When mention is made of layoffs in the public sector no thought is ever given to extending the treatment to our referred Judges. BU has been relentless in the effort to expose the inefficiency of the Judiciary – see Tales from the Courts. Chief Justice Marston Gibson of whom much was expected has resigned himself to communicating about the thousands of cases in backlog which has our courts in gridlock.
There is the saying that if there is to be a different result one cannot continue to do the same thing. The news which appears in today’s Trinidad Newsday newspaper seems relevant to Barbados. These are tough times for all citizens as we grapple with austere conditions, it is time for our Judges to suck it up.
The recommendation coming from a Chief Justice and a sitting Judge in Trinidad is to “WITHHOLD the pay of tardy judges as a penalty for failing to deliver judgments within six months of the conclusion of a case”.
Read the full article – NO PAY FOR TARDY JUDGES
Letter from the Registrar of the Supreme Court sent to the Bar Association (BA) regarding a change to the system of processing probate applications – Click Image
The Registrar opines that in light of the decision in CV 427/2012 entitled Edmund King & Cecil Smith v Marva Clarke the system of processing probate applications is to be changed and that counsel dealing with such applications must now pay for the advertising of the probate application and provide proof of such application, before the Registry will accept the filing of the application.
Justice Saunders of the CCJ opined recently that Barbados judges were not scheduling their time properly.
For some years now BU has been highlighting the issue of the almost terminal state of our justice system. We have been highlighting, among other things, the backlog of cases both before the High Court and the Court of Appeal, the complete inefficiency of the Registry with its loss of files and procrastination, the mess that is the Bar Association and the clear conflict between Bar Association enforced membership and the Constitution; but most importantly, we have been highlighting the quality of our judges, both at High Court and Appeal levels.
A very short while ago, attorneys-at-law from Barbados raised the issue of delays in both getting matters heard and in receiving the judgements on those matters with CCJ Justice Saunders at one open forum. Justice Saunders opined that it was because Barbados judges were not scheduling their time properly. Meanwhile, in another forum, CCJ President Sir Denis Byron advised that appeals to the CCJ from Barbados had risen by 350%.
Having read some of the CCJ decisions in right of Barbados, we have to say that Justice Saunders was being diplomatic, for these judgements do not censure delay alone, but the lack of quality of the judgements themselves, judgements that in any other jurisdiction would lead either to the judge being asked to resign or to his/her dismissal.
Marston Gibson, Chief Justice (l) Andrew Pilgrim QC
A thought provoking outburst by former President of the Barbados Bar Association Andrew Pilgrim published in today’s press. He is probably right about the need to installed more judges on the bench, BUT surely it also has a lot to do with the quality of judges appointed. Of course not to be forgotten is the pressing need to streamline certain rules.
Regarding the streamlining of rules, BU’s legal fraternity offers the pre-trial motion as an example. If we were to measure against the Ontario model, it is routine for a pre-trial motion to be conducted via a telephone conference call supported by fax machine – see specimen of Ontario’s Affidavit of Service. In the Ontario model BU understands that in complex motions, lawyers may file “Factums”, which are statements of fact and law, which may include copies of cases to support their contentions along with their arguments. In this scenario all parties and the judge would have read relevant documents in advance of the telephone conference and are prepared to argue their cases. Sometimes the judge will rule on motions providing reasons for their judgements to follow as well as the order they give.
Some may find the the fact that a judge in the Ontario model will rule on motions, deliver reasons for judgements to follow etc. Often the judge will hand write the reasons and the judgement on the Notice of Motion itself and this is faxed by the court to all counsel – see specimen of Ontario’s Notice of Motion.
We turn to the Barbados model (used loosely).
Where is justice in the Barbados Courts?
“Justice Delayed Is Justice Denied” – British politician William Gladstone
A dip into decisions of the Barbados Court of Appeal by BU legal eagles has provided the opportunity to critique the case James Livingstone Eastmond v. Rayside Concrete Works Limited [Unreported] C.A. B’dos Civil Appeal No 18 of 2003. The decision was handed down on 2012-11-08 by a panel comprised of Williams CJ (ag) Mason, Burgess JJA. The decision was written by Peter Williams JA.
The case is one involving dismissal and severance payment. This is not some high-flown case with wealthy and high-profile litigants, but one which demonstrates the perpetual failure of our judiciary to deliver justice to an ordinary Bajan.
The plaintiff, James Eastmond, had worked for Rayside Concrete Works for 15 years and he had been dismissed over 20 years before the decision of the Court of Appeal was handed down. A twenty year search for justice. The case was in the system (either before the Severance Payments Tribunal or the High Court) for about 11 years, before coming to the Court of Appeal.
Chief Justice Marston Gibson
Original blog posted 2.43AM 15/08/13 – Updated 6.44PM 15/08/13
Chief Justice Sir Marston Gibson is reported in the Nation as having stated that he will shortly start to throw out old cases. It is now two years since Sir Marston, amid much controversy, took over the role of Chief Justice of Barbados, and delivered promises of what he would do to revive the justice system. To date, all we have had from him are press photos of him attending various functions and a lot of non-specific pronouncements of what he intends to do which, like most political manifestos, remain un-fulfilled, largely because he seems to operate with a ‘vote-grabbing’ mindset.
BU has a few questions for the Chief Justice that we urge media (AirBourne?) to ask. Of course, BU’s readers will realise that these questions are largely (but not solely) rhetorical.
Q: How many cases are there before the High Court on which judgements are awaited for a period of time in excess of six months?
Q: How many old cases are there that have been settled out of court and on which no certificates of satisfaction have been filed by the counsel whose duty it was to so file them AND/OR having been filed, not had those filings reflected by the Registry (READ lost by the Registry)?
Q: How many old cases have had counsel on both sides write repeatedly to the Registrar and the Chief Justice over a period of years asking that they be set down for hearing? AND how many responses/hearings has this invoked?
CIBC First Caribbean is one of the largest banks in Barbados
Judgment (Suit No: CV1339 of 2008) in the Matter Justin McIntosh, Brunetta McIntosh v First Caribbean Int’l Bank (B’dos) Ltd
The above judgement in the case Justin McIntosh, Brunetta McIntosh v First Caribbean International Bank (B’dos) Ltd was delivered since May 2009. To date, the bank has still not paid the cost for replacing the title deeds that it lost as ordered by the court. The Plaintiffs are poor people and cannot afford to engage counsel to seek redress. First Caribbean is aware of the financial state of the Plaintiffs and must therefore be cognizant of the financial and emotional stress this wilful delay continues to burden two ordinary Barbadians.
In summary: the Plaintiffs [Justin and Brunetta McIntosh] were experiencing financial difficulty in 2004 and started proceedings to sell the property that they owned which they had mortgaged to the First Caribbean. They could not sell because the bank had LOST the title deeds. The bank took responsibility in words [see judgement] but has reneged on its obligation to date. Why must the plaintiffs, or any Barbadians for that matter, have to tolerate a foreign institution demonstrating scant regard for our Court?
Barry Gale QC, President of the BA
When Andrew Pilgrim took up the post of President of the Barbados Bar Association, BU was very optimistic that in tandem with newly appointed CJ Gibson, some efficiency would have been achieved in our court system. We were wrong. To compound the perception that the Bar is a moribund entity it has been three months since Barry Gale QC took the baton from Pilgrim and the public is none the wiser about progress made by the Bar during his tenure.
Several reasons are listed on the Barbados Bar Association website why it was established under the Barbados Bar Association Act of 1940. Of the 27 reasons given a few should be of interest to Barbadians if only because they are laudable or should that be laughable:
Related Link: Non Contentious Fees (The Legal Profession Act Cap. 370A)
For some years now, BU has been seeking the removal of the Registrar, Marva Clarke. Now, she is gone.
We are told that it was voluntary and that she was not asked to resign, but that she did so anyway, since it had been made clear to her that, under Gibson CJ, she would never be promoted to the Bench. Which, if you think about it, is precisely the same thing.
Madam Justice Cornelius
We see the ruling on Dr Ishmael has at last been given by the courts. The Nation has published the decision which is highly unflattering to the MoH and the QEH. BU refers readers to the recent Tales From The Courts, where some of the issues discussed are similar and pertinent to this edition. The decision on this particular matter was reserved by Madam Justice Cornelius since 30 March 2011, a period of 818 days, or 2 years 2 months and 26 days. INEXCUSABLE!!!
It is not for the judge to take into consideration that Dr Ishmael is back at the QEH. The judge’s SOLE concern, other than the constitutional rights of the litigants, ought to have been the fact that there was a matter before her that might seriously, fatally and detrimentally affect the health of patients at the QEH. Indeed, this might be considered a matter affecting public policy and therefore to be accorded the urgency of any public policy matter. Instead, Madam Justice Cornelius took almost 2.25 YEARS to provide a judgement that ought to have been produced in a maximum, given the potential prejudice that delay would cause, of 60 days.
Thus, has Madam Justice Cornelius BETRAYED the trust and best interests of the people of Barbados and for that she deserves to be instantly suspended pending the outcome of an enquiry to dismiss her. Additionally, judges are expected to render decisions within 60 days, with an outside limit of 90 days for complex cases. Regardless of the circumstances between Dr Ishmael and the QEH, Madam Justice Cornelius has egregiously and improperly breached the Constitution.
George C. Brathwaite, founder and interim president of BAJE
In contemporary Barbados, several questions are being raised by the inquiring citizen whose voice attracts the political whip. Many persons could care less of an individual’s curiosity or the need to know once burning issues are scrutinised. Inquirers and commentators are often. In contemporary Barbados, several questions are being raised by the inquiring citizen whose voice attracts the political whip. Many persons could care less of an individual’s curiosity or the need to know once burning issues are scrutinised. Inquirers and commentators are often and dismissively thrown into the political camps of the Barbados Labour Party (BLP) or the Democratic Labour Party (DLP). In relation to the current Cabinet or executive, there are increasing trends of neo-authoritarianism being exhibited on a regular and disconcerting basis. This observation is profound and it serves to demarcate an approach to governance that is not consistent with the 2008n and dismissively thrown into the political camps of the Barbados Labour Party (BLP) or the Democratic Labour Party (DLP). In relation to the current Cabinet or executive, there are increasing trends of neo-authoritarianism being exhibited on a regular and disconcerting basis. This observation is profound and it serves to demarcate an approach to governance that is not consistent with the 2008
Issue after issue, there are repeated cautions that are registered against those persons and/or groups critical of governmental policies, actions or inactions. In turn, apathy and determinism have mimicked the cowardly forms of inevitability demonstrated by the national executive.
Read full Article
Prime Minister Fruendel Stuart
BU has come into possession of a list of outstanding decisions before the Barbados courts as at November 2012. It is a daunting list that in any other jurisdiction other than Barbados, would mandate that the delinquent judges be censored and their resignations demanded forthwith.
BU makes one caveat on behalf of Mr Justice Randall Worrell who is in an unenviable position not of his making. Former Chief Justice David Simmons invited Justice Worrell – a highly successful criminal counsel – on to the bench specifically to try criminal matters and therefore speed up the process of the courts, lessen remand periods etc. Once installed on the Bench, however, the Registrar persisted in scheduling civil matters, some of them extremely complex, before Justice Worrell. While at the same time, ensuring that he could not do justice to the civil matters by constantly involving him in assizes for which he had been brought on to the bench in the first place. Justice Worrell must now find the time to write his decisions in civil matters, as well as to complete part-heard matters that have commenced hearing before him, as mandated by the Administration of Justice Act Cap 109b of our laws. This is the main reason that BU has not gone after Justice Worrell for delinquency. However in the final analysis, Justice Worrell, whatever excuses can be posited on his behalf will ultimately find himself joined in actions under the Constitution brought by litigants against the Attorney General for breach of the constitutional rights through delay. BU is well aware that there are a number of such actions for delay…but predictably these actions for delay are themselves egregiously delayed by the incompetence and corruption of the Registrar and the Registry.