B.C. lawyers to appeal costs order against them

A prominent B.C. law firm says it’s “highly likely” it will appeal a Supreme Court of British Columbia decision slamming two of its lawyers for a misleading representation resulting in an invasive search warrant.

Lawyers Bryan Baynham and Daniel Reid of Harper Grey LLP obtained an Anton Piller order to seize someone’s computer hard drive after failing to give “fastidious” disclosure at an ex parte hearing, said Justice Dev Dley, who ordered special costs against the lawyers.

Baynham and Reid represented B.C. promoter Brent Pierce in a defamation lawsuit against Mercer Gold Corp. president Rahim Jivraj. During an in-camera ex parte hearing to gain a search warrant for Jivraj’s computer hard drive, the lawyers neglected to mention Pierce’s securities regulation history, Dley said.

The judge noted in his set-aside order that counsel were “evasive at best” when he asked about fines levied against Pierce by the Securities Exchange Commission and the regulatory sanctions and the reasons for them were material facts.

“Previous counsel succeeded in getting the court’s endorsement and authority to enter and search Mr. Jivraj’s home based on their representations at the ex parte hearing. Their representations were glaringly deficient, but the court only discovered the deficiencies after Mr. Jivraj’s home was entered and searched,” the judge said.

“Previous counsel’s failure to provide the court with fair disclosure at the ex parte hearing was reprehensible and deserving of rebuke. The level of deficient conduct by previous counsel was egregious. That is particularly so given the court was misled into authorizing entry into a citizen’s home — a place where a person can expect to be secure against unlawful entry.”

For their part, the lawyers said they left out the information because they honestly believed it was not relevant in the case and a “simple miscommunication” has occurred between them and the judge who granted the search warrant, according to the ruling.

Although the Dley accepted the lawyers’ evidence that they were not intentionally dishonest, he said they nonetheless “ought to have known” their duty to disclose all evidence.

“Recklessness is not an excuse if the court is misled,” Dley said, adding that Baynham is a QC with 37 years of experience as counsel.

But Mark Andrews, counsel for the lawyers, says the judge did not say why Baynham and Reid ought to have known they should have disclosed Pierce’s regulatory history.

“There is a reasonable basis in law for the mindset they had,” says Andrews.

“My clients see this as a case of misunderstanding between counsel and judge rather than anything nefarious on their part, and in their view, a misunderstanding between counsel and a judge should not give rise to special costs against counsel.”

Although his clients are disappointed with the decision, they are glad the judge accepted they didn’t intentionally deceive the court, says Andrews. He adds it’s “highly likely” they will appeal the ruling.

Dley ordered a copy of the hard drive, which was in possession of a computer analyst, be returned to Jivraj. He also ordered special costs against the lawyers, including $41,000 paid to the computer analyst and a supervising solicitor who oversaw the search warrant.

Jivraj and Pierce have a litigation history involving a mining company dispute. Pierce is suing Jivraj for authoring allegedly defamatory articles about him and distributing them. According to the ruling, Jivraj had initially denied authoring the articles and only admitted he wrote them after the search warrant.

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