The Caribbean Court of Justice (CCJ) Heaps Scorn On Barbados Judges

The CCJ has struck at the Barbados courts once again. This time, the case is Sea Haven Inc. v Dyrud.

The CCJ noted that:

  • The case was commenced on June 06. 2002, but was not heard until February 07, 2007. Almost 5 years. Indeed, it has taken almost 10 years before the case finally completed its appeals.
  • The CCJ once again noted the totally unsatisfactory system of Barbados’ conveyancing laws and referred to its own decision in Colby v Felix Enterprises Ltd and Felix Broome Inc. that has already been ventilated and discussed here on BU.
  • The court found that the trial judge had ignored an essential point in reaching a decision.
  • In Clause [6] of the judgment, the CCJ, while admitting that the time taken by the High Court and the Barbados Court of Appeal were shorter than is the norm, still complained that the time was too long (High Court – from February 14, 2007 to May 21 2008 for written judgment, without which no appeal could be brought. Court of Appeal – October 08, 2008 to May 27, 2010 for the decision on appeal) and reiterated its view that judges should render decisions within 3 months or, in complex cases only, 6 months. Here, we have 15 months from the High Court and 19 months for the Court of Appeal decision. It is suggested that this may well constitute gross misconduct on the parts of the judges concerned (both High Court and Court of Appeal) and the remedies provided in the Constitution to sanction or dismiss them ought to be applied.

  • Clause [7] also heaps scorn on the Barbados Justice System in that it took 4 years and 8 months for the case to come to trial, “the delay was due to the civil justice system and not to any negotiations between the parties leading to their delaying matters.” It further noted that, “The expeditious resolution of commercial disputes yields a net benefit not just to the litigants but also to the economy of Barbados.” So clearly the CCJ is not misled by the general excuse that the terrible state of our foreign investments is due to any recession, but to the lamentable state of our Justice System that actively discourages overseas investment.
  • The CCJ, at Clause [7] also provides a calculation of basic commercial costs, where it argues persuasively that if Justice had been timely, the cost would have been over US$100,000 LESS! So who can be sued for this BBD$200,000+ loss? The Judge?
  • And guess who the judge was? That David Simmons appointed ornament to the Bahamas Court of Appeal (accused of conflict of interest in the Bahamas) Christopher Blackman. Why are we not surprised.
  • This judgment effectively takes the Barbados High Court and the Court of Appeal to pieces with clinical precision and it has to be asked if the judges in Barbados really are that stupid – and if, as it appears, they are, what the hell are they doing as judges? If we were not well aware of the oath that judges take and the fact that they would not be foresworn, we would have to wonder if they had the intention of breaching ALL (instead of just the second part) of Section 40 of Magna Carta of 1215 which states, simply, that justice cannot be sold and must be timely.

The CCJ has more recently weighed in on the case of Eugene Melnyk v The Barbados Turf Club  over the running of the Gold Cup.

The upshot? The case is referred back to the BTC for a decision on its Rules. The BTC contended that the decision of the Barbados Courts gave comfort to a drugged horse that it could run (and win and have the win confirmed) with a banned and illegal substance in its system. By its decision, the CCJ has said that, once the presence of the substance is confirmed, the Rules of the BTC against it prevails. Therefore, the matter is, to all intents and purposes, referred back to the BTC.

This is yet another case where the time of our courts has been wasted in a fore-doomed effort to confirm the win and have the Gold Cup awarded to a horse that, in contravention of BTC rules, ran while its body contained a banned and illegal substance. The case can only be described as perverse.

At the end of the day, the BTC decision will stand and the only thing that has been accomplished is to take up valuable court time and waste taxpayers’ money.  And heap shame on the Judicial System of Barbados for the edification of possible overseas investors.

High time a few judges were fired.

69 thoughts on “The Caribbean Court of Justice (CCJ) Heaps Scorn On Barbados Judges

  1. David

    I am no lawyer but as an old time fan of the Sport of Kings from my boyhood I read the judgement of the CCJ that you so kindly reproduced for us.

    It quite clearly says to me that the BTC breached the rules of natural justice and was guilty of procedural impropriety. It is not the first time that I have heard this complaint about the Turf Club. It is probably the epitome of an old boys club at work on the island and is deserving of the scolding it received from the CCJ and our own Courts.

    What seems indisputable is that the horse was doped. What is perverse is that sportsmanship no longer exists in racing. But then perhaps Mr. Melnyk could not afford to have his name tainted in little Barbados since it could affect his standing in Canada and the USA where he has large racing interests. As race fans we can only hope that the Turf Club has learnt from its mistakes in this case and that Mr. Melnyk comes to realize that sportsmanship above all else is what will make him a King in this sport.

    • @JforJerome

      The judgement is an eyeopener and hopefully we will get a lazy media to bring this matter to the fore.

      Remember the BTC was forgiven 19 million dollars by this government in hard times. We have a right to ask the hard questions.

      Now the slow pace our judges need to render decisions is an even more serious issue. Justice delayed is justice denied.

      CJ Marston Gibson really needs to address what is a system issue in the Courts. It is sickening that we would have conferred a knighthood on David Simmons with the Courts in such a condition.

  2. @David. “It is sickening that we would have conferred a knighthood on David Simmons with the Courts in such a condition.”

    I would go further. It is sickening that we continue to confer a pension on David Simmons for having left the courts in the state they are in.

  3. @ David & Amused

    I would go further and say that it was a sickening by sick twisted minds that David Simmons was made CJ in the first place.

  4. @David. The case of Sea Haven Inc. v Dyrud is, admittedly, disgusting from the point of view of the Barbados Judicial System. BUT IT IS ONE OF THE MORE EFFICIENT CASES. I was reluctant to get too involved in this thread, but the Bajan taxpayer has a right to know the shite they are paying a fortune for.

    I can’t wait until the CCJ is asked to have a go at an appeal that has remained part-heard for YEARS. By “part-heard”, I mean that (for example) YEARS after the action is commenced with no excuses why it has not come before a judge in a timely manner (other than the total breakdown of the Registry) it comes on for hearing and the case starts. The judge hears part of the case with the promise to reconvene the hearing and counsel will be informed. Now you would expect that this would happen at most within weeks. Not in Barbados – no siree. Despite letters from counsel to the Registrar and even the Chief Justice (not this one, but certainly Simmons and Moore) most (if not all) of which do not even elicit the courtesy of a reply, IF YOU ARE VERY LUCKY, 3, 4, 5 and even 7 years down the road, and a LOT of pressure later, you may just finally be informed that the case had been set to recommence hearing.

    What happens then is that counsel has to reassemble their witnesses (if they are still available or even ALIVE) reacquaint themselves with the case – in other words, charge their clients double fees for trial prep, and pick up where they left off 3, 4, 5, and even 7 years before. And there is every chance of yet another adjournment of the case part-heard.

    I am not making this up, you know!!!!

    Can you begin to imagine the mental and financial torture this places the litigants AND THEIR COUNSEL under? It takes over their lives and a disproportionate amount of time, effort and financial resources.

    Then, what happens if the judge has died or retired? Effectively it means that you must go through the unimaginably torturous process of starting all over again. There is no other way. That it has not happened this way before (to my knowledge anyway) is pure blind luck. BUT, I do know of cases that have been part heard to such an extent that witnesses have either become unavailable, incompetent or DEAD!

    I have noticed, however, that certain counsel and their clients seem to be able to have the recommencement of part-heard matters. So I have to seriously question whether ANY part of Magna Carta Section 40 is adhered to in Barbados. The preponderance of evidence dictates and in the Barbados “Justice” System, Justice can not only be sold, but denied through delay. If this is seen as an indictment of our “Justice” System, that is precisely what it is intended to be.

    Meanwhile, the Registry, reliant on their union affiliations, continues their own sweet way and the Judiciary, who clearly have not taken the time to read the Constitution, remain unmoved and convinced that they cannot be fired.

    It is high time that the Government gave this CJ the backing he needs to clean house and send all the dead wood home, without pensions and expense to the taxpayers they have so grievously betrayed.

    I was debating seriously whether to report this next bit or not. It is general knowledge within the legal profession and I take the view that it IS of National interest and importance and it relates to the Melnyk v BTC case and shows just how deep the rot actually goes. So here it is:

    The Court of Appeal Registry acts as the sub-registry for appeals from Barbados to the CCJ. Documents are sent to the CCJ Registry in Trinidad from the Court of Appeal Registry in Barbados by courier. It is standard and well-established. Did that happen in the BTC case? Hell no!!! The documents of appeal to the CCJ were sent to San Juan, Puerto Rico by the Court of Appeal Registry. And that too I have NOT made up!

  5. Lol. I was wondering when Amused would get to that last part.

    @Jerome, my understanding is that the case is not necessarily over, that the CCJ has given the Turf Club an option to go further if it wishes, read the decision when published on the CCJ website.

    You made a statement that is unfortunately true ‘sportsmanship no longer exists in racing. ‘

    Personally, I think this may herald the end of racing, eventually. Most people used to follow decisions of Stewards etc. Same as in cricket.

    No one has the stomach for constant bickering and it will cahse away many owners and fans.

    They are a lot of big little boys whith lots of money to play.

    Just as foolishness is ruining cricket, no longer a sport, but a gambling business, lack of sportsmanship will ruin racing.

  6. @Friendly. So you heard about the appeal documents being dispatched BY COURIER by the Court of Appeal Registry to San Juan. When I was told, I simply refused to believe it at first. But when I checked, it turned out to be true.

    As for the decision of the actual case, testing was done and the horse was shown to have a banned substance in its system. I also want to point out that the testing of the samples was done overseas, not in Barbados. In any other country, the horse would have been stripped of its win and call that Wally. Not in Barbados, though. In Barbados, the win must still be upheld and no questions asked. However, this corruption in sport does not only encompass Barbados, look at FIFA.

    But that the evident corruption should take as its role model the Justice System of Barbados is just sick.

    Have these idiots in the Justice System any idea the international ridicule this exposes our country to? Have they any idea the amount of off-shore investment we are being denied because of the Justice System? Most importantly, do they even give a damn, apart from Chief Justice Gibson, who clearly does give a damn.

    But Chief Justice Gibson needs governmental support to take his metaphorical machete to the dead wood. Let us hope and pray he gets it. Otherwise, when these “Jurists” go to their retirement in Florida to join certain of Barbados’ disbarred attorneys – a retirement funded by the Barbados taxpayer – that same taxpayer will be left with a self-perpetuating mess and a Justice System seen as a cushy job with no responsibility, except to make sure that the taxpayer-provided perks and salaries and pensions are safely invested.

    Makes you sick.

    • @Amused

      Money talks and we know who has the deep pockets here.

      Curious as to why the documents would have been dispatched to PR.

      Could it be said that it was deliberate or negligence?

      Does our registry correspond with PR on a routine basis?

      Amazing the issues which occupy us in this country.

  7. @Friendly; If it is indeed a fact that the documents were sent to Puerto Rico, Does this not raise the question whether the CCJ judges had the opportunity to study them BEFORE the hearing of the case? It would be interesting to hear from the lawyers involved in the case because after all is said and done, A HORSE THAT WAS CERTIFIED DOPED CANNOT BE AWARDED A PRIZE..There needs to be further exploring of this decision if the integrity of SPORT in general is to be maintained.

  8. @David.

    Deliberate or negligence makes no matter. It needs to be investigated and the results of that investigation made public. If it was the fault of the courier service, their contract must be terminated forthwith for breach thereof. If the fault lies with the Court of Appeal Registry, the persons responsible must be dismissed, because:

    The Court of Appeal does NOT have “correspond with PR on a routine basis”. Therefore the inference of corruption is inescapable.

    @BC. I will respond to your question to Friendly. YES! The documents of appeal were sent by courier to PR.

    But I have discovered more (or should it be Moore). This application for leave to appeal was filed in July 2011. Filing was acknowledged by the CCJ. However, when September arrived and nothing had been heard, enquiries were made at the CCJ (they had received nothing) and then the Court of Appeal Registry, which could not find the file. When pushed, the Court of Appeal Registry admitted that it had been called for by the Court of Appeal judges, who, since an application had been filed with the CCJ, had absolutely no right to call for the file. Their job was done, finished, over!!!! I am told that the buzz within the legal profession is that the Chief Justice himself had to step in to prise the file out of the hands of Justice of Appeal Sherman Moore and his colleagues.

    And this is the kind of petty misconduct and crap right up the line that is being used to obstruct the CJ from being able to re-deliver justice to the Bajan taxpayers.

    It is shocking!! It is high time some heads rolled, most notably from amongst the judiciary in both the High Court and the Court of Appeal.

    And it is high time that the Bajan public knew the exact details of how their tax money is being mis-spent on the incompetent and venal. Bajans of all walks of life are entitled to the right to go to our courts and receive timely and competent justice. The judiciary (and all its support organisations) have an absolute obligation to provide and administer that justice, justice which cannot be sold nor delayed. For the Judicial system to fail (as ours is) to provide that justice is gross misconduct and grounds for dismissal.

  9. You know what is really funny about this place called barbados; Caswell has been vilified on this blog for saying what exactly this court has said, but like the ever moving moving bunny, we have decide long time ago not to even attempt to think for ourselves. Are we then surprised that we are in the trouble, literally staring down the barrel of the economic monster gun.

  10. When a country’s judicial system operates in the fashion described in the above threads, there is no hope for such a nation.
    Thinks more than brown this time around!
    God come for your World!

  11. An important point to remember, notwithstanding the fact the urine sample came back positive for a banned substance, that does NOT give the BTC to convene and conduct a meeting without applying the rules of natural justice.

  12. arrant judicial system

    “arrant” originally meaning wandering (errant), the term came to be an intensifier due to its use as an epithet, e.g. in the phrases “arrant thieves” and “arrant knaves” (i.e.,

  13. @David. I have another problem, but this time with the CCJ decision itself. It has not escaped these old and reasonably experienced eyes that paragraph [12] bears little or no relationship to the rest of the judgement – yet paragraph [12] is the pivotal one.

    My reading is that, seeing it is a case that ought never to have been brought in the first place and ought never to have gone to the CCJ at all, the CCJ sought to maintain the disqualification without rocking the boat. And the reason for this, I suspect, is because they did not have the time to adequately (or at all) read the file, because some blasted idiot had dispatched it to PR.

    I am also perplexed about a word used in connection with the BTC enquiry. The word is “adversarial”. When a horse tests positive for banned and/or illegal substances, like an athlete, the horse is immediately disqualified. The relevant authority, in this case the BTC, has it in its rules that it is required to convene an enquiry to ascertain how the horse got the substance- after all, it didn’t trot down to the local pharmacy/chemist and buy it itself – so somebody must have been responsible and it is a question of security for the BTC to discover who and how. Now, they cannot call in the horse and ask it, so the BTC calls in the trainer. There is no suggestion that the BTC (or any other sports governing body) is going to enter into litigation in connection with this enquiry. So there are not two sides in such an enquiry. Since there are not two sides, it cannot be considered adversarial as it lacks the ability to be adversarial.

    So, and I would happy to be instructed on this, lacking the necessary element (which is two sides) to make the enquiry adversarial in the first place, how in hell can natural justice have been breached?

    That justice has been done, I am convinced. I am not, however, persuaded by the CCJ judgement – not for one second. I am sure that in the highly unlikely event that the governing body for the Olympics conducts itself in the same manner as the BTC and is sued by one of the athletes, human or equine, the courts will not take judicial notice of this rather scattered CCJ decision, although counsel might and the international courts may then be afforded the opportunity to comment upon it negatively and with a marked degree of disdain.

  14. @Amused, just one query. Care to consider the first (2) paragraphs of the decision, makes interesting legal reading. No?

  15. @ Amused:
    Can it be concluded that the confidence level in the competence of the CCJ is up for questioning. Which is good. No one or body in a democratic system of governance should be above examination and criticism!

  16. @ Friendly | November 15, 2011 at 4:22 PM. The word is “experienced”, not “versed”. I would like to be versed because of paragraph [12], so if you have a copy of the file to hand, do us all a favour and scan it to PDF and e-mail it to BU. This is one that I would really enjoy taking the time to read through. Just curious, you know. While you are at it, maybe you could also arrange for the BTC to post its Rules on its website.

    And in respect of your later post, yes I have considered the whole judgement and I am surprised that, while denying leave to appeal, the CCJ has nonetheless in effect upheld the disqualification of the horse by its statement in paragraph [12]. So I do not find the first two paragraphs of more than ordinary interest. Maybe you would like to let me know what you find so outstandingly interesting about them. I am always happy to learn, so instruct me.

  17. @Amused , you have a sense of humour. Me ‘insruct’ you? That’ll be the day, you give me too much credit.

    As for the file, no. Definitely no such access, just a humble race fan.

    What I find interesting in the first place is the refusal by the Court of Appeal, for leave to appeal to the CCJ, is that not of more than passing interest?

    Secondly, the alternate means that the CCJ then allows the appeal, legally you would understand more than I, but the result as you say, in effect being to allow the appeal.

    In other words, the CCJ in effect overruled the Court of Appeal both in refusal ‘to appeal’ and in judgement. To a layman like myself the result is important, but I am sure that you lawyers find the intricacies of some delight. However, in this case the intricacies seem to have some twists and turns.

    Just my little layman viewpoint.

  18. @Amused. I am in total agreement with you that Para 12 seems out of place and like you it raises fundamental questions in my mind. Except perhaps that it responds to an argument raised by the Applicant.

    Further, the possibility of a breach of the rules of natural justice could only apply to any penalty applied to the trainer and not the disqualification of the horse. I hear through the grapevine that one of the original grounds of the Respondent related to the chain of custody of the sample, but it appears by this judgement that there is no doubt about the presence of a prohibited substance in the horse. Methinks the learned Court is confusing two issues – disqualification of the horse and punishment of the trainer and the role of the PSB in same. This whole debacle causes me to question the familiarity and intent of the BTC Rules of Racing by their attorneys. It also curious that the CCJ would single out one single sub clause of the rule relating to prohibited substances.

    Nevertheless, this case speaks to something larger – the old monopolistic administration of major sporting bodies including the BTC, FIFA, the Football Association, the ICC etc and their belief that they are or should be beyond the reach of the Court. It is this view that colours the administration of racing in Barbados.

    As a race fan it is a disgrace that a horse that was doped has been allowed to keep the race for what to my mind is an irrelevant technicality. Was there any evidence that the sample was tampered with, switched or incorrectly identified? Any evidence questioning the efficacy or procedures of the testing laboratory? I believe that the BTC Rules say that a horse testing positive for a prohibited substance SHALL be disqualified. By this decision the CCJ has ensured that a cheater has been rewarded.

  19. Reviewing the judgement, it is clear that the CCJ has no appreciation for the rules of racing and indeed, I disagree that the principle of natural justice was not followed in the original meetings of the BTC.

    To equate the enquiry by the Stewards using attorneys, with the subsequent presence of the lawyers for the Turf Club at the meeting of the PSC, with a breach of natural justice was incorrect, indeed, the meetings were to establish fact and there is no provision in the rules and need not be, to allow for rebuttal by the horse connections, as to the the validity of the testing.

    However, I look forward in earnest to next years Gold Cup, now that a precedent has been set. People are going to learn what that word means, if the PSC is not allowed to carry out its function. It will truly be poetic justice if a horse from some lil owner wins the 2012 race, doped up the wazoo, much to the consternation of others. I would love to see the scrambling then.

    Maybe someone should do it just for fun.


  20. One query, if the file went astray and the CCJ had little time to review before the sitting, is that not a breach of natural justice, that justice may not be seen to be done, in that the judges were not able to peruse and assess the case on relative merits properly, thus creating a decision in favour of one party over the other?

    Justice must be seen to be done.

  21. Lastly, surely natural justice is holistic and not selecttive. The CCJ rebuttal of the plea was that it is not fair to say their upholding of the ruling re natural justice would allow a doped horse to be rewarded,

    However, that in itself is against the grain of natural justice as that is exactly what would happen, thereby creating a situation where all the other owners have raced and been beaten by a horse tested as being doped, hence, holistically natural justice has been breached, even if in one myopic view it has been satisfied.

    Thus, the judgement of the case based on natural justice has itself breached natural justice.

    What irony.

  22. @Friendly. I asked you to instruct me and you have. I agree, with one exception, with all you have written. Except, it appears to me that the CCJ has sent the matter back to the BTC for it to have confirmed the results of the testing, after which its decision to disqualify will stand. So, the horse has not been rewarded and it is somehow disquieting that the Barbados courts could possibly have contemplated giving comfort to a drugging incident. So the stage is set for the disqualification to stand.

    I am not a big race fan myself, but I certainly do go to the races from time to time –about once or twice a year – and meet up with old friends whom I would not come across otherwise. I don’t always go into the stands and if we go as a group with children, we generally park the cars and go and sit on the grass just after the 5 furlong starting gate – which is what I greatly prefer. When I was a child, we used to go and sit on the cannons on the other side. I know it is an elitist sport, but for as long as I can remember it has been a social event for Bajans from all walks of life – a chance to go and buy the things we bought as children from the diminishing number of hucksters and to remind ourselves and our children and grandchildren of what life was like when we ourselves were children. More importantly still, that it is possible to have a good and exciting time with very little money. It is a wholesome, cheap afternoon out.

    Therefore it annoys and upsets me to see horses being given performance-enhancing drugs that are banned and illegal in contravention of racing rules worldwide (including Canada), that horse then being disqualified, and subsequently being given comfort by the idiots in what we (once laughingly, now tearfully and disbelievingly) call our “Justice” system.

    Those idiots are supposed to protect our way of life and rights, which once included the right to have justice that could neither be sold nor delayed. It is clearly high time that some of these judges, magistrates and the Registrar were fired and if there is some doubt in the authorities minds as to which judges (both High Court and Court of Appeal) and magistrates to fire, I can consult with others and we will be happy to provide a list.

  23. The DLP is willing to sacrifice mrality for votes, I’m glad I don’t have any young children now,but I think it is most unfortunate that Min Inniss could be advocating that teenage children can, without their parents’ consent seek medical advoce on sexual matters. I hope parents would protest vigorously against this; when your teenage daughter comes home pregant and tells the parent/s the doctor she is attending and wants the money to pay, can that parent refer the child to Min Inniss. The DLP seems to be playing up to the young people to gain votes, since the more serious issues they are not interested in, so bribe the fellows with football and the girls with indepedence at an early age to do as they like. What a BARBADOS this party is developing. I bet the Minister’s children CANNOT seek the doctor’s advice without first talking to him and his wife.

  24. It seems that people living in this heavily religious society ought to take to heart and action Jesus’s admonishment where it is attributed that he said: “And you experts in the law, woe to you, because you load people down with burdens they can hardly carry, and you yourselves will not lift one finger to help them.”

    But the smart ones ought to follow EWB’s practical advice when he stated that a person seeking justice should stay away from Coleridge Street and by extension Whitepark Road. Now there was a man with vision!

  25. @ AMUSED . I have had the opportunity to read the decision handed down by the CCJ and must agree with AMUSED that there is no logical link between the paragraphs from 1 to 11 and paragraph 12. Linguistically this is bad for essay writing; legally it leaves a huge gap in the judicial thought process. Paragraph 12 seems to be an after thought that was slapped on to the decision after it had been decided. This paragraph therefore adds total confusion to the decision. As I now understand it, the court has agreed with the two lower courts that the decision of the Turf Club’s stewards PSB cannot stand; it had to be set aside for breaches of natural justice since the lawyers of the Turf Club were in a “huddle” with the PSB when it arrived at
    the decision to disqualify the horse . But paragraph 12 now seems to be saying that the horse can only receive the prize after the “provisional” finding of the PSB that it raced while doped can be displaced. I should be really grateful if some legal luminary can help me make legal sense of what
    appears to me to be such obvious linguistic nonsense. these two pronouncements are NOT compatible. Amused seems to be a person of some legal expertise; maybe he can assist a lesser mortal like me. I await his assistance.

  26. I am not a lawyer, but para 12 seems to be saying that the dope test sent back from the lab is provisional until affirmed by the PSB. However, as the PSB hearing is ruled as in breach of natural justice, the PSB decision is set aside and the provisional dope test is irrelevant.

    The final paragraph then refuses the appeal and awards costs to respondent.

    However, the assumption that because the PSB hearing was deemed invalid, then the horse was not doped is an idiocy.

    The purpose of the rule per the PSB review in the rule book seems to be for the PSB to ensure that it is satisfied with the terms of the return from the test lab, not for any dispute or discussion to take place with owners or allow any appeal process, merely to satisfy itself and no other.

    Nevertheless, even without that, any moron would understand that just because the PSB was effectively neutralised in its attempt to ratify the doping test, such neutralisation is merely a technicality and the horse was tested and therefore is, as doped.

    Therefore, the result is that a doped horse has been awarded the race.

    That is how it reads as written, not sure why there seems to be a misunderstanding that the PSB can now ratify the dope test, unless the CCJ issued that order separately.

    Very poor indeed. I wonder what the owners of the 2nd, 3rd and 4th undoped horses are thinking about now.

  27. @ Friendly. Surely those owners are entitled to sue the Turf Club for its failure to abide by its own Rules of Racing that doping is ABSOLUTELY and STRICTLY proscribed. Are we therefore not entitled to say that the CCJ decision has landed the Turf Club in a legal quagmire? Certainly it cannot be the function of our highest court to bring confusion to the legal process ! Do we still feel comfortable with this court taking the place of Her Majesty’s Privy Council? Are not Jamaica, Trinidad and the several others who have so far refused to adopt the CCJ not justified in their decision ?

  28. @BC – Dont think so. If I read it right (but wait for Amused’s correct interpretation), the CCJ has taken the matter out of the hands of the BTC, thus the BTC is exonerated from its responsibilities, as it tried its best to stop the idiocy.

    However, my question now to Amused is ‘Can the other owners challenge the CCJ decision, being that it is contrary to natural justice, not as a party to the original action, but as a party affected by their decision’?

    How could the action be phrased, against the BTC and the Respondent jointly, or against the CCJ?

  29. You guys maging alot out of nothing at all. If the PSB meeting has breached the rules of natural justice as has been found in first instance right though to appeal and nothing more, i.e. the drug test is not upset, then the BTC has to refer to the rules of racing and see whether there is anything that stops (time bar) them from convening a new meeting of the PSB and make a final determination.

    On the assumption that the rules allow for such a meeting and providing that the next meeting of the PSB is carried out per the rules of racing and natural justice, and if they find the horse ‘doped’ then they are within their rights to disqualify the horse (winner) and Mr. Melnyck will have an uphill battled on his hand to overturn the findings of the PSB.

  30. If the BTC rules allow for another meeting of the PSB to deal with the same matter, then while the BTC has lost all of the legal batttles, it has ultimately won as it can now proceed to find the horse ‘doped’ and disqualify it.

    If you wish to fight over something, hire lawyers, if you wish to fight over nothing appeal.

    ” The Courts are for two kinds of people, idiots and lawyers, the lawyers go there to get paid, the idiots go there to make sure the lawyer are paid”

  31. @Sonapanic.
    I agree ENTIRELY with your assessment . But that is why the decision of the CCJ is so confusing. It seems we are on our way back to the courts…another SEVEN YEARS !!!!

  32. @ BC

    The BTC was advised by some people to hold another meeting of the PSB after the owner, Mr. Melnyk threatened legal action rather than taken on the owner, they did not listen and preferred to fight the matter in Court.

    On the assumption that the BTC now ultimately finds the horse ‘doped’ and disqualifies it, here is a suggestion:-

    1. Pay out the winning prize money to the second placed horse, and,
    2. Do NOT Bring an action against Mr. Melnyk for a return of the Gold Cup, which is already in his possession, but,
    3. Have a new Gold Cup made and present it to the second placed horse (newly declared winner) along with the cheque for No. 1 above.

    As we Bajan would say ” dog dead’

  33. No, it would not. It would be avoiding a fight with a man who has sufficient money to bury you in the legal forum.

    The winner would be Feet on Flames (second place finisher), its owners would have both money and the Gold Cup and the history books of the BTC will list it as the winner.

    Mr. Melynyk would have a Gold Cup and nothing more.

  34. But wont that be contrary to the rules of racing and the creating of a dangerous precedent , Money trumping Rules ? This seems to me to be dangerous pragmatism.

  35. @Friendly. My reading is that the test now merely needs to be confirmed for the decision to strip Melnyk of the award to stand. Assuming that test of the horse is confirmed, then the prize will be awarded to the second placed. Melnyk is required to return the trophy and, if he does not, the BTC can sue him for its return – and they will win such a case.

    Melnyk is, of course, entitled to bring the matter back to court if he so desires. But I am quite content that he will not succeed.

    @ Sonapanic | November 16, 2011 at 10:12 PM. Never in my life have I read such cowardly rubbish. “Dog dead”???? You mean Barbados dead.

    And you add to it with this next unbelievable statement:

    “It would be avoiding a fight with a man who has sufficient money to bury you in the legal forum.”

    Really!!!!!! So we should hand over the country to Mr Melnyk and his Canadian fellow countrymen??? Not my country. And has anyone noticed the curious fact (coincidence of course) that these Canadians with the mega bucks all seem to be represented by the Guyanese attorney, Alair Shepherd?

    So I agree with @BC. But it would not be a dangerous precedent, it would be complete capitulation.

    • We all stood by and witnessed how SIR Alan Stanford used his money to own Antigua. It was the very attitude of surrendering to individuals with deep pockets which has placed Antigua in the position of suffering a dent to its reputation as a sovereign nation. When it comes to doing the right thing, especially where the law is concerned, there shall be no retreat!

  36. @ David & Amused

    Clear from your comments are that you are both attorneys, why else would you be prescribing more litigation for a membership club like the BTC which has very limited financial resources. Do either of you know how much has been spend defending against this action and appealing all the way to the CCJ?. I didn’t thing so!

    ” Really!!!!!! So we should hand over the country to Mr Melnyk and his Canadian fellow countrymen??? Not my country. And has anyone noticed the curious fact (coincidence of course) that these Canadians with the mega bucks all seem to be represented by the Guyanese attorney, Alair Shepherd?”

    Spoken like a true jealous member of the local legal community and a bigot.

    Leave Mr. Melnyk alone, he has a right to use the legal forum as much as anyone else, you seem eager to prosecute him for that. You might find it interesting that Mr. Melnyk offered, on a without prejudice basis, to drop all legal challenges and not require the BTC to pay legal cost awarded to him providing that he keeps the cup and the BTC donates the prize money to a sporting charity in Barbados.

    • @Sonapanic

      This is not an issue to be parted by economic consideration. Some issues as a society we cannot/must not attached an economic value, and justice is one of those issues.

  37. @Sonapanic.

    You keep expressing the sentiment that Mr Melnyk has some right to be calling the shots in any attempt to solve this matter. I disagree with you totally ; he broke the rules by racing a doped horse. Until that finding has been displaced it will remain a FACT. He cannot therefore be calling any shots. In this whole saga ONE principle will save the BTC from future destruction, ie, THE RULES OF RACING MUST BE GIVEN PRECEDENCE ABOVE ALL OTHER CONSIDERATIONS… Any deviation from that must lead to the demise of the BTC.

  38. I have not been able to find the decision of the trial judge in the BTC case online. If anyone can provide a link or other solution, please be kind enough to do so. The Appeal Court in Barbados placed due weight on the fact that BTC did NOT challenge the finding of the trial judge that the rules of natural justice were breached. I am curious as to whether the trial judge was asked to order a “de novo” hearing before an “untainted” disciplinary panel. The only issues in the case appear to be (1) standing and (2) procedural fairness. Standing was disposed of by very persuasive precedent. The appellant did not challenge the finding of procedural “unfairness”. What concerns me is the language of the CCJ that the lab finding “remained (past tense) provisional” and that the process is “irretrievably infected” in light of the fact as a previous blogger pointed out, that each of the entered owners have recourse based on contractual obligations subject to the tolling of limitations. It appears to be the case that these Barbados judges ruled correctly on what was put before them in this case.

  39. @BC. Bravo. Standing ovation.

    @Sonapanic. You may NOT assume that I am a lawyer – for the purposes of BU, I am an anonymous blogger. You can certainly be sure that I am a patriotic Bajan who will fight in every possible way to ensure that our country remains a sovereign independent state and not the plaything of nationals from less happy lands. David is more than capable of speaking for himself….

    BC is absolutely right. Just where does this Melnyk person think he gets off trying to dictate terms. Do you think for one moment that Mr Melnyk could dictate terms in his native Canada or in the USA or the UK? Of course not. So why should he think he has that right in Barbados? If you have noticed, the thrust of this report is to call for the sanction and dismissal of members of the Judicial System who, by their incompetence and/or corruption are guilty of gross misconduct. So, as BU (now apparently with the valuable assistance of Airbourne) appears to spearhead this call for a proper and fully functional justice system in Barbados, here you are actually proposing that steps be taken that are directly contrary to justice. In essence, you are proposing that Justice for Bajans of all walks of life ought to be subservient to your desire to watch horses race around a track at high speed and that the anti-doping rules ought to be suspended or varied in the cases of people who got nuff money. Well, sir or madam, if you wish to kiss Mr Melnyk’s fundamental orifice, go and find a more accommodating country to do it in.

  40. @ B Mc Donald.
    It is not true that the BTC did NOT challenge the finding of the trial judge that the rules of natural justice were breached. In fact the Court of Appeal seems to have misled itself on this .i The proof may be found at page 4 of the Court of Appeal decision: Civil Appeal No 25 of 2007.
    “these grounds alleged that:
    (1) The learned trial judge erred in that in having ruled, obiter, that the court was not entitled to substitute its own decision for that of the disciplinary tribunal, she then failed to apply the Rules of Racing fully. In the circumstances, she misappreciated (a) (sic) that under Rule 39 (b), if a horse tests positive for having raced with a prohibited substance, it is automatically disqualified and by virtue of Rule 73(e) absolute and strict liability are imposed on the trainer of the horse. The Rule imposes a mandatory fine on the simple basis of a positive analysis for a prohibited substance.
    (ii) Because of (1) the learned trial judge erred when she went on to apply rules of natural justice in relation to the hearing of the PSB which simply confirmed the disqualification of the horse Kathir and imposed a fine upon the trainer Mr Naz Issa in accordance with the Rules of Racing.”
    You may read further by accessing the decision but ground (ii) quoted above is to me a clear challenge of the trial judge’s finding in respect of natural justice. it alleges that SHE ERRED when she applied rules of natural justice..

  41. @ Fairplay. The “tainted” PSB proceeding cannot confirm anything, because it is in law a nullity. You either accept on these facts that the PSB proceeding was tainted or you show how the judge erred with this finding.

  42. Fairplay, thanks for quoting the exact grounds. That is the ‘real’ issue. Natural justice is a sound principle when applied correctly (as any principle), but how can it apply to a simple and prescribed process of recording / ratifying fact, which was already established by the Testing Lab?

    THAT is the issue, a misinterpretation by all the Courts from the first.

    Absolute error by all.

  43. @B Mc Donald.

    But you are now raising another issue. The reason for quoting from the decision of the Court of Appeal was to show that the BTC DID IN FACT contest the trial judge’s finding of the applicability of natural justice. You have not responded to that.

  44. @ Fairplay. The Court of Appeal at [25] says “This Court agrees with Mr. Shepherd that the finding of the trial judge that the principles of natural justice were breached by the PSB was not challenged in this appeal.”

  45. @B Mc Donald.
    I do not disagree with you that that is what the Court said.But you have demonstrated a wonderful ability to READ ENGLISH. Would you therefore, in spite of that facility , agree with the Court after you have read the verbatim posting above , that the finding by the trial judge that the principles of natural justice were breached by the PSB was not challenged in the appeal is an accurate reflection of the SECOND GROUND OF APPEAL cited above? I await your response .

    • Far from over

      Barbados Turf Club and Canadian racehorse owner Eugene Melnyk.
      By Shawn Cumberbatch
      The controversial court battle between the Barbados Turf Club and Canadian racehorse owner Eugene Melnyk is far from over.
      On the heels of a recent Caribbean Court of Justice decision to disallow an attempt by the BTC to appeal a Barbados Court of Appeal ruling on the matter, the Club’s lawyers have advised it of additional legal options open to it.
      Counsel for the BTC, Vernon Smith, Q.C and attorney-at-law Hal Gollop, revealed this latest twist today in response to yesterday’s Barbados TODAY report on the CCJ decision given last month.
      The issue surrounds the 2004 disqualification and related action involving Melnyk’s horse Kathir, which had crossed the line first in that year’s edition of the Sandy Lane Gold Cup.
      A sample taken by English company Horse Racing Forensic Laboratory had found the horse testing positive for the prohibited substance methylprednisolone. Melnyk then initiated action against the BTC and won, doing so again on appeal, and again at the CCJ.
      But Smith and and Gollop today said they were “firmly of the view that this decision must be revisited by the CCJ and corrected”.
      “We have advised our client on our assessment of the decision vis-√†-vis the course of action open to it… We are of the view that paragraph 12 of the Court’s decision justifies and vindicates the Barbados Turf Club’s appeal and its application for leave to appeal,” the said.
      The lawyers also said there was “a material mistake” in paragraph nine of the Court’s decision.
      That paragraph stated, “….The finding by the forensic laboratory in England that the horse Kathir had raced with a prohibited substance in its body remained provisional until tested and confirmed in the appropriate judicial or quasi-judicial proceedings, here the disciplinary enquiry convened by the PSB. Indeed under the Rules of Racing of the Barbados Turf Club this finding was considered only “prima-facie evidence” (see Rule 142 (h)).”
      The rule in question provides that “a finding of a Positive result of Sample of a horse is prima-facie evidence that the Prohibited Substance was administered to the horse and in the case of a post-race test was present in the horse’s body while it was participating in such race.”
      “The Oxford Dictionary (2003) defines ‘prima facie’ as follows:- ‘accepted as correct until proved otherwise’. Accordingly, this is completely different from saying that the finding of the forensic laboratory remained provisional until displaced. It means that the finding of the forensic laboratory was valid and operative until disproved and thereby displaced,” the BTC counsel stated.
      “Paragraph 12 of the Court’s decision repeats their view that the laboratory’s finding remained provisional until displaced. We reiterate our view that Rule 142 (h) of the Rules of Racing makes it abundantly clear that the finding of the forensic laboratory was valid until displaced. It was not ‘provisional until displaced by the conclusive findings of a disciplinary hearing’.
      BTC’s lawyers also said based on their assessment of the CCJ decision, evidence including the laboratory finding, and the regional court’s own statement in the ruling Kathir “cannot be awarded the prize in the Sandy Lane Gold Cup race”.
      “In the premises, we consider it mandatory that the appropriate body of the Barbados Turf Club hold a hearing conducted in accordance with the Rules of Racing for the purpose of formally concluding the whole matter,” they said.
      “We are also mindful of the position of the Barbados Turf Club in relation to the owners of the horses which placed second, third, fourth and fifth in the race and who would be entitled to having an adjustment made in respect of the said horses.”
      In its decision, the CCJ panel said “the proceedings of the (BTC’s) Disciplinary Committee were irretrievably infected with procedural impropriety and therefore could not produce legally acceptable findings of fact”.
      “We wish to stress that the laboratory finding that a horse had raced with a prohibited substance in its body remained provisional until displaced by the conclusive findings of a disciplinary hearing held in accordance with the rules of natural justice,” it stated.
      “The trial judge decided that the PSB proceedings did not measure up to these standards and therefore that its decisions were null and void. The Court of Appeal upheld this decision. We entirely agree.”

  46. @David. Thanks for the above. This seems to be buidling into another National Sovereignty fight akin to the Graeme Hall debacle.

    @Friendly. Contrary to what you said before, I do believe that you CAN instruct me. I agree with everything you have said.

  47. The question raised by Sonapanic is an interesting one that is if the rules of the BTC given” time” allowed for another meeting some light needs to be shed on that! This case has more question than answers .

  48. @ac, I agree that the judgement as written seems, to a layman such as myself, highly ambiguous if not confusing. That then adds to disagreement with principle applied, resulting in an overall impression that this has not been given adequate comfort.

  49. The court did give the BTC some wiggle room allowing the BTC to reopen the inquiry at which time with proper implementation of the BTC rules it could resolve the case. However I see that the BTC is challenging the court decision on some technicality revovling around the BTC rules.However i would like to know if given the long period that the case was in legal limbo if The BTC rules would allow for another reopening of the inquiry at committe.

  50. @Fairplay, the rules to be followed by the disciplinary body are not in question, as I understand it. The contention by BTC that upon a finding by the lab, suspension is automatic would ordinarily obviate the need for a disciplinary hearing, and this is a bit of a stretch, since the same rules call for a disciplinary hearing, hence the CCJ’s determination that the test results are provisional until received into the record by the PSB. All proceedings of the PSB as a disciplinary tribunal are subject to the rules of natural justice. The issue raised by the applicant is whether the trial judge erred in applying that standard. According to the Court of Appeal, there was no challenge to the procedural taint in the conduct of the PSB deliberation. If PSB deliberation had been limited to its members, the application of natural justice rules would not be an issue. Applicant should have asked the trial judge for a “de novo” hearing before an “untainted” PSB panel.

  51. @B Mc Donald.
    Why have you studiously refused to answer the question posed in respect of the issue YOU raised? I am still awaiting your answer. DO YOU AGREE AFTER READING THE GROUNDS OF APPEAL THAT THE COURT OF APPEAL WAS CORRECT WHEN IT SAID THAT THE APPELLANT DID NOT CHALLENGE THE JUDGES FINDING ON NATURAL JUSTICE ? I will try to maintain my patience.

  52. Unfortunately this blog got exclusively onto the case of Melynk vs BTC, but the much more important issue is the NON FUNCTIONING of the justice system in Barbados. One Judge retired with 67 judgements of several years outstanding. I am told that in the UK his pension would have been withheld until they were delivered. The system is in terrible state. One dissolution of a partnership that should take a few weeks has not yet recieved a judgement and the company is almost worthless now as it has been 3 years since application by one of the partners. It seems that there is some hanky panky at the Registry and there should be an international body called in to investigate this. Good luck to CJ Marston Gibson, I believe he could be a god send BUT he needs support. Will he get it or do the lawyers like these delays so they can add a few zeros on the bills? Pirates of the Caribbean!

    • @Notunusual

      You obviously are not a regular on BU because you would have read the many blogs which highlighted the local judiciary.

  53. True David, we have a lot of blogs on the subject, but don’t you think that two months has been enough time for the CJ to have clearly thrown down some kind of gauntlet?
    …like a maximum time for a judgement to be completed or else….
    …like an analysis of outstanding judgements and serious actions taken against the worse defaulters.

    When can we expect some kind of action? In 11 years or so…?

    Seems like he is busy being at every cock fight and christening – and commenting ’bout “troops at parades” and other nonsense.
    What troops what!?!?

    Bushie is tired with the lotta long talk man…. This thing don’t need any extensive studies and surveys – it needs a big stick and some kind of whip….

    • @Bush Tea

      Will do some digging to see where we are. Two month is a short time though to expect anything significant concerning a revamping our out Court setup.

  54. Pingback: CJ Marston Gibson’s Has Mountain To Climb | Barbados Underground

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