May 02, 2010

The following is an open letter to the Chief Justice, dated April 29, from Desmond Allum, SC.

The Honourable Chief Justice,

Mr Ivor Archie,

Age and distance bestows such freedom which I now take advantage of to address these few lines to you.

As you probably know I have been in the United Kingdom for an extended period. Notwithstanding the distance I have been following closely what has been going on in both the political and legal profession arenas. It is of course in relation to the second topic that I write to you.

This statement is set against the background of Lord Atkins famous dictum in Ambard vs. The AG 1936:

“Justice is not a cloistered virtue: she must be allowed to suffer the scrutiny and respectful, even though outspoken, comments of ordinary men.”

I have become aware of the brewing controversy in the legal profession and judiciary over the application and enforcement of “implied sanctions.” It is my understanding that a meeting was held at the Convocation Hall on April 17, 2010 under the auspices of the Law Association to discuss the implications of the enforcement of the provision of CPR 27.3. I understand that you attended part of the meeting and left before a full discussion took place but notwithstanding that you made it clear that the Court of Appeal had already considered all the relevant factors in cases that had gone before it dealing with “implied sanctions” and that you were adamant that no change in the relevant rule or its enforcement would be countenanced.

Are you the same Chief Justice who on the cover of the 2008-2009 annual Report of the Judiciary included an excerpt from the Latimer House Principles which stated “People should have easy and unhindered access to courts, particularly to enforce their fundamental rights.”

At page 5 of the Report you stated that the philosophy which drives the Judiciary as being “to provide an accountable court system in which timeliness and efficiency are the hallmarks, while still protecting integrity, equality and accessibility and attracting public trust and confidence.”

Later on in the Report you quoted with approval from Commonwealth Secretariat, “the historical experience of the common law has been that in reality, too many barriers have continued to deny citizens access to the courts. These barriers have been systemic, procedural, financial, physical and cultural. They include the related problems of delay and backlog, antiquated court facilities, outdated approaches to litigation by judges and lawyers and insufficiency of funding.”

In your Annual Report for 2008-2009 you set out a very impressive array of statistics but nowhere were we given a breakdown of the amount of CPR cases which were thrown out for non-compliance or those which were summarily dismissed at a case management conference without the benefit of a trial.

“Access to justice is not measured by the amount of cases judges clear from their lists each year. The citizens and taxpayers who are paying for the service of a professional judge must come away feeling satisfied that their case was heard and determined.”

Where is the draft Code of Judicial Conduct which you promised? Your insistence of the mandatory enforcement of “implied sanctions” will most adversely impact on the poor and underprivileged. The well heeled will seek the services of the large firms who have the luxury of several Blackberries and several lawyers monitoring and assisting in meeting deadlines.

The poor litigant will end up knocking on the door of the one or two shingled lawyers’ firms who will not insist on the full payment of “upfront cases” and because they have taken on too many cases which are poorly paid and they are more likely to miss deadlines their possession of “Blackberries” notwithstanding. I have said enough. I want to tell you the Courts were not instituted for the judges nor are the Courts for the attorneys. The Courts are instituted for the people and the rich, the poor, the underprivileged litigants must have equal access to them.

Do not be seduced by statistics. Do not go down the road of ex-Chief Justice Chief Justice de la Bastide who reduced the backlog in the Court of Appeal by the introduction of draconian measures embodied in Order 3 Rule 6 (1993). If you missed the deadline by one day the appellant’s case was thrown out without any recourse. Ironically it was the same ex-CJ who when he became President of the CCJ gave leave to appeal in spite of a 12 months delay, in the Case of Barbados Rediffusion Service ltd Vs Asha Mirchandani & Ors.

You have a long tenure ahead of you. Take your time and build a long and lasting legacy. Emulate the Honourable HOB Wooding (deceased and of revered memory) who is in my view the only Chief Justice who has left a worthy legacy. Not everybody applauded your accession to the office of Chief Justice. Some of us have waited to see your performance. We were heartened by your address last year in which you stood up against Manning’s Draft Constitution.

My advice Chief Justice is to please read the paper delivered by Rishi Dass on the occasion of the meeting of 17th April 2010. Rethink your position and be big enough to acknowledge you were wrong. If you do the right thing you will be assured of the total support of the public and the profession.

Sincerely,

Desmond Allum

Head of Trinity Chambers

44-58 Edward St

Port-of-Spain