OPENING OF THE NEW LAW TERM 2007/8
SPECIAL SITTING
THURSDAY 20 SEPTEMBER, 2007

Address by Lisa E. Penn-Lettsome, President, BVI Bar Association

Your Ladyship, I intend, as usual, to be brief but I would like to take this opportunity to put on record a few observations and in doing so, I know that I speak on behalf of all members of the BVI Bar Association.

My Lady, I stood in this very same place for the opening of the 2006/7 Law Term and set out a “Wish List” for this Court, our Resident Judges and for the legal fraternity in the BVI. I have checked my own Annual Report for the preceding year as well as the Chief Justice's remarks at the opening of the 2006/7 Law Term where his Lordship’s matters of mention coincided with or enhanced mine and my purpose here today is to briefly assess where things stand today.

My, Ladyship, on the matter of the commercial court, I am pleased to say that I was able to make a small contribution to efforts earlier this year to pen the necessary legislative machinery that will pave the way for such a court here in the BVI under the mandate of the Eastern Caribbean Supreme Court. The Law Reform Commission with the able assistance of former Appellate Judge Michael Gordon, the Law Reform Commissioners, its Chairman, and a couple of members from the private Bar have forged ahead in completing the commercial court rules necessary to complement our existing rules. I am very pleased to see the efficiency with which this task has been conducted and am assured that a commercial court in the BVI will soon be a reality.

It would no doubt be a welcome relief to all stakeholders if the BVI Government can press ahead with equal haste to actually deliver new and improved physical facilities for this High Court. This, Madam, remains high on the Bar Association’s Wish List for while the new and improved facilities are not required for the Commercial Court itself to be established, there is no gainsaying the fact that the present physical facilities of our court are grossly inadequate. The details of the inadequacies have been enumerated on previous occasions and are known to all of us and so there is no need to repeat them here again today.

I now turn to the matter of our Magistracy and recall that the Chief Justice spoke a year ago about plans to integrate the Magistracy into the Eastern Caribbean Supreme Court structure. Much preparatory work has been undertaken on this too, and in June of this year I had the privilege to meet with a Mr. Dennis Darby and Ms Hyacinth Lindsay – consultants for the Integration of National Magistracies project. I left the consultants with no uncertain view of the Bar’s concern also for the security of our Magistrates, Judiciary and staff and hope that this issue will also be addressed post haste.

One other matter on our Wish List, My Lady that I must also raise here is that of the Legal Profession Act. Indeed, this was a matter which Presidents well before my time have been pushing for with earlier efforts not really taking a firm hold. Suddenly, my Lady, in early 2006 this draft legislation was dusted off and all stops were pulled out to get the legislation passed by June 2006 including the most intense consultation exercise in recent memory of the Bar Association. Alas, as mysteriously as it appeared, the LPA seems to have disappeared. I continue to be approached at a rate of about 2 a month by those who have absolutely no ties to the BVI, about the possibility of one being admitted in the BVI. Whether the LPA was resurrected by insincere motives or not, and whatever political hurdles it may have met in the past, the reality is that the law fraternity in the BVI continues to be an unregulated one with admissions essentially being granted unconditionally for life, and with no clear procedures in place for disciplining such lawyers when there is need for it. The version of the LPA that had its first reading in January 2007 represented a well thought out and modern piece of legislation that had been crafted to meet BVI challenges and while there may be been sections that could have been fine-tuned so as to lead to less severe interpretations, not passing the legislation at all puts the BVI ten steps back at a time when it came close to taking one step forward. It is, My Lady, to throw out the proverbial baby with the bath water. I sincerely hope that now that two members of the fraternity and of the Association are sitting on a certain side of the House of Assembly that efforts to have the LPA passed in some acceptable form can be revisited.

Finally, My Lady, I wish to draw to your attention the fact that the BVI Bar Association has recognized that the Bar Schedule of Suggested Fees has not been revised over the past 13 years and have begun efforts to remedy the situation. A small committee comprising of two of her Majesty's Queen Counsel and another very senior lawyer are presently working towards a revision of this schedule and hope to continue and complete work of this within the next few months. I am aware that rare though it is, the Court is sometimes referred to this document and so it is in the interest of all that this exercise results in a more modern and realist schedule of suggested fees.

My Lady, in conclusion, I would say that the foregoing represent the major issues for the Bar Association at this time. The Association continues to be a lively forum for networking, discussion and debate and membership continues to grow consistently. At present, we have approximately 121 persons registered as members but only 90 of those are actually alive and residing in the jurisdiction. Of that 90, I am pleased to report that 80 members have paid their dues up to the end of August and 4 new members have been approved just this month. This equates to 92 per cent of resident membership active. To formally mark the opening of the New Law Term we hope to be able to receive our Court of Appeal judges at a reception to be held next week, my Lady and very much look forward to having you join us to mark the occasion.

Lisa E. Penn-Lettsome
President

OPENING OF NEW LAW TERM
18th SEPT, 2006
BRITISH VIRGIN ISLANDS

Address by Lisa E. Penn-Lettsome, President, BVI Bar Association

I am honoured to deliver this address today, as President of the BVI Bar Association.

Several months ago, I pledged to increase the profile of the BVI Bar Association, in our community. Concomitant with this is the need to increase the profile among its own members as they must take an active part in ‘ownership’ of the Association. I believe that I have managed to set out on both roads. For example, the BVI Bar Association has, since February, 2006 been invited to serve on 14 external committees and is represented on all but 1 of them. Also, a higher number of members have renewed their annual membership than the immediate past year. I am heartened that meetings are well attended in person, including by senior members of the Bar who continue to show their overwhelming support for the Association.

This address that I am about to deliver, in the short but valuable time that I am given today, contains a message for the Government, a message for the Bench, and a message for the general public.

New Court House – an oft repeated plea
Firstly, given where I am standing today, it would be remiss of me, were I not to open by reiterating several earlier pleas over the years for the erection of a modern and more appropriate court house. Such a facility is pivotal to the essential practice at the Bar. The court house is to the lawyer and client what a hospital is to a doctor and his patient. The BVI is fast becoming, if not already is, the centre for commercial litigation in the Commonwealth Caribbean region and the demands of such litigation have already out stripped the present facilities.

The Government is already aware of what is needed to even marginally improve what we presently have. We need
1. a facility with much larger court rooms in order to accommodate large cases with several lawyers, voluminous exhibits and a heavy media presence,
2. a facility with multiple court rooms so that both resident judges can sit every single day without having to endure the inconvenience of shared facilities,
3. a facility that physically houses the court with its offices, and its registry in a single location.
I am aware of a Government Information Service news release of 2004 that announced Government’s intention to revive this project. Following that announcement, my predecessor attended a presentation by the Public Works Department, in this very building to discuss draft designs and drawings. The legal fraternity has heard nothing since. An update would be welcome.
Legal Aid
I turn now to another outstanding but critical subject. Legal Aid. On every occasion on which I am afforded the opportunity to speak, I have raised this issue. The BVI society is fast developing in all respects. I quote myself when I say that, “…with development come the good, the bad, and the indifferent”. The demands on Government as the primary provider of social services for its denizens multiply several fold. There is no gainsaying the fact that need for legal aid is a modern day reality.

The present interim arrangements under the MOU between the Government and the BVI Bar Association are now bursting at the seams. The BVI Bar Association now makes another appeal to the Government for its response to our 2004 proposals for the establishment of a dedicated and independent Legal Aid Council. It is imperative that we move forward dialogue on this matter.

Bench / Bar cooperation
I now turn to the topic of co-operation between the Bench and the Bar.

At a judges’ conference held in July in Dominica, Ms Nicole Sylvester, then Secretary and now (as of Saturday 16th Sept) President of the OECS Bar, presented a paper on “Bench Bar Relations: Issues and Concerns”. The paper was circulated among the legal fraternity as well so that members are aware of it. Rather than duplicate her effort, I would like, on behalf of the BVI Bar Association, to fully support the issues and suggestions raised therein and to repeat her pledges of assistance that the OECS Bar Association stands ready to deliver. Some of the highlights of her paper are as follows:
1. the tardiness with which pensions and gratuities are paid to our retired judges,
2. the need to enhance personal security for our judges and our magistrates
3. the lack of adequate court facilities for our judges and magistrates, and
4. the need to provide for improved security of tenure for magistrates
The BVI Bar Association joins with the OECS Bar Association in calling attention to these matters. Our judiciary ought to be treated with the dignity and respect that such office commands.
Other matters raised in the paper include
1. the need for harmonisation of the application and interpretation of the Civil Procedures Rules, and
2. the need for more frequent practice directions to assist in the uniform interpretation and application of the Rules.
In that same paper, a sensible and practical recommendation is made as follows:
Consideration should be given to the opportunity at the local level, at least quarterly, for the Presidents and / or an assigned Executive member of the Bar to meet with the Resident Judges and the Registrar to look at issues affecting the system. It should not await a crisis.
I feel that there is much merit in this suggestion.

Regulating the Legal Profession
Allow me to say a few words on present efforts to regulate the profession. This year, the BVI Bar Association is pleased to have been part of the process to review draft legislation aimed at regulating the legal profession. This piece of legislation, when passed, will mark a watershed in the history of the legal fraternity of the Territory.

Such legislation has been long in coming. Every month, I receive, on average, 4 requests from persons overseas for information relating to admission to the BVI Bar. These are persons who, for the most part, have no connection to the BVI whatsoever but who wish to be admitted here in order to be able to give legal advice, mostly in corporate law. I have also recently been provided with an opinion on BVI law written by a legal service provider who is not admitted to practice law in the BVI. In light of such trends, the BVI Bar is pleased to learn that the present intention is to create a regime of temporary, and annual practicing certificates for lawyers wishing to be admitted to practice BVI law; additionally, that a residency requirement will also be imposed as a qualification for admission. Naturally, members are not all agreed on the details for it is impossible to pen the applicable provisions in a style that would please over 100 persons. However, the attempt to regulate, modernise and weed out the profession, so to speak, is a move that is welcome by the BVI Bar generally.

Turning to the public at large, I am heartened to be able to inform them that the proposed legislation will also positively impact them. This is because the legislation, when passed, should contain a code of ethics governing the appropriate behaviour of lawyers, including their relationship with their clients. It should also contain a comprehensive regime to deal with complaints and the discipline of all lawyers. The Bar Association feels that this would provide a fair process to deal with legitimate and meritorious complaints and other serious grievances.

Conclusion
I welcome this opportunity to raise awareness of these issues and also as an avenue to compliment and not only to critique. I will close by publicly stating in this

court room, and as the new law term opens, that, through me, each and every member of the BVI Bar Association hereby renews his or her commitment to service and dedication to, and professionalism and excellence in, the legal profession and the practice of law.

Thank you.

Lisa E Penn-Lettsome
18th September, 2006