Mon | Aug 21, 2017

Gordon Robinson | Don't rush to judgment

Published:Sunday | May 29, 2016 | 5:00 AM
David Batts
The Supreme Court building at King Street, Kingston.
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Somehow, a Jamaican Bar Association (JBA) letter to the chief justice complaining of delays in delivery of judgments found itself in The Gleaner.

On May 15 ('End delays from the Bench! Bar Association calls on judges to speedily hand down judgments'), it was quoted extensively. Some might have formed the impression that Jamaica's justice system's problems were the fault of these delinquent judges.

The JBA's letter included: "We're of the view these many outstanding judgments underscore the problem of chronic delays in the timely delivery of justice within the Supreme Court ... ."

But, if you ploughed through the entire report, you'd notice only 62 delinquent judgments were listed over 10 years (an average of six per year). Now, all judgments should be delivered promptly, but a proper context ought to be provided so readers aren't misled into believing THIS is the problem.

In 1994, then attorney-at-law David Batts, with Stacy Mitchell (now Fraser), presented an excellent paper, 'Delays in the Justice System Civil Jurisdiction'. At that time, Mr Batts (now Mr Justice Batts) noted the absence of available statistics regarding pending Supreme Court cases, but was able to record that, in the appeal court (1990), 352 cases were filed, 90 disposed of, and 245 of 430 settled.

In the absence of statistical assistance, the Batts-Mitchell project team conducted a study and concluded, in 1994:

"The median or 50th percentile age from placement on the Cause List to expected disposition date ... is 16 months. The 75th percentile was 21.6 months."

That 1994 study went on:

"More alarming is the age of the pending caseload from the time the case is filed ... . The 50th percentile time from filing to expected disposition is 33.5 months, while the 75th percentile is 57.5 months."

 

REASONS FOR DELAYS

 

In 1994, Mr Batts, then a member of the JBA, gave as reasons for Supreme Court delays:

(a) The existing backlog: itself caused by past slow disposal of cases. New cases moved to the back of the line;

(b) Civil procedure system: operated hostile to efficiency (few settlements or agreement of certain issues);

(c) Administrative difficulties (especially the registry's operation): "Files cannot be located. It takes forever to obtain dates. Information is difficult to access. Letters are either not answered or responses are late in coming. Formal orders and judgments in default take months to be executed."

(d) Attitude of counsel: Many at the civil Bar don't seem to acknowledge their roles as officers of the court with a vested interest in getting things done. Why spend three days in court when an adjournment means one can produce more lucrative work in chambers? " ... Many of us don't give matters the consideration they require before entering that courtroom. Documents aren't agreed, pretrial discovery not utilised sufficiently; witnesses aren't prepared ... and the court isn't given the type of assistance which could lead to a smoother flow of cases."

(e) Judges: If both parties to a civil matter agree to adjourn, there may be little a judge can do, "however, a judicial attitude can make a world of difference. One need only cite the rather extreme example of a certain judge at the Revenue Court".

One Monday morning, as I was leaving to conduct a Revenue Court trial, I was summoned by telephone to an emergency appeal court hearing. I asked junior counsel in the chambers to go to the Revenue Court, explain my urgent dilemma, and ask for a postponement until I could attend.

Said "extreme example" (long ago dearly departed) informed junior counsel: all parties were present. He was alleged to be a lawyer, so the trial would begin. By the time I arrived, the matter had proceeded almost to conclusion and poor junior counsel was completely stressed out, facing some of Jamaica's most senior advocates.

 

WORSE SITUATION

 

Twenty years later, with new Civil Procedure Rules, case management and "mandatory" mediation, the situation is worse. The Economic and Social Survey Jamaica (ESSJ) 2015 remains devoid of Supreme Court civil case statistics. The appeal court had 1,388 appeals carried forward from the previous year (738 Supreme Court Civil); 253 new appeals filed (118 SCCA); and only 169 appeals (approximately 10 per cent) disposed of. At the end of the year, 1,472 appeals remained pending. The decline in new appeals from 1990 (352) to 2015 (253) is itself a product of the snail's pace at which Supreme Court trials are concluded.

My usually reliable sources estimate many thousand Supreme Court civil cases were carried forward in each of the past five years and between 7,000 and 8,000 new cases filed in the civil division each year, including more than 3,000 matrimonial matters.

Why the unending, burgeoning backlog? Because 62 judgments were egregiously delayed over the past 10 years? Of course not. Supreme Court judges are as much victims of the system as we are. The reasons for the delays set out by Mr Batts in 1994, compounded by 20 more years of political neglect and professional arrogance by lawyers, are the reasons today.

1. About 30 Supreme Court judges are expected to sit all day, every day (criminal AND civil), hearing a list of about five matters per day in chambers; five per week in open court. Three weeks in civil court can be immediately followed by three weeks on circuit. There's no system for a regular week off to write judgments.

2. Conditions of work are archaic, shambolic, embarrassing and counterproductive. There are more than 300 law-school graduates annually, but no judge has a rotating staff of at least three young lawyers as judicial clerks to assist with research and judgment writing. Support staff and services are woefully inadequate and outdated. One 'secretary' will type for five judges but doesn't assist with appointments or anything else. Most judges don't have dedicated registry clerks to attend to their diaries and fixtures. Registry staff are generally underpaid, demotivated and inadequately trained. Clerks have duties to judges in court AND filing/office duties elsewhere. It's an administrative morass, and a judge, who should have three judicial clerks, a dedicated registry clerk and secretary, is left to fend for him/herself AND is lambasted when judgments are late;

3. The production of verbatim trial transcripts is a joke despite the presence of alleged verbatim recorders with computerised equipment. Recently, a complex libel trial was conducted five years after suit was filed. After trial, it took one year-plus to produce notes of evidence for the judge's consideration. Judgment was delivered promptly and appealed. The same Supreme Court that delivered notes to the judge was unable to produce the same notes of evidence for the appeal, so lawyers had to produce or deliver the notes or wait ad infinitum for the appeal to be heard. The appeal was heard three years after the trial. WTH?

4. Updated law reports are as rare as Phalaenopsis blooms; reporting of local judgments haphazard at best; judges' security non-existent; and their woefully inadequate remuneration, terrible pension arrangements and inadequate health plans, still controlled by the Ministry of Justice, are insults.

5. The infrastructure is pathetic. Criminal and civil courts are housed side by side. Prisoners are escorted by police through civil-law litigants waiting for their cases to be heard. The recently refurbished old NCB building (intended to separate criminal and civil courts), is a perfect example of how to waste space. The problem remains.

ESSJ 2015 refers to "justice-sector reform", which promised "a review of the court-based automatic mediation process and the preparation of a report, which included recommendations for the expansion and improvement of automatic mediation ... ."

DWL! Three years later, WHERE IS IT? Gathering dust on somebody's desk? Meanwhile, parties send representatives to mediation who are unable to take final decisions or who only intend to go through the motions. There's no sanction. If you turn up with an attitude so anti-mediation, you succeed in creating another year's delay - no biggie. Mediators, claiming "confidentiality", won't expose these system manipulators in court. You see, doctors differ and patients die, but lawyers differ and both get rich.

JBA, stop crying about a few outstanding judgments. Agitate for REAL systemic improvements beginning with a truly independent judiciary with its own budget administered by the chief justice, proper remuneration, staffing and working conditions for judges, judicial specialisation and proper case-management procedures, time off to write judgments, and greater due diligence in making appointments.

Until these fundamental changes are made at the problem's root, it's a miracle that No. 62 isn't 620!

Peace and love.

- Gordon Robinson is an attorney-at-law. Email feedback to columns@gleanerjm.com.