Tales from the Courts – CJ Marston Gibson Usurps the Legislature With Practice Directions (MEDIATION/ALTERNATIVE DISPUTE RESOLUTION) XXXI

Marston Gibson, Chief Justice of Barbados Designate

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.

Philip Nicholls and the Cottle Catford Matter, Questions

Philip_NichllsThe release of the book published by Philip V. Nicholls More Binding Than Marriage – the former partner of the once venerable Cottle Catford law firm – has only served to exacerbate public scrutiny of the legal profession. Those who read the book were astounded by many revelations shared by Nicholls. Until now the public has not been treated to a rebuttal to the tell-all.

BU shares the following documents received which put Nicholls on notice that offended and or interested parties intend to push back against some of his allegations. We invite others who have documents and a story to tell about the demise of Cottle Catford, the part played by Philip Nicholls and related other matters to visit the top of the BU page or click on the Contact Form located at the bottom of the blog (note the blog and NOT the comments section). Submissions via the contact page will be directed to BU’s confidential inbox.

Perusing the documents submitted we find it interesting that that upon the withdrawal of Allan Watson as a partner, he, along with Sir Neville Nicholls, were appointed by Cottle Catford whose sole partner was Philip Nicholls, to be consultants of Cottle Catford. If as at 01 January 2003, Philip Vernon Nicholls was the sole partner of Cottle Catford, why did he not have a taking of accounts? We invite Nicholls to elucidate on this matter in the public interest. In the book Nicholls pleads ignorance and a high level of naivete as contributing to highly questionable business decisions taken as a partner at Cottle Catford, can the scholarly and respected Sir Neville Nicholls claim to be of the same mind at that time?

A disclaimer: BU holds no brief for any of the actors in this affair. We will publish all documents received without fear or favour.

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Tales From the Courts – Bar Association Complicit XXII

Therold O'neal Fields, another thieving lawyer?

Therold O’neal Fields, another thieving lawyer? – Photo credit: Nation Newspaper

Given the fact that the Bar Association (BA) has now debunked Barry Gale as its president, the actions by the Chief Justice (CJ) in interfering in matters in which he has no authority must now raise the suspicion that the CJ’s conduct was designed to shore up Barry Gale’s position as president of the BA, given the fact that the BA is contemplating taking legal action against the CJ. Whether this was the CJ’s intent or not, is now a moot point as Barry Gale has been voted out of office and Tariq Khan into office.

BU family member Pachamama raised some interesting points recently concerning what happens to lawyers who appropriate money from clients’ funds. BU did a little research on one such case, that of attorney Therold Fields, which provides the template of how things are done in Barbados – See $700,000 theft charge.

The Disciplinary Committee of the BA referred the matter of Mr Fields to the Court of Appeal. And, predictably, in the last week or so, the Court of Appeal adjourned its hearing. Meanwhile, so far as BY can discover, no criminal proceedings for theft have been commenced by the DPP against Mr Fields. And Mr Fields continues to have the right to practice law.

Why has Mr Fields not been criminally indicted? Why has Mr Fields not been suspended from the practice of law? Why is the CJ usurping an authority that he does not have to go after attorneys who are lawfully practicing law and NOT making free with their clients’ money, but merely insisting on their right under the Constitution not to join an association?

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Tales from the Courts – Has Chief Justice Gibson Brought the JUSTICE System into DISREPUTE? XXI

Chief Justice Marston Gibson

Chief Justice Marston Gibson

On June 19, 2004, Chief Justice Marston Gibson weighed in on the dispute that BU has been covering for some time. That of the Constitution vs the Legal Profession Act Cap 370A. BU has obtained a letter from the CJ to Mr Barry Gale QC, the president of the Bar Association  – see letter sent by the CJ to Barry Gale.

The history of the Constitution and the Legal Profession Act goes back to the very beginning of the Act and the formation of the BA. The BA’s first president, Mr Jack Dear QC (later Sir John Dear) realising that the Act was fatally flawed and would not stand up to a constitutional challenge, declined to challenge attorneys who opted not to join the BA, most notably Mr Bobby Clarke, who has never been a member of the BA and between whom and Jack Dear, there was no love lost. If anything there was a mutual and well-known animosity. Successive presidents of the BA have also declined to involve themselves in a face-to-face fight against the Constitution, until the advent of Mr Leslie Haynes.

Chief Justice Douglas refused to involve himself, as did Chief Justice Williams and BU has already published the minutes of the BA in which a consultation between the Registrar, Simmons CJ and Simmons CJ’s then prospective son-in-law and BA president Wilfred Abrahams (now Senator Abrahams) in which the advice of Simmons CJ was to, in effect, left it lone – see Tales From The Courts &ndash XII;Barbados Bar Membership Revisited – Registrar and Sir David Simmons, Wilfred Abrahams Exposed

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Tales from the Courts – No Excuses Says Former Judge XX

Retired Judge Peter Williams earns a BU star.

Retired Judge Peter Williams earns a BU star.

The idea anyone should have to spend eleven years on remand or have to wait a decade to have an appeal heard is unacceptable in any society concerned with delivering justice.  When unacceptable delays occur, and some will be justifiable,  the legal maxim justice delayed is justice denied comes into play and must be addressed with haste by a caring society.  When the person  who has to suffer the injustice is a Barbadian it makes it all the more egregious. Others may add we have a government who offered the rhetoric it is committed to build out a society rather than focused on the economy.

BU has posted exhaustively in the Tales from the Courts  about the dark side of the Barbados judiciary. Regrettably Barbadians are more concerned (if at all) with other matters. How can we have a wholesome society if we are unable to punish the guilty and protect the innocent? How we retain and compete for new business in the international sector if our judiciary is unable to rule in an efficient read timely manner.

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Tales from the Courts – Arresting the Slide XIX

.. a functioning judiciary underpins an orderly society ...

.. a functioning judiciary underpins an orderly society …

We do not accept that our judiciary is tardy or indecisive. Rather, a distinction must be made between the judiciary and the administrative aspects of the justice systemNation newspaper (June 14, 2014)

It is taboo for the local media to be hostile at the judiciary. BU has been one of the few voices highlighting glaring inefficiencies in our legal system – see Tales from the Courts. Barbados is a society that is respected by those on the outside because our attention to maintaining law and order, AND, a functioning judiciary underpins an orderly society.

Minister Donville Inniss’ public acknowledgement last week that our delinquent judiciary is affecting international investment in Barbados has come as no surprise to BU. Successive governments have allowed politics – like every other thing – to affect decision making in the judiciary. Now we have corroboration from the Minister of Commerce and International Business of situations where business is not coming to Barbados because of concerns about the judiciary. Lest we forget, attracting foreign direct investment is important to Barbados to pay our large import bill AND allows us to maintain our touted high standard of living. Our per capita income is the envy of many.

Unfortunately our leading local newspaper in its editorial quoted above felt to make the distinction between the Court Registry and the Judiciary. This is one of the reasons why Barbados continues to decline on the social and economic indicators index – the failure of the fourth estate to come to the public with clean hands. The Nation editorial conveys the notion that Chief Justice Marston Gibson and Judges have no say in the scheduling of cases and the time it takes to deliver judgements. Of course the delays is compounded by the files at the Court Registry which mysteriously go missing. Meddling by the CJ and Judges has the knock on effect of prolonging justice to those who are remanded for unacceptably long periods. How often have we posted the maxim, justice delayed is justice denied?

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A Message to Judges, Deliver Timely Decisions or We Withhold Your Pay

NewsdayWhen mention is made of layoffs in the public sector no thought is ever given to extending the treatment to our referred Judges. BU has been relentless in the effort to expose the inefficiency of the Judiciary – see Tales from the Courts. Chief Justice Marston Gibson of whom much was expected has resigned himself to communicating about the thousands of cases in backlog which has our courts in gridlock.

There is the saying that if there is to be a different result one cannot continue to do the same thing. The news which appears in today’s Trinidad Newsday newspaper seems relevant to Barbados. These are tough times for all citizens as we grapple with austere conditions, it is time for our Judges to suck it up.

The recommendation coming from a Chief Justice and a sitting Judge in Trinidad is to “WITHHOLD the pay of tardy judges as a penalty for failing to deliver judgments within six months of the conclusion of a case”.

Read the full article – NO PAY FOR TARDY JUDGES

Notes From a Native Son: Unless We Create an Equal Society We Will Have Serious Social Problems

Hal Austin

Hal Austin

Introduction:
Lawyers and public commentators in Barbados have now discovered the concept of human rights, but missing from public political and economic discourse is any reference to inequality, the moral foundation of a fair and just society. The nearest we come to any mention of inequality in public space is the flawed reference to so-called free education, which disciples of the late Errol Barrow hold as the mark of his great contribution to post-war Barbados. But, after dominating public discussions since the Black Power era and the student rebellion of the 1960s, both Left and Right have returned to look at the relevance of equality in modern society. Some people have even intimated that in the post-Obama world the battle over equality has been won and we should move on. It is disingenuous. Even someone as radical as Roberto Mangabeira Unger, the Harvard professor and former minister of strategic affairs in Brazil, has called on progressives to abandon equality and replace it with something called deep freedom.

The posing of equality against freedom and human rights is a false dichotomy. What do we mean by freedom? Freedom from what? What do we mean by human rights? The idea of ‘freedom’ is a vacuous philosophical concept that has no grounding in the day-to-day lives of people living in a liberal democracy, despite its imperfections. A minority in control of an oppressive police force or military can understandably talk of freedoms, but that is a misinterpretation of the illegal behaviour of a powerful institution. A good example of this is the stop-and-frisk in New York or its equivalent stop and search in Britain, which has replaced the old Sus law, under the 1824 Vagrancy Act, introduced to control begging by deformed soldiers who had returned from the Napoleanic Warts. But the concept of equality has a firmer philosophical meaning, since it does not mean equality of outcomes, but of opportunities. It is also superior to the concept of human rights since embodied in equality are all the rights under the portmanteau term human rights.

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Tales from the COURTS – The Tangled Web of Probate Applications Part XIX

Letter from the Registrar of the Supreme Court sent to the Bar Association (BA) regarding a change to the system of processing probate applications - Click Image

Letter from the Registrar of the Supreme Court sent to the Bar Association (BA) regarding a change to the system of processing probate applications – Click Image

The Registrar opines that in light of the decision in CV 427/2012 entitled Edmund King & Cecil Smith v Marva Clarke the system of processing probate applications is to be changed and that counsel dealing with such applications must now pay for the advertising of the probate application and provide proof of such application, before the Registry will accept the filing of the application.

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Tales from the Courts – Mars(ton) and Pluto Were Inside the Closet Part XVIII

Justice Saunders opined that it was because Barbados judges were not scheduling their time properly.

Justice Saunders of the CCJ opined recently that  Barbados judges were not scheduling their time properly.

For some years now BU has been highlighting the issue of the almost terminal state of our justice system. We have been highlighting, among other things, the backlog of cases both before the High Court and the Court of Appeal, the complete inefficiency of the Registry with its loss of files and procrastination, the mess that is the Bar Association and the clear conflict between Bar Association enforced membership and the Constitution; but most importantly, we have been highlighting the quality of our judges, both at High Court and Appeal levels.

A very short while ago, attorneys-at-law from Barbados raised the issue of delays in both getting matters heard and in receiving the judgements on those matters with CCJ Justice Saunders at one open forum. Justice Saunders opined that it was because Barbados judges were not scheduling their time properly. Meanwhile, in another forum, CCJ President Sir Denis Byron advised that appeals to the CCJ from Barbados had risen by 350%.

Having read some of the CCJ decisions in right of Barbados, we have to say that Justice Saunders was being diplomatic, for these judgements do not censure delay alone, but the lack of quality of the judgements themselves, judgements that in any other jurisdiction would lead either to the judge being asked to resign or to his/her dismissal.

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Tales from the Courts – Jumpstarting the Barbados Courts XVIII

Marston Gibson, Chief Justice (l) Andrew Pilgrim QC

Marston Gibson, Chief Justice (l) Andrew Pilgrim QC

A thought provoking outburst by former President of the Barbados Bar Association Andrew Pilgrim published in today’s press. He is probably right about the need to installed more judges on the bench, BUT surely it also has a lot to do with the quality of judges appointed. Of course not to be forgotten is the pressing need to streamline certain rules.

Regarding the streamlining of rules, BU’s legal fraternity offers the  pre-trial motion as an example. If we were to measure against the Ontario model, it is routine for a pre-trial motion to be conducted via a telephone conference call supported by fax machine – see specimen of Ontario’s Affidavit of Service. In the Ontario model BU understands that in complex motions,  lawyers may file “Factums”, which are statements of fact and law, which may include copies of cases to support their contentions along with their arguments. In this scenario all parties and the judge would have read relevant documents in advance of the telephone conference and are prepared to argue their cases. Sometimes the judge will rule on motions providing reasons for their judgements to follow as well as the order they give.

Some may find the the fact that a judge in the Ontario model will rule on motions, deliver reasons for  judgements to follow etc. Often the judge will hand write the reasons and the judgement on the Notice of Motion itself and this is faxed by the court to all counsel – see specimen of Ontario’s Notice of Motion.

We turn to the Barbados model (used loosely).

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

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.

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Tales from the Courts – The Record of Chief Justice Sir Marston Gibson Part XVI

Chief Justice Marston Gibson

Chief Justice Marston Gibson

Original blog posted 2.43AM 15/08/13 – Updated 6.44PM 15/08/13

Chief Justice Sir Marston Gibson is reported in the Nation as having stated that he will shortly start to throw out old cases. It is now two years since Sir Marston, amid much controversy, took over the role of Chief Justice of Barbados, and delivered promises of what he would do to revive the justice system. To date, all we have had from him are press photos of him attending various functions and a lot of non-specific pronouncements of what he intends to do which, like most political manifestos, remain un-fulfilled, largely because he seems to operate with a ‘vote-grabbing’ mindset.

BU has a few questions for the Chief Justice that we urge media (AirBourne?) to ask. Of course, BU’s readers will realise that these questions are largely (but not solely) rhetorical.

HIGH COURT

Q: How many cases are there before the High Court on which judgements are awaited for a period of time in excess of six months?

Q: How many old cases are there that have been settled out of court and on which no certificates of satisfaction have been filed by the counsel whose duty it was to so file them AND/OR having been filed, not had those filings reflected by the Registry (READ lost by the Registry)?

Q: How many old cases have had counsel on both sides write repeatedly to the Registrar and the Chief Justice over a period of years asking that they be set down for hearing? AND how many responses/hearings has this invoked?

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First Caribbean International Bank Not Honouring Court Judgement Handed Down Since 2009–Boycott on the Cards?

CIBC First Caribbean is one of the largest banks in Barbados

CIBC First Caribbean is one of the largest banks in Barbados

Judgment (Suit No: CV1339 of 2008) in the Matter Justin McIntosh, Brunetta McIntosh v First Caribbean Int’l Bank (B’dos) Ltd

The above judgement in the case Justin McIntosh, Brunetta McIntosh v First Caribbean International Bank (B’dos) Ltd was delivered since May 2009.  To date, the bank has still not paid the cost for replacing the title deeds that it lost as ordered by the court.  The Plaintiffs are poor people and cannot afford to engage counsel  to seek redress. First Caribbean is aware of the financial state  of the Plaintiffs and must therefore be cognizant of the financial and emotional stress this wilful delay continues to burden two ordinary Barbadians.

In summary: the Plaintiffs [Justin and Brunetta McIntosh] were experiencing financial difficulty in 2004 and started proceedings to sell the property that they owned which they had mortgaged to the First Caribbean.  They could not sell because the bank had LOST the title deeds.  The bank took responsibility in words [see judgement] but has reneged on its obligation to date.  Why must the plaintiffs, or any Barbadians for that matter, have to tolerate a foreign institution demonstrating scant regard for our Court?

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A Moribund Entity that is the Barbados Bar Association

Barry Gale QC, President of the BA

Barry Gale QC, President of the BA

When Andrew Pilgrim took up the post of President of the Barbados Bar Association, BU was very optimistic that in tandem with newly appointed CJ Gibson, some efficiency would have been achieved in our court system. We were wrong. To compound the perception that the Bar is a moribund entity it has been three months since Barry Gale QC took the baton from Pilgrim and the public is none the wiser about progress made by the Bar during his tenure.

Several reasons are listed on the Barbados Bar Association website why it was established under the Barbados Bar Association Act of 1940. Of the 27 reasons given a few should be of interest to Barbadians if only because they are laudable or should that be laughable:

Related Link: Non Contentious Fees (The Legal Profession Act Cap. 370A)

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Tales From the Courts – Marva Clarke Gone: Oh Happy Day Part XV

marva_clarkeFor some years now, BU has been seeking the removal of the Registrar, Marva Clarke. Now, she is gone.

We are told that it was voluntary and that she was not asked to resign, but that she did so anyway, since it had been made clear to her that, under Gibson CJ, she would never be promoted to the Bench. Which, if you think about it, is precisely the same thing.

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Tales from the Courts – Madam Justice Cornelius Delivers on the Dr. Richard Ishmael v QEH Matter, FINALLY Part XIV

Madam Justice Cornelius

Madam Justice Cornelius

We see the ruling on Dr Ishmael has at last been given by the courts. The Nation has published the decision which is highly unflattering to the MoH and the QEH. BU refers readers to the recent Tales From The Courts, where some of the issues discussed are similar and pertinent to this edition. The decision on this particular matter was reserved by Madam Justice Cornelius since 30 March 2011, a period of 818 days, or 2 years 2 months and 26 days. INEXCUSABLE!!!

It is not for the judge to take into consideration that Dr Ishmael is back at the QEH. The judge’s SOLE concern, other than the constitutional rights of the litigants, ought to have been the fact that there was a matter before her that might seriously, fatally and detrimentally affect the health of patients at the QEH. Indeed, this might be considered a matter affecting public policy and therefore to be accorded the urgency of any public policy matter. Instead, Madam Justice Cornelius took almost 2.25 YEARS to provide a judgement that ought to have been produced in a maximum, given the potential prejudice that delay would cause, of 60 days.

Thus, has Madam Justice Cornelius BETRAYED the trust and best interests of the people of Barbados and for that she deserves to be instantly suspended pending the outcome of an enquiry to dismiss her. Additionally, judges are expected to render decisions within 60 days, with an outside limit of 90 days for complex cases. Regardless of the circumstances between Dr Ishmael and the QEH, Madam Justice Cornelius has egregiously and improperly breached the Constitution.

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Institutional Cracks are Appearing: Whither Transparency and Democracy

George C. Brathwaite, founder and interim president of BAJE

George C. Brathwaite, founder and interim president of BAJE

In contemporary Barbados, several questions are being raised by the inquiring citizen whose voice attracts the political whip. Many persons could care less of an individual’s curiosity or the need to know once  burning issues are scrutinised. Inquirers and commentators are often. In contemporary Barbados, several questions are being raised by the inquiring citizen whose voice attracts the political whip. Many persons could care less of an individual’s curiosity or the need to know once burning issues are scrutinised. Inquirers and commentators are often and dismissively thrown into the political camps of the Barbados Labour Party (BLP) or the Democratic Labour Party (DLP). In relation to the current Cabinet or executive, there are increasing trends of neo-authoritarianism being exhibited on a regular and disconcerting basis. This observation is profound and it serves to demarcate an approach to governance that is not consistent with the 2008n and dismissively thrown into the political camps of the Barbados Labour Party (BLP) or the Democratic Labour Party (DLP). In relation to the current Cabinet or executive, there are increasing trends of neo-authoritarianism being exhibited on a regular and disconcerting basis. This observation is profound and it serves to demarcate an approach to governance that is not consistent with the 2008

Issue after issue, there are repeated cautions that are registered against those persons and/or groups critical of governmental policies, actions or inactions. In turn, apathy and determinism have mimicked the cowardly forms of inevitability demonstrated by the national executive.

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Tales From the Courts – Judges Fiddling On the Bench Assisted by Registrar Marva Clarke Part XIII

Prime Minister Fruendel Stuart

Prime Minister Fruendel Stuart

BU has come into possession of a list of outstanding decisions before the Barbados courts as at November 2012. It is a daunting list that in any other jurisdiction other than Barbados, would mandate that the delinquent judges be censored and their resignations demanded forthwith.

BU makes one caveat on behalf of Mr Justice Randall Worrell who is in an unenviable position not of his making. Former Chief Justice David Simmons invited Justice Worrell – a highly successful criminal counsel – on to the bench specifically to try criminal matters and therefore speed up the process of the courts, lessen remand periods etc. Once installed on the Bench, however, the Registrar persisted in scheduling civil matters, some of them extremely complex, before Justice Worrell. While at the same time, ensuring that he could not do justice to the civil matters by constantly involving him in assizes for which he had been brought on to the bench in the first place. Justice Worrell must now find the time to write his decisions in civil matters, as well as to complete part-heard matters that have commenced hearing before him, as mandated by the Administration of Justice Act Cap 109b of our laws. This is the main reason that BU has not gone after Justice Worrell for delinquency. However in the final analysis, Justice Worrell, whatever excuses can be posited on his behalf  will ultimately find himself joined in actions under the Constitution brought by litigants against the Attorney General for breach of the constitutional rights through delay. BU is well aware that there are a number of such actions for delay…but predictably these actions for delay are themselves egregiously delayed by the incompetence and corruption of the Registrar and the Registry.

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An Open Letter to the Prime Minister and the Chief Justice

Dear Sirs,

BU has come across seemingly incontrovertible evidence that warrants both of your immediate investigation. The evidence involves Mr Justice Olson Alleyne. Evidence suggests that Mr Justice Alleyne continues to practice law under the business name of “Olson Alleyne Legal”, despite his elevation to the Bench and has indulged in the practice of law during his tenure on the Bench, even up to the present day. We are satisfied that as little as 14 days ago, counsel received correspondence from Olson Alleyne Legal signed by another lawyer on behalf of Mr Olson Alleyne. If proved, this constitutes gross and dismissible misconduct and we refer you to section 84 of the Constitution, to be easily found  online.

This is a matter of the gravest possible national importance. It requires investigation and explanation forthwith. BU, out of fairness and to permit you to conduct an immediate investigation, will refrain for the present from publishing the evidence. You are encouraged to contact us should you wish to avail yourself of this evidence and we will make arrangements to have it delivered to you. We await your expeditious response. It would be a great mistake to test our resolve on this one.

If there is no interest shown in this matter by officialdom we will interpret this to mean you have no problem with BU pursuing this matter in the public space of the Internet.

Barbados Bar Association Must Be Dissolved

Attorney General Adriel Brathwaite

Attorney General Adriel Brathwaite

A BU blog Compensation Fund: Another Screw-up By the Barbados Bar Association highlighted another in a list of indiscretions by the Barbados Bar Association (BA). The big regret is that the traditional media refuses to honour its obligation to expose this club to the glare of the public. For years the who is who in the legal fraternity shuffle in and out of the President’s position all for the glory of achieving silk or the token of notoriety it offers. BU relishes the opportunity to ask Andrew Pilgrim QC what he accomplished during his tenure as BA president.

What is really irksome has been the lack of transparency and disclosure regarding lawyers who have had complaints lodged against them by the public. BU’s Plantation Deeds among many come to mind.  It is obvious that the BA as a self regulating body is woefully inadequate – by its track record –  to deal with the mounting concerns of the public regarding those bad apples in the legal barrel. Surely the time has come, if we want to be solution oriented, to change the governance structure as it relates to the legal profession. The Disciplinary Committee of the BA has done nothing to assuage the concerns of the public. The BA as represented in the Act has failed to regulate on a simple matter like who qualifies to be issued practicing certificates and what fee to receive from lawyers.

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Compensation Fund: Another Screw-up By the Barbados Bar Association

Barry Gale QC, President of the BA

Barry Gale QC, President of the BA

BU has been able to access the audited financial report of the Bar Association (BA) relative to the Compensation Fund. BU notes that the fund holds in excess of $2 million. The authority for the Fund is to be found at Part VIII of the Legal Professions Act Cap. 370A of the Laws of Barbados.

Briefly, the Act states:

  1. The Fund is the property of the BA and must be paid into a separate bank account to the credit of the BA to be known as “the Attorneys-at-law Compensation Fund”.
  1. Every attorney-at-law is required, when a Practicing Certificate is issued to him, to pay to the Registrar his/her annual contribution to the Fund, without which no Practicing Certificate will be issued.
  1. “50. (1) Where it is proved to the satisfaction of the Bar Association that any person has sustained loss in consequence of dishonesty on the part of an attorney-at-law or any clerk or servant of an attorney-at-law in connection with that attorney-at-law’s practice as an attorney-at-law or in connection with any trust of which that attorney-at-law is a trustee, then, subject to the provisions of this section, the Association may, if it thinks fit, make a grant to that person out of the Fund for the purpose of relieving or mitigating that loss.”

A few points to ponder from the reading of the posted financials.

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AG’s Lament

Attorney General, Adriel Brathwaite

Attorney General, Adriel Brathwaite

The Attorney-General of Barbados is the primary legal advisor to the Government of Barbados – Wikipedia

Good luck to Barry Gale QC who defeated ‘pooch skinning’ Alair Shepherd for the position of President of the Barbados Bar Association (BA). Not sure if outgoing president Andrew Pilgrim was able to achieve anything of note except to attain the status of Queens Counsel which lawyers are willing to ‘die’ for it seems.

There was a time when individuals worked hard because there was a consciousness that it was the right thing to do. How ones legacy might be defined was an inevitable consequence. Truth be told in defence of today’s incumbents which see a level of mediocrity hitherto unknown, it may simply be a matter of (in)competence.

Former Attorney General David Simmons is highly regarded by the legal fraternity and the general public. BU however has always been halting in our praise for two reasons. When Simmons demitted the office of Chief Justice (under duress) the delivery of justice caused by the weight of a heavy case load and an inefficient Court Registry should have been the performance indicators which painted his legacy and NOT the quality of his decisions. It was insightful to read Barry Gale’s comments soon after assuming the office of President of the BA concerning the court system. In summary, a mess!

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Tales From The Courts XII – Barbados Bar Membership Revisited – Registrar and Sir David Simmons, Wilfred Abrahams Exposed

Update: The Nation newspaper has issued a public apology to Sir David Seale and Caswell Franklyn in today’s  edition. It turns out that it was our own Caswell who penned the Guest Column and NOT Sir David

In a recent blog BU investigated the issue of attorneys who opt not to be members of the Barbados Bar Association (“BA”) on the basis that the Legal Profession Act contravenes the Constitution of Barbados and is, as a result, a nullity ab initio.

The almost unanimous opinions expressed by BU’s legal eagles was that the Legal Profession Act would be found in law to be a nullity ab initio.

BU has received a letter from attorney-at-law Wilfred A. Abrahams to the President of the Barbados Bar Association dated April 12, 2003 in which he gives notice that the attorneys of the chambers of which he is head, Aegis Chambers, intend to object to appearing in court with any attorney who has not submitted themselves to the Legal Profession Act and, inter alia, accusing these dissenting attorneys of committing an illegal act by practicing law – See Letter sent by Abrahams to the Bar – part 1 and Part 2

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QC Showed Judge His Silk II

Alair Shepherd QC

Alair Shepherd QC

One does not have to read Tales from the Courts to know that the judicature is in shambles. One did not have to listen to Attorneys-at-law Sean Lewis and Naomi Rochford on Getting Down to Brasstacks today to appreciate how dysfunctional our court system has become. For those left in doubt, a senior lawyer skinning his botsy at a judge last week sealed it.

The 64k question being asked by many since the incident which has gone viral is what would have provoked a senior lawyer who wears silk to behave in such an undignified manner. BU has tried to make sense of the information hitting our inbox and here is what happened between The Hon. Madam Justice Sonia Richards and Attorney-at-law Alair Shepherd QC.

The case in question involved the Commissioner of Police and several police officers, consequently many lawyers attended court that fateful morning. BU understands the case was scheduled to be heard by Madam Justice Margaret Reifer, who had recused herself, therefore the matter was rescheduled for Justice Sonia Richards for 9.30AM.

Related Link:  QC Showed Judge His Silk

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QC Showed Judge His Silk

Submitted by the Mahogany Coconut Think Tank and Watchdog Group
Alair Shepherd QC

Alair Shepherd QC

The behaviour of a Queens Counsel toward a female judge, in Barbados, is another manifestation of the disrespect being displayed toward our women. According to published reports, the Queens Counsel demonstrated his displeasure with the judge by lifting his robe, backing the judge bending over and inviting her to kiss a part of his anatomy.

This single act reveals that disrespect for our women is now rampant at all social and educational levels. We will remain in the forefront of calling for our women to be respected but there is a bigger picture emerging here. Our Caribbean societies have always elevated some professions beyond godlike status. The medical and legal professions have been the chief beneficiaries of such adulation.

While we have had the occasional professional problems with our doctors, we suggest that such incidents have been for from widespread. We can therefore, with some objectivity, concur that the medical professional has maintained high professional standards. However we are aware that some will suggest that unprofessional conduct within the medical professional is not usually made public.

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Non Membership in the Barbados Bar Association Does Not Preclude a Lawyer’s Right to Practice Law

Marston Gibson, Chief Justice (l) Andrew Pilgrim, President of Barbados Bar Association

Marston Gibson, Chief Justice (l) Andrew Pilgrim, President of Barbados Bar Association

BU has been provided with a copy of the letter dated April 4, 2013 by which the Chief Justice finally advised the new Queens Counsel that he had received the Letters Patent that the GG had executed and sent to the CJ some weeks previously, instructing that they be delivered. The GG had also officially informed the new Queens Counsel himself of their appointment, from which time they had the right to put the letters QC after their names. Do not expect Chief Justice Gibson to offer an explanation for the delay.

BU has also been provided with a legal opinion on the matter of mandatory membership of the Barbados Bar Association, on which it has been argued, in essence, that there is a requirement that attorneys who are certified to practice law in Barbados must also be members of the Barbados Bar Association. BU’s legal opinion states that, as such an Act breaches the Constitution, it is a nullity ab initio, as indeed is any law which breaches the Constitution. Otherwise, the Constitution, which requires a two third majority of the House to change it, would be held hostage to the much lower standard of a simple act of parliament, which requires merely a majority. This would compromise the rights of Bajans and infringe their liberties. Pursued, it could also potentially lead away from democracy to dictatorship.

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Defaulting Lawyers

Caswell Franklyn, Head of Unity Workers Union

Caswell Franklyn, Head of Unity Workers Union

Recently, I heard that the Bar association had published a list of attorneys-at-law who did not pay their dues to the association, as required by law. At first, I was a bit sceptical but all doubts have been removed when I saw a story in the Saturday Sun of April 6, 2013 to that effect.

Surprisingly, the list appeared in my Inbox: it contained the names of 75 lawyers. The whole affair piqued my interest, so I set about to find out the reason for the omission of so many lawyers. The reasons ranged from: conscientious objection, no longer practising, inadvertence to plain just being cheap. I have examined the case for the conscientious objectors, and quite frankly, I believe that by not paying their dues, they have shown utter disrespect for the law that they are sworn to uphold.

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Judge Randall Worrell Joins the Call to Decriminalize Marijuana

Submitted by the Mahogany Coconut Think Tank and Watchdog Group
The Honourable Mr. Justice Randall Worrell

The Honourable Mr. Justice Randall Worrell

We are in full support of High Court Judge Randall Worrell’s call to decriminalize marijuana for personal purposes. We are also in full support of his position that our court system is clogged up with old cases involving marijuana charges. We do not condone drug abuse in any form but we believe that if cigarettes can be legally sold, there should be sales of marijuana as well. At least we know that cigarettes destroy millions of lives annually and place tremendous pressure on health services.

We hope that a more progressive approach is used in assisting those afflicted with the addiction of marijuana. We strongly believe that prison should be used for the punishment and rehabilitation of hardened criminals and not those who for one reason or another find themselves addicts. We know that many kids today are addicted to their parents’ prescription drugs and there are those amongst us who are addicted to medication. Certainly a modern judicial system cannot continue to waste time, resources and prison space on what are unfortunate human maladies. Our kids today are under constant pressure and sometimes they fall victims to habits that cannot be cured by excessive floggings or imprisonment.

We are equally concerned about the use of alcohol by our very young citizens and find it very hypocritical, that we are content with turning a blind eye to the heavy intake of alcohol in our communities. Alcohol is also a drug and its addiction is widespread. We are also concerned about the role the heavy use of alcohol plays in instances of domestic abuse , the financial ruin of many families and non –productivity in the work place. If we intend to seriously tackle addiction, we must be prepared to do so at all level.

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Latest Queens Counsel Appointees Waiting for the White Smoke

Chief Justice Marston Gibson

Chief Justice Marston Gibson

Whether we like it or not the constitution of Barbados recognizes the Queen of England as the head of state of Barbados. We practice the Westminster system of government and until we pluck the will from somewhere to believe in an indigenous way, Queen Elizabeth II through her agent the Governor General will continue to play that vital role as head of state.

One of the perks of the system which is eagerly looked forward to by members of the legal fraternity – for the status it confers – is to attain the designation of Queen’s Counsel (QC). BU understands the latest group of QCs who were informed four weeks ago have been delayed in their celebration because the list cannot be published until the Chief Justice (CJ) issues the warrants. According to our source, the list was sent to him (CJ) four weeks ago. It is customary for the warrants to be issued as soon as the GG has  written the QCs. There is a little buzz in the fraternity caused by the delay which cannot be explained.

Out of curiosity, and for no other reason, BU would like to know why the CJ is sitting on the warrants? It cannot be that he is very busy because his last sighting on the cocktail circuit was carried in today’s press.

Tales From the Courts Part XI: Sir Frederick Smith Attacked by Nation Editorial – when hypocrisy becomes high camp

Sir Frederick Smith

Sir Frederick Smith

BU has read with interest the editorial in the Sunday Sun of 10 March 2012 in which the writer launched an attack on Sir Frederick Smith QC for comments made about the Barbados judiciary. BU holds no brief for Sir Frederick but one is left to question the motive of the ‘editor’ of what is regarded as the most widely circulated newspaper in Barbados.

BU’s research confirms that in the mid-90s Sir Frederick delivered a speech to a legal body, an event attended by judges and members of the Bar from throughout the Caribbean. At that time, Sir Frederick stated, inter alia, “It appears to me that judges in Barbados think they have a constitutional right to be stupid.” Sir Frederick is consistent – unlike the “editor” of the Nation.

The tenor of the “editorial” suggests someone has an axe to grind. Could it be there is some fire rage being directed at Sir Frederick Smith because he was chosen to deliver the eulogy for retired judge, Lindsay Worrell, the father of Mr Justice Randall Worrell.

The editorial gets off to a pompous start:

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Tales from the Courts Part X – John Doe v. Sgt Vernon Waithe

BU has received the following proceedings which should be of interest. The Complaint is part of a filed proceeding and in our view it falls into the public domain. However, BU will not comment on this matter, which has been adjourned until June 27, 2013 and is before Magistrate Deborah Holder.

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Manifesto WARNING!

2013 BLP Manifesto

2013 BLP Manifesto

The manifestos of the DLP and BLP have been released about ONE week before the E-Day of February 21, 2013. Generally people pay very little attention to manifestos in most countries. A manifesto may be described as a political tool to get political parties elected. Although we know they are usually littered with pie in the sky promises, BU had hoped this one time around, given the unprecedented challenges which confront service-oriented economies like Barbados, the electorate would have been wooed and teased by a vision articulated by both political parties (espoused in the manifestos).  How do they plan to navigate the economic and social milestones currently strewn in our path? Why is it this one time our people could not have been convinced to turn-down the political rhetoric, and instead, engage in a level of collaboration hitherto never experienced in democratic Barbados? As a highly regarded small predominantly Black country here was an opportunity created by the prevailing economic challenge for us to lead; a role which is not unfamiliar in the post-Independence period.

Kudos  to the Barbados Labour Party (BLP) for being ‘first’ out of the blocks with their Manifesto launch – a sarcastic comment you ask?. Although a trivial point, it has not escaped the notice of BU that apart from the first page which features an aggressive air-brushed image of Owen Arthur reflected on The Team for A Better Tomorrow, Mia Mottley’s photo appears in the most prominent position. To those with an ‘eye’ for these things it is called subliminal advertising and it is designed to draw the eye and create an impression in the minds of the electorate.

During the stewardship of the DLP government (2008-2013) a few issues have always occupied the attention of the BU family. Heading the list is GOVERNACE! On Thursday an increasingly cynical electorate will have to decide which party leads (by a nose) on the issue of Freedom of Information (FOI) and Integrity Legislation (IL) among others.

Related Link: Manifesto WATCH

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Tales From the COURTS IX – The CLICO AFFAIR Involving the FSC and the BIPA

June Fowler, head of BIPA

June Fowler, head of BIPA   Photo credit: Caribbean360

BU is perplexed by the latest news in this mess, in which it is reported that the BIPA (Barbados Investors Policyholders Alliance) aka CLICO investors – represented by Mr Alair Shepherd QC – has refused to stay the action against the CLICO directors. It is noted that the FSC is represented in this matter by Mr Adrian King.

BU’s attention was initially grabbed (or as it transpires, misdirected and sidetracked) by the fact that Mr Shepherd and Mr King both practice out of Inn Chambers and BU asked for clarification that, although Mr Shepherd and Mr King both practice from the same chambers, they are NOT partners, but ARE, in fact, individual counsel who simply share facilities. As such, therefore, there is no impropriety, nor does BU even suggest such of the two counsel named.

That disclaimer and clarification having now been made, BU asks its family and legal eagles to weigh in as to whether BIPA has the standing to bring its action against the CLICO directors, or not. If not, as this whole CLICO mess is of massive importance to Bajans in general, on what basis BIPA has refused to stay its action? Is there any merit in pursing an action that will be stayed at the end of the day?

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The Violet Beckles Affair, Separating Fact From Fiction Part V

Related Links:

The Violet Beckles Affair, Separating Fact From Fiction Part IV

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Related Links:

The links to the images in the Slide Show are provided below. To the lawyers,  we are not in a court of law.

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The Violet Beckles Affair, Separating Fact From Fiction Part III

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In the news recently Barbadians learned about a Court battle over the sale of The Farm Plantation. In 2005 a Court approved the sale of the plantation to Timothy Walsh of Nature’s Produce for $1.5 million. And in a recent court order the 135 acre property was approved to be sold to building magnate Bjorn Bjerkhamn for $1.35 million.

The treasure which has caused wars to be fought continues. On BU “Plantation Deeds” continues his online war to expose a matter which he believes is not being given enough airplay by the establishment. Here are some more documents which includes The Farm plantation and the Urban Development Commission (UDC).

Yes we know, BU is not a court of law BUT an online medium which allows the ordinary to give vent to concerns.

Related Links:

Here are the links to the images in the Slide Show: Continue reading

Is DPP Charles Leacock on the Golf Course While An Innocent Man Awaits JUSTICE?

Charles leacock, DPP

BU continues to follow the story – Rapists, Commissioner Darwin Dottin and the Integrity of the Evidence – of a poor Black man accused of raping two English visitors to Barbados. That the story has taken an interesting twist must be termed an understatement. Last week in an unusual occurrence for Court systems around the world, the two women raped appeared in open Court to argue that the man Commissioner Darwin Dottin says there is incontrovertible evidence they believe to be innocent.

To update this matter from the Barbados Court: the case has been adjourned until December 13, 2012 to await direction from the Director of Public Prosecutions (DPP) Charles Leacock. BU sincerely expects that given the extraordinary harm this story is having and will continue to have on the reputation of Barbados and its people, that decision makers are giving this matter their urgent attention. BU would be very disappointed to learn that DPP Charles Leacock has continued his weekend routine of being on the golf course at Sandy Lane or Westmorland when his urgent feedback is required to resolve this matter. Why the hell did the Magistrate feel compel to adjourn this matter until the 13 December 2012?

To those who believe it is not an urgent matter, a scan of the widely circulated UK press The Telegraph shows its lead story in the World Section as – How two British women raped in Barbados declared their ‘attacker’ innocent. The story is currently listed in the newspaper’s Top Ten most read stories.

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Victory for Elwood Watts?

Caswell Franklyn, Head of Unity Workers Union

While I am extremely happy that Mr. Elwood Watts has prevailed against the injustice that is inherent in the Public Service: I am concerned that the resolution of this matter would create another set of problems.

I have no more knowledge of the facts of the case than what I have read in reports in the Nation. However, it is my view that the outcome flies in the face of the very same principle that Mr. Watts was seeking to address. My understanding is that the Chief Personnel Officer through her lawyer informed the court that Mr. Watts would be appointed Senior Crown Counsel. That decision might please an extremely hardworking and deserving Elwood Watts but also, it would let others off the hook for their roles in this shameful affair.

My first concern is how did the recommendation, for the original appointment, reach the Governor-General without first going through the mandatory procedure set out in the Recruitment and Employment Code for the Public Service. The code, at paragraph 2 states:

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Tales From The COURTS VIII – Justice Elneth Kentish v Businessman Joseph Jordan

Joseph Jordan and Justice Elneth Kentish (inset) – Photo credit: Nation Newspaper

On Wednesday November 7, the Nation published a report headlined “COURT TWIST”. It recounted how Miss Elneth Kentish, one of our battery of so-called “High Court Judges” had recused herself from a case before her, on the basis that she herself would be suing one of the parties in the case for defamation, presumably arising out of the case. The details of the case, Coach House Limited v Joseph Jordan III, are not relevant here.

However, what is relevant is that, according to the Nation report (and the Appeal that has, it is alleged, since been filed) Miss Kentish, after having recused herself, went on to issue an order in the case. So, the allegations of the Nation and the Appeal being correct, she removes herself from the case and then issues an order in the case. Does this make sense to anyone – and we mean both and legal common sense.

And just what would have been so wrong in Miss Kentish (or our incompetent Registrar) writing to counsel on both sides in advance of their appearance before her, stating that she was recusing herself and maybe even copying them her letter to the CJ, so that they did not turn up in court and charge their clients for so doing for four hours AT LEAST of their time?

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CLICO Policyholders Recommended to take a Haircut!

Patrick Toppin (l) Oliver Jordan (r) CLICO Judicial Managers

BU regards the following as a matter of public interest (snagged from Facebook)

This outrageous proposal is the outcome of a totally secret Report filed with the Court by the Judicial Manager last Friday 19th October and mysteriously sanctioned within 7 days without any consultation or public announcement whatsoever. If ever there was evidence needed that this Government has continually made false promises and reassurances to an unsuspecting and trusting electorate, then this is it.

The result will be that policyholders will be lucky to see as much as 50 cents on the dollar. Any CLICO or BAICO policyholder, their family member, business owner or person hoping to keep their job or get a new one who votes for the DLP at the next election, deserves everything (or should that be next to nothing) they will get. This is an outrage, especially as BIPA has had meetings with the Opposition at which viable and satisfactory solutions to the debacle have been negotiated. Is this why the PM has so far been ‘too busy’ to accept BIPA’s invitation to meet with him. Next thing we will hear is that he knows nothing about this. Or maybe he feels that he does not need the 35,000 voters who are policyholders, not to mention all those others who will be devastated by this.

Tales From The Courts – Exposing ‘Teefing’ and Incompetent Lawyers

Sir Henry De B. Forde, K.A. Q.C. – Barbados’ best known counsel

In the last two instalments of Tales From The Courts, BU ventilated an aspect of land law that had the possible potential to cause problems for vendors and purchasers alike. This arose because of an Order given by Miss Kentish of the Barbados High Court. BU’s position evoked much argument from both sides of the issue.

Some well known counsel said that the Order was correct. Some, including it is reported, the a party to a sale and purchase and their counsel, held that the Order was a nullity and therefore refused to proceed with the purchase. It is not the intention of BU to go into the relative merits of this argument. We leave that to the lawyers to discuss among themselves.

What BU will do, however, is to fulfil its function, which is to serve the general Bajan public by pointing out the dilemma facing it. The fact that there are clearly two schools of legal thought within the legal fraternity on this issue of law, means that ultimately one is wrong and the other right. Therefore, it is clearly best for members of the general public, vendors and purchasers of land alike, to err on the side of caution. And it is clearly best for their counsel to be responsible enough to encourage them to do so.

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Tales From The Courts Part VII – Madam Justice Issues Order to a Dead Person

Far right – Madam Justice Elneth Kentish

Arising from BU’s Tales From The Courts Part VI – – Chief Justice Marston Gibson Scores An F In Year One a few BU commenters expressed surprise, and horror at our report which challenged an order handed down by Miss Elneth Kentish who to the chagrin of many occupies a seat on the Bench. A part of the BU report which is the cause of much derision amongst the legal fraternity states:

“Miss Elneth Kentish has produced an order in which there are no parties and one of the purported parties has died and has not had an administrator appointed for them.”

The Order under scrutiny is a public document and can be had on request from the Registry. This matter has mushroomed in a credibility issue for BU. To quell concerns as to the veracity of the BU report we publish the Order with thanks to our friends in the legal community.

Kentish Order, pages 1,2,3,4

Tales From The Courts Part VI – Chief Justice Marston Gibson Scores An F In Year One

Since writing the following article, it is reported in the Nation News that the Barbados Bar Association is contemplating strike action against the Supreme Court in general and the Chief Justice in particular. BU wishes to make it clear that the following report was written without knowledge of the position of the Barbados Bar Association and before the Nation report was published. BU extends its full support to the Barbados Bar Association in this instance and, depending upon circumstances, will revisit its comment that the Barbados Bar Association is toothless in due course.

Chief Justice Marston Gibson

The question we now have to address is this. AFTER A YEAR IN OFFICE, WHAT HAS THE CHIEF JUSTICE DONE?

The answer is, in sincere and flattering imitation of Freundel Stuart (the attorney-general who agreed to his appointment and the prime minister who changed the law so that no meritless challenges could be made to that appointment) the Chief Justice has done NOTHING. Except talk a lot.

The Chief Justice has talked about arbitration and ADR. Boy has he talked it to death. But yet we see no mechanism in place to make this (in appropriate circumstances) mandatory or even viable. Nor do we see a system of qualification for court-approved arbitrators, which basically means that any member of the Bar can be an arbitrator. A situation hardly likely to inspire confidence and cooperation in a public fed up with a toothless Bar Association and a disciplinary committee of same that allows attorneys to rip the public off left right and centre, without disbarring their tails.

So, apart from talking about ADR, the Chief Justice has done ABSOLUTELY NOTHING to implement it. And absent any clear guidelines, the general public (which is not stupid) has realised that it is a haunt for cowboys and is keeping well away.

Relevant links:

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Acting Crown Counsel Elwood Watts Asks High Court to Block the Appointment of Attorney at Law Alison Burke

Chief Justice Marston Gibson, heads the Judicial and Legal Services Commission

The following extracted from the Sunday Sun September 23, 2012:

“A High Court is being asked to block the appointment of a Crown Counsel in the Office of the Director of Public Prosecutions (DPP). In an unprecedented legal development, attorney at law Elwood Watts, who acted as Crown Counsel in the DPP’s office for the past six years, is seeking an injunction against the Judicial and Legal Services Commission, chaired by Chief Justice Marston Gibson and includes Appeal Court Justice Sandra Mason and High Court Justice Maureen Crane-Scott.

Attorney at law Alison Burke, who was recently admitted to the Bar, was to take up the permanent appointment as Crown Counsel effective September 1. But in his court filings challenging the decision of the Judicial and Legal Services Commission to ratify Burke’s appointment, Watts has complained that the position of Crown Counsel was never advertised as required by law. As a result, the former police sergeant who has been on secondment to the DPP’s office, said he never had a chance to secure the appointment.

Reports indicated that Burke, who was attached to the Ministry of Health as a staff nurse prior to her appointment, never had any experience in court proceedings. A date is to be set for hearing of the injunction.”

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Notes From a Native Son: Why a Massive Development Plan could Have Made a Major Difference to Development in Barbados (Pt 1)

Hal Austin

Introduction:
For the last five years governments of Barbados have been trapped like a rabbit in oncoming headlights as to what to do about the cascading economic crisis that has descended on the island and the simmering social breakdown that no one wants to talk about. Many prefer to close their eyes and pretend that global problems beyond local control are the reasons, so all they have to do is sit back and wait and things will magically change.

However, no where has there been a substantive strategic plan, no strategy to rebalance public sector spending, no plan for growth, apart from the rhetoric, and nothing at all to deal with the threat to social order. Nowhere in the many speeches and rebuttals of his critics has finance minister Chris Sinckler talked about the much-needed fiscal discipline, reducing public sector borrowing or spending. He has mentioned growth, but it is all smoke and mirrors, rhetoric without any follow through action.

Here I want to outline some simple policy actions or announcements the DLP government should have taken within the first 100 days of coming to power, and, to my mind, the mistakes it has made. The nearest the government has come to publishing an expressed policy was its “Barbados Short and Medium Term Action Plan” of December 2008. Lots have happened in the last four years, and, apart from the occasional reference to it, that document has not been updated.

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How Is CJ Gibson Doing?

Marston Gibson, Chief Justice (l) Andrew Pilgrim, President of Barbados Bar Association

Why is the criminal justice systems in Barbados so dysfunctional? Can you imagine they are people being held on remand for over four years, without being charge of crime? Each visit to court police prosecutor D. Cumberbatch will intimidate them into entering guilty plea for crimes they never committed.

You should take a look at a defendant Earl Victor arrested for a robbery he never committed and has been held without charge for almost 5 years. It’s about time we notified Amnesty International, and The US State Department to change its aid commitment to Barbados.

Nora (received via email)

The appointment of CJ Gibson – selected from outside the inner ring – was welcomed by BU. If the delivery of justice has to fit a definition which says justice delayed is justice denied then the backlog of cases reported to be in the thousands before Gibson’s appointment represents a sad tale. It is one year since CJ Gibson’s appointment and there is no noticeable improvement in the delivery of justice from our Court System.

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Tales From The Courts – Part V

Justice delayed is Justice denied!

Instead of touching on incidents that have actually happened, this latest edition of Tales From The Courts focuses on a developing international scandal that may involve the Barbados courts.

In the last month, the financial world has been rocked by evidence of LIBOR fixing by Barclays Bank. LIBOR is the London Inter Bank Offered Rate. The scandal in the making has led to the resignation of both the UK chairman and the UK chief executive of Barclays Bank and the setting up of a parliamentary enquiry in the UK involving, not just of Barclays, but of all banks. Last week Barclays was fined £290 million for LIBOR rigging.

This, however, is not just a UK problem, but an international one. There are ongoing investigations in the USA – to which the Barbados economy is pegged and in the UK and there is every likelihood of criminal prosecutions for certain people and massive fines resulting.

The scandal now has taken a turn and involved Canada and the Canadian courts, where the Royal Bank of Scotland is seeking to have a court order for the discovery of documents and evidence from a senior judge set aside on the basis that it breaches the Canadian Constitution (in Canada) and the Data Protection Act 2000 (in the United Kingdom). It is doubtful if this legal tactic on the part of Royal Bank of Scotland will succeed, given that all the other banks subjected to the Canadian court order are complying.

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Bar Association President Andrew Pilgrim Serving Two Masters

Andrew Pilgrim, President of the Barbados Bar Association

… we decided to approach Andrew Pilgrim, well known dramatist and President of the Bar Association for his view…

Bajan Reporter

The above was extracted from an article posted by Ian Bourne on his websitePresident of the Barbados Bar Association sees special Unit for Raul Garcia as Tax Inefficient – Let the former Convict live and work here!. What snagged the attention of BU was not the substantive issue highlighted by the article but the way Andrew Pilgrim was introduced. Whether Bourne realized, it he reminded BU of a growing concern we have about Andrew Pilgrim and his role as President of the Bar Association. To add to the rub BU got sight of a document which features Pilgrim in an upcoming TV-series. 

BU is fully supportive of the Arts and our concern should not be seen as being against The Soap Opera Project. We wish the Caribbean Film Festival all the success. BU has been  an advocate for this government to get more aggressive in its effort to support the cultural and creative sector. BU continues to monitor the passage of the Cultural Industries Bill and will not attempt to muddy the waters at this stage although we remain agitated at the agendas being played out.

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