Tales from the Courts – CJ Marston Gibson Usurps the Legislature With Practice Directions (MEDIATION/ALTERNATIVE DISPUTE RESOLUTION) XXXI
Chief Justice Marston Gibson
It is very interesting to BU that none of our legal fraternity has come out publicly, YET, to condemn the lack of legality of the new Practice Directions handed down by Marston Gibson, despite the fact that they have been widely publicized by the Nation newspaper. Needless to say, if you go on the Supreme Court website and navigate to, for reasons passing all understanding News Publications and click on the drop-down menu and select the equally mystifying Press Releases, at the very bottom of the page, you will find, in the second column in very small print Practice Directions but you will not find these new practice directions listed there, as it appears that there have been no practice directions since 2013. Instead, you will either have to go and purchase a copy of the Official Gazette, or brave the rudeness and non-cooperation of the Registry and hope that you find someone there who knows what the hell you are talking about.
With these 2016 practice directions, Marston Gibson has given himself a problem. A big fat problem. It stems from the fact that, despite being a Rhodes scholar and an alumnus of Oxford University, his total incompetence as a chief justice is now an established fact. He simply does not get it at all as is witnessed in his new Practice Directions – which are illegal.
As a background, let it be said that Barbados takes its Civil Procedure Rules 2008 from those of England and Wales, almost verbatim. Those Rules govern the conduct of civil cases brought before the courts.
The history of these Rules is startlingly similar to Barbados. In England and Wales, the Rules came into force as the result of, like Barbados, there being a crisis in the delivery and timeliness of justice – in other words, there was a backlog. Lord Woolf, the then Master of the Rolls (head of the Court of Appeal) was tasked with formulating new civil procedure rules to, hopefully, solve the matter and move things along quicker and shut down the delaying tactics of lawyers. Barbados legislated these Rules in 2008 and they came into force in 2009. But we should maybe have also addressed the delaying tactics of lazy, incompetent judges, for what worked for England and Wales with, no doubt, the assistance of a competent judiciary, has clearly not worked for Barbados, the sole reason being said lazy, incompetent judges and a series of even lazier and more incompetent registrars.
The introduction of the Barbados Rules was motored by Simmons CJ. These Rules are not amendable or revocable at the whim or on the authority of a CJ; but rather this is the province of the legislature.
On 17 October 2013 in an address for International Conflict Resolution Day 2013, Sir David Simmons stated, “Parts 25 and 26 of the new Rules provide for Mediation but the process of mediation needs statutory support. There are two ways in which this may be achieved. First, in the same way as arbitration is given its own statutory regime in Cap.110, separate legislation should be enacted to cover the administration and practice of mediation. In November 2009, I dared to draft a Mediation Bill using the Trinidad and Tobago legislation as a model.” Clearly obviously either Marston has not read, or he disagrees with, Sir David and has attempted instead to use as conferring authority on him so to do for his new Practice Directions, Part 25 of the Civil Procedure Rules. We invite Sir David to send us a copy of his draft Mediation Bill and undertake to bring it, with our comments, firmly to the attention of the AG and the public.
Hold on!
We have to ask what the PM and AG think of this latest effort to usurp the legislature’s prerogative and authority by Marston Gibson and how long they are going to allow this man to hold on to office, salary and emoluments paid by the taxpayers. We (and the legislature) have seen Gibson set himself up as the authority by which practicing certificates are issued and we have seen Gibson attempt to disbar licensed (by the legislature) attorneys by writing to all judges of the Barbados courts (which includes those of the CCJ) and all magistrates, demanding that they deny audience to a certain class of attorneys and for his pains, his instructions be ignored or refused by the judiciary. We have seen Gibson effectively disbar one attorney without due process…..and get sued personally. We have seen Gibson lecture school children on Magna Carta of 1215 (801 years old) which, at clause 40 states, “To no one will we sell, to no one deny or delay right or justice,” and this is enshrined in our Constitution, yet our backlog subsists and justice is denied and delayed. Now, Gibson has attempted to put in place through practice directions that which can only be put in place statutorily. And, once again, while judges will likely refuse to implement these practice directions, if they have any sense which is debatable, they add another lair of frivolous nonsense to an already complex and costly process. Meanwhile, there are distinct (and very loud) rumblings within the legal profession and they are likely gathering themselves for a full frontal attack. As for the Nation, well you can hardly expect its reporters to do more than produce a publicity statement authored by one M. Gibson, stick in a photograph of him shaking hands with Kuman Hathiramani who is attempting to forge a source of income from mediation and, as a lawyer, must know that the new practice directions are illegal (or should know) and project the idea that Gibson has performed a legal miracle worthy of much praise, rather than a legal gaffe worthy of having his backside slung out of office.
There is no doubt that, as have been proved in Canada, there are some areas of civil law that would benefit from mandatory mediation. Family law is a very sensible area of mandatory mediation. However, mediation, whether mandatory or not, is confidential, it is not binding on the parties and it is without prejudice (which means that if it fails and the matter goes to court, the court may not know about or take into consideration anything to do with the mediation). The mediator has no decision-making power whatever and is there solely to assist the parties reach (if possible) a settlement satisfactory to them. It is highly likely and proven that ADR/mediation will work in, say, divorce cases of which there are many cluttering up the courts. But there are other cases where it simply adds to the expense and the time it takes to determine the case, without any reasonable prospect of success. Mediation can only ever work if all parties wish to mediate, rather than be mandated to mediate by the courts. Such mediations will fail and after all the time and expense, you end up right back before the courts in any case. So what Gibson is trying to do is to pass the buck.
Marston Gibson arrived in Barbados touting ADR as what one commenter has called “a universal panacea” (a phrase which we adopt with thanks) as a cure-all for the enormous backlog of cases. Now, in what must surely be the twilight of his tenure as chief justice, he seeks to garner public support to stay the advance of eternal night, by handing down illegal practice directions to try to fool the public, as he has certainly succeeded in fooling the Nation News, which isn’t at all difficult.
BU was fascinated by one of Sir David’s comments in his address of 17 October 2013. Sir David said, “In my last address to a full sitting of the Supreme Court on 5 October 2009, I warned then that the days for blaming the failure of the civil justice system on lawyers were over. If the system continues to fail, the judges will have to accept the blame.” And so will you, Sir David, have to take the blame on……..for the massive amount of political and incompetent yardfowls that YOU appointed to the Bench whose agenda is not the delivery of timely justice, but political, pension and perceived power. But you are right, Sir David, they must accept the blame, be fired (or resign) and forego their pensions as recompense for their betrayal of their country, its justice system, its finances and its people’s hopes and aspirations, not to mention their right to timely and impartial justice. You, Sir David, were constructively dismissed. Now we need your successor Marston out as quickly as possible along with, where appropriate, your incompetent appointees to the Bench.
Barbados Underground 
@David. You are right. There are much rumblings in the jungle and the animals (sorry, meant to say ‘attorneys’) are sharpening their teeth (that should read ‘quills’). It could get very bloody.
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Amused…we do not see enough of you, glad to see you.
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Davdd Simmons’ corruption of the Supreme Court was total.
Simmons actually had the nerve to blame the judges when his disgusting influence drove the inertia now prevailing among some judges, those are the ones need weeding out to overhaul the system.
And Simmons should be in prison for what he did, not merrily collecting a taxpayer paid pension as compensation.
It’s not that Gibson did not see the problems or don’t know what they are, the mystery to me is IF, he presented the issues with recommendations for new legislation to Adriel Brathwaite and Fruendel Stuart…if he did, we all know how lazy the prime minister and attorney general are.., there is no argument, they are both two very lazy men, just living off the taxpayers.
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@Well Well. Thanks for the kind words – not sure they are deserved at all. Been very busy the last couple of years with both work and family. A happy mellow time that has not left me with much leisure to contribute here.
As I said earlier to @David, BU is absolutely right. There are major rumblings about the legality of these practice directions of the CJ and I have to agree that they are indeed illegal and challengeable.
Anyway, @Well Well, got a very full desk so forgive me if I don’t say too much these days. Time is the problem. Will try to do better.
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Even though Government amended the law in order to appoint Gibson as Chief Justice, the amendment was not crafted with enough precision to accommodate his qualifications but they appointed him anyway. In essence, he was appointed despite the law. Could it be said that he was illegally occupying the office of Chief Justice? And if so, illegal practices directions would just be par for the course.
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Why is the AG commenting on specific cases before the Courts? If the AG wants to comment on Bail issues in general he is welcome to do so but to make remarks on these cases is stupid beyond belief.
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@Sargeant
In any other country in the world Adreil Braithwaite would have been sacked by now.
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@ Sargeant
…to make remarks on these cases is stupid beyond belief.
++++++++++++++++++++++++++++++++++++++++++++++++
True.
…but not stupid beyond the AG.
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Not only stupid but prejudicial. Furthemore this rogue police officer deserves everday in jail compounded by the fact his role in the Myrie case was an embarrasement to people and country resulting with govt having to pay financial compensation .Gittens has certainly earned his stripes.
AG move on there is nothing here for you to be concerned about let the wheels of justice prevailed
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ACs…dont yall see that Adriel Dimwit dont mind all of that and will keep on talking stupid…it’s Fruendel’s job to fire Adriel or the people will have to fire Fruendel…his choice to make.
How can a prime minister with any intelligence have at leasy 5 cabinet ministers who are everyday embarrasments to him, country and people….and refuses to fire them.
Fruendel should be fired…soon come.
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The Court has to take certain factors into consideration, is Gittens a flight risk, is he prone to commit other acts of crime. How does the fact that he is a policeman weight expose him to harm in prison. Bear in mind the presumption of innocence applies.
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@David. Agree with your comments and those of @Sarge above. Do not, as usual, agree with @ac – prejudicial, my butt. In the Gittens matter on bail, the AG’s comments were highly inappropriate, not prejudicial. However, Lord Evil’s counsel’s motion is frivolous, vexatious and meritless with no prospect of success. There is no compromise of his client’s position as it is the court that will try Lord Evil, not the AG and the AG did not say that Lord Evil was guilty of anything, merely that he had been charged and was on bail and it was “Lord Evil” who gave himself the title, not the AG, so “Lord Evil” is the creator of any impressions his self-adopted title may evoke, not the AG.
As for Gittens, of course he should be allowed bail. I am surprised and startled that anyone could possibly think otherwise. Solitary confinement, un-convicted, for over a year? Innocence is presumed until guilt is proven beyond a reasonable doubt before a court of law and solitary for over a year constitutes cruel and unusual punishment for an un-convited and un-tried man and I am looking forward to the time when someone has the money and determination to bring civil proceedings for just such a thing, but this could succeed only after they are acquitted. What IS disgraceful is the AG making his asinine comments on this just so he can garner political support from the Police. Blasted idiot. And this legal brass bowl is the best we can do for the post of AG? We are in deep sh*t.
@Casewell. As you know, I agreed (and agree) the constitutional change of “Commonwealth” for “common law” to be able to appoint an external Bajan CJ, given the politically nepotistic mess that had been created with the judiciary. I agreed (but have since resiled with apologies) the appointment of Marston Gibson. The fault lies not in the change, but in the jackass the change was made to accommodate. You know as well as I do that there was nothing illegal in the appointment and you are doing a Baffy and stirring the dung up. Now, I want a favour from you. Can you PLEASE make best efforts to obtain from DACS a copy of his draft Mediation Bill and his permission to post it here on BU. I have heard from MANY of the brethren already today and they are, to a man, very eager to see it. You see, all recognise the value of mediation/ADR and know how it speeds up and significantly reduces the cost of litigation for litigants. Whatever he may have done later, no one can question that DACS is an excellent attorney of great experience and his contribution has to be considered as being of enormous value and assistance. I read his speech and my recollection is that he had sent a copy of his draft to Nitwit and had not even received the courtesy of an acknowledgement – but maybe Nitwit did not understand the draft – or found his reading skills (if any) inadequate. So, do your best for us.
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David
Do you remember the incident with the Customs guard, Gittens while on desk duty still went the Harbour menacing the guard. He has to be kept away from Blues’ son.
Sent from my iPad
>
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@Caswell
You would agree that Gitten’s case should be expedited with dispatch given he is a policeman in an overcrowded prison? Surely the DPP understands the ramifications at play here?
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The justice system in Barbados needs to be “restructured”.
Innocent until proven guilty and the right to a speedy trial.
Surely the lawyers can figure out how much time is required to adequately prepare a defense for people accused of serious offences like murder, wounding with intent etc.
There is no question that Barbados has well trained lawyers and judges but they seem unable to do make real change to the “justice system”.
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50 years of Independence and the best we can do is to have bare JA’s for a Cabinet,bare JA’s in a Justice system,bare JA’s in a Police Service Commission which has successfully emasculated the Royal Barbados Police Force and a bigger JA in Pilgrim House,a barrow dem to death,notorious for ordering the cat-o-nine-tails for a little miscreant who complained to him that the Police at Central put him on the “Operating Table” and put a live electric cord ‘pun my doggie,your lordship’…a forced confession and was given a 10 year sentence and 10 strokes ‘o de cat.Barbados after Independence has gone to the effing dogs…bow,wow,wow,Carew sang…
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Read Page 64 (back page) of BarbadosToday.
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@Hants
It is fair that the inferior court should rule to stay the matter. It has the ranking.
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http://www.barbadostoday.bb/2016/07/09/stay-granted/
This matter is much better handled at the high court level in front of a judge whi is not compromised, the magistrate’s court level was a joke.
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@ David,
You get what you pay for.
The rich can afford to pay lawyers. The average person cannot.
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@Hant
Succinctly put!
We should keep an eye on the fact Weekes has been elevated to the Presidency of the Barbados Bar Association. Doesn’t work in the same office of former president Wilfred Abrahams and can be considered a junior partner?
Enough said!
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The AG has gotten his wish, Gittens gets bail.
http://www.nationnews.com/nationnews/news/83002/everton-gittens-granted-bail
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For the Explosive BU team
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Another man drop down dead.
“A security guard has become the latest person to die suddenly.”
http://www.barbadostoday.bb/2016/07/09/security-guard-dies-suddenly/
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http://www.nationnews.com/nationnews/news/83078/lawyers-change-dress-code
Fantastic that the lawyers see that parading around in an english themed clown suit does not mean they are practicing good law, dump that clown gown and wig, just be yourselves, use intelligence and commonsense wisely, the public would be much more appreciative.
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AG looking for votes is he? Well, he will snatch at the shadow and lose the bone because people are seeing how stupid he is!
CJ is being challenged all round it seems. The Court of Appeals overturned his BHL ruling.
Cahill Catspradle, Maloney Madness, Fingerprinting Fiasco
Does ANYBODY in this country know what they are doing?
Boy, if Commissiong started a party now I would vote for him because he at least is right sometimes and Gollop would have to gallop!!
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Donna….I dont know why Comissiong would waste this moment, BU bloggers and the poster campaign are working overtime to open a window of opportunity for a third party to break DBLP cycle of corruption.
Comissiong is very well known and in legal circles well known as someone to be trusted, it’s time for him to make his move….without missteps or ulterior motives.
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Both Andrew Pilgrim and Mia Mottley are in the press today condemning a broken judiciary. It was not too long ago BU was also being condemned for being doom and gloomers when highlighting th same.
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@ the Honourable Blogmaster
The are looking for votes, at least Mia is,
YOU ARE NOT!
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I would think its most embarrassing to the CJ to have a ruling of which he relieved himself, overturned by an Appeal Court,a negative for Sir Marston and a positive for the Judges of Appeal,a confidence vote in the those 3 Justices.Dare we hope that the Knight would throw in the towel and take the next Jet Blue flight back to the Big Apple where we think he belongs?
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http://www.barbadostoday.bb/2016/07/13/discipline-judges-and-lawyers-hinkson/
This should be made a reality as soon as possible, so should legislation giving judges deadlines to deliver judgements instead of they being allowed to turn delivering decisions into decades old affairs.
Enough is enough, everyone os aware of what the problems are and know too that they can only be fixed by legislation…let Fruendel, Adriel and the other parliamentarians get off their lazy asses and do some work, they collect taxpayer’s money in salary every single month.
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Today’s Nation Newspaper editorial.
http://www.nationnews.com/nationnews/news/83354/editorial-urgent-reform-justice
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