BU is awaiting the remainder of the posted document because true to expectation it is not yet available on the Supreme Court of Judicature website and it is not readily available in soft copy. Yet, the losing attorney, Barry Gale QC, has commented on it in the press. “It” is the decision of the Court of Appeal (Justices of Appeal Burgess and Goodridge and Justice William Chandler (ag)) in overturning the decision of the Chief Justice, sitting as a judge of the High Court, in the Banks Holdings Limited matter. The only decision that the Chief Justice has actually authored since taking office years ago.
To say that the Court of Appeal has ‘KOed’ Chief Justice Marston Gibson would be to understate the case by a considerable margin. The Court of Appeal has in fact decimated the Chief Justice. It constitutes a serious indictment of the judicial competence of the Chief Justice in the starkest possible judicial terms. In other common law jurisdictions, such an overturning and judgement would cause any self-respecting judge to resign with haste.
So what have we got? We have a chief justice who has: (a) singularly failed to solve the enormous backlog of cases before both the High Court and the Court of Appeal; (b) who has himself been sued for abuse of power and gross misconduct; (c) who has indulged in press statements prejudicial to a case before the Court of Appeal of which he is head; (d) who has spent his judicial time dealing with bail applications, rather than trying cases; (e) who has usurped the authority and rights of the executive in his issuance of certain practice directions; and (f) who has now been made to look like an untalented first year law student by the Court of Appeal. Indeed, the sole talents and accomplishments of the Chief Justice seem to have been cocktail parties, overseas trips and getting his name and photo in the press – in that order. Oh, and let us not forget embarrassing both himself and the country in the region and internationally.
Once again, BU apologizes that it is only able to post a part of the judgement, but will, in due course and as soon as we receive it, post the remainder.
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.
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.
When can a lawyer be made liable jointly and severally for costs ordered against his client? What are the professional obligations of a lawyer and his/her responsibility to the integrity of the justice system? Update of “The Other Side of the Kingsland Estates Matter” […] Continue reading →
Initially, BU took the view that the Kingsland Estates court matter was not one of national importance, despite the fact that it encompassed over 1% of the total landmass of Barbados. It was, in BU’s judgement, a private, family squabble.
The CJ seems intent to blunder from one piece of stupidity to another. Recently, he welcomed a group of pre-teen children to the courts and gave them a lecture on Magna Carta which, this year, is 800 years old. The thrust of Magna Carta […] Continue reading →
In a statement from Trinidad extracts which are published in the Nation and Barbados Today, the Chief Justice has said:
“I want to find out what is the Bar’s plan to tackle the growing instances of attorney dishonesty. The twitter in Barbados is that there are several attorneys who are in the same position as the attorney whose case is presently pending before the Court of Appeal,” he said.” [BU’s EMPHASIS]
BU stands to be corrected, but does the CJ not chair the panel of the Court of Appeal before whom this case, recently highlighted by BU has commenced and been adjourned?
If this is indeed the case, for the Chief Justice Gibson (CJ) to allude to it publicly in any way, far less in a press release/statement, is highly improper if he is sitting on the hearing. It is highly improper for any judge to allude in public to a case on which he is sitting – such statements can and must only come from the Bench. And the CJ, not only was not on the Bench, but out of jurisdiction. However, for the CJ, who is head of the Court of Appeal, to make such a statement, especially to the Press, is not only gross misconduct, but brings the courts into disrepute. That is grounds for dismissal from office.
.. 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 system – Nation 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?
It is somewhat daunting to note that the Nation has only now espoused this cause as the result of cross-party agreement in the House led by former attorney general, Dale Marshall and supported by the PM and the present attorney general. This, after all, is an issue that BU – Tales from the Courts – has been resolute in airing for some years now and it appears that it is only now that a leading economist has publicly pointed out the obvious, that the demise of the justice system is almost completely responsible for the fall off and withdrawal of off-shore and foreign investment, that it now has been raised. Although, to be fair, last year in Toronto, the PM did serve notice that the justice system and courts had to be sorted out. But still his warning appears to have fallen in deaf ears and he himself has not done anything since.
When 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”.
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.
“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.
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 inthe 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.
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.
Mr Hal Gollop QC filed an action for defamation against the Nation which pre-dates the Parris action. The law firm of Carrington and Sealy acts for the Nation and Mr Vernon Smith QC is acting for Mr Gollop.
The essence of the complaint is that on January 07, 2013, the Nation captured and published the photograph which is the subject of dispute. Reasonable conclusion, the Nation was the author and the holder of copyright of the photograph. The BLP subsequently used the photograph and caption in their campaign. Thus, Mr Gollop has also advanced a claim of conspiracy against the Nation and the BLP.