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Tales from the Courts – A lucky Dip into the Decisions of the Barbados Court of Appeal Part XVII

“Justice Delayed Is Justice Denied” – British politician William Gladstone A dip into decisions of the Barbados Court of Appeal  by BU legal eagles has provided the opportunity to critique the case James Livingstone Eastmond v. Rayside Concrete Works Limited [Unreported] C.A. B’dos Civil Appeal No 18 of 2003. The decision was handed down on…

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Where is justice in the Barbados Courts?
Where is justice in the Barbados Courts?

“Justice Delayed Is Justice Denied” – British politician William Gladstone

A dip into decisions of the Barbados Court of Appeal  by BU legal eagles has provided the opportunity to critique the case James Livingstone Eastmond v. Rayside Concrete Works Limited [Unreported] C.A. B’dos Civil Appeal No 18 of 2003. The decision was handed down on 2012-11-08 by a panel comprised of Williams CJ (ag) Mason, Burgess JJA.  The decision was written by Peter Williams JA.

The case is one involving dismissal and severance payment. This is not some high-flown case with wealthy and high-profile litigants, but one which demonstrates the perpetual failure of our judiciary to deliver justice to an ordinary Bajan.

The plaintiff, James Eastmond, had worked for Rayside Concrete Works for 15 years and he had been dismissed over 20 years before the decision of the Court of Appeal was handed down. A twenty year search for justice. The case was in the system (either before the Severance Payments Tribunal or the High Court) for about 11 years, before coming to the Court of Appeal.

Williams JA notes that “Eastmond was employed by Rayside from 2 December 1976 to 8 April 1992″ Except for a lacuna of 6 weeks when he was laid off. On 8 April 1992 Eastmond was laid off and he was given a Termination of Services/Lay-Off Certificate that would enable Eastmond to collect unemployment insurance. This Certificate was stamped by the National Insurance Office dated 21 April 1992. The reason for the laying off and proposed recommencement of work was given as “the truck was under repairs and that the date of re-employment was indefinite.

Mr Eastmond first claimed for severance in 1992. But it was denied until 2012 – 20 years later. The conduct of Rayside can only be described as egregious and punitive towards Mr Eastmond. Ditto the Court of Appeal in that he can only expect his severance payment as it was in 1992, with no interest whatever, other than maybe a few days or weeks from the date of the judgment in 2012. No recognition of the hardship and mental stress and anguish that his ordeal caused him. And this, in Barbados, is what passes for JUSTICE.

And what about Mr Eastmond’s legal costs? Well, the BU family can read all about them starting at [33] of the judgement. We are too disgusted to go any further.

So JUSTICE has not been handed to Mr Eastmond. Instead, he now has the task of trying to collect his legal costs from RAYSIDE CONCRETE WORKS for his cases before the High Court and the Tribunal. And do you think that will be easy?

BU is sickened and disheartened to read of this case and can only imagine the torment which has been experienced by Mr. Eastmond. What about the MANY litigants like him? Perish the thought that we even have to have some sympathy for the attorneys-at-law who are placed, by the courts, in a situation of being blamed and reviled – sometimes unpaid – by their clients as a direct result of the total breakdown of the Barbados judicature.

26 responses to “Tales from the Courts – A lucky Dip into the Decisions of the Barbados Court of Appeal Part XVII”

  1. Gabriel Tackle Avatar
    Gabriel Tackle

    Might this be the result of the change made to the constitution in 1973?by the Barrow and Smith team?Is it because of the political appointments being made to the Judiciary.Should we not return to employing the best talent from the Caribbean Region and/or the Commonwealth on contract?I heard someone on a brasstacks show indicate we have 900 lawyers in Barbados.What is causing the hiccups in the system and why cannot it be fixed or are we content to be seen as a banana republic type jurisdiction.Does anything work in Barbados nowadays?PM Stuart and MoF Sinckler speak glibly about ‘rubbing shoulders campaign’scaring off investment.Its more likely that investors have no confidence in either the Government or the Judiciary.

  2. Simple Simon Avatar
    Simple Simon

    http://www.thestar.com/business/2013/08/19/canada_post_pay_equity_case_cheques_finally_being_mailed.html
    Canada Post pay equity case.

    This one took 30 years to resolve. Looks like Bajans are not the only slow ones.

  3. Hants Avatar
    Hants

    David wrote “the perpetual failure of our judiciary to deliver justice to an ordinary Bajan.”

    Can you show any case involving “big ups” that got a speedy decision?

    Seems the Barbados judicial system needs a major restructuring.

  4. Caswell Franklyn Avatar
    Caswell Franklyn

    David

    The link to the decision is not working.

    If this is any consolation: he waited all these years but at least he has a decision where he would be paid. For years hundreds of workers were dismissed without any severance because the local courts MISINTERPRETED the Severance Payments Act. Section 16 of that act guaranteed a severance payment to anyone who lost their job through no fault of their own after working 104 weeks. Instead, these evil lawyers and the courts applied the rulings from the English Redundancy Payments Act instead of realising that our act was a severance payment act and not redundancy. As a result, many persons were denied severance pay because the employer gave them notice of his intention to terminate their services.

  5. David Avatar
    David

    Thanks about the link Caswell. Here it is:

    http://www.lawcourts.gov.bb/lawlibrary/events.asp?id=891

    How will the Employment Rights Bill make this a more equitable matter?

    @Gabrial Tackle

    It is an indictment on our investment in education that we have to entertain thoughts about reaching out to the Caribbean for labour. But it is the system isn’t it?

  6. Amused Avatar
    Amused

    @David. Have read this case in the last few days. In fact, it has been going the rounds of the legal profession for the last week or so ever since your last Tales From The Courts and there is a large degree of shock and dismay that the Court of Appeal failed to properly address the quantum of damages and costs in the lower courts.

    How could it be possible for it to be even vaguely just, for a man, 20 years later, to be paid exactly the same in severance as he would have been paid 20 years before? How can it be just that the company that dismissed him had the benefit and use of his severance payment and enjoyed the interest and profits thereof and 20 years later are allowed to pay this man without interest? And we are not talking about compound interest, you know. We re talking simple interest.

    I urge all BU’s readers to actually read this case so they know what total rubbish our courts are up to. On the delay factor alone, they will find:

    1. 13 July 1992 and again on 7 April 1993, Eastmond wrote Rayside asking for his severance payment. Rayside did not respond.

    2. 5 November 1996 the case came before the Severance Payments Tribunal – ADJOURNED because Rayside did not enter an appearance.

    3. 11 December 1996 back before the Tribunal. ADJOURNED because Rayside did not enter an appearance.

    4. 4 February 1997 again before the Tribunal. ADJOURNED because Rayside did not enter an appearance.

    5. 11 March 1997 again before the Tribunal. ADJOURNED because Rayside did not enter an appearance.

    6. 22 April 1997 back to the Tribunal and this time, likely because Eastmond had “lawyered-up”, Rayside too managed to enter an appearance. But, instead of taking evidence and hearing legal arguments, the Tribunal refused to allow Eastmond’s lawyer to present his case. And we say we live in a democracy.

    What I totally fail to understand is how Rayside was allowed by the Tribunal to IGNORE summonses to appear on THREE (3) OCCASIONS with impunity. And understand me, WE THE TAXPAYERS are PAYING for this. We are PAYING so that RAYSIDE can waste our money and the Tribunal does NOTHING about it. No penalties, nothing.

    7. 13 July 1997, Eastmond takes the case to the High Court.

    8. 6 March 2000, almost THREE (3) YEARS LATER, it is eventually heard by the High Court.

    9. 2 October 2003, THREE YEARS AND SEVEN MONTHS LATER the High Court decision is handed down.

    SO, from start to finish, the High Court part of this case has taken 6 YEARS AND 3 MONTHS!!!

    10. 30 October 2003, Estmond appeals to the Court of Appeal.

    11. 2012 – NINE (9) YEARS LATER, the case if finally heard before the Court of Appeal. And Williams JA makes the incredible statement in his judgement, ““We do not know the reason why the appeal did not come on for hearing until 2012.” WELL FIND OUT, FOOL!!! But no, it is easier to sweep it under the proverbial rug, while covering your ass in case it gets to the CCJ. The perennial Bajan excuse, “I en know!”

    Now, since there is no mechanism that would allow Williams JA and the panel to order that Mr Eastmond be “cured” of his losses by a court system that took 15 YEARS to hear his case, and equally there is no mechanism that would allow the CCJ to do so either, it can only amaze and disgust that the Court of Appeal did not take cognisance of the fact that Rayside had had the benefit of Mr Eastmond’s severance payment monies for 20 years, to use and invest to its benefit – and to deny Mr Eastmond his interest at 8%, not 6%, on that money is, in fact, a gross miscarriage of justice.

    And then to compound it by NOT making an order in Mr Eastmond’s favour for costs in the High Court……I give up. BUT, that is how I see this case. So, now I wait to hear dissenting views. Argue with me, if you can.

    @Lassie. As usual you have the wrong end of the stick. You say, “As a result, many persons were denied severance pay because the employer gave them notice of his intention to terminate their services.” No such notice to terminate was given by the employer in this case. Read the judgement. I am amazed you have not done so before.

  7. David Avatar
    David

    @Amused

    He appears to be using this opportunity to make another point.

  8. Robert Ross Avatar
    Robert Ross

    David

    Since Amused says the judgment is hot stuff and going the rounds and, moreover, chides Caswell that he should read it – might it not be possible to post it here?

  9. PLANTATION DEEDS FROM 1926-2013 AND SEE MASSIVE FRAUD ,LAND TAX BILLS AND NO DEEDS Avatar
    PLANTATION DEEDS FROM 1926-2013 AND SEE MASSIVE FRAUD ,LAND TAX BILLS AND NO DEEDS

    It good to see that some of you now are getting the point , Crooks , Lawyers and ministers , We will keep reading ,
    None of you dont have to listen to We , Us or Me , Listen to your self,
    It appears you all are waking up ,, keep going ,stay on the point the focus.

  10. Robert Ross Avatar
    Robert Ross

    David

    Sorry…it’s there isn’t it. I’ve read it. Some preliminary responses:-

    It seems to me that the CA, of which the post is critical, acted in a very balanced way having regard to the interests of E.

    Amused criticizes the Court in respect of the payment of interest. The Court is clear that it would not, after so many years of “horrendous” delay, wish to hold back payment because of subsequent attempts to apportion blame for the delay as between the parties and the system. So – you pays your penny and you takes your choice. The CA sought to bring the matter to closure – which is surely something we should applaud rather than condemn.

    What I find particularly objectionable is the way a leading company could treat its former employee with such contempt by not responding to him. I have a case at the moment where a market leader repeatedly told its former employee that his insurance claim was being dealt with by the insurer – when it clearly wasn’t. The employer and insurer then had the cheek to suggest that, because of the delay, his claim was statute barred.

    On not turning up – sounds very bad .but we all know that there are varying reasons for this and not inevitably the clear fault of the absent party……or the party (eg a prosecutor) who has not got his act together. For myself – I would apply a ‘three strike’ rule whatever the circumstances.

  11. David Avatar
    David

    @Ross

    You see no problem with the time the case has taken to mow its way to a decision?

  12. Amused Avatar
    Amused

    @David. I never thought this day would come that I would be defending Ross (I suspect that neither did Ross or anyone else). However, Ross has not voiced any objection to the condemnation of the time it took. I think his objection and disgust is probably safely taken as read. But he will confirm (or not) that for you.

    His only difference of opinion lies in the fact that the court did not award interest. I do not agree with Ross on this. The fact is and remains that the company was deriving a benefit from the severance payment that they unlawfully withheld from the Appellant and had done so for 20 years. Therefore, to simpy order the severance as it was 20 years prior without interest and thus deprive the Appellant of his benefit for effectively 20 years, is wrong. I take the position that it is wrong in law and would have been appealable had the Appellant, no doubt worn out and demoralized by the Barbados “Justice” system, opted to appeal to the CCJ. However, he cannot do so now as it is out of time. The Court of Appeal was delinquent in its duty to establish a quantum and it has full authority and right to have done so. So, the decision is nothing more than passing the buck. UNACCEPTABLE!!!

    Also, I have to say that while I take your point that Casewell was probably trying to make another point, his comment was……..unfortunate.

    I just find cases like this, of which there are all too many, and also the case Ross has briefly referred to, deeply demoralising and extremely upsetting. I mean, where is the justice in this? Those of us who work in the legal field encourage clients with good cases to take them to the courts, if negotiated resolution is not attainable. The courts are supposed to dispense timely JUSTICE and to right the wrongs that have occurred. As children we were raised, still are raised, to believe that when the world (and big business or the wealthy) conspires against us, if we are legally right, we can go to the courts for justice and then get on with our lives. We are taught to respect the courts. But for what? We who work in law are made fools of DAILY by the courts, because the courts default and betray the duty and undertakings they have given to everyone.

    Let us suppose that this poor man was 40 when he started this case. How in hell could it POSSIBLY be justice that it was not determined until he was 60 – and then at the same amount of money that he could have invested when he was 40 (used to put on a downpayment on his house or paid off his mortgage or paid for one of his children to go to college etc.) is what is awarded by the courts? How in hell could that be justice? I am bemused and sickened and I believe that Williams AJ was entirely wrong to not make an assessment.

    In all other respects, I agree with Ross – the judgement is sound. But it is a Pyrrhic victory – and on a matter like this that affects so many other people in the same boat, it ought NOT to be. Something like this provides the courts with the opportunity to send a clear and unambiguous message to employers – and the courts have failed the workers and the population that pays their wages – and pensions – at large. And during the time that what was after all, a TEST CASE the determination of which would have avoided hundreds and likely THOUSANDS of similar miscarriages of justice occurring, employers have been able to withhold severance payments – AND BENEFIT FROM THE FUNDS SO WITHHELD. And supposing Rayside had decided to wind up the Company? During a period of 20 years, this might easily have happened. And the most disgusting part of it is that MANY of those who were actually owed severance payments have been able to get away with not paying them, because this decision – which is only common sense – had come too late for them to file their claims.

    20 YEARS TOO LATE!!!!!

    Forgive me. I am quite emotional about this. I believe that the “Justice” system of Barbados has betrayed and tortured an entire class of citizens. And now we wait to see what the Government – and the opposition – propose to do aabout the standing international shame nd joke that is the “Justice” System of Barbados. They may choose to bury their heads in the sand, but let me assure them that the international community knows exactly what is going on. And at some stage, with butts in the air and heads in the sand, this legislative inaction will come back and soundly bite them in self-same butts.

    As I say, I am VERY upset and sickened. There is no bright side to this, even if the man-in-the-street now clearly sees where the true onus lies – more on the courts and the legislature that will do nothing about it, than on the lawyers most of whom (with some notable and undeniable exceptions) are merely trying to make a living.

  13. Amused Avatar
    Amused

    @David. I did not want to shoot my mouth off before without consulting with my betters. But having now consulted with them, they take the view that FULL interest SHOULD HAVE BEEN AWARDED. That this is an obligation of the of the court.

    I have to say that it sends a very nasty message to the workers of Barbados. That message is that the courts are in league with employers to deny employees what they are due. This is VERY DANGEROUS precedent to set. At some stage there will be a serious backlash.

  14. David Avatar
    David

    Was/is Rayside Concrete unionize and if they are is this case a good one for any conscientious labour movement to take up?

  15. pirate Avatar
    pirate

    justice for the rich,screw the poor.money talks and the poor man walks to work.money can buy you out of jail.it is plain to see .
    the rich get richer and the poor dont stand a chance in tiny barbados.

  16. Amused Avatar
    Amused

    @David. I would guess NOT. If it had been unionized, it would be reasonable to infer that the union would have retained counsel and even taken/threatened industrial action. But Casewell ought to be able to confirm this one way or another.

    @pirate. I wish it was as simple as that. The TRUTH is that money is not the answer either. Political clout is. Witness the amazing speed with which the libel actions like Payne v Hinckson and even Gollop v The Nation, are proceeding. Even money is falling prey to political expediency and influence. And the BIG problem is that most of the people working in the judicial system got their appointments under what is now the opposition.

    Frankly, I do not envy Freundel Stuart this job at all. Potentially, it is a political quagmire. Mind you, it would be far less so if the Government and the PM were to invest in a really good PR person, so that their motives and objectives could be simply explained to the electorate. I think that would in very large measure solve the potential problem – and I note that David has been urging this course of action on them repeatedly. Rather like this last budget, a lot of the measures in which David has been advocating for the last three years – but no one was listening – except me, it appears.

    There is a consolation for the PM, however. It has to do with his legacy. For, if he is resolute and firm and is seen to clear up the mess of the Justice System, save, of course, for judicial independence, which is NOT absolute since the taxpayers are paying judges’ wages, his legacy is assured and history will go on its knees to him. But he has got to do something, as it is very clear that the Chief Justice hasn’t a clue what he is doing – and in that last statement I expect to dissent from Ross. Or anyone. I must have been having serious senior moment when I supported the appointment of this CJ. And I apologise to all yet again for it.

    If nothing else, this case, which is now, sadly, the norm, illustrates to everyone the true depths to which the Justice System has descended. And I, and others like me, could provide endless details of similar cases. Some even more dreadful. Understand me clearly, the JUSTICE SYSTEM HAS COMPLETELY BROKEN DOWN!!!! It does not exist any longer. All we have are a whole lot of people GOING THROUGH THE MOTIONS. Like a cabaret drag queen act lyp-synching to recordings of Cher or Rhianna – they are not real women and they are not singing.

  17. Caswell Franklyn Avatar
    Caswell Franklyn

    Amused

    You idiot! I was speaking generally. I was not referring to this case. If you were not so eager to attack everything I say, you would have seen that the first I wrote was a note to David saying that the link was not working. Obviously, I had not read what was not there. You are taking your hatred too far to the point of being ridiculous.

    My point remains; over the years hundreds of persons were wrongly denied severance pay because of a misinterpretation of section 16 of the Severance Payments Act. Deal with that and leave out the personal crap. Did I horn you or something?

  18. David Avatar
    David

    It is being said that CJ Gibson has been traveling a lot of late. Some are beginning to speculate…

  19. Gabriel Tackle Avatar
    Gabriel Tackle

    @Caswell
    I like Ross read what you said in the context in which you have defended it to Amused.Your point is well made and taken.Stuart if anything has compounded the sloth in the Judiciary by of all impertinent things changing the law in the dead of night to accomodate an unworthy candidate to the high calling of Chief Judge of Buhbaydus.Why,ours’ has been a goodly heritage hitherto!
    Btw,Stuart also introduced in the dead of night a supplementary of nearly a million dollars to install a canopy and a lift at Ilaro Court.You heard that he fainted 3 times in public.What you have’nt heard is that he is winded when he got to climb stairs.Incompetence and now poor health as a result of eating too much of the Fatted Calf?

  20. Ears wide open Avatar
    Ears wide open

    @ gabriel Tackle
    What i did hear is that one night in the last G E campaign he spoke SIX TIMES putting some warm lashes in the BLP . Did you hear that as well ?

  21. Gabriel Tackle Avatar
    Gabriel Tackle

    Are you sure its your ears that are wide open?

  22. Primus inter Pares Avatar
    Primus inter Pares

    What is it with you guys.
    IF you live in BIM you know its rotten to the core.
    WHY?
    You keep trying to pick a few good pieces of apple from amongst the MAGGOTS.
    The King has got no Clothes.
    Barbados Now stands Naked in front of the whole WORLD.
    They see what we are.
    They have not got biased attitudes.
    Their eyes are opened by the blatant blagardly attitudes of the swaggering sodomisers ,who openly SHAFT our Country.
    Political Penisis. So openly careless of the Nuetered Public opinion,just operating with no more than what is an OBSCENE disregard.
    En Flagrante Delicto and not giving Brass bowl damn about it either.
    They are THE LAW, the law is them.
    Change it,Move it Twist it or JUST LOSE IT.
    Cut the law to suit and to fit.
    Pull it on like a legal CONDOM to contain their seeds of CORRUPTION ,that THEY may NEVER be cought with their PANTS DOWN.
    The TRUTH will OUT.
    Biased Political Pisspots,Corrupt Governance,A legal system run by worse criminals than ever stand before them.
    A sewer of a political system,populated by the TURDS of existance.
    GOD HELP US!!!

  23. Robert Ross Avatar
    Robert Ross

    Some further thoughts.

    Yes – Amused is right. I did take the issue of delay as a ‘given’. But, if I’ve read it correctly there are some factors of which notice should be taken.

    1. It took 4 years before the Severance Tribunal began its deliberations. We don’t know when the matter was filed and certainly some of that time was taken up by R’s contumacy in not responding to letters. As we know, that contumacy continued before the Tribunal – which is, for me, disgusting. It is not really a statement about the legal system. It is a statement about the power of any institution (in this case an employer) qua the ‘little man’ and we meet it in all walks of life.

    2. There was then an Appeal to the High Court which, in the event, needn’t have been made since under the legislation provision is made for appeals direct to the Court of Appeal. The attorneys got it wrong, the High Court got it wrong….but the upshot was that three years were wasted.

    3. There was then a delay of three years before the matter was appealed. We don’t know the reasons for the delay. Perhaps Mr E had insufficient funding. Only Mr B Weekes knows since he represented Mr E throughout.

    4. Nor do we know why it then took nine years for the Appeal to come to a hearing. The CA commented on the delay and said that the delay over the entire period was “horrendous”. I don’t think it was the task of the Court to become a detective agency unless some reason for the delay was suggested before it. But, of course, at least it got the law right.

    5. It is clear that the proceedings before the High Court were either “irregular” or a “nullity” – but it all rather shows how important it is to have able counsel. We tend to think it’s all about poor judging. In fact we underestimate the role of attorneys in both explaining and developing the law and the extent to which judges rely on them to keep the process confined to the “straight and narrow way”. My own experience is that the frailties of counsel here (and also judges) are no different in kind or degree than anywhere else – in which I include the UK – and that, in any event, without a supporting cast of many bank notes the poor and underprivileged litigant is always at a disadvantage.

    6. Of course, if the judges always got it right there would be no need to appeal. And certainly here the High Court got it wrong. But it does prompt me to say that both in the popular and informed imagination fictions often entrench themselves. One that comes to mind is the so-called ‘prostitution debate’ of some years ago – the issue being whether to de-criminalize prostitution when , in fact, there was nothing to de-criminalize. Another is, I suppose, that we have homophobic legislation in an Act which is gender neutral. But the most obvious recent example is the attempt to get us to swallow what was being said about the effect of the Occupational Pension Benefits Act – that is, that its provisions meant that any lump sum payment to a retiree was limited to 25% of the whole. Government was purveying this garbage, as also the Financial Services Commission and from then on various ‘big time’ employers one, at least, of whom remained intransigent about the fiction and created untold difficulty for those who, in response to what they were being told, took their 25% and were forced into taking annuities with the balance. It took only one enterprising lawyer to expose the fallacy and the deck of cards fell like the fiction it was.

    I have ‘gone on’ at length because, as I have said many times, we need to know the reasons for delays. Snap judgements about events and people are very easy to make and especially where, forgive me as here, there is an established agenda. Nevertheless, of course the CA was right to describe the delay in this case as “horrendous” at the least in the abstract and, for myself, I am glad BU brought it to our attention.

  24. David Avatar
    David

    @Ross

    The system failed this poor Bajan, simple. Whether it is the Judges or other officers of the Court frankly BU’s position remains steadfast here.

    On 22 August 2013 10:44, Barbados Underground

  25. Bush Tea Avatar
    Bush Tea

    Since Ross and Amused discovered their mutual interest, their exchanges have taken on a new level of gay civility……

    Bushie is impressed.

  26. David Avatar
    David

    Could it be that Sir Marston Gibson has fired a salvo of buckshot at social media and in particular BU?

    See page 17, Nation newspaper.

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