In an email to Andrew Pilgrim, president of the Barbados Bar Association, Chief Justice Marston Gibson has slammed the BBA, thereby raising many points that BU has been promoting about the Justice System.
The Chief’s email to Mr Pilgrim is posted to the members section of the BBA website and requires that it be accessed by passwords available to BBA members only. However, BU has been able to obtain a copy and states that it posts this as a matter of public interest!
This comes at a time when BU understands that the Registrar has been told that she may not sit as a judge to replace judges on leave (in this case, Madam Justice Kentish) and that her job is to stay in the Registry and sort out the mess. Instead, Madam Justice Kentish has been replaced during her six month leave by the Chief Magistrate.
Here is what the Chief has had to say to Mr Pilgrim and the BBA.
“Subject: Our 14 March 2012 Conversation
Mr. Andrew O. G. Pilgrim
President, Barbados Bar Association
“Leeton”, Perry Gap
Roebuck Street
BRIDGETOWN
Dear Mr. President,
I refer to our conversation last evening, 14 March 2012, in which you intimated to me that the Bar Council, or a majority of them, were “up in arms” over a report in the Sunday Sun of 11 March 2012 of my address to the Fair Trading Commission (FTC). You indicated to me that they had written a letter which was “ready to go” to the newspaper “to print.”
My practice is to pick up the Sunday Sun at a gas station on my way home from church. This past Sunday I did not do so and did not see the report until a friend pointed it out to me on Tuesday 13 March, at which point I noticed some inaccuracies. The one glaring example related to the Court of Appeal. In attempting to “set the context” in which the proposed Alternative Dispute Resolution (ADR) is to work, I stated that I had discovered 363 pending cases in the Court of Appeal, some filed long ago as 1993 and a few filed by attorneys who have since passed away. One of those attorneys, I pointed out, had been elevated to the same Court of Appeal, had died, but his pending matter was never heard. Other attorneys, I had noted to the audience, had been elevated to the High Court, had retired but their cases remain unresolved. Apart from a passing reference to attorneys who had passed away, there was not even a mention of the number “363”. I decided, however, to “let it be.”
What I had said to the FTC is that a large challenge will be to get “buy-in” to the concept of ADR from the Bar. This is not new. You and those of your Council members who attended will, doubtless, recall the lecture of Mr. Stuart Kennedy at the Bar Association in October last year when he noted the same thing. People are naturally suspicious of change and attorneys are no different. The system which we have, with its court delays, is what the attorneys know, with the ability to bill for every court appearance. Obviously, then, the longer a case exists, the more likely it is to generate fees for an attorney handling that case. The problem is that there is, equally likely, a dissatisfied client who wonders why the case is taking so long to resolve and who, again likely, will be told “it’s the court’s fault.” If what is reported in the Sunday Sun says or implies that, then I stand by it.
I also recall that, attending that lecture, was an eminent QC who remembered his initial reluctance at the ADR concept but, having had the scales removed from his eyes, now is the beneficiary of a reputation that he not only does things but he “gets things done.” That is what I meant by “buy-in” from the Bar – your clients will see you as someone who gets their cases resolved rather than as someone who is there when their “day in court” is transmogrified into “years in court” whether it is the court’s fault or not.
You mentioned your letter to me of 8 March 2012 which referred to a prior letter to me of 17 January 2012. I am in the course of replying seriatim to the 11 issues in 17 January letter. I am not sure why you or your Council members believed it sensible to ‘demanded’, in the January 17 letter, that I should resolve, “within 14 days of this correspondence” “a number of issues affecting the administration of justice which have been the subject of a number of meetings and written correspondence between the respective Chief Justices (including those acting in the post) and the Barbados Bar Association since October of 2009.” If my arithmetic serves me correctly, at the date of the 17 January letter, I had been in office exactly four months, two weeks and three days!
I will complete my reply to that letter after my meeting today with the Judges since many of the issues implicate how we Judges do business in the Supreme Court. I give you but one example. Issue number 1 in the 17 January letter asks that chamber court matters be scheduled by appointment. I am going to suggest to the Judges a temporary measure which I outline in my letter to you. But two of your members, Mrs. Angela Mitchell-Gittens and Mrs. Liesel Weekes accompanied Registrar Marva Clarke, Deputy Registrar Jackson and me on a visit to the Trinidad Courts at the end of January. They either have reported to you, or will report, to you that chamber court does not exist in Trinidad. All cases filed in Court are assigned to a Judge by random selection of JEMS. That Judge is then responsible for every application, motion, conference or pre-trial review of that case. We will adopt that system this year or early next year. There will be no more distribution of files by a single senior legal assistant neither will there be any more situations, reported to me anecdotally, of lawyers choosing WHEN to file a matter depending on WHICH Judge is doing chamber court. Random selection by computer will be the order of the day.
It is because several of your 11 issues have repercussions with the Judges, the fact that I was planning to visit Trinidad exactly 13 days after the date of your letter and, more simply, because, with four months’ experience, I had to “get the lay of the land” that I have not yet responded until I had something to say to you, at least something more than “I have received your letter and will get back to you when I can.”
I am not sure whether all of the above assuages what feelings of umbrage your Council members have taken but that is my position. You should be receiving my letter on Friday 16 March 2012.
Finally, Mr. President, and I will expand on this point in my responsive letter to you, I am concerned over the public diffidence at the pace at which the Disciplinary Committee works. I have received several complaints, some in writing but most of them verbally, especially during the Question and Answer sessions which invariably follow my public lectures. At one of the seminars on Criminal Law issues sponsored by the Bar Association which, regrettably was also not well attended, you stated that you supported amending the Legal Profession Act to tighten up the procedures by which disciplinary matters are handled. I hope that you, and your Council members, will see the wisdom in publicly allaying public concerns about this since, as outgoing Chief Justice Hugh Rawlins of the OECS recently said, it is imperative that the Bar retain, in some cases regain, the “trust and confidence imposed in it by the public.” I will continue to work on the public’s concerns with the Court system. I trust that the public can rely on you and your Council members to work on regaining its confidence in our noble profession.
Sincerely,
Marston C. D. Gibson,
Chief Justice.”
It is of interest to BU and to all Barbadians that off-shore investment worldwide had Barbados as the fastest growing off-shore port in the World 10 years ago, with Russia, futilely, trying its best to even compete at second place. Today, largely because of the lack of a credible justice system, Barbados’ off-shore investments have all but disappeared. Yet, every rub that could be placed in the way of Mr Gibson to become Chief Justice was placed there by Owen Arthur and his party (excluding Mia Mottley who, indeed, was part of the selection process, before she was debunked by Mr Arthur).
The rot set in when David Simmons became attorney-general and supported the rank inefficiency of his wife as Registrar. And as a reward, he had her created a Justice of Appeal. Her tenure as a Justice of Appeal ended when Simmons himself was made Chief Justice by Owen Arthur and thereafter the Justice System stood not a hope in hell. The mess of the Registry soon invaded the Judiciary and the whole Justice System went to hell and with it, Barbados’ yearly billions of dollars off-shore industry and with that, a seriously compromised economy in large part resulted.
Now the new broom has started to clean things up and he clearly does this with the full cooperation of Government.
So, if anyone wants to ascertain the marks of the CJ for his first 6 months in office, we are able to reply that they are 100%.
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