The Punch Says: Lyons turned into 'Jekyll & Hyde' judge!

THE resignation of Australian-born Senior Justice John Lyons has left our chaotic court system in an even bigger mess.

Justice Lyons was carrying the burden of most of our commercial law cases. Now the enormous backlog of cases will increase.

At the present rate it is estimated that it will take 40 years to clear the backlog of cases in our courts. This is scandalous!

At first, Justice Lyons was on a mission to speed up the dysfunctional court system. He was also determined to clean up sloppy work by bungling, lazy lawyers. Too many of them were ill-trained and unprepared when they presented cases in court. Justice Lyons started out with good intentions. But it all went horribly wrong. The frustration of having to deal with a system that was in a total mass took its toll on the well-meaning, crusading Lyons.

Lawyers tell how he began to act strangely. He developed mood swings. One day he was charming and witty. The next, he'd switch to being bad-tempered and mean-spirited.

In the last two years, lawyers didn't know which Lyons they'd get in court. Lyons turned into a Jekyll-and-Hyde judge. He'd spend hours lecturing lawyers in open court on all kinds of subjects, except the case in front of him! SO, in the end, he was causing the backlog of cases to pile up even more! From being the solution to the problem, Lyons had become a part of it! His erratic, unpredictable behaviour was driving lawyers crazy. He'd suddenly declare that he was recusing himself from a case - and give no reason. Frustrated lawyers and their clients had to start all over again with a new judge!

The pressure of being overworked and underpaid in a chaotic court system seemed to be getting to Lyons. And he appeared to be losing his head. Then came the sensational ruling by his fellow-Justice Anita Allen.

She revealed in her ruling on a money-dispute case that Justice Lyons had shown poor judgment. He'd appointed accountant Daniel Ferguson to the money-row case even though Justice Lyons was dating Ferguson's sister Shonel Ferguson, the former Olympic athlete. Furthermore, Justice Lyons had overlooked the fact that Ferguson was not qualified to conduct a forensic accounting of the $100million being disputed in the Weisfisch money-row case.

Ferguson was paid $6million for compiling a report on the money case which was woefully inadequate. Even worse, it was also revealed that Ferguson hired his sister Shonel - Lyons' girlfriend - to help him compile the report.

The affair smacked of conflict of interest and "pillow-talk". Lyons was obliged to take the honourable course of action and resign.

He deserves credit for going gracefully. He could have forced officials to compel him to quit in disgrace in a blaze of bad publicity.

Like Caesar's wife, a judge must be "beyond reproach and above suspicion" of doing any wrong. After the Ferguson fiasco Justice Lyons could no longer pass that "perception" test.

So, he had to go. Lawyers are happy. But now Chief Justice Sir Burton Hall must quickly find a "suitable" judge to replace Lyons before our courts fall into an even bigger mess.

Originally published in The Punch, 11 May 2009.

Justice Lyons Resigns

In a dramatic move that had been anticipated in some circles, Senior Justice John Lyons has stepped down from the bench, heightening the public debate that was sparked in March when another senior judge criticized his actions in a controversial ruling.

The Nassau Guardian confirmed yesterday that Lyons formally advised the prime minister and chief justice of his resignation. While it is expected to come into effect in August, it is understood that he will go on leave as of Monday.

News of the judge's resignation emerged the same day The Guardian exclusively published details of a ruling he recently handed down, which was discussed at length in the Court of Appeal on Wednesday.

As indicated, his resignation came weeks after Senior Supreme Court Justice Anita Allen heavily criticized the appointment of an accountant with little experience, who was chosen by Lyons to prepare a financial report in a civil case.

Allen questioned the integrity of the report that was prepared by Daniel Ferguson, who is the brother of a woman who "has more than a friendship" with Lyons, according to her ruling.

Lyons was in his native Australia at the time of her judgment and many people had been waiting to see if he would provide any sort of response to the report.

In a written ruling on April 30, Lyons refers to a case he identified only as the "W" case. He handed down the ruling after attorney Fred Smith, a Callenders and Co. partner, requested that he recuse himself from a major case involving the Central Bank of Ecuador, Conticorp SA and other parties. This is unconnected to the "W" case.

As reported by The Guardian yesterday, Smith submitted that Lyons had showed hostility toward Callenders attorneys on more than one occasion and blamed them for the various newspaper articles that had been published about him and his private life, as well as his decision to appoint the accountant.

Lyons admitted that he had been angered by "recent occurrences" but said that had dissipated and he did not believe the objective observer would conclude that he would be biased toward Callenders and its clients.

Among other comments, Lyons remarked to one of the attorneys: "I see that Callenders is here, blood dripping from them after the execution."

In his ruling, Lyons said: "Reading the scriptures gives one great comfort and strength, particularly in difficult times. I am not the first person to have demonstrated anger at lawyers — See Luke Chapter 11 verses 45 to 54.

"No one would say that our Lord was biased against the clients of the lawyers. His great love for all of us knows no limitations."

In Smith's notes from the Lyons recusal matter that were entered into the record of the Court of Appeal on Wednesday, Lyons is quoted as saying to Smith, "You're predictable bringing your application (for recusal). I know you're following instructions. You and I go way back. I anticipated such an application after the judgment was handed down last week saying I am not fit to be a judge."

Smith responded: "My application is not that you're not fit to be a judge but that my firm acted in the case that brought the revelation (made in the Allen ruling) and having regard to some comments made as outlined in [the affidavits of two other Callenders attorneys]...For the reasons set out in our submission, there is a real danger that you may not be impartial in your deliberations. It may happen subconsciously."

According to the notes read in the Court of Appeal, Lyons said the approach taken by two firms in this town had attacked his conduct and the attorneys failed to follow the process in place. According to the notes, he declared that there had been an execution and the inference was that he doesn't carry out his oath without favor, is a liar, and is unfit to be a judge.

Lyons is quoted as saying that he will not create a precedent that "if you attack a judge publicly you can then come along and ask that judge to recuse himself."

News of his resignation came a day after the Court of Appeal heard Smith's appeal of the recusal decision. On Wednesday afternoon, President of the Court of Appeal Dame Joan Sawyer said the justices will make a decision at a later date.

The Central Bank of Ecuador case — a long running matter — was scheduled to start before Lyons next Tuesday. It was allegedly one of two lengthy matters Lyons had decided to hear this year.

The Ecuador case was scheduled for three months, including time for writing a decision.

Smith submitted in the Court of Appeal on Wednesday that as the hearing has not yet begun, prudence would lean on the side of being "safe rather than sorry" and lead the judge to be recused. He contended that the recusal was necessary to maintain public confidence in the court system and avoid the possibility that the public may perceive an unconscious bias.

Now that Lyons has stepped down, the Ecuador case will end up in the hands of another judge, although there is not yet an indication of how soon it will be heard.

This is not the first time Lyons has been at the center of controversy after a ruling.

On November 6, 2006, he handed down a hard-hitting judgment declaring that the judiciary was not independent because the Christie-led government failed to cause the appointment of a Judicial Review Commission on two occasions.

"The sole responsibility for this fiasco sits firmly at the feet of Cabinet," he determined in that ruling. "I am just the messenger. I know my lot. Like most messengers, I will surely be shot. The messenger can expect to be pilloried in the Parliament, on cue no doubt to a non-aligned member of the House, who will launch the attack during a debate on a bill that has nothing to do with the judiciary. The messenger can expect to be untruthfully scandalized in the tabloid press."

Chief Justice Sir Burton Hall later said he was troubled by the controversy this ruling caused in 2006. Sir Burton did not take press calls yesterday.

Originally published in The Nassau Guardian, 8 May 2009.

Nassau Grapevine, 23 April 2009

THE bitter court battle between two Israeli brothers has given The Punch "plenty play" as they say.

Rami and Amir Weissfisch - both permanent residents of The Bahamas - are fighting over $100million. But Rami, 62, has told judges who have heard the case that "somebody is leaking information on him to The Punch". Rami often comes into court clutching a copy of Punch. And a seemingly paranoid Rami has waved a copy of The Punch in the air and told the judge: "They've been talking to The Punch about me again!" Appeal Court President Dame Joan Sawyer denied a request by Rami's lawyer to have the case heard in private "behind closed doors". Rami reportedly didn't want Punch reporting the proceedings on his appeal against a ruling by Justice Anita Allen on the case with his younger brother Amir, 48. But Dame Joan told Rami that details of the case "had already been in The Punch, the paper with the biggest circulation". Rami is reportedly concerned that certain details of the $100million dispute may cause problems for him with the IRS, or the U.S. taxman. Rami has a $20million house in Palm Beach, Florida. The two other Appeal Court Justices hearing the Weissfisch case along with Dame Joan are Ammanuel Osadebay and Hartman Longley. On one occasion some time ago, Justice Osadebay said during a court hearing: "The trouble with civil servants is that on Mondays and Thursdays they spend all day reading and talking on the point about the gospel according to The Punch. And on those two days, they don't do any work" That's the power of the paper, soaraway knock-out Punch, folks! Punch is a London-style popular quality tabloid. There are 125,000 loyal readers of each edition of The Punch. Dame Joan also had a bit of "biblical advice" for the warring Weissfisch brothers.

She told them to read Psalm 133 in the Bible, which says: "How good and pleasant it is when brothers live together in unity!" The case has been raging on for five years in courts in Nassau, London, New York and Geneva, Switzerland.

So far, the two battling brothers have reportedly spent $20million on legal fees in a bid to settle the dispute over $100million. The two brothers were 50-50 partners in Metal Resources Group (MRG) - a Bahamas-based company. The Weissfisch boys are thought to be worth $200 to $300million each.

Originally published in The Punch, 23 April 2009.

Nassau Grapevine, 20 April 2009

THE appeal of Justice Anita Allen's ruling on a case which was presided over by Justice John Lyons will be heard this Monday. Appeal Court Justices Dame Joan Sawyer, Emmanuel Osadebay and Hartman Longley will hear the appeal.

The case involves a fight over $100million between Israel-born brothers Rami and Amir Weissfisch. The brothers are both permanent residents of The Bahamas. Lawyers for Rami have claimed that Justice Allen should recuse herself from the case on the grounds of her being biased. In her ruling, Justice Allen rejected the request for her to step down. She also commented on the actions in the case of Justice Lyons. She said that he had appointed accountant Daniel Ferguson to examine the two brothers' financials even though Justice Lyons was dating Ferguson's sister Shontell Ferguson at the time. She also pointed out that Ferguson was not qualified to conduct a forensic accountancy examination of the brothers' finances. Yet, he was allegedly paid $6million for supposedly compiling an "inadequate" report on the finances. And his sister Shontell was one of the team who worked on compiling the report. Justice Lyons recused himself from the brothers' case in September 2008. He reportedly said he was too busy to preside over the case any longer. Rami Weisfisch, 62, is represented by Wayne Munroe and PLP MP Philip "Brave" Davis. Rami was reportedly a big donor to the PLP's election campaign in 2007. He resides at Bay Roc apartments on Cable Beach. He also has a $20million house in Palm Beach, Florida. His younger brother Amir lives in Lyford Cay. He bought the home on a canal in LyCay from a member of the Bacardi family. At one point, the brothers were among the leading traders of metals in the world.

Originally published in The Punch, 20 April 2009.

Court To Hear Challenge Against Judge

The Court of Appeal will today hear a challenge of Senior Justice Anita Allen's refusal to step down from a civil case involving Israeli brothers Rami and Amir Weissfisch.

Justice Allen last month refused to step down from the case after she voiced concerns about the integrity of a forensic report prepared by Daniel Ferguson.

Ferguson is reportedly the brother of a close female friend of Senior Justice John Lyons, who appointed him to prepare the report.

Lyons, who originally had carriage of the matter, stepped down from the case in September 2008, claiming that he was too busy. The case was then transferred to Justice Allen.

While before Justice Allen, lawyers for Amir Weissfisch claimed that the appointment of Ferguson, whose sister is a close friend of Justice Lyons, created a conflict of interest.

During cross-examination in the case before Justice Allen, Ferguson admitted that he had no experience in forensic accounting. He said he worked an average of 50 hours a week, which amounted to $50,000 a week or $2.5 million a year.

Justice Allen said in her ruling on the recusal application that she had "serious concerns about the appointment of the accountant and, as a consequence, the integrity of the report."

Justice Allen determined that Ferguson's report was not "sufficiently thorough and complete to provide much assistance to the court".

Originally published in The Nassau Guardian, 20 April 2009.

Danny Was Paid $6m For Bungled Accounts Report

DANIEL Ferguson was reportedly paid $6million for his supposed "forensic audit report" in a case involving a row over $100million between two feuding brothers.

Expats Rami and Amir Weissfisch reportedly paid $3million each to settle the $6million accounting bill submitted by Ferguson in their case.

Justice Anita Allen has ruled that Ferguson's report and findings on the accounting books in the case "were inadequate and incomplete".

PLP MP and lawyer Philip "Brave" Davis, who represents Rami Weisfisch, has appealed Justice Allen's ruling on the accounting matter.

Rami Weisfisch's lawyers feel that Justice Allen should recuse herself from the case on the grounds of bias. But in her ruling Justice Allen rejected claims of bias and denied the request for her to step down from the case. Michael Scott, who represents Amir Weissfisch, 49, has reportedly submitted to the court a forensic audit conducted by a leading firm of accountants in London.

Justice Allen's ruling also questioned the handling of the case by Justice John Lyons. Australian-born Justice Lyons recused himself from the case in Sept 2008. Lyons appointed Ferguson as auditor in mid-2007. At the time Justice Lyons was dating Ferguson's sister Shonell Ferguson, a former Olympic athlete. Lyons instructed Ferguson to hire a qualified team of forensic auditors to compile his report.

Lyons set Ferguson's fee at $1,000 an hour. Ferguson said he spent 50 hours a week on the report - that's $2.5million-a-year. Ferguson also hired several others to assist him, including his sister Shonell, at a reported $500-an-hour. In her ruling, Justice Allen said that Ferguson had failed to hire forensic auditors, as ordered by Justice Lyons. Ferguson admitted that he did not have the experience or qualifications to conduct a forensic audit. As a result of the scandal, Ferguson is expected to resign as President of The Bahamas Institute Of Chartered Accountants (BICA). Rami Weisfisch, 62, donated big bucks to the PLP's campaign in 2007. Rami and Amir were 50-50 partners in the Metals Resources Group (MRG).

Originally published in The Punch, 30 March 2009.

Ex-A/G Wells urges probe of judge's conduct

Former Attorney General Tennyson Wells has called for an investigation into the conduct of Supreme Court Justice John Lyons for appointing the brother of a woman with whom he had "more than a friendship" to prepare a financial report in a civil case.

Justice Lyons' appointment of accountant Daniel Ferguson was harshly criticised by Senior Justice Anita Allen in her ruling in the case from which Senior Justice Lyons had stepped down. Mr Wells said that PM Hubert Ingraham, A/G Michael Barnett and Chief Justice Sir Burton Hall should implement what investigative process is required into Justice Lyons' actions in order to restore confidence in the judiciary.

"If what is stated in the press is true, then I believe that the PM is duty bound to cause an investigation to be taken with a view to having that particular judge removed for cause. Otherwise the judiciary will be made a laughing stock."

Originally published in The Punch, 27 March 2009.

Appointment Made by Judge Lyons Criticized

Senior Justice Anita Allen has heavily criticized the appointment of an accountant with little experience, who was chosen by Senior Justice John Lyons to prepare a financial report in a civil case.

In a ruling delivered yesterday, Justice Allen questioned the integrity of the report that was prepared by Daniel Ferguson, who is the brother of a woman who "has more than a friendship" with Justice Lyons. She criticized the report, saying it was "not sufficiently thorough and complete to provide much assistance to the court".

Ferguson was selected by Justice Lyons in October 2007, according to the judgment. It was also disclosed in the judgment that Ferguson's sister was part of the team hired by him to do the work.

The ruling noted the accountant said he worked an average of 50 hours a week which amounted to $50,000 a week or about $2.5 million per year for the work.

Ferguson was directed by the judge to "put together the best team you can."

Justice Lyons stepped down from the case in September 2008 on the basis that he "did not have time" to hear the matter.

Justice Allen, who is now hearing the case, said in her ruling that she "had serious concerns about the appointment of the accountant [Ferguson] and, as a consequence, the integrity of the report."

Ferguson's mandate — based on the findings of Justice Lyons that the two parties in the civil matter had operated a business pursuant to a partnership of honor between 1992 and March 31, 2000, and agreed to distribute the profits 50/50 — was to determine the amount of the profits, and make other determinations.

Lawyers Alan Steinfeld, QC, and Michael Scott, who appear for the unnamed party identified in the judgment only as 'A', said that "Mr. Justice John Lyons had literally forced the appointment on them, threatening to walk out of court if they did not agree the appointment".

Justice Allen said, "The transcript of October 11, 2007 is replete with references to the judge threatening to leave the case if the appointment was not agreed and, at one point, got up to leave when counsel begged him to have a seat. The judge was asked by one counsel if it was an ultimatum, to which he responded 'you bet it is'."

Justice Allen detailed the evidence regarding Ferguson's experience and qualifications during a hearing to determine whether she should approve his report. That hearing began on March 16.

Justice Allen said, "On the first day of the hearing before me, the accountant was asked and denied that he had a social relationship with Senior Justice Lyons. On the second day of cross examination, he was asked whether a relative of his had any relationship with Senior Justice Lyons to which he responded that he didn't get into his sister's business, but he knew she and the judge were friends. He also admitted that she was part of the team employed by him to do the work."

Justice Allen said it was at this point that she made the connection between the accountant and information in the public domain that Justice Lyons had "more than a friendship with a woman, who up to that point I did not know was the accountant's sister".

While before Justice Allen, Ferguson admitted that he became a certified public accountant in 1985 and he had participated in two forensic accounting exercises in his career. Ferguson said that he "read up on the subject after his appointment to understand his engagement and made inquiries of Deloitte and Touche and PriceWaterhouse to assist him with the preparation of the necessary program and the choice of his team. He also said he had consultation with the former accountant Ellison and his partner in London."

It was also revealed that Ferguson's last auditing experience occurred before he became a qualified accountant. He also agreed that he had never been certified an account. Ferguson also admitted that the only skilled members of his team "were himself and a part-time accountant".

Justice Allen continued, "The accountant admitted he had only gathered the documents and put them into piles and did not examine them to see what was missing for his second interim report and that his only attempt to identify them was in the final report...He also agreed he had made no effort to compel the production of any missing relevant documents by reference to the Court. He said he did not determine what was there and what was missing."

Justice Allen determined that the accountant's report was not "sufficiently thorough and complete to provide much assistance to the court".

As a result of this finding, Nicholas Lavender, QC, who appears for the party identified only as 'D', asked Justice Allen to recuse herself from hearing the matter. The application for recusal has been refused.

"Having ascertained all of the circumstances which have a bearing on the suggestion that I am biased and having asked myself whether a fair-minded observer informed of all of these circumstances would conclude that there was a real possibility that I was biased, the resounding reply is 'no,'" she said in her ruling. "I have absolutely no doubt that I can objectively decide the issue before me."

Originally published in the Nassau Guardian, 25 March 2009.