Sat | Oct 20, 2018

Laws of Eve | Access to justice in the parish courts

Published:Monday | August 13, 2018 | 12:00 AM

For many years, I have read judgments and speeches delivered by Justice James Munby, who was the president of the Family Division in England until his recent retirement. He advocated for many changes in the family courts, including the conduct of hearings in public and increase in the availability of legal aid to allow litigants to have easier and better access to justice.

In an article published on July 27, 2018 on theguardian.com, Munby J. was quoted as saying, "Our present court processes, our rules, our forms, our guidance, is woefully inadequate to enable litigants in person - even educated, highly articulate intelligent litigants in person - to understand the system. That's a shocking reproach to us. That's a current reality."

Although this statement was made with reference to the English Court system, is it not also true of the Jamaican courts?

On the Court Management Services website, the parish courts are described in these terms: "The courts form the backbone of the Jamaican Justice System and is the first and only point of contact for many of our citizens." Despite this, the typical law student has limited exposure to the rules and procedure to be followed in the parish courts (previously known as resident magistrates courts), because the rules of the Supreme Court are taught in greater detail. Most lawyers will also tell you that they learnt about the parish courts after commencing practice and there are many who never go to those courts. In fact, the reality is that the majority of litigants in the parish courts represent themselves, because many cannot afford the services of lawyers or they believe that they can handle the matters on their own.

It is only when a person must interface with the parish courts that the rules they must follow and the special forms that must be completed when they are making claims become apparent. Even as lawyers, many of those rules and forms are neither clear nor simple enough to navigate, so the frustration experienced by many litigants is understandable.

 

STILL NOT FINISHED

 

When I entered law school more than 20 years ago, I was told that the Resident Magistrate's Court Rules were under review and, throughout the years, I am aware that there have been many meetings to discuss them. As they stand today, a member of the rules committee informed me that their work is still incomplete. It is high time that we fast-track these amendments.

Within the parish court network are specialised family courts that deal with matters such as child custody, spousal and child maintenance, and domestic violence. There are still only three such courts across the island - in Kingston, Montego Bay, and Portmore. In all other parishes, family matters are dealt with on a special day each week in the parish courts, where the parish judge usually also has regular civil court matters on the same day as the family matters. The failure to establish more family courts and to treat the resolution of family matters as a priority means that family matters will always take longer to be resolved than is desirable.

Particularly in maintenance claims, litigants often attend court on multiple occasions because a defendant has disobeyed a maintenance order. On those occasions, both the plaintiff and the defendant are required to attend court. In many instances, the plaintiff makes that trek in vain, because no payment is forthcoming or less than the amount due is paid. Both the cost and the energy expended in making those trips to court are wasted and cannot be recovered. Is there no room to consider whether a system could be devised that would cause only the defendant to have to appear in court on those occasions? Couldn't electronic contact be made with the plaintiff during or after that hearing so that scarce resources can be saved?

I have only used a couple of examples in this article to demonstrate that an in-depth examination of court processes is warranted to explore the extent to which rules and forms can be revised, and technology could be utilised, to ensure that access to justice in the courts can improve.

- Sherry Ann McGregor is a partner, mediator and arbitrator in the firm of Nunes Scholefield DeLeon & Co. Please send questions and comments to lawsofeve@gmail.com or lifestyle@gleanerjm.com.