The Case Of Bond v Dunster Properties Ltd And Others, 'Everyone Entitled To A Hearing…Within A Reasonable Time' – Whither The Marston Gibson Appointment ?

Delay in the appointment of Marston Gibson has become a source of embarrassment for government

BU family member, Anonlegal, has brought to our attention a case recently ruled on by the English Court of Appeal. Bond v Dunster Properties Ltd and others [2011] EWCA Civ 455. For the legal eagles amongst our readership, here is access to the complete decision.

Of particular interest to BU, however, is the fact that the lower court judge reserved his decision for 22 months and the Master of the Rolls (the head of England’s Court of Appeal) has ordered a full investigation into that judge’s delinquency. Here is what the Court of Appeal had to say and please note that the emphases are BU’s:

Lady Justice Arden :

“Everyone is entitled to a hearing…within a reasonable time”

The thrust of the appeal is against the judge’s findings of fact. A major cause of complaint is that the judge did not hand down judgment until some 22 months after the conclusion of the hearing and that as one result his findings of fact are against the weight of the evidence. This extraordinary delay clearly called for an apology and, if any existed, an explanation of the mitigating circumstances. However, so far as we are aware, there was none. Litigation is stressful for the parties, sometimes because they are members of the same family and sometimes because the transactions are commercial in nature and their outcome has implications for other transactions that the parties or others need to carry out. Life has to go on before, during and after litigation. In some cases, a delay in producing a judgment may prevent the parties from reaping any benefit from the litigation at all. Unfortunately, this case involves both the elements of close family relations and of commercial transactions. Irrespective of the respective merits of the appeal, this court has no reservation in expressing its sympathies for the parties as a result of the length of time they had to wait for this judgment. We would include others involved in the litigation such as the witnesses and the professional advisers. Delays of this order are lamentable and unacceptable.

The matter goes further than just the effect on the parties. An unreasonable delay of this kind reflects adversely on the reputation and credibility of the civil justice system as a whole, and reinforces the negative images which the public can have of the way judges and lawyers perform their roles. If there were regular delays of this order, the rule of law would be undermined. There can, of course, be very different reasons for delay, such as ill-health of the judge or a close relative. In rare cases it could be a reprehensible lack of diligence or even sometimes a belief that the parties might do better to settle their differences or to conduct their affairs without knowing the legal result. None of these reasons, except serious ill-health of the judge, would, however, justify a substantial delay beyond the usual period taken for delivering judgments. This may vary according to the tier of the court but is usually taken to be three months.

The opening cross-heading of this judgment is a quotation from article 6 of the European Convention on Human Rights, which has been given protection under domestic law by the Human Rights Act 1998. A “hearing” includes the delivery of judgment. The right is not a new one or one which is alien to the common law. Clause 40 of Magna Carta provides: “To no one will we …delay… justice”.

Barbados, which purports to be a common law jurisdiction, has, by its constitution, accepted the principals of Magna Carta of 1215 as being part of the law of the land.

Yet, by this ruling, it would seem that the comment of Sir Frederick Smith that “Judges in Barbados seem to think that they have a constitutional right to be stupid”, does not go far enough. Judges in Barbados indeed seem to think that they are above the law and subject to no rules whatsoever – and we refer to judges right across the board.

For, if every delinquent case in Barbados was to be appealed in the same manner as this one in England, there is not a single member of the judiciary (either High Court or Court of Appeal) that would not be under investigation and censure. In Barbados, a reserved judgment of 22 months is NOTHING. Here in Barbados, we have MANY decisions “reserved” for periods in excess of 5 years. We have cases that remain part-heard for far longer than 22 months, with no dates set (or even thought of) for the resumption of hearing.

BU adopts the comment of Lady Justice Arden. Delays of this order are lamentable and unacceptable. BU goes further. BU states that the Barbados Justice System has become an international laughing stock.

And Government appears to be conspiring with the judiciary and the Barbados Bar in this unacceptable and lamentable and ridiculous situation by its delinquency and failure to gazette and install Marston Gibson as Chief Justice of Barbados, so that the long road to recovery in the justice system can be commenced and so the World can stop sniggering and scorning our justice system.

What are we not being told? Why are we not being told it?

There is no doubt that government chose Mr Gibson to be the new Chief Justice and the excuse that they have never officially announced it does not cut it. To rely on such an excuse would be to treat us, the electorate, as though we are mentally defective children, or worse. That we are back in the slave days, with us the slaves and government and the justice system as the massas.

Whatever happened to the principals of Magna Carta? What the hell is going on?

18 thoughts on “The Case Of Bond v Dunster Properties Ltd And Others, 'Everyone Entitled To A Hearing…Within A Reasonable Time' – Whither The Marston Gibson Appointment ?

  1. The settlement of monies between parties who have already gone through divorce proceedings seems to be the worst of all…I have one friend who had to wait twelve years having been the one who had in fact brought the couple’s business through hard work into a most viable proposition. Another couple I know, she is now in her third year of wait. Every time they go to court…the case is put off for another six months…for no reason at all. Well, in both cases, the only real reason being that the gentlemen in question do not want to give up ‘half’ and have taken on the most powerful of lawyers that will do anything to help their clients keep what is not theirs and the judges they go before seem to just agree because judgement is always put off or the case is not heard because the judge is sick, away or whatever. Another ‘child’ whose husband came home one day and said he wanted a divorce because he had fallen in love with his Secretary still awaits her settlement some five years later…During this time of wait, these ladies have had to live from pillar to post, paying lawyers and in a state of semi-depression with these matters hanging over their heads. I always thought Henry Forde had made this divorce law very clear but it seems to have been taken and made a mockery of. These cases may not be as important as some others who are the line of thousands to be heard but….case is case and these women who gave of their all during a marriage are suddenly feeling like beggars before the court. I would personally say that is a little out of order and in direct contravention of human rights! Just saying.

    • @Rosemary

      The Barbados Court System is a mess and the lethargy displayed aby all the actors in the system should cause alarm to all Barbadians.

      The recent ruling handed down in the British Court mentioned in the blog is insightful and reinforces what we all know, JUSTICE DELAYED IS JUSTICE DENIED!

    • One would have hoped that the appointment of Andrew Pilgrim to the presidency of BBA would give him a ready-made bully pulpit to sound off on these issues like this one on a frequent basis.

      Instead we seem to be having an interminable silence by the players who should be expressing concern not least the public and the media.

      Hell the Barbados Advocate has not even mentioned this matter once!

  2. @Rosemary. You are absolutely correct. It is shameful. You talk about the delays of part-heard cases. Thanks tO Anonlegal and BU, I have read the whole judgment of the British Court of Appeal. If you read the comments in the judgment by the Master of the Rolls towards the end of the judgment, he denounces the fact that the case remained part-heard for a matter of months. Many of the cases in the Barbados remain part-heard for a number of YEARS!

    The Master of the Rolls also highlighted the obligation of counsel on both sides to facilitate and speed-up the conduct of hearings. Additionally, he has seriously questioned the estimate of time given to hear the case.

    This last is pertinent to the Barbados courts.

    The courts rely on estimates from counsel as to the time any specific hearing will take. Then you get to court and you discover that opposing counsel, knowing that he or she has no case at all, will use up all the time making senseless and irrelevant arguments so as to use up the allocated time. One particular QC comes to mind, who will argue irrelevant matters till the cows come home. And, instead of calling this idiot to order and making them move on, the judges will sit there – and do NOTHING! Then, they will adjourn part-heard and YEARS will pass before the matter goes back to have the hearing continued. Then, once concluded, the judge will reserve their decision for sometimes as long as 7 years.

    So your arguments, Rosemary, about women being seriously prejudiced for years on end due to delays in divorce and divorce settlements, resonates loudly with me. You are absolutely 100% correct. By their denial of timely justice, the courts in Barbados deliberately and knowingly penalise these women.

    Then look at the criminal courts. Accused persons held on remand for periods sometimes well in excess of what their sentence would be – IF THEY WERE FOUND GUILTY IN THE FIRST PLACE.

    Let us face it. BARBADOS DOES NOT HAVE A JUSTICE SYSTEM!!!! All we have is a bunch of civil servants being paid out of public funds whose sole worry is their unearned salaries from the taxpayers of this country and their eventual pensions – also from the taxpayers. Taxpayers who are relying (futilely) on them to deliver the justice dictated by the common law and our Constitution.

    And what is government doing? Well, the BLP “translated” an attorney general straight into the post of Chief Justice to take over a justice system that relies heavily on a registry that had been run and ruined by his wife who, as a punishment, was herself “translated” into being a justice of appeal. The DLP (under Thompson) declined to extend the tenure of that BLP chief justice, found a jurist in Marston Gibson who could and would bring back to Barbados a justice system, (under Stewart) altered the Supreme Court Act so as not to have to face meritless and politically motivated legal challenges to the undoubted suitability and eligibility of Marston Gibson – and since then, have done squat about gazetting his appointment, installing him and resurrecting the justice system. Meanwhile, the head of the Bar, presumably without the sanction of his members, decried the appointment of Mr Gibson, only to have his membership vote in favour of Mr Gibson. And don’t anyone try to spin this differently, because THIS IS WHAT HAS HAPPENED!!!!

    Meanwhile, Barbados has not had a Chief Justice for a lamentable and unwarranted period of time and all we have is a night watchman in the person of Moore AJ.

    The result? Overseas investment in Barbados has been severely prejudiced because of the total lack of any verifiable justice system and ordinary Bajans denied any kind of recourse of justice.

    So why do we not just forget about common law, constitution, justice AND INDEPENDENCE and go, cap in hand, back to Westminster and ask if we can be taken back on board as part of Britain with the same status as the Channel Islands? At least then we could be assured of justice under the law. Justice that is now non-existent in Barbados, and our foreign investments could be protected.


  3. @David

    Lawyers, magistrates, judges are made from the same cloth and invariably belong to lodges where I am told deals are made one way or another. Recently a friend of mind had a case and she discovered that the lodge connection played a part, it was a through a slip up and receipt of the wrong letter that she realized how lawyers make deals.

    David Simmons had promised reform and where are we today. We have a new Supreme Court and one would have thought that the ambience would have motivated the members of the Judiciary to be productive. If there is no leadership, do you expect followers to be motivated and that what has happened over the years.

    Lawyers, Judges, Masgistrates are law unto themselves. They do as they please. Sometimes they do not turn up for work and no excuse is offered. The court is not for poor people.

    As regards the dispensation of justice in Barbados, poor people dont stand a chance. Money is what call the shots and the rich knows how to have a case drag out to frustrate a small fly. This is normally aided and abetted by the top lawyers. Then again, do you expect to get quick justice when influence is one of the determinants.

    David, did you expect anything from Andrew Pilgrim. He is all bark and no bite. Both the Bar Assoction nd the Police Complaints Authority are a waste of time. Sometimes I wonder if legal luminaries are aware of the Magna Carta which bestows rights on the citizens. it seems that the rights are for the rich and famous and not the poor.

  4. Behind this somewhere is a recurring problem. Governments of whatever hue think that when a public body is not performing the answer is to build it a new building. This happened with the new Supreme Court and is about to happen with the BWA and the SSA.
    That is not the answer. What they need are proper reform of their organisations, proper staffing and budgets, and the application of sanctions where people do not do what they should. A few people being sent home would stir things up a bit.

  5. @St George Dragon

    The prolem in most cases is leadership. Most institutions are well staffed. What is lacking is no proper systems in place to ensure that human and finacial resoureces are used optimally.

    Further, lack of accountability for one’s action is another factor that contibue to the malaisse as there is no way of measuring performance at all, so leaders and subordinates do as they please without having to account for their stewardship, knowing at the end of the month or every two weeks they will be paid.

  6. LOL
    Man David, yuh mean EVERY issue suffering from the same common problem..!!?
    …a blogger is tempted to conclude that it is all totally hopeless.

    …makes you feel like it would be best to dun wid the whole project right now – don’t it…?
    Ah wonder how BBE must be feeling ’bout that nuh..? The Bushman would be SO FED UP!!!! ..would probably whisper a few words in Mr. Camping ears….LOL… and then pelt some big rocks on top the chicken barn. rotfl.

  7. @Observer

    You make a good point regarding the lack of performance management. It was only yesterday Dr. Lawrence Nurse of UWI criticized the social partnership because it does not have established KPI’s yet it is heralded as the best thing since slice bread, a good concept but how do we measure its success to date. The same is true for the judiciary, conventions seem to be trumping efficient processes.

  8. The problem is “we need a C.J” Government rushed a law through parliament a month or so ago , we all know who they had airmarked for the job, since then NOT A WORD as to the delay in the appointment, this is one of the negatives of this government, COMMUNICATIONS. It is because of this that the judicial system is further breaking down, we need to stop the slide or the criminal system will develop.

  9. @ David

    The Courts are for two kinds of people, lawyers and fools. Everyone claimant or defendant going through those front doors to Court must ask themselves, am I a lawyer or a fool?

    The answer to both is the same, if you think you’re a lawyer….your a fool and if you think you are a fool, you are a fool.

  10. @David and amused thanks.

    I consider the social partnership to be a waste of time. What has happened is the unions and workers are the one not benfitting from the partneship, it is a one sided arrangment as as far as I am concerned.

    Workers must forego slary increases to save the country, but the buisinesses dont intend to hold any strain, They have raised the cost of their prices and services. With such steep increases in water, telephone, electricty and food, how are people at the bottom and the middle managing. People standard of living has reduced and the businessess profits have continue to rise. Look how the banks are charging us for every thing and giving you 2cent on every dollor you invest with them for over a year. Then they charge you if you dont use the account regularly.

    I have said before, and I will continue to say that the social partnership present an opportunity for a few people to howl every two years, when in reality the employers are the ones benfitting, if I had any say I would abandom the social partnership.

  11. White blonde hair blue eye Jesus Christ returing on a white horse is a myth created by caucasians to brainwash non-white people.

    white horses’ single ancestor
    Abul Taher
    From:The Australian
    July 21, 2008

    THEY are the mounts of legendary heroes and remain among the most prized of equines, but scientists have found that white horses are actually genetic mutants whose defective DNA carries a gene that accelerates ageing and rapidly turns their coats grey.

    Here’s why white horses are white
    The Hindustan Times Publish date:July 20, 2008

    London, July 20 : They say white horses are a mythical image of purity and sanctity. Now, a group of scientists have come up with a scientific answer for the white colour mystery.

    Researchers at Uppsala University in Sweden say that the white colour of these horses is a result of a defective gene called “greying with age” gene.

    In their study, the scientists have claimed that white horses are in reality mutants whose defective DNA carries a gene that speeds up ageing and rapidly turns their coats grey.

    The study’s key finding is that almost all white horses apparently carry an identical gene, which indicates that they all belonged to a single common ancestor.

    It’s not easy for white horses to survive in the wild as the white colouring makes them easy prey for predators, while the gene sharply raises the risk of such horses getting skin cancer.

    This led the researchers to conclude that humans probably intervened to make sure they flourished.

    “It is a fascinating thought that once upon a time a horse was born that turned grey and then white and the people that observed it were so fascinated that they used the horse for breeding so that the mutation could be transmitted from generation to generation,” The Times Online quoted Leif Andersson, as saying. Currently, almost 1 in 10 horses carries the “greying with age” gene, which makes them brown, chestnut or black at the time of birth but their coats turn white within about six years. However, they are different from the rarer albino horses, which are white at birth. According to Samantha Brooks, a geneticist and equine expert at Cornell University, New York, the mutation in the “greying with age” gene caused the pigment cell, or melanocytes, in the hair follicles to dry up early in life.

    While the hairs keep growing but in the absence of any pigment they become white and without the pigment they also become vulnerable to sunlight and thus are at a greater risk of skin cancers.

    “About 75% of grey horses aged over 15 years have a benign form of melanoma that may develop into a malignant melanoma,” said Andersson.

  12. The embarrassment continues with the non appointment of Chief Justice known to be Marston Gibson. Instead of our newspapers highlighting the nonsense about the world coming to an end how about asking this government to explain. Remember this is a government who rode into power on the back of the need to roll out freedom of information.

  13. david that would require the forth estate to ask hard questions which they seldom do. didn’t some of bloggers before they knew him. maybe they could ask the questions for us

  14. @anthony

    Our email and confidential link remain freely accessible to BU commenters who may have an idea about the delay. The public deserves to know.

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