est. 2007

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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…

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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 responses to “The Caribbean Court of Justice (CCJ) Heaps Scorn On Barbados Judges”

  1. David Avatar
    David

    Good to read Barbados Today has carried this matter on p5 of their issue today.

  2. BMcDonald Avatar
    BMcDonald

    @ 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.

  3. Friendly Avatar
    Friendly

    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.

  4. Fairplay Avatar
    Fairplay

    @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.

  5. BMcDonald Avatar
    BMcDonald

    @ 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.”

  6. Fairplay Avatar
    Fairplay

    @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 .

  7. David Avatar
    David

    Far from over
    2011-08-31

    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.”
    shawncumberbatch@barbadostoday.bb

  8. Amused Avatar
    Amused

    @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.

  9. ac Avatar
    ac

    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 .

  10. Friendly Avatar
    Friendly

    @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.

  11. ac Avatar
    ac

    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.

  12. BMcDonald Avatar
    BMcDonald

    @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.

  13. Fairplay Avatar
    Fairplay

    @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.

  14. Notunusual Avatar
    Notunusual

    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!

  15. David Avatar
    David

    @Notunusual

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

  16. Bush Tea Avatar
    Bush Tea

    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….

  17. David Avatar
    David

    @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.

  18. CJ Marston Gibson’s Has Mountain To Climb | Barbados Underground

    […] … we have a lot of blogs [BU] 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…? – Bush Tea […]

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