Is justice delayed justice denied?
ALMOST TWO years ago, while I was the president of the Jamaican Bar Association, with the help of members, a list of more than 60 civil cases was compiled in which judgments had been reserved for six months or more. On that list were several cases in which the judges had either already retired or would soon retire in accordance with the retirement age that is mandated by the Jamaican Constitution. Regrettably, many of those judgments have still not been delivered, and more of the judges on the list who had outstanding judgments have since retired.
This unfortunate and worrisome tale is told against the background of the Supreme Court’s slogan “. . . timely delivery of a high standard of justice for all”, and in the face of the judgment delivered by the Court of Appeal on April 28, 2018 in the case of Chen-Young and Others v Eagle Merchant Bank Limited and Others [2018] JMCA App 7. One of the judges in the case described it as “. . . perhaps the most extreme example of the state of crisis which threatens this court”.
As an indication that the issue of delay in the delivery of judgments is not unique to the Jamaican Supreme Court (or Jamaica, at all), the Chen-Young concerns delays in the Court of Appeal and the impact of the intervening retirement of judges on the validity of those judgments. The appeal that was filed in 2006 was heard in November 2013. All three judges who sat on the panel that heard the appeal retired by July 2016 and the judgment was delivered on December 1, 2017.
POINT NOT OPPOSED
The 2017 judgment allowed the appeal and a retrial was ordered in the Supreme Court. The applicants then sought an order declaring that the judgment of the Court of Appeal was null, void and of no effect, and the respondents and interested party neither supported nor opposed this point. The applicants also argued that the delay in the conclusion of the matter breached Section 16 (2) of the Constitution, which establishes a right “to a fair hearing within a reasonable time by an independent and impartial court or authority established by law”.
Although the Court of Appeal declined to make a ruling in relation to the breach of the right to a fair trial on grounds that the issue is suited for hearing in the Supreme Court, the judges unanimously concluded that the judgment delivered by three retired judges was a nullity. An order was made for the appeal to be reheard, and none of the parties was awarded costs of the appeal or the application.
In his judgment, the president of the Court of Appeal concluded that, “... where a judge dies, resigns or retires without having rendered judgment in matters heard by him or her prior to demitting office, absent some specific permission allowing him or her to do so ... any ‘judicial’ act subsequently done by him or her will have been done without authority”.
Whereas the parties in this case have the chance to argue the appeal afresh and, in theory, there is still an opportunity for justice to be done, there are several concerns, of which I will cite only one obvious one – the parties would have incurred legal fees to argue the appeal in the first place, who is to underwrite those expenses the second time around? Further, although this case specifically referred to judges in the Court of Appeal, the constitutional provisions in relation to the retirement ages for Supreme Court judges is the same as the retirement ages for Court of Appeal judges.
Whereas a rehearing in the Court of Appeal involves the review of documents, if a rehearing is ordered in the Supreme Court (which may still be possible in this case), the situation will be far different, as it may well involve the need to call witnesses who are no longer willing to participate in the trial or can no longer participate, because they are dead.
Some clear statement must be made regarding all cases that are impacted by the Court of Appeal’s ruling. Justice demands it!