception that a former chairman can use information that became known to him as chairman to advance his client’s claim.

[41] The court is of the view that a reasonable fair-minded person sitting in court and informed of all the relevant facts would from an outward view conclude that there is a reasonable suspicion that Mr. Derick Sylvester having been the chairman of the Public Service Commission and integrally involved in the decisions affecting the substantive holder had full knowledge as to whether or not the post was vacant. The court is of the view that the firm of Derick F. Sylvester and Associates should not continue to act on behalf of the claimant in the interest of the protection of the integrity of the judicial process and the due administration of justice, including the appearance of justice.

[42] The court commends the overtures made by counsel Ms Karen Samuel as colleague to Mr Derick Sylvester to consider his voluntarily recusal before filing the extant application. In my view, Mr Derick Sylvester, being cognisant of the full facts, should have accepted that there are lines that may have been crossed and/or a potential conflict of interest in his previous position as chairman especially considering the issues relating to the circumstances of the substantive post holder, Mr Francis Robertson. The failure to recuse himself at the earliest necessitated an adjournment of the trial to determine the application. Parties are expected to behave reasonably in the conduct of litigation to assist the court and to save time and expense in meeting the overriding objective of the CPR 2000.

[43] Taking all in the round and for the reasons advanced above, the application to restrain the Law Firm of Derick F. Sylvester & Associates from further acting in the proceedings is granted, with costs to the applicant in the sum of $750.00.

ORDER
[44] It is hereby Ordered and Directed as follows:

(1) The application for the Law Firm, Derick F. Sylvester and Associates, be recused as legal practitioners for the claimant is granted.

(2) The Law Firm, Derick F. Sylvester & Associates, is hereby restrained from further acting and is hereby removed from the record as the Legal Practitioners for the claimant, Augustine Pascall, in these proceedings.

(3) The Law Firm, Derick F. Sylvester & Associates, shall pay costs to the Applicant, Public Service Commission, in the sum of $750.00 within twenty-one (21) days of today’s date.

(4) The matter shall be listed for further hearing and to enable the claimant to retain new counsel on a date to be arranged and notified by the court office.

Agnes Actie
High Court Judge
By the Court
Registrar