Going after Queen’s Counsel —the whys and wherefores

Half a century after T&T became independent, and a decade after a final appellate court was set up in the region, why do British Queen’s Counsel still appear, as sure as night follows day, at the start of any major court matter in Port-of-Spain? Last week, for instance, businessmen Steve Ferguson and Ishwar Galbaransingh went before the court to challenge the repeal of Section 34 of the Administration of Justice (Indictable Offences) Act. Their legal team is headed by two senior QCs, Michael Beloff and Edward Fitzgerald

The State’s lead attorney is Lord David Pannick, QC, whose team includes Allan Newman, QC. But Attorney General Anand Ramlogan, former Chief Justice and President of the Caribbean Court of Justice Michael de la Bastide, and former Attorney General Ramesh Lawrence Maharaj all dismissed the notion that T&T is fixated with British QCs because of a colonial idea that foreign is superior to local.

The AG gave a list of other reasons why governments and organisations sometimes prefer to hire a QC rather than a local barrister. “It’s not a colonial thing at all. Ours is a small bar with a lot of talent but with some limitations, and it’s necessary to hire foreign lawyers for certain types of matters,” he began. “We do not have a legal history of investigating and prosecuting financial fraud. Hence the hiring of British QCs for the Clico/HCU Commission of Enquiry.

“Many of the parties were also forced to retain foreign silk with the relevant expertise. The Office of the Director of Public Prosecutions, for the same reason, is sometimes forced to resort to British QCS in novel and complex matters.” Ramlogan recalled the former PNM administration’s prosecution of former UNC leader and prime minister Basdeo Panday. “In the prosecution of Panday, a QC was retained, no doubt in part because of the novelty and complexity of the offence.”

In other cases, foreign lawyers may be retained because the State wants to avoid allegations or perceptions of conflicts of interest, the AG added. “In the Uff and Clico enquiries, for instance, the narrow pool of lawyers at the top of the game in the local bar may have been conflicted, because they either did work for the companies involved or invested money in them.” He said organisations like PriceWaterhouse and the Central Bank and individuals like Calder Hart and Lawrence Duprey hired foreign silk to avoid allegations of bias.

British QCs may be retained in political cases for the same reason, Ramlogan said. “In highly political cases, to avoid the perception of bias, the State goes outside. For example, John Jeremie, attorney general under the former PNM administration, retained British QCs to represent the State against former chief justice Sat Sharma. “President George Maxwell Richards also opted for foreign QC and appointed Lord Mustill when he had to convene the tribunal to try Sharma. 

“In several other matters against UNC officials, foreign QCs were hired, including some from the Caribbean like Dr Lloyd Barnett, who was Jeremie’s academic colleague from the law faculty of the University of the West Indies.” The international reputation of a QC and his sway and persuasion present another important reason for hiring him, Ramlogan said. Caribbean lawyers have not enjoyed a tradition of rich scholarship and erudite academia, the AG noted.

“Books are seldom published and legal articles are a rarity. UWI has not stimulated or created a vibrant legal academia. “That has been slowly changing over the last five to eight years, but the academic development of the legal profession remains a sore point. Organisations would rather go for someone who has written a textbook or article considered a legal authority.”

Responding to Maharaj’s charge that the Government wastes a lot of taxpayers’ money hiring an unnecessary battery of junior counsel and instructing attorneys to assist the QCs it retains, the AG said there is a constant attrition and depletion of State lawyers because of the poor remuneration packages. “But junior counsel from the local bar outside is also utilised because the State has a duty to develop the whole legal profession,” he noted.

He recalled that Maharaj retained foreign junior counsel for the Lord McKay commission of enquiry into the administration of justice when he locked horns with de la Bastide over the funding of the judiciary.

What price, justice? 

Some British Queen’s Counsel charge lower fees than local Senior Counsel, says Attorney General Anand Ramlogan. Responding to questions about whether T&T was fixated with British QCs, and the perception they cost a pretty penny, the AG said, “Believe it or not, some British QCs are actually cheaper to hire when one compares the bills submitted by local silk.”

He cited the statements of costs submitted by UNC financiers Ish Galbaransingh and Steve Ferguson to the AG’s department. The pair, who were before the courts on fraud charges, are claiming legal costs from the State. Ferguson’s bill of costs amounts to $69 million, the majority of which has been attributed to work done by local QC Bruce Procope. Galbaransingh is claiming $7 million.

Ramlogan dismissed the idea that British QCs, when they come to T&T, must travel first class and be put up in five-star hotels. Noting it’s difficult to give an average cost since it depends on the nature of the case and its duration, Ramlogan said, “Not all of them insist on travelling first class. “Foreign silk are usually quite co-operative. I sometimes negotiate with them not to travel first class but business or premium economy.

“I refuse to accommodate them at the Hyatt or the Hilton, but house them in government quarters to save money.” Ramlogan said it would be impossible to give a specific cost for retaining a QC. “They charge hourly rates and it varies with the seniority of the silk, the area of expertise and the nature of the brief. “But, generally, their fees can range from £10,000 to £50,000.” (Approximately TT$100,000-500,000.)

Another legal source, agreeing that QCs can actually be cheaper than SCs, said for most civil matters, senior counsel charge between $120,000 and $180,000. For murders in the high court, the fee can range from $250,000 to $300,000, he said. The source said he had a huge land matter at the Privy Council and the QC’s fee was less than £15,000. A senior lawyer in private practice, however, said: “Start at $1 million,” but later contacted the T&T Guardian to say: “I understated it.”

For a major case, said the attorney, the initial fee on brief at the start of the case would be £150,000—about TT$1.5 million—with refreshers at ten per cent after day one of the case. For a matter such as the Section 34 constitutional motion, then, a single senior QC’s fee would be about £180,000 ($1.8 million) so far—after a week. “But both sides are going to the Privy Council,” noted the lawyer, “so they need to budget all the way up to and including the Privy Council.”