Tiffanne Thomas v AG
Child advocate sues Government for $2.6m
A social worker is to sue the Government for more than $2.6 million over a failure to pay for her work as an independent advocate for children in court.
Lawyers for Tiffanne Thomas have filed a civil action against the Attorney-General and Accountant-General in the Supreme Court for payment for her work as a court-appointed litigation guardian since 2014.
Ms Thomas claims she should be paid $2,621,720 — or an amount the court rules is reasonable in the absence of a figure being set out in a legally enforceable contract.
The writ said: “The plaintiff on about July 28, 2014 was appointed as a litigation guardian ... the appointment was on the understanding that the plaintiff would be paid for her services by the Bermuda Government.”
It claimed the Attorney-General’s Chambers gave confirmation in court to Saul Dismont, a lawyer, that Ms Thomas would be paid for her services.
But the writ said a letter from the Government in November 2016 said it wanted to replace Ms Thomas as litigation guardian and Mr Dismont as lawyer in a case that involved a minor with people who would provide the services free of charge.
The legal document, first published on the Offshore Alert website, claimed Ms Thomas later received “repeated promises” of payment from Zane DeSilva and Michael Weeks, when each served as social development minister.
The writ added that payment promises had also been made by Wayne Caines, the national security minister, Marc Telemaque, when he was national security permanent secretary, and Owen Darrell, chief of staff to the Premier.
But the court submission claimed that Mr Telemaque, now Cabinet Secretary, e-mailed Ms Thomas in July to say she would not be paid in the wake of a Supreme Court ruling issued the month before in a case brought by the Human Rights Commission against the Government.
The HRC case sought a declaration as to the Family Court’s obligation under section 35 of the Children Act 1998 regarding the appointment of a litigation guardian and counsel to represent a minor, named only as “O”.
It also asked for a declaration that the Government had a duty to fund such appointments.
Puisne Judge Stephen Hellman found in his ruling that the Children Act did require the Family Court to consider the appointment of a litigation guardian for every child involved in specified proceedings, but he said the legislation stopped short of making the Government pay for the service.
Ms Thomas withdrew her services as litigation guardian from 17 active cases involving “at risk” minors last month because of lack of payment.
E-mail correspondence shared by a source with The Royal Gazette showed she had asked the Government for $800,000 for her work, but estimated the real cost at about $2.8 million.
Kathy Lynn Simmons, Attorney-General and the Minister of Legal Affairs, said last month the Government had “no legal obligation” to pay Ms Thomas.
Scott Pearman, the shadow legal affairs minister, speaking before the writ was filed, said the One Bermuda Alliance administration did not pay Ms Thomas because she submitted her first invoice only in March 2017, a few months before the former ruling party lost the General Election.
He said he believed there was no formal contract in place “so there was no way to know how, or how much, she would be paid”.
Ms Thomas’s writ said: “It was an implied term of the contract that the defendants would pay a reasonable rate for the plaintiff’s services and that such payments would be made within a reasonable time.”
Mark Diel, lawyer for Ms Thomas, said yesterday: “Our position is that there was a contract or, alternatively, in the event there was no contract that she should be paid on a quantum meruit basis”, that is, a reasonable sum for the services she provided.
Mr Diel added: “We are awaiting the defence. They have requested further particulars, which we have supplied.”
A spokeswoman for Ms Simmons, who is also the Government leader in the Senate, said last night: “The matter is under judicial consideration and therefore the ministry is prohibited from commenting at this present time.”
• To view the Writ of Summons filed by Tiffanne Thomas against the Attorney-General and the Accountant-General, click on the PDF file under “Related Media”