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.