Tue | Oct 16, 2018

Justice delayed… Earnie Smith and company ask court to order the Government to pay them $143m after unconstitutional delay

Published:Sunday | September 16, 2018 | 12:00 AMLivern Barrett
Smith

Ernest 'Ernie' Smith, a former member of parliament for South West St Ann on a Jamaica Labour Party ticket, is among three attorneys who have gone to court seeking an order for the Government to pay them $143.5 million for breaches of their constitutional rights after the judge who heard their case retired without handing down his judgment.

The lawsuit, which was filed on behalf of Smith, his daughters Nesta-Claire Smith and Marsha Smith, along with their law firm, Ernest Smith & Company, seeks a declaration from the Supreme Court that the assessment of damages started by retired judge Justice Raymund King in October 2013 is now null and void.

Consequently, the Smiths want the court to order the Government to pay them the money they sought before Justice King.

A breakdown of that figure, according to court documents obtained by The Sunday Gleaner, shows that Ernie Smith, who was a member of parliament at the time of the police raid on his law offices in Brown's Town, St Ann, urged King to award him $57.5 million in damages.

Marsha Smith and Nesta-Claire Smith requested $45 million and $37 million, respectively, for the police raid on the firm's Kingston offices the following day. A claim of $4 million was submitted on behalf of the firm.

They argue that the five-year wait for Justice King's decision amounts to a breach of their constitutional right to a fair trial within a reasonable time, and asked the court to award them additional compensation for this violation.

The new lawsuit, which was filed by attorney Georgia Gibson-Henlin, QC, comes amid public concerns about the number of judgments outstanding in the Supreme Court, particularly from retired judges.

The Gleaner had reported that between January last year and the first quarter of this year, judges of the Supreme Court handed down a decision in 27 per cent of the cases in which they reserved judgment.

Over the 15-month period, according to figures obtained by The Gleaner, judgments were handed down in 40 of the 148 cases in which judges reserved their decisions.

However, the Court Management Services, which compiled the figures, could not indicate the total number of judgments that have been outstanding for two years and more. Nor could the agency indicate the number of judgments outstanding from retired judges.

Ernie Smith detailed in court documents how a police team, armed with high-powered weapons and a search warrant signed by a magistrate, raided the St Ann offices of Ernest Smith & Company on January 27, 2003.

At the end of the search, he said, the police seized 34 case files, some of which were unrelated to the subject of the search - a Canadian man facing extradition.

A day later, according to Marsha Smith, the same police team raided the firm's Kingston offices and took two files and three boxes with confidential documents.

The Smiths said they informed the police that the information in the confiscated files were protected by lawyer-client privilege, and that the warrant was defective because it did not name a respondent.

Despite the backing of the Jamaican Bar Association, they unsuccessfully challenged the constitutionality of the warrant in the Full Court before taking their case to the Court of Appeal.

Then president of the Appeal Court, Justice Seymour Panton, ruled that the search warrants were unlawful and that the resulting searches breached the Jamaican Constitution and legal professional privilege.

According to the court documents reviewed by The Sunday Gleaner, Justice Panton, described the circumstances of the case as "unprecedented in the history of our country".

Panton argued that, "The offices of several attorneys-at-law were searched by the police who seized several clients' files although there was no allegation that any of the attorneys or their members of staff had committed any criminal offences, or that there had been wrongdoing by anyone on those premises."

Buoyed by the ruling of the nation's second-highest court, the Smiths filed a lawsuit against the State seeking damages for, among other things, breach of their constitutional rights, trespass, false imprisonment and assault.

The attorney general admitted liability and the lawsuit proceeded to assessment of damages before Justice King.

After several hearings in June and October 2013, the judge reserved his decision, but retired two years later without delivering his judgment.

Nesta-Claire Smith argued, in her sworn affidavit filed in support of the new lawsuit, that King's retirement made it "impossible" for him to deliver a judgment in the five-year old case.

Consequently, the Smiths are seeking a declaration from the court that it would be "unreasonable and unjust" to start a new assessment of damages before another judge.

"Due to the inordinate delays between the reservation of the judgment, his retirement and the date hereof, it is highly prejudicial to require the claimant to engage in a new assessment of damages," Nesta-Claire Smith argued.

livern.barrett@gleanerjm.com