Wed | Oct 21, 2020

When the state has to pay for a delayed judgment

Published:Monday | October 5, 2020 | 12:12 AMSherry Ann McGregor

‘End Delays From The Bench! – Bar Association Calls On Judges To Speedily Hand Down Judgments’ was the caption of an article in this newspaper on May 12, 2016. At that time, the Jamaican Bar Association had delivered a letter to the then chief justice concerning lengthy delays in the delivery of judgments in the Supreme Court, and provided a list of 62 judgments that had been outstanding for periods that ranged between six months and more than 10 years.

In the worst of those cases, the judges who heard the matters actually retired without delivering the judgments. For the litigants who asked whether they have any recourse, the judgment of the Supreme Court in the case of Ernest Smith & Co (a firm) and others v The Attorney G eneral of Jamaica [2020] JMFC Full 7 may provide an answer.

This case concerned the highly publicised searches of the offices of four attorneys-at-law (‘the Claimants’) and the seizure of documents from those offices in January 2003. After the Court of Appeal ruled that the searches and seizures were unlawful, claims were filed against the director of public prosecutions and the attorney general to recover damages for breach of constitutional rights, trespass, false imprisonment and assault.

Liability was admitted and the matter proceeded to assessment of damages on October 7, 2013. Judgment was reserved.

RETIRED WITHOUT JUDGMENT

In July 2015, the judge who presided over the assessment of damages retired without delivering the judgment. In 2018, the Claimants commenced fresh proceedings against the attorney general for, among other things, declarations that the retirement of that judge made it impossible for a judgment to be delivered, that the assessment of damages over which he presided was null and void, and that their constitutional right to a fair trial had been breached. The Claimants also sought damages as a result of the delay and costs.

The Full Court unanimously ruled in favour of the Claimants and made the following orders (paraphrased):

1. The judge, having retired, can no longer deliver judgment on the assessment of damages thereby rendering the delivery of the judgment an impossibility.

2. The Assessment of Damages is vacated and declared a nullity.

3. There is a breach of the Claimants’ right to a fair hearing within a reasonable time.

4. The Claimants’ rights to a fair hearing within a reasonable time, as guaranteed by Section 16 (2) of the Charter of Rights and Fundamental Freedoms, was breached.

5. The Claimants are entitled to vindicatory damages of $1,500,000.00.

6. The Registrar is to set the matters down for Assessment of Damages at the earliest possible date.

7. Costs of the claim to the Claimants.

A full review of the judgment would be useful, but for now I wish to highlight the fact that the Claimants were awarded vindicatory damages. The court found that an award of damages pursuant to Section 19 (3) of the Constitution was appropriate because there was acknowledgement that the Claimants “ ... were entitled to a fair hearing within a reasonable time and that that right has been contravened by the retired judge”. The court concluded that the protracted length of the hearing, with no ruling more than seven years after the hearing, meant that it was not sufficient to merely declare that the Claimants’ constitutional rights had been breached. They should also recover damages for the delay or non-delivery of the judgment.

As explained in one of the cases that was followed by the court, “The purpose of a vindicatory award was not a punitive purpose ... but to vindicate the right of the complainant ... to carry on his life ... free from unjustified executive interference mistreatment or oppression. ... It would be a sum at the discretion of the trial judge.”

Perhaps the Government should consider accepting the guidance from this judgment and the case of Paul Chen-Young and others v Eagle Merchant Bank and others [2018] JM CA App 7, offer compensation to the claimants in matters in which the presiding judges have retired without delivering judgments, and spare itself and those litigants the hassle of participating in fresh constitutional claims.

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.