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.
