As we all know by now, the CCJ has been even more harshly critical of the delays in the Barbados courts than ever before, for good reason.[โฆ] We also know traditional media will be restrained to comment if we are judge from what we have heard so far!
And they have reserved special censure for Justices of Appeal Moore and Mason for refusing to recuse themselves, even in the face of compelling reasons for them to do so.
The Walsh case is not a complex at all. Rather, it is one well within the scope and capability of a first year law student. Real estate transactions require an exchange of written and signed memoranda and, to fulfil the requirements of contract law that there be offer, acceptance and consideration, that the consideration (deposit) be paid at or before the date set down in the written memoranda. But there are two other bits of trite contract law as well. First, neither offer nor acceptance can be conditional, as in โon approval of a solicitorโ or โsubject to contractโ and it is this last that is so favoured in England and Wales in legally exercising the unsavoury practice known as โgazumpingโ. Second, the recipient of an offer must accept the offer as it stands โ if (s)he replies with a counter-offer, the original offer is immediately void.
BU has just explained in 144 words that which it took the CCJ a very large part of 31 pages to explain on matters of well-settled law. Based on this, Mr Walshโs case was very close to meritless and BU is astounded that Mr Barry Gale, one of Her Majestyโs counsel for Barbados, either couldnโt get this point across to his client. Maybe he was too busy dealing with the far easier task of persuading the legal assistant we have posing as chief justice to deny audience to (effectively disbarring) attorneys who either had refused to pay VAT on their Bar dues, or who had exercised their constitutional right not to be members of the Bar at all.
What greatly concerns BU, in reading this decision, is that the CCJ appears in great part to have reversed itself from its decision in the case of Application No BBCV2015/001 between SYSTEM SALES LTD APPLICANT and ARLETTA O BROWN-OXLEY (Executrix of the Estate of Glenfield Dacosta Suttle, Deceased) and SONJA PATSENA SUTTLE RESPONDENTS [2015] CCJ 1 (AJ). And without specifically mentioning that case and the points of law that it has, apparently, vacated. We note that two of the members of the CCJ panel in the Walsh case, namely Byron and Saunders, sat on this decision. Hmmmmm!
That it took so many years for this case to reach its conclusion, given its relative simplicity, is indeed a scandal, but then again there are almost 4,000 cases before the Barbados High Court and proportionately as many before the Court of Appeal that languish in the same position. The CCJ is right and duty-bound to level such criticism at the Barbados courts. Not least because the CCJ has been the conduit of tens of millions of Canadian dollars paid by the Government and taxpayers of Canada to Barbados to bring the speed of justice in Barbados in line with internationally-accepted standards. The CCJ complains that, โThe unfortunate frequency of our lament suggests that the problem is systemic.โ No sh**, Sherlock. To the Prime Minister we say, โWe have ears to hear and have been listening to nothing but profound silence from you, despite the clear and abundant grounds you have to exercise your constitutional position and fire Gibson.โ And we have to ask for an accounting of how much, if any, of the tens of millions of Canadaโs dollars has been spent on Gibsonโs trips etc.
We could expand on the ineptitude of the Barbados Bench, but we all know that they are, for the most part, a bunch of incompetent time-servers enjoying the perks and ultimately the pensions, without seeing the need to do one lick of the work that they are incompetent to do in the first place.
Finally, we come to the matter of judges recusing themselves when there is clear and abundant bias. Justice Saunders has provided clear guidelines on this that have been accepted by all the CCJ panel and which are timely and needed. But, once again, the CCJ is not consistent in its own practice. In an appeal from the Barbados Court of Appeal in the case of Knox v. Deane, counsel submitted that Justice of Appeal Moore had failed to recuse himself when asked on the basis that a judgement to be relied on by the Court of Appeal was one that Moore himself had handed down โ and the CCJ chose to uphold Mooreโs decision not to recuse himself, despite the clear presence of bias. As we know, Sherman could never be wrong and certainly never held a grudge in his life.
We agree that there is systemic rot in the Barbados courts, rot led (though not started) by Marston Gibson. For, if there is not a strong (and Gibson is certainly not strong, except on cocktail party intake) and credible (Gibson has no credibility) and example (Gibson has not authored a single judgement yet, discounting the rubbish he provided for the BA, which was NOT a decision, as it was NOT as the result of a credible court procedure) then, while the cat sleeps of the effects of its trips and parties and boundless ego-stroking, the mice will wreak havoc. And if the PM does not step in, then the executive, through inaction and therefore acceptance of the rot, will be seen internationally as not fit for purpose.
Prime Minister, to date we have blamed the major part of Barbadosโ failure in foreign investment on Gibson and the courts. However, if you do not act in pursuance of your constitutional duties very soon, this blame will attach itself to you and your government, for you will be seen to be in collusion, not just by the Bajan electorate, but in the eyes of the international financial world.
We rest.
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