Pedro Deray Ellis v Attorney General of Barbados
| Jurisdiction | Barbados |
| Judge | Mr. Justice Westmin R.A. James |
| Judgment Date | 23 January 2023 |
| Neutral Citation | BB 2023 HC 3 |
| Docket Number | CLAIM NO. UNKN0002/2022 |
| Court | High Court (Barbados) |
IN THE SUPREME COURT OF JUDICATURE
HIGH COURT
CIVIL JURISDICTION
The Hon. Mr. Justice Westmin R.A. James, Judge of the High Court (Ag.)
CLAIM NO. UNKN0002/2022
IN THE MATTER OF SECTION 18 OF THE CONSTITUTION OF BARBADOS
AND
IN THE MATTER OF AN APPLICATION BY PEDRO DERAY ELLIS ALSO KNOWN AS PEDRO DEROY ELLIS FOR REDRESS FOR A CONTRAVENTION OF FUNDAMENTAL RIGHTS AND FREEDOMS GUARANTEED BY THE CONSTITUTION
Mr. Larry Smith, K.C. in association with Fabian Walthrus Attorneys-at-Law for the Claimant
Mr. Roger C. Forde K.C. in association with Cherise Whitehall-Small, Nicole Boyce and Rene Forde, Attorneys-at-Law for the Defendant
The gravamen of this case is what constitutes unreasonable delay in delivering Judgment.
By Fixed Date Claim Form filed on 11 th April 2022, the Claimant seeks relief pursuant to section 24 of the Constitution of Barbados primarily for a declaration that the delay by The Honourable Mr. Justice Cecil McCarthy, Judge of the High Court (“McCarthy J.”) in taking 30 months (from March 2020 to August 2022) to deliver his decision in a (separate) constitutional case, is in breach of the Claimant's fundamental rights as enshrined in sections 11 and 18 of the Constitution.
As is often said, justice delayed is justice denied, refusal of timely justice is equal to a denial of justice. Pendency of cases for a long time defeats the whole idea of justice and loses people's confidence in the judiciary. This is even more true of constitutional law cases which involves the rights of individuals.
Within recent times, the final appellate Court of this jurisdiction has admonished judges for delay in rendering timely judgments. They stated in Yolande Reid v Jerome Reid [2008] CCJ 8 (AJ) that judicial delays “deny parties the access to justice to which they are entitled and undermine public confidence in the administration of justice.” They went on to say that the “effectiveness of a judiciary is seriously compromised if it fails to monitor itself in respect of the time taken to deliver judgments and to arrest promptly any tendency to lapse in this aspect of its performance.” If this state of affairs is left unchecked excessive delays may ultimately undermine the rule of law. (See Goose v Sandford & Co [1998] EWCA (Civ) 245 [112] (quoting The Honorable Justice DH Lloyd, Address at the Judicial Conference of Australia (Nov. 7, 1998) and Bulkan JA in Inderjali v DPP (2019) 94 WIR 381.
McCarthy J. himself in his judgment delivered on 31 st August 2022 stated that a failure to tackle the outstanding cases can lead to profound embarrassment for the judiciary and continue to negatively impact the administration of justice.
As indicated by McCarthy J., there are numerous reasons responsible for the delay in the issuance of a judgment. Among the causes for this state of affairs are inadequate financial resources, too few judges/overburdened judges, ineffective records management, voluminous documents filed by attorneys, complexity of cases, attorney delay, lack of specific time allocated forjudges to write judgments, absence of judicial codes to provide guidance to judges on roles and duties, failure to discipline or remove judges, and judicial attitudes: see Professor ShaShana Crichton, Justice Delayed is Justice Denied: Jamaica's Duty to Deliver Timely Reserved Judgments and Written Reasons for Judgment Syracuse Journal of International Law and Commerce Volume 44:1 Fall 2016
I would hasten to add that there have been strides made by the current Chief Justice, the State and the Court to address this issue and which has borne some fruit. A number of these efforts were highlighted by McCarthy J. in his judgment. This included appointment of more judges to both the criminal and civil divisions of the Supreme Court.
Every citizen has a right to a speedy trial and refusal to timely justice results in no justice.
That being said, the Court now turns to the case at hand to adjudge it on its own merits.
The Claimant filed Claim No. 1883/2017 wherein the Claimant sought constitutional redress for the breach of his constitutional rights afforded by sections 11 and 18(8) of the Constitution. The Claimant averred that his constitutionally protected rights were breached because of the failure and/or neglect and/or refusal of the Court of Appeal of Barbados to hear an appeal of the decision of the Honourable Madam Justice Michelle Weekes, Judge of the High Court.
The Claimant also filed Claim No 1297/2018 wherein the Claimant sought constitutional redress for the breach of his constitutional rights afforded by section 11 and section 18(8) of the Constitution. This claim originated from the failure and/or neglect and/or refusal of the Court of Appeal of Barbados to render a decision in Claim No 1883 of 2017. These two claims were consolidated before the McCarthy J.
The matter was heard by McCarthy J. on 10 th March 2020 with written submissions of the Claimant filed on 9 th October 2018 and by the Defendant on 11 th March 2020. Counsel for the Defendant, Mr. Jared Richards, made oral submissions on 10 th March 2020, in which he agreed that the delay, with respect to the appeal hearing and the decision thereon, constituted a breach of section 18(8) of the Constitution.
The Claimant made numerous attempts to procure the decision since the completion of the trial. By letter dated 16 th October 2021, King's Counsel for the Claimant wrote to the Registrar of the Supreme Court and expressed concern that after the passage of 18 months since the conclusion of the trial proceedings, no decision was forthcoming. King's Counsel for the Claimant received a reply from the Registrar of the Supreme Court by a letter dated 4 th November 2021. Madam Registrar stated that the letter of the Attorney-at-Law for the Claimant was forwarded to McCarthy J. and the parties would be informed once there was a reply.
Three months later by letter dated 25 th January 2022, King's Counsel for the Claimant wrote to the Honourable Chief Justice of the Supreme Court, as well as the Registrar of the Supreme Court requesting an urgent update on when the decision could be expected. King's Counsel for the Claimant received a reply from Madam Registrar by a letter dated 1 st March 2022. Madam Registrar stated that the letter of King's Counsel for the Claimant dated 25 th January 2022 was forwarded to McCarthy J. and the parties would be informed once there was a reply.
King's Counsel for the Claimant also wrote a letter to the Defendant outlining the above facts and highlighted that over twenty-three months had passed by that time and the decision of the McCarthy J. remained undelivered. There was no reply to this letter.
A letter written by McCarthy J, dated 20 th July 2022 was received by King's Counsel for the Claimant wherein the Honourable Judge indicated that the judgment would be delivered on 11 th August 2022. McCarthy J. indicated this revision was made due to the late delivery of the Defendant's submissions on 11 th July 2022.
McCarthy J. delivered his decision on 31 st August 2022 awarding the Claimant Sixty Thousand Dollars ($60,000.00) in damages in respect of his detention from the period of 28 th November 2018 to 12 th November 2019. By this time, the decision was delivered 30 months after the completion of the trial.
The issues for determination are:
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i. Whether the Honourable Mr. Justice Cecil McCarthy, having heard the claim on 10 th March 2020, breached the constitutional right of the Claimant under Sections 11 and 18(8) of the Constitution to a fair hearing within a reasonable time, having delivered his Decision on 31 st August 2022, thirty months after completion of the trial.
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ii. In the event that there was a breach of the Claimant's constitutional rights what damages should be awarded.
The main issue here is whether there has been a breach of the Claimant's constitutional right to a fair hearing within a reasonable time by an impartial tribunal.
Section 18(8) of the Constitution states that “Any court or other tribunal prescribed by law for the determination of the existence or extent of any civil right or obligation shall be established by law and shall be independent and impartial; and where proceedings for such a determination are instituted by any person before such court or other tribunal, the case shall be given a fair hearing within a reasonable time.”
While section 18 makes no mention of the delivery of judgments, a “hearing” includes the delivery of a judgment. A component of the right to hearing within a reasonable time is the right to a delivery of the resultant judgment within a reasonable time: see Bond v Dunster Properties Ltd and others [2011] EWCA Civ 455
Unlike many other jurisdictions, the Constitution of Barbados does give an outer limit on when a judgment should be delivered and what unreasonable delay in delivering same could constitute a ground for the removal of a judge. Section 84(3) of the Constitution states:
“A Judge may be removed from office only
(a) for inability to discharge the functions of his office (whether arising from inability of body or mind or any other cause);
(b) for misbehaviour; or
(c) for delay of more than six months in delivering a judgment.”
King's Counsel for the Respondent argued that section 84(3) is about removal of office and does not indicate a benchmark for delivering judgments. I cannot agree with King's Counsel that it does not give a benchmark for delivery of judgments. By including excessive delay as cause for removal of a judge from office, the Barbados Constitution provides a clear example of the...
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