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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