I said:

“It is true that originating documents must be served personally on the parties to the action but unless a rule stipulates otherwise no other document needs to be.”

Sorry, I should have added that originating documents (documents which start court proceedings) must be served personally on a defendant as a general rule but a Claimant may serve originating documents by some other method and then afterwards prove to the court that that method of service was sufficient to bring the claim to the attention of the Defendant.

Also under the new rules documents can be filed by fax or post.

My point is that some of the suggestions that the writer has posited are already provided for by the new CPR (which incidentally was implemented by the much maligned David Simmons)

Unfortunately, many attorneys in Barbados are still used to the old system and do not utilise these provisions.

@Amused, ”@Crusoe. Having just read your assinine outpourings on a more recent blog (where you suggest that Habeus Corpus be done away with)”

—

Lol, go back and see PingPong’s response and my response to him.

You are remarkably unperceptive .

@David. Point well put. It is all moot anyway, as Chief Justice Gibson will take office and, given his record and experience, we can look to see a very great improvement in the justice system.

@Hants. Very good. Well put and, as always, amusing. Of course the “boys” are scared. The “old boy” network will not avail them this time. Also, frankly, there were quite a few of the boys who thought they were in with a chance of being the next CJ. One of them even said as much here on BU, to the extent that he WOULD BE the next CJ. I think I prefer the style of Gibson CJ who, when asked to comment upon BU breaking the news of his appointment, refused to say anything. Far better than having someone preempt everyone by announcing himself as the the new holder of the office – much to the horror of the responsible members of the Bar, I might add. But a few noses must be well out of joint. Possibly even that of Leslie Haynes, who, long on ambition and short on talent and reality, might easily have seen himself as Simmons’ successor – in no way does this impute that Leslie is incompetent, you understand, merely that he is not nearly as good as his QC has led him to believe that he is.

I do not know Mr. Gibson i can only consider the views of bloggers that he will be so wonderful and transformative. The yhav eot provided reasons for this overwhleming vot eof confidence. However i am sure that he is diesred becasue he has demonstrated he has qualities. If both parties have courted him, one took him the other did not says something. No one is saying he should not serve Barbados , I am saying that to change a law to accommodate one person is madness. If the law is archaic and no longer serves its purpose then modify the law on that basis. However how do you deal with the anomaly that persons you have to manage have more experience than you do in the common law. Is that not awkward? Does it make for good working relations? The question that has not been answered is does Barbados not have other qualified individuals to hold the post. Why did this gov’t not do proper work before offering him the position. Why is this sloppiness so acceptable to people.

Bajan Truth,

“Why is this sloppiness so acceptable to people?”

Because the Dems and their supporters believe that Barbados belongs to the DLP and that they therefore can do anything and the people would accept it.

To justify what they want to do, I just heard Phony Marshall on Brass Tacks saying that some law was changed to accommodate Mia Mottley and some others on their return to Barbados and surprise, surprise, he could not remember who the other persons were. He aint call Phony for nothing.

Were I Mr Gibson, I would not accept the position now.

By the way, did I read right, some notable bloggers on this thread were questioning Mr Leslie Haynes’ nationality, telling hin to go back where he came from after they so readily accepted and defended Mara Thompson’s right to be in our parliament. Wow!!

Appollo 13;
I heard Tony Marshall and It seems to me that he was reading an email from a listener. What I found very strange at the time was that he did not question the “facts” provided in the email. Such as is it true that a law was changed to allow Mia Mottley to practice? What law was changed? Who were the other lawyers that benefitted from the change? Which administration made the change to the law? What are the real parallels between that alleged change to the law and the current one that would change the law for one man?

However, taken on the whole, I do not find that Tony Marshall is blatantly partisan in the call in show. I think he is probing and sometimes goes overboard, but generally he is quite fair. I also consider David Ellis to be an excellent host for the programme. To my mind Dennis Johnson is the best however.

Why do we keep saying that Gibson is “qualified”? Is that not the point at issue? If you mean academically qualified, there are no such requirements in the law…

@checkit-out. I understand your point, but respectfully disagree. The Government of Barbados is the party in power. The other side is the opposition. It is not the government. Now the opposition, if it wins enough seats, can become the government (always does become the government). What you are proposing is a situation desirable if one is amending the Constitution, but for the amendment of an act, that is the function of the government – the government in power with the mandate from the electorate to rule. The Act in question has been frequently amended in order to better serve the people of Barbados. Why not now?

There is no doubt that Gibson CJ’s appointment does not need a change of the Act, to most people. However, why should the government leave the door open to a legal challenge through the courts and possible appeals, all taking YEARS, while the justice system remains dead and gone to the detriment of Bajans of all walks of life?

At the time that it was known that Marston Gibson had been offered the job, Mia was leader of the opposition, not Owen. Mia has been very silent on the matter, but it is generally known that she was consulted on behalf of the opposition. There would be a record of such meetings. I note, however, that it was only after Owen took over the opposition that questions were raised about Marston Gibson.

It is all political – an effort to score points. At the expense of the justice system. That really is sad.

There is no doubt that Gibson CJ’s appointment does not need a change of the Act, to most people.

I think most people think the act needs to change to allow him in. Goverement actions to change to law even if under extreme caution would make people think the law need to change to let him in.

@Anonus. There are many and they must be allowed to speak for themselves.

Why are they so quiet though? All of these “many” are afflicted with silence in spite of the currency of the matter, leaving you to carry the fight?

@Checkit-out

Your point is suspect because that would mean David Simmons would have felt obligated to his old boss?

Let’s say that when Mr Gibson is appointed C.J. the barbados government put back the Al Barrack case back in court, and the new C.J sides with government, what would be the general public perception? Al Barrack can then appeal to the C C J and if the reverse the decision, what will the government do? pull out of the C C J ? The whole scenerio will make Mr Gibson look very silly and the governmet shakey .

While we’re debating over Mr Gibson, the interest on the Al Barrack payout is increasing and no one is taking note of that. It must be around $ 85 mil right now. How will the government get this albatross placed by the BLP off their necks; not by appointing Mr Gibson. Remember Mr Barrack has world courts he can go too, we’re playing with fire or maybe now it’s dynamite.

Checkit-out
I’m disappointed in David for such simplistic reasoning, yes, the BLP was wrong but show be the law or act that they broke, however, the DLP is amending a law or act to please themselves, THIS IS WHERE THE MISTAKE COMES. Has the act/law been amended a few moths ago and then the appointment of Mr Gibson was announced, there would have been some objections but not as forceful as it is now
But two wrongs don’t make a right
Not only two wrongs don’t make a right, the DLP was VERY critical of some wrong doings and they promised us that there will be a change, we though that change was for the better but the perception generally is that it is for the worse. Come on DLPites you can do better than that.

Christopher Halsall re. your post of Jan 27, 2011 at 5:17 PM;

You said
“Let us all please consider another possibility…..The CJ decides against the government. What then would be the public’s perspective?”

The problem will lie in where both sides have a good case and the perception that the CJ might not be impartial in his ruling is what would then matter and what we are discussing.

This matter carrys great international implications and can adversely effect the Barbados qualifications on the World Scene. This means this country can quickly move from being highly respected to being highly disgraceful. This needs some level of maturity to overcome this problem. This thing about, it’s a BLP problem or you have the government now so deal with it, will not solve the problem, meanwhile the money keeps growing and growing. SHOW YOUR EXCEPTIONAL QUALIFICATIONS MR GIBSON

Scout said:

“Let’s say that when Mr Gibson is appointed C.J. the barbados government put back the Al Barrack case back in court, and the new C.J sides with government, what would be the general public perception?”

Wasn’t the Al Barrack matter already decided by the Court of Appeal?

I thought so, but I could be wrong.

If I am right, the matter cannot be adjudicated again at that level. In other words, the new CJ would never sit on a panel of judges asked to decide that matter.

David re. your post of Jan 27, 2011 at 5:58 PM;

Yes, David. I understand that your post was an attempt to rebut my “beholden” argument and I’ve accepted that David Simmonds would have been considered as beholden to Owen Arthur who would have been the prime mover in engineering that appointment as well as being otherwise beholden to the BLP because of his long association at senior levels with that Party.

However, as I tried to point out, The DLP shouldn’t condemn Owen Arthur for appointing David Simmons on the grounds that there was a strong potential for his rulings to be partial to the BLP given his long association with the BLP, and then appoint someone in a manner that would leave a blind man on a trotting horse to conclude that they were taking actions that would inexorably result in that person being willingly forced into a position that would make him technically beholden to them.

As I’ve hinted in an earlier post, this DLP administration has taken some positions which seem to be at variance with upholding the mores and standards of a good government. A case in point is how David Thompson handled the CLICO matter. David Thompson was CLICO’s lawyer for several years and would have been privy to many of its dealings. When the CLICO matter erupted, in my view, the right thing for him to have done was to recuse himself from any input into the matter and let one of his other Cabinet Ministers handle it. Instead he set up an oversight committee that apparently had no power to stop hemmorhaging of funds from CLICO to senior Staff members while it sat. He also apparently did not stop CLICO management from thumbing its corporate nose at the Instutution set up to regulate Insurance companies. He refused to put CLICO under judicial management as other countries had done and He himself went around the OECS making promises that could be interpreted as suggesting that the Barbados Government would underwrite some of CLICO’s debts.

Yes David both incidents were badly handled.

I think there is an element of inexperience in the Civil Service which may have contributed to the mess.

I think there is also an element of fear of their political masters which has crept in over the past couple of decades.

Older heads have now retired taking a great deal of the training and exprience with them. They also took with them a keen understanding of the law and that internal something that made them try their best to guide what are essentially ignorant politicians …. kind of like a Sir Humprey who actually acted for the good of their country.

Appointing a CJ is not something that happens every day.

All previous appointments are political appointments but the last one probably knocked the stuffing out of the Civil Service. It is difficult to understand how it happened. I think members of the Civil Service who should have stood their ground did not, …. or they just did not know what ground to hold.

Let me give an example.

Nicky Sealy at BWA was described to me as the only man in Barbados who would and did tell a PM … Tom …. to kiss his “expletive deleted” when Tom wanted to develop the Belle, a Zone 1 catchment.

Nicky Sealy was an engineer who as I understand it spent time coming to grips with the use of the act which appointed him and applying it to do his job in the job to which he was appointed.

He used the law to defeat a lawyer because he understood how it applied to his job and his responsibilites.

I can’t think of a single character in the Civil Service, and by character I mean someone who would go toe to toe with a PM and win based on the law.

I think they have been steamrollered into acquiescence over time and prefer to let the bosses take responsibility because the bosses say they will when in reality the responsibility is theirs to advise and direct the MP’s.

If you wanted to pin blame for the apparent error in selection on who would you pin it?

Isn’t it too simple to say David and Mia consulted and they should have known…. or should there also be a component to the consultation which comes from the Civil Service?

I keep thinking of the program “Yes Prime Minister”

Here is a light hearted version of an appointment of a Bishop.

@Spratt. I happen to, mostly, agree with John. His comparison go the Yes Minister series of on point. You see, although civil servants are appointed by government, they do not change when the government changes. So the DLP has 14 years worth of BLP civil servants to contend with. And if the DLP remains in power for 14 years, any incoming BLP government will have the same problem with DLP civil servants.

However, the appointmen of a CJ is very different. The Government has, wisely in my view, gone outside of the country to a highly qualified Bajan who has never been seen to have any political preferences in Barbados and who has been courted by both sides of the political divide. That, to me at least, demonstrates the desire to uphold the absolute necessity of judicial independence. For instance, the Governor General has to be above politics. Have you noted that when the Governor General is out of the country, the CJ acts in his stead? That speaks volumes for th absolute necessity of having someone who, himself and his court, are above politics. I recall one judge being overturned in Barbados on appeal simply for saying that his job was to carry out the wishes of the Government. This statement was roundly condemned by, and I speak under correction, Williams CJ, whose clear direction was that the function of a judge was to uphold the LAW, not the wishes of the Government. The learned judge had misdirected himself in Law by making such a statement. His judgement was tainted.

Given the preoccupation and participation of almost all lawyers in Barbados with matters political, it makes total sense to ensure that the CJ (at this stage and in order to redress the balance of the blatantly political appointment of Simmons) is from outside the box. Believe me, over the course of the next years in order to revive a terminally ill justice system, there are going have to be a lot of changes. And, Sir Humphrey-like (with thanks to John) we know how civil servants embrace change.

Whoever wrote the script for “Yes Prime Minister ” is a genius.

I looked at the three parts of the episode, absolutely fantastic.

Part 1

Part 2

Part 3

I see that there have been a number of excellent posts, particularly by John, Amused and Fran, on the likely or possible involvement of Public Servants in the Marston Gibson debacle.

As a former Public Servant myself it strikes me that the general public is largely unaware that over the years inputs from public servants into certain matters is often very limited especially if such matters have significant political overtones. Some of this stems from the fallout of actual occurences such as a permanent secretary retiring and becoming a Minister in the following DLP Government and, not to be outdone but a few terms later, a Head of the Civil Service also retiring and becoming a Minister in a recent BLP Government.

The result of such happenings , I think, has been a general distrust of the advice of some senior Public servants by members of the incoming Political Directorate, and many senior public servants who are perfectly honest and would give good non-partisan advice, are accordingly left out of the loop and their advice distrusted for little or no good reason.

I therefore would not be surprised if there was little or no input into the choice of the new CJ by public servants, perhaps not even that of checking CV’s, etc. The Ministers and their personal Aides probably did all that they considered necessary, passing a fait accompli to the relevant authorities for rubber stamping. However, there is also a possibility that there might have been some little input by relatively inexperienced new public servants who might have been recently promoted primarily because of their perceived political allegiance to the new Party.

I surmise this as it is impossible, if the background checks were even cursorily done, that David Thompson and Freundel Stuart would not have recognized from early that there was one thing lacking in Marston Gibson’s qualifications and accordingly programme the implementation of the necessary corrective actions. If the requisite background checks were properly done we would not now be in this debacle. The law would have been amended a good while ago and Mr. Gibson would have assumed the post.

There are several signposts that have signalled the decline in the perceived professionalism of Senior Public Servants vis a vis their relationship with their “Ministerial masters”. Most of these have come about because of small steps taken by Ministers to abrogate greater authority unto themselves, often with little push back from the Public servants. The Group of Permanent Secretaries and related Grades have never taken it on themselves to defend their members in any disputes with Ministers. Permanent Secretaries are transferred at the whims of Ministers without any pushback. Ministers take on administrative roles when they are only supposed to have a policy role. etc. etc.

Public Sector reform should not exclude looking carefully at the conditions of service, expectations, qualifications and relationships of the most senior members of the Public Service with MInisters. Salaries are not everything.

@checkit-out. Your comment is well thought out and presented and is certainly food for thought. However, I have it on excellent authority that the requirements of the Supreme Court Act were discussed by the three parties concerned and opinions taken from very senior counsel outside of the political arena. All are and were satisifed that the legal opinion given here on BU in an earlier blog is correct. I believe personally that the government is changing the Act, simply because it is prudent to do so, in order to avoid frivilous legal challenges and appeals that might end up at the CCJ where the appointment of Marston Gibson would certainly be upheld. Also, going forward it makes sense to update the Act in this respect for the future. Thus is the circus of a legal challenge and its inevitable defeat avoided – decisions that might well point an admonitory finger at Barbados’ judges. Thus can something be done to remove the legal system from the vacuum it is currently in so that the justice and, more importantly even, the access to timely justice, for all Bajans, can be put in place. This, rather than having a broken system that has ground to a halt continue as it is for some years to come.

So while I appreciate and thank you for your insightful comments on the civil service, I respectfully disagree with your conclusions on this particular issue.

I have never had any political axe to grind, but it has not escaped me that, while the BLP was under the leadership of a responsible lawyer, there was no objection. Why now that it is under the leadership of a non-legal politician has it become an issue? Look at the timelines from the point where David reported here on BU who the next Chief Justice was to be.

An interesting related story:

Australian Judges Heading to Belize
Written by Shane D. Williams
Thursday, 27 January 2011 00:00

Part of Australia’s MOU with CARICOM involves the provision of direct assistance to individual countries within the region. Belize has reached out to Australia for support to the judicial branch of Government. Australia agreed to send two judges to join the judiciary which will be a huge lift to the undermanned bench.

Last week at the Opening of the Supreme Court the Attorney General, Hon. B.Q. Pitts, explained that there was a delay in the selection process of those judges. Philip Kentwell, Australia’s High Commissioner to CARICOM, was able to give us an update on that situation. He said that a small number of judges have expressed interest in the job. However, “the hiccup has emerged where the experience and expertise of the applicants does not match the Terms of Reference that Belize has requested.”

Kentwell said that the government is now working with the Commonwealth Secretariat to address Belize’s case load processing concern. He said, “I am encouraged that we will be in a position to address it at the Commonwealth Nations Ministers of Justices meeting this year.”