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?
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
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.
.. 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?
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”.
Read the full article – NO PAY FOR TARDY JUDGES
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.
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.
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).
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.