Fri | Aug 7, 2020

Long wait for justice - Destitute claimants forced to start legal battle all over after judges retire without delivering judgment

Published:Sunday | July 12, 2020 | 12:33 AMLivern Barrett - Senior Staff Reporter
Nicholson
Nicholson

Cindy Robinson was 22 years old when she visited the Morant Bay Health Centre, located in St Thomas, for a routine tooth extraction in April 2007.

The government-run clinic has disputed her claim of negligence during the procedure, but Robinson contends that before it ended, she began experiencing blurred vision and severe headache.

Days later, her life was changed forever. Robinson, a former assistant haulage contractor, lost sight in both eyes and became “permanently disabled”.

She hired a team of attorneys and by January 2008 they filed a medical malpractice lawsuit against the Government and the dentist who did the extraction, accusing him of “failing to conduct proper procedure in a professional manner”, among other allegations of negligence.

After a three-day trial in the Supreme Court in June 2010, Justice Raymund King, who presided over the case, reserved his decision. Three years later, King retired without delivering the judgment.

“I am very upset about that,” Robinson told The Sunday Gleaner last Friday.

“Him say him a go give him judgment and him retire without doing it.”

SECOND LAWSUIT

As a result, the visually impaired woman was forced to file a second lawsuit against the Jamaican state.

Ten years later, and still no justice, it has taken a devastating toll on Robinson. Her situation has deteriorated so badly, said one of her attorneys, Manley Nicholson, that “even if she was to get a new trial now, she can’t assist in her own case”.

“My emotional and psychological condition in awaiting a judgment and/or an outcome to my case has worsened,” Robinson wrote in new court documents, a copy of which was obtained by The Sunday Gleaner.

“I am still legally blind and the sole financial and psychological support I had during my trial was my fiancé who has since passed away. I currently have no financial assistance. I am not working and my condition, including the ability to recall events over a long period of time, has been adversely affected.”

The second lawsuit, which was filed last November, is an attempt by Robinson to avoid a second trial and to convince another judge to grant her a declaration that her constitutional right to a fair trial within a reasonable time has been violated and, as a result, award her damages in excess of $25 million.

Robinson’s case brings fresh attention to the plight of litigants who, after waiting years to finally have their day in court, now find themselves waiting up to a decade in some instances for rulings from retired Supreme Court judges.

A total of 27 judgments remain outstanding from four retired High Court judges up to last week, according to the Court Administration Division (CAD). One of the former jurists is responsible for 15. The others each have six, four and two.

Supreme Court judges are required, under Section 100 of the Jamaican Constitution, to demit office at age 70. They may be allowed to continue serving, but must first get permission from the governor general, acting on the advice of the prime minister.

CAD did not reveal the name of the retired judges with rulings outstanding, but documents reviewed by The Sunday Gleaner indicate that King and Lennox Campbell are among them.

The documents include five cases – two dating back to 2009 – that were presided over by King and one for Campbell.

NULL AND VOID

The situation for litigants like Robinson is compounded by a 2018 landmark ruling of the Court of Appeal, which has rendered these rulings useless. Jamaica’s second-highest court held that decisions handed down after a judge presides over a trial and then retires are null and void.

The result, according to one senior attorney, is that litigants awaiting a decision from judges who have retired must either abandon their quest for justice or be prepared to fork out substantial sums for a fresh trial.

Like Robinson, they can also seek a declaration from the Supreme Court that their constitutional right to a fair trial within a reasonable time has been violated and that they should be awarded damages for the original claim, the attorney stated.

“My experience is that most of them forget about the case. They just can’t bother,” said the attorney, who requested anonymity.

Justice Minister Delroy Chuck understands the frustration, but right now there is not much he can do because under Jamaica’s governance arrangements, judges are outside his purview.

Chuck said in addition to using moral suasion to encourage judges to deliver their decisions in a timely manner, his ministry has done “everything requested”, including the addition of 22 judicial clerks for the Supreme Court.

He, however, acknowledged that moral suasion has not worked and again hinted that Jamaica may have to consider tough measures.

“In Guyana, legislation prescribes that written judgments must be presented within six months of completion of the hearing of the case, otherwise the delay is deemed judicial misconduct,” he said.

Chuck noted that in other countries, judges with decisions outstanding for more than six months without good and acceptable reasons stand to lose a portion of their salaries until they are delivered.

“Such measures are drastic and inappropriate, but may well be necessary to coerce the delivery of judgments. The problem of delayed judgments needs resolving,” the minister insisted.

CAD WORKING TO RESOLVE ISSUE

Kadiesh Fletcher, acting director of client services, communications and information at CAD, told The Sunday Gleaner that the issue is being addressed.

Seeking to support this assertion, Fletcher disclosed that 203 judgments were reserved in 2018, while 140 or 68 per cent of them were delivered.

The following year, according to her statistics, over 100 cases were removed from the backlog of those awaiting judgments, as 253 decisions were handed down even though rulings were reserved in 134 cases.

Fletcher disclosed that since the ruling by the Court of Appeal, a policy has been implemented for the administrative management of cases assigned to Supreme Court judges.

“This policy stipulates that two years from retirement, judges’ assignments are such that their primary focus is the completion of all outstanding (reserved) decisions and trials by at least one year before retirement,” Fletcher disclosed.

“Additionally, during the pre-retirement year, the nature of a judges’ assignment is such that there will be minimum risk of the judge not delivering decisions within that year.”

Supreme Court judges have also been given one day per week to write judgments and according to Fletcher, “this has led to significant improvements in the timely delivery of judgments”.

CHALLENGING SECOND LAWSUIT

In all of this, Robinson and her attorneys must now brace for another legal fight with the State after the Attorney General’s (AG) Chambers signalled that it will be challenging the second lawsuit.

An affidavit filed in the case by Louis Jean Hacker, an attorney employed to the AG’s Chambers, urged the Supreme Court to refuse the awards sought by Robinson, arguing that the State was also “significantly prejudiced” by King’s failure to deliver his judgment.

“The defendants’ [the dentist and the State] right to a fair trial has, therefore, equally been breached,” Hacker asserted.

“It cannot be appropriate for the defendant to the instant case to be made to pay damages to the claimant when the defendant herself is prejudiced by the delay and the inability to now receive a judgment.”

… Elderly kicked out on the street, forced to find another $5 million to start a new trial

One who has vowed to fight on is 71-year-old Stafford Dixon.

Dixon, a realtor based in St Catherine, told The Sunday Gleaner that he paid out over $5 million in legal costs to sustain a lawsuit filed in the Supreme Court in 2006 against well-known attorney Patrick Bailey.

The legal action, he said, was to compel Bailey to honour a $105-million agreement signed between them.

The deal, according to Dixon, was payment for over 20 acres of land he alleges was swiped from him through an elaborate scheme.

Bailey was arrested by the police on fraud-related charges arising from the allegations. In 2018, he was acquitted of all charges after a parish judge found that prosecutors had not made out a case against him.

But for eight years the trial was bedevilled by delays before it had to be aborted at the point where it was nearing completion because Justice Horace Marsh was set to retire in 2014, Dixon disclosed.

“It keeps getting putting off for years and years. One time it put off for four years,” he recounted.

The septuagenarian said a new trial commenced in 2015 after the case was assigned to another judge, but the same issue of delays has returned.

“I completed my evidence a second time in about February this year and Mr Bailey has started giving his evidence again, but the trial has been pushed back to December [this year],” Dixon said.

The task of finding another $5 million to cover the costs for a second trial, he said, was daunting.

“Mentally, physically, spiritually, financially and socially, it is devastating. I find myself didn’t have anywhere to live [at one point during the case]. I was thrown out of a house because I was unable to pay the rent. My wife and I were thrown out in the street,” the elderly man shared.

“As I talk to you now, I have to use two hands to hold the phone because my nerves are distraught.”

livern.barrett@gleanerjm.com